File - Indigenous Legal Traditions

Judicial Review of

Administrative Action

(Transnational

Perspectives)

Professor Sujith Xavier

Outline

First Hour:

Short Introduction & Class exercise

Approach to JR

Overview of the Syllabus and other admin details

Second Hour

Introductory Lecture

Group Exercise

Pick a partner- someone you DON’T know

Ask your partner the following three questions

What did you do before law school (and find out what they studied)?

Why did you decide to go to law school?

Name a random fact about yourself?

25 minutes

Group Exercise

Present your partner to us

First introduce your partner (name, year, town/country)

Summarizes their responses to the three questions

Introduction

Overview of the Syllabus

Teaching evaluation

10% Participation (SHOWING UP for lectures does not

= 10%)

15% Reflection piece

75% Take Home


Materials

Van Harten, Heckman, Mullan: “Administrative Law:

Cases and Materials”, 6 th Edition (Toronto: Emond

Montgomery, 2010) [VHM]

Colleen Flood and Lorne Sossin (eds.), “Administrative

Law in Context” (Toronto: Emond Montgomery, 2013)

[CFLS]


Email Communication

What is not appropriate

No title

“So I need more feedback re. reflection paper. When can we met? Thanks”.

What is appropriate:

Title: Reflection Paper Feedback

“Dear Professor Xavier, I would like to meet with you regarding my reflection paper and discuss my grade.

Thanks, Signed


Late Policy

“Law students, like lawyers, must arrive on time. The course Professor will start the lecture at 10 a.m. Arriving late is extremely disruptive to both students and the course Professor. If a student is unable to arrive on time, please inform the course Professor prior to the lecture”.

Course Outline

5 Sections

Introduction to administrative law

Procedural fairness & impartial and independent decision makers

Substantive standards of review

Remedies

International, comparative and transnational administrative law

Course Outline

Each section deals with a specific aspect of Admin Law

Remedies section

Final Section, 2 lectures are on International, transnational and comparative perspectives

Questions?

Now is the time to ask…

Video

Chimamanda Ngozi Adichie

Author (fiction) of Purple Hibiscus (2003), Half of a

Yellow Sun (2006), The Thing around Your Neck (2009) and Americanah (2013)

Commonwealth Lecture (2012)

TED Talks, “The Danger of a Single Story” http://www.ted.com/talks/chimamanda_adichie_the_ danger_of_a_single_story.html

1 st Story: The Nation State

The Emergence of the Nation State

Treaty of Westphalia (1648) or before?

Sovereign Equality

Economic Growth

Self-Interested Nature of the Sovereign

Colonialism and Imperialism

1 st Story: Cont’d

Discovery of the Americas (OR “Re-Discovery”?)

Two revolutions- Greater “Rights” (for some?)

Nation State: What does it mean?

Political Science: a nation is any group of people aspiring to a common political state-like organization

International law: Montevideo Convention on the Rights

and Duties of States (1933)








2 nd Story: Admin Law

Responsible Gov’t (Canadian Constitution1867)

Effective Control of Territory and Population

Debate about the creation of the first Admin Agency in 1850 (Railway)

First Admin Agency- Board of Railway Commissioners

(1902)

2 nd Story: Admin Law Cont’d

Adjudication of Admin Agency Decision

Courts Policing the Boundaries of Agencies

Expansion of the Welfare State

WWI

Inter-War Period

WWII and Now…


NB. Two Points

1: Why the Expansion?

2: Reaction to the Expansion?


1: Why the Expansion (from govt’s perspective)?

3 Reasons

Depoliticize Decisions

Specialization and Technical or Subject Matter Expertise

KEEP OUT Courts


2: Reaction to the Expansion (from courts and legal scholars)?

Because of Formalism (4)

Law composed of scientific legal rules that can be discovered by a careful study and application of legal principles

Discern Rules from Past Jurisprudence

Interpretation by Judges

Judges ignore Policy Implication


2: Reaction to the Expansion Cont’d

Ultra Vires

Concern over the Size of the Public Sector

3 rd Story: Globalization (s)

Globalization Defined (dense…)

Giddens: “[N]ations have lost their sovereignty they once had and politicians have lost most of their capability to influence events.”

Held and McGrew: “simply put, [globalization] denotes the expanding scale, growing magnitude, speeding up and deepening impact of interregional flows and patterns of social interaction […]”


Cont’d

Steger: A set of social processes that transforms current social conditions of “weakening nationality into one of globality […]” de Souza Santos (Santos) : “the process of globalization is … selective, uneven and fraught with tensions and contradictions. But it is not anarchic.”

Santos Two modes of Globalization

1 st Mode: globalised localism and localized globalism


Cont’d

Santos modes of Globalization Cont’d

2 nd Mode: insurgent cosmopolitanism

Sassen: Rejects the idea that the Nation States are losing sovereignty


Cont’d

Sassen:

“[t]he heart of this negotiation is the development inside national states -through legislative acts, court rulings, executive orders- of the mechanisms necessary for the reconstitution of certain components of national capital into global capital, and necessary to accommodate new types of rights/entitlements for foreign capital in what are still national territories in principle under the exclusive authority of the states”

Conclusion

Wednesday:

Some aspects of ROL; the different players

If time permitting; in depth focus on a case

Start remedies

Judicial Review of

Administrative Action

(Transnational

Perspectives)

Professor Sujith Xavier

Introduction

Overview:

Exams:

Video- Chimamanda Ngozi Adichie

Three Stories

State (International Law/History)

Administrative Law (Politics/Institutions/Law)

Globalisation (Sociology/International Relations)

Different Institutions in the Canadian Admin State

Take Home Exam

DON’T PANIC!

Two options

Option 1- Dec 9-12 (must pick up and drop off)

Option 2- Dec 19-22 (released on CLEW/Uploaded on

CLEW)

Undertaking- SIGNED and Witnessed: MUST Inform

THUY in writing (email before Dec 01, 2014)

If you have concerns re. two options, come see me!

We will “make it work”.

Video

Chimamanda Ngozi Adichie

Author (fiction) of Purple Hibiscus (2003), Half of a

Yellow Sun (2006), The Thing around Your Neck (2009) and Americanah (2013)

Commonwealth Lecture (2012)

TED Talks, “The Danger of a Single Story” http://www.ted.com/talks/chimamanda_adichie_the_ danger_of_a_single_story.html

1 st Story: The Nation State

The Emergence of the Nation State

Treaty of Westphalia (1648) or before?

Sovereign Equality

Economic Growth

Self-Interested Nature of the Sovereign

Colonialism and Imperialism


Creation of the Sovereign- Treaty of Westphalia

Discovery of the Americas OR “Re-Discovery”?


State: What does it mean?









International law: Montevideo Convention on the Rights and

Duties of States (1933)

Four Elements- Territory; Population; Gov’t & Enter into relationships with other states

2 nd Story: Admin Law

Responsible Gov’t (Canadian Constitution1867 ACT)

Canadian Gov’t’s Effective Control of Territory and

Population

Debate about the creation of the first Admin Agency in 1850 (Railway)

First Admin Agency- Board of Railway Commissioners

(1902)


Adjudication of Admin Agency Decision

Courts Policing the Boundaries of Agencies

Expansion of the Welfare State

WWI

Inter-War Period

WWII and Now…


NB. Two Points

1: Why the Expansion?

2: Reaction to the Expansion?


1: Why the Expansion (from govt’s perspective)?

3 Reasons

Depoliticize Decisions

Specialization and Technical or Subject Matter Expertise

KEEP OUT Courts


2: Reaction to the Expansion (from courts and legal scholars)?

Formalism (4)

Law composed of scientific legal rules that can be discovered by a careful study and application of legal principles

Discern Rules from Past Jurisprudence

Interpretation by Judges

Judges ignore Policy Implication


2: Reaction to the Expansion Cont’d

Ultra Vires

Concern over the Size of the Public Sector


Globalization Defined (dense…)

Giddens: “[N]ations have lost their sovereignty they once had and politicians have lost most of their capability to influence events.”

Held and McGrew: “simply put, [globalization] denotes the expanding scale, growing magnitude, speeding up and deepening impact of interregional flows and patterns of social interaction […]”


Cont’d

Steger: A set of social processes that transforms current social conditions of “weakening nationality into one of globality […]” de Souza Santos (Santos) : “the process of globalization is … selective, uneven and fraught with tensions and contradictions. But it is not anarchic.”

Santos Two modes of Globalization

1 st Mode: globalised localism and localized globalism


Cont’d

Santos modes of Globalization Cont’d

2 nd Mode: insurgent cosmopolitanism

Sassen: Rejects the idea that the Nation States are losing sovereignty

Institutions of Admin Law

Back to Constitutional Law

Legislatures (Feds/Provinces)

Cabinet & Ministers

Municipalities

Private Bodies

Independent Administrative Agencies


Cont’d

AND… Courts!

Similarities

Independence

Stakeholder Participation

“[S]harp end of the administrative process” [VHM]

Specialized


Cont’d

Differences

Formal vs. informal

Caseload

Conclusion

Wednesday:

Some aspects of ROL; the different players

If time permitting; in depth focus on a case

Start remedies

Judicial Review (TR)

Professor Xavier (Lecture 3)

Class Overview

Recap: State; Admin Law & Globalisation

Institutional Players

Rule of Law

Focus on Roncarelli v. Duplessis, [1959] S.C.R. 121

Courts Jurisdiction

Recap

Connection between Canadian Admin and

Globalisation?

CRTC: http://www.crtc.gc.ca/eng/home-accueil.htm

HSARB: http://www.hsarb.on.ca/scripts/english/default.asp

Formalism? [Flood and Sossin, pps 11-16]

Introductory Remarks

The subject matter of administrative law is the law governing the implementation of public programs;

Who creates these programs?

Old Model vs. New Model

Canadian Admin law is about:

Fairness

Reasonable Decision & Correct Interpretation


Back to Constitutional Law

Legislatures (Feds/Provinces)

Cabinet & Ministers http://www.tatc.gc.ca/index.php?lang=eng

Municipalities

Private Bodies

Independent Administrative Agencies


Cont’d

AND… Courts!

Similarities

Independence

Stakeholder Participation

“[S]harp end of the administrative process” [VHM]

Specialized


Cont’d

Differences

Formal vs. informal

Caseload

Rule of Law (ROL)

Chief Justice McLachlin:

“Under this traditional model, the executive played a relatively modest role. Its functions were exercised by Ministers and their immediate delegates. But this simple model has increasingly given way to a more complex form of governance. In this new model, which began to emerge over a century ago, the legislatures did not content themselves with passing laws that told people what they must do or not do. Instead, governments began setting up administrative frameworks designed to govern a particular area of human activity. The result was the birth of the modern regulatory state”

Remarks of the Right Honourable Beverley McLachlin, P.C. Chief

Justice of Canada 6th Annual Conference of the Council of

Canadian Administrative Tribunals Toronto, Ontario May 27, 2013

Rule of Law (ROL)

Operates in the unlit corners of administrative space

Dicey:

“means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government”

Law is supreme

Everyone is subject to Law

Rule of Law (ROL)

Chief Justice McLachlin:

“Two important principles emerge from Dicey's vision of the rule of law.

First, "regular law" is supreme and individuals should not be subject to

"arbitrary power".

Second, the state's officials are as much subject to the "ordinary" law of the land as other citizens.

