Administrative Law Outline – Spring 2010, Hudson Janisch
Chapter 1
Introduction
What is Administrative law? Delegated government action where decision are made not in and by the
legislature but by the Cabinet, federal and provincial government departments, municipalities, boards
and tribunals.
 Governs the processes and mechanisms of the welfare and regulatory states
 Plays a role when a decision maker (other than the courts and legislature) makes a decision
affecting someone’s rights or interests
 Decision maker’s powers spring from legislation
Boards and Tribunals
 Legislature gives them power through statute
 Distinguished from each other by the extent to which they employ processes that are court-like
versus policy making in government
 Great variation in the # of decisions they make as well as the extent to which decisions affect
individuals
 Important to recognize that the legislature is making a conscious choice to form an
administrative body vs. leave decisions to the court
o Source of tension in admin law – admin bodies vs. courts – specialized vs. general, and
who should trump who
 Why is legislature making this choice? Usually because the board/tribunal has specialized
expertise
o Courts use elaborate, expensive, and slow processes
Admin Law and Constitutional Law
 1. Unlike Charter challenge, admin law cases don’t give applicant opportunity to overturn piece
of legislation
o Admin law more about reviewing and ensuring generic fairness in government decision
making
 2. Charter challenges have broad array of remedies, admin law remedy is usually a redirection
to the board/tribunal to reconsider the matter in accordance with the law
 3. Admin law has wider reach than Charter
o Charter ONLY applied to government decision making
o Admin law may have place in universities, hospitals, Crown corporations
o Further, admin law extends to broader array of interests, rights and privileges
Context of Admin Decision-Making
 In theory, courts are deferential to admin boards where it seems that was what Parliament
intended
 Core function of Judicial Review (JR) is to examine how and why the courts decide to intervene
in the administrative process
 3 areas of admin law
o 1. Procedural Fairness – is this an issue courts should review, and if so, did the tribunal
use the proper procedure in reaching a decision?
o 2. Substantive Fairness – regarding the decision itself, did the tribunal make an error of
the kind or magnitude
o 3. Remedies and the Legitimacy of JR
Review for Procedural Fairness
 Court is not interested in the actual decision made by the tribunal but the procedures it followed
in coming to the decision
I.
Threshold
 Is this the kind of decision that should attract some sort of procedural right?
 Should there be any entitlement to procedural fairness at all?
 General rule (there are exceptions)– if as a result of delegation by the legislature of
governmental power, a decision is made that affects an individual’s rights or interests there will
be come minimum entitlement to procedural fairness
o Exceptions:
 Decision is a legislative or policy decision
 Decision is preliminary or investigative
 Consider doctrine of legitimate expectations – has a representation been made?
 Generally this determination made at the common law, but now Charter is a component
o See Charter discussion around s. 7
II.
Content
 5 factors relevant to determining general level of procedural fairness – Baker
o 1. Nature of the decision and process followed in making it
o 2. Nature of the Statutory scheme
o 3. Importance of the decision to the individual affected
o 4. Legitimate expectations of the parties
o 5. Procedure chosen by the tribunal (should deference be given)
 Once level of procedural fairness determines, court has range of possibilities on the specific
procedures required
o Notice that the decision is going to be made
o Disclosure of the information on which the tribunal will base its decision
o Some opportunity to participate
o Full hearing similar to what occurs in court
o Right to counsel
o Oral or written reasons for its decision
 Client asks you whether he/she has a right to be represented by legal counsel – where do you
look first?
o Closely examine the legislation setting up tribunal – will usually set out the kinds of
procedures applicants are entitled to
o Does the province have umbrella legislation setting out types of procedures that must be
made available for specific types of boards/tribunals
o In BC, we have the Administrative Tribunals Act which empowers tribunals to enact its
own rules
o Then, look to common law – has an individual’s rights or interests been affected?
III.
Bias
IV.
Independence

Institutional independence is related to bias, but is more about the systemic structure of a board
or tribunal as opposed to individual decisions
 Do the members of the tribunal have financial security? Security of tenure?
 Are they so dependent on or connected to the government that if appointed they cannot be
perceived as being sufficiently able to make an independent decision?
V.
Institutional Decision Making
 The degree to which boards and tribunals can consult with others to whom the person affected
will not have had the opportunity to present his or her case
Review for Substantive Error
 What is the standard of review? Level of intensity with which the court will review a decision
I.
Standards of Review: How big an error must the tribunal make before the court will get
involved?
 1. Standard of Correctness – was it a correct decision/the same decision the court would have
reached?
 2. Standard of Reasonableness – the decision can be one that falls within a band of reasonable
decisions even if it is not the exact decision the court would have reached
 3. Standard of Patent Unreasonableness – most forgiving standard – if superficially the decision
is not unreasonable, then the court should make no further inquiry and let the decision stand
 NOTE – DUNSMUIR V. NEW BRUNSWICK CHANGES THIS TO ONLY 2 STANDARDS
OF REVIEW
II.
Privative Clauses
 The statute setting up the tribunal says the decision is final and not open to review by the courts
 Historically, courts readily ignored the clause and applied a standard of patent unreasonableness
 Modern approach is to treat the existence of a privative clause as one factor of many in
determining the standard of review
Remedies and Legitimacy of JR
 There are 3 sources of review power
I.
Original Jurisdiction
 Ordinary courts have jurisdiction over admin bodies when they are challenged by direct actions
by a citizen in K or tort on the grounds the state has infringed an individual’s private legal right
II.
Statutory Right of Appeal
 No C/L right to appeal substance of decision
 Must be contained in a statute
III.
Court’s inherent JR Jurisdiction
 Superior courts in each province may review decisions made b institutions with responsibility
for administering public programs
 Can hear any matter unless a specific statute says otherwise or grants exclusive jurisdiction to
another court
o Ex. The inherent power limited by Federal Courts Act, assigns almost all JR authority in
relation to federal administrative decision-makers to the Federal Courts of Canada
 “Inherent jurisdiction” = jurisdiction of superior courts is broader than whether is conferred by
statute
o inherited from the UK Royal Courts
 NOT jurisdiction for a general appeal (courts can’t directly substitute their own decision for that
of an agency)

Superior courts have greater freedom to craft remedies and grant relief
Remedial Powers
Historically, only available through perogative writs
 Certiori = to quash or set aside a decision
 Prohibition = to order a tribunal not to proceed
 Mandamus = order the performance of a public duty
 Habeas Corpus = to order the release of the unlawfully imprisoned
Anglo-Canadian Model of JR
 European Appraoch – admin law completely separate
o No recourse to general courts, only to the Conseil D’Etat, an overseeing admin body of
very senior civil servants
o The highest administrative body and adviser on questions arising in connection with
legislation
o Admin courts have distinct procedures from crim/civil courts
 Our approach: Rejects this
o Main principle: the rule of law (any citizen should be able to access the general courts
when they have a grievance with the government)
o Requires that governmental activity affecting an individual has to be subject to the law
o Tension: the rule of law saying give people access to the courts vs. generalist nature of
the courts second guessing specialized tribunals
Constitutional Right to Review Administrative Decision-Makers and Section 96 Courts
 s. 96 states that the appointment of superior court judges is the responsibility of the federal
government
 A province cannot de facto create a court and call it an administrative tribunal to get around this
 Three part test to determine whether or not a tribunal is acting as a s. 96 court
o 1. Historical Inquiry – is this a judicial power exercised by Superior courts at the time of
Confederation
 Meant to interpret broadly to ensure protection of s. 96 courts
o 2. Is the impugned power a “judicial” power as opposed to an administrative or
legislative power?
 A judicial power is one where there is a private dispute between parties,
adjudication through the application of a recognized body of rules and
adjudicated in a manner consistent with fairness and impartiality
o 3. Is the judicial power core or ancillary?
 If ancillary, the power is intra vires because it is not the primary function of the
administrative tribunal
 If core, the power is ultra vires
Crevier v. Quebec, 1981, SCC
Provincially constituted statutory tribunals cannot constitutionally be immunized from review of
matters of jurisdiction by the Superior Courts
Facts: Quebec legislation created a Professions Tribunal to hear appeals from discipline committees of
most statutory professional bodies in Quebec. Tribunal made up of provincially appointed judges,
decisions were final even if they were decisions about the reach of its own jurisdiction. Sole function
was to hear appeals.
Issue: Was it acting like a s. 96 court?
Decision:
 A tribunal can circumvent s. 96 if the superior court has JR over questions of jurisdiction, even
if it’s limited in it’s ability to review other things
 The fact that this tribunal prevented that meant that the clause was not constitutionally valid
because a s. 96 court was created
 To give a provincial tribunal unlimited jurisdiction to interpret and apply law and preclude
supervision from a provincial superior court creates a s. 96 court
Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC)
Facts: A woman was about to be deported for overstaying. She requested the Minister use his
discretionary power to allow her on humanitarian and compassionate grounds to stay in Canada with
her 4 Canadian children. Her application was denied. An immigration officer wrote up inflammatory
notes about the merits of her application. They were very informal, but the SCC took them as reasons
for the decision.
Issues: Fairness in terms of procedural rights to participate, duty to give reasons, bias, relevance of
international treaties ratified but not incorporated in domestic law
Administrative structure and sources of law:
- Sphere of State activity
- Immigration
- Minister’s Department
- Citizenship and Immigration
-
Legislation: Immigration Act
S.114(2) delegates to Governor-in-Council power to make regulations including authorizing the Minister
to exempt persons from regulations or to facilitate admission
Regulations: Immigration Regulations
S.2.1 authorizes the Minister to exempt persons based on humanitarian and compassionate grounds
Precedent and common law principles,
Example: audi alteram partem = the duty to hear the other side
Indirect influence of the Charter and Charter values
- Jurisprudence from other jurisdictions: UK, Australia, NZ, India
- International law: Convention of the Rights of the Child (not incorporated into domestic legislation)
- Immigration guidelines: “soft law”
- Fundamental values of Canadian society
- Articles by legal academics
Scope of the appeal
- Immigration Act contains provision allowing judicial review of decision with leave requirement from
Federal Court—Trial Division
- FCTD judgment can only be appealed if FCTD certifies a “serious question of general importance” for
FCA to consider
Determining the content of procedural fairness
Paras. 23-28 open list of factors to be balanced:
- Nature of the decision and the process followed
o Who made the decision? (minister, tribunal, officer like Lorenz)
- Nature of the statutory scheme and the terms of review
o Are there limits on the terms of review?
- Importance of the decision to the individual(s) affected
Minor inconvenience? Does it cost the litigant a lot of money? Does it affect the litigant’s
dignity and the course of their life?
Legitimate expectations of the persons challenging the decision
o When you are dealing with the decision-maker in that administrative body, did they tell you
what normal procedures would be? Did they promise that you would be treated in a certain way?
Did they make representations about likely outcome? (rare – admin D-M’s are careful)
Respect agency expertise in determining and following own procedures
o
-
-
note: the weight of each one of these will change dependent entirely on the facts of a case
however, if you track the cases, some tend to drive cases more than others (NOT Legitimate
expectations)
Underlying values:
“…relate to the principle that affected persons should have the opportunity to present their case fully and fairly,
and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process,
appropriate to the statutory, institutional, and social context of the decisions.”
Procedures and entitlements: What did she originally get?
- Opportunity to submit written submissions
- Letter notifying her of decision
- Reasons (notes) after request by counsel
What did she ask for?
