1
Background and Theory ..............................................................................................3
1
2
Background .........................................................................................................................................................3
Theory, Themes, and Policy..........................................................................................................................4
2.1 Underlying Themes ......................................................................................................................................... 4
2.1.1
2.2
2.3
2.4
The Tension Between the Rule of Law and Functionalism ............................................................. 4
Rule of Law.......................................................................................................................................................... 4
Functionalism .................................................................................................................................................... 4
Participatory Rights and Procedural Fairness ................................................................................... 5
Procedural Review ......................................................................................................6
3
Background and Policy ...................................................................................................................................6
3.1 Sources of Procedural Entitlements ........................................................................................................ 6
4 The Rule against Bias ......................................................................................................................................6
4.1 The Basic Law and Test................................................................................................................................. 6
4.2 Bias Issues............................................................................................................................................................ 7
4.2.1
4.2.2
4.2.3
4.2.4
4.2.5
4.2.6
5
Pecuniary or Other Material Interests in the Outcome..................................................................... 7
Personal or Business Relationships with Those Involved in the Dispute ................................ 8
Prior Knowledge or Involvement of Decision Maker at Earlier Stages ..................................... 8
Attitudinal Predisposition and Pre-Judgment ...................................................................................... 9
Different Standards of Bias for Different Contexts ............................................................................. 9
Bias and Statutory Authorization ............................................................................................................. 10
Tribunal Independence ............................................................................................................................... 10
Determining Procedural Fairness: 5 Steps.................................................................. 13
6
7
Are You Over the Threshold? .................................................................................................................... 13
6.1 What Type of Decision Is It? ......................................................................................................................13
6.2 What’s the Relationship Between the Body and the Individual? .............................................14
6.3 What’s the Effect of that Decision on the Individual’s Rights, Privileges, or Interests? 14
6.4 Legitimate Expectations Doctrine..........................................................................................................15
6.4.1
LED Examples .................................................................................................................................................... 16
8.1.1
8.1.2
8.1.3
Notice .................................................................................................................................................................... 18
Disclosure and Discovery ............................................................................................................................. 20
Delay in Proceeding (Blencoe) ................................................................................................................... 20
What’s the Degree of PF Required? (The Baker Factors) .............................................................. 17
7.1 The Baker Factors and General Content Issues ...............................................................................17
8 Address the Specific Content Issues that Arise ................................................................................. 18
8.1 Specific Content Issues: Pre-Hearing ....................................................................................................18
9
8.2
Specific Content Issues: Hearing .............................................................................................................21
8.3
Specific Content Issues: Post-Hearing ..................................................................................................22
8.2.1
8.2.2
8.2.3
8.2.4
8.2.5
8.2.6
Oral vs. Written Hearings ............................................................................................................................. 21
Public Hearings ................................................................................................................................................. 21
Right to Counsel ............................................................................................................................................... 21
Disclosure of the Case Against ................................................................................................................... 21
Admissibility of Evidence ............................................................................................................................. 22
Cross-Examination .......................................................................................................................................... 22
8.3.1
Duty to Give Reasons ..................................................................................................................................... 22
Is There Statutory Authorization? Can a Rights Document Be Applied? ................................ 23
9.1 Canadian Bill of Rights ................................................................................................................................23
9.2 Charter of Rights and Freedoms .............................................................................................................24
2
10
9.2.1
9.2.2
s.7 Framework: Three-Step Analysis (Singh) ...................................................................................... 26
s.7 Examples....................................................................................................................................................... 26
Consider the Court’s Likely Remedy (If Any) .................................................................................. 26
Substantive Review................................................................................................... 29
11 The Law Now: The Dunsmuir Approach ............................................................................................ 29
11.1 The Dunsmuir Test for Determining the Standard of Review ................................................30
11.1.1
11.1.2
11.1.3
Statutory SOR.................................................................................................................................................. 30
Shortcut: Category Already Determined ............................................................................................ 30
Full Analysis (Shortcut Not Applicable).............................................................................................. 32
14.2.1
The Lake Approach to Relevant Factors ............................................................................................. 42
11.2 Post-Dunsmuir Case Law .........................................................................................................................33
12 Pre-Dunsmuir Precedents and Development.................................................................................. 34
12.1 Tracing the Case Law ................................................................................................................................34
12.2 Privative Clauses..........................................................................................................................................35
12.3 Statutory Appeals ........................................................................................................................................36
12.4 The Pragmatic and Functional Approach .......................................................................................36
12.5 Critiques...........................................................................................................................................................37
13 Legislated Standard of Review (The ATA) ........................................................................................ 37
13.1 Framework for Analysis ...........................................................................................................................38
14 Discretionary Decision Making and Judicial Review .................................................................... 39
14.1 Development ..................................................................................................................................................39
14.2 Reviewable Discretionary Decisions (Suresh)................................................................................40
14.3
Unreviewable Discretionary Decisions ..............................................................................................42
3
Background and Theory
1 Background



Mechanisms for controlling administrative actions by tribunals:
o Appeals: ordinary not available with tribunals; only possible if
provided for by the enabling statute.
o Judicial Review: provincial superior courts have inherent
supervisory jurisdiction over inferior tribunals.
 It’s unconstitutional for provinces to remove courts’ power to
review on “questions of jurisdiction”, under s.96 of the
Constitution Act. (Crevier)
 NB this also applies federally. (MacMillan Bloedel,
Crevier)
o “Original Jurisdiction”: ordinary court actions (e.g. torts, Charter
breaches) are also available.
Primary grounds for judicial review:
o Procedural impropriety: statutory powers exercised in an improper
manner:
 Breach of procedural fairness obligations
 Improperly constituted or authorized decision-maker
 Breach of the rule against bias
 Lack of the requisite degree of independence
o Substantive illegality and irrationality: review of the “merits” of the
decision:
 Errors of law: errors in interpreting the scope or meaning of
statutory powers
 Reviewable errors of fact: deciding without a sufficient
evidentiary basis
 Abuse of discretionary powers
o Unconstitutional exercises of power: breaches the division of powers
of Charter rights.
Remedies:
o [HISTORICAL] Common law remedies: discretionary writs, granted
by superior courts:
 Certiorari: an order that quashes or sets aside a decision
 Prohibition: an order that prohibits a tribunal from
proceeding
 Mandamus: an order that requires the performance of a
mandatory public duty
o [MODERN] Statutory remedies: no more writs; we now use
“applications for judicial review” which request “relief the nature of”
or one or more of the above.
4


BC: the Judicial Review Procedure Act (JRPA) imposes the new
“application” system.
Federally: Federal Courts Act (FCA) grants limited jurisdiction;
only applies to federal tribunals.
2 Theory, Themes, and Policy
2.1 Underlying Themes
2.1.1 The Tension Between the Rule of Law and Functionalism

On substantive review: “Judicial review seeks to address an underlying
tension between the rule of law and the foundational democratic principle,
which finds an expression in the initiatives of Parliament and legislatures to
create various administrative bodies and endow them with broad powers.
(Dunsmuir)
2.2 Rule of Law






i.e. the Dicyean approach: distrustful of government, aims at limiting
government power.
One of the four underlying principles of the Constitution. (Seccession Ref)
o It’s inherited from the British constitution; stated explicitly in the
Charter’s preamble
A.V. Dicey (1885) laid out the three traditional principles of the Rule of
Law:
o Government must act only with [limited, clearly defined] lawful
authority
o Government and citizens alike are subject to the general law of the
land
o Government, including administrative tribunals, is subject to the
ordinary law administered by the ordinary courts
Courts are the best institutions to decide the “correct” meaning of statutory
grants of power to administrative agencies.
The ROL embraces 3 modern principles: (Imperial Tobacco)
o Law is supreme over gov’t and individuals – no arbitrary power.
(Manitoba Ref.)
o There must be an actual order of positive laws (Manitoba Ref.)
o The relationship between individual and state must be regulated by
law (Seccession Ref.)
ROL can only overrule the executive/judicial, not legislative branch.
(Imperial Tobacco)
2.3 Functionalism

Courts should not oppose the effective functioning of modern regulatory
states.
5





The Legislature deliberately chose the administrative decision-making
process, rather than courts, because it’s: (Crane)
o Quicker than the courts
o Cheaper than the courts
o Uses a different methodology and process
o Brings specialized expertise
o Uses a different ideology
Purpose of such a state includes regulating private power and redistributing
wealth.
Critiques: the ROL supports the status quo and prevent progress in three
ways:
o Courts zealously defend property rights (laissez-faire values) and
inhibit redistribution.
o Imposing the adversarial model on tribunals lowers efficiency and
favours the wealthy.
o Courts often fail to consider policy, engage in statutory interpretation
without context.
Statutory language is often indeterminate – there is often not one “correct”
answer but different plausible interpretations. These interpretations often
require policy choices and/or discretion. (Crane)
o Courts are not always the best place to make these policy and
discretionary choices.
Courts should accept that “they may not be as well qualified as a given agency
to prove interpretations of that agency’s constitutive statute that make sense
given the broad policy context within which that agency must work.”
(National Corn Growers)
2.4 Participatory Rights and Procedural Fairness





Democratic ideals – involving citizens in decision-making.
Individual autonomy – individualism or “dignitarian” ideals; natural rights.
Better decisions are made – more information yields better decisions.
Legitimacy – promotes civic order (people feel like they’ve been heard).
Accountability of the state for exercises of power.
6
Procedural Review
3 Background and Policy
3.1 Sources of Procedural Entitlements



Statutes and regulations, including specific enabling Acts and general
procedural statutes, e.g. the Administrative Tribunals Act.
Constitutional and quasi-constitutional rights documents:
o Canadian Bill of Rights
o Charter (esp. s.7)
o Quebec Charter
Common law of procedural fairness, which uses the following test: (Knight)
o Threshold: when are there any procedural rights?
o Statutory authorization: does the statute modify or abrogate the
duty?
o Content: what procedures are required?
 i.e. the Baker factors.
o Compliance: has that duty been complied with?
 NB this is a question of fact.
4 The Rule against Bias
4.1 The Basic Law and Test