As guardians of the rule of law, it is therefore incumbent on the courts to ensure that any body relying on power delegated by the legislature abide by the terms and conditions on which that power was granted. In other words, it is the courts' task to ensure that administrative tribunals exercised their power in a manner consistent with its delegated mandated” [6th Annual Conference of the Council of Canadian Administrative Tribunals Toronto]

ROL Cont’d

Attack on ROL

Translate policy concerns in to law questions

Specialization

Access to justice

Spread of ROL globally

As part of the democratization trend

ROL Cont’d

Turn to Canadian jurisprudence

Bedrock of our Constitution

Preamble, Constitution Act 1982: “Canada is founded upon principles that recognize the supremacy of God and the rule of law”

Reference re Manitoba Language Rights [1992] 1 S.C.R. 212:

“The rule of law, a fundamental principle of our

Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”. [Para 59]

ROL Cont’d

Reference re Secession of Quebec, [1998] 2 S.C.R. 217

“At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.” [Para 70].

ROL Cont’d

Roncarelli v. Duplessis

Facts:

R successful restaurant owner

Practicing Jehovah's Witness (JW)

Violent tensions between Catholics and JW

Number of JW arrests

R bailed JWs

Chief Prosecutor complains to Duplessis

ROL Cont’d

Duplessis contacts Archambault, Chairman of the

Quebec Liquor Commission

R liquor license revoked & has to sell

R brings claim against Duplessis for 118K

SCC (6 to 3) in favour of R

ROL Cont’d

So where do we start?

An Act Respecting Alcoholic Liquor

Ss. 5, 9 34 & 35

“The question of whether or not his acts were done by him in the exercise of his functions is not to be determined on the basis of his own appreciation of those functions, but must be determined according to law.” [near fn. 19]

ROL Cont’d

No absolute and untrammelled discretion

Disintegration of the rule of law as a fundamental postulate of our constitutional structure

ROL Cont’d

SCC’s central principles of ROL

Law is supreme over private individuals and government officials (i.e. one law for all)

Government officials must exercise their power nonarbitrarily and according to law

Requires the creation and maintenance of a positive order of laws

Requires the relationship between the State and the individual to be regulated by law

Courts Supervisory Powers

There are generally three sources of review power

Original jurisdiction;

Statutory right of appeal;

Inherent judicial review jurisdiction.

Structure of our Courts

Conclusion

Three sections


ROL

Remedies

Next week: More on remedies



Introduction

Class Overview

Speluncean Explorers- legal theory

Introduction to Procedural Fairness

Natural Justice to Fairness (Two Strands)

Sources of the Duty of Fairness

Common Law Duty of Fairness

Historical Evolution

Cooper

Ridge v. Baldwin

Nicholson

Is Legal Theory Relevant?

Lon Fuller, “The Case of the Speluncean Explorers” (1949) 62:4

Harvard Law Review 616

Naomi Cahn et all, “The Case of the Speluncean Explorers:

Contemporary proceedings” (1993) 61:6 George Washington Law

Review 1754

JR is about judging

Judging is about interpretation of specific words & concepts

(i.e judicial & quasi-judicial vs. administrative decisions)

Objective and neutral possible?

Speluncean Explorers

Justice Cahn on neutral judging:

“When judges seek to apply one set of principles to decide cases or to divine legislative intent, this has traditionally meant objective, rational standards that are capable of general application, regardless of the particular circumstances of the case and the individuals who have constructed the case” [at 1758].

Formalism?

For Justice Cahn, this is simply NOT TRUE (why outsider scholarship)


Justice Cahn on neutral judging:

“These particular neutral approaches are designed to ignore context, not to examine relationships and dependence (one can, of course, imagine other

“neutral” approaches that focus on different issues but still claim the title of neutrality). Instead, we must realize that our acts of judging depend on context: the context in which the legislation was enacted, the context of the litigant, and the context in which we perform the acts of interpretation” [p. 1758]


Other Judges?

Justices Coombs and Stein (Feminist perspectives)

Justices Calmore and Greene (Critical Race Theory)

Justice Miller (Law and Economics)

Justice Paul (Corporate Power)

Contrast with real cases

Justice HBD in Baker

Justice Lebel in CUPE 2003 etc

Introduction Fairness

Fairness is concerned with the manner in which these decisions makers make their decision

Duty of Fairness- “Greatest Achievement of the

Common Law”

Protection of Property Rights?

Individuals are treated fairly in the process

Protection contingent on the nature of the dispute

(Judicial or Quasi-Judicial vs. Admin)?

Introduction

If Judicial or Quasi- Judicial  Principles of Natural

Justice- BUT this changes with Nicholson

Principles of Natural Justice:

Duty to hear the other side of a dispute before rendering a judgment &

Decision maker cannot be judge in his own cause.

Introduction

Procedural Rights (Two Themes)

Threshold question

Procedural guarantees once threshold is breached

Baker (the go to case)

Sources of Procedural Fairness

Enabling Statute;

Subordinate legislation;

Policies and guidelines;

Procedural Statues (Ontario Statutory Powers Procedure

Act) ;


Procedural Statues

Ontario Statutory Powers Procedure Act R.S.O. 1990,

CHAPTER S.22

Application of Act

3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the

Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.

Procedural Statues

Where Act does not apply

(2) This Act does not apply to a proceeding,

(a) before the Assembly or any committee of the Assembly; (b) in or before,

(i) the Court of Appeal, (ii) the Superior Court of Justice, iii) the Ontario Court of

Justice, (iv) the Family Court of the Superior Court of Justice, (v) the Small Claims

Court, or (vi) a justice of the peace;

(c) to which the Rules of Civil Procedure apply; (d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act applies; (e) at a coroner’s inquest; (f) of a commission appointed under the Public Inquiries Act, 2009; (g) of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or (h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned.

Sources of Procedural Fairness


From principles of natural justice i.e. (1) Must hear the other side &

(2) Cannot be a judge in their own case

Cases for today:

Cooper v. Board of Works for Wandsworth District

(1863), 143 ER 414

Nicholson v. Haldimand-Norfolk Regional Police

Commissioners, [1979] 1 S.C.R. 311

Common Law Duty of

Procedural Fairness

Cooper

Chief Justice Earle:

“[…] but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purpose of the statute by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss”.

Common Law Duty of

Procedural Fairness

Byles & Keating JJ:

Was it a judicial decision or quasi-judicial decision?

Relied on the powers of the Board to: determine the offence, decide on the punishment as well the remedy

(i.e. judicial or quasi-judicial)

Formalistic distinctions between Admin decisions and

Judicial/Quasi-Judicial

Transnational/historical implications?

Common Law Duty of

Procedural Fairness

Cooper sets the stage

Admin decision  No Natural Justice

Judicial/Quasi-Judicial  Natural justice

Common Law Duty of

Procedural Fairness

Ridge v. Baldwin (1964)

Chief Constable (corruption allegations)

Pension (Property rights?)

House of Lords affords procedural rights protection

“The Times They Are A-Changin” (BD)

Context?

Common Law Duty of

Procedural Fairness

Nicholson v. Haldimand-Norfolk (Regional) Police

Commissioners [1979] 1 SCR 311 (Ont.)

Summary dismissal of a probationary police constable

15 months into his term

Not given any reason for dismissal;

Not given notice &

Not allowed to make any representations prior to his dismissal

Common Law Duty of

Procedural Fairness

Nicholson Cont’d

N. Counsel argued Fairness

Hughes J. (Divisional Court):

“Can the services of a police constable be dispensed with within eighteen months of his becoming a constable, without observance by the authority discharging him of the requirements of natural justice, including a hearing?”

“[…] but this Court should not allow them to proceed as if the principles of natural justice did not exist

Common Law Duty of

Procedural Fairness


Arnup J (COA):

“[…] the board may act as it was entitled to act at common law, i.e. without the necessity of prior notice of allegations or of a hearing and, a fortiori, with no right of appeal by the constable”.

Common Law Duty of

Procedural Fairness


Chief Justice Laskin (SCC):

“In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily”.

Common Law Duty of

Procedural Fairness


Laskin CJ:

From Natural Justice  Procedural Fairness

Common Law Duty of

Procedural Fairness

Conclusion:

Duty of Fairness:

Promotes sound public administration

Accountability of public-decision makers by ensuring that decisions are made with input from those affected by them;

Well-informed decisions to be better decisions &

Decision made pursuant to transparent participatory process promote the importance of the rule of law values.

Next class

Continue with Procedural fairness

Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R.

653

Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643

Procedural Fairness: Limits (Threshold)

VHM Chapter 3 (pp. 109-131)

Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735

Homex Realty v. Wyoming, [1980] 2 S.C.R. 1011

Canadian Association of Regulated Importers v. Canada (Attorney

General), [1993] 3 FC 199


Professor Xavier (Lecture 4 (class 5))

Class Overview

KLP/Recap

When is fairness required?

Cardinal v. Director of Kent Institution [1985] 2 SCR 643

Knight v. Indian Head School Division No. 19, [1990] 1

S.C.R. 653

Constitutional Protection of PF?

S.7

And what are the limits of the Duty of Fairness?

Blencoe v. British Columbia (Human Rights Commission),

[2000] 2 S.C.R. 307

KLP/Recap

3 points of confusion

Cultural Relativism

How to fix the problems of PF

Judicial & Quasi- Judicial vs. Administrative

KLP/Recap

Privileging perspective(s)?

Judicial & Quasi- Judicial vs. Administrative

Roncarelli v. Duplessis, [1959] S.C.R. 121

A tribunal that dispenses justice, i.e. every judicial tribunal, is concerned with legal rights and liabilities, which means rights and liabilities conferred or imposed by 'law'; and 'law' means statute or long-settled principles.

These legal rights and liabilities are treated by a judicial tribunal as pre-existing; such a tribunal professes merely to ascertain and give effect to them; it investigates the facts by hearing 'evidence'

(as tested by long-settled rules), and it investigates the law by consulting precedents. Rights or liabilities so ascertained cannot, in theory, be refused recognition and enforcement, and no judicial tribunal claims the power of refusal.

KLP/Recap

Roncarelli v. Duplessis, [1959] S.C.R. 121

In contrast, non-judicial tribunals of the type called

'administrative' have invariably based their decisions and orders, not on legal rights and liabilities, but on policy and expediency”. [Justice Rand]

PROCEDURAL FAIRNESS

Audi Alteram Partem

(to hear the other side)

 Hearing or Participatory

Rights (before, during, after)

Sources?

Common Law

1. Threshold?

2. Limits?

3. Content?

Procedural Fairness

When is fairness required?

Decisions of public authorities- for example executive actors, tribunals, and officials acting pursuant to statutory authority that affect an individual’s “rights, privileges or interests”

When is Fairness Required?

Cardinal v. Director of Kent Institution [1985] 2 SCR 643

Justice Le Dain:

“This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual” (para. 14)


Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R.

653

L'Heureux-Dubé:

(1) Could the respondent be fired only for cause under the terms of The Education Act or his employment contract?

(2) In any event, was the respondent entitled to procedural fairness?

(3) If so, what is the scope of the duty to act fairly in the context of an employee-employer relationship?

(4) Given there was a duty to act fairly, was it complied with?


L'Heureux-Dubé:

“The existence of a general duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights.


