JRAA Reading Summary
Chapter Two: Governments in Miniature: the rule of law in the administrative state .......................2
British Columbia v. Imperial Tabacco ..............................................................................................7
BC v. Christie ..................................................................................................................................7
National Corngrowers v. Canada (Import Tribunal)(SCC, 1990).........................................................8
Duplessis v. Roncarelli ..........................................................................Error! Bookmark not defined.
Sossin, Chapter 5, From Natural Justice to Fairness, pp.147-157 ......................................................9
Minister of Manpower and Immigration v. Hardayal [1978] 1 SCC 470 ........................................... 12
Nicholson v Haldimand Norfolk (Regional) Police Commissioners [1979] 1 RCS .............................. 13
Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 ..................................................... 15
Fox-Decent – Procedural fairness – a Pandora’s box of legality ...................................................... 17
Ocean Port Hotel v BC 2001 SCC 52 ............................................................................................... 20
Authorson v Canada (A-G) [2003] 2 SCR 40 .................................................................................... 22
Air Canada v AG Canada, QCCA, 2003 ........................................................................................... 23
Canada (AG) v Inuit Tapirisat [1989] 2 SCR 735 .............................................................................. 26
Reference re: Canada Assistance Plan [1991] 2 SCR 525 ................................................................. 28
Chapter 5: From Natural justice to Fairness pg 162-168 ................................................................. 32
Dunsmuir v New Brunswick 2008 .................................................................................................. 33
Maple Lodge Farms v Government of Canada, [1982] 2 SCR 2 ........................................................ 33
Sossin, Chapter 5, From Natural Justice to Fairness, cont’d ............................................................ 34
Baker v Canada 1999 .................................................................................................................... 39
Chretien v Canada ........................................................................................................................ 43
Newfoundland and Labrador Nurses’ Union v Newfoundland 2011 SCC 62..................................... 47
Chapter 8: Caught Between judicial Paradigms and the Administrative State’s Pastiche: ‘Tribunal’
independence, Impartiality, and bias ............................................................................................ 49
Chapter 12, The Charter and Administrative Law ........................................................................... 56
Suresh v Canada [2002] ................................................................................................................ 60
Singh v Minister of Employment and Immigration [1985] 1 RCS ..................................................... 65
Charkaoui v Canada (Citizenship and Immigration [2007] 1 RCS ..................................................... 70
Chapter 9, Standard of Review: Back to the Future?, pp.279-91, Audrey Macklin ........................... 78
CUPE v NB Liquor Corporation, [1979] 2 SCR 227 ........................................................................... 82
Canada (Director of investigation and Research) v. Southam [1997] .............................................. 84
Chapter 9, Standard of Review: Back to the Future? ...................................................................... 86
Pushpanathan v. Canada (Minister of Citizenship and Immigration) up to 37 ................................. 88
Law Society of New Brunswick v Ryan, until para24 ...................................................................... 91
Chapter 9, Standard of Review: Back to the Future? 300 – end ...................................................... 93
Dunsmuir 2008 ............................................................................................................................. 97
Bastarache, Modernizing JR ........................................................................................................ 101
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 ....................................................... 103
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Dr Q (James Bond style) v College of Physicians and Surgeons of BC ............................................ 105
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342........................... 107
Canada (AG) v Mossop [1993] 1 SCR............................................................................................ 109
Pushpanathan v. Canada (Minister of Citizenship and Immigration) after 37 ................................ 114
Chapter 10, Pas de Deux: Deference and Non-deference in Action, pp.342-79 .............................. 115
Domtar inc v Quebec, 1993 ......................................................................................................... 120
Law Society of New Brunswick v. Ryan after para. 24 .................................................................. 122
Canada (Fisheries and Oceans) v David Suzuki Foundation .......................................................... 124
Chapter 11, Administrative Discretion, 381-401........................................................................... 126
Chapter 12, The Charter and Administrative Law, 422-37 ............................................................ 132
Slaight communications Inc. V Davidson [1989] 1 SCR 1038 ......................................................... 135
Multani v Commission scolaire Marguerite Bourgeoys ................................................................ 138
Little Sisters Book and Art Emporium, BC Civil Liberties Association, James Eaton Deva and Guy
Allen Brice v The Minister of Justice and Attorney General of BC 2000 SCC 69 .............................. 145
Lake v Canada (Minister of Justice), 2008 SCC 23 ......................................................................... 148
Doré v Barreau Du Québec [2012] ............................................................................................... 149
Chapter 12, The Charter and Administrative Law, pp438-48......................................................... 151
Martin v Workers’ Compensation Board of Nova Scotia and AG of Nova Scotia 2003 SCC 54 ........ 153
Montambault c Hôpital Maisonneuve-Rosemont, 2001 RJQ 893 .................................................. 156
Grenier v Canada 2005 FCA 348 .................................................................................................. 159
AG and Jim Blackler v Michiel McArthur [2010] 3 RCS .................................................................. 160
Chapter 15: The Federal Court and Administrative Law ............................................................... 160
Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society ........................ 164
Chapter Two: Governments in Miniature: the rule of law in the administrative
state
The rule of law in Theory
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No firmly agreed upon core of meaning
Author argues that ROL can be characterized by three features
o Jurisprudential principle of legality
o Institutional practices of imposing effective legal restraints on the exercise of power
o Distinctive canadian political morality
It seems straightforward
o ROL is the idea that law not (wo)men should rule a well ordered political community
o ROL represents a normative standard to which legal subjects can be held
o Stands for supremacy of law
 Everyone no matter what their position is bound by the same legal rule
Arbitrariness
o ROL prevents decision makers from exercising power in an arbitrary way
o Ex: Federal government enacting legislation that offends separation of powers
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o
o
The procedure and doctrine is there in order to prevent such arbitrary decision
making
Decisions may also be found arbitrary on the basis that they are illogical, capricious or
lacks good judgement
 It can also be associated with a unilateral method of decision making (pg 42)
Eg: insite decision where the minister decided not to renew insites exemption
 The ministers decision was arbitrary in the sense that it did not further the
staturoy objectives and lacked a real connection on the fact to the statutory
purposes
Attributes of the Rule of Law
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A foundational ‘metaprinciple’ that organizes a set of related principles
o Separation of powers
o Legality
o Responsible government
o Principle of judicial independence
o Access to justice
o Fundamental justice
o Honour of the crown
 Etc…
Legality is central because it restrains the arbitrary use of power
o By constraining the actions of public officials
o Regulating the activity of law making
o Minimising harms created by the law itself
Dicey’s principle of legality
o Unwritten constitution is best because it is less vulnerable to executive attempts to take
away rights
o Grounds for judicial intervention
 Courts are principle external check on executive
 Constraining administrative discretion through ensuring that administrative
bodies do not overstep the power given by the statute
 Courts role is to protect and vindicate the private autonomy of affected
individuals (pg44)
o The consequence of this is that administrative tribunals are looked on as almost
inherently lawless and given no deference
Fuller and Raz model
o A common set of principles which guide the conduct of all legal subjects, including
public officials
o This means that you will know the law in advance and be able to know when you can act
without the government interfering
o This also works through the idea that like cases will be treated alike
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Fuller and the inner morality of law
o Rule of law as the enterprise of subjecting human conduct to the governance of rules in
order to create a framework for social interaction
o So people voluntarily comply
o In this conception administrative bodies are not lawless so long as they comply with the
principles of legality and rol – they may even be better (46)
 Which means they should be given deference
Raz interpretation of ROL
o One basic idea: law must be capable of guiding the behaviour of its subjects
 Most ROL principles can be derived from this basic idea
ROL acts to minimize the risk of exercise of arbitrary public power
o Eg: overbreadth is a problem because it doesn’t
 Constrain use of power
 Provide guidance for individual behaviour
 Widens the potential to infringe
o The isolation of law from politics
 Though it is difficult to isolate law from politics, ROL should guarantee
impartiality and fairness in decision making
 This gives rise to judicial independence and separation of powers (48)
o Because administrative tribunal span the divide between the judiciary and the executive
and have a signifigant policy making role, their independence is much less protected
Ruling the Judges
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These ideas of the ROL inform judicial understanding of their role
o Dicey thinks that courts are the true arbiters of common law checks
 So admin tribunals would be held to a standard of correctness… little deference
o Fuller thought that litigation was not the best way to ensure accountability because
many outside factors affect when an issue can be litigated
 Availability of $$, inability of courts, no clear general rules ect (50)
o Raz places great emphasis on the ‘principles faithfull application of the law’
o Dworkin’s model
 Legal subjects are entitled to demand a hearing in the courts
 For him the rule of law necessarily entails the judicial determination of rights
through principles interpretation in hard cases where a legal answer must be
crafted by judges from existing legal sources
 Judges not legislators are charged with guarding the moral integrity of political
order
Supreme court of Canada and the rule of law
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Roncarelli illustrates one of the primary functions of the law: the control of executive
arbitrariness
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o
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The court found that Duplessis had stepped outside the bounds of power when he
cancelled Roncarellis liquor license
o The ROL meant that no public official is above the law
o Furthermore, regardless of who made the decision, the substance of the decision was
not in keeping with the purpose of the act: it was to punish R
 By telling the chair of the LCC to cancel R’s license he was substituting his
decision for that of the chair and so went against the legal principle of validity
 This caused a problem though, because if the Chair had not consulted D then
the decision would have been valid, although it was in bad faith
 See Rand’s concurring decision
On the formalist account administrative law concerns the written statues that govern public
decision makers
o They must not act outside their authority
o Judicial review focuses on the limits of the authority given by statute
On the substantive side
o Authority is bound by the purpose and terms of the unwritten and written legal
principles
o Formally valid exercise of discretion can offend the rule of law
A foundational principle but an unwritten one
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Manitoba Language Rights
o By failing to act within the manner and form prescribed by the constitution, the actions
of mb officials had transgressed the principle of legality
o Court defined ROL as a highly texture expression.. conveying a sense of orderliness, of
subjection to known legal rules and of executive accountability to legal authority (55)
 They characterized ROL as the principle of legality
 This principle was characterized in two ways
 It meant that the law is supreme over all
 And it meant that law and order were an indispensable element of
civilized life within a political community
Democracy, parliamentary sov, and ROL inform our understanding of responsible government
New minimalist ROL
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Law is supreme
Requires the creation of actual positive lawz
Relationship between the state and the individual to be regulated by law
Linked to principles of judicial independence
Unruliness in the Lower Court?
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SCC has signalled an unwillingness to engage in any gap filling through the use of unwritten
principles
o However lower courts seem to have been more willing to go there
Lalond case
o Administrative decision to shut down a franco hospital in ON was quashed because of
the unwritten principle of respect for and protection of minorities
Kahdr case
o Justice sharpe used rule of law to justify denying a ministers decision to hand Khadr over
to the US, the very same country who had subjected him to lawlessness when he was
detained in Pakistan
Administering the rule of law
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An expansion of the state and the many administrative decision makers and tribunals required
courts to rethink their relationship to administrative decision makers
Deference
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The role of the courts in a complex administrative state can be understood in two ways
o Policing the exercise of delegated powers to ensure they are doing what they are
allowed to in the statute
o Are themselves under ROL constratins to respect legislative and executive brances
Greater deference was given to tribunals which had more democratic pedigree
o Eg: municipal councils
Now deference could be thought of more as “respectful deference” with an institutional
dialogue
National Corn growers
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The Canadian import tribunal made a decision to put a duty on US corn based on an
investigation
o According to Wilson
 Administrative agencies bear primary responsibility for their legislative mandate
 Admin agencies possess expertise, experience and knowledge that the courts
don’t have
 Statutory interpretation can sustain a variety of unique reasonable decisions
 She was concerned that the court was reintroducing the correctness
standard in judicial review
o Her comments explicitly rejected the old diceyan model
 If the court scrutinized every decision of the tribunal it would soon be useless
o Gonthier for the majority went with a more probing analysis of the tribunals decision
 Although he saw what he was doing as respectful of the tribunals decision, the
effect was to move the standard of reasonableness towards correctness
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This case demonstrates how different models of adjudication explain how judges understand
their institutional role
o Wilson reflects fullers approach
 More respectful
o Gonthier reflects Raz approach
 ROL supports correcting harms created by the law itself
Privative clauses, the standard of Review, and the Adequacy of Reasons
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Privative clauses
o National corn growers was an example of a privative clause that caused problems for
courts attempting to review decisions
 Privative clauses seek to protect admin decisions both from internal dispute and
external judicial review
 Decisions are meant to be final
British Columbia v. Imperial Tabacco
Facts: BC government enacted a law that authorizes an action by the government against a
manufacturer of tobacco to try and get health care related costs incurred from tobacco smokers.
Issue: is the law unconstitutional because it is against the rule of law?
Reasoning: The act does not violate the rule of law or charter. There is not special requirement that
legislation must be devoid of special advantages for the government enacting it. Furthermore, other
than in criminal matters there is no probation concerning retroactive or restrospective legislation.
Companies sued under the act will still receive a fair trial. Just because they think the act is unfair, and
unprecedented does not mean they will not receive a fair trial.
BC v. Christie
Facts: BC imposed a seven percent tax on legal services. C was a lawyer who worked primarily with low
income people. He did not make a lot of money, and despite the fact that many of his legal bills went
unpaid, he was still forced to pay the 7 percent tax on unpaid legal services. This meant that the tax
ultimately prevent low income people from accessing the justice system. C claims that effective access
to the courts necessitates access to legal services.
Issue: does the tax breach a constitutional right to legal services?
Reasoning: C seeks the consitutionalization of a particular type of right. Access to the justice system
aided by a lawyer.
The rule of law embraces at least three principles. First that the law is supreme over government as well
as private individuals, second is the creation and maintenance of an actual order of positive rights which
preserves and embodies the more general principle of normative order, and the third principles that the
relationship between the state and the individual be regulated by law (para 20). General access to legal
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services is not a generally recognized aspect of rule of law. However it is possible that it could be added
as a fundamental aspect of rule of law.
The history of the concept of rule of law does not support the idea that access to counsel is a
fundamental aspect of rule of law. The charter only provides for legal representation in specific
circumstances ie: arrest and detention. A general rule of right to counsel would make this provision
redundant. Historically the right to a lawyer has only been found in the limited context of criminal law.
Held: Appeal allowed
Ratio: access to legal representation is not an aspect of ROL
National Corngrowers v. Canada (Import Tribunal)(SCC, 1990)
Facts
 The Canadian Import Tribunal conducted an inquiry into the importation of corn from
the US into Canada, as authorized under s. 42 of the Special Import Measures Act (SIMA)
 Inquiry determined that the continuing importation of corn had caused or would cause
injury to Canadian corn growers, and provided support for the Deputy Minister’s
decision to impose a provisional duty on American corn imports
 Decision seemed to be final, because:
o Based on a finding of fact informed by their expertise
o SIMA contained a privitive clause (s. 76(1)) stating that every finding of the
tribunal was final
 However, Federal Court Act allows for judicial review if a tribunal has based its decision
“on an erroneous finding of fact made in a perverse or capricious manner” (SDQ)
Issues
1. What is the appropriate standard of review?
2. How deep should a court probe in a patent unreasonableness review?
1. Patent unreasonableness
2. Gonthier: full analysis (look at the result); Wilson: look for immediate defects only
Note that both judgments agreed that review should be on a patent unreasonableness
standard but disagreed about what review on this standard entailed (i.e. the interpretation
of C.U.P.E.): how deeply can you scrutinize the reasons?
Holding
Reasoning
Gonthier (Majority)
 Asks, “did the Tribunal reach a decision that wasn’t patently unreasonable?”
o How can you assess whether an interpretation was reasonable without looking at
the reasons underlying it (and the conclusion itself?)
 Accords more with the “deference as respect” approach
 In the presence of a privative clause, courts will only interfere with the findings of a
specialized tribunal where it is found that the decision of that tribunal cannot be
sustained on any reasonable interpretation of the facts or law (C.U.P.E.)
 Finds all considerations and conclusions made by the Tribunal to be not unreasonable –
disagrees that there was “no evidence” on which to base a finding that material injury
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had been caused
 Decision should therefore be left undisturbed
 Still sees himself as being respectful and deferential – moving away from traditional
Diceyan model
 However, moves the standard of review away from patent unreasonableness and closer
to correctness
Wilson (Concurring)
 “Quick sniff test” – should ONLY look at whether the interpretation of the provision is
“so patently unreasonable that its construction cannot be rationally supported by the
relevant legislation”
 If it isn’t, that should be the end of judicial review
o SHOULDN’T look at international law
o SHOULDN’T look at whether the tribunal can refer to other legislation (such as
GATT) unless the legislature places limits on the legislation that may be referred
to
o SHOULDN’T look at how well the evidence supports the Tribunal’s finding in the
face of a privitive clause
o SHOULDN’T look at the ultimate conclusion made
o Holds these views because she supports deference: doesn’t want courts to
undertake deep, thorough evaluations of the decision because the deeper they
go, the more likely they will be to find a point of contention
 During the 20th C initial suspicion about administrative law gave way, and it came to be
recognized that:
o Officials be allowed a degree of discretion
o Decisions of administrative tribunals should not be subject to the same extensive
form of review as the decisions of courts
 Activist judges who are too quick to quash administrative decisions fail to recognize:
o That these decisions are crafted by those with specialized knowledge of the
subject matter (courts may be much less well equipped in these domains)
o That there is value in limiting the extent to which their decisions may be
frustrated by expansive judicial review
 Statutory provisions often do not yield a single uniquely correct interpretation – invite
discretion
 Judges came to realize for themselves that their approach of non-specialist linguistic and
textual analysis was not always equal to the task – see esp. Professor Arthurs, p. 16
 Here the interpretation cannot be said to be patently unreasonable. The terms
“subsidy” and “material injury” are defined in very broad terms and deference should
be accorded to the expert tribunal.
Sossin, Chapter 5, From Natural Justice to Fairness, pp.147-157
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Author: Grant Huscroft
Title: From Natural Justice to Fairness: Thresholds, Content and the Role of Judicial Review
Introduction
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People are affected by many decisions made by public authorities. But all these decisions have
in common that they must generally be made pursuant to a fair procedure.
“Duty of fairness”: “promotes a better-informed decision-making process, leading to better
public policy outcomes, and helps ensure that individuals are treated with respect in the
administrative process … the duty is context-specific: its content is articulated having regard to
the circumstances surrounding the relevant decision and can be tailored to suit the wide variety
of decision-making contexts to which it applies.” (148)
From Natural Justice to Fairness
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Previously, whether or not one received procedural protection in admin law depended on the
way a decision was characterized. (i.e. a “judicial” or “quasi-judicial” would receive procedural
fairness). Administrative decisions, however, could be made w/o any procedural requirements.
Admin law decisions were viewed as “formalistic” in nature, and JR proceedings focused more
on the nature of the power exercised rather than the impact of its exercise. Applicants thus
sought to characterize their issues as judicial or quasi-judicial so as to receive full protection.
With the growth of the modern regulatory state, change was inevitable. Ridge v Baldwin (UK)
highly influenced SCC to abandon the all-or-nothing approach. This was first seen in Nicholson v
Haldimand-Norfold (Regional) Police Commissioners
o Facts: Probationary policy constable received a summary dismissal around 15 months
into his term of service. He was not given the reasons, notice, and he was not allowed to
make any representations prior to his dismissal. Regulations made under provincial
legislation provided that police officers could not be penalized w/o a hearing and right
of appeal, but mentioned that the Board of Commissioners of Police had authority “to
dispense with the services of any constable within 18 months of his becoming a
constable”
o Reasoning:
 Traditionally this case would have been dismissed: it was a pure admin matter
and he had no say. But the SCC held that a general duty of “procedural fairness”
applies to admin decisions. With this new approach, it was irrelevant that the
board could dismiss N for any reason. Although N could not claim the
procedural protection regulations afforded to those w/ 18 mths of service,
Laskin held that he must not be denied any protection at all. He was entitled to
be treated fairly, not arbitrarily. He was entitled to be told why he was being
dismissed and to be given an opportunity to make submissions (oral or written)
before he was dismissed.
o Note: Laskin did not reject the distinction between admin and judicial or quasi-judicial
decisions in the case; but he instead accepted as a common-law principle the notion
that “in the sphere of the so-called quasi-judicial the rules of natural justice run, and
that in the administrative or executive field there is a general duty of fairness” (p.150).
This distinction later disappeared, and now the duty of fairness (DF) applies across the
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spectrum of decisions that public authorities may make and the requirements of the
duty vary in accordance w/ the relevant circumstances.
Although we speak of “fairness” it is important to remember that we are really talking about
“the procedural character of the duty” (150). i.e. We are concerned with “ensuring that public
authorities act fairly in the course of making decisions, not with the fairness of the actual
decisions they make.” Whether these decisions are substantively unfair is irrelevant.
“DF promotes sound public administration and the accountability of public decision-makers by
ensuring that decisions are made w/ input from those affected by them; well-informed decisions
are likely to be better decisions, and decisions made pursuant to transparent, participatory
processes promote important rule-of-law values.” (150)
DF is a means to an end, and it is important in its own right: it ensures that ppl are allowed to
participate meaningfully in decision-making processes that affect them.
DF requires 2 things: (1) right to be heard and (2) the right to an independent and impartial
hearing
Fairness is a common-law concept, and is thus subject only to compliance to the Charter, or
sometimes ordinary legislation.
In the case of compliance to ordinary legislation, it is considered to be so important that courts
will require specific legislative direction before concluding that this has occurred. (e.g. Kane v Bd
of Governors of UBC (Dickson): “To abrogate the rules of natural justice, express language or
necessary implication must be found in the statutory instrument.” (151)) W/ this approach,
courts recognize the supremacy of the legislature, but simultaneously confer a quasiconstitutional protection upon the common-law duty of fairness.
DF is codified to varying degrees in Can legislation
o Federal level – Canadian Bill of rights protects a “right to a fair hearing in accordance w/
the principles of fundamental justice for the determination of his rights and oblgiations”
o Provincial level – provincial legislation in Alberta, BC, Ontario and Qc.
o Common law DF will fill in the gaps!
Given the wide range of decisions to which the DF applies, the protection afforded by the duty is
necessarily flexible rather than fixed. In practice, the content of DF is informed by the context in
which a particular decision is made and varies in accordance w/ a number of factors. Everything
depends on what the duty is understood as requiring in the circumstances, an this has a
normative dimension: fairness requires the procedural protection the courts think ought to be
required before a decision is made in particular circumstances (e.g. sometimes the courts will
require an oral hearing, and other times a written statement is more than enough)
2 questions arise when JR proceedings are brought alleging a breach of the DF: (1) has the
threshold for the application of the duty been met? (2) what does the DF require in the relevant
circumstances?
Courts require decisions a/t threshold and content of the DF to be made correctly. If not, the
substantive decision made in a particular matter will be quashed and remitted to be remade in
accordance w/ the appropriate procedures.
The substantive portion of a decision theoretically is not affected by a decision on DF (i.e. the
decision-maker could come up w/ the same result), but in practice, it may be difficult for a
decision-maker to reach the same substantive decision on a rehearing. Success on an application
for JR on fairness grounds may have the indirect effect of helping an applicant to secure a
preferred substantive outcome.
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The Threshold Test: When is Fairness Required?
A. Rights, Privileges, and Interests
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DF applies to the decisions of public authorities that affect an individual’s rights, privileges, or
interests (subject to exceptions). Not much dispute about the meaning of these terms exists
because they are not mean to limit the availability of fairness protection. On the contrary, the
purpose of these is to expand the range of decisions subject to DF.
The concepts of rights, privileges and interests are sufficiently broad in scope to cover most
decisions made by public authorities that affect or have the potential to affect an individual in
important ways, even in the absence of any sort of substantive entitlement
B. Constitutional Protection
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S.7 protects a single right: the right not to be deprived of life, liberty, or security of the person
except in accordance w/ the principles of fundamental justice.
Although the principles of fundamental justice subsume procedural justice protection, the right
does not constitutionalize the DF per se. s.7 only applies in the context of deprivations of life,
liberty and security of the person, and this establishes a higher threshold than simply
demonstrating that a right, privilege, or interest is affected.
What this means is that ordinary legislation could limit or even oust the application of DF to
certain situations w/o infringing the Charter
Minister of Manpower and Immigration v. Hardayal [1978] 1 SCC 470
Facts: H tried to enter Canada as a landed immigrant. He did not fulfill the requirements so he was
denied, however because his wife was living in Canada he was able to stay on a ministers permit.
According to the law, the ministers permit may be cancelled by the minister at any time. His permit
came into force on June 11 1975 and was to remain in force until june 10 1976. On March 25th, H got a
letter saying his permit was cancelled and another letter saying he had to leave Canada. He appealed for
judicial review under s 28 of the federal Court Act
Issue: whether the Ministers decision to cancel the permit was of an administrative nature
Reasoning: Although the court could not hear the case until the permit had expired, they decided to
allow leave to appeal because it was a matter of great national importance.
The appeal was made under s 28 of the federal court act which allows appeals regarding ministerial
decisions except those which are administrative in nature and not required by law to be made on a
judicial or quasi-judicial basis. The power to allow people into Canada who had been denied as section 8
allows was intended to be done in exceptional or humanitarian purposes. The minister was given this
power and it was not intended to be subject to any right of fair hearing. Although the reasoning of the
minister must be proper, or an applicant may apply for review under s 18 of the federal court act, in this
case there is no reason why application to s 18 FCA should be made.
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Held: Appeal Allowed
Nicholson v Haldimand Norfolk (Regional) Police Commissioners [1979] 1 RCS
Facts:

N was hired to be a police officer in the town of Caledonia. It was said that he was to serve a
probationary period of 12 months.
 He is fired after 15 months, and he is not given any reasons as to why his services had been
terminated, he was not given any notice prior to dismissal (or the likelihood of this happening).
He is also was not given the opportunity to make representations before his services were
terminated.
 His argument: regardless of how fragile was the security of his position, he was entitled in law
to be treated fairly. He especially argues that he should have had a chance to be heard (claimed
that he had not been given adequate participatory rights – the rights he thought out of the duty
of procedural fairness that the board owed to him)
 Others: there wasn't any obligation to give him notice.
 s. 27(b) of the Regulations under the Police Act said police officers with 18 months or more
service must have a hearing and appeal rights for any disciplinary action. Another provision said
power to dismiss if less than 18 months service not affected by this. (implication being that in a
“probationary” state for first 18 months)
Trial Court

Ontario Divisional Court mentioned 3 points. The third point was of main importance, and it was
about “whether, in the case of a constable who has served less than the 18 months specified in
s27(b), the Board may dismiss peremptorily w/o obligation to give previous notice or assign a
reason or give any opportunity to contest the proposed dismissal.” (316) The court concluded
that the Board did not have the right and ruled in favor of the appellant, i.e. the police officer,
saying that the Commission needed to treat him fairly.
 It can be taken from his reasons that he was asserting a duty of compliance w/ the rules of
natural justice in their traditional sense of notice and hearing, with an opportunity to make
representations, and with reviewability of the decision as much as a less onerous duty of acting
fairly.
 A police officer is not merely in an ordinary master-servant relationship. He is the holder of an
office. Master-servant relationships would not give rise to any legal requirement of observance
of any of the principles of natural justice
Court of Appeal



CA sees it differently, and claims that the 18mth period is actually a probationary period, and
that the express reference to the 18 month period in regulation excluded any inconsistent
contract.
Arnup J.A. decided that because the cop was short of 18ths when he was fired, "the board may
act as it was entitled to act at common law, i.e. w/o the necessity of prior notice of allegations
or of a hearing and, a fortiori, with no right of appeal by the constable". (319)
Furthermore, relying on the expressio unius rule of construction, he also noted that "the
Legislature has expressly required notice and hearing for certain purposes and has by necessary
13
implication excluded them for other purposes." He also did not mention that that there might
be a common law duty to act fairly
 CA ruled that since in this case we were not specifically dealing with the Crown, but rather with
the position of a constable at cml as an office holder “at pleasure”, he could claim no procedural
protection against peremptory removal from office.
Issue: Did Nicholson have a right to be heard? [YES]
Reasoning:
Laskin J (+5):





S.27(b) forms a code for police constables w/ an array of powers that can be discretionary.
Judge then observes that (1) the respondent Board is not the Crown, but a body created by
statute which only will have the powers that are given by statute – thus one cannot resort to the
common law position of a constable; and (2) the words “at pleasure” had been removed from
the statute in 1951 and are no longer applicable to this case. (p.320). In fact, for Laskin: “a
constable is “the holder of a police office”, exercising, so far as his police duties are concerned,
an original authority confirmed by s.55 of the Police Act and by oath of office prescribed by s.64
of the Act” (p.321)
The effect of the ONCA judgment is that any constable that has served for more than 18 months
or more gets protection, but that this not apply for a person serving less time. From the way the
ONCA dealt with the expresso unius rule of construction, “it has carried the maxim much too
far.” And, citing from Colquhoun v Brooks:”the maxim ought not to be applied when its
application, having regard to the subject-matter to which it is to be applied, leads to
inconsistency or injustice.” (p.322)
By reading into s.27(b) the words “at pleasure” or “probationary”, the ONCA has reduced the
status of the office of police constable to that involved in a master-servant relationship merely
because he has served for less than 18 months, and this is glossing s.27(b) too much. A police
officer is a statutory office holder; and he doesn’t hold the office at pleasure. He fits more
closely into Lord Reid’s third category in Ridge, requiring cause for dismissal. (Also mentions
that the Court should re-examine the idea that employees at pleasure can be put out without
reason or prior notice: “It has an anachronistic favor in the light of collective agreements”
(p.323))
Therefore: Although appellant cannot claim protections afforded to officers with 18 months’
service, he cannot be denied all protection. Dropping of the phrase “at pleasure” gives the
status enjoyed by the office holder more substance. He should be treated “fairly” not arbitrarily.
He thus accepts that for the present purposes and as a common law principle what was
accepted in Bates v Lord Halisham: “in the sphere of the so-called quasi-judicial the rules of
natural justice run, and that in the administrative or executive field, there is a general “duty of
fairness”.” (p.324)
This is a notion of fairness that involves something less than procedural protection of traditional
natural justice.
o Citing author Smith in JR of Administrative Action “That the donee of power must “act
fairly” is a long-settled principle governing the exercise of discretion, though its meaning
is imprecise. Since 1967 the concept of a duty to act fairly has often been used by judges
to denote an implied procedural obligation. In general it means a duty to observe the
rudiments of natural justice for a limited purpose in the exercise of functions that are
analytically judicial but administrative.” (p.325)
14



The classification of statutory functions as judicial, quasi-judicial or administrative is confusing,
and to endow some with procedural protection while denying others any at all would work
injustice when statutory decisions raise the same serious consequences for those adversely
affected, regardless of the classification of the function.
o According to the judge, the distinction was clearly made by Lord Pearson in Pearlberg v
Varty: “A tribunal to whom judicial or quasi-judical functions are entrusted is held to be
required to apply those principles in performing those functions unless there is a
provisions to the contrary. But where some person or body is entrusted by Parliament
with administrative or executive functions there is no presumption that compliance with
the principles of natural justice is required, although, as “Parliament is not to be
presumed to act unfairly,” thus the courts may be able in suitable cases (perhaps
always) to imply an obligation to act with fairness.” (p326)
This case “is one where the consequences to the appellant are serious indeed in respect of his
wish to continue in a public office” Therefore, the appellant should have been told why his
services weren’t required and given an opportunity to respond in writing or orally. The Board
would wish to be certain that it had not made a mistake… With the appellant’s response, the
board could take a decision; such a course provides fairness to the appellant
Laskin concluded that at no point had Nicholson been told why he had been dismissed… Looking
at the evidence he concluded that they were only vague assertions.
Dissent Martland J. (+4):


Agreed with ONCA that if less than 18 months, purely probationary.
S.27(b) clearly recognizes the existence of an authority in the Board to terminate the
employment of a police constable within the 18 months. During that period his employment is
at pleasure of the Board.
Ratio:


There is a general duty of fairness in the administrative field, even if it’s less than the principles
of natural justice.
Classification of statutory functions as judicial, quasi-judicial or administrative is no longer
useful.
Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653
Facts:

Under the School Act the school Board can terminate the Director of Education with cause, or can
give 3 months notice to terminate without cause (i.e. “at pleasure”)

Board dismissed Director when he refused to accept a renewal of his contract for a shorter term
than the original. Director brought an action against the Board for judicial review arguing he was
entitled to procedural fairness before being dismissed, and that he had been unlawfully been
dismissed.
Issue: Are there PF rights for an office holder at pleasure? [YES]
15
PF rights are owed here even though “at pleasure” (here minimal PFOs and were required, and were
met, so Knight loses), so:
1) Could be dismissed without cause
2) To the extent that he was owed a duty, the duty of procedural fairness had been satisfied between
the board of education and Knight.
Reasoning:
L’Heureux-Dube:












The Education Act deals with the dismissal of non-teaching personnel. It relies on the terms of
the employment contract and provides for a minimum of 30 day notice.
There may be a general right to procedural fairness, autonomous of the operation of any
statute, depending on consideration of certain factors.
Here neither the statute nor the contract accords a right to procedural fairness.
Threshold question of existence of general duty to act fairly: 1) the nature of the decision to be
made; 2) the relationship b/w that body and the individual; 3) the effect of that decision on the
individual’s rights
It is no longer necessary to consider whether a decision is judicial, quasi-judicial or
administrative because the duty to act judicially and the duty to act fairly arise from the same
general principles of natural justice (although certain cases will be more urgent than others).
Employment relationship between employer and employee was traditionally classified into
three categories:
o (i) master-servant where there is no duty to act fairly when deciding to terminate the
employment (ii) the office held at pleasure, where no duty to act fairly exists, since the
employer can decide to terminate the employment for no other reason than his
displeasure, (iii) the office from which one cannot be removed except for cause, where
there exists a duty to act fairly on the part of the employer. Here we are dealing with
situation 2.
PF has been held as essential in the last two categories
The board having delegated statutory powers, has greater responsibility and therefore needs to
act more legitimately: “Unlike “pure master and servant” relationships, the public has an
interest in the proper use of delegated power by administrative bodies.”
“The fact that an office holder could be dismissed for cause or at pleasure would not warrant a
distinction with regard to the existence of a duty to act fairly, since in both cases statutory
powers are exercised. It is not necessary … to characterize the employment so that it fits into
one or the other of those classes.” However, the distinction between the categories does not
become obsolete.
PF exists only for important decisions w/ important impacts on the individual. Loss of
employment against the office holder’s will is such a decision.
Nothing in the Act does not explicitly or implicitly excuse the Board from acting fairly when
terminating the employment contract of one of its administrative personnel. There is merely a
procedure and discretion to order that a board of review investigate the termination.
An explicit or clearly implicit provision was required to overcome the presumption that the
parties to the contract intended procedural fairness to apply. HOWEVER, the fact that the K
16
does not refer to the necessity of a hearing where no cause is invoked to justify the dismissal
does not amount to a clear implicit waiver of the application of the duty to act fairly.
 PF is eminently variable and its content is to be decided in the specific context of each case. It is
not a purely subjective scenario, but it depends on how close the administrative context is to
the judicial proceedings. Here he deserved a chance to be heard, and heard he was. Every admin
body is master of its own procedure and need not assume the trappings of a court.
Wilson, Sopinka, McLachlin (Concurring):

Appellant was entitled to dismiss him w/o cause. He was held office at pleasure and this
category of employment, as a general rule, does not attract the duty of PF because the
employer can terminate the employment w/o cause or giving any reason. He says this following
definition of office held at pleasure (as defined in Ridge v. Baldwin).
 Usually the statute and regulations and contract must be examined to determine whether the
respondent falls within the excetption.
 Here the Act does not create PF.
 Reading a duty of PF into the K would be to rewrite it for the parties.
Ratio: Threshold question of existence of general duty to act fairly: 1) the nature of the decision to be
made; 2) the relationship b/w that body and the individual; 3) the effect of that decision on the
individual’s rights
Fox-Decent – Procedural fairness – a Pandora’s box of legality





Duty of procedural fairness requires public decision makers to provide a fair hearing
Judges generally take three approaches towards participatory participatory rights and decision
making
o Duty of fairness can only be enforced when anchored in positive law
 Positive law is the only source of legal rights
o The legislative intent view
 Duty of fairness may apply even when the statue is silent
 ‘the justice of the common law will supply the omission of the legislature’
o Common law constitutionalism
 Duty of fairness may apply even when the statute is silent
 Procedural fairness is intrinsic to and constitutive of public authority
FD argues that the duty of procedural fairness is one of the rule-of-law obligations that flows
from the fiduciary position of the administration vis a vis the people it is entrusted to serve
A moral principles can support a legal duty if the principles operates within a legal relationship
o There needs to be a better legal basis for the imposition of the duty of fairness in the
public law
FD believes that the basis for the legal duty is actually the fiduciary relationship between the
state and its subjects
o The individual subject is vulnerable in the sense that they are not entitled to exercise
public power, but they are subject to it.
o This reveals the fiduciary nature of the administrations powers
Procedural fairness as a public fiduciary duty
17


Nicholson was a 5-4 supreme court judgement with a vigorous dissent
o The dissent adopted the positive law view of procedural fairness
o Dissent upheld the old administrative vs quasi-judicial distinction
Laskin’s maj judgement was rooted in the idea that public statutory powers must be exercised
fairly
o The boards powers were rooted in statute
o So ‘the board’s statutory authorization affects the legal framework in which the issue is
to be determined, displacing the at pleasure common law regime of unfettered
discretion with one of public law and fairness’
o L found that N had not received procedural fairness through exchanges he had before
his dismissal
The implicit constitutive argument




In using the fact that the boards powers are based in statute to reject the idea that they can
dismiss N arbitrarily, Laskin uses arguments which are based in the constitutive features of
fiduciary duty from Frame v Smith
o Board has wide discretion which is other regarding (can’t use power for personal gain),
purposive (power only for the sake of the statutes purpose), and institutional
o Power can be exercised unilaterally as long as in good faith
o N is vulnerable to the boards authority
 His serious interests are at stake
These elements of the arguments show that the relationship between the board and its subjects
has all the elements of a fiduciary relationship
Fiduciary relationships exist even when no prexisting rights are stake, all that is needed is
vulnerable interest
Fiduciary relationships exist independently of statute
o Legal duties can be imposed aside from the statue
o So you can impose a duty of procedural fairness even if the statue is silent
o Because they arise from an overarching relationship that transcends the specific
regulatory regime
The argument from public trust


The board holds and exercises public powers as a matter of public trust
When the legislature exercises its authority and produces legislation that delegates public
powers, it entrusts the administration to implement stator regimes which exist for the public
good.
o Therefore power can only be exercised legitimately if it does so on behalf of the people
 (note: what if what was best for the people was dismissing the officer…
although if there was no hearing we may never know if this was the case)
The argument against arbitrariness
18


The rule of law bulwark against arbitrariness has a positive and a negative dimension
o The positive is captured in the Roncarelli principle the public powers can only be used
for the purpose for which they are conferred
o The negative dimension is that even broad grants of discretion do not authorize decision
makers to exercise power arbitrarily
 It is negative because it does not depend on a particular legislative scheme to
determine its content and meaning
If you put the positive and negative together you get a principle
o That public powers my only be used for the purposes for which they are conferred and
this exercise excludes arbitrary uses of power
 Pg 182
A fiduciary argument






The boards public duty to the public is fully consistent with providing N with disclosure of the
allegation and a chance to reply
When a fiduciary has a mandate that extends to multiple beneficiaries with divergent interests,
its duty is to treat each principals interests with fairness and reasonableness
What distinguishes N from the general public is his vulnerability to the boards powers
o Equality does not mean equal treatment
o Ie: differences between two persons can justify differential treatment on grounds of
fairness
The fiduciary model points to employees special vulnerability to policy changes a a sufficient
reason to grant them standing at a public hearing
o A similar argument can be made for other stakeholders whose interest in the policy
decision is greater than an ordinary member of the public
Intrinsic justification of hearings
o They are valuable in themselves
Instrumental value of participation
o You must have a possibility of influencing the decision maker
o Genuine hearings always have an instrumental value
 The question is whether participation in the hearing is also intrinsically valuable
The justification requirement


Knight was a 4-3 split with the majority adopting the common law constitutionalist view of
fairness
Knight merits close examination because it demonstrates the instability of the common law
constitutionalist view
This made Dunsmuir possible 18 years later
19
Ocean Port Hotel v BC 2001 SCC 52
Facts: Ocean Port Hotel (OPH) has a hotel in BC. RCMP investigates and finds a number of incidents
around OPH and the fact that the establishment had not been operating in compliance with the Liquor
Control and Licensing Act, the regulations and the terms of its liquor license. The investigation conclude
in a hearing pursuant s.20 of the Act, in which 5 allegations of non compliance were found substantiated
on a balance of probabilities. The license was thus suspended for 2 days. OPH appeals the decision to
the Liquor Appeal Board by way of a hearing de novo. During the hearing, the board accepts the police
officer’s evidence over that of OPH. Board sides against OPH again, and reconfirms the penalty. OPH
sought an appeal to the BCCA under s.30(9) of the Act.

OPH argument in CA: argues for the first time that the Board lacked sufficient independence to
make the ruling and impose the penalty it had, and that therefore the decision must be set
aside (there were three other objections as well see para8)
BCCA:

Huddard holds that the appointees to the Board lacked the security of tenure necessary to
ensure their independence. Judge follows 2747-3174 Québec Inc v Quebec (Regie des permis
d’alcool) [Regis des alcools]. She identifies 2 principles affirmed in Régie des alcools: (1)
governmental decision makers imposing penalties must comply w/ the requirements of
impartiality and independence; and (2) the content of these requirements depends on the
circumstances in particular the language in the agency’s statute, the nature of the task it
performs and the type of decision it is required to make. Since according to Huddard the
decision to suspend a licence for violation of the Act closely resembles a judicial decision the
content of PF rules (including requirement of independence) must approach the standards
required of a court at common law.
 According to Huddard, OPH’s complaints about fairness involved 2 issues: the fusion of the
General Manager’s prosecutorial and adjudicative roles in the senior inspectors and the
reliance at both hearings on hearsay evidence. She concludes that it is unnecessary to resolve
the arguments surrounding the decision to suspend the license, since the original decision was
only to stand if the appeal process was valid.
 Concerning the independence of the Board the appointments to administrative agency could
not satisfy the requirement of security of tenure.
Issue: Are the members of the Liquor Appeal Board sufficiently independent to render decisions on
violations of the Act and impose the penalties it provides? [YES]
Reasoning: (McLachlin)


According to the Court: “it is well established that, absent constitutional constraints, the degree
of independence required of a particular government decision maker or tribunal is determined
by its enabling statute. It is the legislature or Parliament that determines the degree of
independence required of tribunal members. The statute must be construed as a whole to
determine the degree of independence the legislature intended.” (para20)
“Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the
legislature intended the tribunal’s process to comport with principles of natural justice. In such
circumstances, administrative tribunals may be bound by the requirement of an independent
20
and impartial decision maker, one of the fundamental principles of natural justice. Indeed,
courts will not lightly assume that legislators intended to enact procedures that run contrary to
this principle, although the precise standard of independence required will depend “on all the
circumstances and particular on the language of the statute under which the agency acts, the
nature of the task it performs and the type of decision it is required to make.” (par21)
 The degree of independence required of tribunal members may be ousted by express statutory
or necessary implication. “Ultimately, it is Parliament or the legislature that determines the
nature of the 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.” (para22)
 The principle reflects the fundamental distinction between admin tribunals and courts. Superior
courts are constitutionally required to be independent. Administrative tribunals do not have
this constitutional distinction, “They are, in fact, created precisely for the purpose of
implementing government policy.” (para23)
 Although at times they might have to make quasi-judicial distinctions, they have a primary
policy-making function and “it is properly the role and responsibility of Parliament and the
legislature to determine the composition and structure required by a tribunal to discharge the
responsibilities bestowed upon it.” (para24) The only limit will be the constitutional constraints.
Application to facts:





Here BC legislature clearly indicated in the statute the nature of appointments to the Liquor
Appeal Board. The Board members should serve “at pleasure”, as expressed through s.30(a) of
the Act. This was not an ambiguous statute, and no higher degree of independence to meet the
requirements of natural justice should be imposed.
In any case, the question to be asked is: “Is this what the legislature intended?”. In this case,
there is no room to presume otherwise.
Distinction with Régie: The Court here makes a distinction between the present case and Régie
des alcools: in Régie, the requirements of independence came from a statute (i.e. s.23 of the
Quebec Charter of Human Rights and Freedoms). There is no equivalent in BC. Court claims that
the BCCA erred in applying the Régie case to the facts.
Distinction judicial courts/admin tribunals: Court also claims that no constitutional guarantee
of independence is implicated in the present case. The appellant had claimed that at least a
minimum degree of independence for some admin tribunals should exist (in doing so he
invokes the Provincial Court Judges Reference that claimed that judicial independence was an
unwritten constitutional principle). Judge rejects the argument claiming that the language and
reasoning of that decision was confined to superior and provincial courts. The constitutional
guarantee in the preamble to the 1867 Constitution Act does not extend to administrative
tribunals.
Separation of powers argument: Separation of power argument does not work either
according to the court: admin tribunals, although “they may possess adjudicative functions,
they ultimately operate as part of the executive branch of government, under the mandate of
the legislature. They are not courts and do not occupy the same constitutional role as courts.”
(para32) The Liquor Appeal Board is not a court, “It is first and foremost a licensing body. The
suspension complained of was an incident of the Board’s licensing function. Licences are
granted on condition of compliance with the Act, and can be suspended for non-compliance.
The exercise of power here at issue falls squarely within the executive power of the provincial
government.”
21


OPH also attempted to raise a question on the issue of the reasonable apprehension of bias.
But in its judgment, the BCCA did not decide on the issue that was cited by OPH. They only
dealt with the issue of independence.
As the court affirmed the independence of the Board, the case is resubmitted to the BCCA to
consider all remaining issues.
Ratio:


When the legislature is silent or ambiguous on PF, PF is presumed. However, this presumption
can be rebutted by an explicit mention in the statute (if the statute is not constitutionally
challenged…)
Judicial courts (i.e. superior courts and courts of appeal) are distinct from administrative
tribunals in the sense that judicial independence is a constitutional requirement for judicial
courts. Administrative tribunals, as they are created by statute, are dependent on the executive!
Authorson v Canada (A-G) [2003] 2 SCR 40
Facts: A was a disabled veteran who had a government pension for veterans. The various pension and
disability schemes for veterans provides that when a pensioner is incapable of managing funds, an
administrator may be designated. This appeal concerns those moneys of veterans administered by the
DVA until 1990. When the DVA acted as administrator, the department would make the veterans
cheques out to an official in the department and deposit the cheque into a general account which was
tracked as if it were a special account for the pensioner. The administrator would then make payments
for the veteran. These funds could grow to substantial amounts. Until 1990 these funds rarely got
credited with interest although it was legally possible to do this. Authorson was mentally incapable from
1943 until 1991 when he became competent to manage his affairs. His funds had not gained interest
while they were administered by the DVA. The crown admits they owe Authorson and other veterans
interest on their pensions, but the act passed makes this claim unenforceable.
Issue: Do the due process protections of the bill of Rights guard against the expropriation the veterens
interest on their deposits the by passage of the legislation?
Reasoning:
Procedural rights in legislative enactment
The applicant claims the right to contest the passage of s 5.1(4) of the DVAA. The Bill of Rights allows the
deprivation of the enjoyment of property only through due process of law. Longstanding parliamentary
tradition does not require parliament to provide notice and hearing when depriving people of their
private property. The only procedure due any citizen is that the proposed legislation receive three
readings in the HoC and the senate. “courts come into the picture once legislation has been enacted not
before” – from reference on amending the constitution. The Bill of rights discusses laws already
enacted. Court interference with the legislative process is not an interpretation of an already enacted
law.
Procedural rights in Application of the law
22
The bill of rights guarantees notice and some opportunity to contest a government deprivation of
property rights only in the context of an adjudication of that persons rights before a court. Where the
law requires administrative discretion or judgements of specific situations, the right to contest may be
required. Eg: a board deciding to cancel a police officer’s pension vs. cancelling the pensions of all
officers. In this case the government is not deciding on a specific factual situation, but eliminating the
interest paybacks on all DVA pensions.
Substantive due process rights
The respondent claimed the rights, based on a broad conception of the rule of law, against the
expropriation of property. After the US experience with the Lochner case, courts are very hesitant to
import substance into the due process guarantees of the bill of rights without “compelling reasons”
relating to “objective and manageable standards by which a court should be guided”. In the proper
circumstances, due process requirements can contain substantive protections.
The bill of rights does not protect against the expropriation of property by the passage of unambiguous
legislation. It only protects rights that existed at the time of its passage. At that time parliament had the
clear right to expropriate property if it made its intention clear. In this case the DVAA makes the
intention of parliament clear. They did not want to be held on account for interest on the pensions they
were administering.
Section 2(e) of the bill of rights
The applicant claimed that he had the right to a fair hearing in accordance with principles of
fundamental justice because of the expropriation of his property. However s2(e) only works for
individual rights such as protections against cruel and unusual punishment, the presumption of
innocence… etc. Therefore this section does not impose a duty on parliament to a fair hearing before
the enactment of legislation. This obligation is only for specific circumstances arising from legislation
that has already been enacted.
Conclusion
Disabled veterans are owed decades of interest on their pensions. Parliament has chosen to lawfully
deny this interest to pensioners, to whom they owed a fiduciary duty. The due process protections of
property in the Bill of Rights do not grant procedural rights in the process of legislative enactment, only
in the adjudication of individual rights and obligations.
Held: Appeal allowed
Air Canada v AG Canada, QCCA, 2003
Facts: Air Canada (AC) dominates the Canadian interior flights market by 90%. In order to reply to this
monopoly, Parliament adopted article 104.1 of the Competition Act. The disposition allows to give
interim orders against Air Canada if ever they were to act in anti-competition way. The interim orders
23
are “sans préavis et sans donner au préalable à qui que ce soit la possibilité de présenter des
observations”. AC attempted to convince the Superior Court judge that the article was illegal, and that it
most notably went against s.2(e) of the Bill of Rights (BR), but failed.
Issue: Does article 104.1 infringe the BR? [YES. The article must be declared inoperative]
Reasoning:
Bill of Rights

Respondent claims that the BR is outdated (“cette loi est désuète”), and that tribunals refuse to
use it to invalidate laws that were subsequently adopted. The responsent also claims that the BR
should not be used for a purely economic matter (para40)
 Judge does not adopt this limited approach on the BR, “Une telle façon de penser s’appuie sur
un courant de pensée qui avait cours à l’âte d’or du principe de la souveraineté parlementaire.”
(i.e. outdates way of thinking) (para41)
 BR is a quasi-constitutional document, and since Drybones, the tribunals have not hesitated to
use the BR to declare any legislative disposition inoperative that went against the BR.
 Although the BR does not directly require to invalidate laws that are completely contrary to the
BR, they can at least declare them inoperative (Drybones) (para44)
 BR has still not lost all its weight since the Charter. In fact, it covers two aspects that are not
included in the Charter: (1) property rights (1(a))and (2) PF (2(e)).
 From the moment that a person’s rights and obligations are affected in the broad sense, one has
to gets the right to an impartial hearing (i.e. s2(e)). Therefore, if article 104.1 does not allow AC
to benefit from a right granted by the BR, then the article is invalidated.
Principles of Fundamental Justice

In order to apply the BR, one needs to determine if the content of 104(1) respected s.2(e) of the
BR.
 In Pearlman, fundamental justice was defined as one of the fundamental precepts on which our
juridical system reposes. The precepts are comprised of the rules of natural justice, and the
obligation to act equitably that have been elaborated in admin law.
 AC claims that 104(2) violates the rules of natural justice (both nemo judex in sua causa and audi
alteram partem) because the article authorizes the commission to give out its own interim
orders without having obtained the authorization of an independent tribunal, and without
permitting people to make any observations.
 Although it is true that the legislator can modify the principles of procedural equity, he must
does this by conforming to the constitution and constitutional documents. A law will be in effect
if it is not attacked constitutionally. And, in this case, AC claims that the BR (quasi-constitutional
document) must be taken into account.
 Important to highlight that whenever there is a constitutional issue at play, it is not just about
the legislator’s will, especially when the ‘notwithstanding’ clause has not been used.
Normative Content

In order to determine the content of the rules of natural justice in a case, it is important to look
at all the circumstances in which a BR operates, and not just the qualification process that
brought on the organization’s decision. (Judge examines the types of circumstances that are
evaluated for PF (e.g. Baker criteria…) (paras59-61))
24

The global analysis of the normative content of the rules of natural justice in a case are also
evaluated in a continuum principle (para62).
 As mentioned by Gonthier in Régie des alcools, what matters is not "the characterization of the
organization as a whole", but the specific function which is the subject of the review.
 He then applies this “global approach” to the facts.
Application to the Facts

Nature of the decision sought: He claims that the Commissioner’s decision has the same
function as an interlocutory injunction, which has the same effects as if it was rendered by the a
tribunal.
 Procedural sequence: In this case there is no right of hearing. In fact, this is explicitly excluded in
para104(2). Judge after analyzing s.104 closely also mentions that the interlocutory injunction
will affect several parties, and that there is a presupposition that there is bound to be several
opposing interests.
 Substantive rules: s.79 specifically makes the Commission investigate the possibility of abuse
from a party that is in a dominating position (i.e. that holds a monopoly). Therefore, this means
that the Commission is in charge of applying substantive rules to individual cases, and not
merely to apply a broad social or economic policy
 Affected rights and legitimate expectations of the person: the Commission will intervene in the
commercial activities of a moral person. Breach of the rules could bring on sever consequences.
Therefore, it is reasonable to conclude that a person affected by this rule has the right to be
heard before an order of long duration is given out.
 The provisional nature of the order: AG argues that the rules of natural justice do not apply
themselves because the Commissioner’s orders are provisionary and do not affect in an ultimate
way the rights of AC. Nevertheless, although it is true that the procedural guarantees only apply
themselves to a final decision. The SCC has defined a final decion as one that has an immediate
and direct effect on a party, rather than a preliminary decision that will have no effect on the
parties. In this case, the Commissioner’s order will have an immediate and direct effect.
 Conclusion on the normative effect of art.104(1): Taking all the criteria together, it seems like
this type of rule will demand recourse to a process of adequate procedural guarantee.
Now, does 104.1 offer these guarantee?

Nemo Judex in sua causa
o Justice notes that there can be an exception to this principle, when the overlapping
functions are authorized by law (whenever of course the constitutionality of the law is
not challenged).
o However he claims that in this case a high level of procedural guarantee is imposed in
this case, and that art104.1 of the law does not ensure that the people affected by this
section receive a fair hearing. Analyzing in detail the members of the Commission and
their overlapping functions, he concludes that the overlapping functions gives no
respect for the BR.
 Audi Alteram Partem
o Here the legislator has excluded the affected persons from any possibility of making any
observations. Thus 104.1 does not satisfy the minimum content of procedural
guarantees.
Are these limitations justified?

Supporting analysis
25
o
o
The rules of natural justice are norms that can be flexible, especially concerning content.
As a general rule, one can determine the normative content in taking into account the
legislative goals and the means used to achieve them.
o In this case, Parliament has not even tried to work with the rules, but has suppressed
them. Exceptionally there can be circumstances in which Parliament is allowed to do
them.
o Formally, BR does not have a section 1 as does the Charter. So the Judge decides to use
an approach similar to Oakes on the BR (see paras97-107), and claims that 104(1) does
not ensure the procedural guarantees that the circumstances seem to require
Ratio: Beware of the BR!!!
Canada (AG) v Inuit Tapirisat [1989] 2 SCR 735
Facts:

In 1976, Bell applied to increase their rates. CRTC having the authority to do this, conducts
lengthy hearings in Ontario, Quebec and the Northwestern Territories concerning this
proposition. Inuit Tapirisat (IT) participated in this proceeding. CRTC eventually decides to
increase the fees.
 IT intervened to CRTC to oppose part of Bell’s application. Governor in Council has discretion to
vary or rescind such orders by CRTC.
 When case went to Cabinet, IT was not given opportunity to make submission on their own
behalf, although Bell was. Minister dismissed appeal.
 Arguments IT: the Governor in Council when deciding on a petition pursuant to s.64 of the
National Transportation Act (i.e. the act that their case was decided on) becomes a Federal
Board within the meaning of s.18 of the Federal Court Act. Thus this requires that the Governorin-Council decide these appeals himself and that he reach the decisions by means of a
procedure which is fair and in accordance w/ the principles of natural justice. Yet, by completely
excluding IT from the decision making process (the Governor-in-Council did not hold a hearing at
all), the GinC made the order-in-council null. Furthermore, even if there was a hearing, the
procedure employed did not result in a fair hearing, which also makes the decisions and orders
null.
 Essentially, their position is principally founded on the failure of the Governor-in-Council (a) to
receive the actual petitions of the respondents and (b) to afford the respondents the
opportunity to respond to the case made against them by the Minister, the departmental
officials and the CRTC.
Issue: Does the Governor in Council (Cabinet) have a duty to observe natural justice, or even a duty of
fairness, when reviewing regulatory decisions? [NO (Canada/CRTC/Bell wins)]
Reasoning: (Estey)


Judge claims that depending on what is understood by “any tribunal” and the terms of the parent
statute: “Natural justice requires that the procedures before any tribunal which acting judicially
shall be fair in all circumstances.” (Wiseman v Borneman, Lord Reid) This was the issue explored in
Nicholson.
Furthermore, he adds “that the mere fact that a statutory power is vested in Cabinet does not mean
that it is beyond review. If that body has failed to observe a condition precedent to the exercise of
26






that power, the court can declare that such purported exercise is a nullity.” (p.748). In fact,
although since Nicholson, it is no longer necessary to classify power as “administrative” or “quasijudicial”, the Court must still look at the statutory provisions to see if it makes the decision-maker
subject to any rules of PF (p.750)
It is not helpful to attempt to classify the action or function by the Governor in Council into one of
the traditional categories established in the development of administrative law. The GinC can still
be held accountable if arbitrary: “…in my view the essence of the principle of law here operating is
simply that in the exercise of a statutory power the Governor in Council, like any other person or
group of persons, must keep within the law as laid down by Parliament or Legislature. Failure to do
so will call into action the supervising function of the superior court whose responsibility is to
enforce the law…” (p.752)
In this case: s.64(1) of the National Transportation Act delegates to CRTC the function of approving
telephone service tolls with a directive as to the standards to be applied. Following this, there is a
secondary delegation of the rate-fixing function by Parliament to the Governor in Council, but this
function only comes into play after the Commission has approved a tariff of rolls. Once that done,
the power arises in the Governor in Council to establish rates for telephone service by the variation
of the order, decision, rule or regulation of the CRTC. While the CRTC must operate within a certain
framework when rendering its decisions, Parliament has in s.64(1) not burdened the executive
branch with any standards or guidelines in the exercise of its rate review function. Neither were
procedural standards imposed or even implied.
 However, this is not to say that the courts will not do anything about the situation if
there is absolutely no observation of the orders on the behalf of the executive. But that
matter is quite different (and we are not faced with it here).
It is not possible to tell Parliament how to delegate its power: “The very nature of the body must
be taken into account in assessing the technique of review which has been adopted by the
Governor in Council. The executive branch cannot be deprived of the right to resort to its staff, to
departmental personnel concerned with the subject matter, and above all to the comments and
advice of ministerial members of the Council who are by virtue of their office concerned w/ the
policy issues arising by reason of the petition whether those policies be economic, political,
commercial or of some other nature. Parliament might otherwise ordain, but in s.64 no such
limitation has been imposed on the Governor in Council in the adoption of the procedures for the
hearing of petitions under subs.(1).”(p.753)
This is legislative action in its purest form: s.64(1) mentions that the Governor in Council may “of
his motion” vary or rescind any rule or order of the Commission. In other words: “This is legislative
action in its purest form where the subject matter is the fixing of rates for a public utility such as a
telephone system.” (p.754)
In fact, the concluding words of 64(1) imply that all parties will be bound by the decision of the
Governor in Council: “if the nature of the matter before the Governor in Council under s.64
concerns parties who have been involved in proceedings before the administrative tribunal whose
decision is before the Governor in Council by virtue of a petition, all such persons, as well as the
tribunal or agency itself, will be bound to give effect to the order in council issued by the Governor
in Council upon a review of the petition.”
Although it was possible that previously the Governor in Council did allow actual oral hearings in
which parties were allowed to participate, “these proceedings do no more than illustrate the
change in growth of our political machinery and indeed the size of the Canadian community.” But,
“the population of the country was a fraction of that today.” Needless to say, the Governor in
Council can still do those if he wishes.
27

On implying PF – it will not be implied in every case: While it is true that a duty to observe PF, as
expressed in audi alteram partem, need not be express, it will not be implied in every case. “It is a
question of construing the statutory scheme as a whole in order to see to what degree, if any, the
legislator intended the principle to apply.” (p.755)
 In this case: the supervisory power of s.64 is vested in members of the Cabinet so as to
enable them to respond to the political, economic and social concerns of the moment.
Under this section, the Cabinet (and the executive branch) exercised the power
delegated by Parliament to determine the appropriate tariffs for the telephone services
of Bell. Unless otherwise directed in the enabling statute, the Cabinet in so doing must
be free to consult all sources which Parliament itself would have consulted had it
retained this function.
 The Governor in Council has complete discretion provided he observes the jurisdictional
boundaries of s.64(1).
 It has been criticized by some that a carefully considered decision by an administrative agency could
be overturned by a Governor in Council. However, Parliament seems to see this as an area
inordinately sensitive to changing public policies and hence it has been reserved for the final
application of such a policy by the executive branch of government.
 In conclusion: “Given the interpretation of s.64(1) which I adopt, there is no need for the Governor
in Council to give reasons for his decisions, to hold any kind of a hearing, or even to acknowledge
the receipt of a petition. It is not the function of this Court, however, to decide whether Cabinet
appeals are desirable or not. I have only to decide whether the requirements of s.64(1) have been
satisfied.” (757)
 In this case the delegate in charge of dealing with the delegated legislation is the executive branch
of government. Furthermore, where the executive branch has been assigned a function
performable in the past by the Legislature itself and where the subject matter is not an individual
concern or a right unique to the petitioner or appellant, different considerations may be thought to
arise. The fact that the function has been assigned as here to a tier of agencies (CRTC and Governor
in Council) does not 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. The phrasing in 64 does not seem to reveal any basis for the introduction by implication
of the PF demanded in Nicholson.
 On a proper construction of s.64 the issue of fairness does not arise in these proceedings
Ratio: A court must always look at the constituting statute in order to determine the degree of PF that
was implied. Direct branch of government (such as the Governor in Council) are entitled to a great
amount of discretion, because it is a legislative action in its purest form. Therefore, there is less right to
PF.
Reference re: Canada Assistance Plan [1991] 2 SCR 525
Facts: The Canada Assistance Plan authorizes the government of Canada to enter into agreements with
the provinces to pay them contributions towards social assistance and welfare. S 5 of the plan
authorizes payments to the provinces under these agreements. It authorizes payments up to half the
provinces expenditures. It also provides that agreements can be terminated by mutual agreement or
28
with one year notice. In 1990 the government decided to cut funds under the plan. One feature of the
new plan was to limit social assistance payments to more the economically strong provinces who don’t
receive transfer payments.
Issues:
1) Are the matters raised justiciable?
2) If the questions are justiciable then they must be interpreted then answered.
Legislative History: The BCCA found that the Canada AG did not seriously contend that the federal
government could limit its obligations under the current plan and agreement except by legislation. The
very introduction of Bill c-69 was aimed at limiting those obligations. On Question 2 he found that BC did
have a legitimate expectation that the feds would proceed as per the agreement, that the question was
jusiticable and that parliamentary sovereignty could not release Canada from its obligations except in
cases of national emergency. The dissent took the opposite view on question 2, citing lack of
constitutional authority for the idea of legitimate expectations in conflicts between the provinces and
the governments. She found that judicial review was limited to interpreting the constitution in these
cases.
Reasoning:
Are the questions justiciable?
The Canada AG argues that the questions before the court are purely political and that answering then
would draw the courts into the legislative process. Although many questions have political components,
questions having a sufficient legal component will warrant a decision by a court. Since only a court can
authoritatively resolve a legal question, its decision will serve to resolve a controversy or it will have
some other practical significance. In this case both questions have a significant legal component,
warranting a legal decision. Decisions on these constitutional questions will not only provide practical
legal guidance, but assist in resolving the controversy. There is no other forum for these legal questions.
Has the GoC statutory or prerogative or contractual authority to limit its obligation under the Canada
Assistance Plan? (Yes)
This question must be given an interpretation that will help to resolve the dispute. This question should
therefore be interpreted to ask the court to determine whether the Agreement obliges the GoC to pay
BC the contributions that were authorized when the agreement was signed or whether the obligation is
to pay those contributions which are authorized from time to time. The plan specifies that Canada has
to pay BC contributions authorized under the Act and Regulations. According to s 42 of the
Interpretation act, all acts are interpreted so as to reserve parliament the power of repealing or
amending it. This reflects the principle of parliamentary sovereignty. The parties knew that parliament
had the power to repeal or amend legislation when they signed the agreements and the plan was
enacted. In that case if they had wanted the payments to be forever you would have thought that they
29
would have put in clear language freezing the payments. Without this, the natural meaning is that the
obligation to pay is authorized from time to time. The government could therefore amend the plan.
Six points on the ‘static’ interpretation from the BCCA
1. The parties would not have agreed to the arrangement if Canada could change it unilaterally
a. Not true because both parties could terminate the agreement with notice according to
the plan
2. The ordinary rule of interpretation says that an agreement should be interpreted with reference
to the state of affairs at the time (ie: the amount of the payments was set out)
a. Not true because they put the payment formula into a statute that could be amended
3. The “fragile constitutionality” of federal spending power. The only reason the payment formula
was put in the act was because GoC can’t spend money without an Act of Parliament.
a. Not true, not only because both parties were aware that statues can be changed, but
because no attempt was made to structure the formula in a way to fetter this amending
power
4. S 9 of the plan says that the regulations to the plan cannot be changed without the agreement
of the province. This demonstrates that the plan could not be changed unilaterally.
a. This argument makes no sense. Parliament has authorized the federal government to
enter certain agreements and the regulatory powers that go along with them, but that
doesn’t mean that regulatory powers can be used to restrict parliaments sovereign
legislative power
5. S 5 if the plan demonstrates that when Canada intended to create an ambulatory crossreference it does so explicitly, therefore the rest must be static
a. The two documents (the agreement and the plan) were created by different authorities.
An expression in one shouldn’t be used to interpret another.
6. Because parliament could not unilaterally change the meaning of the agreement they could not
unilaterally change the terms defined in the plan.
a. Regulation and legislation are not the same. Furthermore the agreement was made with
the understanding that the amounts were subject to the power to amend. They must
have understood that this includes the ability to change definitions.
In closing, this agreement was not an ordinary contract and cannot be interpreted as such.
Answer question 1: Yes.
Do the terms of the Agreement dated March 23 1967 between GoC and BC give rise to a legitimate
expectation that GoC would not change the terms of the agreement by statute? (No)
The BCCA interpreted this question as seeking a declaration that Canada breached a legal duty to act
fairly. However the court must be careful not to interpret the question into a new question. Sides with
the BCCA dissenting judge interpreting the question to be whether there is any legal impediment to
parliament enacting Bill c-69 and adds if there is any impediment caused by legitimate expectations.
30
Legitimate expectations
This principle developed as an extension of the rule of natural justice and procedural fairness. If affords
a party affected by the decision of a public official an opportunity to make representations in
circumstances in which there otherwise would be no such opportunity. It is cases where the person was
led to believe that they would not have their rights affected without consultation.
Legitimate expectations in this case was argued to mean that parliament could not pass new legislation
without consulting BC. If the doctrine of legit consent required consent and not consultation it would be
the source of substantive rights. In this case the right to veto proposed legislation. There is NO SUPPORT
FOR legit expectations creating substantive rights in Canadian law. Furthermore, the doctrine does not
apply to bodies with a purely legislative function. Courts do not intervene in the legislative process.
Legitimate expectations also do not constrain the executive from proposing a bill to parliament. The
executive and parliament are part of the same legislative wing of government. Imposing the doctrine of
legit expectations on them would paralyse parliament. In addition a government is not bound by
decisions of its predecessors.
Constitutional conventions


The question as interpreted does not deal with conventions.
The existence of a convention is irrelevant
Manner and form


The plan does not demonstrate a manner and form requirement
o Any manner and form requirement in an ordinary statue must overcome the clear
words of s 42(1) of the interpretation act
 Every act shall be construed to allow parliament to repeal it…
o In order to get around s 42 it must be clear that parliament intended to bind itself
o When the court has found manner and form requirements they have not so far been in
an ordinary statute
 Statutes with manner and form requirements have had a constitutional nature
o The plan has no constitutional nature
 Fail
Also, manner and form requirements can’t tell you what the legislation contains, they can only
contain procedural requirements
o Otherwise you are telling future parliaments what to do and it is not a ‘manner and
form’ procedural requirement
o This is the case here
Jurisdiction
31