The rule against bias is one of the two branches of natural justice.
Nemo judex in causa propria sua debet esse: no one ought to be a judge in
his own cause.
o NB the other branch: audi alteram partem – hear the other side
(participatory rights).
The rule applies to all administrative decision-makers, not quasi-judicial
ones. (Energy Probe)
This rule varies depending on the context; higher for courts than
discretionary bodies. (Imperial Oil)
The standard: must avoid the reasonable apprehension of bias (RAOB).
o This has a two-part OBJECTIVE test: (Baker, RDS)
 The notional person considering the alleged bias must be
reasonable; and
 View the matter realistically and practically (Baker)
 Be informed of all relevant circumstances (Baker,
SRD)
 Have thought the matter through (Baker)
7






Not have a “very sensitive or scrupulous conscience”
(SRD)
 The apprehension of bias must also be reasonable in the
circumstances of the case.
o Ask: would the above person think that “it is more likely than not
that the [decision maker], whether consciously or unconsciously,
would not decide fairly?” (Baker)
Defining bias: not all preconceptions are impermissible; the test is directed
at determining what constitutes a disqualifying bias in the particular
circumstances of the case. (Imperial Oil)
o Disqualifying bias is a state of mind that is predisposed to a
particular result or is closed with regard to particular issues.
Impartiality = disinterest in outcome, open to persuasion. (SRD)
 This is about independence of thought, not institutional
structure (that falls under 5 Tribunal Independence below).
(Bell Canada)
The onus of proof is on the party alleging bias. (SRD)
Underlying purposes: (Crane)
o To foster public confidence in the process and the substance of
administrative justice.
o To promote substantive fairness (better decisions).
o To support participatory procedural rights.
o To promote the ROL and the pursuit of equality.
Example: judge comments that white police officers sometimes mislead the
court in cases with black Ds. SCC: No RAOB: just observing the “racial
dynamic” (4JJ), “close to the line” (2JJ). (SRD)
Example: judge make disparaging remarks re: residents of neighbourhood
during a sentencing hearing. RAOB found: judge loses her office. (MoreauBerube)
4.2 Bias Issues
4.2.1 Pecuniary or Other Material Interests in the Outcome

Any direct personal pecuniary interest in a matter automatically
disqualifies. (Energy Probe)
o A “direct” pecuniary interest requires a relatively high level of
certainty. (Energy Probe)
 Example: owning shares in a company that might benefit as a
result of a regulatory decision is not sufficient direct. An
assured contract would be direct. (Energy Probe)
o Example: lawyer is up for a disciplinary hearing from the Bar. If he
wins, the Bar must pay costs. Lawyers pay for the Bar’s costs, and
lawyers sit on the administrative panel. Financial interest is too
“remote, speculative and attenuated” that it can’t be said to be direct.
(Pearlman)
8
Court considered what a reasonable person would look at in
determining directness: the scheme is created by statute,
panel’s members have the same interest as any other lawyer,
it’s just recouping costs and not profiting. Overall, reasonable
to say not to RAOB.
o Example: egg producer in an action with a regulatory board that has
other egg producers on it due to statutory requirement. Not direct, no
RAOB. (Burnbrae)
o Example: aboriginal band members on band appeal determining
whether CP is subject to the band’s taxes. Not a direct interest, no
RAOB. They’re members of the public. (Matsqui)
o Example: Minister has statutory authority to order parties to clean up
environmental damage (otherwise the government pays). No direct
interest; acting as a Crown representative. (Imperial Oil)
If the interest is indirect, then the standard RAOB test applies. (Pearlman)


4.2.2 Personal or Business Relationships with Those Involved in the
Dispute


Evidence of personal animosity is a surefire way to find a RAOB. (Baker)
Example: business director is before a panel for sanctions. Director of
competing company is on the panel. Business competitor relationship –
RAOB, director disqualified. (Bennett and Doman)
o Court: this is pretty tenuous; will hurting P also hurt his company?
Some reasonable people might think this, so we’ll err on the side of
caution and find a RAOB.
4.2.3 Prior Knowledge or Involvement of Decision Maker at Earlier Stages


Re-Hearing a Matter: it’s usually not an issue for tribunals to re-hear
matters after JR.
o Example: sequel to Innisfil. Same board hearing same issues; doesn’t
allow new evidence to be presented. RAOB found. (Township of
Vespra)
o Example: arbitrator finds that party’s evidence was not credible. Sent
back on a different ground; Court finds that it is “unrealistic” for the
decision-maker not to carry over a bias regarding her credibility;
remitted to different panel for re-hearing. (BCNU)
Prior Involvement:
o Sufficiently close prior involvement may disqualify.
o Example: D is former President of the Canada Development Corp,
part of a group making a pipeline proposal that the National Energy
Board is reviewing for approval. D is on NEB. Court find RAOB,
“personal and extensive” involvement with project; use strict
(lawyer-like) standard because NEB needs to keep public
confidence. (Cttee for Justice and Liberty)
9
Dissent: the board needs expertise, and experts have a history
in the field! And it’s discretionary, police-based; should be a
lower standard.
o Example: two aboriginal bands sue each other over land claims. At
SCC, Binnie J writes the unanimous opinion. 15 years prior, Binnie J
was the Deputy AG for Canada for all non-tax matters, and had
attended a meeting on these issues. Court rejects RAOB: it was a long
time ago, involvement was limited, the decision was unanimous
anyways, and there is a strong presumption of judicial
impartiality. (Wewaykum Indian Band)
Overlapping functions: the same party should not be both an investigator
and adjudicator. (Brosseau)
o This, like everything else, is subject to the defence of statutory
authorization.
o Example: Act allows government lawyers to advise on investigations,
pre-hearing issues, issues at hearing, and policy rioting. Overlapping
functions of these lawyers causes RAOB. (Quebec Inc.)
o Example: Chair instructs staff to investigate companies, then reviews
report and decides whether to hold a hearing, then sits on the hearing
panel. Court wants to make statute work (economic reg.), finds that
the statute allows this by necessary implication. (Brosseau)


4.2.4 Attitudinal Predisposition and Pre-Judgment




Unless a precondition of the position, it’s probably bad.
Example: P applies for tenure, other profs asked for their opinions. Someone
with a negative opinion gets put on tenure committee. No RAOB – they’re
supposed to have opinions. (Paine)
Example: feminist HR advocate wrote extensively on social issues, was a
party to a discrimination complaint that was stalled. She gets put on a panel
reviewing a similar systemic discrimination complaint at another company.
She withdraws as a party from the complaint, but it’s too late – she has an
interest in the first complaint, and can’t be put on a panel where she has a
chance to create a precedent that can be used in that case. Writings not a
factor. (Gale)
Example: police officers suing city to remove mandatory retirement at age
60 because it isn’t a bona fide requirement. City argues it is. Panelist has
expressed views that mandatory retirement for professors is not bona fide.
No RAOB – experts shouldn’t be excluded merely because they have
expressed views in the field. Plus this doesn’t indicate pre-judgment. (Large)
4.2.5 Different Standards of Bias for Different Contexts

Relaxed test for bias: in cases of alleged “pre-judgment” where elected
decision-makers (e.g. municipal councilors) are concerned, the standard is
whether they re “amenable to persuasion” and do not have a closed mind.
(OSBRA, Save Richmond)
10


o Mere statements of support one way or the other do not indicate a
closed mind – need to be able to show that the person is incapable of
change. (OSBRA)
o Example: Alderman says that it would take something “significant” to
change his mind. This doesn’t meet the closed mind test – still possible
to change mind. (Save Richmond)
Bifurcated approach: in cases of policy-oriented boards regarding
comments that board members make prior to a hearing, use the relaxed
approach. They must abide by the “normal” RAOB standard once a hearing
has actually started. (Nfld Tel)
o Example: adjudicator at a rate-setting hearing says corporation’s
directors are paid too much, decides against rate increase. Not an
elected position; applies bifurcated approach, finds RAOB. (Nfld Tel)
Example: Gomery (retired J.) makes negative comments in the media
regarding the Ps (investigating them after political scandal). Mid-to-high PF –
reps of high-profile people. RAOB find. (Pelletier)
4.2.6 Bias and Statutory Authorization





A statute may expressly or by necessary implication require or allow the
circumstances giving rise to bias. (Brosseau)
Example: statutory authorization allows overlapping functions. Statute is left
standing, no constitutional override. (Brosseau)
Example: statutory authorization allows overlapping functions. Court
applies Quebec Charter and applies the institutional impartiality test:
“Would an informed person, viewing the matter realistically and practically,
and having thought the matter through, apprehend a real likelihood of bias in
a substantial number of cases”? Court concludes no; sharing lawyers is fine.
(Quebec Inc.)
o This is different from Brosseau; it’s under the Quebec Charter, and it
might apply to the CBR.
o This test considers the worst-case possibility, not the specifics of what
happened in the case.
Example: HR committee decides which complaints get sent to HR Tribunal,
Committee Chair also gets to pick who’s on the Tribunal’s panels and appears
before them. RAOB found, but statute authorize scheme. CBR s.2(e) applies –
fair hearing for determination of rights. (MacBain)
Example: Minister of Labour gets to appoint arbitration panelist in health
labour disputes. Financial bias alleged (could want to pay health workers
less). Statutory authorization. (CUPE)
5 Tribunal Independence

This is an issue of lack of institutional independence, which concerns the
relationships between tribunals’ members and others. Individual
independence is impartiality, covered above in bias. (Bell Canada)
11