(i) the nature of the decision to be made by the administrative body

No distinctions between judicial & quasi-judicial vs admin

Finality of the decision

Refers to exceptions


(ii) the relationship existing between that body and the individual

Employment (case at bar)

Generally look at the type of agency, role and function,

& statutory scheme


(iii) the effect of that decision on the individual's rights

HDB: “There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. Various courts have recognized that the loss of employment against the office holder's will is a significant decision that could justify imposing a duty to act fairly on the administrative decision-making body” [p. 677]


Constitutional Protection of Procedural Rights:

S. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

For more details: Reference BC Motors Vehicle Act

Limits of Fairness

Duty Applies to Decisions;

The Duty of Fairness does not apply to legislative decisions

Cabinet & Ministerial Decisions

Subordinate Legislation

Policy Decision


Duty Applies to Decisions

Ontario Statutory Powers Procedure Act, s. 3 (2): (g)

“one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make”

Blencoe v. British Columbia (Human Rights Commission),

[2000] 2 S.C.R. 307

Duty Applies to Decisions

Blencoe

Bastarache J:

“I would therefore adopt the finding of Lowry J. that the delay in this case is not such that it would necessarily result in a hearing that lacks the essential elements of fairness. The respondent’s right to a fair hearing has not been jeopardized [para 104].


The Duty of Fairness does not apply to legislative decisions:

Duty of fairness does not apply to legislative decisions or functions

Separation of Powers


Re: Resolution to amend the Constitution [1981] 1 SCR 753

“How Houses of Parliament proceed, how a provincial legislative assembly proceeds is in either case a matter of selfdefinition, subject to any overriding constitutional or selfimposed statutory or indoor prescription. It is unnecessary here to embark on any historical review of the "court" aspect of Parliament and the immunity of its procedures from judicial review. Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment). It would be incompatible with the self-regulating - "inherent" is as apt a word-authority of Houses of Parliament to deny their capacity to pass any kind of resolution”. [At p. 785].


Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR

525

“The doctrine is part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can only create a right to make representations or to be consulted. Moreover, the doctrine does not apply to the legislative process. The government, which is an integral part of this process, is thus not constrained by the doctrine from introducing a bill to Parliament. A restraint on the executive in the introduction of legislation would place a fetter on the sovereignty of Parliament itself”.


Wells v. Newfoundland [1999] 3 SCR 199

“The decision to restructure the Board was deliberated and enacted by the elected legislature of the Province of

Newfoundland. This is fatal to the respondent’s argument on bad faith, as legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid lawmaking, but within their constitutional boundaries, they can do as they see fit.” [Para 59]


What about Cabinet & Ministerial Decisions?

Att. Gen. of Can. v. Inuit Tapirisat et al. [1980] 2 SCR

735

Estey J: “The substance of the question before this

Court in this appeal is whether there is a duty to observe natural justice in, or at least a duty of fairness incumbent on, the Governor in Council in dealing with parties such as the respondents upon their submission of a petition under s. 64(1) of the National

Transportation Act?


Estey J:

“The fact that the function has been assigned as here to a tier of agencies (the CRTC in the first instance and the Governor in Council in the second) does not, in my view, alter the political science pathology of the case. In such a circumstance the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate”.


Subordinate Legislation?

Homex Realty v. Wyoming, [1980] 2 S.C.R. 1011

Policy Decisions?

Martineau v. Matsqui Disciplinary Bd. [1980] 1 SCR 602

“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.” [p.629]

Imperial Oil Ltd. v. Quebec (Minister of the Environment) [2003] 2

SCR 624

Conclusion

Next Class, continue with limits &

Contents



Overview

Continue PF Limits

Duty Applies to Decisions:

Blencoe;

Duty does not apply to legislative process/decisions

Re: Resolution to amend the Constitution; Reference Re Canada

Assistance Plan (B.C.); Wells v. Newfoundland

Legislative process/decisions (What does it mean?)

Ministerial Decisions

Subordinate Legislation

Policy Decisions

Contents of the Duty of Fairness

Baker

Duty of Fairness- Limits

Applies to Decisions

Blencoe v. BC (Human rights commission) [2000] 2 SCR 307 (BC)

Bastarache J:

“With respect to the alleged failure to disclose information to the respondent, this is not, in my opinion, a case in which the unfairness is so obvious that there would be a denial of natural justice, or in which there was an abuse of process such that it would be inappropriate to put the respondent through hearings before the Tribunal. I would therefore adopt the finding of

Lowry J. that the delay in this case is not such that it would necessarily result in a hearing that lacks the essential elements of fairness. The respondent’s right to a fair hearing has not been jeopardized” (para. 104)


Wells v. Newfoundland [1999] 3 SCR 199

“The decision to restructure the Board was deliberated and enacted by the elected legislature of the Province of

Newfoundland. This is fatal to the respondent’s argument on bad faith, as legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid lawmaking, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate” [para 59].


Are cabinet and Ministerial Decisions covered by the legislative exemption?

Att. Gen. of Can. v. Inuit Tapirisat et al. [1980] 2 SCR 735

“The fact that the function has been assigned as here to a tier of agencies (the CRTC in the first instance and the Governor in Council in the second) does not, in my view, alter the political science pathology of the case. In such a circumstance the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate” [Below FN 14].


Subordinate Legislation?

Homex Realty and Development Co. v Wyoming

Policy Decisions?

Martineau v. Matsqui Disciplinary Bd. 1980] 1 SCR 602

“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision”.

[p. 629]


Canadian Association of Regulated Importers [1993] 3 F.C. 199

Justice Reed (Federal Court)

1. [T]raditionally, a decision has been classified as being of a legislative nature if it sets out general rules which apply to a large number of persons. This is counterpoised to a decision respecting one specific individual. In the present case, the decision which is challenged sets down rules which govern a very limited segment of the populace. I am not convinced that even under the pre-Nicholson jurisprudence, where classification according to function was a primary consideration, that the present decision would have been characterized as being legislative in nature.


Canadian Association of Regulated Importers [1993] 3 F.C. 199

Reed J. (Federal Court)

2- I am not convinced that classifying a decision as being of a

"policy" nature necessarily immunizes it from judicial review; see, for example, Regina v. Liverpool Corpn., supra. For the same reasons that I do not think classifying the decision as

"legislative" is useful in the present case, equally I do not think that classifying a decision as a policy decision is helpful either.

What is important is an assessment of the effects which actually follow from the decision.


Canadian Association of Regulated Importers (FCOA)

Linden J: I can see no reason to differentiate the situation where, as here, it is a Minister rather than a board that is establishing the quota. Some may be damaged while others may gain by such a quota, but the exercise is essentially a legislative or policy matter, with which Courts do not normally interfere. Any remedy that may be available would be political, not legal. It might have been a considerate thing for the Minister to give the respondents notice and an opportunity to be heard, but he was not required to do so.


The duty of Fairness does not apply to public office holders employed under contract;

The duty of procedural fairness can be suspended or abridged in the event of an emergency


Desire to make the duty more flexible and contentspecific (Nicholson)

Generally fairness requires compliance with some but

not all principles of natural justice

Fairness is a minimum duty that must be met- a floor for procedural protection rather than a ceiling

Courts ask: whether it was adequate, not ideal

Contents of the Duty of

Fairness

Baker v. Canada (Minister of Citizenship and Immigration)

[1999] 2 SCR 817

Arrived in Canada in 1981;

Four children who were Canadian-born, but she also had 4 older children who lived in Jamaica

Order to be deported in December 1992

She applied for Permanent Residency while in Canada

(Minister’s discretion under Immigration Act, R.S.C.,

1985 s. 114)


Immigration Officer G. Lorenz's notes:

“[…] is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in

Jamaica- HAS A TOTAL OF EIGHT CHILDREN

Says only two children are in her "direct custody". (No info on who has ghe [sic] other two).

There is nothing for her in Jamaica - hasn't been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can't take them with her and can't leave them with anyone here. Says has suffered from a mental disorder since '81 - is now an outpatient and is improving. If sent back will have a relapse.



Letter from Children's Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer if returned -

Letter of Aug. '93 from psychiatrist from Ont. Govm't. Says

PC had post-partum psychosis and had a brief episode of psychosis in Jam. when was 25 yrs. old. Is now an outpatient and is doing relatively well -deportation would be an extremely stressful experience”.

Baker v. Canada


This case is a catastrophy [sic]. It is also an indictment of our

"system" that the client came as a visitor in Aug. '81, was not ordered deported until Dec. '92 and in APRIL '94 IS STILL

HERE!

The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR

CHILDREN IN JAMAICA AND ANOTHER FOUR BORN

HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-

BORN CHILDREN. Do we let her stay because of that?”

Baker v. Canada


“I am of the opinion that Canada can no longer afford this kind of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region.

There is also a potential for violence - see charge of

"assault with a weapon" [Capitalization in original.]”

“Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc's mental condition would suffer a setback if she is deported etc”.

Baker v. Canada

L’Heureux-Dube J:

“[t]he purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”. (para 22)

Baker v. Canada

L’Heureux-Dube J:

References back to Knight v. Indian Head School Division:

“It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by de

Smith (Judicial Review of Administrative Action (4th ed. 1980), at p. 240), the aim is not to create "procedural perfection" but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome”. (para 62)

Baker v. Canada

L’Heureux-Dube J:

5 factors that are relevant to determining the content of the duty of fairness in particular circumstances:

Nature of the decision being made and the process followed in making it;

Nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

Importance of the decision to the individuals or individuals affected;

Legitimate expectation of the person challenging the decision

&;

Choices of procedure made by the agency itself

Baker v. Canada

Not meant to be exhaustive;

All factors are equal in importance;

Court will make an overall assessment based on the circumstances.

Baker v. Canada

Factor 1: Nature of the decision being made and the process followed in making it

“One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p.

683, it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness”. (para 23)

Baker v. Canada

Factor 2: The nature of the statutory scheme and the terms of the statute pursuant to which the body operates

Factor 3: the importance of the decision to the individuals or individuals affected

Kane v. Board of Governor (Dickson J): “a high standard of justice is required when the right to continue in one’s profession or employment is at stake”

Baker v. Canada

Factor 4: Legitimate expectation of the person challenging the decision

Legitimate expectation of procedural requirements may arise out of conduct such as representations, promises or undertakings or past practice or current policy of a decision-maker.

Canada (AG) v. Mavi [2011] 2 S.C.R. 504

“Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite”. (para 68)

Read Mt. Sinai & CAF

Baker v. Canada

Factor 5 Choices of procedure made by the agency itself

L’Heureux-Dube J:

“The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints”.

Conclusion

Finished up Limits;

Started Contents: Baker

Next time, please read CAF, Mavi and Mt Sinai

Keep reading the materials (NO matter what happens!)

Thus far (Sep 29 2014), we need to reschedule one (1) lecture.



Procedural Fairness: Overview

Recap: Threshold; Limits

Contents of Procedural Fairness

Baker Factors

Contents

Notice

Timeliness & Delay

Disclosure

Oral Hearings

Right to Call Evidence and Witnesses

The Duty to Give Reasons (Wednesday)

Procedural Fairness: Contents

Baker HDB:

“[…] the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”.