- Oral interview before decision-maker for herself and for other parent/children
- Notice to children and other parent of oral interview
- Right to have counsel for all affected
- Reasons for the decision
- Unbiased decision-making process
Ratio:
- this case stands for the duty to give reasons, which up until this point was variable
- at CL it very much depended on the context to see if you were entitled to reasons, often it was statutorily
required
- Baker gives us a statement from the court that Reasons are very important but stopped short of saying
there is a general common law duty that every single decision maker in every single instance must give
reasons.
What was the result?
- Reasons, depending on the context (therefore not a general duty)
- Correction of bias (original decision sent back for reconsideration)
- Meaningful opportunity to participate but not necessarily an oral interview in all circumstances
(therefore not a general requirement)
Reasons:
- No general duty to give reasons
- Entitlement based on the importance of the (discretionary) decision to Baker
- Procedural content = how the decision is made
- Substantive import = communicate the substance of the decision and therefore key to attacking it
Procedural justice and bias:
- Test for “reasonable and right-minded persons” (para. 46): “…[W]hat would an informed person,
viewing the matter realistically and practically—and having thought the matter through—conclude.”
Substantive review and abuse of discretion:
- Pragmatic and functional methodological approach within the standard of review (the “spectrum”)
Standard Review: 4 factors considered in Baker:
- Presence of a privative clause
- Expertise of the decision-maker
- Language/purpose of the provision and Act as a whole
- Nature of the problem (law, fact)
What is discretion? (Paras. 52-53):
- “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or
where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.”
Standards of review (there were 3 at the time of Baker):
- Correctness, Reasonableness, Patent unreasonableness
- Post-Dunsmuir: Correctness, Reasonableness
Chapter 2
The Tools of the Administrative State and the Regulatory Mix
Soft Intervention vs. Heavy Machinery
 Soft intervention = minimally interventionist, like discouraging certain behaviors through
authorized programs
 Hard intervention – criminal sanctions
 Middle ground – taxation, restrictions on advertising, self-regulation, etc
Is Litigation a Tool?
 2 main reasons to hesitate
o 1. Law suits are usually initiated at the behest of private actors, not the government
o 2. Government is often subjected to litigation as a defendant
Introduction
 When legislatures determine to intervene, can do so in a number of ways and use a range of
tools
 Confer power on tribunal to carry out the regulation for reasons of expertise, expediency,
access, independence of political process, etc
The Administrative State and its many areas of Regulation
Non-exhaustive list:
 Employment
o Extensively regulated – ex. Under legislation addressing collective bargaining, EEs are
given the right to be represented by unions and the rel’ship between the union and the
ER is extensively regulated
 Regulated Industries
o Television and radio extensively regulated, securities industry
 Economic Activities
o Mergers and takeovers are scrutinized for possible adverse impact on competition
 Professions and Trades
o Ex. Law Society
 Social Control
o Regulate and restrict freedom of movement – incarceration of mentally ill, placing
neglected kids in foster care
 Human Rights


o Human rights legislation applies to individuals, corporations, government – has to do
with housing and employment, discrimination, etc
Income Support
o EI, social assistance, pensions
Public Services
o Health care, education, police protection, garbage collection
Administrative Actors = Agencies, Government Departments and Other Institutions
I.
Agencies
a. Function separate from government and public service
b. Federal level – CRTC, Human Rights Commission
c. Provincial – human rights, municipal boards, environmental tribunals
d. Usually possess 4 characteristics
i. Independence from the government department with overall responsibility for
the policy area in which they operate
1. For example, appointment of members, how decisions are made
ii. They render decisions regarding the area that they regulate that an directly affect
persons
1. Have an adjudicatory role regarding disputes in regulated area
iii. They follow a more or less uniform decision making process for resolving issues
that directly affect persons
1. In terms of pre-hearing notice, admission of evidence, etc
iv. They are specialized wrt the area they regulate
II.
Cabinet Ministers and Departments
a. May have powers on the entire Cabinet to perform tasks regarding the issues being
regulated – for example, power to make subordinate legislation
b. May give specific Minister power to make certain decisions
III.
Other
a. Almost any institution can be considered an admin actor for a limited purpose
b. Key is that the exercise of some statutory power that has public and regulatory
dimensions
c. Ex. Professional bodies empowered by statute to self regulate
Tools and Administrative Actors
 Tools are almost always authorized by statute
o Admin actor must have statutory authorization to use a particular tool like ability to
make subordinate legislation
 Vast range – from imposing sanctions to educational programs
 Admin actors given lots of discretion about how and when to use their tools
 Admin actors very different from civil courts
o Court use one tool: adjudication
o Admin actors can adjudicate in a similar way, but also have an array of other tools
Discretion – the Ubertool
 Admin actors have much discretion in carrying out their mandate
 This discretion to decide when and how tools will be utilized = Ubertool
 Discretion is the “lifeblood” of the administrative state
 But, it must be exercised within appropriate boundaries
Tools and the “new” governance
 Government and the admin state don’t function the same way as did 25 yrs ago
 New means of regulation associated with 2 broad developments
o 1. The crisis and transformation of the modern welfare state
o 2. The emergence and growing prominence of forms of regulation beyond the state
o example – increasing delegation of rule-making and rule-enforcing authority to private
industry associations or hybrid third parties increased reliance on economic instruments
and increased focus on new targets of regulation
 Salamon claims there is a “new governance” : a shift in the paradigm of public programs
o No longer has as its centerpiece agencies or programs but rather the tools used to realize
the various goals of the new governance
o Much more interest in tools that promote flexibility in terms of the role of government –
like vouchers, privatization, self-regulation, incentives, contracting out, etc.
o The tools are NOT new, but there is move away from “command and control” – the
government and its agencies mandating the regulatory scheme and its implementation to
an openness to a variety of ways in which overall policy objectives can be achieved –
like having active involvement on the part of those subject to regulation
 Braithwaite – urges for more flexible strategies in terms of enforcement of regulatory regimes
o Command and control approach esp wrt corporate misbehavior is much less effective in
achieving regulatory goals than advocates claim
o He espouses the regulatory pyramid – uses educational/persuasive strategies to
encourage trust and discourage defensiveness
 Escalating strategies used when reluctant
 Punitive sanctions imposed but reserved for situations where other strategies fail
 Wants to foster “corporate virtue” to achieve compliance and realize regulatory
goals
o Acknowledges that if maintaining trust doesn’t work, must be equipped to move to
sanctions
o Successful? Yet to be determined
o “Approaches to regulation that seek to identify important problems and fix them work
better and more humanely than approaches oriented to imposing the right punishment”
 Federal government in response to shift in emphasis on the workings of the administrative state
– devised the Smart Regulation Program – 4 principles
o 1. Protecting the public interest – find the right blend of policy instruments
o 2. Extending the values of Canadian democracy – decision making on regulatory matters
is conducted in open/transparent manner
o 3. Leveraging the best knowledge in Canada and worldwide – SRP recognizes that
knowledge and evidence form the basis of regulation
o 4. Promoting effective co-operation, partnerships and processes – SRP strengthens cooperation with all levels of government
o Has many components – like devising a “framework for assessing, selecting, and
implementing instruments for government action”
Assessing Tools and the Administrative State
 Critical to assess effects of legal intervention – but its complicated
 Primary test for law is the extent to which legal intervention actually provides solutions to the
underlying societal problems that are sought to be addressed

Number of ways to assess tools
o JR of admin action
 Has a role in bringing accountability and transparency to the actions of admin
actors
 It itself is a tool for those dissatisfied with the admin state
 Limited in function though b/c costly and slow
 And judges don’t assess all aspects – those involved in political judgments,
decisions on spending power and if lack expertise
o Five Criteria test – generally applicable set of criteria that reflects good policy making
and implementation. Not exhaustive list of relevant considerations
 1. Effectiveness
 The extent to which a tool achieves its intended objective
 May be difficult to assess b/c regulatory mix uses several tools together
 2. Efficiency
 Takes account of results and costs
 Most efficient tool achieves optimal balance b/w benefits and costs
 Costs include those to government and regulated parties
 3. Equity
 Critical criteria – has two meanings
 First, basic fairness – distribution of benefits and cots evenly among
those eligible
 Second – the redistribution of benefits to those who have previously not
had them or had disproportionately less
 4. Manageability
 Issues of implementation – more convoluted the tool and more separate
actors involved, more difficult to manage
 5. Legitimacy and Political Feasibility
 A program that can’t win political support can’t make headway
 Some tools facilitate public accountability and participation – like self
regulation and privatization
o Will be used in variety of contexts
Chapter 3
Remedies in Administrative Law
Judicial Review = court review of remedies that have been imposed by administrative law agencies and
tribunals
 Legal scholars and practitioners don’t trust admin agencies like they trust courts
 But a tight focus on court action misses that admin action can have varied and creative remedies
that the tribunal itself can impose
 Meanwhile, legislators try to limit use of courts
 “Tug of War” – courts and legislators trying to steer the course of admin law
 Legislative drafters often try to limit or circumscribe the availability of court intervention
o Privative clauses
o Avenues of appeal internal to the tribunal
Remedial Options at the Tribunal Stage
 Admin tribunals so varied – can’t really generalize about remedial powers

Only 2 major points
o A tribunal doesn’t have the general jurisdiction that a court does, so the power to impose
a particular remedy must be provided for in the tribunal’s enabling statute
o Most tribunal’s composition, structure and mandates are different from courts, and their
approach to remedies reflects this
I.
Statutory Authority
 Can’t make orders affecting individuals’ rights w/o authority
 So, first step to determine a tribunal’s remedial powers is to look at the statute
 If makes order outside of power, will be void
 Some statutes have explicit lists of remedies, others give the tribunals broad discretionary
power to fashion remedies they see fit
 Lack the equitable jurisdiction to order interim injunctions, although may have statutory
authority to seek an injunction in court to enforce a statute
II.
Novel Remedies
Ongoing seizen, broad mandate, different expertise, trend to crossing public/private divide
 This focuses on tribunal-style admin agencies
o Ie. not in their policy-making function
 Admin tribunals often take a broader perspective on a dispute that courts will
 Focused on vindication of broader statutory or constitutional policies
 Require consideration of numerous interests simultaneously instead of 2 private parties coming
before the courts
 Admin tribunals have stronger justifications for remaining “seized” of a case over a longer
period of time
 Admin tribunals may try to develop remedies that address underlying structural or systemic
problems, in a forward looking rather than retrospective, rights-oriented way
 Tribunal members are specialized, have expertise that allows them to devise remedies that
reflect their training and perspective
 Admin structures that span the public/private divide – “new governance”
o Mechanisms by which public structures like admin tribunals, retain ultimate
accountability for their programs but outsource the implementation to private or 3rd
party actors
o Proponents of new governance argue that delegated implementation allows action to
those bodies best equipment and with the greatest information to perform tasks
effectively
 These factors have led to creation of innovating remedies
o Incorporate independent 3rd P to try to develop and implement remedial measures w/I
organization – try to get meaningful systemic change in the organization, the 3P tries to
help the troubled organization confront and work through problems internally
o McKinnon and Ont Human Rights Commission v. Ontario (Ministry of Correctional
Services)
 Native American worked as corrections officer for Toronto Detention Centre for
11 years
 He and his non-Abo wife faced regular workplace discrimination and harassment
b/c of his heritage
 Management did nothing to stop, even condoned/participated
 Complained in 1988, didn’t get final result until 2006
 Cost of case - $2 million, time taken: 18 years


Tribunal could remain seized in the matter, in 2002 it reconvened and ordered
additional range of remedies
 Training for ministry and facility management
 External mediators to deal w/ discrimination complaints
 3P appointed to develop and oversee delivery of training programs
Both tribunal side and policy side admin agencies have been affected by globalization
o Need to consider international agreements, organizations, standard setting bodies
Enforcing Tribunal Orders Against Parties
I.