Test: is there a reasonable expectation of a lack of sufficient
independence? Factors: (Valente)
o Security of tenure for members (Valente)
 Fixed terms of any length are fine. “At pleasure” terms
generally are not. (Quebec Inc.)
 Unless it’s a statutory requirement and no rights
document overrides. (Ocean Port)
 Contracts or Orders in Council are just as good as statutes for
establishing tenure. (Quebec Inc.)
 Example: old board soon to be abolished, new board being put
in place. Old members are “eligible” to be hired by government.
Not a factor against independence for old board. (Sethi)
 Concern: might the old members start deciding in
favour of government to curry favour?
 Example: chair of tribunal has the power to extend board
members’ positions until the end of the case(s) they’re
currently hearing. No lack of independence – someone needs to
do this, and the moment the decision is rendered is when the
term ends, so no bias. (Bell Canada)
o Financial security of the members (Valente)
 Example: prosecutor also decides who sits on the panel;
panelists are hired on a per-case basis. Financially dependent
on prosecutor – may try to curry favour to get put on panels
more often (and thus get paid more). Technically “fixed” terms,
but also a tenure issue. (MacBain)
o Independent administrative arrangments that are closely related to
judicial functions (Valente)
 This would include the assignment/scheduling of cases, etc.
(Valente)
 Example: many points of contact between Minister and
tribunal (they report to Min, Min approves policies, etc.). This
is just Ministerial oversight; no concern for bias. (Quebec
Inc.)
Standard to apply:
o Test must be applied flexibly, with regard to the operational reality
(i.e. actual circumstances). (Quebec Inc.)
o This is assessed from the perspective of the same notional person
who assesses impartiality; reasonable, informed, realistic, practical,
not very sensitive, etc. (Quebec Inc.)
Restrictions on the Valente test:
o It only applies to tribunals that are “court-like” and have adjudicative
functions. (Valente)
o Like other tests, it needs to be applied flexibly with regard to the
context. (Valente)
12


Statutory authorization: statutes may set out tenure, remuneration and
independence.
o There is no generalized constitutional guarantee protecting
administrative independence. (Ocean Port)
 Rights docs may still apply, they just need a different
(protected) right to be in issue
 NB Ocean Port was in BC, so only the Charter was in issue – no
CBR. (Ocean Port)
o ATA ss.2-10 include provisions setting out remuneration and
tenure, but only if adopted (of course).
Example: Aboriginal tax body: no firm decision on independence. (Matsqui)
o 2/9 JJ say it fails the test because it has high PF (court-like) but no
tenure or remuneration terms.
o 4/9 JJ say it passes the test because as an operational reality there’s
no RALSI on the facts.
13
Determining Procedural Fairness: 5
Steps
6 Are You Over the Threshold?
6.1 What Type of Decision Is It?



The nature of the decision to be made by the administrative body goes a
long way toward determining whether a duty of fairness is owed. (Knight)
PF owed:
o Administrative and specific decisions: (Knight)
o Final decisions (especially without appeals): (Knight)
o Judicial or quasi-judicial decision-making – how similar is the
proceeding to a court: (Cooper)
Little or no PF:
o Legislative and general decisions: (Knight)
 Unfettered discretion granted by statute, especially if Parl
used to perform that function. (Inuit)
 Tribunal makes policy-laden decisions, based on broad
considerations of current political, economic and social
concerns. (e.g. rate-setting commissions like CRTC) (Inuit)
 Example: political decision re: egg quotes. No duty of
fairness owed. (Regulated Importers)
 Nature of the decision-maker: (Inuit)
 Cabinet is usually legislative and general.
 BUT Cabinet is not immune from the DOF!
 Ask:
o How practical is it to grant a hearing?
o Is it a political body? Etc.
 Example: PUT CASE HERE!
 Substance: was the action individualized or general?
(Homex)
 Example: a bylaw affecting one party (even if in public
interest) is not general, even though bylaws are
typically legislative. (Homex)
 Example: rate-setting is generalized, not individualized.
(Inuit)
o Preliminary decisions generally do not attract a duty of procedural
fairness, but: (Knight)
 Court will consider factors to determine whether PF is still
appropriate: (Re Abel)
14


Proximity between preliminary and final decision: does
preliminary determine final? (Irvine)
o If recommendations are made, proximity is
high. (Irivine, Baker)
 Possible exposure to harm of the person investigated
at the preliminary stage to harm. (Irvine)
o If it’s public and reputations are at stake,
exposure is high. Otherwise, no. (Irvine)
Example: preliminary psych review is “vital” in making final
decision re: institutionalization. PF applies; D has a right to see
[some of] his psych file. (Re Abel)
6.2 What’s the Relationship Between the Body and the
Individual?


This includes policy reasons for applying a duty of procedural fairness (or
not).
This includes reference to the grounds for the tribunal’s action and the
general context.
o E.g. the context of collective agreements/etc. is seen to make the idea
of “office-holders at pleasure” being dismissible without reasons or
cause anachronistic – suggests duty. (Knights)
 NB they are now treated the same as employees. (Dunsmuir)
6.3 What’s the Effect of that Decision on the Individual’s Rights,
Privileges, or Interests?



The effect must be “significant and import”, e.g. termination of employment.
(Knight)
Decisions affecting property rights have a long history of scrutiny by the
courts. (Cooper)
o Dickson CJ: whenever personal or property rights are targeted
“directly, adversely and specifically”, PF is required to some degree.
(Homex)
Licensing decisions:
o Forfeiture: an existing right is lost for a reason relating to the
individual – PF applies. (Re Webb)
 Example: mom on welfare loses subsidizes housing due to
noisy kids. (Webb)
o Expectation: there’s a reasonable expectation for a favourable
decision. PF applies.
 See LEGITIMATE EXPECTATIONS below.
 Can’t use doctrine in a way that affects Parliament’s abiity to
legislate effectively. (CAP Ref)
 Can’t use doctrine to demand substantive outcomes, only
procedural safeguards. (CAP Ref)
15


Trick: a promise of an outcome can be seen as an
exercise of that discretion; the court can then grant
mandamus and require the tribunal to follow through.
(Mt. Sinai)
Example: three applications by religious congregation for municipal
rezoning to allow construct of a place of worship. Municipality accorded PF
in the first application (though denied), but then summarily dismissed the
other two applications with no PF and no reasons for denial. SCC applied the
Baker factors and found that the rezoning affected the congregation’s rights
and interests, and thus they were entitled to PF. Specifically the municipality
had a duty to give reasons. SCC set side the second and third application
refusals. (Congregation)
6.4 Legitimate Expectations Doctrine







One of the five Baker factors that must be taken into account when
determining the content of PF required by CL PF in a particular case.
LED in Canada cannot give rise to substantive rights, only procedural
rights. (CAP, Baker, Mt. Sinai, Mavi).
Where LED applies, it operates to extend the common law of PF. (OSBRA)
LED applies in two ways: (Baker)
o Substantive: reasonable expectation of a certain outcome. LED may
apply so as to entitle that person to more extensive procedures than
would otherwise be accorded before the outcome is denied.
 E.g. applying for a renewal of a license for which you still
qualifiy.
o Procedural: expectation of certain procedures due to past practices,
promises, or representations by public officials.
 Individuals need to know about the old practice to claim an
expectation.
 There is no need for detrimental reliance on the expectation.
 The past practice must be “clear, unambiguous and
unqualified”. (Mt. Sinai)
 Cannot be contrary to statutory duties or requirements. (Mt.
Sinai, CUPE, Mavi)
Those seeking to invoke LED may show (not necessary) that they were
aware of the conduct giving rise to the LE. (Mt. Sinai)
o Proof of reliance is not required. (Mt. Sinai, CUPE, Mavi)
LED cannot attach to the creation of statutes due to concerns about
interfering with the legislative process. (CAP)
It’s not clear whether LED attaches procedures to legislative and general
decision-making other than the creation of statutes. (CAP, Mt. Sinai)
o This is problematic because LED is supposed to attach procedures in
circumstances where the common law PF would otherwise not
offer them, such as legislative and general decision-making. (Crane)
16

Why doesn’t the SCC want to extend LED to substantive rights (“public
law estoppel”)? (Binnie J. in Mavi)
o Gov’t officials often need to give advice – errors are inevitable. Courts
don’t want to put a “chilling effect” on gov’t giving advice to people
about gov’t programs.
o Whose promise or advice would be authoritative enough so as to give
rise to a legally enforceable claim to have a promise fulfilled in
substance? The evidentiary requirements would have to be high.
o Advice may sometimes be given without all the facts known before.
o Gov’t needs to be able to change policies to meet changing
circumstances and changing conceptions of the public interest,
changing politics – courts should not fetter the necessary flexibility
and ability to adapt and change.
o Concern for the legitimate role of the courts with respect to legislative
intention: the courts could potentially usurp the role of the designated
decision-maker and the court is not the holder of the delegated
decision-making power. Courts should be cautious of intervention of
this kind when not exercising Charter jurisdiction.
6.4.1 LED Examples





CAP (SCC 1991): changes to legislation governing fed/prov transfer
agreements; LED held not to apply to the creation of statutes by Parl –
legislative sovereignty; LED also can’t attach to Ministers or Cabinet re the
introduction of bills into Parl because that would fetter Parl indirectly.
Baker (SCC 1999): Application by overstayer for a favourable exercise of a
discretionary power that could be exercised on H&C grounds to exempt a
person from the usual rules regarding immigration applications; Baker
argued that a LE regarding certain procedures arose from the Convention on
the Rights of the Child which Canada ratified but had not implemented; no LE
on the basis of the wording of the Convention; LED cannot give rise to
substantive rights, only procedural entitlements.
Mt. Sinai (SCC 2001): question of whether LED or public law estoppel could
require a Minister to issue a license to a hospital when the hospital had relied
on a promise of the license in agreeing to relocate; the license was granted
(mandamus) but not on either LED or estoppel; the ministerial discretion to
issue the license had been exercised in favour of granting the permit by the
gov’t’s course of conduct.
CUPE v. Ontario (SCC 2003): question of whether a LE existed regarding the
method of appointment for labour arbitrators based on past practices; no LE
was found in this case because the past practices regarding appointments
were “equivocal” and, in light of the evidentiary finding, there was no “clear,
unambiguous, or unqualified” practice that could be relied on as giving rise to
a legitimate expectation.
Mavi (SCC 2011): whether participatory rights attach to debt collection by
the Crown in relation to an immigration sponsorship program; a minimal
17
level of PF at common law was held to attach because the Crown was found
to have a narrow discretion to defer or structure debt payments based on the
personal circumstances of the sponsor; PF in this context required notice and
a right to make submissions regarding personal circumstances, but no duty
to give reasons; LED invoked to support the procedural claim with the LE
arising because of the wording found in the undertakings that were signed by
the sponsors at the Crown’s behest.
7 What’s the Degree of PF Required? (The Baker Factors)
7.1 The Baker Factors and General Content Issues