The plan did not give the provinces a vested right in parliaments monetary contributions, nor
does it mean that withholding monetary contributions interferes with provinces right to
legislate in their area
Answer to Question 2: No
Held: Question 1: Has the GoC statutory or prerogative or contractual authority to limit its obligation
under the Canada Assistance Plan? (Yes) Question 2: Do the terms of the Agreement dated March 23
1967 between GoC and BC give rise to a legitimate expectation that GoC would not change the terms of
the agreement by statute? (No)
Appeal Allowed.
Ratio: You can’t fuck with parliament’s decision making power. The only procedure you get before
legislation is enacted is two readings in the HoC and one in the senate… boo yeah. (or an election
apparently)
Chapter 5: From Natural justice to Fairness pg 162-168



The duty of fairness is flexible and context-specific
o Fairness requires compliance with some, but not all the requirements of natural justice
o Fairness is a minimum duty that must be met
Scope of the duty of fairness in different contexts:
o Criminal law prosecution
 The stakes are high in this area of law
 Ppl are at risk of losing their liberty as well as other serious consequences
 None of the criminal law procedural protections are controversial in that
context however they may have little relevance in admin procedure
o Human Rights Adjudication
 The stakes for a human rights complaint are lower than in criminal
 However the consequences are still significant in this case
 Yet human rights tribunal members are not as impartial as judges
 However the essence of the right of fairness is similar to that in criminal
o Right to call evidence
o cross examine
o to make and reply to arguments
o Licensing regulation
 People who are licensed for their work have a strong interest in the license
 But they may not be entitled to an oral hearing on all licensing matters
 Sometimes a formal hearing may be required
Duty of fairness concerns are least likely to arise in the context of tribunals required to provide
oral hearings because the procedure is usually clear
o Some boards can determine their own procedures
o Others have their procedures set out by statute
32
o
Others still are governed by the common law considerations laid out in Baker
Baker



This reiterated the purpose of the duty of fairness and set out a number of criteria relevant to
determining its content
Mavis Baker was a domestic assistant from Jamaica who had been an illegal immigrant in
Canada for 11 years
o She had four kids in Canada and they wanted to deport her back to Jamaica
o She also had a psychiatric illness
The decision recalled that each administrative tribunal was master of its own proceedings
o Doesn’t need to be just like a court
The baker Synthesis

Five criteria relevant to determining the content of the duty of fairness in particular
circumstances
o Nature of the decision being made and process used to make it
o The nature of the statutory scheme and the terms of the statue pursuant to which the
body operates
o The importance of the decision to the individual or individual affected
o The legitimate expectations of the person challenging the decision
o The choices of procedure made by the agency itself
Dunsmuir v New Brunswick 2008
Facts:
Maple Lodge Farms v Government of Canada, [1982] 2 SCR 2
Facts:

Maple Lodge Farms (MLF) wants to import live chickens into Canada. In order to do this, he
needs a supplementary import permit, which can be granted under s.8 of the Export and Import
Permits Act. This is at the discretion of the Minister of Economic Development. Despite his
claims that these are essential to his business, he was refused a permit.
 He applied to the Federal Court Trial Division, but the motion was dismissed. He then appealed
to the Federal Court of Appeal, who equally dismissed his appeal. Appeal was granted by the
SCC, but they immediately claim to agree with the disposition of the Federal Court of Appeal.
The remarks that follow are intended to supplement and not qualify those reasons.
Issue: The issue on appeal whether the Minister had the discretion under the Act to act as he did, and
whether it was exercised properly? [YES; YES]
Reasoning: (Mcintyre)
33

MLF argued that originally the right to grant permits was reserved to the Governor in Council,
and that therefore the position of the Minister was purely administrative, and that he could only
issue permits when the conditions set by the GinC were met.
 For the court, the role of the Minister may not be so restricted. The word “may” in s.8 of the
Act grants the minister discretion as to whether or not issue an import permit in a particular
case. They therefore agree with the lower courts.
 The fact that the Act contains the words “a permit will normally be issued” does not fetter that
discretion. These words are not the equivalent to “a permit will be necessarily issued”.
Discretion is given by the Statute and the formulation and adoption of general policy guidelines
cannot confine it. “There is nothing improper or unlawful for the Minister charged w/
responsibility for the administration of the general scheme provided for in the Act and
Regulations to formulate and to state general requirements for the granting of import permits.”
(p.6)
 General terms of what the policy and practice of the Minister will be can be helpful, but to give
guidelines “would be to elevate ministerial directions to the level of law and fetter the Minister
in the exercise of his discretion.”
 Whenever construing a statute, it is necessary to stick to the legislator’s intent when reading the
provisions. Courts should avoid, wherever possible, a narrow technical construction, and
endeavor to make effective the legislative intent as applied to the admin scheme involved.
 “Where the statutory discretion has been exercised in good faith and, where required, in
accordance with the principles of natural justice, and where reliance has not been placed upon
considerations irrelevant or extraneous to the statutory purpose, the courts should not
interfere.” (p.8)
Ratio: One needs to construct the terms of an Act properly, and to not fetter a Minister’s discretion,
when he has been given discretion by the Legislature.
Sossin, Chapter 5, From Natural Justice to Fairness, cont’d
V. The Content of the DF



Extension of DF to a wider range of admin decisions in Nicholson was facilitated y the decision to
make the content of duty flexible and context-specific. So fairness requires compliance w/ some
but not all requirements of natural justice.
Fairness is a minimal duty, i.e. we are looking at whether procedural protection provided was
adequate, not ideal.
Book presents 3 different scenarios where the scope of the DF may vary:
o Criminal law prosecution: the stakes for a person charged w/ a criminal offense are
really high. Their protection is thus codified in the Charter under s.11(d), and they have
many protections (see p.163). Many of their protections would have little application in
the administrative law context.
o Human rights adjudication: HR legislation is designed to be remedial rather than
punitive, so therefore the stakes are lower than in the criminal context, but still very
important. Given that repercussions might be severe for accused, many protections
offered in the criminal context will be given in the HR context (although attenuated).
Some procedures may be set out in the legislation or accompanying rules or regulations,
but when not, there is a DF
o Licensing regulation: Although important for those in the industry to obtain/maintain
their license, it does not follow that they are entitled to an oral hearing on all licensing
34
matters. The needs of the state must also be considered. However, applicants should at
least be informed of the information, and be allowed to reply.
 DF concerns are least likely to arise in the context of tribunals required to provide oral hearings,
because the procedure for those hearings is usually clear. Some tribunals operate pursuant to
detailed legislation that establishes procedural requirements; others are empowered to
establish their own procedures in secondary legislation.
 For many admin decision-makers, common-law considerations govern the scope and content of
DF. Baker is the leading case.
A. Baker v Canada (Minister of Citizenship and Immigration)

Facts: B is a lady that has remained in Canada for 11 years illegally. She has 4 children, who are
all Canadian born. 1992 she was ordered to be deported. Immigration legislation required her to
apply from outside Canada (i.e. Jamaica), so she applied for the exemption H+C. She argued that
she had psychiatric problems and that these would worsen if sent back. Also, 2 of her kids really
depended on her. Discretionary power in HC’s rested in the hands of an immigration officer,
señor Lorenzo, who was pretty damn rude in the notes he gave on the case.
 B’s argument: JR arguing that minister failed to observe DF. Argued that she should have been
granted an oral interview before the decision maker, children/fathers should have been given
notice of the interview and be allowed to make submissions, and that they should have been
allowed to attend the interview with counsel. She requested the ministers’ reasons, and claimed
that the immigration officer’s notes gave rise to a reasonable apprehension of bias.
 History: Federal court upheld the decision.
 Reasoning: SCC held that B was entitled to procedural fairness protection, but the content of the
duty was minimal in the circumstances, and oral hearings were not required.
 Most importantly in this case, is that the Court used Baker to reiterate the purpose of DF and set
out a number of criteria relevant to determining its content.
 Purpose of DF (p.166):
 “The 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.”
B. The Baker Synthesis

5 (non-exhaustive) criteria are enumerated in Baker
o nature of the decision being made and process followed in making it
o nature of the statutory scheme and the terms of the statute pursuant to which the body
operates
o importance of the decision to the individual or individuals affected
o legitimate expectations of the person challenging the decision
o choices of procedure made by the agency itself
 In theory, none of the criteria is more important than any other
1. The Nature of the Decision Being Made and the Process Followed in Making It (p.168)

Although the judicial/quasi-judicial/admin is no longer important for threshold, the fact that a
decision is more judicial in nature will request more extensive procedural protection than other
admin decision. E.g. more in the adjudicative context than the regulatory one.
35
2. The Nature of the Statutory scheme and the terms of the statute pursuant to which the body
operates

Important to pay close attention to the legislation. The requirements of fairness may be minimal
in the context of steps that are preliminary to a formal decision-making process.
 Greater fairness protection will usually be required if a final decision must be made, but a
decision need not be final in order to attract a high degree of fairness protection.
3. The Importance of the Decision to the Individual or Individuals Affected
 DF increases in proportion to the importance of the particular decision to the person it affects.
4. The Legitimate Expectations of the Person Challenging the Relevant Decision (p.169)

The doctrine of legitimate expectation may extend the content of DF on the basis of the conduct
of pub authorities in particular circumstances. It began as a threshold inquiry, but in Baker, the
Court subsumed the concept within the considerations relevant to determining the content of
the duty. Legitimate expectations of procedural protection may arise out of conduct such as
representation, promises, or undertakings or past practice or current policy of a decision-maker.
 Controversially, it may also arise if a person is led to expect a particular outcome from a
decision-making process.
 However, a legitimate expectation that a particular decision will be made, as opposed to an
expectation that a particular procedure will be followed in making a decision, raises different
concerns. Substantive outcomes do not usually require legitimate expectations.
 This doctrine sort of looks like promissory estoppel.
5. The Choices of Procedure made by the Agency itself (p.170)

Content of DF affects more than just the person who’s rights are at stake: decision-makers are
concerned w/ many other additional cases. They are after all in charge of the community. Thus,
an important task for decision-maker is to educate the court as to the needs of their processes.
 It is not clear how significant the procedural choices of decision-makers will turn out to be in
determining the content of procedural fairness protection.
C. Specific Components of the DF (p.171)
1. Notice

Starting point for participation in any decision-making process. The requirements for notice are
often prescribed in a tribunal’s rules of procedure or in legislation governing hearing
procedures. When it is not, this is where litigation steps in.
 Overarching requirement in DF is the idea of reasonableness. General rule: “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.”
 This duty of notice should be presented throughout the entire process.
2. Disclosure (p.172)


Concept of disclosure is especially present in the criminal context.
The court has made it clear that “the duty of procedural fairness generally requires that the
decision-maker discloses the information he or she relied upon. The requirement is that the
individual must know the case he or she has to meet.” The question is thus not whether
36
disclosure is required in admin proceedings, but how much disclosure is required in particular
proceedings.
 Tribunals required to hold oral hearings are likely to have disclosure obligations in their rules,
but there is considerable scope for DF to require disclosure on an ad hoc basis
 Generally, disclosure duty can be tailored to the needs of particular circumstances. Information
can be vetted by a court to determine its materiality and relevance and may be disclosed only to
counsel, w/ instructions limiting its further dissemination.
3. Oral Hearings (p.173)

Oral hearings are often demanded, but seldom required. They are not usually necessary to reach
an informed decision on an administrative matter and there are good reasons for not granting
them, including the expense and delay they occasion.
 The common law will require that an oral hearing be required under certain circumstances (e.g.
Singh v Minister of Employment and Immigration for witness credibility)
4. Right to Counsel (p.174)

No right to counsel in the context of admin proceedings, only for circumstances of “arrest or
detention” (c.f. BC v Christie)
 Usually people will not be refused the right to counsel.
 However, it must not be understood in all or nothing terms. Even when right to counsel, this
might be subject to limits. Sometimes counsel might bring in additional cost, delay, and more
related problems to the admin decision-maker.
 The question really is: you have the right, but how can you exercise it? It is expensive and may
be beyond the reach of many in the admin process.
5. Right to Call Evidence and Cross-Examine Witnesses (p.175)

This is normally part of the right to an oral hearing. The right is not absolute however. Admin
actors control their own procedures and may limit the exercise of the right.
 Guiding principle: parties must be afforded a reasonable opportunity to present their case.
6. Timeliness and Delay

There is usually no specific statutory timeline for holding hearings or making decisions. Nor is
there a Charter right to have an admin matter heard within a reasonable time. These decisions
can take a long time.
 Delay in the admin process can have significant consequences, which was dealt with in Blencoe
v BC (HR Commission). The minority of the Court inthat case set out 3 considerations to be
balanced in considering complaints of admin delay
o 1. The time taken compared to the inherent time requirements of the matter before the
particular admin body
o 2. The causes of delay beyond the inherent time requirements of the matter
o 3. The impact of the delay
 Minority emphasized the importance of a contextual inquiry into the problem, eschewing the
sorts of time limits or guidelines that caused so much difficulty in the context of the criminal
law.
 Following Blencoe, it is clear that delay in providing hearings or rendering decisions, may breach
DF and may even rise to the level of Charter breach.
7. The Duty to Give Reasons (p.177)
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
Historically, no duty on admin decision-makers to give reasons, but this changed in Baker. Now
reasons are not required for all decisions, but yes in “certain circumstances”. 2 examples:
decisions that have “important significance” for an individual (because public actors
demonstrate respect for those affected by their decisions by justifying the decisions they make);
and reasons are also required if a statutory appeal process exists to facilitate the workings of
that process.
 Baker left open a potentially large residual discretion for courts to require reasons: reasons may
be required in “other circumstances”. Baker also gives flexibility in complying with the duty to
give reasons – the requirement being “some form of reasons” (i.e. they may vary in length and
formality depending on the circumstances)
 2 main concerns rise with the duty to provide reasons:
o 1. There may be a failure to provide reasons in circumstances in which a court concludes
that reasons were required
o 2. Questions may arise as to the adequacy of reasons proffered in particular
circumstances, and it may be argued that inadequate reasons are tantamount to no
reasons at all, and hence a violation of the duty. (i.e. overlap over the notion of reasons
given and the quality of the reasons provided  might be more a question of
substantive review!)
 Court rejected a bifurcated approach to procedural and substantive questions a/t the duty to
provide reasons in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury board). Here the court emphasized that reasons need not be provided in all cases, and
that the notion of quality is not strictly about PF. The threshold for providing reasons is very low.
 Given that one reason for deferring to the decisions of admin actors is to respect the decision of
the legislature to confer decision-making authority on the, the extent to which a generalist court
can legitimately “supplement” the reasons for decisions they make is surely contestable (point
supported in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association).
 In other words: much requires clarification in future cases.
 At least this much is clear: a wholesale failure to provide reasons will constitute a breach of the
DF. Following Newfoundland Nurses’ Union, however, the Court will not be concerned with the
adequacy or sufficiency of reasons in determining whether the duty to provide reasons has been
met. The focus will be on the substantive question: do the reason, such as they are, “allow the
reviewing court to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes”?
VI. Judicial Review of the DF (p.180)