Tribunal Seeks to Enforce it’s own order
 Enforcement powers used when party not complying with order
 Tribunals rarely enforce own orders – any power to do so must be granted in its enabling
statute, and the delegation must pass constitutional scrutiny
 “Achilles heel in tribunal administration”
 A provincially created tribunal CAN’T have criminal enforcement powers
 In BC, Administrative Tribunals Act assists tribunals in obtaining compliance
o S. 18 – Tribunals can schedule hearing, make decision, dismiss application if party fails
to comply
o S. 47 – allows some tribunals to make orders for payment of costs, including the
tribunal’s actual costs if the party has acted in a frivolous, vexatious or abusive way
 More commonly, tribunal has to make application in court to enforce any order it makes
 Once converted into court order, can enforce in same was as a court judgment – including
availability of contempt proceedings
II.
Party seeks to Enforce Tribunal’s order
 Can bring action in court against other party to enforce tribunal order
 The party’s success “may depend on whether the tribunal order is of a type that a court would
enforce, and whether the court believes it should enforce the tribunal order in the absence of
any stat procedure for obtaining court assistance”
III.
Criminal Prosecution
 Many statutes provide for quasi-crim prosecution of persons who disobey
 Prosecuted by the fed or prov Crown, include fines and imprisonment
Challenging Admin Action
 Perhaps the tribunal’s jurisdiction, its procedure, its impartiality, its exercise of discretion, or
substance of its final decision
 Usually, direct or indirect challenge of the remedies or order the tribunal imposes
 JR only one method of challenging
o Inherent limits to JR
 “Doctrine of Exhaustion” – wherever there is an appeal tribunal, parties must go to it before
they can go to the courts
 Often, access to courts is as minimal as possible without infringing constitutional rights
I.
Internal Tribunal Mechanisms
a. Need to understand the tribunal’s structure and capacity before challenging action
b. All tribunals can fix certain things like clerical errors or factual errors w/o express stat
authority = “slip rule”
c. Can “change their minds” until the time final decision is made
II.
III.
IV.
i. Becomes important to consider what a final decision is
d. Some statutes provide tribunals ability to reconsider and rehear decisions they have
made
e. Some tribunals part of multi-tiered admin agencies, may have appeals internal to agency
itself
f. Internal proceedings do not preclude subsequent appeals to courts, statutes may provide
for appeals under certain conditions
g. Where the statute does not provide for appeal to the courts, THE PARTIES’ ONLY
ENTRÉE TO THE COURTS IS BY MEANS OF JR
h. Quebec’s TAQ – is a supertribunal that hears proceedings from all kinds of bodies – the
main appellate/review body for admin matters in the province
i. Not a judicial body, but its remedial powers include judicial review style options
and even has the ability to substitute its decision for an original tribunals
ii. Avenues of appeal from TAQ to SC of Quebec VERY limited
External Non-Court Mechanisms
a. Ombudspersons exist by statute in every province
b. Provides a forum for citizens to bring their complaints regarding the way government
departments and agencies have dealt with them
c. Generally, can’t investigate a tribunal’s decision until after right of appeal or review has
been exercised or until time to do so has expired
Using the Courts: Statutory Appeals
a. Two main ways for party to access courts to challenge the action: appeal and JR
i. Appeal is the norm, JR is the exception
b. Scope of possible appeal is confined to what the statute expressly provides
c. Is an appeal available?
i. Does the tribunal’s enabling statute provide for a right of appeal?
1. Courts have no inherent appellate jurisdiction over admin tribunals
2. If statute doesn’t provide for appeal, only option to get to court is JR
3. Parties cant appeal interlocutory rulings, to be capable of appeal must be
final disposition
ii. What is the scope of the appeal available?
1. Scope of appeal limited by what statute allows for
2. Some allow for de novo review of tribunal’s decision, others limited to
issues of law
3. Generally, the scope is determined by how closely the tribunal’s subject
matter mirror the mandate and expertise of the courts
4. Right to appeal more likely to be granted when tribunal has power to
affect individual’s common law rights
iii. Is the appeal available as of right, or is leave required? IF leave is required, who
may grant it?
iv. Is a stay of proceedings automatic, or must one apply for it?
1. BC Admin Tribunals Act –“ Commencement of an appeal does not
operate as a stay or suspend the operation of the decision being appealed
unless the tribunal orders otherwise”
2. Unless statute specifically excludes it, the superior court that is the
tribunals’ designated appellate court has inherent authority to grant a stay
Using the Courts: Judicial Review
a. At its root, JR is about the inherent jurisdiction of courts to oversee and check
administrative action in the interest of the rule of law
V.
b. JR is the review of executive action beyond what the executive provided for
c. So, only on JR will courts investigate procedural fairness and bias
d. But, also must recognize that rule of law needs to be tempered by respect for admin
values of efficiency and expertise
e. JR are summary actions, NOT full trial – seek relief w/ affidavit evidence
f. JR is discretionary – may refuse to grant a remedy
i. Domtar v. Quebec
1. Chose not to intervene to resolve a conflict in legal interpretation b/w two
tribunals construing the same stat language
2. “Advisability of judicial intervention in the event of conflicting decisions
among admin tribunals, even when serious and unquestionable, cannot be
determined solely by the “triumph” of the rule of law
g. JR rooted in perogative writs of old
h. Availability
i. “Public Bodies” – JR applications can only be brought for public bodies
1. Ex. of corporations incorp under CBCA by government action
2. CAN’T bring applications against them, they are not public bodies, they
are private institutions
3. Factors to determine – the tribunals’ functions and duties, sources of
power and funding, whether the gov directly or indirectly controls it
4. Def public if it is “part of the machinery of government”
ii. “Standing” – must have sufficient interest in the matter to engage in an admin
law remedy
1. if you’re a party, you definitely have, but third parties that are collaterally
affected by a decision may not
iii. “Exhaustion” – necessary to participate fully in the tribunal decision and take
any internal appeal possible
1. IA’s are must less expensive, are from specialist
iv. “Adequate Alternative Relief” – if court going to reject application for judicial
review, it must be satisfied that the alternative relief you should have exhausted
is adequate
1. can make an application for JR on grounds of inadequate potential for
internal reconsideration
i. Need to determine which court to go to for JR – choice of court usually determined by
whether the source of the impugned authority’s power is federal or provincial
j. Deadlines – don’t miss limitation periods for JR
i. In BC, general time limit is 60 days after underlying decision/order is
communicated
Remedies on Judicial Review
a. Have their roots in perogative writs
b. A court can never on JR substitute its views on a matter for the tribunal’s
c. Should be aware that an application for JR doesn’t automatically stay the enforcement
of the underlying tribunal order, but the tribunal or the court may have power to stay it
on application
d. The Writs
i. Certiori = to quash or set aside a decision
1. Used to review for excess of jurisdiction AFTER decision made
ii. Prohibition = to order a tribunal not to proceed
VI.
1. Also used to review for jurisdiction, used to obtain relief before decision
made – stops proceedings by tribunal exercising judicial functions in a
manner not w/in its jurisdiction or discretion
iii. Mandamus = order the performance of a public duty
iv. Declaration = determines the legal positions of the parties or the law that applies
to them
1. Public law variety used to declare gov action ultra vires
2. Private law variety to clarify the law or declare a private party’s rights
under a statute
v. Habeas Corpus = to order the release of the unlawfully imprisoned
e. Statutory Reform
i. Simpler application procedure – just set out ground on which relief sought and
nature of relief, don’t need to specify a writ
ii. Simplified remedies – power to set aside decision, direct tribunal to reconsider,
etc.
iii. Statutes generally clarify who may be parties, provide for right of appeal
iv. Federal Courts Act
v. BC Judicial Review Procedure Act
f. Discretionary Bases for Refusing a Remedy
i. Courts can refuse remedy even where one is warranted
ii. Basis? That adequate alternative remedies are available, JR should be last resort,
delay and acquiescence
iii. If the issues are moot, may dismiss
iv. Where the party making the JR application does not come with clean hands
Private Law Remedies
a. Outside the scope of admin action and JR
b. The statutory remedy of JR doesn’t allow a party to link a JR remedy with a claim for
monetary relief
i. Would have to make a separate civil action after JR
c. Tort of misfeasance in public office – P must prove deliberate and unlawful conduct by
someone in public office, as well as the public officer’s subjective knowledge that the
conduct was unlawful and likely to harm the P
d. Purpose is to protect citizen’s reasonable expectation that public officials won’t
intentionally act in a way that injures members of the public
e. Odhavji case – damages action PO’s by the estate of an individual shot by the police
Chapter 4
The rule of law in the administrative state
In the context of admin law, the rule of law is best conceived as an open set of institutional practices
entailing shared responsibility for upholding the content of the rule of law, a responsibility that is
distributed within and among coordinate institutions
 Admin law is complex b/c of the constant tension between the need for the court to be able to
make a decision while still respecting the expertise of the tribunal
 Democracy vs. the rule of law
The Rule of Law in Theory
 Rule of law characterized by 3 interrelated features
o 1. Principle of legality
o 2. An activity or practice of law making among and within an institutional arrangement
of government
o 3. Distinctive political morality (principles of justice that are publicly endorsed)
 The rule of law is an overarching normative relationship between legal subjects and the state
 Seeks to prevent arbitrary use of power, encourages responsiveness between them
I.
The purpose of the rule of law: The non-arbitrary rule of men
 Government action must always be sourced in law and therefore bound by law in order to be
considered both valid and legitimate
 Requires institutions to control arbitrariness, both procedural and substantive (an indifference
about the procedures chosen to reach an outcome, decision-maker having unconstrained
discretionary powers)
 Procedural justice – can be offended and therefore invalid government action by:
o Acting ultra vires its jurisdictional limits
o Acting outside the enabling statute
 The decision itself may be arbitrary – biased, illogical, unreasonable, or capricious
o Show mere opinion, preference, stereotyping
II.