General framework for assessing the general level or degree of PF required
in all the circumstances: (Baker)
o Nature of the decision and the process followed:
 Discretionary decisions requiring multiple factors have low PF.
 The more the process, the function of the tribunal, the nature
of the body, and the determinations that must be made
resemble judicial decision making, the more likely that PF
closer to the trial model will be required.
 Ask: is this the kind of decision making that looks like what
courts normally do?
o Nature of the statutory scheme and the terms of the statute
empowering the tribunal:
 More PF:
 No appeal procedures provided within statute.
 Decision is determinative; no further requests can be
made.
 Less PF:
 Provisions that operate as exceptions to the normal
scheme.
o Impact: importance of the decision to the individual affected. Most
important factor!
 The more important the decision is to the lives of those
affected and the greater the impact, the more stringent the
procedural protections must be.
 Example: P is Jamaican, has 4 kids in Canada, applying for
exemption from deportation. All other factors were against
her, but serious impact granted written hearing rights.
(Baker)
o Legitimate expectations of the person affected:
18
If the claimant has a legitimate expectation that a particular
procedure will be followed (e.g. representations, past
practices, or promises) then this process must be followed.
 If the claimant has a legitimate expectation of a particular
substantive result, then more extensive procedural
protections than would otherwise by required may be
necessary before he can be deprived of the outcome.
 NB can’t be used to get a substantive result, but can get
promised procedures. (CAP Ref)
o Process actually adopted and institutional constraints.
 Must respect the choice of agencies re procedures, especially
when:
 The statute give the decision maker the right to choose
what procedures to follow
 The decision maker has an expertise in choosing what
procedures are appropriate in the circumstances
 NB this factor is not determinative.

8 Address the Specific Content Issues that Arise

What needs to be determined:
o What’s the requisite level of PF as it related to the specific content
issue(s)?
o Were there deficiencies in terms of the PF accorded in all the
circumstances?
o Given the level of PF required, was the specific procedure at issue
required by PF or not?
8.1 Specific Content Issues: Pre-Hearing
8.1.1 Notice



Issues: timing; adequacy; sufficiency in letting a person know what’s at
stake; method of delivery.
Form: the best form of notice is probably written, although this factor isn’t
very important.
o As long as the form provides notice and isn’t prejudicial, the court
won’t care. (Crane)
Manner of service: best manner of service is personal service with
affidavits.
o Mass notice (e.g. advertising) may be acceptable if large groups need
to be notified, so long as the intended people are likely to be notified.
(Ontario Hydro)
 Example: unreasonable to require every individual notice to
every resident in a school’s area of intention to close the
19


school. Must make it “generally known” in the area such that it
will come to the attention of interested individuals. (Re Hardy)
Timing: needs to be received by the party long enough in advance to give the
party a chance to determine whether to participate (if not mandatory), and to
actually prepare to participate.
o More complex or serious issues will require more time to prepare.
o Example: notice to P arrived late; limitation period passed while
response was still in the mail. Treated as if no notice given –
adjournment granted, still able to pursue action. (Torchinsky)
o Example: notice to P arrived late; P files appeal anyway, court uses
general remedial discretion to permit the appeal to proceed (i.e. it
recognized the notice as adequate but permitted the action to proceed
anyway). (Re RymalI)
Content: needs to say when and where the person may be heard, and
include some information on the case to be met. Court will consider all the
circumstances, including the position of the party to be notified (Chester)
and the nature of the process in question. (Krever)
o Example: prisoner being reviewed for violent behavior, may be
moved to another prison. Receives notice mentioning one incident;
prisoner prepares submission on that issue, but at the hearing is
presented with several incidents. Courts overturn due to ambiguous
notice. (Chester)
o Example: Vet gives P’s horse prohibited drug. P races horse, stewards
ban the horse pending a review by Ont. Racing Commission. ORC gives
notice, P gets license suspended (more seriously penalty). Notice
didn’t mention this penalty, but court says that P should have known
it was possible since P was an experienced racer. (Ex Parte Taylor)
o Example: OH moving high-power lines, considering alternate routes,
puts up mass notice ads in alternate route areas to notify residents.
Ads only say “Southwest Ontario”, don’t notify residents that they
specifically are in alternate route areas. Ambiguous. (Ontario Hydro)
o Example: commission hearing evidence re: HIV in blood supply. At
the end, invites parties to confidentially advise re: misconduct by
other parties. Confidentially provides those parties with notice, gives
them a chance to respond, then issues public findings of misconduct.
This process was mentioned early on, and all parties had counsel.
Public findings do not claim to establish criminal guilt or civil liability.
Notice before hearings began wasn’t possible, as it depended on
conduct during hearings. As a result, court finds that the notice given
was sufficient, with regard to the nature of the process in question.
(Krever)
20
8.1.2 Disclosure and Discovery




Jurisdiction: administrative boards might not have the power to order
discovery unless it is found in the statute; discovery is more than merely an
“incidental” power. (CALPA)
The Stinchcombe rationale for discovery in the criminal context: discovery
prevents “trial by ambush”, makes hearings more expeditious, and promotes
settlements.
o In criminal law: non-disclosure reduces D’s ability to make full answer
and defence.
o The “fruits of the investigation” belong to the public, not the Agency;
all parties get access.
o Stinchcombe does not apply in the administrative context. (May v.
Ferndale)
In the civil context, full discover is a hallmark: eliminates trial by surprise,
enables parties to prepare efficiently, promotes settlements, etc.
In the admin context, however, it can be time consuming and sometimes
unnecessary.
8.1.3 Delay in Proceeding (Blencoe)


Can warrant a stay of proceedings if there is “significant prejudice”.
Two kinds of significant prejudice:
o Actual prejudice to a fair hearing in an evidentiary case.
 This is long-recognized; loss of evidence, inadequate
opportunity to present one’s case.
o Abuse of process:
 Even where the fairness of the hearing has not been
compromised, there may be an abuse of process where delay
meets all of the following criteria:
 It is inordinate or unreasonable. Factors to consider:
o The nature of the case, including the various
rights at stake.
o The level of complexity of the facts and issues.
o The purpose and nature of the proceedings.
o Whether the applicant contributed to the delay
or waived it.
 It causes serious stress (psychological harm) and
stigma to reputation.
 It brings the human rights system into disrepute.
o NB this is a high threshold and will be rare.
 Example: P accused of sexual harassment, complaint goes to
HRC. Takes 32 months to get to hearing, hearing takes 2 years.
Some delay is P’s fault, length of hearing doesn’t count as delay,
so only 16 months are in issue. Not an unreasonable delay – in
fact, it’s partly due to the high PF involved in this type of
proceeding, so it’s not an issue. (Blencoe)
21
8.2 Specific Content Issues: Hearing
8.2.1 Oral vs. Written Hearings




Oral hearings are not necessarily required by PF. (Baker, Knight, Webb,
Nicholson)
Where credibility is an issue and the impact is serious, an oral hearing
should be held. (Khan, Singh)
o NB Singh is based on PFJs which don’t always require oral hearings.
Example: student claims there was an extra exam booklet that was lost after
test; school denies it and fails her. This could delay her professional life and
credibility is in issue, so oral hearing required. (Khan)
Example: mom on welfare loses subsidizes housing due to noisy kids; nonoral hearing rights granted – was given multiple written notices. (Webb)
8.2.2 Public Hearings


Open hearings are preferred, even for disciplinary hearings.
In camera hearings might be appropriate where safety, national security,
dignity (e.g. sexual assault complainants), police informants, or commercially
sensitive matters are involved.
8.2.3 Right to Counsel




May be a right to state-funded counsel (NB) or just to be represented
(Howard).
Factors to consider: (NB Minister)
o Seriousness of the interest at stake
o Complexity of the proceedings
o Capacity of the party to self-represent
o Are there contrary factors, such as a need for speed or informality?
Example: welfare mom in child-custody case; 15 days of hearings. Counsel
granted. (NB Minister)
Example: prisoner presented with vague charges (including 3 charges for
one act), may extend jail time. Liberty interest at stake, fairly complex,
limited capacity. Counsel granted. (Howard)
8.2.4 Disclosure of the Case Against



Parties have a right to hear and respond to the evidence against them at a
hearing. (Kane)
This right is not absolute; disclosure may be denied where there are
confidentiality concerns, or where it might harm the party requesting it (e.g.
certain doctor’s reports). (Napoli)
o Confidentiality concerns: will disclosure cause a “chilling effect”?
o Harm to requesting party: this is a paternalistic concern that is of
reduced weight today.
PFJs may require disclosure that is adequate to allow the party to respond,
depending on context.
22


Example: prof is suspended, has a hearing before board. After prof leaves,
president adds facts and answers questions. Inadequate disclosure; prof had
right to hear and respond. (Kane)
Example: National security certificates hearing. CSIS adds evidence
(interview summaries) while in camera (P not present). Baker factors
suggest high PF – sever impact, judicial context, etc. Files must be disclosed
(and CSIS has to stop destroying them), but need to be censored by judge to
remove sensitive national security info. (Charkaoui)
8.2.5 Admissibility of Evidence