5 Factors


Recap:

Baker Factors (summary):

The nature of the decision being made and the process followed

The nature of the statutory scheme and the terms of the statute pursuant to which the admin body operates;

The nature of the statutory regime

The importance of the decision to the individual

Legitimate expectation

The choice of procedure


Factors are context specific

HDB: “I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights”. [Para

28]

Application on para 31


1) Notice

The most basic component of the duty of fairness

Notice must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition

It involves such questions as: Who is proposing to make a decision? What is the nature of the decision to be made? When will the decision be made? Where will the decision be made? Why is the decision being made?

How is the decision to be made?


5 Factors are a methodology

Helps lower Courts determine the appropriate content of the fairness that is owed to the individual concerned

Contents can be divided into Prehearing rights &

Hearing Rights


1) Notice

It involves such questions as:

Who is proposing to make a decision?

What is the nature of the decision to be made?

When will the decision be made?

Where will the decision be made?

Why is the decision being made?

How is the decision to be made?

OSPPA (see notice)


Notice: Reasonable?

General Rule: Notice must be adequate in all circumstances in order to afford those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition


Canada (AG) v Canada (Commission of Inquiry on the Blood

System in Canada- Krever Commission) [1997] 3 SCR 440

“As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the only harm which could be caused by the issuing of detailed notices would be to a party’s reputation.” (para. 56)


Canada (AG) v Canada (Commission of Inquiry on the Blood

System in Canada- Krever Commission) [1997] 3 SCR 440

“These procedures were adopted on a consensual basis, after a meeting with all parties to determine which protections would be required. I am not sure what further protections the appellants could have realistically expected. The procedure adopted was eminently fair and any objections to it must be rejected. Nor can I accept that the appellants could have been misled or that they suffered prejudice as a result of any

“misunderstanding” about the type of findings which would be made by the Commissioner. That submission as well must be rejected”. [para 67]


2) Timeliness and Delay

Blencoe v. British Columbia (Human Rights Commission) [2000]

2 SCR 307

Minority Decision (Para 160):

“As indicated above, the central factors toward which the modern administrative law cases as a whole propel us are length, cause, and effects. Approaching these now with a more refined understanding of different kinds and contexts of delay, we see three main factors to be balanced in assessing the reasonableness of an administrative delay:


Blencoe Cont’d:

(1) the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities

(including the need to gather large amounts of information or technical data), as well as reasonable periods of time for procedural safeguards that protect parties or the public;


Blencoe Cont’d:

2) the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and

(3) the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay. This may also include a consideration of the efforts by various parties to minimize negative impacts by providing information or interim solutions.


3) Disclosure & Discovery

R. v. Stinchcombe, [1991] 3 S.C.R. 326

The crown must disclose “all relevant materials to the defence in a criminal prosecution

But May v. Ferndale Institution [2005] SCC 82

Per LeBel and Fish JJ: It is important to bear in mind that the

Stinchcombe principles were enunciated in the particular context of criminal proceedings where the innocence of the accused was at stake. Given the severity of the potential consequences the appropriate level of disclosure was quite high. In these cases, the impugned decisions are purely administrative. These cases do not involve a criminal trial and innocence is not at stake. The

Stinchcombe principles do not apply in the administrative context.” (para 91)


The requirement is that the individual must know the case he or she has to meet

The question is not whether disclosure is required in admin proceedings but how much disclosure is required

Tribunals that are required to hold oral hearings are likely to have greater disclosure requirement


What about Security Certificate cases?

Charkaoui v. Canada (CIC) [2007] 1 SCR 350

National security concerns vs. individual rights?

Context?

http://www.justiceforharkat.com/files2/Almrei2005.jpg


Similarities between other cases? Baker?

Charkaoui v. Canada (Citizenship and Immigration),

[2008] 2 S.C.R. 326

DOJ Counsel disclosed to the FC Judge that they failed to provide C with a summary of two interviews that he had with CSIS officers in 2002


Charkaoui v. Canada (Citizenship and Immigration),

[2008] 2 S.C.R. 326

CSIS destroyed the notes based on internal policy

C requested the notes

C alleged that his procedural rights had been infringed and sought to stay the proceedings


Charkaoui v. Canada LeBel and Fish JJ:

“But whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7”. [Para. 53]



“Suresh […] concerned the nature of the right to procedural fairness in a context where a person had been deprived of rights protected by s. 7 of the Charter. This Court emphasized the importance of being sensitive to the context of each situation:

[D]eciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself . . . .” [Para 57]



“In the context of information provided by CSIS to the ministers and the designated judge, the factors considered in Suresh confirm the need for an expanded right to procedural fairness, one which requires the disclosure of information, in the procedures relating to the review of the reasonableness of a security certificate and to its implementation. As we mentioned above, these procedures may, by placing the individual in a critically vulnerable position vis-à-vis the state, have severe consequences for him or her”. [Para 58]


4) Oral Hearings

Singh v. Minister of Employment and Immigration [1985] 1 SCR 177

Wilson J:

“In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.

Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person. I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions”. [Para 59]


R. v. Khan, [1990] 2 S.C.R. 531

5) Right to call evidence & Cross-examine witnesses

The guiding principle is that the parties must be afforded a reasonable opportunity to present their case


6) Right to Counsel

NO right to counsel in the context of admin proceedings

British Columbia v Christie [2007] 1 SCR 873

“The general right to be represented by a lawyer in a court or tribunal proceedings where legal rights or obligations are at stake is a broad right. It would cover almost all — if not all — cases that come before courts or tribunals where individuals are involved. Arguably, corporate rights and obligations would be included since corporations function as vehicles for individual interests. Moreover, it would cover not only actual court proceedings, but also related legal advice, services and disbursements. Although the respondent attempted to argue otherwise, the logical result would be a constitutionally mandated legal aid scheme for virtually all legal proceedings, except where the state could show this is not necessary for effective access to justice”. (Para 13)



“We conclude that the text of the Constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations”. (Para 27)


Conclusion

Monday Continue with Contents- look at Duty to give reasons

Impartiality/Bias



Overview

Recap

Right to Counsel (cont’d)

Duty to give reasons

Bill of Rights (1960)

Charter of Rights and Freedoms

Impartiality, Independence and Bias

Recap

Notice

Question re. literacy

Procedural Fairness

Right to call evidence and cross-examine witnesses

Right to Counsel


“Although the respondent attempted to argue otherwise, the logical result would be a constitutionally mandated legal aid scheme for virtually all legal proceedings, except where the state could show this is not necessary for effective access to justice” (Para 13)

Procedural Fairness


“We conclude that the text of the Constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations” (Para 27)

Procedural Fairness

Re Men’s clothing Manufacturers Association of Ontario and

Toronto Joint Board, Amalgamated Clothing and Textile

Worker’s Union (1979), 22 LAC (2d) 328

Professor Harry Arthurs

“It would not be accurate to say that the gains in the informality, speed and cheapness of the arbitration process in this industry are entirely attributable to the absence of lawyers. But equally one cannot imagine that the introduction of lawyers could be accomplished without paying a substantial price in terms of the efficiency -- and industrial relations effectiveness -- of arbitration” [Para 39]

Procedural Fairness

Re Men’s clothing Manufacturers Association of Ontario

Justice Southey: Arbitrator erred in law.

Right to counsel is part of Natural justice

New Brunswick v. G. (J) [1999] 3 S.C.R. 46

Procedural Fairness

New Brunswick v. G. (J) [1999] 3 S.C.R. 46

Lamer J: “[i]n proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case”.

Procedural Fairness

Lamer cont’d:

“I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual’s right to life, liberty, or security of the person. In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing. The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent”.

Procedural Fairness

Duty to give reasons

Baker L’Heureux-Dube Justice:

“In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere”. (Para 43)

Procedural Fairness

Scope of the duty is limited

Reasons are not required for all decisions

Rather they are required in certain circumstances

Two rationales that underlie the duty of fairness:

Reasons are required if: the decision has important significance to the individual

& an appeal process exists

Procedural Fairness

Adequate reasons?

Newfoundland and Labrador Nurses' Union v.

Newfoundland and Labrador (Treasury Board) 2011 SCC

62

Abella J:

“[…] the purpose of reasons, when they are required, is to demonstrate “justification, transparency and intelligibility.” (quoting Dunsmuir) (Para 1)

Procedural Fairness

“Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require

“some form of reasons” for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44)”. (para 20)

“It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review”. (para 21)

Procedural Fairness

Charter: discussed throughout the lectures


1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

[…]

Procedural Fairness


2. Every law of Canada shall, unless it is expressly declared by an

Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

[…]

Procedural Fairness

Authorson v. Canada (Attorney General), [2003] 2 S.C.R.

40, 2003 SCC 39

“The submission that a court can compel Parliament to change its legislative procedures based on the Bill of

Rights must fail. The Bill of Rights purports to guide the proper interpretation of every “law of Canada”, which s.

5 of the Bill of Rights defines to mean “an Act of the

Parliament of Canada enacted before or after the coming into force of this Act” (emphasis added). Court interference with the legislative process is not an interpretation of an already enacted law” [Para 40].

Charter and PF

Narrow application

Where applicable, the duties are considerable

S. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental

justice.

Threshold: the claimants must meet the threshold of establishing that their life, liberty or security interests affected by the relevant decision

Charter and PF

Life

Liberty

Security of the person

Contents?

Oral Hearing

Disclosure

Counsel etc

PROCEDURAL FAIRNESS

Audi Alteram Partem




Sources?

Common Law

1. Threshold?

2. Limits?

3. Content?

S.7 of the Charter

1. Threshold?

2. Content?

1. Oral H.

2. Etc

Impartiality, Independence and

Bias

Overview

Introduction (Impartiality, independence and bias)

3 Jurisprudential waves for Impartiality and

Independence

Wave 1: Independence of the judiciary to mould the concept of admin tribunal independence;

Wave 2: Ocean Port Hotel: No guarantee of independence

Wave 3: Push Back

Impartiality & Independence

Introduction

Impartiality, Independence and Bias at the center of the of the notion of PF

PF: Was the process fair? Was the decision maker providing preferential treatment or be driven by preconceived notions?

Why does this matter?

Affects the parties

Public confidence in the system


If bias is the “evil”, impartiality refers to the ideal state of the decision-maker or decision-making institution

(L. Jacobs)

Today, focus on Impartiality and Independence; Bias on Wednesday

Impartiality and Independence:

Common law and constitutional &

Constitutional & Quasi-Constitutional principles


Common Law (natural justice) two ideas: decision maker should neither judge her own case or have any interest in the outcome of a case before her; decision-maker must hear and listen to both sides of the case

Unwritten constitutional principles and the rule of law



Overview

Continue with PF (Bill of Rights & Charter)

Cases: Authorson; Singh

Procedural Fairness

Charter: discussed throughout the lectures


1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

[…]

Procedural Fairness


2. Every law of Canada shall, unless it is expressly declared by an

Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

[…]

Procedural Fairness

Authorson v. Canada (Attorney General), [2003] 2 S.C.R.

40, 2003 SCC 39

“The submission that a court can compel Parliament to change its legislative procedures based on the Bill of

Rights must fail. The Bill of Rights purports to guide the proper interpretation of every “law of Canada”, which s.

5 of the Bill of Rights defines to mean “an Act of the

Parliament of Canada enacted before or after the coming into force of this Act” (emphasis added). Court interference with the legislative process is not an interpretation of an already enacted law” [Para 40].