Attributes of the rule of law
 In law, it acts as a constitutional metaprinciple
o Informs the principle of legality, seperation of powers, principle of judicial
independence, principle of access to justice, P of FJ, etc
o If it has a core meaning, it is the principle of legality = law should always authorize the
use of public power and constrain the risk of the arbitrary use of public power
 Restrains arbitrary power in 3 ways:
 1. Constrains the actions of public officials
 2. Regulates the activity of law-making
 3. Seeks to minimize harms that may be created by law itself
 Dicey: Institutional control on forms of executive discretion through the judiciary
o Rule of law has 3 features:
 1. Absence of arbitrary authority in government, but especially in the executive
branch and the administrative state
 2. Formal legal equality so that every person, including and especially public
officials, in the political community is subject to the law
 3. Constitutional law that forms a binding part of the ordinary law of the land
o C/L courts provide institutional connection between rights and remedies and are the site
for the development of the general principles of the common-law constitution
o Judge made law combined w/ unwritten constitution = better mode of legal constraint
than written codes b/c less vulnerable to executive attempts to suspend or remove rights
o Parliament sovereign and supreme, source of all ordinary law and source of all
governmental power
 No check on exercise of legislative authority
o Any power not authorized by Parliament considered ultra vires by the courts
o Courts are the chief rule of law check on the executive, and the primary means to
control delegations of discretion from the executive to the administrative state
o Admin law had controlling and legitimating function – the ultra vires principle provided
justification for intervention to control the scope of delegated power
o Admin law was a means by which the courts could control governmental power in order
to protect individual rights
o Consequence of this model:



Admin bodies viewed w/ distrust as almost inherently lawless forms of
governance
 Courts did not have to defer to or show respect for admin body decisions
 Raises problem of legitimacy
 Lacks way to ensure accountability in government such as by facilitating
participation in decision-making process
Fuller: Principles will generate successful legal system
o Offers a procedural approach to understanding the principle of legality
o This view has law making as an activity w/in the political community – the laws of
lawfulness
o If law = the enterprise of subjecting human conduct to the governance of rules, then the
purpose of the RULE of law = create and sustain a framework for successful social
interaction
o Compliance occurs b/c citizens get benefits from following the law, and lawmakers have
an interest in optimizing legal conditions that are conducive to compliance and
cooperation
o 8 principles of legality aim to guide lawmakers in achieving this end:
 1. Laws must be general, ensures that laws aren’t ad hoc or arbitrary
 2. Laws must be promulgated and public b/c secret laws undermine legality and
frustrate citizen’s ability to know system
 3. Laws must be prospective, not retroactive
 4. Laws must not be contradictory
 5. Laws must have constancy through time
 6. Laws must be reasonable clear
 7. Laws must be capable of being performed
 8. Congruence between the rules as announced and the rules as applied must
exist to avoid a legal system of arbitrary commands
o This model applies to law-making wherever it is – legislative, judicial, administrative,
etc
o As opposed to Dicey, does not assume that admin bodies are inherently lawless
o If they follow these principles, more likely to engage in lawful activity
Raz:
o Agrees w/ several of Fuller’s views, but thinks that can reduce the rule of law to 1 basic
idea: Law must be capable of guiding the behavior of its subjects
o Proposes 8 alternative principles (says non-exhaustive)
 1. Laws should be prospective, open and clear
 2. Laws should be relatively stable in order to help individuals with their short
and long term planning
 3. Particular laws should be informed by open, clear, stable and general rules
 4. The independence of the judiciary must be guaranteed
 5. The principles of natural justice must be observed – such as fair hearings and
the absence of bias
 6. Courts should have limited review powers over the implementation of other
principles in parliamentary legislation and admin decision making in order to
ensure conformity w/ rule of law
 7. Courts should be easily accessible
 8. Discretion of crime preventing agencies (PO) should not be allowed to pervert
the law
o Rule of law is instrumental – a means to achieve other goals
o This theory fails to provide grounds on which to judge the content of law
 DOES give ideas on form, production and application
The Supreme Court of Canada on the Rule of Law’s Significance
I.
Summation of the principles of the rule of law from the SCC:
a. Supreme over private individuals and government officials
i. Gov officials must exercise their power non-arbitrarily and according to law
b. Requires creation and maintenance of positive order of laws
c. Requires relationship b/w state and individual to be regulated by law
d. Linked to principle of judicial independence [top four from Imperial Tobacco]
e. As an unwritten principle, the rule of law
i. Can have full legal force in certain circumstances [Manitoba Language Rights
Reference]
ii. But CAN’T strike down legislation based on content [Imperial Tobacco,
Christie]
II.
The Heart of the Canadian Rule of Law
a. Roncarelli v. Duplessis – illustrates one of the primary functions of the rule of law: the
control of executive arbitrariness
i. R owned restaurant, was a Jehovah’s Witness. PQ government was persecuting
JW’s. R posted bail for fellow JW’s who were jailed for distributing religious
pamphlets. Premier Duplessis warned R to stop posting bail, and when R
continued, D ordered the liquor board to cancel his permit to sell alcohol. He had
to shut down his restaurant
ii. Contains several examples of arbitrary power – unlimited discretionary powers
in an agency, decision maker acting in bad faith, inappropriate responsiveness to
an individual situation where important interests at stake, consideration of
irrelevant factors in the decision, disregard of the purpose of the statute
iii. Invoking rule of law, the SCC held that no public official is above the law
1. D stepped outside his bounds as AG, inappropriately exercised power of
chairperson of liquor commission
iv. Regardless of the above, the decision itself offended the rule of law because it
was incompatible w/ the purpose of the statute
1. Being a JW was irrelevant to a decision concerning the continuation of a
liquor license for operating a restaurant
v. View this decision from Diceyan model
1. The SCC held that Chairman of the board had not made a decision at all
b/c D had substituted his decision for that of the proper authority, thus
exercising his power arbitrarily
2. Legal wrong committed against the rule of law was the violation of the
legal principle of validity, which affirms that every official act must be
justified by law or be found ultra vires
a. Decision not valid b/c power to cancel licenses not given to
Premier or AG
3. Problem w/ this view? Had the chairperson not consulted F, the decision
would have been valid b/c the statute gave him unfettered discretion
4. In contrast, Rand, who wrote concurring judgment, argued that public
authorities are ALWAYS constrained by rule of law
III.
IV.
a. So if the chairman had been acting alone, he would have been
using his discretionary powers inappropriately b/c his decision
contradicted the substantive content of the rule of law
The Foundational Principle, but an “Unwritten” One
a. Rule of law both part of written and unwritten constitution
i. Implicitly in the preamble, which adopts a constitution similar to that of the UK
ii. Explicit in the Constitution Act of 1982 that says Canada founded on… R o L
iii. The unwritten principle reflected in Manitoba Language Rights and Secession
iv. Manitoba Language Rights Reference
1. Facts: Manitoba government repeatedly failed to respect mandatory
constitutional requirement of bilingualism and so were failing to comply
with legislative enactment
2. Invoked rule of law to render legislative product invalid
a. Manitoba acting w/o legal authority, arbitrarily, and allowed its
officials to act outside the law
b. These actions constituted a complete transgression fo the
principle of legality
3. Remedy: bilingual enactment of all unilingual provincial laws
4. The rule of law is highly textured expression, conveying.. a sense of
orderliness, of subjection to known legal rules and of executive
accountability to legal authority
5. Characterized rule of law as principle of legality, in two ways
a. The rule of law supreme over gov officials and private
individuals, therefore excludes operation of arbitrary power
b. Law and order are indispensible elements of civilized life
v. Secession Reference
1. In addition to being highly persuasive, the four unwritten principles (rule
of law, democracy, constitutionalism, respect for minorities) can have
full legal force in some circumstances
2. In response to Quebec, stated that these principles mandate a rejection of
unilateral action by the province and a need for principles negotiation as
the default position in Canadian legal and political order
The New Minimalist Rule of Law
a. Imperial Tobacco, Charkaoui, and Christie all narrow scope and effect of rule of law
b. In Imperial Tobacco, the court expressed unwillingness to use rule of law to challenge
legislation
i. Legislatures have manner and form requirements to enact, amend and repeal
legislation
ii. Facts: Statute enacted in BC allowed province to sue manufacturers of tobacco
products for compensation of tobacco related health care costs incurred by
individuals exposed to tobacco products, argued that they breach duty of care
iii. Tobacco company challenged statute on 3 grounds: extra-territoriality, judicial
independence and rule of law
iv. Rule of law does not require legislation to be prospective or general, does not
ensure fair trial
1. To affirm these features would be tantamount to endorsing one particular
conception of the rule of law, thereby undermining the legitimacy of JR
2. Written constitution has primacy
3. Protection from unfair legislation lies not in unwritten principles, but in
its text and the ballot box
V.
c. Charkaoui
i. Declared the detention review hearings process under the Immigration and
Refugee Protection Act unconstitutional b/c violated s. 7, 9, 10, and 12
ii. But did not review the reasonableness of security certificates
iii. Rule of law did not support a right to appeal from the Federal Court judge’s
determination of the reasonableness of the certificate, nor could it prohibit
automatic detention or detention on the basis of executive or ministerial
decision-making
d. Christie
i. Affirmed that one purpose of rule of law is to ensure access to justice
ii. MAY guarantee a right to legal services in SOME circumstances
iii. But the rule of law does not underwrite a general right to legal services, to legal
assistance, or to counsel in relation to court and tribunal proceedings
iv. R o L CAN’T constitutionalize a particular type of access to justice
e. Access to Justice?
i. Appear’s in Dicey’s conception of rule of law by necessity in his common law
model
ii. In Fuller’s procedural understanding of the R of L
iii. Explicitly as one of Raz’s principles
iv. None of these models provides for an institutional arrangement that facilitates or
guarantees acess
Lower Court Unruliness?
a. Lower courts have been more receptive to rule of law arguments
b. Lalonde (Ont CA)
i. Resurgence of rule of law arguments, important decision
ii. The court reviewed a discretionary decision made to close the only francophone
hospital in Ontario w/ no explanation
iii. While the Commission could exercise discretion to change and even limit
provision of these services, the court said it “cannot simply invoke
administrative convenience and vague funding concerns” as reasons for doing so
iv. “the review of discretionary decisions on the basis of fundamental Canadian
constitutional and societal values” is possible
v. The commission acted contrary to the normative and legal import of the
unwritten constitutional principle of respect for minorities
Administering the Rule of Law
I.
The Rule of Law and Post-Charter Administrative Law: Deference as Respect
a. Wrt administrative bodies, the role of courts is understood in 2 conflicting ways
i. Courts provide an essential accountability function by making sure the delegated
discretionary powers conform to the authorizing statute
ii. Courts are conscious of the separation of powers and given their lack of
expertise are under rule of law constraints to respect the legislative and executive
branches
b. Relationship of courts to other branches now is one of “respectful deference”
i. Characterized by dialogue about appropriate use and control of discretion rather
than old command/control relationship
II.