Tribunals are not bound by the law of evidence, unless the statute says so.
BC ATA permits any evidence that the tribunal considers “relevant, necessary
and appropriate”, whether or not a court would admit it. (ATA s.40)
o NB the ATA is not always applicable.
o Exception: legal privileges are preserved if s.40(3) is applicable.
However, PF may require that certain evidence be inadmissible (as a
procedural safeguard).
8.2.6 Cross-Examination





A right to cross-examine in oral hearings is axiomatic, but it may be denied.
Adversarial (or otherwise court-like) tribunals are likely to require crossexamination. (Innisfil)
o Innisfil was heavily statutory, so mention that as a caveat along with
this principle.
o If a statute makes reference to a right to cross-examine or a right to
oppose (even if limited), courts are happy to apply the right to crossexamine more broadly on the basis of PF. (Innisfil)
ATA: grants cross-examination rights where reasonably required for
full/fair disclosure. (s.38)
Example: estimated population projection adduced by witness. No crossexamination given. Statute grants cross-examination rights and the right to
“object”. Court: breached PF not to grant cross-examination here; objecting
parties should be given a chance to examine the witness. (Innisfil)
Example: regulatory commission hears expert report from side A, but expert
isn’t available for cross-examination. Commission lets in an expert report
from side B in response. No cross-examination necessary; low PF required,
both sides having independent experts is a good substitute. (MacLab)
8.3 Specific Content Issues: Post-Hearing
8.3.1 Duty to Give Reasons


Reasons do not need to be provided in all cases. (Nurses)
Challenging reasons on the basis of their quality is a question of
reasonabless, not procedural review. (Nurses)
23







The adequacy of reasons is not a standalone basis for quashing a decision.
The court is more concerned with whether the duty to give reasons has been
met, rather than their adequacy. (Nurses)
The focus is on the question: do the reasons “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within a range of acceptable outcomes?” (Nurses)
Courts should usually try to defer to the reasons of a tribunal rather than
trying to “supplement” them. (Alberta Teachers)
Policy reason for giving reasons:
o You’ll end up with better decisions if you have to craft reasons for
them. (Baker)
o It enhances accountability. (Baker)
o Instrumental value – reasons are invaluable when there is an appeal.
(Baker)
o Legitimacy and acceptability – parties feel like they’ve been treated
fairly and non-arbitrarily. (Baker)
Example: Baker facts; high impact means reasons required. Satisfied by
officer’s notes. (Baker)
Remedy: if the reasons are inadequate, the case may be sent back to the
decision maker to provide reasons. (Alberta Teachers)
BOTTOM LINE: an otherwise reasonable result should not be set aside on
the basis that the reasons are inadequate. (Alberta Teachers, Nurses)
9 Is There Statutory Authorization? Can a Rights
Document Be Applied?


Defence of statutory authorization: the duty of fairness can be modified or
abrogated by a statute, but only by express language or “necessary
implication”. (Knight, Brosseau)
Your only recourse: if a statute says that you can’t get PF, find a better (i.e.
constitutional or quasi-constitutional) statute, i.e. the Bill of Rights or (even
better) the Charter.
9.1 Canadian Bill of Rights



Jurisdiction: only applies federally (to federal tribunals under federal
statutes).
Quasi-constitutional status: this is just an ordinary statute, but it has
primacy over other statutes (unless they claim to operate notwithstanding
the CBR, which is rare). (CBR s.2)
Rights: mostly similar to the Charter, with two notable exceptions:
o 1: The right to “enjoyment of property”; no deprivation “except by
due process of law”. (CBR s.1(a))
 NB this only applies to individuals.
24
This only applies to rights existing at the time of the CBR’s
enactment (1960). (Authorson)
 Courts are reluctant to interpret “due process” substantively; it
grants PF, not outcomes. (Authorson)
 Example: P gets veteran’s pension through Dept. of Veteran’s
Affairs. DVA didn’t invest or pay interest on those funds;
federal statute bars vets from suing for interest. P argues due
process protects him from expropriations without
compensation. Court denies – there was no such right in the
1960s, and due process won’t be applied substantively to
infer one. (Authorson)
o 2: No law may deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for the
determination of his rights and obligations. (CBR s.2(e))
 Fundamental justice: look at the context to determine what
this means. Factors: (Singh)
 Nature of the right in issue
 Severity of the possible consequences
 Whether findings of fact must be made (especially
assessments of credibility)
 Example: Human Rights Commission is challenged on the
ground that it is not sufficiently independent, and so is unfair.
HRC was investingating P for employment discrimination, and
conforms to statute’s independence requirements. Challenge
succeeds – this is a determination of P’s obligation not to
discriminate, so CBR applies. (MacBain)
 Example: Authorson above (veteran’s pension). Not a
determination of rights. (Authorson)
 Example: tribunal denies P refugee rightts. No oral hearing,
reviews transcript from preliminary interview. This is a
determination of rights, so CBR applies. High seriousness,
severe possible consequences (persecution in home country),
and decision based on findings of fact. Oral hearing required.
(Singh)
 NB this was a finding by 3 of 6 judges (Beetz J.); the
others used the Charter.

9.2 Charter of Rights and Freedoms


Constitutional status and jurisdiction: this applies everywhere. “The
Constitution is the supreme law; any laws inconsistent with it are of no force
and effect.”
We only covered section 7: “Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.”
o Everyone: means everyone in Canada, not just citizens. (Singh)
25
o Liberty: means freedom from confinement, not freedom to do
whatever you want. (Singh, Charkaoui)
 Also means personal autonomy to make fundamental life
choices without state interfering. (Blencoe)
 Example: “Liberty” means ability to make decisions re: child
care. (Re B – from Blencoe)
 Example: Requiring city counselors to live in city limits
violates s.7. (Godbaut – from Blencoe)
o Security of the person: covers bodily integrity and state actions that
impose “serious psychological stress”. (NB Minister, Morgentaler,
Rodriguez)
 Free from state imposed threats of physical punishment or
suffering. (Singh, Suresh)
 Objective test: would a reasonable person experience much
more than ordinary stress and anxiety (not necessarily to the
level of nervous shock or illness)? (NB Minister)
 Must be serious in kind and degree. Merely being subject to
proceedings is not sufficient. (Blencoe)
 Law or state action that creates a risk to health by preventing
access to health care can constitute a deprivation of security of
the person. (Insite, Chaoulli)
o Principles of fundamental justice:
 Being in accordance with PFJs has two meanings: (Singh)
 Procedurally: are the proceedings provided in
accordance with PFJs? (Singh)
o PFJs are roughly the same as the common law
duty of procedural fairness. (Singh)
o The PFJs guarantee a fair process with respect to
the context and possible consequences.
(Charkaoui)
 Substantively: is the deprivation itself (i.e. the
outcome) consistent with the PFJs? (Singh)
 Generally: consider the following factors when determining
whether PF was met: (Charkaoui)
 Nature of the proceedings
 Seriousness of the interest at stake (this is the
“overriding interest”) (Charkaoui)
 The PFJs may require the right to counsel, depending on the
following factors: (NB Minister)
 Seriousness of the interest at stake (e.g. child custody is
very serious)
 Complexity of the proceedings (e.g. 15 days of hearings
is very complex)
 Capacity of the party to self-represent (e.g. parents in
child custody cases; low capacity)
26
The PFJs include the procedural right to hear the case against
you. (Charkaoui)
 The PFJs seek to reduce the risk of judicial error. (Charkaoui,
NB Minister)
Foreign governments: there must be a sufficient causal connection
between the deprivation of LLS by a foreign government and the government
of Canada’s participation and the deprivation. (Khadr, Suresh)


9.2.1 s.7 Framework: Three-Step Analysis (Singh)



Has the state deprived or threatened to deprive the claimant of an
enumerated right? If so…
Was that deprivation in accordance with the principles of fundamental
justice (procedurally or substantively – see above)? If not…
o NB balancing of societal interests happens under s.1, not here.
(Charkaoui)
Is the breach saved by s.1? Apply the Oakes test here. (Singh, Oakes)
o Where “gross harms” are found under the PFJ analysis, s.1 gets pretty
short shrift. (NB Minister)
o This also fails to be saved where a scheme is not “minimally
impairing”. (Oakes, Charkaoui)
9.2.2 s.7 Examples




Tribunal denies P refugee rights. No oral hearing, no provision of reasons.
Section 7 infringed. PFJs not met procedurally or substantively, s.1 fails. Sent
back for oral hearing. (Singh)
Ministers can sign a security certificate against a non-citizen resulting in
indefinite detention or deportation. Before signing, court conducts
“reasonableness review”, but P can’t be there when national security
information is discussed. Right to liberty engaged. PFJs not met because (1) P
doesn’t know the case against him and (2) the judge doesn’t get to hear both
sides. Section 1 fails; not minimally impairing, could just have lawyers with
clearance. (Charkaoui)
P accused of sexual harassment. Takes 32 months to start hearing, hearing
itself is 2 years(!). No Charter in interest engaged (not stressful enough for
security of the person). (Blencoe)
Mom on welfare has kids taken by Minister, fighting for custody but can’t get
legal aid. Security of the person engaged (serious psychological stress), PFJs
not met (serious interest, complex hearings, low capacity), s.1 fails (gross
harms). State ordered to fund her counsel. (NB Minister)
10 Consider the Court’s Likely Remedy (If Any)