It is well established that the requirements of the DF are independent of the merits of the
substantive matter in issue and that breach of the duty voids a decision. This was established in
Cardinal. (one extraordinary excetipn seems to be Mobil Oil)
Although JR is concerned w/ deciding what the DF requires in the circumstance of a particular
decision, the reviewing court’s decision is made after the decision is made, and is made in the
knowledge that a finding of DF breach will result in the relevant decision being quashed.
JR review of a decision on procedural grounds must be differentiated from JR on substantive
grounds. Compliance with DF has been regarded as a jurisdictional question and, as such, a
question that must be answered correctly (i.e. no ‘reasonableness).
However, there is some room for deference when it comes to determining the content of DF,
because the procedural choices make by the decision-maker are one of the considerations
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courts must take into account. Once this content has been determined, the question for the
court is whether or not it has been met (i.e. yes or no).
 The court will not impose a substantive outcome if violation of DF. Role of the Court is to
supervise the decision-making process – to ensure that the relevant decision has been made
properly, not that the “proper” decision has been made.
Whether or not a different result obtains on a rehearing the consequences of a breach of DF may be
significant. It may be decided otherwise.
Baker v Canada 1999
Facts: Regulations made pursuant to s 114(2) of the immigration Act empower the minister to facilitate
the admission to Canada of a person where the Minister is satisfied owing to humanitarian and
compassionate considerations they can be exempted from the requirement to apply for permanent
residence from outside Canada. B entered Canada as a visitor in August of 1981 and never left. She
supported herself illegally as a live-in domestic worker. She has four children who were born in Canada.
After her last child she was had post-partum and was diagnosed with paranoid schizophrenia. Two of
her children were then placed with their natural father and two were placed in foster care. She got back
two of her children later when her condition improved.
She was deported in December 1992 after it was determined that she had worked illegally in Canada
and had overstayed her visitors visa. She applied for an exemption under s 114(2). Her application was
denied and no reasons were given. When she requested reasons she was provided with notes made by
immigration officer G Lorenz which basically stated that she was on welfare and would be a drain on the
system and should be deported.
Issues: 1) what is the legal effect of a stated question under s 83(1)
2) Were the principles of procedural fairness violated in this case?
o
o
o
Were the participatory rights accorded consistent with the duty of procedural fairness?
Did the failure of officer Caden to provide his own reasons violate the principles of
procedural fairness?
Was there a reasonable apprehension of bias in the making of this decision?
3) Was this discretion improperly exercised because of the approach taken to the interests of ms.
Baker’s children?
Reasoning:
Issue 1)
Certifying a serious question of general importance does not restrict the court to treating only the
question. The object of the appeal is still the judgment, not just the question (Pushpanathan). Thus a
serious question of general importance that has been certified allws for an appeal of a trial judgement
that would not otherwise be permitted.
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S 114(2) authorizes the Governor in Council through the minister to exempt a person from a regulation
under the act based on humanitarian and compassionate grounds. Applications for permanent resident
must generally be made from outside Canada pursuant to s 9(1) of the Act. However H&C applications
are an exception. Because, in practice these decisions often mean the difference between getting to
stay in a place you have been established and being deported they are of a fundamental nature.
Immigration officers who make these decisions are given a handbook of guidelines about how to
exercise the discretion given to them. It indicates that they should attempt to clarify possible
humanitarian grounds and public policy considerations arising from these applications.
Procedural fairness
The appellant argues that she was owed procedural fairness that included te right to make an oral
interview before the decision-maker, notice to her children of that interview, a right ofr the children and
other parent to make submissions, and notice to the other parent of the interview and of that person’s
right to have counsel present. She also alleges that procedural fairness requires that she get officer
Caden’s reasons and that Officer Lorenz gave rise to a reasonable apprehension of bias.
A decision that is administrative and affects the ‘rights interests and privileges or interest of an
individual’ is sufficient to trigger the application of the duty of fairness. It has been long recognized that
the duty of fairness applies to H&C decisions.
Factors affecting the content of the duty of fairness
The content of the duty of fairness is based on the context (Knight). Underlying all the factors to be
considered is the notion that the purpose of the participatory rights contained within the duty of
fairness is to ensure that administrative decisions are made using a fair and open procedure.
1) The closeness of the administrative process to the judicial process
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 fairness will be required by the duty of fairness.
2) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates
The place of the particular decision within the statutory scheme and other surrounding indications help
determine the content of the duty of fairness. Greater procedural protections will be required when no
appeal procedure is provided within the statute and further requests cannot be admitted.
3) The importance of the decision to the individual or individuals affected
The more important the decision to the lives of those affected and the greater its impact, the more
stringent the procedural protections that will be mandated. “A high standard of justice is required when
the right to continue in ones profession nor employment is at stake”.
4) The legitimate expectations of the person challenging the decision
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This does not create substantive rights. It will affect the content of the duty of fairness. If the claimant
had a legitimate expectation that a certain procedure would be followed, this procedure will be required
by the duty of fairness. Similarly if a claimaint had a legitimate expectation that a certain result would be
reached, then fairness may require more extensive procedural fairness.
5) The respect for the choices of procedure made by the agency itself, particularly when the statute
leave to the decision-maker the ability to choose its own procedures or when the agency has an
expertise in determining what procedure are appropriate in the circumstances.
While this is not determinative, important weight must be given to the choice of procedures made by
the agency itself. NOTE: this list is not exhaustive. The values underlying the duty of procedural fairness
relate to the principle that the individual or individuals affected should have the opportunity to present
their case fully and fairly.
Application of principles to the case
Legitimate expectations
The appellant argues that the articles on the Convention on the rights of the child give rise to legitimate
expectation that there would be a result in her favour. However, the Convention is jot, in my view the
equivalent of a government representation about how H&C applications will be decided nor does it
suggest that any rights beyond the participatory rights discussed below will be accorded. Therefore in
this case there is no legitimate expectations.
Participatory rights
There are several factors to take into consideration as to what type of participatory rights should be
accorded in this case. First an H&C decision is very different from a judicial decision, it requires taking
multiple factors into account. Second its role in the statutory regime is an exception to the normal rules.
These factors militate more relaxed requirements of the duty of fairness. On the other hand, there is no
appeal procedure. Furthermore, considering the third factor, this is a decision which has great
importance in the lives of those with an interest in the result, B her children and the other parents. This
goes in favour of a more stringent duty of fairness. Finally applying the fifth criteria it is clear that the
statute accords considerable flexibility to the minister to decide on the proper procedure. Officers as a
matter of practice do not conduct interviews in all cases.
Balancing these factors the circumstances require a full and fair consideration of the issues and a
meaningful opportunity by those affected to present their case. However an oral hearing is not always
required to ensure a fair hearing and consideration of the issues. An oral hearing or interview is not
essential for the information relevant to H&C decisions. In this case the appellant had the opportunity to
put her information in writing and put it before the officers. This satisfied the rights accorded by duty of
fairness in this case.
The provision of Reasons
41
Reasons foster better decision making by ensuring that issues and reasoning are well articulated and
more carefully thought out. A statutory right of appeal plus the importance of the interests affected may
indicate that written reasons are necessary. In cases such as this where there is a statutory right of
appeal or in other circumstances, some form of reasons should be required. The profound importance
of H and C decisions combined with the statutory right of appeal calls for written reasons. The
requirement for reasons was fulfilled by the provision of the notes of officer Lorenz.
Reasonable apprehension of bias
Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by
an impartial decision-maker. The test for reasonable apprehension of bias is where a reasonable and
right minded person, applying themselves to the question and obtaining thereon the required
information, viewing the matter realistically and practically and having thought the matter through
would think it more likely than not that the decision maker was consciously or unconsciously biased.
Like any other aspect of procedural fairness bias depends on the context and the type of function
performed by the administrative decision maker. In this case the decisions are individualised rather than
of a general nature and require special sensitivity. A well informed member of the community would
perceive bias when reading officer Lorenz comments. It would appear to a reasonable observer that
Officer Lorenz’s frustration with the system interfered with his duty to consider impartially whether the
appellants admission should be facilitated owing to humanitarian or compassionate considerations.
Review of the Exercise of the Ministers Discretion
The special question of general importance which related to the approach to be taken to the children’s
interests when reviewing the exercise of the discretion conferred by the Act and the Regulations still
needs to be answered. Decisions classified as discretionary may only be reviewed o nlimited grounds
such as the bad faith of decision-makers, the exercise of discretion for an improper purpose and the use
of irrelevant considerations. A general doctrine of unreasonableness has also sometimes been applied
to discretionary decisions. These doctrines incorporate two central ideas – that discretionary decisions
(like all admin decisions) must be made within the bounds of the jurisdiction conferred by the statute,
but that considerable deference will be given to decision makers in reviewing the exercise of that
discretion. Discretion indicated the legislative intention that courts should not easily interfere with these
decisions.
The pragmatic and functional approach recognizes that standards of review for errors of law are
appropriately seen as a spectrum with certain decisions getting more deference and others less. This
approach takes into account the expertise of the tribunal, the nature of the decision being made, and
the language of the provision and the surrounding legislation. Eg: is the decision polycentric.
The standard of review in this case
The first factor is the presence or absence of a privative clause. There is no privative clause in the
immigration act. This lends to lower deference. The second factor is the expertise of the decision maker.
Here the fact that the decision maker is the Minister goes in favour of deference. The third factor is the
42
purpose of the provision in particular and of the act as a whole. Here the considerable choice and open
textures nature of the legal principles involved go in favour of deference. Also the fact that the provision
in question is an exception goes in favour of deference. The fourth factor considers the nature of the
problem, whether law or fact. The highly discretionary and fact-based nature of this decision is a factor
in favour of deference. Therefore considerable deference should be show but not so far as patent
unreasonableness, instead reasonableness simpliciter.
Was this decision unreasonable?
The approach taken to the children’s interests shows that this decision was unreasonable in the sense
contemplated in Southam. The officer was completely dismissive of the interests of Bs children. Failure
to give consideration to the interest of the children constitutes an unreasonable exercise of the
discretion.
The objectives of the act
To facilitate the reunion in Canada of Canadian citizens and permanent residents with their close
relatives from abroad. A liberal reading of this would mean that keeping families together is important
too.
International law
The values and principles of the CRC can inform how to approach Canadian legislation, although
unimplemented.
Ministerial guidelines
Held: Appeal allowed. Matter returned for determination by another immigration officer.
Chretien v Canada
Facts: C brought an application for judicial review against the report of the sponsorship scandal. The
commissioner Gomery was appointed to head the commission in 2004. He was given a double mandate
to investigate and report on the sponsorship program. The commission was set by an order in council via
the inquiries act. it was set up to investigate issues with the sponsorship program found by the Auditor
General. G was required to give two reports, one providing his factual conclusions. The second report
was to present his recommendations based on the factual findings. Although the mandate was broad
there was an express limitation that the commissioner was “to perform his duties without expressing
any conclusions or recommendation regarding the civil or criminal liability of any person or
organization…” Phase I of the hearings took place between sept 2004 and February 2005 while phase II
hearing were held from February to May 2005.
The sponsorship program
After the very close no vote to the Quebec referendum in 1995, a cabinet committee was established to
make recommendations on how to foster unity. One of the things they decided on was to fund an
43
sponsorship program in which they financially supported prominent cultural, community and sporting
event all over Canada, but particularly in quebec. In return these organizations had to promote the
federal government. The program spent over 250 million dollars on these programs. However over 100
million of the total expenditures was paid to communicatinos agencies in the form of production fees
and commissions. The auditor general was brought in to review the programs which led to an RCMP
investigation.
Issues: 1) What is the content of procedural fairness owed to persons appearing before the commission?
2)What are the applicable standards of review? 3)Did the Commissioner breach the duty of procedural
fairness?
Reasoning:
What is the content of the duty of fairness owed?
Procedural fairness requires that public decision makers act fairly in coming to decisions that affect the
rights, privileges or interests of an individual. There is no exception of the application of this for
commissions of inquiry. The content of the duty is variable and flexible. The content will depend on the
nature and function of the administrative board. Inquiries are, like the judiciary independent, unlike the
judiciary they are often endowed with wide-ranging investigative powers. They are ideally free from
partisan loyalties and better able than parliament to take a long term view of the problem presented.
Cory set out the basic principles of public inquiries in Krever: a) They are not a court and do not have the
ability to determine legal liability b) the commission has the power to make all relevant findings of fact
even if they reflect poorly on someone, c) a commissioner may make findings of misconduct based on
the factual findings d) they may find the failure to comply with a standard of conduct so long as it is clear
that it is not legally binding e) the commissioner must ensure that there is procedural fairness in the
inquiry (para 42).
Baker provides the five non-exhaustive factors which determine the content of the duty of fairness.
They are: i) the nature of the decision and the decision making process ii) the statutory scheme iii) the
importance of the decision to the individuals affected if) the legitimate expectation of the parties and v)
the choices of procedure made by the decision making body.
The AG argued that the factors in Knight are what are supposed to be used to determine the content of
the duty of fairness. This is not the case. The factor in knight are used to determine whether there was a
duty of fairness owed at all. Here it is clear that a duty of fairness is owed so analysis must proceed to
the baker test.
i) The nature of the decision and the decision making process
The closer the administrative process is to the judicial process indicates how much fairness principles
are to be incorporated into the decision making. The more the administrative process looks like judicial
decision making, the more likely it is that procedural protections closer to the trial model will be
required by the duty of fairness. Some of the rules and procedures adopted by the commission are
44
similar to the procdrues found the judicial process: the right to discovery of relevant documents, witness
gave evidence under oath, parties could be represented by counsel, cross examination of witnesses, the
commissioner had the power to summon witnesses, etc (para 46). Despite this, commissions are not
synonymous to trials. Commissioners are endowed with wide ranging investigative powers which judges
do not have. This means that the rules of evidence and procedure are less strict. Judges can also enforce
penal sanctions, where inquiries merely tarnish reputations. Inquiries are inquisitorial rather than
adversarial. In this case the mandate of the commissioner was even told that he had to express his views
without providing recommendation regarding the civil or criminal liability of any person or organization.
The above suggests a lower content of procedural fairness is required.
ii) the nature of the statutory scheme and the precise statutory practice
The commission was created by an order in council in pursuant to the inquiries act. The inquiries act also
contains requirements of procedural fairness. As well the finality of the decision affect the content of
procedural fairness. Greater fairness is required when no appeal procedure is proviced within the statue
or when the decision is determinative of the issue. The order in council and inquiries act are silent on
the matter of appeal, meaning that the commissions findings are final. Furthermore the commission was
mandated both to conduct hearings and produce reports and recommendations on the hearings, thus
the decisions made were final.
iii) The importance of the decision to the individuals affected
The greater the impact on the lives of those affected, the greater its impact, the greater the procedural
protections to be provided. In inquiries the reputation of individuals is damaged and this ‘is their most
highly prized attribute’. This is not to say that reputation damage necessarily makes the content of the
duty of fairness more stringent. It does not trump all other interests and factors. Individual reputation
must be balanced with the social interest in permitting the commission to conduct its inquiry and inform
and educate the public about the conduct under review. In this case, recognizing the importance of ones
reputation and the potential damage that may be caused as a result of the inquiry mediates for a high
content of procedural fairness.
iv) the legitimate expectations of the parties
Where a legitimate expectation that a procedure will be followed is raised, the duty of fairness requires
that the expected procedure is followed. In this case the applicant had the legitimate expectation that
the commission would follow the procedures set out in the commissions rules of procedure and
practice.
v) the choices of procedure made by the decision-making body
A lower content of procedural fairness will be called for where a statue leaves to the decision maker the
ability to choose its own procedures. In this case the commissioner was authorized to adopt any pro
edures and methods that he thought expedient. This suggests a lover content of procedural fairness.
45
Taking into consideration all the factors, the court found that the applicant was entitled to a high level
of procedural fairness before the commission. This is not the same level as a trial, but the serious
consequences for reputation require a high degree of fairness (para 61)
Issue 2: applicable standards of review
The applicable standard comes from the federal court of appeal in moreneault. The decision to make
the finding must be based on some material that tends logically to show the existence of facts consistent
with the finding and that the reasoning is not logically self-contradictory. This is the standard of review
in this case. However it is well established that the standard of review analysis does not apply to issues
of procedural fairness (CUPE). They are always reviewed as questions of law and as such the applicable
standard of review is correctness. No deference is owed when determining the fairness of the decision
makers process. If the duty of fairness is breached the question must be set aside.
Issue 3: Did the commissioner breach the duty of fairness?
a) was there a reasonable apprehension of bias?
Procedural fairness requires tha the decision be made free from a reasonable apprehension of bias. The
standard of impartiality depends on the function of the decision maker. Goes over the functional test
from newfoundland telephone. In order to disqualify the members of a policy making board, a
challenging party must establish that there has been a prejudgement of the matter to such an extent
that any representations would be futile. The level of opinion allowed depends on where a tribunal falls
between a legislative function and an adjudicative function. For example, expressions of strong opinion
do not necessarily fulfill this on a board which makes policy. They are supposed to have strong opinions.
In this case the commission falls somewhere between the adjudicative nature of the court and the lower
end of policy making councils. Therefore the standard should be what an informed person viewing the
matter realistically and practically having thought the matter through would conclude (para 73). The
person condiering the bias must be reasonable and the apprehension of bias must itself be reasonable
in the circumstances. It must be more than a mere suspicion. The onus lies with the person who is
alleging its existence.
The evidence advanced to show bias were the id of the lead counsel (secretary to former PM Brian
Mulroney), public statements by Francois Perrault the commissions spokesperson, and the statements
made by the commissioner during the Phase I hearing and after the release of the phase I report.
Reviewing the statements made by G, there is more than enough evidence to conclude that an informed
person, viewing the matter realistically and practically and having thought the matter through would
find a reasonable apprehension of bias on the part of the commissioner. The comments made by the
commissioner, viewed cumulatively, not only indicate that he prejudged issues, but also that the
commissioner was not impartial toward the applicant. He made statements after only three months of
hearing out of nine, and before he heard all the witnesses indicating that he had already made
conclusions. He actually said in one newspaper article that he was ‘coming to the same conclusions as
the auditor general’. Second, to conclude that the mismanagement was ‘catastrophic’ before hearing all
the evidence undermined the very purpose of the commission. It created a sense that the proceedings
46
were perfunctory in nature. G’s remarks indicate that he had reached conclusions or drawn inferences
of fact before the evidence was complete. These statements would lead a 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. There was other evidence as well where G told newspapers that ‘he had
everything he needed’ before hearing all the evidence.
These effects were exacerbated by statements of the commissioners media spokesperson. Mr.
Perreault. He told reporters that he received emails saying ‘what is Jean Chretien trying to do’. In fact
none of the emails said that or could be construed to say that. Because P spoke on behalf of the
commission this was inappropriate. G was seduced by the limelite and wanted to keep the spotlight on
the inquiry. This had a detrimental effect on the hearing process and the fairness of the proceedings.
Based on all this an informed person, viewing the matter realistically and practically and having through
the matter though would fin d that the commissioner’s tatements to the media during the phase I
hearings, after the release of the report, and upon his retirement, viewed cumulatively indicate that the
commissioner prejudged issues ad was not impartial towards the applicant. The nature of his comments
are such that no reasonable person, looking realistically and practically at the issue could possibly
conclude that the commissioner would decide issues fairly.
Held: there existed a reasonable apprehension of bias. The findings of report I were set aside with costs.
Newfoundland and Labrador Nurses’ Union v Newfoundland 2011 SCC 62
Facts: The dispute in this case is about the calculation of vacation benefits.
o
Definition of “employee” in collective agreement: all paid employees, including casual
employees.
o Definition of “casual employee” (art 2.01(b)): employees who work on an “occasional or
intermittent basis” and who are under no obligation to come to work when called.
 In the definitions of casual employee, they are expressly excluded from a number of benefits,
including vacation entitlement calculations designed to go to permanent employees (they would
receive 20% less). The question that had been asked to the arbitrator, was whether a casual
employee that later became a permanent employee could be credited towards the annual leave
entitlement if the person later became permanent. The arbitrator, after analyzing the wording
of s.2.01(b), concluded that under the collective agreement, the grievors’ time as causal
employees was not to be included in calculating the length of their vacation entitlement when
they became permanent employees.
 On JR, parties acknowledged that the standard was reasonableness (following Dunsmuir). TJ
concluded that the arbitrator’s reasons required “more cogency” and that his conclusion was
“unsupported by any chain of reasoning that could be considered reasonable” (i.e. they were
insufficient). Thus unreasonable. This was overturned by the majority in the Court of Appeal,
who claimed that the reasons were enough to satisfy the Dunsmuir test.
Issue: Was the decision unreasonable?
Reasoning: (Abella)
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Abella first frames the analysis in Dunsmuir terms, and she emphasizes that “the notion of
deference to administrative tribunal decision-making requires “a respectful attention to the
reasons offered or which could be offered in support of a decision.” (para12)
For her the notion of respect emphasized by the SCC, is the proper context for understanding
what the Court mean in Dunsmuir when it called for “justification, transparency and
intelligibility”. For her, “it represents a respectful appreciation that a wide range of specialized
decision-makers routinely render decisions in their respective spheres of expertise, using
concepts and language often unique to their areas and rendering decisions that are often
counter-intuitive to a generalist.” (para13)
Read as a whole, Dunsmuir does not stand for the proposition that the “adequacy” of reasons is
a stand-alone basis for quashing a decision, or as advocating to a reviewing court to make 2
discrete analysis (one for the reasons, the other for the result). “[T]he reasons must be read
together with the outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes.” (para14)
When assessing if a decision is reasonable in light of the reasons, courts must not substitute the
reasons for their own reasons. They just have to assess, regardless of whether or not the
reasons are perfect. The only criteria for it to meet the Dunsmuir is that “the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes”. (para16)
It does not matter that there may be an alternative interpretation might exist. Reviewing judges
should be respectful to the decision-maker. “Perfection is not the standard.”
Union argument: Acknowledging that the arbitrator’s interpretation of the collective agreement
was subject to reasonableness, the Union in this case claimed that the arbitrator’s reasons had
amounted to “no reasons”, and that since the duty to provide reasons is a question of PF,
correctness should be the standard (as per Baker).
Abella dismisses this argument quickly: “Baker stands for the proposition that “in certain
circumstances”, the duty of procedural fairness will require “some form of reasons” for a
decision. It did not say that reasons were always required, and it did not say that the quality of
those reasons is a question of PF. 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 fulfill the DF.” (para20)
Deficiencies or flaws in the reasons do not fall under the category of breach of PF, and are
thus not subject to a correctness review: “It is true that the breach of a duty of PF is an error in
law. Where there are no reasons in circumstances where they are required, there is nothing to
review. But where, as here, there are reasons, there is no such breach. Any challenge to the
reasoning/result of the decision should therefore be made within the reasonableness analysis.”
(para22)
In this case: the arbitrator had a fairly simple analysis to make that fell directly under his
expertise as a labor tribunal.
Generally, arbitration is meant to be a speedy dispute resolution system, and requesting an
arbitrator to respond to every argument or line of possible analysis would paralyze the system.
Ratio:
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When reviewing under a standard of reasonableness, a reviewing court should make sure to be
respectful towards an administrator’s decision.
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It fits PF that an arbitrator grant the reasons to its decision, but the qualities of these decisions
are to be assessed under a standard of reasonableness.
Chapter 8: Caught Between judicial Paradigms and the Administrative State’s
Pastiche: ‘Tribunal’ independence, Impartiality, and bias
Intro
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Tribunal independence, impartiality, and bias
o All three concepts centre on the notion of fairness in the administrative decisi9on
making process
o The mere perception of bias may be enough to overturn a decision
o Impartiality refers to the ideal state of the decision maker
o Independence is said to be a way towards achieving impartiality
When it comes to the administrative state, the process of developing appropriate juristic tools
requires a perspective that is always situated between a court-derived model and the wide
variety of administrative actors that exist
II. Sources of the Guarantee of an Independent and Impartial Tirbunal
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Guarantee stems from constitutional or quasi-constitutional principles
At cml the priniciples of natural justice are encapsulated in two central idea
o Decision maker should neither judge his or her own cause, nor have any interest in the
outcome of a case before him or her
 this is generally known as the rule against bias
 nemo judex in sua causa debet esse
o the decision maker should hear both sides of the case before making their decisnio
 Audi alteram partem
Some also argue that in addition to the common law this idea springs from unwritten
constitutional principles and the rule of law
o This is less certain
o Although it is guaranteed under the charter in some cases
Many different regulations and constitutional documents prescribe different levels of
independence in different circumstances
o Charter s 7, s11(d),
o Quebec charter of Human rights and freedoms s. 23
o Canadian Bill of Rights ss 1(a), 2(e)
o Alberta bill of Rights s. 1(a)
 Eg: the charter requires penal consequences while the Quebec charter has
legislated the definition of tribunal under s 23
What these articles show is a context driven and sometimes uneven promise of independence
III. What is tribunal independence and why is it important?
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Challenging independence is now one of the most litigated aspects of admin law
o Therefore lack of independence as a reason for alleging reasonable apprehension of bias
is an important party of study
 To what extent should tribunals and other administrative bodies be
independent from govt which created them?
 How can a tribunal fulfill the often competing function for which it has been
created while maintaining an appropriate distance from government, litigants
and other stakeholders?
 What is an appropriate distance?
Specific tensions revolve around the appointment process, internal interactions among tribunal
members, removal of members, tribunals as a function of policy making
Tensions arise in the clash between the day to day realities of administrative work and judicial
understanding of how the administrative state should work
o Administrative tribunals are no exception
IV. The development of the law of tribunal independence in Canada
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First wave jurisprudence
o Independence of the judiciary as the example for administrative tribunals
Second wave
o Ocean port approach
 There is no constitutional guarantee to independence where tribunals are
concerned
Third wave retrenchment
o Litigants once again pushing for judicial declarations that adminsitrive tribunal
independence is guaranteed by the constitution
Laying the groundwork: the theory of judicial independence
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Judicial independence is a means of ensuring that judges act free from any interference or
influence
The core of the concept is the complete liberty of the judge to decide the case free from
pressure of any kind
o Dickson, pg 240
Three conditions serve to assure the public that the judge is independent from govt
o Security of tenure
 Ability of government to remove a judge when they don’t like their decisions
 This is guaranteed to judges by the constitution
 Judges don’t serve at pleasure
o Financial security
 The salary of judges cannot be changed for arbitrary reasons
 Again this is fixed under the constitution
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This is also to ensure judges don’t have a motive to seek financial remuneration
elsewhere
Administrative control
 How affairs of the court are handled
 From budgetary allocations for buildings and equipment to assignment of cases
 Budgetary allocations are done through a third party
 It is to prevent judges from making decisions to protect their own employment
and interests rather than making a decision solely on legal judgement
Adjudicative independence
From Judicial Independence to Tribunal Independece
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Valente v. The Queen was the first SCC case to suggest that judicial indepence guarantees could
also be applied to tribunals
o The test for adequate tribunal independence is whether a reasonable, well-informed