An Example of Deference as Respect: National Corn Growers
III.
a. Facts: Canadian Import Tribunal conducted an inquiry into the importation of corn grain
from the US to Canada (authorized inquiry by statute – Special Import Measures Act
(SIMA)). Determined that importation was causing or would cause harm to Canadian
corn growers Deputy minister put duty on American corn.
b. The Federal Court Act allowed for JR if the tribunal’s decision was based on an
erroneous finding of fact made in a perverse or capricious manner or w/o regard to
material before it
c. (1) Tribunal’s decision based on factual finding AND (2) the SIMA contained a
privative clause stating that ever finding of the Tribunal is final conclusive
i. THEREFORE, the decision would be assessed on a standard of patent
unreasonableness so court could best respect legislative intent
d. Concurring judgment (Wilson) cautioned majority about the effects of engaging in a
probing examination of a decision - don’t look at decision at all!
i. Evoked CUPE case (beginning of end for Diceyan model of admin law)
1. In cases of statutory ambiguity, the court should defer to the
interpretation of the expert tribunal
2. SC held that deference was owed to tribunal based on expertise, privative
clause, and reasonableness of its determination
3. Courts should recognize that
a. Admin agencies, not courts bear primary statutory responsibility
for their legislative mandate in that area of regulation
b. Admin agencies possess expertise, experience and context
c. Stat provisions, like those in National Corn Growers, do not
admit to one uniquely correct interpretation, can have a variety of
reasonable interpretations
ii. Thought that patently unreasonableness test should not apply
iii. Admin tribunals should be subject to jurisdiction of the courts
iv. Admin tribunals should NOT be subject to same standard of review as lower
courts
v. In the face of privative clauses, courts must not engage in a wide-ranging review
concerning whether or not tribunal’s conclusions were reasonable
vi. The LEGISLATURE may provide correction for inconsistent interpretations of
tribunal’s constitutive legislation
e. Majority decision (Gonthier) – Tribunal not acting unreasonably
i. To get to decision, delved deeply into how the tribunal made its decision
1. This probing inquiry looks more like correctness than PU
Two Problems for Deference as respect
a. Privative Clauses
i. General form, stat provision protecting the decisions made by public officials in
boards, tribunals and ministries either from further dispute internally (a finality
clause), or from JR (ouster clause)
ii. Conundrum – statute prescribed limits on delegated power, but also authorized
officials to act with unfettered discretion w/in these broad confines
iii. Risk to accountability function of rule of law – officials could behave as a law
unto themselves, the sole judges of the substantive validity of their own acts
iv. Courts developed means around privative clauses by using the c/l presumption
that Parliament always intends to respect procedural fairness, even wrt statutorily
delegated powers w/ broad scope
v. This approach formed basis of deference as respect, found in CUPE decision
IV.
1. Privative clause = communication from legislature that courts should
recognize interpretive authority of the tribunals in its area of expertise
BUT judges could exercise their rule of law powers on constitutional and
jurisdictional matters
b. The Choice of the Standard of Review
i. Pre-Charter, admin law limited to the review of q’s of law, jurisdiction and
procedural fairness
ii. Reviewing court were not to examine the merits of the decision in order to avoid
their decision being substituted for the tribunal’s
iii. Deference was demonstrated by the choice of standard of review – correctness or
PU, (reasonableness post charter)
iv. Standard of review functioned as a prime rule of law constraint on judges
v. Ideally, S o R choice indicates a court’s understanding of independence within
admin bodies, regulated the contours of the admin state and its exercises of
power, and controls discretionary features within exercise of JR
vi. To choose a S o R, need to consider the nature of the tribunal as well as the
nature of the issue subject to appeal
vii. Deference shown when a match exists between tribunal expertise and the
issue
viii. Review on the correctness standard allows courts to show little to no deference
1. Decision either right or wrong
2. Applied when agency has very little expertise or when issue involves the
interpretation of general law or constitutional matters
ix. Review on patent unreasonableness id most deferential/respectful
1. Used when review involves a polycentric, complex question concerning
the regulation of activities w/in mandate of highly specialized agency
2. Court will only intervene when blatantly evident agency made error
3. Eliminated by Dunsmiur v. NB
x. Review on reasonableness reflects a justified degree of judicial derence
xi. Baker – review on reasonableness – for reasons see page 106 (note – this
decision expanded the duty of fairness, which is normally reviewed on a
correctness standard)
1. Tensions b/w rule of law, deference, S o R and admin state were big
2. Represents judicial creativity – court imposed duty to give reasons on
statutory and perogative decision-makers in certain admin contexts where
important individual interests at stake
3. Courts normally show high degree of deference in this policy area b/c
decision maker in area of immigration has high expertise
4. The admin decision was arbitrary – didn’t exhibit a mind attuned to
humanitarian and compassionate requirements stipulated in its OWN
guidelines, showed lack of regard for person affected
5. Did not meet threshold of reasonableness that could command respect
from the reviewers
Constraining the Charter
a. Charter gives many express grounds on which courts can review exercise of statutory or
discretionary powers
b. An administrative tribunal MAY have the jurisdiction to consider Charter challenges to
its enabling legislation
V.
i. Grounded in recognition of competence and capacity of tribunals as legal bodies
to review legislation
ii. Jurisdiction to apply Charter is given by the legislature in the enabling statute
c. This ability is an economic and efficient resolution to a rights dispute, and conforms to
the deference as respect institutional model
d. Scope of remedies tribunal can grant will be limited
e. Cooper v. Human Rights – confirmed that human rights tribunals have authority to
determine constitutionality of provisions in their enabling statutes
Other Routes to Accountability in the Administrative State
a. JR is not the sole route to securing administrative accountability
b. Many means by which we hold government to account – public inquiries, task forces,
department investigations, ombudsmen
Chapter 5
The Duty of Fairness: From Nicholson to Baker and Beyond
Introduction
 Until 20th century, admin law dominated by formalism
 Judicial decisions had to be made w/ rules of natural justice, like having to hear the other side of
disputes, and not allowing a person to judge his own cause
 But these were limited to judicial sphere, admin decisions could be made w/o regard to any
such rules
 Led to preoccupation w/ categorization – lots of JR about the nature of the power being
exercised – judicial or not?
 Growth of regulatory state  change
o Stupid to allow decisions to be made w/o procedural restraints just b/c not judicial
 Abandoned all or nothing in Nicholson v. Haldimand-Norfolk Police Commissioners (1979)
o Facts: Summary dismissal of a probationary police constable 15 months into term of
service. No reason given for his dismissal, not given notice or allowed to make
representations before dismissed. Regulations under provincial legislation provided that
PO’s could not be penalized w/o hearing and appeal, but also stated the Police Board
had authority to dispense of any constable within 18 months of becoming constable
o Old rules  nothing he could have done
o SCC  a general duty of “procedural fairness” applies to admin decisions
o He couldn’t have the full protection afforded to those w/ 18 months of service, but the
court said he shouldn’t be denied protection entirely
 Entitled to be treated fairly, not arbitrarily
 Entitled to opportunity to make submissions
 Now, have the “duty of fairness”, which is concerned with ensuring public authorities use fair
procedures in making decisions
 It promotes sound public administration by ensuring that decisions are made w/ input from
those affected by them
o Well informed decisions  better decisions
 It protects dignitary interest by ensuring people are allowed to participated in meaningful
decision making processed that affect them, requires that people are treated w/ respect
 Remedy – decision is quashed, agency starts all over again following what the court dictates
o Problem? Same decision often reached






The duty requires two things – the right to be hears, and the right to an independent and
impartial hearing
But, this is c/l concept so these requirements may be limited or overridden by legislation
Duty of fairness codified at federal level by Canadian Bill of Rights
BC Administrative Tribunals Act sets out procedural entitlements that apply to 24 of 26
tribunals
o Has been applied outside of tribunals – for example, to BC college of teachers
Protection afforded by duty is flexible to meet wide range of decisions of admin bodies
o Will vary in accordance with number of factors, everything depends on what the duty is
understood as requiring in the circumstances, on the procedural protection the court
thinks ought to be required
Standard of review for duty of fairness = correctness
The Threshold Test: When is Fairness Required?
I.
Rights, Interests and Privileges – the duty of fairness applies to any decision that affects an
individual’s rights, interests, or privileges
II.
Legitimate Expectations
a. Doctrine of LE expands application of duty of fairness based on conduct of public
officials in particular circumstances
b. Court will step in where based on the conduct of a public official, a party has been led to
believe that his or her rights would not be affected w/o consultation
c. Person may be led to believe will be afforded certain procedures or even led to expect a
particular outcome
d. Fundamentally, public authorities must be able to change their minds, and therefore the
doctrine doesn’t mean that expectations will be protected
e. THEREFORE, The doctrine doesn’t require a particular outcome, but requires that
procedural protection be provided before an expectation can be dashed
i. This has been reiterated in several cases – Reference Re Canada Assistance Plan
ii. Baker v. Canada – unfair to backtrack on promises without according procedural
rights, but CAN’T allow substantive expectations to be protected
III.
Common-Law Presumption
a. Duty of fairness is c/l therefore yields to contrary legislative instructions, but courts
require CLEAR stat direction in order to limit or oust procedural protection
i. Kane v. Board of Governors – express language must be in statute
b. Courts presume legislature intended procedural protections to apply
IV.
Constitutional Protection
a. P of FJ’s subsume procedural fairness protection (SCC in Re BC Motor Vehicle Act)
b. But, s. 7 only applies in context of deprivation of LLS of the person
c. Threshold for activating Charter protection much higher than the threshold for
procedural protection at common law
d. When s. 7 found to be infringed, very unlikely that the provision will be saved by s. 1
Limitations of the Scope of the Duty of Fairness
I.
The Duty applies to decisions
a. Applies to decisions = final dispositions of a matter
b. Wont apply to investigations, advisory processes
II.
The duty does not apply to legislative decisions
III.
a. Reference Re Canada Assistance Plan – the rules governing procedural fairness do not
apply to a body exercising purely legislative functions
b. So, primary legislation passed by Parliament or provincial legislature not subject to duty
c. WHY? Because any meaningful conception of the separation of powers between the
legislature and the courts demands it
d. Are cabinet and ministerial decisions covered by legislative exemption?
i. Not per se, but these sorts of decisions can be characterized as legislative and be
exempted from the duty
e. Is subordinate legislation covered by the legislative exemption?
i. Usually consultation occurs even where no formal requirement for it b/c of
political self interest
ii. However, there will be time where political interest will want to act before
consulting, and the argument for fairness protection in these contexts is strong
f. Are policy decisions covered by legislative exemption?
i. Yes – Martineau – purely ministerial decisions on broad grounds of public
policy will typically afford the individual no procedural protection
ii. Rationale similar to formal legislative decisions – both are inherently political in
nature and are subject to political accountability
iii. Governments are elected to make policy decisions and must be allowed to do so,
provided they comply with relevant constitutional requirements
The duty may be suspended or abridged in the event of emergency
a. May be circs in which procedural requirements can’t be followed without causing some
kind of harm
b. Public safety concerns demand immediate action regardless of duty
c. Courts may defer compliance with duty until after relevant decision made
i. Cardinal v. Director of Kent Institution
1. Although duty of fairness applied to the imposition of
isolation/segregation in prison context, in “apparently” urgent or
emergency circumstances there could be no requirement of prior notice
and an opportunity to be heard before the decision
2. Process of prison admin could not be obstructed by unreasonable or
inappropriate procedure
3. Once recommendation to end segregation made by review body, duty of
fairness required the prison director to tell the inmates of his decision to
reject the recommendation, give reasons and opportunity to contest
d. Uncertain if court will defer to tribunal on state of emergency
The Content of the Duty of Fairness
 No clear answer fits all cases
 Content of fairness – involves compliance with some but not all requirements of natural justice
 May include any of the following components
o Right to notice of potential decisions
o Right to disclosure of particulars
o Right to make written submissions
o Right to a hearing w/I a reasonable time
o Right to an oral hearing
o Right to counsel


Limited to circumstances of arrest or detention, though in limited circumstances
s. 7 may require state provided counsel (Christie, New Brunswick v. GJ)
o Right to call and cross-ex witnesses
o Right to written reasons for a decision
JR is concerned with deciding what the duty of fairness requires in the circumstances of a
particular decision, and the court’s decision is made AFTER the admin decision maker acted
I.