Charter and PF

Narrow application

Where applicable, the duties are considerable

S. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental

justice.

Threshold: the claimants must meet the threshold of establishing that their life, liberty or security interests affected by the relevant decision

Charter and PF

Life

Liberty

Security of the person

Contents?

Oral Hearing

Disclosure

Counsel etc

PROCEDURAL FAIRNESS

1) Duty of Fairness




Sources?

Common Law

1. Threshold?

2. Limits?

3. Content?

S.7 of the Charter

1. Threshold?

2. Content?

1. Oral H.

2. Etc

PROCEDURAL FAIRNESS

2) Mindset of the

Decision Maker

Impartiality &

Independence

Bias


Bias

Overview



Independence



Wave 3: Push Back

(NOT IN THE CASEBOOK)


Introduction




Affects the parties




(L. Jacobs)

Today, focus on Impartiality and Independence; Bias on Wednesday, October 15 2014





Common Law (natural justice) two ideas: decision-maker must hear and listen to both sides of the case (PF, (1) Duty of Fairness) decision maker should neither judge her own case or have any interest in the outcome of a case before her

(PF, (2) Decision Makers independence & impartiality and bias)


& Charter and other legislations


Tribunal/Court Independence: Why is it important?

Pp 528-529 Casebook

Rationale for Admin agencies?

ROL:

-Law is supreme over private individuals and government officials = one law for all

-Government officials must exercise their power nonarbitrarily and according to law

Independent & Impartial

When we speak of tribunal independence & impartial, what do we mean?

Tribunal’s ability to decide matters free of inappropriate influence or interference.

Interference can stem from different sources (other than government) & range from the parties to the dispute, members of the tribunal (for example someone who is not sitting in judgment but works for the tribunal) and tribunal staff etc.


Developed in three waves (NOT IN CASEBOOK)

WAVE 1: Used the independence of the judiciary to mould the concept of admin tribunal independence

WAVE 2: Ocean Port Hotel Ltd. v. British Columbia

(General Manager, Liquor Control and Licensing Branch),

[2001] 2 S.C.R. 781, 2001 SCC 52

WAVE 3: Retrenchment


WAVE 1:

Beauregard v Canada [1986] 2 SCR 56]

Pelletier v. Canada (Attorney General) 2008 FC 803

[517-525 VHM]



Facts: Appointment of judges & pension

Dickson CJ : “Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider--be it government, pressure group, individual or even another judge--should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle” [Para 21].


Complete liberty?

Security of tenure

The Constitution Act, 1867, 30 & 31 Vict, c 3

S.99

Financial Security


S. 100

Admin or institutional control

Adjudicative independence (Pelletier)


Pelletier v. Canada (Attorney General) 2008 FC 803 [517-525 VHM]

Facts?

“[…] the Commissioner was not in a position to conclude that the program was mismanaged before having heard from government officials of all levels who were set to testify. This is especially so given that the Commissioner ultimately concluded that the Sponsorship

Program was run out of the Prime Minister's Office under the direct supervision of the Applicant (who had yet to testify), who "for all practical purposes, assumed the role, the functions and the responsibilities of a Minister of a department charged with the implementation of a program." Without having heard the testimony of all witnesses who were to appear before the Commission, especially those whom he found to be in charge of the program, the

Commissioner was not and could not be in a position to conclude that the Program was "run in a catastrophically bad way." [para 84]



“The Commissioner had a duty not to reach conclusions about the management of the sponsorship program until having heard all the evidence, and he was not in a position to do so until then. The objective of the Inquiry was to get to the truth of the matters that were the subject of chapters

3 and 4 of the Auditor General's Report. By stating that he

"was coming to the same conclusion" and that he "simply confirmed the findings that Sheila Fraser had made" after only three months of hearings would, in my view, leave the reasonable person with the view that the Commissioner had prejudged some of the very matters he was tasked to investigate before hearing all the evidence”. [para 84]



Overview

Exam Question

Continue with Impartiality and Independence (1 st hour)

Bias (2 nd Hour)

Sample Exam Question

Marks breakdown:

Language, grammar, punctuation, style, citation & structure

Identification of legal issues

Relevant cases (accuracy, synthesis etc)

Legal Analysis (Apply the jurisprudence to the legal issues and facts)

Novel Insights

Sample Exam Question

IRAC/ILAC

What are the legal issues?

Etc…

Students are encouraged to see course Professor with sample answer.

PROCEDURAL FAIRNESS

2) Mindset of the

Decision Maker

Impartiality &

Independence

Bias


Bias

Overview



Independence



Wave 3: Push Back

(NOT IN THE CASEBOOK)


Introduction




Affects the parties




(L. Jacobs)

Today, focus on Impartiality and Independence; Bias on Wednesday, October 15 2014





Common Law (natural justice) two ideas: decision-maker must hear and listen to both sides of the case (PF, (1) Duty of Fairness) decision maker should neither judge her own case or have any interest in the outcome of a case before her

(PF, (2) Decision Makers independence & impartiality and bias)


& Charter and other legislations


Tribunal/Court Independence: Why is it important?

Pp 528-529 Casebook

Rationale for Admin agencies?

ROL:

-Law is supreme over private individuals and government officials = one law for all

-Government officials must exercise their power nonarbitrarily and according to law


When we speak of tribunal independence & impartial, what do we mean?

Tribunal’s ability to decide matters free of inappropriate influence or interference.

Interference can stem from different sources (other than government) & range from the parties to the dispute, members of the tribunal (for example someone who is not sitting in judgment but works for the tribunal) and tribunal staff etc.


Developed in three waves (NOT IN CASEBOOK)

WAVE 1: Used the independence of the judiciary to mould the concept of admin tribunal independence

WAVE 2: Ocean Port Hotel Ltd. v. British Columbia

(General Manager, Liquor Control and Licensing Branch),

[2001] 2 S.C.R. 781, 2001 SCC 52

WAVE 3: Retrenchment


WAVE 1:


Pelletier v. Canada (Attorney General) 2008 FC 803

[517-525 VHM]



Facts: Appointment of judges & pension

Dickson CJ : “Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider--be it government, pressure group, individual or even another judge--should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle” [Para 21].


Complete liberty?

Security of tenure


S.99

Financial Security


S. 100

Admin or institutional control

Adjudicative independence (Pelletier)



Facts?

“[…] the Commissioner was not in a position to conclude that the program was mismanaged before having heard from government officials of all levels who were set to testify. This is especially so given that the Commissioner ultimately concluded that the Sponsorship

Program was run out of the Prime Minister's Office under the direct supervision of the Applicant (who had yet to testify), who "for all practical purposes, assumed the role, the functions and the responsibilities of a Minister of a department charged with the implementation of a program." Without having heard the testimony of all witnesses who were to appear before the Commission, especially those whom he found to be in charge of the program, the

Commissioner was not and could not be in a position to conclude that the Program was "run in a catastrophically bad way." [para 84]



“The Commissioner had a duty not to reach conclusions about the management of the sponsorship program until having heard all the evidence, and he was not in a position to do so until then. The objective of the Inquiry was to get to the truth of the matters that were the subject of chapters

3 and 4 of the Auditor General's Report. By stating that he

"was coming to the same conclusion" and that he "simply confirmed the findings that Sheila Fraser had made" after only three months of hearings would, in my view, leave the reasonable person with the view that the Commissioner had prejudged some of the very matters he was tasked to investigate before hearing all the evidence”. [para 84]


WAVE 2:

Applying Beauregard v Canada to admin agencies?

Valente v. The Queen [1985] 2 SCR 673

Judicial independence may be applied to admin tribunals


Test for adequate tribunal independence: [w]hether a reasonable, well informed person having thought the matter through would conclude that an administrative decision maker is sufficiently free of factors that could interfere with his or her ability to make impartial decision (AKA Bias Test, more later on)

Flexible approach for admin agencies


Canadian Pacific Ltd. Matsqui Indian Band [1995] 1 SCR 3

CJ Lamer writing for the Majority states:

“Therefore, while administrative tribunals are subject to the

Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office”. [Para 83]


2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool) [1996] 3 SCR 919 followed Matsqui

What about “at pleasure appointments”?

Ocean Port Hotel Ltd. v. British Columbia (General

Manager, Liquor Control and Licensing Branch) 2001 SCC

52


McLaughlin in Ocean Port Hotel:

“Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question”. [Para 22]


McLaughlin in Ocean Port Hotel

“Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected” (para 24).


Wave 3: Retrenchment

For example McKenzie v. Minister of Public Safety and

Solicitor General et al., 2006 BCSC 1372

Newfoundland Telephone Co. v. Newfoundland (Board of

Commissioners of Public Utilities) [1992] 1 SCR 623


Cory J.

“It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a prejudgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature”. [page 638]


McKenzie v. Minister of Public Safety and Solicitor General

et al., 2006 BCSC 1372

McEwan J: judicial independence should apply to residential tenancy arbitrators

Bias: General Intro

RAB preserves the appearance of impartiality in the decision-making process;

VHM: Paine (overview/context)

Today, more caselaw & concepts

RAB: General Intro

Committee for Justice and Liberty et al. v. National Energy Board

et al. [1978] 1 SCR 369

RAB Test set out by De Grandpre J (dissent):

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.

In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through— conclude. Would he think that it is more likely than not that

Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”[At page 395].

RAB: General Intro

RAB (

Nb

):

Reasonable person with an informed understanding of how the tribunal functions perceives that the decision making is biased

Bias must be substantial

Real likelihood or probability should be demonstrated

A mere suspicion of bias is not enough and the courts often discuss the likelihood of bias on a balance of probabilities

The reasonable person is not someone who is oversensitive (R. v. S (R.D) [1997] 3 SCR 484 )

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 48

Facts: Caucasian police officer arrests two young black men

Judge relied on social science evidence and personal experience (Judge was black)

Crown argued bias; NS COA agreed

SCC: 4 to 3

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

L’Heureux-Dubé and McLachlin JJ.

In our view, the test for reasonable apprehension of bias established in the jurisprudence is reflective of the reality that while judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality. It therefore recognizes as inevitable and appropriate that the differing experiences of judges assist them in their decisionmaking process and will be reflected in their judgments, so long as those experiences are relevant to the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just determination of the cases based on the facts in evidence [29 ]

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

“The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case”. [para 36]

“ As discussed above, judges in a bilingual, multiracial and multicultural society will undoubtedly approach the task of judging from their varied perspectives. They will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench” [38].

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

“In fact, such a transformation would deny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the judiciary. The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging”. [38]

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

It is axiomatic that all cases litigated before judges are, to a greater or lesser degree, complex. There is more to a case than who did what to whom, and the questions of fact and law to be determined in any given case do not arise in a vacuum. Rather, they are the consequence of numerous factors, influenced by the innumerable forces which impact on them in a particular context. Judges, acting as finders of fact, must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred.

[41]

Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual. Rather, a conscious, contextual inquiry has become an accepted step towards judicial impartiality. [42]

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

Reasonable person: “an informed and right-minded member of the community, a community which, in Canada, supports the fundamental principles entrenched in the Constitution by [Charter].

Those fundamental principles include [equality and human rights].

The reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society protected by the Charter ’s equality provisions. These are matters of which judicial notice may be taken.