Futility: the court will not speculate regarding the outcome. Saying that
“the breach of PF doesn’t matter because the outcome wouldn’t have
changed” will not be accepted. (Innisfil, Cardinal)
27

o Procedural fairness is required by natural justice; it’s a freestanding
right. (Lakeside Huterrites)
o Exception: if there is only one possible outcome as a matter of law,
then a remedy may be denied due to legal futility. This is a high bar
to meet. (Mobil Oil)
Discretionary aspects of remedies: there are six grounds on which a court
can refuse to grant a remedy on a discretionary basis (notwithstanding a
remedy otherwise being deserved):
o Mootness: if the issue has otherwise been resolved, there is no
remedy to grant.
 Example: claiming right to counsel for an action that has
ended. (NB Minister)
o Delay: at common law, applications for judicial review that are
delayed unreasonably and prejudicially to other parties may be
denied. Some jurisdictions also have statutory time limits:
 Federally: time limit of 30 days, extendable at court’s
discretion. (Federal Courts Act s.18.1(2))
 BC ATA: time limit of 60 days, extendable at court’s discretion.
(ATA s.57)
 BC generally: there is no time limit on an application for
judicial review, unless another statute has a time limit that
applies (still subject to the common law prejudice rule). (JRPA
s.11)
o Misconduct: this is a sort of version of the “clean hands” equitable
doctrine – it’s rare.
 Example: Homex wins in law, but their disingenuous practices
(splitting up land to avoid bylaws) resulted in a remedy being
denied due to misconduct. (Homex)
o Waiver: a party may waive the right to procedural fairness. This is
also rare (especially non-express waivers).
 A waiver must be clear. The party must be aware of the
consequences and indicate consent.
 If a party is represented by counsel and a right to object was
clear, then a failure to object might be found to be an implied
waiver, due to conduct. Otherwise, silence is not a waiver.
o Prematurity of application: courts engage in judicial review as a last
resort. They prefer to let tribunals fix their own errors, and won’t
grant review until the tribunal has actually decided.
o Adequate alternate remedy: if an adequate appeal is available,
exhaust that first.
 If a right of appeal to the courts on questions of law is
provided by statute, it must be exhausted before judicial
review can be granted.
 Lack of PF is an error of law, so appeals cover that
ground (plus more).
28




Federally, it is a statutory requirement to exhaust
appeals first. (Federal Courts Act s.18.5)
If there is a right of internal appeal (i.e. to another tribunal or
another body inside the decision maker), that may be an
adequate alternative. Consider these factors: (Harlekin)
 Is this a de novo appeal, or is it on the record [provided
by the body below]?
o NB If the record is defective, then an appeal on
the record is likely not adequate.
 How does the appeal body operate?
 What is the relationship between the decision makers?
(i.e. lack of independence?)
 Is there a bias issue?
 What are the appeal body’s remedial powers? Does it
even have the ability to correct a lack of PF (e.g. by
sending it back to the decision maker below)?
o The power to review on errors of law includes
the ability to review errors in PF.
 Consider also costs and expeditiousness (the “balance
of convenience”).
Example: student kicked out for poor grades. Gets no PF from
committee, but has statutory de novo appeal right to the senate
committee. Court: it’s a de novo appeal and the senate has
sufficient powers to fix any errors, so exhaust that first.
(Harlekin)
Example: aboriginal band has statutory right to enact taxes on
their reserves. CP had railways going through the reserves;
dispute arises. Band has an internal appeal body to resolve
these tax disputes. Court rejects allegations of bias (like any
public tribunal, all members belong to the taxing band – that’s
fine), finds body has sufficient powers and there’s a further
right of appeal to the FCTD. Need to exhaust all of those.
(Matsqui)
29
Substantive Review
11 The Law Now: The Dunsmuir Approach



Policy: the court is trying to address the tension between the rule of law and
functionalism. (Dunsmuir)
o Courts must ensure that administrative bodies operate within the
power that they have been granted. Balance is achieved by giving
deference on non-jurisdictional questions. (Dunsmuir)
Statutory appeals: the Dunsmuir framework applies unless there’s a
statutory SOR. (Nolan, Bell Aliant)
Standards of review (SOR): (Dunsmuir)
o Correctness: no defence at all. Figure out what should have
happened, then order it.
o Reasonableness: a deferential approach.
 In applying this standard, courts must inquire into the
following factors:
 The tribunal’s process of articulating the reasons:
consider the existence of justification, transparency and
intelligibility.
 The outcomes reached: does the decision fall within a
range of possible outcomes that are defensible in light
of the facts and the law?
 The SCC has stated that there are no variable degrees of
deference within reasonableness (since that would return to
the PU/RS days), but interpretations of the home statute must
be “governed by context”. (Alberta Teachers)
 Example: due to the considerable deference owed to
the board, its decision fell within the “range of
reasonable decisions”. (Khosa)
 Example: tribunal considering statutory interpretation.
Has expertise, privative clause, etc., so reasonable
applies, but the interpretation was “deeply flawed” and
thus unreasonable. (Dunsmuir)
 If a party is raising an issue on judicial review that was not
raised before the tribunal (and thus the tribunal did not
provide reasons about it), the court may refer to the reasons
“which could be offered in support of a decision”. (Alberta
Teachers)
 Example: Commissioner failed to extend inquiry period
by the 90-day deadline for reasons generally known
(but not stated). Nobody complained upon initial review
– it was thought to be fine until the appeal, when it was
30
raised as a new issue. The court still reviewed the
decision as if there were reasons given. (Alberta
Teachers)
11.1 The Dunsmuir Test for Determining the Standard of Review

Use the first one that applies!
11.1.1 Statutory SOR




It is open to the legislature to specify the SOR.
Jurisdictional questions: specifying a non-correctness SOR will likely be
unconstitutional. (Crevier)
BC ATA: specifies SOR for tribunals with a privative clause and without.
(ss.58-59)
o NB these provisions preserve the patent unreasonable standard.
FCA s.18.1(4): sets out grounds of review, not SORs. Dunsmuir still applies.
(Khosa)
11.1.2 Shortcut: Category Already Determined




Has the jurisprudence already determined the SOR for this category of
question?
Trick: if the court wants to, it will distinguish cases from established
categories with pretty flimsy excuses. E.g. Decision 1 involves a tribunal
interpreting a pensions act; correctness. Decision 2: same tribunal, but
interpreting pension contract. Reasonableness. (Nolan)
Reasonableness will usually apply automatically in the following categories:
(Dunsmuir)
o Questions of fact
o Questions of discretion
o Questions of policy
o Questions of mixed law and fact
 Try asking whether the answer will provide a legal precedent
or not. The more unique the answer is the specific facts, the
more likely it is to be mixed. (Southam)
 A question of mixed law and fact often consist of applying the
law to the facts. Deference is generally deserved here. E.g.
determining costs is a mixed question. (Smith)
 Example: asking whether what D did was “unprofessional
conduct” is a question of mixed fact and law; applying legal
definition to the facts. (Ryan)
o NB this is effectively every type of question except for question of
law, and even those sometimes fall under reasonableness.
Reasonableness will apply to questions of law in the following categories:
o Always: where a tribunal is interpreting its home statute[s] which is
closely connected to its functions with which it will have a
particular familiarity. (Dunsmuir)
31



o Sometimes: where a tribunal has developed particular expertise in
the application of a general common/civil law rule in relation to a
particular statutory context. (Dunsmuir)
 NB often relates to the home statute.
 Example: adjudications in labour law may fall under this
rubric. (Dunsmuir)
o Costs: absent “strong factors” for correctness, costs will use
reasonableness SOR. (Smith)
 Costs are usually discretionary and mostly fact-based (but they
may be law, too). (Smith)
Correctness will apply to questions of law automatically in the following
categories: (Dunsmuir)
o Constitutional questions
o “True” questions of jurisdiction or vires
 Narrowly defined: “does the tribunal have the authority to
make this decision?”
 Must not return to the pre-CUPE broad jurisdictional question
analysis.
 Example: determining whether there’s jurisdiction to hear a
particular dispute from particular parties is a matter of “true
jurisdiction”. (Northrupp)
o Questions of general law that are of central importance to the legal
system and are outside the tribunal’s area of specialized
expertise.
o Questions of the jurisdictional lines between two specialized
tribunals.
Factors pointing to a reasonabless SOR on a question of law are:
(Dunsmuir)
o A privative clause (i.e. statutory direction indicating the need for
deference)
 This is a “strong”, but not determinative factor in favour of
deference.
 An “exclusive jurisdiction” clause is like a weak privative
clause. Still deferential. (Khosa)
 If there is no privative clause, this has a neutral effect
(doesn’t suggest correctness). (Khosa)
o Discrete and special administrative regime that the tribune has
special expertise in
 Example: labour relations arbitration (Dunsmuir)
o The nature of the question of law: if it is not “of central
importance to the legal system… and outside the… specialized area
of expertise” of the tribunal, it may attract the reasonableness SOR
if the above two factors are also in favour.
Home statutes: reasonableness is presumed to apply to questions
concerning the home statute (even for pure questions of law), though can
32
still be correctness if the question falls within one of the correctness
categories. (Alberta Teachers).
11.1.3 Full Analysis (Shortcut Not Applicable)