Baker v. Canada (Minister of Citizenship and Immigration)
Facts: Baker was illegal immigrant from Jamaica. Worked in Canada for 11 years, had 4 children of
Canadian citizenship by birth. In 1992, she was ordered to be deported. Immigrant legislation required
applicants to apply for permanent residency from outside of Canada, so she would have to apply from
Jamaica. She applied for an exemption based on a provision that gives the Minister discretion for
humanitarian purposes. She wanted to be with her children that needed her care, and she claimed her
psychiatric health would worsen if she left.
 The discretionary power was exercised by an immigration officer
 Declined her request, set out in notes
 Baker sough JR, arguing several things including that the Minister didn’t give her procedural
fairness
 Argued she was entitled to oral interview before decision maker, that her children and their
fathers should have had notice, that they should have been allowed to make submissions, and
that the fathers should have attended with counsel
o Argued she was entitled to reasons, and that the officer’s notes gave rise to reasonable
apprehension of bias
SCC decision: Decision quashed b/c of reasonable apprehension of bias
 She was entitled to minimum procedural fairness, but not an oral hearing
 She was entitled to reasons, but the officer’s notes met the requirement
 Found that there was a reasonable apprehension of bias
 IMPORTANT – used the case to reiterate purpose of duty of fairness and gave criteria for
determining its content
o “The purpose of the participatory rights contained within the duty of fairness is to ensure
that admin decisions are made using a fair and open procedure, appropriate to the
decision being made and its statutory, institutional, and social context, with an
opportunity for those affected by the decision to put forward their views and evidence
fully and have them considered by the decision maker”
o But, the object is not to import into admin proceedings the rigidity of all the
requirements that must be observed by a court
o Admin bodies must work in flexible system – want to achieve a certain balance between
the needs for fairness, efficiency, and predictability of outcome
II.
The Baker Synthesis
a. Five Criteria
i. Nature of the decision being made and the process followed in making it
1. Decisions that are seen as judicial/quasi-judicial are likely to demand
more extensive procedural protections than admin decisions that have
more in common w/ regulation than adjudication
ii. Nature of the statutory scheme and the terms of the statute pursuant to which the
body operates
1. PAY CLOSE ATTENTION TO STATUTE THAT ALLOWS THE
DECISION to be made
2. Where decision making process includes prelim steps, requirements of
fairness may be minimal
3. Where there is just one final decision, greater fairness protection usually
required
iii. Importance of the decision to the individual
1. More important, greater level of fairness protection required
2. But, must be balanced with needs of admin body
iv. Legitimate expectations of the person challenging the relevant decision
1. Where a LE of a particular procedure exists, may expand content of duty
v. Deference to the procedural choices made by the decision maker
1. Content of the duty affects more than just the individual at stake
2. Affects decision maker who may have to make thousands of future
decisions – so should respect the choice of procedure by the agency,
especially when the statute leaves to the decision maker the ability to
choose its own procedures, or where the agency has expertise in
determining appropriate procedures in the circumstances
Judicial Review of the duty of fairness
 Historically, been regarded as jurisdictional question, and so must be answered correctly
 So, decision makers don’t have “right to be wrong” where there are procedural questions
 Jurisdiction lost if duty of fairness breached, and the decision is quashed
 Note – application of correctness standard does not mean there’s no room for derence
 VIOLATION of duty of fairness will not result in a substantive outcome
 The role of the court is to supervise the decision making process – once it goes back to tribunal
for re-hearing, nothing stopping them from reaching the same decision again
 Baker – subsequently granted the humanitarian exception and allowed to stay in Canada
Dunsmuir v. New Brunswick
 SCC has created an exception to general principles of duty of fairness
 After this case, law no longer makes distinction b/w public office holders and other EE’s in
dismissal cases
 Ie. duty of fairness will in general have no application to the dismissal of employees
 In private law, there is no fair procedure – you would just bring an action for wrongful
dismissal/breach of K
o Can never argue for remedy of restoration – that remedy not available for breach of K
 While in public law, common for an argument to be made that dismissal without fair procedure
should lead to the remedy of restoration
 This case says that public EE’s must look to their employment K’s with the government
o They will incorporate procedural protections wrt dismissal
o If not, they must just rely on private law
 For our purposes, important to see procedural entitlements in the case law are disappearing
Chapter 6
Independence, Impartiality, and Bias
Introduction
 I, I and B all centre on the notion of fairness in admin decision making
 Bias = reasonable perception of partiality toward a particular outcome
o Decisional


o Enough to have a decision overturned
Impartiality = ideal state of the decision maker
o Judgemnets made with open mind, no connections that would improperly influence the
decision
o Objective – state of grace
Independence = means of achieving impartiality
o Structural
Sources of the Guarantee of an independent and impartial tribunal
 Common law principles of natural justice
o Decision maker should neither judge her own cause nor have any interest in the
outcomes of a case before her
o Requires the decision maker to hear and listen to both sides of the case before decision
 Constitution
o Unwritten constitutional principles and the rule of law
o Charter s. 7 and s. 11(d)
 Bill of Rights
 Quebec’s own Charter
 Alberta’s own Bill of Rights
 Problem – there is a huge range of admin agencies, trying to impose a single requirement for
achieving an independent and impartial body across the board is untenable
o Can’t judicialize the admin process
o Not always appropriate to analogize tribunal independence to judicial independence
o Independence and impartiality are context-driven
What is “Tribunal Independence and why is it important”?
 To what extent should tribunals be independent of the branches of government that created
them?
 Tensions – appointment process, removal of members, tribunals as a function of policy making,
internal interactions, and do constitutional guarantees apply to tribunals
 By design, are suspicious – linked to executive branch, and their enabling statute usually
requires them to have contact w/ minister
o The minister is usually involved in appointing and removing members of tribunals
 Concern is particularly acute b/c the government is frequently an opposing party before a
tribunal
 Independence = tribunal’s ability to decide matters free of inappropriate interference/influence
I.
The Development of the law of tribunal independence of Canada
a. Developed in 3 waves – (1) used independence of judiciary as a foundation on which to
mould concept of admin independence, (2) marked by Ocean Port Hotel, affirmed
hybrid nature of tribunals, no general constitutional guarantee of independence, (3)
retrenchment – litigants once again pushed to have judicial declarations that admin
tribunal independence is guaranteed by the Charter
b. Theory of Judicial Independence
i. Means of ensuring judges act w/o interference or influence
ii. The capacity of the courts to perform their constitutional function free from
actual or apparent dependence upon any persons or institutions
iii. Used to ensure public confidence in judicial system
iv. 3 objective conditions necessary to guarantee: security of tenure, financial
security, and administrative control
v. Security of tenure
1. Type of interference targeted is the ability of the government to remove a
judge for such things as rendering decisions that do not meet
governmental approval
2. S of T guaranteed by constitution s. 75
3. Can only be removed for cause
vi. Financial security
1. Aims to satisfy two goals: (1) guarantee that although the gov responsible
for remuneration, it will not alter their pay for arbitrary reasons, (2) a
promise that the mount that judges are paid is sufficient to keep them
from seeking alternative means of supplementing their income
vii. Administrative Control
1. Deals with manner in which affairs of court are administered, like
budgetary allocations, allocation of cases
2. Don’t want judges to petition government for funds – wouldn’t look right
3. So we have Federal Commissioner of Judicial Affairs who negotiates
c. From Judicial Independence to Tribunal Independence
i. Criteria for judicial has served as foundation for admin
ii. R v. Valente, first time SCC suggested that guarantees for JI could be applied in
admin realm
iii. TEST FOR TRIBUNAL INDEPENDENCE: whether a reasonable, well
informed person having thought the matter through would conclude that an
administrative decision maker is sufficiently free of factors that could interfere
with his or her ability to make impartial judgments
iv. Lower standard than judiciary, and court applies it in a context specific way
1. Level of institutional independence will depend on nature of tribunal,
interests at stake, etc – Canadian Pacific v. Matsqui, SCC 1995
v. Quebec Inc v. Quebec (Regie des permis d’alcool) – SCC held that requirements
of tribunal independence do not necessitate admin actors hold offices for life
1. But held that need to avoid “at pleasure” appointments
2. Fixed-term appointments ok because provided that the directors could
only be dismissed for specific reasons
3. Also discussed contact between the ministry and tribunal
a. There can be contact, and it may be desirable
b. There would be a problem if the contact amounted to a substantial
influence on the individual cases decided by the Tribunal
4. Note: this case drew from the QB Charter, so lose constitutional basis
when try to apply in other jurisdictions
vi. Things differ from judiciary wrt financial security as well
1. Tribunal service thought of as being for public honor, not for riches – ie.
pay is not high
vii. Wrt security of tenure, every body different – may have fixed term
appointments, they may be renewable, may be “at pleasure” (although very
controversial b/c allow government to fire a decision maker whose decisions
they don’t like – but this issue resolved in Ocean Port, which said can’t have)
d. Ocean Port Hotel and Parliamentary Supremacy
i. Facts: BC liquor appeal board was liquor-licensing boady that could impose
sanctions and remove licenses if the licensee contravened the Liquor control and
licensing Act. RCMP reported that Ocean Port had been responsible for 5
incidents that violated Act. Senior inspector with the Board held that the
allegations were substantiated, imposed 2 day suspension. Liquor Appeal Board
heard de novo and confirmed suspension
ii. Issue: On Appeal to BCCA, Ocean Port argued that the LAB had insufficient
independence to render fair hearing. Took issue with terms of appointment – Act
indicated that the chair and members of the board were to serve at pleasure of the
LG in Council.
iii. Decision of BCCA: Compared w/ the Quebec Appeal Board (easy b/c of Regie
decision)
1. Court noted that in that decision, Gonthier stated that fixed term
appointments wouldn’t be valid if they allowed directors to be removed
w/o cause
2. In Regis, court said no at pleasure appointments around liquor control
boards, so cant have them here either
3. Basically just imported principles of Regie
iv. PROBLEM – the statute explicitly said appointment was to be at pleasure, and
the only valid way to negate that is using constitutional basis
1. Common law can’t override statute, it can only fill it in
v. Decision of SCC – rejects analogy made by BCCA, affirms no constitutional
guarantee of independence for admin tribunals
1. Ocean Port added argument – that unwritten constitutional principle of
judicial independence extends to admin tribunals
a. NO - Admin boards are NOT courts, they are there b/c legislature
didn’t want courts making those decisions
b. Admin tribunals straddle the divide between courts and exec
branch
c. Kind of asserted that the will of the legislature should prevail in
determining how much independence a tribunal should have
2. Decision reminds us that tribunal independence is a common law
principle
a. So can be ousted with statutory language
b. Admin tribunals don’t attract Charter or quasi-constitutional
requirements of independence, although some may be subject to
these protections
3. A variety of tribunal appointments can satisfy requirement of security of
tenure, so long as terms of appointment derive from constitutionally valid
legislation, has inspired legislation from provinces
vi. BC Admin Tribunals Act – gives guiding principles and uniformity
1. Section 2 – the chair of a tribunal may be appointed by the minister after
a merit-based process
2. Section 3 – tribunal members be appointed for an initial term of 2 to 4
years with reappointment available
3. Termination for cause provision
e. Reasserting the push for independence: Unwritten Constitutional principles, Tribunal
Independence, and the Rule of law
i. SCC in Ocean Port – no constitutional guarantee of independence for admin
1. b/c admin tribunals are part of exec branch
ii. Currently, litigants are pushing again for tribunals to have same independence as
courts, wants it to be guaranteed by unwritten principles
iii. McKenzie v. Minister of Public Safter, 2006 BCSC
1. Three main issues:
2. (1)Petitioner argued the unwritten constitutional guarantees should be
expanded to apply to residential tenancy arbitrators b/c they were at high
end of adjudicative spectrum (ie, closely mirrored courts). Petitioner was
residential tenancy arbitrator who had appointment rescinded mid term.