In Parks, supra, at p. 342, Doherty J.A., did just this, stating: Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. [46]

RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484

The reasonable person is not only a member of the Canadian community, but also, more specifically, is a member of the local communities in which the case at issue arose (in this case, the

Nova Scotian and Halifax communities). Such a person must be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and aboriginal people, and high profile clashes between the police and the visible minority population over policing issues. The reasonable person must thus be deemed to be cognizant of the existence of racism in Halifax, Nova Scotia. It follows that judges may take notice of actual racism known to exist in a particular society. Judges have done so with respect to racism in Nova Scotia

[47]

RAB: General Intro

RAB includes institutions: R.v Lippe [1991] 2 S.C.R

Standard for bias varies and is highly contextual (i.e.

Baker)

Compare and contrast: Committee for Justice and Liberty

et al. v. National Energy Board et al. [1978] 1 SCR 369

[which we looked at earlier] & Imperial Oil Ltd. v.

Quebec (Minister of the Environment) [2003] SCC 58

[which we looked at earlier]

RAB: General Intro

Individual Bias

1. A pecuniary or material interest in the outcome of the matter being decided;

2. A personal relationship with those involved in the dispute;

3. Prior knowledge or information about the matter in dispute; or

4. An attitudinal predisposition toward an outcome.

Individual Bias

1. A pecuniary or material interest in the outcome of the matter being decided

Dimes v. Grand Junction Canal Co. [1852] Eng. R. 789

Energy Probe v. Canada (Atomic Energy Control Board)

[1985] 1 F.C. 563 pecuniary interest must be direct and certain

Individual Bias

2. A personal relationship with those involved in the dispute

Re. Pinochet [1999] U.K.H.L. 52

Man O’War Station Ltd. v. Aukland City Council

(Judgment No. 1) [2002] 3 NZLR 577

“This is a corner of the law in which the context, and the particular circumstances, are of supreme importance”.

Individual Bias

3. Prior knowledge or information about the matter in dispute

Wewaykum Indian Band v. Canada [2003] 2 SCR 259 focus on the nature and extent of the decision-maker’s previous involvement

Individual Bias

4. An attitudinal predisposition toward an outcome

Law Society of Upper Canada v. Licio Edward Cengarle

Far too many interventions gave rise to RAB (16 to 56)

Contrast with Es-Sayyid v. Canada (Public Safety and

Emergency Preparedness) [2012] FCA 59

Individual Bias

Justice Shore biased given 54 judgments?

Opinion/Research by Prof. Scott

Es-Sayyid argued:

(1) The judge is unconsciously biased in cases such as this (relied on Scott).

(2) The judge created a reasonable apprehension of bias by copying into his reasons dismissing the stay motion most of the

Minister’s written submissions, without attribution; and (3) The judge created a reasonable apprehension of bias by delving far too deeply into the merits of the matter, rather than engaging in the normally cursory examination done under the

“arguable case” branch of the test for granting a stay

Individual Bias

FCA:

“calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”

“The opinion [by Scott] offered in support of this allegation of bias falls well short of the mark”

The opinion is a statistical analysis by someone with no statistical expertise of 54 cases decided by the judge between 2005-2010 involving “cases in which criminality was a relevant feature of the immigration or refugee law issues in the case.” [etc etc]

Individual Bias

# 4 Cont’d…

Comments outside the hearing?

Closed Mind Test (for example CAF)

“What is central is whether the decision maker is amenable to persuasion or whether his or her comments indicate a mind so closed that any submission would be futile”

[Newfoundland Telephone]

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) [1990] 3

S.C.R. 1170

Institutional Bias

Consistency? Public confidence?

Iwa v. Consolidated-bathurst packaging ltd [1990] 1 SCR

282 (Board Meetings)

SCC acknowledged importance of policy but

Institutional Bias

“It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision. It also goes without saying that a formalized consultation process could not be used to force or induce decision makers to adopt positions with which they do not agree. Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members' capacity to decide the issues at stake independently. A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom. Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility”. [Para 80]

Institutional Bias

Lead cases?

Geza v. Canada (Minister of Citizenship and Immigration)

(F.C.), [2005] 3 F.C.R. 3



Overview

RAB Cont’d

Individual

Four components

Institutional

NB. STUDENTS ARE ENCOURAGED TO READ:

McKenzie v. Minister of Public Safety and Solicitor General et

al., 2006 BCSC 1372

Standards of Review

Introduction

RAB: General Intro

RAB includes institutions: R.v Lippe [1991] 2 S.C.R

Standard for bias varies and is highly contextual (i.e.

Baker)

Compare and contrast: Committee for Justice and Liberty

et al. v. National Energy Board et al. [1978] 1 SCR 369

[which we looked at earlier] & Imperial Oil Ltd. v.

Quebec (Minister of the Environment) [2003] SCC 58

[which we looked at earlier]

RAB: General Intro

Individual Bias

1. A pecuniary or material interest in the outcome of the matter being decided;

2. A personal relationship with those involved in the dispute;

3. Prior knowledge or information about the matter in dispute; or

4. An attitudinal predisposition toward an outcome.

Individual Bias

1. A pecuniary or material interest in the outcome of the matter being decided

Dimes v. Grand Junction Canal Co. [1852] Eng. R. 789

Energy Probe v. Canada (Atomic Energy Control Board)

[1985] 1 F.C. 563 pecuniary interest must be direct and certain

Individual Bias

2. A personal relationship with those involved in the dispute

Re. Pinochet [1999] U.K.H.L. 52

Man O’War Station Ltd. v. Aukland City Council

(Judgment No. 1) [2002] 3 NZLR 577

“This is a corner of the law in which the context, and the particular circumstances, are of supreme importance”.

Individual Bias

3. Prior knowledge or information about the matter in dispute

Wewaykum Indian Band v. Canada [2003] 2 SCR 259 focus on the nature and extent of the decision-maker’s previous involvement

Individual Bias

4. An attitudinal predisposition toward an outcome

Law Society of Upper Canada v. Licio Edward Cengarle

Far too many interventions gave rise to RAB (16 to 56)

Contrast with Es-Sayyid v. Canada (Public Safety and

Emergency Preparedness) [2012] FCA 59

An attitudinal predisposition toward an outcome

Es-Sayyid v. Canada (Public Safety and Emergency

Preparedness) [2012] FCA 59

Facts?

“The opinion offered in support of this allegation of bias falls well short of the mark. In fact, in these circumstances, for the reasons set out below, the opinion is inadmissible and, in any event, no weight can be accorded to it” [40] .

WHY?

Individual Bias

Justice Shore biased given 54 judgments?

Opinion/Research by Prof. Scott

Es-Sayyid argued:

(1) The judge is unconsciously biased in cases such as this (relied on Scott).

(2) The judge created a reasonable apprehension of bias by copying into his reasons dismissing the stay motion most of the

Minister’s written submissions, without attribution; and (3) The judge created a reasonable apprehension of bias by delving far too deeply into the merits of the matter, rather than engaging in the normally cursory examination done under the

“arguable case” branch of the test for granting a stay

Individual Bias

FCA:

“calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”

“The opinion [by Scott] offered in support of this allegation of bias falls well short of the mark”

The opinion is a statistical analysis by someone with no statistical expertise of 54 cases decided by the judge between 2005-2010 involving “cases in which criminality was a relevant feature of the immigration or refugee law issues in the case.” [etc etc]

Individual Bias

# 4 Cont’d…

Comments outside the hearing?

Closed Mind Test (for example CAF)

“What is central is whether the decision maker is amenable to persuasion or whether his or her comments indicate a mind so closed that any submission would be futile”

[Newfoundland Telephone]

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) [1990] 3

S.C.R. 1170

Institutional Bias

Consistency? Public confidence?

Iwa v. Consolidated-bathurst packaging ltd [1990] 1 SCR

282 (Board Meetings)

SCC acknowledged importance of policy but

Institutional Bias

“It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision. It also goes without saying that a formalized consultation process could not be used to force or induce decision makers to adopt positions with which they do not agree. Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members' capacity to decide the issues at stake independently. A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom. Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility”. [Para 80]

Institutional Bias

Lead cases?

Geza v. Canada (Minister of Citizenship and Immigration)

(F.C.), [2005] 3 F.C.R. 3

PROCEDURAL FAIRNESS

1) Duty of Fairness




Sources?

Common Law

1. Threshold?

2. Limits?

3. Content?

S.7 of the Charter

1. Threshold?

2. Content?

1. Oral H.

2. Etc

PROCEDURAL FAIRNESS

2) Mindset of the

Decision Maker

Impartiality &

Independence

Bias

Development of Standard of

Review

What are standards should courts use when they have to review the substance of the decision (an error)?

JR asks unique questions: is there only one correct answer? who is better situated to determine this particular answer (i.e. the specialist decision maker or the generalist judge)? what criteria can assist in assessing the expertise?


Review

Deference to the original decision?

Deference = Respect for the original decision maker

(based on expertise, evidence etc)

Historically, deference/Standards of Review contested

Go back to the evolution of the admin state- early

1900s


Review

Why admin agencies?

Challenges to formalism- courts & formalism?

Courts did not interfere with admin agencies (at the outset/Historically)

But as the admin state grew… the courts started taking an active role


Review

Types of ERRORS

Go back to the central question:

What are the various grounds upon which a decision of an administrative decision-maker be challenged?

Error of fact; Error of law; Lack of jurisdiction

JR may be set out in the enabling legislation

For example…

Types of Error

IRPA: 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised

— under this Act is commenced by making an application for leave to the

Court.

(2) The following provisions govern an application under subsection (1):

(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;

(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;

[…]

Error of Fact

Argument that tribunal was wrong in its factual findings;

If no right of appeal contained in the statute re fact, then have to go to common law or to Fed Ct Act, or if in BC or Ontario

Judicial Review Procedure Act R.S.O. 1990, CHAPTER

J.1

Error of Law

Agreed that the board or tribunal has the authority to be deciding this issue, but the question is whether the decisionmaker in deciding the question interpreted or applied the language of the statute incorrectly

What is the record? At common law: documents initiating proceedings

Pleadings decision itself reasons if given evidence not part of the record unless specifically incorporated into it.

Error of Jurisdiction

Decision-maker interprets its enabling legislation in such a way that the decision-maker thinks it has the jurisdiction/authority to act in this particular situation or that it has certain powers - but it is wrong


Review

Governments frustrated… PRIVATIVE CLAUSE

Limit the role of Courts through Privative Clauses

BUT Privative Clauses challenges to rule of law.

Macklin:

A legislative grant of authority is always circumscribed by the terms of the statute. The common law presumes that citizens retain access to the ordinary courts in order to ensure that creatures of the state do not exceed or abuse the power granted to them. Making government actors accountable to the ordinary (and independent) courts is a principle that

Dicey noted as being essential to the rule of law.


Review

Macklin:

But on the other hand, the doctrine of parliamentary supremacy dictates that the legislator enacts the law and the court must interpret and apply the law in accordance with the legislative intent.

Deference- Evolution

CUPE v. New Brunswick Liquor Corporation


Review

SCC- New Era

Pragmatic and functional test

Underlying Themes:

Greater respect for decision maker

Greater attention to legislative signposts

Awareness of the expertise of many statutory regimes

Courts own lack of working familiarity with the detailed working



Overview

Recap

NB. Law Society of Upper Canada v. Licio Edward Cengarle,

[2010] L.S.D.D. No 61 (QL)

Types of Errors

Standard of Review

History

Three standards: Patent Unreasonable; Reasonable

Simpliciter; Correctness


Review

Types of ERRORS

Go back to the central question:

What are the various grounds upon which a decision of an administrative decision-maker be challenged?