person having through 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 judgements
 Not as strict as judicial independence
o This test is applied in light of the functions of the tribunal
 Ie: the three elements of judicial independence will depend on the nature of the
tribunal
 Matsqui
Quebec Inc. v Quebec (regie des permis d<alcool)
o Case under art 23 of the Quebec charter
Ocean Port hotel
o The best judicial attempt to explain normatively why the objective guarantees of judicial
independence need not apply to administrative tribunals
o This decision marks a turning point in the jurisprudence on the independence of
administrative tribunals.
o Second wave of jurisprudence in this area
Ocean Port Hotel and Keen: Parliamentary Supremacy Versus Warding Off Interference
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Ocean port attempted to resolve whether at pleasure appointments provide a satisfactory
degree of independence on tribunals that impose penalties
This decision also offers statements on the difference between tribunals and the courts
o The SCC found that there is no freestanding constitutional guarantee of administrative
tribunal independence. The court held that the constitutional protection of judicial
independence could not be translated to the contest of administrative decision making
bodies.
 Administrative tribunals are not separate from the executive like courts are
 They are actually part of the executive
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 They are created in order to implement the policies of the executive
o Also tribunal independence is a cml principle of natural justice and can be ousted by
clear statutory language or implication
Tribunals can only be subjected to constitutional guarantees of independence based on the
nature of their work
Ocean port confirmed that there are no constitutional requirements for judicial independence
for administrative tribunals
Keen v Canada
o This was the case where the nuclear safety commission closed a reactor because of
safety concerns
o The minister was concerned because shutting down the reactor led to a shortage of
medical isotopes
o Finally they enacted emergency legislation to get the reactor up and running
o The minister accused Keen of a lapse in judgement and indicated that he was
considering removing her, she wrote a letter refuting these accuasations
o They also fired Keen as president of the commission
 She was scheduled to show up at a parliamentary committee the next day, but
was removed before this happened
o Keen applied for judicial review based on the fact that she had not received sufficient
procedural fairness
 Because Keen was in an at pleasure appointment, her dismissal was therefore
upheld
o In this case the minister might have misunderstood the relationship between the
commission and the executive
 This demonstrates that ministers do interfere in administrative decision making
C. Reasserting the push for independence: Unwritten constitutional principles, Tribunal Independence
and the Rule of law
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The third wave of jurisprudence is marked by a push by litigants to have the same independence
as courts
o Advocates maintain that this independence can be guaranteed by unwritten
constitutional principles despite ocean port
In Bell v McKenzie the applicant argued that tribunals on the fringe of the judiciary should be
independent like the judiciary
o She succeeded
 The court maintained that the rule of law through the guarantee of judicial
independence serves to keep the leg from inappropriately vesting trbunals with
diminished forms of natural justice if budgetary pressures make it convenient to
do so.
D. the appointment and removal process: institutions, Ideologies, and Institutional culture
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Appointment and removal process has been the site of some of the most pressing issues of
independence and impartiality currently relating to tribunals
Is it ever possible to make appointment that completely evade political thought or ideology?
Tribunals are distinct from courts
o Security of tenure, financial security and administrative control are not the main issues
affecting tribunal independence
 More important are appointments, adjudicative independence, and managing
necessary interactions with the executive branch of government
o Also the nature of bias in the administrative state is different
V. Reasonable apprehension of Bias
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Perceived partiality on the part of the decision maker or the broader institution
o Some bias stems from the nature of the decision making system itself
 Full board meetings
 Use of ‘lead cases’
The rule against bias
o Nemo Judex is to maintain public confidence in the administration of justice
 Don’t get to rule in judgments which will affect you
The reasonable apprehension of bias test
o The test for bias is perception, not whether actual bias exists
 A reasonable person with an informed understanding of how the tribunal
functions perceives that the decision making is biased
 Committee for justice and liberty v. national energy board
o Classic test
o Guy was chair of the panel at NEB and was responsible for
issuing certificates of a pipeline when he had previously been
part of a group that made applications for certificates
 Pg 256
o SCC found reasonable apprehension of bias in his participation
as chair
 The test was formulated in a dissenting option
 But it has been used consistently since then
o See pg 257 for exact wording of test
o The grounds for the apprehension must be substantial
 Mere suspicion is not enough, must be balance of probabilities
o The test can also be applied to institutions
 In that case it is if a reasonable person who is fully informed would see bias in a
substantial number of cases
o The standard for bias varies depending on context
 The nature and content of the decision making process drives the content of
procedural fairness, including what constitutes impartiality
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 Quasi-judicial tribunals will need to be more independent
 Work done by a minister is political and in the public interest
o Determining the degree of independence requires weighing the nature of the decision
being made, the nature of the statutory scheme and the agency’s choice of procedures
1. Perceptions of individual bias
o Pecuniary or material interest
 That time the lord chancellor of England’s decision was set aside because of his
shareholder interest in a company that was a party to the proceedings
 More flexible when the financial interest is indirect
 Energy probe v. Canada Atomic energy control board
o Pg 259
 Might not matter if you have no more to gain than the average person
o Personal relationships with those involved in the dispute
 Relationships with the parties, between administrative actors, and other
involved in the matter like counsel or witnesses
 Is the relationship ‘current’ enough to reasonably pose a significant threat to
impartiality
 (nice wording… lol pg 260)
 Example of the Pinochet case (We read this in PIL) where Amnesty
international wanted to extradite Pinochet to Chile
o One of the judges was on the Board of AI and the decision was
overturned
o Prior knowledge or information about the matter in dispute
 Focus on the nature and extent of the decision maker previous involvement
 Wewaykum Indian Band v Canada
o Binnie was previously employed as a deputy minister of justice
from 1982 to 1986 and it was claimed this raised the
apprehension of bias
o Since Binnie was not involved substantially his involvement on
the court was fine
o An attitudinal predisposition toward an outcome
 This can be gleaned from decision makers comments and attitudes during both
the course of the hearing and outside the proceedings
 Test: is the decision makers mind so closed that any submission to by the parties
would be futile?
 Residents association of old st boniface v Winnipeg
o This demonstrates that how acceptable having a fixed view is
depends on the nature and function of the tribunal
o For example a city councillor on a tribunal might be expected to
have their own opinion on the matter
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o
Therefore it had to be established in FACT that the counsellor
was so close minded that there was no hope before the decision
making took place
 Newfoundland Telephone
o A multifunctional tribunal may have different standards to
adhere to depending on what function it is performing
o If they are preforming investigation or police services they may
be allowed to hold to a fixed view
 Basically legislative functions have more freedom to be biased and
 Similarly investigative work doesn’t get the highest procedural fairness because
its effects are not binding on the individual
2. Perceptions of institutional bias
o The need for institutional policy making distinguishes administrative tribunals from
courts
o Bias, Adjudicative Independence and policy making
 Policy making is central to tribunal existence
 Ocean part hotel
 All tribunals have some role in implementing government policy
o Decision making
o Informal rule making through use of such soft law as guidelines,
bulletins and manuals
o Formal rule making through delegated legislation
 Tensions arise when the methods used in policy making appear to
infringe on the adjudicative function
 Full board meetings
 When all the members of the board get together to ensure that all the
decisions are consistent
o Litigants have alleged that board members putting input into
decisions that they have not come across leads to an
apprehension of bias
o Consolidated Bathurst case
 Pg 270
 Lead cases
 This involves selecting one or similar clams to create a full evidential
record for all the board to use in decision making
o Immigration and refugee board selected one of similar refugee
claims to create an evidentiary record for all the claims that
were coming through
 It was in response to a large number of Hungarian Roma
refugee requests
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It was argued that this initiative was to reduce the
number of successful refugee claims and so was biased
Adjudicative independence and the legislative process
 Example of labour relations board giving advice to government on the
development of a new policy
 Unions subjected to the new policy were pissed and raised the issue of
bias when the board then tried to apply the new policy to them
Multifunctionality
 Unlike courts tribunals were created to manage and oversee areas that
are often polycentric in nature
VI. Conclusion
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Just reviews what the chapter was about.
Chapter 12, The Charter and Administrative Law
Introduction
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The relationship between the charter and administrative law is complex and evolving
o There is an emerging consensus that the charter does not replace the common law
 But rather supplements and embodies the fundamental legal principles in the
charter
This chapter sets out the various ways judicial review at common law has influence
understanding of the charter
o As well as how the charter as influenced review of administrative decisions
Until recently the courts used the Oakes test to review the substance of administrative decisions
o Now they use administrative law adapted to consider charter values
o It is unclear when the courts will use the charter and when they will use admin law
 Basically litigants have to argue both
A separate issue raised by the charter is whether administrative tribunals have jurisdicino to
apply the charter to their enabling statues
o Courts have found that agencies may have jurisdiction to apply the charter if they have
authority to decide questions of law
II. Procedural Fairness and the Principles of Fundamental Justice
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The duty of fairness requires decision maker to provide a fair hearing to individuals subject to
their authority
At a minimum this usually means they must hear the other side and decide the matter
impartially and independently
o Participatory rights
 Oral hearing
 Disclosure
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o Duty to give reasons if the decision affects an important interest
In addition to the duty of fairness at cml, a duty of fairness may be owed under the charter
o What does the charter require in terms of a fair hearing?
o The duties are considerable
 S7 PFJs are the only provision in the charter that refers to procedural fairness
To access complainants must first cross the threshold
o They must show that their life, liberty or security interests are impaired by the
administrative decision
Right to life
o Right to live and be free from conduct that increases your chance of dying
Right to liberty
o Freedom from physical restraint
o Freedom to make fundamental life choices
Right to security of the person
o Threat of physical harm
o Threat of severe psychological harm
Legislation can and does determine the content of available procedures
o However, if s 7 is engaged legislation must conform to it to be lawful
o The bill of rights can also produce unoustable procedural protections where it applies
Ocean port
o Usually cited to show that clear statutory language can out cml guarantees
 But this is only in jurisdictions where the bill of rights does not apply
A. Oral Hearings and the Scope of s 7
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Singh
o
o
Pfjs include procedural fairness
Three judges found that the immigration rules infringed s 7 of the charter and three
found an infringement on s 2(e) of the charter
 S 7 applies to every human being physically present in Canada
 Singh was entitled to procedural fairness
o This case shows how review under the charter can overcome clear legislation
o Also foundational for its recognition that s 7 applies to non-canadians
o And its impact on the institutional framework regarding refugee claimants
 The government had to overhaul the statutory scheme and establish the
refugee board
It should be noted from Singh that cml administrative law still determined the content of the
duty
o Ie: he was given an oral hearing based on cml principles that you would normally use for
regular claims of procedural fairness
B. Incorporation of the common law framework under s7
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Baker
o Five non-exhaustive contextual factors
 Nature of the decision
 The more the decision is judicial rather than administrative the heavier
the procedural safeguards
 The role and place of the decision within the statutory scheme
 Ie: if the decision is an exception fewer protections
 Ie: if the decision is final, then more protections
 Importance of the decision to the individual affected
 Legitimate expectations
 Deference to the ministers choice of procedure
o Baker determined only the content of her participatory rights
 She was entitled to make written submissions, not an oral hearing
Suresh
o Used the baker criteria in the context of PFJs to find a duty to give reasons
o S 53 of the immigration act did not provide any procedural protections
 S was not allowed to see or respond to the memorandum saying he was a
danger to Canada
o Baker was used to determine the adequacy of the procedure afforded to suresh
C. Duty to disclose and the right to reply
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Weighing the five factors the court found that S had the right to disclosure of the materials on
which the minister based her decision
o S also had the right to reply to these claims
o The minister then had an obligation to consider these claims as well as the claims of her
staff
D. the duty to give reasons
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Suresh also influenced the duty to give reasons
o Unlike baker where shitty reasons were found to be fine, in suresh the minister herself
had to supply reasons
o The court used baker to determine both the participatory rights S got as well as the duty
to give reasons
o The duty to give reasons is likely to become heavier in proportion to the significance of
the interest – even in non charter circumstances
o Because the duty to give reasons is part of the duty of fairness the courts review it on
the standard of correctness
 The decision will be quashed if it did not provide the correct decision
 The line between procedure and substance vanished in Suresh
 Newfoundland nurses raises a serious doubt that inadequate reasons will give
rise to a violation of procedural fairness
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The adequacy of the reasons will now be discussed in substantive
review
If the reasons are there, good enough for procedural fairness.
E. Right to State-Funded Legal counsel
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Procedural fairness does not mean you get the right to a lawyer even at your own expense
o However if the decision impairs an s 7 right the state must provide the individual with
legal counsel in order to satisfy pfjs
Severe psychological effects can engage a right to the security of the person
o New brunswick v g(j)
o Where they wanted to take away her three children
o PFJs required that she get a funded lawyer
 This case also shows why s 7 infringements of PFJs are almost never justified
 Infringing procedural fairness for s 7 rights is so bad that to justify infringing
then you need something real serious
 Basically putting the duty of fairness as a PFJ has elevated this principle
(though in Suresh they keep saying that it was not constitutionalized)
F. Undue Delay
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In certain circumstances s 7 rights can be infringed by long delays
o Blencoe
 Sexual harassment claims against him took so long to go to the commission that
he suffered irreparable harm
 However still didn’t win on this
G. Ex Parte, In camera hearings
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Charkaoui
o Came from the fact that permanent residents could be detained under the immigration
and refugee protection act if they are suspected of terrorism or having an association
with terrorist organizations
o Detainees were not charged criminally and they did not get the presumption of
innocence
 the hearings were held in camera and neither the person charged or their
lawyer were allowed to be present if the crown thought national security
interests were engaged
 the judge could rely on evidence that was normally inadmissible from witnesses
that they never even got to see
 like hearsay from foreign security agencies known to use torture
o Court held that the review procedure violated PFJs because it denied C a fair hearing
 The named person couldn’t find out the case they had to meet
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As a remedy for the procedural shortcomings of the scheme from charkaoui the court suggests
that a special advocate could represent the named person during in camera proceedings
o Canada now provides for special advocates
o Its not clear if the need for special advocates comes from s 7 or s1
 So its not clear if the special advocate system is consistent with s 7
 Or not consistent with s 7 but is justified under s 1
Charkaoui II
o The court reviewed the CSIS practice of destroying operational notes
o They weren’t allowed to
The bigger question is whether it is at all just to incarcerate foreign nationals and permanent
residents without the protection of fundamental criminal law principles
o Like the rules of evidence
o For those who have yet to attain citizenship and are subject to security certificates
rather than criminal law, the charters safeguards against arbitrary prosecution are
silence because in the case of security certificates there is no prosecution at all
Suresh v Canada [2002]
Facts: S was born in 1955, he is Sri Lankan citizen of Tamil decent. He entered Canada in October 1990
under refugee status. He was recognized as a convention refugee. This has many legal consequences
including that the government may not refouler a convention refugee to a country where the person’s
life or freedom would be threatened for reasons of membership in a particular social group or political
opinion etc. In summer 1991 S applied for landed immigrant status. His application was not finished
because in 1995 the government began deportation proceedings against him. The first step in
deportation is the issuance of a certificate under s 40.1 of the Immigration act alleging that S was
inadmissible to Canada on security grounds. The certificate was files on October 17, 1995 and S was
detained the next day. The certificate was based on information from CSES that S was a member of the
Tamil Tigers. Members of the Tamil Tigers are frequently tortured in Sri Lanka. The second step in the
deportation process is having the certificate referred to the FC for determination as to whether it was
reasonable. The judge can consider any information they see fit under s 40.1(5). In August 1997 the FC
upheld the certificate. A deportation hearing followed. The adjudicator found no evidence that S was
directly involved in terrorism, but found that he was a member of the Tamil Tigers and should be
deported on that ground. On the same day the minister took the fourth step in the deportation process,
notifying S that he she was considering issuing an opinion declaring him to be a danger to the security of
Canada under s 53(1)(b). This section allows Canada to deport a refugee on security grounds even where
the refugees life or freedom would be threatened by the return. In response S submitted written
arguments and documentary evidence including reports indicating the incidence of torture,
disappearances and killing of suspected tamil tigers. The immigration officer for citizenship Canada
found that on balance there were insufficient humanitarian and compassionate considerations present
to warrant extrodinary consideration. He recommended deportation.
60
Accordingly a deportation was issued for S. He was not given a copy of the Immigration officers
memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are
required under s 53(1)(b) of the Immigration Act and none were given.
Issue: 1) What is the appropriate standard of review with respect to ministerial decisions under s
53(1)(b)? 2) Are the conditions for deportation in the Immigration Act constitutional?
Reasoning:
I. Standard of Review (required reading for standard of review section)
The reviewing court should adopt a deferential standard of review to the Ministers decision that a
refugee constitutes a danger to the security of Canada. It should be set aside only if patently
unreasonable (para 29). The court should not reweigh the factors or interfere because it would have
come to a different conclusion. Here taking the functional pragmatic approach and looking at the
language of the act indicates deference (“opinion of the minister”, para 30). The other four factors to
consider in the functional pragmatic approach are 1) the presence or absence of a clause negating the
right to appeal, 2) the relative expertise of the decision-maker, 3) the purpose of the provision and the
legislation generally; and 4) the nature of the question.
The first factor suggests that parliament meant only a limited right of appeal. The second factor also
favours deference, when a formal decision maker is the minister this indicated deference. The third
factor demonstrates that the decision balances several interests which also indicates deference. The
case is also highly fact-based and contextual which indicates deference under the fourth factor. It
involves a considerable appreciation of the facts of that persons case. These factors suggest that
parliament intended deference. The minister is obliged to give proper weigh to the relevant factors and
not the court. Baker does not authorize courts reviewing decisions on the discretionary end of the
spectrum to engage in a new weighing process (para 37). This standard reflects the different obligations
of parliament, the minister and the reviewing court. The minister’s task is to make a decision that
conforms to Parliaments criteria and procedures as well as the constitution. The courts task is to
determine whether the Minister has exercised her decision making power within the constraints
imposed by parliaments legislation and the Constitution. If the minister has considered the appropriate
factors, the court must uphold this decision (para 38).
Whether there is a substantial risk of torture if S were deported is a threshold question. This question
also merits deference by the reviewing court of the minister decision. They may not reweigh the factors
considered by the minister, but may intervene if the evidence does not support the finding. In reviewing
ministerial decision to deport under the Act courts must accord deference to those decisions. If the
minister has considered the correct factors the courts should not reweigh them (para 41).
II. Are the conditions for Deportation in the Immigration act Constitutional?
S 53 of the Immigration Act permits deportation to a country where the persons life or freedom would
be threatened. Does this violate s 7 of the Charter? Torture is defined in art of the CAT with a similar
61
definition in the Criminal code. S 7 guarantees everyone (including refugees) life, liberty and security of
the person not to be deprived unless pfj. International obligations also inform PFJs. Determining
whether deportation to torture violates PFJ requires balancing the interest in combatting terrorism and
the refugees interest in not being deported to torture. The question is whether this response is
proportional. Some responses are so extreme that they are disproportionate.
(i) the Canadian perspective
Phrases used to describe violation of a PFJ are conduct that would “shock the Canadian conscience”
(para 49). Canadians do not accept torture as fair or in keeping with justice. The charter reaffirms this
opinion by prohibiting cruel and unusual punishment defined as “so excessive as to outrage standards of
decency”. Must be so repugnant that it would never be justified. Torture falls into this category (para
51). It is thus concluded that Canadians reject government sanctioned torture in the domestic context.
Torture is prohibited on Canadian soil, but does the court need to take what might happen upon
deportation into account? (para 52). From Burns: s 7 is also concerned with the potential consequences
of the act of extradition. This principle should apply to deportation as well if there is a sufficient causal
connection between the acts of the Canadian government and the torture (para 54). Canadian
jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere
that would be unconstitutional if imposed on Canadian soil. It depends on the circumstances and on
how they are balanced. In this case on one hand is the interest in preventing terrorism and on the other
hand the constitutional commitment to liberty and fair process. This balance will usually come down
against expelling a person to face torture elsewhere (para 58).
(ii) The international perspective
International treaty norms are not strictly binding unless they have been incorporated by enactment.
International law may be used as evidence to help interpret Canada’s constitution though. The
prohibition of torture is an international peremptory norm: it is prohibited in a great number of
multilateral instruments, second most if not all states have officially outlawed torture and when caught
will deny it, third a number of international authorities state that prohibition on torture is a peremptory
norm.
Court goes over conflicts between the refugee convention and other acts prohibiting deporting
someone to torture. Uses international law to say that together the interpretation should be that the
refugee act cannot negate the rights given to everyone (regardless of citizenship) to be free from state
sponsored torture.
(iii) Application to s 53(1)(b) of the Immigration act
Canadian rejection of torture is reflected in the international convention to which Canada is a party.
Torture is generally considered so abhorrent that it will almost always be disproportionate to interest on
the other side of the balance, even interests of national security. This suggests that barring
extraordinary circumstances deportation torture will generally violate s 7 of the charter (para 76). Only
62
exceptions like war, natural disasters, epidemics and the like are serious enough to make deportation to
torture balance out the abhorrence of it. In these circumstances s 53(1)(b) does not violate the charter.
What is at issue is not the legislation but the ministers obligation to exercise the discretion this section
confers in a constitutional manner (para 79).
b) Are the terms ‘danger to the security of Canada and ‘terrorism Unconstitutionally vague
(i) “Danger to the security of Canada”
In order to deny the benefit of s 53 the minister must certify that the person constitutes a “danger to
the security of Canada”. S argues that this is unconstitutionally vague. A law may be vague for one of
two reasons: a) if tails to give those who might come within its ambit fair notice of the consequences of
their conduct, b) because it fails to adequately limit law enforcement discretion. The term “danger to
the security of Canada” is not unconstitutionally vague. However danger to the security of Canada must
mean something more than just “a person described in s 19” of the Immigration act. Courts must take a
broad, flexible and facts based approach to national security as well as a deferential standard of judicial
review. Minister does not need direct proof of the danger to Canada specifically, being a terrorist in one
country implicates activities in other countries (para 87). Terrorism is a world wide phenomenon.
Distant events can ground a real possibility of harming Canadian security.
A person constitutes a danger to Canada when they pose a serious threat to the security of Canada
whether direct or indirect and bearing in mind the fact that the security of one country is often
dependent on the security of other nations (para 90). Note that danger to the public and danger to
Canada are different things.
(ii) Terrorism
The term terrorism is found in s 19 of the immigration act dealing with the denial of refugee status upon
arrival in Canada. The minister applied s 19 to act post admission. It is difficult to find an authoritative
definition of terrorism. However the term is not so unsettled that it cannot be used for legal
adjudication. A recent international convention provides a functional definition. A functional definition
provides lists of acts that are considered terrorism. It is less open to political manipulation. However it
may be safely concluded that terrorism includes any act intended to cause death or serious bodily injury
to a citizen… etc (para 98). Therefore the IA is sufficiently clear and not unconstitutional.
(iii) conclusion
The terms danger to the security of Canada and Terrorism are not unconstitutionally vague.
c) Does deportation for Membership in a Terrorist organization unjustifiably violate the charter
guarantees of Freedom of Expression and Freedom of Association?
S argues that issuing the certificate infringes his right to free expression and free association and cannot
be justified. He argues that he is not involved in actual terrorist activities but merely engages in
fundraising that may contribute the civil war efforts of the Tamils in his country.
63
The powers of the state to bar entry to a refugee are broader than the power to deport. The main
purport of s 19(1) is to permit canad to refuse entry to persons who are engage in terrorism or who have
been members of terrorist organizations. S 19 does not breach the rights of free expression and
association guaranteed by s 2(b) and 2(d) of the charter. S 19 is also used in s 53 to define acts that
people can be deported for. If the acts happened outside Canada then there is no constitutional
protection. If the acts were done inside Canada then they would constitute violent activity and would
not be protected.
S 53 requires the minister to balance a number of factors related to national security on one hand to fair
process and the convention refugee on the other. In making decisions the minister must exercise her
discretion in conformity with the charter values (106). Because the ministers discretion under s 53 is
confined to people involved in violence or things directed at violence (terrorism), these acts would not
be protected by the charter anyway because the charter does not protect violent acts.
S has not established that S 53 reference to s 19 unjustifiably violates his charter rights.
III. Are the Procedures for Deportation set out in the Immigration act constitutionally valid?
What procedural protections are an individual entitled to under s 7? The baker test is helpful. What is
important here is that the basic principles underlying the procedural protections. These have to be
considered in light of the facts of a specific case. The common law factors from baker therefore inform
the s 7 procedural analysis, but are not constitutionalized.
The court must look at the statute in question and the rights affected and then consider 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:
Baker, supra, at paras. 23-27.
In this case the nature of the decision to deport bears some resemblance to judicial proceedings. It is
also a decision to which discretion must attach. This militates neither in favour of strong nor weak
procedural safeguards.
The nature of the statutory scheme suggests the need for strong procedural safeguards. There is a
disturbing lack of parity in the protections of the immigration act and the lack of protections under s 53.
In s 53 there is no provision for a hearing, no requirement of written or oral reasons and no right of
appeal. No procedures at all. This means greater procedural protections are required.
The right affected is highly significant, especially because of the risk of torture on being deported and his
status as a convention refugee. The greater the effect of the decision, the greater the need for
procedural protections.
64
Choice of procedure made by the agency - The minister must be allowed considerable discretion in
evaluating the future risk and security concerns of an individual. This factor suggests a degree of
deference.
Weighing these factors together the procedural protections required by s 7 do not extend to the level of
requiring the minister to conduct a full oral hearing. However they require more than the procedure
required under s 53, which is nothing. This is more than S received.
A person facing deportation to torture must be informed of the case to be met, provided the
opportunity to respond to the case presented to the minister, and an opportunity to challenge the
information of the minister where issues as to validity arise. When the minister is relying on foreign
assurances that a person will not be tortured they must do an investigation into the validity of these
assurances. The minster must also provide written reasons for their decision. Not every case of
deportation will involve risk of torture. It is for the refugee to establish this threshold.
Despite the legitimate purpose of s 53, valid objectives alone do not suffice to justify violations under s
1. More is needed. No proof of that so not justified under s 1(para 128).
4. Should the minister order be set aside and a new hearing ordered?
129We conclude that generally to deport a refugee, where there are grounds to believe that this
would subject the refugee to a substantial risk of torture, would unconstitutionally violate the
Charter’s s. 7 guarantee of life, liberty and security of the person. This said, we leave open the
possibility that in an exceptional case such deportation might be justified either in the balancing
approach under ss. 7 or 1 of the Charter. We reject the argument that the terms “danger to the
security of Canada” and “terrorism” are unconstitutionally vague. We also reject the argument
that s. 53, by its reference to s. 19, unconstitutionally violates the Charter guarantees of
freedom of expression and association. Finally, we conclude that the procedures for
deportation under the Immigration Act, when applied in accordance with the safeguards
outlined in these reasons, are constitutional.
130 Applying these conclusions in the instant case, we find that Suresh made a prima facie
showing that he might be tortured on return if expelled to Sri Lanka. Accordingly, he should
have been provided with the procedural safeguards necessary to protect his s. 7 right not to be
expelled to torture. He was not provided the required safeguards. We therefore remand the
case to the Minister for reconsideration in accordance with the procedures set out in these
reasons.
Held: appeal allowed. Matter remitted to the minister for reconsideration.
Singh v Minister of Employment and Immigration [1985] 1 RCS
Facts:
65