3. (2) Argued for fairness, that they didn’t follow proper procedure
4. (3) The BC public sector Employee Act protected her, could not dismiss
without cause
5. Argued Bell Canada v. Canadian Telephone Employees Association
a. Suggested a spectrum of decision making types in which highly
adjudicative tribunals with court like powers could have more
stringent requirements of procedural fairness, like a higher degree
of independence
b. Decided shortly after Ocean Port
6. Issue: whether the position of residential tenancy arbitrator was protected
from interference by constitutional guarantees of independence, like
security of tenure
7. Decision: She won her arguments
a. Government appealed the constitutional argument for “mootness”
saying BCCA had no reason to make decision on it
b. Appeal denied by SCC, who didn’t want to touch issue of
mootness
Discussion
 Central concern is impartiality
o 2 approaches:
 Structural – emphasis on judicial independence
 Operational – looking at actual decisions, applying common law of bias
 Focus is on adjudicative independence
 Adjudicative: impartiality is a concern
 Policy creating/implementing: less concern about impartiality
I.
Competing Images: Views of Independence and Impartiality from the Inside and the
Outside
a. The Appointment and Removal Process
i. Tribunals diff from courts b/c members and staff work together in framework of
regulatory governance aimed at managing particular industry/sector
ii. Want to promote a workplace where members are comfortable to express their
opinions – so, is it legit to remove members who are disruptive to workplace
culture?
II.
Bias, adjudicative independence, and policy making
a. Policy making is central to tribunal existence
b. 3 modes of policy making – (1) decision making, (2) informal rule making through the
use of soft law such as guidelines, bulletins, manuals, (3) formal rule making through
delegated legislation
c. Tensions – when methods of tribunals infringe on adjudicative independence of any
individual decision maker
d. Adjudicative independence is two pronged
i. Ability of decision maker to decide free of interference of other decision makers
1. Problem in admin b/c tribunal members often need to collaborate to
further law and policy
ii. Also means of ensuring decision maker not biased
1. If decides for improper purpose = raises reasonable apprehension of bias
e. Reasonable Apprehension of Bias
i. Impartiality = free from bias, actual or perceived
1. Avoiding preferential treatment and having open mind to issue
2. One may have a closed mind due to prejudgment of issues or having
fixed views on a particular question
3. These may raise questions about whether a reasonable apprehension of
bias exists in the decision making process
ii. Test for bias relies on perception – if a reasonable person with an informed
understanding of how the tribunal functions perceives that the decision
making is biased, this is enough for the decision to be quashed
1. From Committee for Justice and Liberty v. National Energy Board
iii. Grounds for apprehension must be substantial – cant just be suspicion
iv. Standard for bias varies, depending on context – what will give rise in one admin
decision making context may not give perception of bias in another
v. Why? Nature and context of decision making process drives the context of
procedural fairness, including impartiality
f. Consistency and Decision-Making
i. Problem is that consistency in decision making institution requires input of
tribunal makers other than the person that has been given the decision to make
ii. So may factor in information they would not otherwise have come across in their
adjudication
iii. Similar decisions in similar cases is needed though – helps general public see
how a tribunal applies its statutes, aids in determinations of whether its worth it
to challenge a tribunal or just settle
iv. Trilogy of cases from SCC sets out guidelines that tribunals should follow so
that members can collaborate within their institution to promote consistency of
outcome w/o compromising adjudicative independence of any one decision
maker
1. Consolidated Bathurst, Tremblay v. Quebec, Ellis-Don Ltd v. Ontario
(Labour Relations Board)
2. Consolidated Bathurst - Full board meetings – allow members of a large
board with a heave case load to benefit from acquired expertise of the
collective
a. Coherence is a goal to be fostered so the outcome of disputes
doesn’t depend on identity of decision maker
b. BUT fostering coherence should not compromise any panel
member’s capacity to decide – formalized consultation processes
cant be used to induce decision makers to adopt positions with
which they don’t agree
3. Relevant issue – whether there is pressure on the decision maker to
decide against his own conscience
III.
4. Discussions must be limited to law or policy and no discuss factual
issues, and parties must be given a reasonable opportunity to respond to
any new ground arising from the meeting
5. The board in this case took precautions
a. The full board meeting didn’t displace the responsibility for the
final decision being made by the panel in charge of it
b. Panel members had to volunteer to bring the matter to the board
c. No required attendance at full board meeting, no vote
6. Tremblay – imposition of consultation meetings by a member of the
board who was not on the panel could amount to inappropriate constraint
a. In the case, consultation was compulsory when a proposed
decision was contrary to previous decisions
b. The statute expressly indicated that individual decision makers
must decide matters, so mandatory consultation = act of
compulsion and goes against legislative intent
7. Ellis-Don – new evidence?
a. SCC would not approve full board approach if they were not
assured that no new evidence would be introduced
v. “Lead Cases”
1. Where many cases that are similar need to be decided, a tribunal will
ensure that an early case will be decided and fully articulated to act as
precedent for later cases
2. In Geza v. Canada (Minister of Citizenship and Immigration), the board
instituted a procedure through which is tried to select one of several
similar refugee claims and create a full evidential record for all that had
informed findings of fact and a thorough analysis of the relevant legal
issues
3. Trying to deal with large influx of roman people
4. They chose an application before even hearing lots of their applications,
but it was still supposed to be representative of all
5. This has been successful – the cases are GUIDING, not BINDING
6. Efficient use of limited resources, greater consistency, doesn’t
compromise subsequent panels
Multifunctionality
a. Tribunals often manage and oversee areas that are polycentric
b. Reflected in expertise of members, plurality of functions asked to perform
c. Some tribunals try to maintain a de facto separation of power in their work to avoid
allegations that one aspect of the tribunals work has had an inappropriate interference
with another aspect of work
d. Most common complaint in this area – a tribunal has the potential to act as both
prosecutor and judge in the same matter
Chapter 7
The Charter and Administrative Law: Cross-Fertilization in Public Law


Charter has implications for JR of both procedure and substance
In realm of procedure, the courts rely on c/l doctrine of procedural fairness to interpret the
principles of fundamental justice set out in s. 7 of the Charter


When it comes to substance, review the decision using the framework from R v. Oakes to test
validity of the legislation
Further and separate issue – do admin bodies have jurisdiction to apply the Charter?
o Agencies may have jurisdiction if they have authority to decide questions of law
Procedural Fairness and the P of FJ’s
 At a minimum, PF requires decision makers to hear the other side and decide the matter
impartially, independently, and without undue delay
 Must receive notice of proceedings and have a full and fair opportunity to respond to the facts
on which the decision maker may rely
 If the decision affects an important interest  owed reasons
 What does the Charter require in terms of PF? Section 7 is the only rights-conferring provision,
only the P of FJ’s include procedural fairness
 S. 7 is the primary source of procedural safeguards within the Charter
 In order to get the procedural safeguards of s. 7, complainants have to cross a threshold
o Must establish that LLS interests impaired by decision
o If doesn’t touch s. 7 interest, may still get PF but as a matter of common law, not s. 7
 Threshold to claim a common law procedural right is very low – just have to show the decision
affects rights, interests or privileges
o And at c/l judges are reluctant to impose onerous PF in the face of clear statutory
language dictating less stringent procedural safeguards
 Further important threshold is legislation – can determine the content of available procedures
o Note that statute always trumps common law
o But, Charter trumps statute – if s. 7 right engaged, legislation must conform to
procedural fairness
 Once the threshold to the Charter has been crossed, the court goes back to the Baker factors to
determine the content of procedural fairness
o The cases are usually bad facts – deprivation of LLS – so get high procedural rights
o Suggestion – maybe the common law would have reached the same decision?
I.
Oral Hearings and the Scope of Section 7 – Singh v. Canada
Established that the P of FJ’s include PF
Facts: Seven refugee claimants had no opportunity to present their cases in oral hearings before
decision maker neither at first instance nor to the Immigration Appeal Board (IAB). The group of
refugees was internationally recognized as having certain rights – refugees arriving at this time came in
under a Convention on Refugee Rights. As convention refugees, strong claim to legal interest or right.
The legislation recognized that there was a limited situation where an oral hearing might be recognized
– where the IAB recognized that there were reasonable grounds for the application by the refugee to
succeed. The IAB didn’t think they had reasonable grounds, denied a hearing.
 If there had been no Charter, they would have had no argument
Decision: Wilson used the Charter, accepted the threshold reached and so the statute could be
challenged
o Wanted to knock out the limit on entitlement to oral hearing
 “everyone” is s. 7 = everyone physically present in Canada
 Court found the refugees had a constitutionally protected right to have claim made in
accordance with the P of FJ’s
o NOT a constitutional right to stay in Canada
 Wilson stated that once the threshold is crossed, they were entitled to common law rights
o At common law, where issues of credibility are involved, person must be given an oral
hearing
Comments:
 After this case, government overhauled the statutory scheme
 Established a Board to ensure all refugee claimants a fair hearing in accordance with P of FJ’s
Summary: The Charter can take a complainant across the normally insurmountable threshold of a clear
statutory bar to certain procedures. But once across, it is still the c/l that determines the content.
II.
Incorporation of the common law framework under section 7
Suresh v. Canada (Minister of Citizenship and Immigration)
The Baker framework has been extended under s. 7 to establish the specific requirements of the duty to
give reasons
Facts: Suresh was a Convention Refugee detained on a security certificate. Adjudicator found Suresh
to be inadmissible as a refugee on grounds of membership in terrorist organization. Minister issued an
opinion that Suresh was danger to security of Canada, should be deported notwithstanding an
acknowledgement that he would face risk of torture upon return to Sri Lanka.
Decision:
 Barring extraordinary circumstances, deportation to torture will violate P of FJ’s protected by s.
7 of Charter
 Case decided in his favor on basis that they didn’t provide Suresh with appropriate procedural
safeguards and reasons for decision
 S. 53(1)(b) of the Immigration Act didn’t require the minister to follow any particular procedure
 Without guidance of statute, Court turned to Baker framework, “Insofar as procedural rights are
concerned, the common law doctrine summarized in Baker properly recognizes the ingredients
of fundamental justice”
III.
The duty to disclose and the duty to reply
Suresh continued
 After considering 5 Baker factors, Court held that Suresh had right to disclosure of materials on
which Minister made her decision, and a right to reply, but no right to oral hearing
o Suresh wanted disclosure of an internal memorandum
o One might argue that even at c/l the document would have been ordered disclosed
because of the severity of the situation
IV.
The duty to give reasons
Suresh continued
 Baker said, duty when important interests at stake
o But in that case, notes of junior officer were enough to satisfy the requirement
 In Suresh, the Court held that the Minister herself had to provide “responsive” reasons that
demonstrated why he was a danger to Canada as well as that there were no substantial grounds
to believe he would be subject to torture
V.