Error of fact; Error of law; Lack of jurisdiction

JR may be set out in the enabling legislation

For example…

Types of Error

IRPA: 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised

— under this Act is commenced by making an application for leave to the

Court.

(2) The following provisions govern an application under subsection (1):

(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;

(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;

[…]

Error of Fact

Argument that tribunal was wrong in its factual findings;

If no right of appeal contained in the statute re fact, then have to go to common law or to Fed Ct Act, or if in BC or Ontario

Judicial Review Procedure Act R.S.O. 1990, CHAPTER

J.1

Error of Law

Agreed that the board or tribunal has the authority to be deciding this issue, but the question is whether the decisionmaker in deciding the question interpreted or applied the language of the statute incorrectly

What is the record? At common law: documents initiating proceedings

Pleadings decision itself reasons if given evidence not part of the record unless specifically incorporated into it.

Error of Jurisdiction

Decision-maker interprets its enabling legislation in such a way that the decision-maker thinks it has the jurisdiction/authority to act in this particular situation or that it has certain powers - but it is wrong


Review

What are standards should courts use when they have to review the substance of the decision (an error)?

JR asks unique questions: is there only one correct answer? who is better situated to determine this particular answer (i.e. the specialist decision maker or the generalist judge)? what criteria can assist in assessing the expertise?


Review

Deference to the original decision?

Deference = Respect for the original decision maker

(based on expertise, evidence etc)

Historically, deference/Standards of Review contested

Go back to the evolution of the admin state- early

1900s


Review

Why admin agencies?

Challenges to formalism- courts & formalism?

Courts did not interfere with admin agencies (at the outset/Historically)

But as the admin state grew… the courts started taking an active role


Review

Governments frustrated… PRIVATIVE CLAUSE

Limit the role of Courts through Privative Clauses

BUT Privative Clauses challenges to rule of law.

Macklin:

A legislative grant of authority is always circumscribed by the terms of the statute. The common law presumes that citizens retain access to the ordinary courts in order to ensure that creatures of the state do not exceed or abuse the power granted to them. Making government actors accountable to the ordinary (and independent) courts is a principle that

Dicey noted as being essential to the rule of law.


Review

Macklin:

But on the other hand, the doctrine of parliamentary supremacy dictates that the legislator enacts the law and the court must interpret and apply the law in accordance with the legislative intent.

Deference- Evolution

CUPE v. New Brunswick Liquor Corporation


Review

SCC- New Era

Pragmatic and functional test

Underlying Themes:

Greater respect for decision maker

Greater attention to legislative signposts

Awareness of the expertise of many statutory regimes

Courts own lack of working familiarity with the detailed working

Pragmatic and Functional

Test

C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227

New Brunswick Public Service Labour Relations Act

102(3) Where subsection (1) and subsection (2) are complied with employees may strike and during the continuance of the strike

(a) the employer shall not replace the striking employees or fill their position with any other employee, and

(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.


Test

Dickson J:

“I would take the position that the Board decided a matter which was plainly confided to it, for it alone to decide within its jurisdiction. It is contended, however, that the interpretation placed upon s. 102(3)(a) was so patently unreasonable that the Board, although possessing "jurisdiction in the narrow sense of authority to enter upon an inquiry", in the course of that inquiry did "something which takes the exercise of its powers outside the protection of the privative or preclusive clause". [para. 15]


Test

Macklin, three important sources of the SCC’s doctrinal changes

1. SCC situates the case in a broader reappraisal of the respective roles assigned to by the legislature to the courts and to admin bodies in the implementation of regulatory regimes


Test

Dickson J:

“The usual reasons for judicial restraint upon review of labour board decisions are only reinforced in a case such as the one at bar. Not only has the Legislature confided certain decisions to an administrative board, but to a separate and distinct Public

Service Labour Relations Board. That Board is given broad powers—broader than those typically vested in a labour board—to supervise and administer the novel system of collective bargaining created by the Public Service Labour Relations Act. The

Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining.

Considerable sensitivity and unique expertise on the part of

Board members is all the more required if the twin purposes of the legislation are to be met. Nowhere is the application of those skills more evident than in the supervision of a lawful strike by public service employees under the Act” [Para 15]


Test

2. SCC admits no single correct interpretation

Who is better equipped to make the choice- the board or the court?

3. Finally, Dickson states:

“The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” [Para 9]


Test

U.E.S., Local 298 v. Bibeault – Pragmatic and

Functional Test (used for the first time)

Pushpanathan v. Canada (Minister of Citizenship and

Immigration) [1998] 1 SCR 982

SCC clarifies..


Test

Bastarache J.

Reformulated the pragmatic and functional question in to: Did the Legislator intend this question to attract judicial deference?

Presence of a private clause

Expertise of the decision maker

Relevant provisions and purpose of the statute

Nature of the question: fact, law or mixed fact and law?

P&F Test

Recap: Pushpanathan v. Canada (Minister of Citizenship

and Immigration) [1998] 1 SCR 982

Factors relevant to discerning this legislative intent into four categories:

Presence of a privative clause

Expertise of the decision maker

Relevant provisions and purpose of the statute

Nature of the question: fact, law or mixed fact and law?

P&F Test

Privative clause

Presence of a privative clause weighed in favour of curial deference.

A statutory declaration of by the legislator (imagine the idea of a stop sign).

Simultaneously courts have the authority to define and demarcate the scope of the admin agencies’ expertise.

P&F Test

Expertise (3 step determination)

1. the court must characterize the expertise of the tribunal in question;

2. it must consider its own expertise relative to that of the tribunal;

3. and it must identify the nature of the specific issue before the admin decision-relative to this expertise.

P&F Test

Expertise cont’d

“If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded…. Nevertheless, expertise must be understood as a relative, not absolute concept.” [Para 32]

P&F Test

3. Purpose of the Statute as a whole and the

Provision in Particular

These considerations are all specific articulations of the broad principle of “polycentricity” well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies. A “polycentric issue is one which involves a large number of interlocking and interacting interests and considerations” [Para 36]

P&F Test

4. The Nature of the Problem

Questions of law; questions of mixed law and fact; and questions of fact

But…

P&F Test

Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1

SCR 748

“Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa”.

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

1) Development of the Pragmatic & Functional approach

1979 C.U.P.E. v. N.B. Liquor Corporation  DEFERENCE

1988 Bibeault  introduces the “pragmatic and functional about jurisdictional line.

1994 Pezim  application of P&F approach to statutory appeals, analysis of jurisdiction.

 consolidates standard of review jurisprudence into

1999 Baker  extends P&F approach to review of discretionary decisions

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

2) Addition of a third standard of review:

Reasonableness

Simpliciter

1997 Canada v. Southam  establishes that P&F approach involves a “spectrum” of standards of review, adds the middle standard of

“reasonableness simpliciter”.

2003 Dr. Q. and Ryan v. Law Society of New Brunswick  summary and restatement of the P&F approach;

Ryan confirms 3 standards of review.

2003 LeBel J’s “cri de coeur” in Toronto (City) v CUPE,

Local 79  plea to simplify the standard of review analysis and go back to 2 standards of review.

Prior to Dunsmuir- 3

Standards of Review

Patent Unreasonable

Reasonableness simpliciter

Correctness

****** NB: NO LONGER APPLICABLE

***** NEXT SLIDES ARE MEANT TO BE

ILLUSTRATIVE

Correctness

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77,

2003 SCC 63

Lebel J Dissent:

“As I noted in brief above, certain fundamental legal questions — for instance, constitutional and human rights questions and those involving civil liberties, as well as other questions that are of central importance to the legal system as a whole, such as the issue of relitigation — typically fall to be decided on a correctness standard”. [67]

Reasonableness simpliciter

Ryan v. Law Society of New Brunswick [2003] 1 SCR 247

Iacobucci J: “The standard of reasonableness basically involves asking “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision? […] Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter”. [Para 47]

Patent Unreasonableness

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003

SCC 63

“This Court has set out a number of definitions of “patent unreasonableness”, each of which is intended to indicate the high degree of deference inherent in this standard of review.

There is some overlap between the definitions and they are often used in combination. I would characterize the two main definitional strands as, first, those that emphasize the magnitude of the defect necessary to render a decision patently unreasonable and, second, those that focus on the

“immediacy or obviousness” of the defect, and thus the relative invasiveness of the review necessary to find it”. [Para

78]

Judicial Review

Professor Xavier (Lecture 13, Oct 27 2014)

Overview

Reflection paper

In the news?

CUPE (2003, Lebel J)

Dunsmuir

Reflection Paper/In the news

Three cases; Use TWO (Only)

NO Outside research

Changes to the Immigration laws and Evidence gathering?

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

1) Development of the Pragmatic & Functional approach

1988 Bibeault  introduces the “pragmatic and functional about jurisdictional line.

1994 Pezim v. BC  application of P&F approach to statutory factors beyond analysis of jurisdiction.

 consolidates standard of

 extends P&F approach to review of discretionary

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

2) Addition of a third standard of review:

Reasonableness

Simpliciter

1997 Canada v. Southam  establishes that P&F approach involves a “spectrum” of standards of review, adds the middle standard of

“reasonableness simpliciter”.

2003 Dr. Q. and Ryan v. Law Society of New Brunswick  summary and restatement of the P&F approach;

Ryan confirms 3 standards of review.

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

LeBel J’s “cri de coeur” in Toronto (City) v CUPE, Local 79

 plea to simplify the standard of review analysis and go back to 2 standards of review.

Dunsmuir (2008)

 TWO STANDARDS instead of THREE (NB!!!!)

 New Standard of Review Analysis

Standards of review

Miller v. Workers’ Compensation Commission (Nfld.)

(1997), 154 Nfld. & P.E.I.R. 52 (Nfld. S.C.T.D.)

In attempting to follow the court’s distinctions between

“patently unreasonable”, “reasonable” and “correct”, one feels at times as though one is watching a juggler juggle three transparent objects. Depending on the way the light falls, sometimes one thinks one can see the objects. Other times one cannot and, indeed, wonders whether there are really three distinct objects there at all

(para. 27)

Standards of review

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77,

2003 SCC 63

Lebel J:

“The purpose of judicial review is to uphold the normative legal order by ensuring that the decisions of administrative decision makers are both procedurally sound and substantively defensible [...]”

In short, the role of a court […] is to be faithful to the intent of the legislature that empowered the administrative adjudicator to make the decision, as well as to the animating principle that, in a society governed by the rule of law, power is not to be exercised arbitrarily or capriciously (Para 128)

Standards of review

Lebel J on ROL:

1. […] first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all”.

2. “the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”

3. “the exercise of all public power must find its ultimate source in a legal rule”. Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance” (Para 129).

Standards of review

Lebel J on ROL:

“[…] the exercise of power must be justifiable

. . . societies governed by the Rule of Law are marked by a certain ethos of justification. In a democratic society, this may well be the general characteristic of the Rule of

Law within which the more specific ideals . . . are subsumed. Where a society is marked by a culture of justification, an exercise of public power is only appropriate where it can be justified to citizens in terms of rationality and fairness.