If the above shortcuts don’t solve the problem and determine the SOR,
consider the factors below.
The presence or absence of a privative clause
o An exclusive jurisdiction clause is like a weak privative clause. Still
deferential. (Khosa)
o If there is no privative clause, this has neutral effect (no SOR
suggested). (Khosa)
o An appeal provision is the opposite of a privative clause; suggests
high PF. (Pushpanathan)
The purpose of the tribunal as determined by interpretation of enabling
legislation
o NB this has changed from the old pragmatic and functional test (so
prior case law isn’t as useful)
o Broadly discretionary language in a regulatory context can be
construed as a purpose of “forming public policy”, which has very low
PF. (Pezzim)
 Example: the tribunal “may” do X or Y – discretionary. (Ryan)
o If the statute requires the tribunal to select from a range of remedial
choices, low PF. (Dr Q)
o Where the purpose is to protect the public, low PF. (Dr Q)
o Where the issues are policy-centric, low PF (Dr Q)
o Where the tribunal must consider “all factors it considers relevant”,
low PF (Dr Q)
o Where the tribunal must consider scientific or technical issues, low PF
(Dr Q)
o Example: immigration board hears a “wide range” of immigration
appeals. Low PF (Khosa)
o Example: CRTC has broad powers to regulate telecoms (statute uses
“any” a lot, privative clause, expertise). Purpose is broad-scale
economic regulation. (Bell Aliant)
o Example: self-regulating professional bodies (e.g. Law Societies) are
entitled to deference in their decisions. (Ryan)
The nature of the question at issue (this depends on the court’s
characterization):
o Does the statute use discretionary language? (Bell Aliant)
o Complexity of the regulatory scheme and the tribunal’s expertise are
relevant here. (Nolan)
o Specialized or economic sectors of activity have a low PF. (Nolan)
o Trick: if the tribunal deals with individual rights, but for whole
groups of people (e.g. pensions), then the importance gets reduced
(and, with expertise, suggests low PF). (Nolan)
33

o Example: question is whether H&C reasons warrant “special relief”
(i.e. not getting deported). This is dealing with a “discretionary
privilege” (to waive reqs). Low PF. (Kohsa)
o Example: question is whether an exemption from deportation should
be granted on the basis of H&C reasons. This is dealing with
“individual rights”. High PF. (Baker)
o Example: question regarding types of employee termination. Not of
central importance to the legal system. Low PF (Dunsmuir)
o Example: where a legal definition is given in economic terms, it’s
really more an economics question than a legal question (and so
expertise applies, low PF). (Pezzim)
The expertise of the tribunal (expertise => low PF)
o This is the most important factor. (Southam)
o Expertise is reinforced if you’re dealing with the tribunal’s home
statute. (Dunsmuir)
o Policy: jurisdiction shouldn’t be broad as in CUPE. Don’t overdo
correctness! (Dunsmuir)
o Example: labour arbitration board considering types of termination.
Expertise. (Dunsmuir)
o Example: immigration board considering if H&C factors apply.
Expertise. (Khosa)
o Example: a Law Society panel made up of lawyers has specialized
expertise, since judges aren’t practicing lawyers. Especially if there’s a
lay member on the panel. (Ryan)
11.2 Post-Dunsmuir Case Law


The SCC has unified the approach to substantive review: the same
framework for analysis (Dunsmuir) is applies to determine the SOR
regardless of whether the source of the court’s jurisdiction is an appeal
provision, common law judicial review powers, or judicial review under the
Federal Courts Act (Khosa).
Khosa (SCC 2009):
o Facts: Federal Court case. K is Indian immigrant found guilty of crim
neg causing death in a street racing incident, gets conditional
sentence. Immigration issued removal order to deport K; K appealed
to IAD on H&C grounds; IAD had discretionary power to stop removal
but did not find sufficient H&C grounds. Reasonableness SOR – IAD
decision not unreasonable, stands.
o Rationale for deference: multiple reasonable jurisdiction,
recognizing expertise of tribunals, etc.
o Extends Dunsmuir into the Federal Court realm: Dunsmuir applies to
FC cases.
o The FCA factors under 18.1(4) are grounds for review, not standards
of review.
34



o NB dispute here between majority and Rothstein, who says that
Dunsmuir should not apply to JR under the Federal Courts Act. The FCA
has no privative clause and thus there should be no deference (and
thus no reasonable SOR).
Smith (SCC 2011):
o Facts: Smith is farmer in Alberta. Pipeline company Alliance gets
approval to build a pipeline that will cross S’s land. Pipeline built; A
does not do reclamation work on the land as they agreed. S does the
work himself, sends the bill to A. A says the bill is too high, so S goes to
the board (NEB). S also went after costs for all of the court levels. SCC
held that the costs were reasonably incurred.
o Shift from talking about enabling/constituting statutes to home
statute.
o Categorization at work: SCC only had to apply one step to determine
SOR (reasonableness) because it was a home statute.
o In applying the reasonableness standard, Fish J. did a two-fold
approach: first looked at the quality of the reasons per se (rational,
coherence, logical, etc.) and then whether the outcome fell within the
range of possibly reasonable outcomes.
Alberta Teachers (SCC 2011):
o Facts: dispute about a Commissioner extending the 90 day time
period for an inquiry by 22 months, but after the 90 day period had
expired. Did the Commissioner lose jurisdiction due to failure to
extend the inquiry within the 90 day period?
o Confirms from Smith that interpretations of the home statute will
usually be on a reasonableness SOR, unless a correctness category
applies.
Newfoundland Nurses (SCC 2011):
o Facts: Dispute over arbitrator’s award involving the calculation of
vacation benefits on a CBA.
o Home statute – reasonableness SOR.
o Inadequate reasons alone should not be enough to overturn a decision
– they may still satisfy the Dunsmuir criteria as long as they permit the
reviewing court to understand the decision upon a contextual reading.
12 Pre-Dunsmuir Precedents and Development
12.1 Tracing the Case Law

CUPE (SCC 1979):
o Facts: dispute between union and NB Liquor Corp about
interpretation of Public Service Labour Relations Act, specifically
whether the Act allowed the NBLC to bring in managers to do the
work of the striking employees. The Act contained a privative clause.
SCC applied deference due to the ambiguous wording of the Act.
35





o Marked a move towards more judicial deference to the decisions of
expert tribunals:
 Expanded the meaning of “jurisdiction question”.
 Added the SOR of patent unreasonableness (PU).
 Later cases retreated back to the ROL approach (e.g.
Bibeault).
Bibeault (SCC 1988):
o Genesis of the pragmatic and functional approach” to determining
when “deference” (PU) should apply, i.e. how to determine whether a
question falls into the PU standard or a correctness standard when
reviewing a jurisdictional error.
o A jurisdictional error is the only type of error that allows a court to
intervene and give a remedy when there is a strong privative clause.
o Two categories of jurisdictional error:
 Category 1: Questions of law within the core jurisdiction of
the tribunal attract the PU standard.
 Category 2: Interpretation of legislative provisions that “limit”
or “confer” jurisdiction are not within the core jurisdiction of
the tribunal, so its interpretations are reviewed on the
correctness SOR.
Southam:
o Expansion of the circumstances in which deference will apply.
o Added the standard of “reasonableness simpliciter” (RS).
Pushpanathan (SCC 1998):
o Entrenchment of the “pragmatic and functional approach” to
determine where deference is warranted.
 3 SORs: correctness, PU, and RS; the SOR must be determined
first, before anything else.
 Factors to consider in selecting a SOR: (Bibeault)
 The wording of the enactment that confers
jurisdiction on the tribunal.
 The purpose of the statute that creates the tribunal and
the reason for the tribunal’s existence.
 The area of expertise of the tribunal members.
 The nature of the problem before the tribunal.
Toronto v. CUPE Local 79 (SCC 2003):
o Increasing complexity in SOR determination gave rise to calls for
simplication (LeBel J.’s “cri de couer” (see below)).
Dunsmuir (SCC 2008): reformed the P&F approach to include a number of
circumstances where the SOR did not need to be determined first, and
combined PU and RS into “reasonableness”.
12.2 Privative Clauses

Questions within the tribunal’s “core jurisdiction” are reviewable on the PU
SOR. (CUPE)
36


Example: interpreting ambiguity in the home statute is within that
jurisdiction. PU. (CUPE)
Interpretation of provisions that limit or confer jurisdiction are outside of
the tribunal’s core jurisdiction, and must be reviewed on the correctness
standard. (Bibeault)
12.3 Statutory Appeals



Cases where there is a right of appeal and no more expertise than the court:
correctness SOR. (Pezzim)
Cases where there is a privative clause, the matter is within the tribunal’s
specialized expertise, and no statutory right of appeal: PU SOR (lowest PF).
(Pezzim)
Despite appeal provisions, should apply the whole P&F approach to
determine the SOR. (Southam)
12.4 The Pragmatic and Functional Approach



No longer looking for “jurisdictional questions”: any question that satisfies
the P&F approach is jurisdictional question. It’s an outcome, not a
prerequisite. (Pushpanathan)
There is no spectrum of available SORs; just the 3 points on the spectrum.
(Ryan)
Framework: (Pushpanathan)
o Purpose: to determine legislative intent – was this question
intended to be left entirely to the discretion of the tribunal? If so,
apply deference. Otherwise, apply correctness.
o Application: apply test to question raised by the specific provision
that the tribunal’s interpreting.
o Factors: none of these are determinative:
 Privative clause [or an appeal provision]
 Expertise [relative expertise on the specific question at issue]
 This is the most important factor. Consider the
following:
o The composition of the tribunal
o Are the members appointed because of their
expertise?
o Does the composition make the decision-making
process very different from judicial decisionmaking?
 Having a layperson on the Board shifts
the analysis towards deference, since
they’re explicitly there for non-judicial
decision-making. (Ryan)
 NB this could go under expertise or under
purpose.
o Are the procedures court-like or non-court like?
37
What is the Board’s relative expertise in
regards to the particular question at issue?
 Example: no one is more expert than the
courts on human rights.
(Pushpanathan)
o Purpose of the Act as a whole and of the provision in particular [the
“polycentricity principle”]
 Deference is suggested if the tribunal is involved in:
 Interest-balancing between competing groups
 Policy creation
 Broad regulatory functions
 Example: evaluating refugee claims isn’t policy determination,
and interests aren’t balanced. The question is “does person X
have right Y?” This is a judicial purpose. (Pushpanathan)
o Nature of the problem: question of law? Question of fact? Question
of mixed law/fact?
 Pure questions of law lean towards the correctness SOR. If the
other factors don’t establish a different standard (or they’re
ambiguous), then correctness should be SOR. (Pushpanathan)
 Pure questions of fact are generally highly deferential.
 Mixed questions of fact and law require a balancing act: is it
more factual or legal? The more factual it is, the more that
deference is supported.
o Example: appeal provision + discretionary terms
o
12.5 Critiques