The right to state funded legal counsel
a. Procedural fairness doesn’t necessarily entail right to legal counsel even at one’s own
expense in admin process – presence of lawyers can be hindrance
b. When s. 7 affects, in certain circumstances state must provide the individual with legal
counsel to satisfy requirements of P of FJ’s
c. New Brunswick v. G(J) – NB Minister of Health sought to extend for 6 months a
custody order over an indigent complainant’s 3 children.
i. Majority stated that forced separation would have a serious and profound effect
on the parent’s psychological integrity, engaged her right to security of person
ii. Also provides insight on why infringements on s. 7 are never justified – s. 7
rights are very significant, and violation will almost never be upheld as a
reasonable limit demonstrably justified in free and democratic society
VI.
Undue delay
Blencoe v. British Columbia (Human Rights Commission)
Acknowledged possibility that undue delay in resolution of HR complaint could infringe the security
interest protected under s. 7
Facts: Blencoe accused of sexual harassment, lost his position as premier, hearings were scheduled but
didn’t take place until about 5 years after the initial complaint. His career as a politician was finished,
he suffered depression, his financial resources were depleted, and he and his family suffered severe
stigmatization.
Decision:
 Majority decided under the Charter, found his s. 7 right not violated
 What about abuse of process under the c/l?
o Didn’t think it met the requisite abuse of justice to make a case under the common law
o No prejudice to the hearing caused by the delay
 In the end, Majority was concerned with the commission’s lack of efficiency and assessed costs
against it – that is huge – never happens
VII. Ex parte, in camera hearings
Charkaoui v. Canada (Citizenship and Immigration)
Facts: Canada had legislation, Immigrant and Refugee Protection Act, which permitted detention of
foreign nationals and permanent residents suspected of terrorism or having ties with terrorist
organization. Part of the statute allows for JR of security certificates that authorize these detentions, but
part of the review can be conducted behind closed doors if evidence can’t be disclosed for reasons of
national security. C was arrested under certificate. During review process, ex parte hearings held at
request of Crown if judge believes disclosure could undermine national security. The judge then gives
the named person a summary of the evidence, but not sources. If the judge feels the certificate is
reasonable, no appeal or opportunity for further JR.
Decision:
 The proceedings double engage s. 7
 Liberty interest invoked with detention pending deportation, and removal may be to place
where person’s life or freedom would be threatened (security of the person)
 Review process violated P of FJ’s because denied fair hearing
 Government in response went to UK legislation and copied it
o Suggests these persons should get an amicus curae for in camera situations, and court
has suggested it will accept these changes
Review of Administrative Decisions Under the Charter
 Singh and Blencoe – resort to Charter is unwarranted when admin law can resolve procedural
issues
 When courts review decision that touches Charter right, can use both admin law principles and
the Charter – so have the following frameworks to review decisions
o 1. Orthodox approach – use two-step Charter framework (Oakes) to determine legality
of impugned decision
o 2. Mixed approach – first, judges review legality of decision using principles of admin
law, and if the decisions is lawful, then it is tested under Charter framework
o 3. Admin law approach – limits scrutiny to exclusively what is available under admin
I.
The Orthodox and Mixed Approaches
SCC first considered application of Charter to admin decision in:
Slaight Communications Inc v. Davidson (1989)
Facts: D worked for S for 4 yrs prior to termination. Labor adjudicator found he had been dismissed
unjustly. Adjudicator had broad discretion over remedies, ordered the ER to write a factual letter of
reference setting out D’s success in his position, as well as the fact that the adjudicator found D’s
dismissal to be unjust (positive orders). Also ordered that Slaight was allowed to give ONLY that letter
to any prospective EE’s (negative order)
Issue: Slaight argued that the orders violated freedom of expression s. 2(b)
Decision: Yes, it violates, but saved under s. 1
 Majority: Dickson uses orthodox 2-step approach
 Examine if admin decision infringes a Charter right
 If yes, turn to s. 1 review for justificatory analysis
o Charter infringement means admin tribunal has exceeded its jurisdiction
o If complainant does NOT extablish infringement, no s. 1 analysis occurs, and court can
review via admin law
 Decides there is infringement, but saved by s. 1
o The orders rationally connected to laudable purpose of enabling legislation as well as
proportionate to its ultimate end
o (Remedying inequality of bargaining power in EE/ER relationship)
 Stated that admin law review important, but for questions untouched by the Charter
o Both orders reasonable in the admin law sense, but didn’t give any analysis for this
claim other than that admin law unreasonableness, as a prelim standard of review,
should not impose more onerous standard on government than Charter review
Dissent (Lamer, using mixed approach – his framework now used for mixed approach)
 1. First use admin principles to review legality of decision
o Jurisdiction, fact, application, interpretation
o Ask if discretion exercised unreasonably
o If yes, set aside order
 2. If discretionary decision survives admin analysis, turn to Charter s. 1 analysis
o If infringes C, meands admin tribunal has exceeded its jurisdiction
o If complainant does establish infringement of Charter right, s. 1 analysis occurs
 Application to the facts:
o Finds the positive order not unreasonable
 So went to Charter analysis, because would have to be saved under s. 1
o Negative order is patently unreasonable
 Totalitarian, alien to tradition of free nations like Canada
o Court should interpret legislation to render it consistent with the Charter
 Adjudicator derives all power from statute
o Admin tribunal can’t exceed jurisdiction given
 No law/discretion can offend the constitution
 Legislatures can’t authorize actions that breach the Charter
Although Lamer’s mixed framework is accepted, courts generally reject the approach and follow
Dicksons lead regarding the relationship between the Charter and admin law, using s. 1 to the exclusion
of admin law to determine the legality of decisions that clearly infringe Charter rights
 In such cases, review on admin grounds usually reserved to review of factual determinations or
issues involving the application of law to facts and the agency’s jurisdiction to make such
determinations
 These issues are kept segmented from the actual inquiry into the Charter right and possible
grounds for justifying infringement under s. 1
 As a rule, seems like SCC will engage in substantive admin review only if complainant doesn’t
establish infringement of Charter right
Multani v. Commission Scolaire Marguerite-Bourgeoys (2006, SCC)
Facts: Sikh boy not allowed to wear religious dagger to school despite an agreement with school board
he could wear it sewn into his clothes.
Decision:
 The decision infringed freedom of religion, not saved by s. 1
 Review on admin grounds in the case inappropriate because a Charter right clearly at stake, and
therefore compliance with the Charter was the central issue
II.
III.
The Administrative Law and Mixed Approaches
a. Admin law approach – framework for review that refuses as a matter of principle to
review admin decisions under Charter
b. In several important cases, the SCC has declined to use Charter were it was possible to
do so
c. Consider conflicting reasons of Baker and G(J), both about mothers being separated
from their children, decided in the same year – in G(J) s. 7 security of person engaged,
but not in Baker
d. Although Baker doesn’t necessarily give support to admin approach, because LHD
merely said an application of the Charter was unnecessary b/c could be determined on
basis of admin law
e. Two cases, Trinity Western (TWU Community standards code said same sex relations a
sin, BC College of Teachers worried about it promoting culture of discrimination) and
Chamberlain (books depicting same sex parented families  allegation of
discrimination) clearly involved Charter values, but court decided both without using the
Charter framework
i. Possible that issues of standing led to review under admin law vs. Charter
ii. In Chamberlain, the court would have had to grant the appellants public interest
standing because the teachers appealing the decision were not same sex parents
or children of such parents
iii. In TW, the court would have had to find that a religious corporation can launch a
s. 2(a) claim, not just an individual
f. Further, these cases may support a mixed approach where the Charter framework would
be turned to if survived on admin grounds
i. Neither of them survived admin grounds, so no need for Charter
Reconciliation?
Agency Jurisdiction over the Charter

C/l principles that admin tribunals and courts should interpret legislation in light of the Charter
and the values enshrined
 Sometimes, unambiguous stat provisions may appear to infringe Charter rights under any
reasonable interpretation, and thus a tribunal’s application of the above interpretive principle
would be tantamount to a refusal to obey the law the legislature has entrusted it to implement
 So, do admin agencies have authority to interpret and apply the Charter to their enabling
legislation for the purpose of refusing to give effect to provisions found to violate the Charter?
I.
The Old Trilogy and “Jurisdiction over the whole matter”
a. This issue first discussed in trilogy – LaForest wrote all reasons, held that b/c s. 52(1) of
the Constitution declares the constitution to be supreme law of land and inconsistent law
has no force and effect, so admin decision makers with the power to interpret law must
also interpret and respect the supreme law
b. So, cant say legislation is invalid, but can refuse to give effect to it
c. SCC pointed out it retained authority to review agency determinations of Charter issues
on the standard of correctness
d. Also deployed restrictive understanding of what it would mean for an agency to have
authority to interpret law (and thus the Charter)
e. Cooper – court characterized the authority as one that must be evidence of a general
power to consider questions of law
i. Power has to be conferred by the enabling legislation b/c agencies have no
inherent right to decide questions of law
f. Cuddy Chicks – court described authority as “jurisdiction over the whole of the matter
before it, namely, the parties, subject matter and remedy sought”
g. Authority to interpret law has to be more than authority to implement the legislation’s
basic policies
Cooper v. Canada (HR Commission) (1996, SCC)
 Very controversial, much criticized decision
 Turned on whether the Canadian HR commission or tribunal struck under it had jurisdiction to
apply s. 15 of the Charter to s. 15(c) of the Canadian Human Rights Act.
o S. 15(c) stated that it was not discriminatory for an ER to terminate a EE if the EE
reached the normal age for retirement of EE’s occupying a similar position
 LaForest, for the majority, said that the legislation did not give the commission a power to
consider questions of law, and the commission’s role was to screen complaints, not adjudicate
them
 As a consequence, neither the Commission nor a tribunal could review the constitutional
validity of the impugned provision
II.
Vindication of the dissent in Cooper?
a. New series of decisions  go with the dissenters in Cooper about what it means for a
tribunal to have authority to consider q’s of law
i. “”all law and law-makers that touch the people must conform” to the Charter,
and the commission had the power to answer q’s of law
b. Leading case – Nova Scotia (Worker’s Compensation Board) v. Martin (2003, SCC)
i. Power to decide questions of law includes power to decide validity of laws under
the Charter
ii. Express terms not required to confer this power
iii. As long as tribunal within jurisdiction, may consider and decide Charter issues
as questions of law
iv. Facts – page 191, chronic pain sufferers and benefits, not given compensation,
say discrimination under s. 15(1) of Charter – board challenges Workers
Compensation Tribunal’s jurisdiction to hear Charter argument
v. Decision: rejected board’s challenge – “admin tribunals that have jurisdiction
(explicit or implied) to determine q’s of law arising under a legislative provision
are presumed to have concomitant jurisdiction to decide constitutional validity of
that provision”
1. Doesn’t matter if legislature intended tribunal to apply Charter
vi. If legislation doesn’t expressly grant jurisdiction to consider q’s of law, may still
be present implicitly – inferred from series of factors, page 192
1. Guiding principle that informs these factors – whether the legislature
intended the tribunal to have jurisdiction to decide q’s of law
2. Presence of intent not determinative – raises rebuttable presumption that
tribunal can apply Charter
a. Can be rebutted if there is explicit or implicit withdrawal of
authority to determine constitutional questions
c. In BC, the Administrative Tribunals Act expressly denies most provincial admin
tribunals jurisdiction over Charter issues
i. Claim is that courts are more expert, expressed concern over drain of resources
and time needed to adjudicate Charter challenges at admin level
ii. Non-binding nature of Charter decisions at admin level