Appellants (7 of them in all that have different stories) made a refugee status claim under s.2(1)
of the Immigration Act 1976. They were denied refuge status.
Immigration Appeal Board denied subsequent applications for redetermination of status, on the
basis that it did not believe that there was “reasonable grounds” to believe that a claim would
be established upon a hearing under s.71(1) of the act
They applied for judicial review, and the Federal Court refused to grant them judicial review.
Differences: all of them have different stories, 6 are Indian, and 1 is of Indian origin, they also
had a different way to assert refugee status – 4 were refused entry at the port of entry; 3 were
in Canada when they made their claim
Issue:
 1) Are the appellants entitled to s.7 protection? [YES]
 2) If yes, have their s.7 rights been violated by s.70(1) of the Immigration Act? [YES]
 3) If yes, is the provision saved by s.1? [NO]
 4) Are they entitled to Charter remedies? [NO. Administrative remedies]
Reasoning:
Wilson (+2)
The Scheme of the Immigration Act 1976

Appellants (S) argue that they have been deprived of their Charter rights by the procedural
mechanisms set out in the Immigration Act 1976.
 To determine this, Court determines it is necessary to look at the Act as a whole. The scheme of
the act needs to exclude their rights so as to be able to resort to the Charter.
(a) The rights of Convention Refugees under the Immigration Act 1976





Appellants are not claiming that they have a constitutional right to be in Canada. However, the
act does provide Convention refugees w/ certain limited rights to enter and remain in Canada.
Act envisages the assertion of refugee claim under s.45 in the context of an inquiry, which
presupposes that the claimant is physically present in Canada. However, the phrase “while
lawfully in Canada” is a problem to the refugee’s right to remain in Canada. Especially since, it is
a prerequisite that a refugee claimant under s.45 is a person against whom a removal order or
departure notice may be made. Therefore, anyone who is determined to be a Convention
refugee will, in one sense, be lawfully in Canada. By accepting the refugee claim, it is then
possible to regularize the person’s status. Troubles that can arise from this particularity of the
act can be seen in Boun-Leua (see discussion p.190-2)
A convention refugee under ss.55 and 72 of the act is entitled to require that the minister
exercise his discretion to give a permit under s.37 (i.e. allowing him to stay) fairly and in
accordance w/ proper principles, and if the fails to do so, that they are able to actually get some
JR. S.2.2 and 3.g of the act are administered in a way that fulfills Canada’s international legal
obligations.
Note that the procedures for determining whether an individual is a convention refugee and for
redetermination of claims is set out in ss.45-8 and 70-1. And, the court claims that it is difficult
to characterize the procedure set in those articles as a traditional “hearing”: “the procedure is
non-adversarial” since only the claimant is entitled to be represented by counsel.” (195)
Nevertheless, although parliament here has said nothing about DF, as DF is presumed when
parliament is silent, the general duty is present here! (c.f. Nicholson)
66

“The existence of a duty of fairness does not, however, define its content.” (p.196) (i.e. it is
unclear what they are made off).
 The respondent here argues that in this case the Act did not contemplate an oral hearing before
the Minister or the Refugee Status Advisory Committee.
 And indeed from s.45(4) it is clear that “the Act does not envisage an opportunity for the
refugee claimant to be heard other than through his claim and the transcript of his examination
under oath. Nor does the Act appear to envisage the refugee claimant’s being given an
opportunity to comment on the advice the Refugee Status Advisory Committee has given to the
Minister” (p.196) “In substance, therefore, it would appear that the Refugee Status Advisory
Committee acts as a decision-making body isolated from the persons whose status it is
adjudicating and that it applies policies and makes use of information to which the refugee
claimants themselves have no access.” (p.197) Furthermore, although they have a duty to act
fairly, the courts cannot add on to their stack things that parliament didn’t provide for.
 The Minister’s exercise of his jurisdiction under s.45 is not reviewable on these appeals.
However, s.45 does not do a conclusive determination of the matter. This is done by s. 70.(1)!
 S.70(1) grants a right of redetermination. If the Board were to determine pursuant to s.71(1)
that the application could proceed, the hearing that would take place would be a quasi-judicial
one entitled to full natural justice requirements. HOWEVER, the board will only do this
redetermination if there is “reasonable grounds” that the claim would win (i.e. it has to be
“more likely than not” that the applicant will be able to establish his claim at the hearing). They
say that they do not have the power to rehear every case. (199)
 S.71(1) seems to be precisely the type of express provision which prevents the courts from
reading the principles of natural justice into a statutory scheme for the adjudication of the rights
of individuals.
 In this case all the procedures were followed perfectly, so all that is left is – Charter!
The Application of the Charter
(a) Are the Appellants Entitled to the Protection of s.7 of the Charter?



Charter applies to everyone: “Section 7 of the Charter states that "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". Counsel for the appellants contrasts the use of the
word "Everyone" in s. 7 with language used in other sections, for example, "Every citizen of
Canada" in s. 3, "Every citizen of Canada and every person who has the status of a permanent
resident of Canada" in s. 6(2) and "Citizens of Canada" in s. 23. He concludes that "Everyone" in
s. 7 is intended to encompass a broader class of persons than citizens and permanent residents.
Counsel for the Minister concedes that "everyone" is sufficiently broad to include the appellants
in its compass and I am prepared to accept that the term includes every human being who is
physically present in Canada and by virtue of such presence amenable to Canadian law.”
(p.202)
In order to decide whether the appellants have been deprived of right to life, liberty and
security of the person within s.7, it is important to determine what rights the appellants have
under the immigration act (204).
S.5(1) of the Act excludes from persons other than those described in s.4 the right to come into
or remain in Canada. However, the Act does give convention refugees certain rights not
provided to others, like the right to a determination from the Minister based on proper
principles as to whether a permit should be given to him to remain, the right not to be returned
67
to a place where his life and freedom would be threatened, and the right to appeal a removal
order or a deportation order made against him.
 However, does the deprivation of these rights violate s.7?
o Note: The respondents had advanced earlier on a “single right” theory, which is that the
words “the right to life, liberty and security of the person” form a single right w/ closely
related interparts. The Court claims that even if this were to be used, the theory
advanced by counsel to suggest that a deprivation of the appellants’ security of a person
(even if this would not concern the other “2”) would constitute a deprivation of their
“right” under s.7. For the court the theory was advanced to support a narrow
construction of the three words. However, although these words can mean many, many
things, it still is important for the court to determine what each of these three mean
(205).
 Generally speaking, since by definition a convention refugee is a person who has a well-founded
fear of persecution from the country he flees, to deprive him of the avenues open by the act to
escape this fear, would at least impair his right to life, liberty, security of the person in the
narrow sense advanced by the minister.
 Question: But does this amount to a deprivation of s.7? Especially since even if the fear of
persecution is well founded, it is not certain that he will be deprived of his life or liberty if
returned to his homeland.
 Answer: the court cannot accept that denying rights possessed by a convention refugee does
not constitute a deprivation of a person’s security of the person.
 Security of the person can be both found in BR s.1(a) and the Charter, but neither provides a
proper interpretation, nor does the jurisprudence. Yet, regardless of all the definitions that can
be given to security of the person, whether narrow or large, this term encompasses “freedom
from the threat of physical punishment or suffering as well as freedom from such punishment
itself.” Thus, yes, the act does deprive a person of their s.7 rights (207).
 The BR has received a rather narrow interpretation for s.1(a) and 2(e), but the same cannot be
done in a Charter context (p.209)
 IN SUM: “I am of the view that the rights which the appellants are seeking to assert are ones
which entitle them to the protection of s.7 of the Charter. It is necessary therefore to consider
whether the procedures for the determination of refugee status as set out int eh Act accord w/
fundamental justice.” (p.212)
(b) Is fundamental justice denied by the procedures for the determination of Convention Refugee status
set out in the act?


It is possible that an oral hearing before the decision-maker is not required in every case in
which s.7 is called into play (and that this merely fulfilled by written statements), but not in
cases where s.7 is properly construed to mean matters like death, physical liberty and physical
punishment, “these are matters of such fundamental importance that procedural fairness would
invariably require an oral hearing.” (p.213)
Cases where credibility is at stake are particularly important when requesting a hearing: “I
should note, however, that even if hearings based on written submissions are consistent w/ the
principles of fundamental justice for some purposes, they will be satisfactory for all purposes. In
particular, I am of the view that where 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 fo 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
68
benefit of hearing the testimony of witnesses in person. I would find it difficult to conceive of a
situation in which compliance w/ fundamental justice could be achieved by a tribunal making
significant findings of credibility solely on the basis of written submissions.” (p.213)
 Generally, her main beef with s.70 and 71 of the Act, is not that there is no oral hearing, but that
the opportunity scheme provided for refugee claimants to state their case is inadequate (214).
This procedure is highly adversarial, but that “the applicant has no means of access that the
applicant for redetermination is not a Convention refuge.” He can still submit “whatever
relevant material he wishes”, but he has still to establish on the balance of probabilities the
Minister was wrong. And he has to do this w/o knowing the Minister’s case other than the
“rudimentary” reasons that were given to him when he was rejected. This is what goes against
the charter.
 If granted a redetermination, as a matter of fundamental justice, claimants should be entitled to
discover the Minister’s case prior to the hearing. Yet, as the Act presently stands “a refugee
claimant may never have the opportunity to make an effective challenge to the information or
policies which underlie the Minister’s decision to reject his claim.” (p.216)
 So the procedures go against s.7 of the Charter.
(c) Can the Procedures be saved under s.1 of the Charter?


In this case, it looks like counsel hadn’t prepared a strong s.1 argument. (see p.217)
Gov brings up as argument that the Canadian practice as regards to refugees was not an
uncommon practice, and that European countries did it too, and that the Immigration Appeal
Board already had too many cases to hear, making a requirement of an oral hearing for every
case an unreasonable burden on the Board’s resources.
o Wilson says that it is important to remember that Charter rights are fundamental to the
pol structure in Canada and are guaranteed by the Charter as part of the Constitution.
So when determining a “reasonable limit prescribed by law which can be “demonstrably
justified in a free and democratic society””, courts conduct the inquiry in light of their
commitment to uphold the rights and freedoms as set out in the other sections of the
Charter. In this case, it is not just about unreasonable procedures, but about depriving
people of life, liberty and security. “Seen in this light I have considerable doubt that the
type of utilitarian consideration brought forward by Mr Bowie can constitute a
justification for a limitation on the rights set out in the Charter.” (218) (i.e. come on
Crown, make a better argument!)
 Also, court is not convinced that the rights of refugee claimants imposed are reasonable even on
the respondent’s own terms. i.e. the government even seems unhappy with this situation.
(p.219)
 As for the cost argument: it is insufficient.
 So poo s.1.
Remedies


Are they are entitled to s.24(1) remedy i.e. to apply to a court of competent jurisdiction for
“such remedy as the court considers appropriate and just in the circumstances”? (221)
No. “Section 24(1) of the Charter provides remedial powers to “a court of competent
jurisdiction”. As I understand this phrase, it premises the existence of jurisdiction from a soruce
external to the Charter itself. This Court certainly has jurisdiction to review the decisions of the
Immigration Appeal Board in these cases pursuant to s.28 of FCA.” But this is an admin case, so
no.
69
 She orders the cases to be reheard at the board. S.71(1) is no longer of affect.
Beetz (concurring, +2)










He decides to take the BR path, and doesn’t even want to begin w/ the Charter stuff.
According to s.26 of the Charter, BR retains all its force.
So have the procedures followed in these cases for the determination of Convention refugee
status conflicted w/ s.2(e) of the BR?
S.2(e) is a broader enumeration of rights than the ones in s.1
“the process of determining and predetermining appellants’ refugee claims involves the
determination of rights and obligations for which the appellants have, under s.2(e) of BR the
right to a fair hearing in accordance w/ the principles of fundamental justice.” (p.228)
But were they afforded a “fair hearing in accordance w/ the principles of fundamental
justice”? – NO: “What the appellants are mainly justified of complaining about in my view is that
their claims to refugee status have been finally denied without their having been afforded a full
oral hearing at a single stage of the proceedings before any of the bodies or officials empowered
to adjudicate upon their claim on the merits. They have actually been heard by the one official
who has nothing to say in the matter, a senior immigration officer. But they have been heard
neither by the Refugee Status Advisory Committee, who could advise the Minister, neither by
the Minister, who had the power to decide and who dismissed their claim, nor by the
Immigration Appeal Board which did not allow their application to proceed and which
determined, finally, that they are not Convention refugees.” (p.229)
Principles of fundamental justice do not impose an oral hearing in all cases (c.f. Inuit Tapirisat)
“The most important factors in determining the procedural content of fundamental justice in a
given case are the nature of the legal rights at issue and the severity of the consequences to the
individuals concerned.” (p.229)
Here the right at issue is of fundamental importance to them. Also, due to the threat to their life
or liberty by a foreign power, “nothing will pass muster short of at least one full oral hearing
before adjudication on the merits.” (p.231) The alternative proposed by the act (i.e. written
submissions) is insufficient.
What remedies are they entitled to receive?: “It seems clear to me that the orders of the
Immigration Appeal Board concerning them ought to be set aside and that their claims to
Convention refugee status ought to be adjudicated upon on the merits after holding of full oral
hearings.” (p.235) All appellants want to be tried at the trial level, but changes to the Act, they
would have to take with parliament, because s.71(1) does not really allow for an oral hearing.
Since it goes vs the BR, he declares it inoperative as per Drybones.
Ratio:



The Charter applies to everyone within Canadian jurisdiction. When s.7 is involved, the duty to
PF can be very high.
In cases were the life, liberty and security of a person is involved, especially when credibility is at
stake, an oral hearing is most likely to be required.
Charter remedies do not apply in the admin context.
Charkaoui v Canada (Citizenship and Immigration [2007] 1 RCS
70
Facts:

IRPA s.77 allows the Minister of Citizenship and Immigration and the Minister of Public Safety
and emergency Prepardeness to issue a certificate declaring that a foreign national or
permanent resident (PR) is inadmissible to Canada on grounds of security, and leading to the
detention of the person named in the certificate. Certificate and detention are both subject to
review by a judge of the Federal Court. The policy for these is to permit the removal of noncitizens on various grounds, including connection with terrorist activities.
 During this a process a person may be deprived of some or all of the information of which the
certificate was issued or the detention ordered (s.78). In fact, if the state wants to the review is
conducted in camera and ex parte. The person named in the certificate has no right to see the
material on the basis of which the certificate was issued. At the end of the day, the judge will
just give them a summary of the case made against them, but this summary doesn’t disclose
material that might compromise national security.
 Once a certificate is issued, a PR may be detained, and their detention must be reviewed within
48 hours. For foreign nationals, the detention is automatic, and they cannot apply for review
until 120 days after a judge determines the certificate to be reasonable (ss.82-84)
 The judge’s determination on the reasonableness of the certificate cannot be appealed or
judicially reviewed (s.80.3) If the judge finds the certificate to be reasonable, it becomes a
removal order, which cannot be appealed and which may be immediately enforced (s.81).
Removal order cannot be appealed, and may be immediately enforced (no requirement of
holding/continuing an examination of admissibility hearings). If you are a refugee, you will lose
your status and will be deported (back to torture!).
 Certificates of inadmissibility were issued by the Ministers against appellants C, H and A. C is PR,
and Harkat and Almrei are foreign nationals, who were recognized as convention refugees.
 All were living in Canada when they were arrested and detained on the basis of allegations that
they constituted a threat to the security of Canada by reason of involvement in terrorist
activities. C and H were released on conditions in 2005 and 2006 respectively, but A remains in
detention and most likely will be deported to Algeria.
 Federal Court and Federal Court of Appeal upheld the constitutional validity of the IRPA’s
certificate scheme
Issue: Does the solution that Parliament has set in place through IRPA conform to the Constitution, and
in particular to the Charter, protecting against unjustifiable intrusions on liberty, equality and freedom
from arbitrary detention and from cruel and unusual punishment? [NO, there is a violation of s.7]

More specifically they claim violation of articles: 7, 9 , 10(c), 12 and 15: however, court finds
violation of only s.7!
 They also allege violation of unwritten constitutional principles (i.e. RL): court finds that no
Reasoning:

Government has to protect its citizens, but at the same time it has to be held accountable to the
Constitution and rights and liberties guaranteed: the two propositions describe a tension that
lies at the heart of modern demo governance. (para1)
A. Does the Procedure Under the IRPA for Determining the Reasonableness of the Certificate Infringe
Section 7 of the Charter, and if so, Is the Infringement Justified Under Section 1 of the Charter?  YES
1. Is s.7 of the Charter Engaged?  YES
71

Claimant has to prove 2 things to engage s.7: “first, that there has been or could be a
deprivation of the right to life, liberty and security of the person, and second, that the
deprivation was not or would not be in accordance with the principles of fundamental
justice.”(para12)
 The provisions found at Division 9 of Part I of the Act clearly deprive a person of their liberty.
Furthermore, they can affect a person in more ways: the certificate process can lead to a
removal from Canada of a person to a place where his or her life or freedom would be
threatened; also accusing one as a terrorist could cause irreparable harm to the individual,
particularly if the latter is deported; finally a person determined to be inadmissible on grounds
of security loses protection under s.115(1) (i.e. his refugee status), which means that they can
be deported to torture if the Minister believes that the person is a danger to the security of
Canada.
 The individual interests at stake mean that s.7 is engaged, and this leads to the question of
whether the IRPA’s impingement on these interests conforms to the principles of fundamental
justice (para16).
 Although deportation of a non-citizen in the immigration context may not in itself engage s.7 of
the Charter, some of the features associated with the deportation (e.g. detention in the course
of certificate process or prospect of deportation) might do so.
 When determining applicability of s.7, important to “look at he interests at stake rather than the
legal label attached to the impugned legislation.” (para18)
 In sum: “I conclude that the appellants’ challenges to the fairness of the process leading to
possible deportation and loss of liberty associated w/ detention raise imp issues of liberty and
security, and that s.7 of the Charter is engaged” (para18)
2. How do Security considerations affect the s.7 analysis?  they cannot erode s.7 protection no
matter how important they are
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S.7 requires that laws interfering with life, liberty and security conform to the principles of
fundamental justice (i.e. w/ the basic principles that underlie notions of justice and fair process)
S.7 doesn’t require a particular process, but a fair process
Important: here, we don’t look at whether or not the actions were justified (s.1 analysis): we
look at whether the limit imposed respects the principles of fundamental justice
Question at s.7 stage: have the principles of fundamental justice relevant to the case been
observed in substance, having regard to the context and the seriousness of the violation? (i.e.
has the process been fundamentally unfair to the affected person?)
At this stage, security concerns cannot be used as an excuse to do whatever at this stage. It is
important to look at the context of the situation to see whether or not it was possible to adhere
to principles of fundamental justice in their usual form, or to find substitutes.
In this case, were dealing with detention, incidental to the removal or attempt to remove
individuals from the country. These people supposedly pose a threat to national security so full
disclosure of info relied on may not be possible. However, keeping this context in mind, it may
have “chilling” consequences for the detainee, and the seriousness of the interests at stake is
part of the contextual analysis (c.f. Suresh). (para24)
Recently the potential consequences of deportation combined w/ allegations of terrorism have
been under a harsh spotlight due to a recent report. (para 26) HOWEVER, in the report it is
noted that there are requests for the RCMP and CIC to be more transparent but the problem is
that these activities sometimes contain information that is highly sensitive and related to
national security.
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
Regardless of all of this, the judge claims that although we are in a national security context,
the essence of s.7 cannot be eroded. Although the protection might not be as complete,
satisfying this section remains important.
3. Relevant Principles of Fundamental Justice  IRPA scheme is only supplying the hearing
requirement.

Overarching principle: before state can detain for a significant amount of time, it must accord
a fair judicial process. i.e. no one can deprive you of your liberty randomly. It was originally
brought as a motion of habeas corpus during feudal times.
 “This basic principle has a number of facets. It comprises the right to a hearing. It requires
that the hearing be before an independent and impartial magistrate. It demands a decision by
the magistrate on the facts and the law. And it entails the right to know the case put against
one, and the right to answer that case. Precisely how these requirements are met will vary
with the context. But for s.7 to be satisfied, each of them must be met in substance. (para 30)
 In this case, IRPA seems to only satisfy the hearing requirement, because the after the person’s
case passes in front of the executive, it is followed by review before a judge, where the person
gets their hearing.
 The main questions here are around the other requirements.
a) Is the Judge Independent and Impartial?  YES
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Scope of hearing can vary according to context (Baker), but a hearing must include an
impartaial/indep judge (which is consistent w/ notion of judicial independence)
IRPA requires certificate be issued by a “designated judge” (i.e. Federal Court). But does this
from an institutional perspective lead to a perception that indep and impartiality and
compromised?
In this case, the gov doesn't allow the judge to share confidential material with the person
concerned. They cannot hear the objections of the ‘accused’. Part of the hearing can be held in
camera, but only w/ gov lawyers and the judge in the room, the person ‘accused’ is not present,
nor is his lawyer.  in all these circumstances give rise to a perception of impartiality. These are
the three concerns that arise w/ respect to indep and impartiality:
o 1) IRPA may be perceived to deprive the judge of his or her independent judicial role
and co-opt the judge as an agent of the executive branch of government. (rejected)
 Linked to degree of deference that judge gives to the ministers’ conclusions that
the facts supported the issuance of the certificate and the detention of the
named person
 As response to accusation, judges avoid using an overly deferential
approach, they will instead look at the reasonableness of the decision.
Court finds it a correct approach due to the language of the provision,
the history of its adoption, and the role of the designated judge.
(para38) An active role for the designated judge is justified by the
language of IRPA and the SR established in the act (which is of
reasonableness) (see para 39)
  Court concludes thus that: the non-deferential role taken by the
judge helps alleviate the first concern!
o 2) Designated judge functions as an investigative officer rather than a judge. (rejected)
  Court: “the mere fact that a judge is required to assist in an investigative
activity does not deprive the judge of the requisite independence.” (para43) The
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process established by the legislation is not purely investigative. In fact,
determining reasonability looks more like an adjudicative review of an executive
fact than to investigation.
 Although, the procedure does require him to examine closely the evidence
(para44), the judge continues to perform an adjudicative function of evaluation
rather than an executive function of investigation. Judge must just be careful to
avoid allowing the ‘investigative’ aspect to overwhelm he adjudicative one.
o 3) Judge (whose role includes compensating for the fact that the named person may
not have access to material and may not be present at the hearing) will become
associated with this person’s case (i.e. it will seem as if he was taking the guys’
‘defense’ given that the ‘accused’ is not present). (rejected)
 Concern must be balanced w/ opposite concern that the judge is in the gov
camp
 Critical consideration is that IRPA requires the judge to conduct the review in an
independent and judicial fashion.
  IRPA scheme cannot be condemned on the fact/perception that the judge
advocates for one of the sides.
 Conclusion: IRPA scheme preserves the indep and impartiality of the designated judge as
required by s.7(para 46).
b) Is the Decision Based on the facts and the Law?  NO. Judge will make his determination on the
evidence available, but it is not sure that he will receive all relevant evidence, especially since the
individual against whom the charges are made cannot really participate in the proceedings (p.s. SCC
really defends the federal court judge that would be participating in the proceedings – they claim that
they do their best to try to get all the relevant evidence, but that this is not enough).