Standards of review

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008

SCC 9

Facts?

Lowers Courts on JR?

COA on JR?

Standards of review

Dunsmuir

Importance of JR vis-à-vis democracy

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. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures (Para 27)

Standards of review

Dunsmuir JR defined:

“By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes” (Para

28)

Standards of review

Dunsmuir v. New Brunswick [2008] 1 SCR 190

“In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy […]” (Para 30)

“In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review - correctness and reasonableness”

[Para 34].

Standard of review analysis

Determine the degree of deference based on jurisprudence. If unfruitful, then

Reasonableness

Correctness

To determine which standard, must use the standard of review analysis.

Standard of review analysis

ALSO KNOW AS?

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including:

(1) the presence or absence of a privative clause;

(2) the purpose of the tribunal as determined by interpretation of enabling legislation;

(3) the nature of the question at issue, and;

(4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [Para 64]

Is judicial review available?

If so, what standard of review applies?

)(Two Steps)

1. “Ascertain whether jurisprudence has already determined the degree of deference to accorded to a question” (If not move to step 2)

2. Reasonableness &

Correctness

Step 1. Standard of review analysis

• as per Dunsmuir (PR, etc)

• either correctness or reasonableness

Step 2. Apply the appropriate standard of review

Statutory Interpretation

Two theories: Positivist/Formalist & Contextual

Positivist:

“[…] there is one principle or approach to statutory interpretation, namely the words of an act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the

Act, the object of the Act and the intention of parliament” [Driedger, Construction of Statutes, 2 nd ed.

(Butterworths, 1983) at 87].

Statutory Interpretation

Contextual:

Implies a conception of rule of law in which legitimacy of state action is contingent not on strict adherence to legislative or majority will, but on consistency with the important public values inscribed in our social and legal traditions. This approach reflects a traditional understanding of judges as the exclusive arbiters of foundational legal values.

Correctness

“[I]t is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question”.

[Para 50]

Correctness

-including those that raise constitutional questions;

-true questions of jurisdiction or vires

- questions about the relative jurisdiction scope of different tribunals

-questions of law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.

Correctness

-including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

Correctness


“Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction [Para 59]

Correctness


“Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis”.

[Dunsmuir, para 61]

Correctness

- questions of law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.

“As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v. C.U.P.E., at para. 62, per LeBel

J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process _ issues that are at the heart of the administration of justice (see para. 15, per Arbour J.)”. [Dunsmuir para 60]

Correctness

Dunsmuir has reduced the reach of correctness review by: lending increased specificity to the broad category of questions of “general” law previously attracting this standard; indicating that a narrow approach should be taken to the category of jurisdictional questions.

Correctness

Correctness standard implies getting it right?

Ryan: “At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result”. [Para

50]

Correctness

Dunsmuir

“As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct”. [Dunsmuir, 50]

Correctness

Dunsmuir

“As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.

From the outset, the court must ask whether the tribunal’s decision was correct”. [Dunsmuir, 50]

Correctness

3 Rationales:

Jurisdiction

Expertise

Predictability & Consistency

Reasonableness

“Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Para 47]

Reasonableness

The majority builds the standard on deference from

Southam, Ryan and CUPE (NB Liquor Corp)

These judgments focused on the idea that judges applying the reasonableness standard should be closely attentive to admin reasoning &

The decision should stand unless it cannot be rationally supported by the relevant legislation or the evidence

Reasonableness

Deference as Respect:

Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decisionmaking process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p.

596, per L’Heureux-Dubé J., dissenting). We agree with David

Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision.”

[Dunsmuir, para 48]

Reasonableness


“Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference

“recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, para 49)

Reasonableness


[…] “In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system”. (Dunsmuir, para 49)

Reasonableness

Targets: Reasons and Outcomes

A court conducting a review of reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

“In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [para 47]

Reasonableness

Targets: Reasons and Outcomes

Newfoundland and Labrador Nurses' Union v. Newfoundland and

Labrador (Treasury Board) [2011] 3 SCR 708

Abella J: Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of

Administrative Action in Canada (loose-leaf), at §§12:5330 and

12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).

[Nurses, para 14]

Reasonableness

Criteria/Criterion of Dunsmuir Reasonableness


Justification; transparency; and intelligibility

Reasonableness


Montréal (City) v. Montreal Port Authority [2010] 1 SCR

427

Lebel J: “The concept of “reasonableness” relates primarily to the transparency and intelligibility of the reasons given for a decision. But it also encompasses a quality requirement that applies to those reasons and to the outcome of the decision-making process” [para 38]


Professor Xavier (Lecture 14, Oct 29 2014)

Correctness

“[I]t is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question”.

[Para 50]

Correctness

-including those that raise constitutional questions;



-questions of law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.

Correctness

[…] Including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

Correctness

[…] True questions of jurisdiction or vires

“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction [Para 59]

Correctness

[…] Questions about the relative jurisdiction scope of different tribunals

“Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis”.

[Dunsmuir, para 61]

Correctness

- questions of law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.

“As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v. C.U.P.E., at para. 62, per LeBel

J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process _ issues that are at the heart of the administration of justice (see para. 15, per Arbour J.)”. [Dunsmuir para 60]

Correctness

Dunsmuir has reduced the reach of correctness review by: lending increased specificity to the broad category of questions of “general” law previously attracting this standard; indicating that a narrow approach should be taken to the category of jurisdictional questions.

Correctness

Correctness standard implies “getting it right”?

Ryan: “At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result”. [Para

50]

Correctness

Dunsmuir

“[…] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct”. [Dunsmuir, 50]

Correctness

Dunsmuir

“As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. [Dunsmuir, 50]

Correctness

3 Rationales:

Jurisdiction

Expertise

Predictability & Consistency

Reasonableness

“Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Para 47]

Reasonableness

The majority builds the standard on deference from

Southam, Ryan and CUPE (NB Liquor Corp)

These judgments focused on the idea that judges applying the reasonableness standard should be closely attentive to admin reasoning &

The decision should stand unless it cannot be rationally supported by the relevant legislation or the evidence

Reasonableness


Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decisionmaking process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p.

596, per L’Heureux-Dubé J., dissenting). We agree with David

Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision.”

[Dunsmuir, para 48]

Reasonableness


“Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference

“recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, para 49)

Reasonableness


[…] “In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system”. (Dunsmuir, para 49)

Reasonableness

A court conducting a review of reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.


Reasonableness

Newfoundland and Labrador Nurses' Union v. Newfoundland and

Labrador (Treasury Board) [2011] 3 SCR 708

Abella J: Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M.

Evans, Judicial Review of Administrative Action in Canada (looseleaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).

[Nurses, para 14]

Reasonableness



Justification; transparency; and intelligibility

Reasonableness


Montréal (City) v. Montreal Port Authority [2010] 1 SCR

427

Lebel J: “The concept of “reasonableness” relates primarily to the transparency and intelligibility of the reasons given for a decision. But it also encompasses a quality requirement that applies to those reasons and to the outcome of the decision-making process” [para 38]

Standard of Review Analysis

Two Step Process:

(1) […] Courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

(2) […] where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [Para

62]


How to determine the appropriate standard:

[…] questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness [Para 51]


Presence of three (3) factors = Reasonableness

1. A privative clause: this is a statutory direction from

Parliament or a legislature indicating the need for deference.

2. A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).

3. The nature of the question of law.


Binnie J (partial Dissent):

“The need for such a re-examination is widely recognized, but in the end my colleagues’ reasons for judgment do not deal with the

“system as a whole”. They focus on administrative tribunals. In that context, they reduce the applicable standards of review from three to two (“correctness” and “reasonableness”), but retain the pragmatic and functional analysis, although now it is to be called the “standard of review analysis” (para. 63). A broader reappraisal is called for. Changing the name of the old pragmatic and functional test represents a limited advance, but as the poet says:

What’s in a name? that which we call a rose

By any other name would smell as sweet;” [para 121]


“Thus the law (or, more grandly, the “rule of law”) sets the boundaries of potential administrative action. It is sometimes said by judges that an administrator acting within his or her discretion “has the right to be wrong”. This reflects an unduly court-centred view of the universe. A disagreement between the court and an administrator does not necessarily mean that the administrator is wrong”. [Para 125]


Privative Clause signals Reasonableness?

Why?


Privative Clause:

“[…] a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. This does not mean, however, that the presence of a privative clause is determinative. The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction.” [para 52]


Privative Clause

Dunsmuir: privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized


Privative Clause

Courts (historically) reluctant to accept the will of parliament

Court have Constitutional authority to review

But that does not mean that judges can twist the will of parliament to overturn a decision where they should be deferential


Privative Clause

Dunsmuir

Caution to Courts:

“should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” [Dickson CJ]


Privative Clause

Just another factor?

Binnie J:

“[…] Chief Justice Laskin during argument once memorably condemned the quashing of a labour board decision protected by a strong privative clause, by saying “what’s wrong with these people [the judges], can’t they read?” A system of judicial review based on the rule of law ought not to treat a privative clause as conclusive, but it is more than just another “factor” in the hopper of pragmatism and functionality. Its existence should presumptively foreclose judicial review on the basis of outcome on substantive grounds unless the applicant can show that the clause, properly interpreted, permits it or there is some legal reason why it cannot be given effect”.


Privative Clause

Why do Parliaments create Privative Clauses?

To avoid delays

Reduce costs

Avoid Courts (Remember Re Men's Clothing

Manufacturers Association of Ontario and Toronto Joint

Board, Amalgamated Clothing & Textile Workers' Union)


Privative Clause

Central question: whether the legislator has the constitutional capacity to exclude all judicial review of an admin agency?

Courts can review (implicitly)

Ss. 96-101 Constitution Act, 1867


Privative Clause

Three part test to determine whether an admin tribunal is actually acting like a s. 96 court:

Historical Inquiry

Judicial versus legislative or administrative power

Contemporary character


Privative Clause

Crevier v. A.G. (Québec) et al. [1981] 2 SCR 220

Was the Quebec Professions Tribunal acting like a s.96

Court?

But if the wording of a privative clause tried to oust review by the courts over even strict jurisdictional questions, then the clause was not constitutionally valid because the province had created a de facto s. 96 court.


Privative Clause

U.E.S., Local 298 v. Bibeault [1988] 2 SCR 1048

Beetz J:

“The role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection” [para 126]


Privative Clause

MacMillan Bloedel Ltd. v. Simpson [1995] 4 SCR 725

Lamer CF:

“The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the

Constitution. Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary. Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself”. [para 15].

File - Indigenous Legal Traditions

Limits of Fairness

Nb

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

Simpliciter

Reasonableness simpliciter

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

Simpliciter

If so, what standard of review applies?

)(Two Steps)

-including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

[…] Including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

Related documents

Products

Support

File - Indigenous Legal Traditions

Limits of Fairness

Nb

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

Simpliciter

Reasonableness simpliciter

Chronology post CUPE – Key moments in the development of the Std of Rev analysis:

Chronology post CUPE – Key moments in the development of the

Std of Rev analysis:

Simpliciter

If so, what standard of review applies?

)(Two Steps)

-including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

[…] Including those that raise constitutional questions

“[…] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act,

1867 … [Dunsmuir, para 58]

Related documents

Add this document to collection(s)

Add this document to saved

Suggest us how to improve StudyLib