Lebel J’s cri de couer (Toronto v. CUPE): the process for determining the
SOR is too unwieldy.
o Why always apply the whole P&F approach? If it’s clearly an
important question to the legal system as a whole and it’s outside of
the broad’s expertise, why not just hold it to correctness and be done
with it?
o This is affecting the reputation of judicial review law in Canada.
There’s lots of confusion between PUR and RS, it’s ambiguous and it’s
exacerbating litigation.
13 Legislated Standard of Review (The ATA)


When a home statute incorporates either s.58 or s.59 of the ATA, the
standard of review for administrative decisions will be determined by the
statute, rather than by the common law, in some situations (or all situations
if both sections are incorporated).
Each of s.58 and 59 is a complete code – no gaps. (Lavender)
o But the court has not yet determined where questions of mixed fact
and law fall.
38

o NB these sections are built on top of a long history of common law
language, e.g. patent unreasonableness, so there will doubtless be
issues arising in disputes around that language.
Application of s.58 and 59 depend on whether the home statute contains a
privative clause.
13.1 Framework for Analysis
1. Check to see if the home statute incorporates either s.58 or 59 (or both).
a. If not, use the Dunsmuir analysis.
b. If so, use whichever provision applies below.
2. s.58 – the home statute has a privative clause:
a. The tribunal must be considered an expert tribunal in relation to
matters over which it has exclusive jurisdiction.
i. NB the language of jurisdiction recalls the history of common
law disputes over the issue of jurisdiction.
ii. Rather than using the pragmatic and functional approach to
determine the scope of exclusive jurisdiction (Brotherhood of
Carpenters and Joiners, 2006 BCCA), the court should focus on
the language of the privative clause and ask more generally
whether the clause covers the matters in dispute, i.e. more like
Dunsmuir’s true jurisdictional/vires reasoning. (Kerton,
2011 BCCA).
b. Correctness is the default standard. (2)(c)
c. If the question concerns a finding of fact or law or an exercise of
discretion (taking into account its exclusive jurisdiction), the decision
will stand unless patently unreasonable (2)(a), which means: (3)
i. Exercised arbitrarily or in bad faith,
ii. Exercised for an improper purpose,
iii. Based entirely or predominantly on irrelevant factors, or
iv. Fails to take statutory requirements into account.
d. If the question concerns natural justice or procedural fairness, the
SOR is whether, in all of the circumstances, acted fairly. (2)(b)
3. s.59 – the home statute has NO privative clause:
a. Correctness is the default standard. (1)
b. Reasonableness is the standard for: (1)
i. The exercise of discretion
ii. Findings of fact
iii. Application of natural justice and procedural fairness.
c. If the question concerns natural justice or procedural fairness, the
SOR is whether, in all of the circumstances, acted fairly. (5)
d. The court must not set aside findings of fact unless there is no
evidence to support the finding or the finding is unreasonable. (2)
e. Discretionary decisions must not be set aside unless patently
unreasonable, which means: (3)
i. Exercised arbitrarily or in bad faith,
39
ii. Exercised for an improper purpose,
iii. Based entirely or predominantly on irrelevant factors, or
iv. Fails to take statutory requirements into account.
14 Discretionary Decision Making and Judicial Review






The JR framework for discretion is the same as for non-discretionary
decision-making since Baker – the pragmatic and functional approach.
The SOR for discretionary decisions is reasonableness.
NB the older law is incorporated into the current approach to a significant
degree but there’s uncertainty about whether the reasonableness SOR can
apply in assessing the decision-makers determinations regarding what are
proper or improper purposes, and what are relevant factors in the exercise of
a discretion.
Consequences of the current approach to discretion:
o Significant room for courts to determine the scope of the
discretionary power (proper purpose, relevant/irrelevant factors,
etc.) on what appears to be a correctness SOR.
 i.e. if the decision maker gets the law wrong on these issues
(purpose, factors, etc.) the courts can intervene.
o Reviewing courts cannot re-weigh relevant factors once they have
been properly determined.
o Genuine exercise concerns – sub-delegation, dictation, fettering, bad
faith – will likely be incorporated within the reasonableness SOR.
Examples of statutory discretion:
o “The Minister may… if the Minister is of the opinion that…”
o “If the Minister is satisfied…”
o “The Minister may, in her or her discretion…”
o “The municipal council may make such bylaws as it deems
necessary…”
o “The Lieutenant-Governer may make regulations…”
Issues in judicial review of discretionary decisions to keep in mind:
o How can courts supervise exercises of discretion to foster the rule of
law without usurping the decision-maker’s function?
o How can courts avoid going too far into the world of politics when
reviewing policy-based discretionary decisions?
14.1 Development

Pre-Baker, discretionary decisions were reviewed on two bases: (Roncarelli)
o Genuine exercise: an infrequent and fact-based inquiry, including:
 Rule against sub-delegation: the empowered party must be
the one to use the power.
 Rule against abdication: no one can dictate the empowered
party’s exercises of power.
40
Rule against fettering: the empowered party must fully
exercise their discretion; they must not fetter the discretion
with blind adherence to an internal policy.
o Legality: proper authorization of the discretion. The courts would
ensure that:
 The power was exercised for proper purposes.
 The decision was not made on the basis of irrelevant or
extraneous considerations.
 All relevant considerations were taken into account (i.e. the
considerations required by the statute).
Example: Premier of Quebec get liquor board to revoke R’s license because R
is a Jehovah’s Witness and is acting as a bondsman for other JWs. Errors:
rule against abdication, improper purpose, irrelevant consideration, bad
faith, dictation. (Roncarelli)
Baker departed from the traditional approach:
o Rejected the dichotomy between judicial review of discretionary and
non-discretionary decisions (e.g. CUPE) in favour of the pragmatic
and functional approach.
o So discretion is in the same stream as other questions of review.
NB pre-Dunsmuir, both discretionary and non-discretionary decisions were
reviewed on the pragmatic and functional approach. (Baker)
o Today, it’s just a very deferential reasonableness standard.
Example: the decision in Baker was found to be unreasonable on the
reasonableness simpliciter standard. (Baker)





14.2 Reviewable Discretionary Decisions (Suresh)


Suresh uses the pragmatic and functional approach from Pushpanathan,
clarifying and narrowing Baker.
Decisions that can be reviewed:
o Decisions made arbitrarily or in bad faith.
o Decisions that cannot be supported on the evidence.
o The tribunal failed to consider the appropriate factors.
 The decision maker’s determination of the “relevant factors” is
reviewed on a correctness standard, while the decision
resulting from those factors is reviewed on a reasonableness
standard. (Lake)
 The court will generally not interfere with the decision maker’s
determination of the weight of the factors and their balance,
providing that the “correct” factors were used. (Suresh, Lake)
 NB Baker breaks this, but Suresh explains this away as a
“special situation”, claiming that Baker just found some
implicit primary factors that weren’t considered, and
denying that Baker had re-weighed the factors.
 Example: Street racing death case - immigration board
considered each factor required by statute. Court refused to re-
41




weigh; the board got the law right. No factors were missed, so
the decision is not reviewable. (Khosa)
 Example: statute requires Minister to appoint a person to
labour arbitration panel who he thinks is “qualified to act”.
Minister appoints retired judges who he finds to be qualified
simply by virtue of their experience as judges. Court finds that
the statute implicitly requires consideration of the person’s
qualifications, as well as the acceptability of the person to the
parties – decision was patently unreasonable because the
judges did not have the implicit qualifications, such as labour
experience and acceptability to the parties. (CUPE v. Ontario)
 NB this recalls Roncarelli and its narrowing of the
statute to find relevant factors.
 See Lake below.
o The decision maker got the law wrong. (Lake)
In applying the reasonable SOR to a discretionary decision, the court cannot
substitute its own view of the preferable outcome, nor can the court reweigh
the evidence. Instead, the court must ask if the outcome falls within a range
of possible acceptable outcomes that are defensible on the faces and the law.
(Khosa)
The traditional grounds for judicial review of administrative discretion
continues to operate within the modern framework; much still turns on the
nature of the discretionary power that has been accorded (including its
breadth and wording), and the nature of the decision maker who exercises
the power. (Khosa)
Discretion cannot be arbitrary. (Montreal Port Authority)
Example: (Montreal Port Authority)
o Montreal Port Authority (MPA) and CBC, federal Crown corporations,
in dispute with Montreal over the payment of PILTs (payments in lieu
of taxes); MPA and CBC refused to pay, argue that they had discretion
to determine which tax rate to pay pursuant to the PILT Act. SCC
agrees that there is discretion and the SOR is reasonableness.
o Issue: did MPA and CBC interpret and apply the PILT rules properly?
o Holding: MPA/CBC decisions were unreasonable and set aside –
they got the law wrong in the eyes of the court. The corps had not
properly understood the scope of their discretionary power and had
exercised their discretion in a way that was contrary to the objects
and purpose of the statute.
o NOTE: the SCC essentially applied a correctness SOR re: the proper
interpretation of the Act and hence the scope of the statutory
discretion.
42
14.2.1 The Lake Approach to Relevant Factors



The court will generally not interfere with the decision maker’s
determination of the weight of the factors and their balance, providing that
the “correct” factors were used..
The Minister is “more expert than the court” in taking into account the
relevant factors.
o NB particularly in Lake, which dealt with extradition, relationships
with foreign states, and treaty fulfillment.
Discretionary decisions should be given a wide breadth, especially when
they are fact-driven.
14.3 Unreviewable Discretionary Decisions

Exercise of Crown prerogative for the purpose of national security. (CCSU)
o But NB the Crown prerogative to advise the Queen on conferral of
honours was later found to be reviewable. (Black)
o The source of the power (legislative vs. prerogative) doesn’t matter,
the subject matter does. (Black)
o Security/war-related subjects are not reviewable. Individual-related
exercises are.