In order to comply w/ s.7, it is owed to the parties to make a decision based on the facts and the
law, which is the case for the extradition context.
 IRPA requires only the judge to vet the evidence for reliability. Normal standards used to ensure
reliability do not apply. So the judge might base his decision on the evidence before him rather
than all the evidence available.
 2 types of judicial systems ensure that the full case is placed b4 the judge in 2 different ways.
o Inquisitorial system: judge takes charge of gathering evidence in an independent and
impartial way.
o Adversarial system: parties are relied on to produce relevant evidence
 IRPA does not give the judge full and indep powers to gather evidence that exist in the
inquisitorial process, and simultaneously does not give the person accused to give disclosure
and the right to participate in proceedings that characterize the adversarial process. So: concern
that judge may be obliged to make the decision on only part of the relevant evidence.
 FC (federal court) judges have done their best to overcome these difficulties. They have adopted
a pseudo-inquisitorial role and to seriously test the evidence. But this is still pseudo-inq. Also,
the accused cannot complete the missing evidence. Thus, one cannot be sure that the judge has
been exposed to the whole factual picture.
 The same concerns arise w/ respect that the decision be made based on law: w/ no knowledge
of the info against him, how can he be expected to make a legal objection in his favor? How can
he make a full legal argument?
c) Is the “Case to Meet” Principle Satisfied?  NO
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
Fair hearing requires that the affected person be informed of the case against him, and be
allowed to respond. But, under IRPA’s certificate scheme the person may be deprived of access
to some or all of the info against him, denying him the right to meet his case (para54).
 Remember confidentiality is a constant preoccupation of the certificate scheme. The judge only
has to provide a summary to the guy being held, but he might sometimes condemn on things
that were not included in the summary. Therefore, in the end the person may know nothing of
the case to meet, and may be left in a position of not knowing what needs to be said.” (para55)
The same concerns are for the detention process (para56).
 It is true that the right to know the case to be met is not absolute (para57). More particularly,
the Court has repeatedly recognized that national security considerations can limit the extent of
disclosure of information to the affected individual (para58). In fact, in some contexts,
substitutes for full disclosure may permit compliance w/ s.7 of the Charter (para59).
 HOWEVER, where a limited disclosure or ex parte hearings have been found to satisfy the
principles of fundamental justice, the intrusion on liberty and security has typically been less
serious than that effected by the IRPA. One thing is fingerprinting, and another is being removed
from the country indefinitely. Moreover, even in the less intrusive situations, courts have
insisted that disclosure be as specific and complete as possible.
o Here: “In the context of national security, non-disclosure, which may be extensive,
coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if
not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice
requires substantial compliance with the venerated principle that a person whose
liberty is in jeopardy must be given an opportunity to know the case to meet, and an
opportunity to meet the case. Yet the imperative of the protection of society may
preclude this. Information may be obtained from other countries or from informers on
condition that it not be disclosed. Or it may simply be so critical that it cannot be
disclosed without risking public security. This is a reality of our modern world. If s. 7 is
to be satisfied, either the person must be given the necessary information, or a
substantial substitute for that information must be found. Neither is the case here.”
(para61)
 The only protection given by IRPA accords to the named person is a review by a designated
judge to determine whether the certificate is reasonable. (para62) HOWEVER, although the
judges efforts may be “conscientious” they cannot provide an effective substitute for informed
participation (for all the reasons as to how IRPA does not conform see para63-4 (I would include
but it would just be a “block” of text)).
 Remember: “The issue at the s. 7 stage, as discussed above, is not whether the government has
struck the right balance between the need for security and individual liberties; that is the issue
at the stage of s. 1 justification of an established limitation on a Charter right. The question at
the s. 7 stage is whether the basic requirements of procedural justice have been met, either in
the usual way or in an alternative fashion appropriate to the context, having regard to the
government’s objective and the interests of the person affected.” (para63)
Conclusion on S.7  VIOLATION ALERT!

IRPA fails to assure the fair hearing that s.7 requires before the state deprives a person of life,
liberty or security. IRPA’s procedure for determining whether a certificate is reasonable does
not conform to the principles of fundamental justice embodied in the Charter. This also applies
to s.83 and 84. (para65)
75
Is the Limit justified under s.1? – NOPE. There are alternatives, and the rights are not minimally
impaired!
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Saving a law that violates s.7 is difficult and rare but can be done (para66).
Judge then applies Oakes: “A finding of proportionality requires: (a) means rationally connected
to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of
the infringement and the importance of the objective.”
 First stage: quickly dismissed, judge claims that it is rationally connected.
 Second stage: here he claims that there is a bug. The challenge of terrorism is not new, and
there are several alternatives that exist that suggest that the IRPA regime, which places on the
judge the entire burden of protecting the person’s interest, does not minimally impair the rights
of non-citizens, and hence cannot be saved under s. 1 of the Charter (para69). He looks at the
alternatives in detail:
(a) Less Intrusive Alternatives

Not the first time that Canada has had to reconcile demands of national security w/ procedural
rights guaranteed by the Charter. In some situations, the solution has involved the use of special
counsel, in a manner closely approximating an adversarial process.
 E.g. #1) the Security Intelligence Review Committee: independent review body that monitors
the activites of Canadian Security Intelligence Service, they have developed their own
investigative procedure like a formal adversarial processs, with “a court-like hearing room” and
“procedures that mirrored judicial proceedings as much as possible”. The process also included
an independent panel of lawyers with security clearances to act as counsel to SIRC. In fact, in
this context, the non-citizen and his counsel would be present in the hearing room, except when
sensitive national security evidence was tendered. This might not be perfectly applicable to
terrorism but it could work (see paras 73-6 for more details)
 E.g. #2) Canada Evidence Act (CEA) ss.37-9: permits the government to object to eh disclosure of
information on grounds of public interest in proceedings to which the act applies. (para77). CEA
might not address the same issues as IRPA, but at least its an example where parliament showed
concern between striking balance between the need for protection of confidential info and the
rights of the individual
 E.g.#3) Procedures adopted in Air India trial suggest that much less intrusive solution can be
found (para78)
 E.g. #4) Special advocate system employed by the Special Immigraion Appeals Commission
(SIAC) in the UK (para80-4)
(b) The IRPA scheme does not minimally impair the named person’s rights
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Parliament doesn’t have to use a perfect/less restrictive alternative, but bearing in mind the
deference that is owed to Parliament in its legislative choices, the alternatives discussed
demonstrate that the IRPA does not minimally impair the named person’s rights: “Under the
IRPA, the government effectively decides what can be disclosed to the named person. Not only
is the named person not shown the information and not permitted to participate in proceedings
involving it, but no one but the judge may look at the information with a view to protecting the
named person’s interests.” (para86)
In sum: “IRPA’s procedures for determining whether a certificate is reasonable and for
detention review cannot be justified as minimal impairments of the individual’s right to a judicial
determination on the facts and the law and right to know and meet the case. Mechanisms
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developed in Canada and abroad illustrate that the government can do more to protect the
individual while keeping critical information confidential than it has done in the IRPA. Precisely
what more should be done is a matter for Parliament to decide. But it is clear that more must
be done to meet the requirements of a free and democratic society.” (para87)
*The following seemed much less relevant for the course, or at least for this section, so I summarized
them fast. The only part I summarized in detail were the comments on the rule of law which are
towards the end. HOWEVER, we do have to read Charkaoui again, which means I will rework this
section if necessary!
B) Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Sections 7, 9,
10(c) or 12 of the Charter, and if so, Are the Infringements Justified Under Section 1 of the Charter?
1) Time Constraints on Review for Foreign Nationals: Breach of Section 9 or Section 10(c)?

S.9 is the freedom from arbitrary detention (paras 88-93): the lack of timely review of detention
of foreign national violates s.9 and s.10(c) and cannot by saved by s.1 (para94)
2. Do Extended Periods of Detention Under the Scheme Violate Section 7 or the Section 12 Guarantee
Against Cruel and Unusual Treatment? - NO
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Threshold for breach of s.12 is high.
It is clear that while the IRPA in principle imposes detention only pending deportation, it may in
fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release
conditions. The next question is whether this violates s. 7 or s. 12 based on the applicable legal
principles. (para105)
“I conclude that extended periods of detention under the certificate provisions of the IRPA do
not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular
opportunities for review of detention, taking into account all relevant factors, including the
following (110):
o Reasons for detention (para111)
o Length of detention (para 112)
o Reasons for the delay in deportation (para114)
o Anticipated future length of detention (para115)
o Availability of alternatives to detention (para116-20)
“In summary, the IRPA, interpreted in conformity with the Charter, permits robust ongoing
judicial review of the continued need for and justice of the detainee’s detention pending
deportation. On this basis, I conclude that extended periods of detention pending deportation
under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter, provided
that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is
not unconstitutional on this ground. However, this does not preclude the possibility of a judge
concluding at a certain point that a particular detention constitutes cruel and unusual treatment
77
or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter
in a manner that is remediable under s. 24(1) of the Charter.” (para123)
C. Do the Certificate and Detention Review Procedures Discriminate Between Citizens and Non-Citizens,
Contrary to Section 15 of the Charter, and if so, Is the Discrimination Justified Under Section 1 of the
Charter? – NO
D. Are the IRPA Certificate Provisions Inconsistent With the Constitutional Principle of the Rule of
Law?  NO

C claims that the RL is violated by 2 aspects of IRPA: “the unavailability of an appeal of the
designated judge’s determination that the certificate is reasonable; and the provision in s. 82 for
the issuance of an arrest warrant by the executive (in the case of a permanent resident) or for
mandatory arrest without a warrant following an executive decision (in the case of a foreign
national).”
 C’s claim is based on the content of IRPA, however, as per Imperial Tobacco: “it is difficult to
conceive of how the rule of law could be used as a basis for invalidating legislation . . . based on
its content” (para. 59). Even if this dictum leaves room for exceptions, Mr. Charkaoui has not
established that the IRPA should be one of them.” (para135)
o 1) C claims violation of RL b/c no appeal, but no constitutional right to appeal
o 2) C argues violation RL by the provision for arrest under a warrant issued by the
executive (in case of permanent resident) or for automatic detention w/o a warrant (in
case of foreign national), but RL does not categorically prohibit automatic detention or
detention on the basis of an executive decision. Constitutional protections surrounding
arrest and detention are set out in the Charter, and it is hard to see what the RL could
add to these provisions. (para137)
Conclusion

s.78(g) (which allows for the use of evidence that is never disclosed to the named person w/o
providing adequate measures to compensate for non-disclosure and the constitutional problems
it causes) + IRPA procedure for judicial confirmation of certificates and review of detention
violates s.7 and not saved by s.1  is of no force or effect.
84.2 (which denies a prompt hearing to foreign nationals by imposing 120-day embargo, after
confirmation of the certificate, on applications for release) violates charter  strike down this provision
Chapter 9, Standard of Review: Back to the Future?, pp.279-91, Audrey
Macklin
I – Introduction (p.280)
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Normal courts will usually have the straightforward task of determining whether the lower court
arrived to the “right” answer. Only in cases of findings of fact will they hesitate to intervene (TJ
has had first hand exposure to the evidence).
JR brings in a different set of questions: Is there always only a single correct answer? Who is best
place to determine the answer, the first-level, specialist decision-maker or the generalist
reviewing judge? What criteria can assist in assessing relative expertise?
Nowadays the answer to all these questions is that the first decision-maker deserves deference:
“Deference as respect requires not submission but a respectful attention to the reasons offered
or which could be offered in support of a decision.” (Baker endorsing author David Dyzenhaus)
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
Deference is then quantified through the standard of review applied by the court to the
impugned decision. Less deference means stricter review. No deference = correctness, much
deference = reasonableness
 Courts nowadays will never really relinquish their right to have the final word, and therefore will
insist that no decision can be completely immunized from judicial scrutiny
II – The Prequel (p.281)
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Concerns of efficiency, cost, and specialization militate in favor of an administrative regime. In
the 20th century, ideological conflict btw the expanding admin state and courts led govs in the
Anglo-American legal world to withdraw certain tasks from the courts to allocate them to newly
created, specialized agencies.
Example: Labor law – judicial system appeared to be very hostile to government created labor
regulations. Frustrated with this judicial hostility the government established a parallel admin
regime of labor relations boards, and enacted statutory provisions known as privative or
preclusive clauses that purported to oust entirely JR of the legality of admin action.
Privative clauses were originally intended to prevent courts from interfering w/ substantive
outcomes of admin action through the doctrines of error of law or absence of evidence for
findings of fact. Motives for privative clauses
o To direct the judiciary to respect the relative expertise of the admin or regulatory body
(primary motive)
o Promotion of prompt and final resolution of disputes or the rationing of scarce judicial
resources.
o Etc, …
Although originally to shield welfare legislation, note that privative clauses can be used
nowadays to shield ‘draconian’ pieces of legislation as well!
Privative clauses vary in wording, but usually include a grant of exclusive jurisdiction over the
subject matter, a declaration of finality w/ respect to the outcome, and a prohibition on any
court proceedings to set the outcome aside.
These clauses will pose a conundrum for the traditional concept of the RoL: on one hand,
legislative grant of authority is always circumscribed by the terms of the statute; on the other
hand the doctrine of parliamentary supremacy dictates that the legislator enact the law, and the
court must interpret and apply the law in accordance w/ the legislator’s intent.  Privative
clauses: explicitly oust the courts from supervising the actions of the admin decision-making
Historically, judges resisted enforcing the “plain meaning” of privative clauses. The way they
would do it would be with the following reasoning: decision-makers jurisdiction is demarcated
via statute; anything that they do exceeding their jurisdiction is null. In other words, judges
would apply a standard of correctness when the admin tribunal had exceeded jurisdiction, and
the rest it would oversight.
Effectiveness of privative clauses in deterring judicial intervention depended on the ease and
frequency w/ which courts could claim that something went beyond jurisdiction. 2 techniques
employed by the court were the following:
o Preliminary or collateral question doctrine – Bell v Ontario (HR Commission)
 Facts: someone was discriminated housing on the basis of race. The SCC had to
interpret s.3 of the Ontario HR Code. The provision relating to race applied to
the rental of a “self-contained dwelling unit”. Landlord was arguing that his
house did not fall under this definition. He claimed to the court that the tribunal
had no jurisdiction under the HR Code over the rental of his unit.
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
Outcome: SCC holds that ascertaining the meaning of “self-contained dwelling
unit” was preliminary to the question of whether the landlord had engaged in
discrimination. For Martland J, this was “an issue of law respecting the scope of
the operation of the Act, and on the answer to that question depends the
authority of the board to inquire into the complaint of discrimination at all …
and a wrong decision on it would not enable the board to proceed further.”
o Asking the wrong question doctrine – Metropolitan Life Insurance Company v
International Union of Operating Engineers, Local 769
 Facts: Ontario Labor Relations Board was in the process of certifying a union,
and according to the criteria set by the Board, the union would be able to be
certified. Labor Relations Act contained a privative clause.
 Outcome: the Court holds that although they were protected with a privative
clause, the Board lost their jurisdiction because it employed a faulty reasoning
process.
 *With this method, asking the wrong question (i.e. the fact that Court would
find their reasoning process defective), would make matters that came under
the jurisdiction of the decision-maker reviewable
 These two methods were criticized by many as formalistic, malleable and instrumental devices.
According to them, they allowed the courts to meddle in spheres from which they had been
deliberately excluded.
 These doctrines have been largely discarded, but the language of jurisdiction lives on. It is
important to know this history because (1) courts remain anxious over questions of jurisdiction,
and (2) the two doctrines survive through the characterization of the legal question as one of
“central importance to the legal system as a whole”
III – The Blockbuster: CUPE v New Brunswick Liquor Corporation (p.285)
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Facts: see case summary.
In this case, Dickson canvassed the reasons fro the existence of privative clauses, emphasizing
the legislative choice to confer certain tasks on admin bodies, the specialized expertise and
accumulated experience of admin bodies, and the virtues of judicial restraint. The interpretation
of s.102(3) of the labor board seemed to logically lie at the hear of the specialized jurisdiction of
the Board. As such, a court should only interfere on an interpretation of a provision that is “so
patently unreasonable that its construction cannot be rationally supported by the relevant
legislation.
This case reconfigured the analysis of when, why, and how the doctrine of jurisdictional error
ought to be deployed. Most importantly it conveyed the spirit of curial deference – i.e.
recognizing that these tribunals are specialized bodies that might be better suited to address
than an “ordinary court”
Three sources of the SCC’s doctrinal change can be seen w/ a reading of CUPE: (1) court situates
the case in a broader reappraisal of the respective roles assigned by the legislature to the courts
and to the admin bodies  Dickson claims that these bodies are better suited to reply to
questions related to their mandate than a generalist judge; (2) provision has many ambiguities,
therefore, no single interpretation can lay claim to it being correct – there are several plausible
interpretations that exist (incl that of the board)  “indeterminacy of meaning also underwrites
the plea for judicial humility that is at the heart of CUPE; (3) acknowledging the prior judicial
efforts failed to construct a coherent, principled means of distinguishing reviewable questions
from those insulated by a privative clause. He admitted that determining what issues are related
80
to jurisdiction can be difficult. The issue was then to become whether the board did something
that took the exercise of its power outside the protection of the privative or preclusive clause.
 Dickson claimed that short of a patently unreasonable interpretation of a statutory provision,
courts should not interfere w/ the result reached by the admin decision-maker.
 Outcome of case in nutshell: jurisdictional questions are to be assessed according to standards
of correctness, and questions within jurisdiction according to a standard of patent
unreasonableness.
 Fun fact: both Nicholson and CUPE were decided within a year of each other.
VI – The Sequels

Following CUPE, lower courts showed more deference to tribunals, whereas the SCC showed
more diffidence. I.e. it seemed to disregard Dickson’s caution against labeling issues as
jurisdictional in order to subject them to the more stringent correctness review.
 In Bilbeault: Beetz set for himself the task of elaborating a test for determining what constitutes
a jurisdictional question (correctness) and which questions are within a tribunal’s jurisdiction
(patent unreasonableness)  he proposed a pragmatic and functional analysis for distinguishing
between jurisdictional and non-jurisdiction-conferring provisions. The central question to this
test was, “did the legislator intend the question to be within the jurisdiction conferred on the
tribunal?”
 To answer the question one had to look at: the wording of the enactment conferring
jurisdiction, the purpose of the statute creating the tribunal, the reasons for its existence, the
area of expertise of its members and the nature of the problem before the tribunal.
 Framing the question in terms of legislative intent, Beetz managed to retain a formal
commitment to parliamentary supremacy and a rejection of a contextual statutory
interpretation.
 The following are the jurisprudential insturments that play out the themes of CUPE although not
harmoniously
A. Is JR constitutionally protected? (p.289)
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Central common law precept of statutory construction: interpretation should express the will of
the legislator. A given interpretation is always defensible just as long as the legislator is free to
amend the statutory provision if judicial interpretation does not properly capture the intended
meaning. It is possible for parliament to properly ouster the courts by refining the privative
clauses.
Yet creating fully exclusionary clauses is not really allowed as was determined in Crevier:
“Crevier constitutionalized judicial review for jurisdictional questions, even in the fact of a
privative clause, thereby placing the matter beyond the reach of legislative amendment.”
Royal Oak: Parliament tried to exclude the courts from completey scrutinizing the decision (even
on jurisdiction), but this did not work. In terms of of the RL tenstion btw fidelity to
parliamentary intent nd the common law presumption of access to the ordinary courts, the
SCC’s expansive interpretation of s.96 ensure that the latter trumps the former
The SCC’s devotion to the primacy of access to the ordinary courts remains to be tested where
courts themselves (rather than the legislature) plice access to first-level judicial review (e.g.
Immigration and Refugee Protection Acxt imposes a written leave requirement on first-level
judicial review). The threshold for leave seems to be low, and apart from the descriptions of a
quantitative threshold, there are no discernible qualitative criteria, no reasons requirement, and
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no appeal from a denial of leave. However, in practice about 85% of applications for JR in
Immigration cases are denied… So how can this be sustained on a RL perspective?
B. Beyond Privative Clauses

“Should the court defer?” Is a question that has to be asked both when dealing with a privative
clause, and sometimes, where the statutes contain a finality clause, leave intact the option of
judicial review, or evne provide a full appeal to the courts on questions of law and fact.
 Pezim v BC
o In this case, the SCC was dealing w/ the BC Securities Commission. At issue: did the
newly acquired information about asset value constitute a “material change” requiring
disclosrure?
o In this case: Iacobucci makes clear that privative clauses are not all that matter, and that
other criteria had come into consideration, such as “expertise” and “deference”. The
commission in this case was a highly specialiezed tribunal, and an interpretation of
material change in the BC Securities Act will go against the core of the regulatory
mandate and expertise in regulating the securities market in the public interest.
o Here the SCC failed to describe the applicable standard of review as patently
unreasonable, although it suggested that it needed deference.
 Southam
o Iacobucci further elaborates and hints at the presence of an intermediate standard of
review between patent unreasonableness and correctness, which he labeled
“reasonableness simpliciter” (he later claimed that this one applied in Pezim)
 In order to understand how a middle ground emerged, it is necessary to return to Pezim’s shift
in emphasis from privative clauses to relative expertise. Binary focus on the presence or not of a
privative clause aligns w/ 2 standards of review embodying the presence or absence of
deference. It is not as easy to all of a sudden bring in relative expertise.
 Reasonableness simpliciter: In this context, “An unreasonable decision is one that, in the main,
is not supported by any reasons that can stand up to a somewhat probing examination.”
 For Iacobucci in Southam, patent unreasonableness is only appropriate in the presence of a
privative clause, where intervention must formally be justified by resort to the concept of
jurisdiction.
In all this new standard complicated things in admin law.
CUPE v NB Liquor Corporation, [1979] 2 SCR 227
Facts:


CUPE (the union at NBLC) is doing a lawful strike. But suddenly NBLC decides to start using members
of their management personnel to replace them. CUPE thus files a complaint that NBLC was
replacing striking employees with management personnel contrary to the Public Service Labour
Relations Act s.102(3)(a), a highly ambiguous provision. NBLC countersues alleging a picketing
violation.
The first issue was centered around the meaning of an “employee” under the Act (i.e. does it include
management?). The legislation is poorly written: says they cannot be replaced by employees, but
elsewhere it excludes management from the definition of employee.
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
Board found that there had been a violation against the employer, and quickly dismissed this
complaint. Then, the board recognized the ambiguity that existed in the provision, but rejected the
employer’s argument that the only intent of the section was to ensure that the jobs remained open
for the employees after strike was over. Instead it claimed that when the Legislature granted the
right to strike, it intended through s.102(3) to restrict the possibility of picket-line violence by
prohibiting both strike breaking and picketing, an intention that would be frustrated if the
employer’s argument was accepted. Board ordered employer to refrain from using management.
 Appeal division quashed the Board’s decision. It claimed that s.102(3) did not prevent management
from performing the functions of striking employees but also considered the interpretation of
s.102(3) as a “preliminary or collateral matter” wrongly decided by the Board which thereby
assumed a jurisdiction it did not have.
Issue: 1) Is deference owed to the tribunal? [YES] 2) Is its determination reasonable? [YES]
Reasoning:
Dickson








D begins by claiming that the provision was indeed badly drafted.
He then claims that the language of “preliminary or collateral matter” assists in the inquiry into the
Board’s jurisdiction. It is very easy to characterize anything as a jurisdictional issue.
Determining what is or what is not jurisdictional can be hard to determine .
S.19(1) of the Act grants the Public Service Labor Relations Board over the issue. The whole issue
was under their jurisdiction. One cannot suggest that the Board did not have “jurisdiction in the
narrow sense of authority to enter upon an inquiry.”
In terms of the matters before the board it is hard to see how the existence of the prohibition, can
be a question “preliminary” to the Board’s jurisdiction, in th sense of determining the scope of the
Board’s capacity to hear and decide the issues before them.
Both of the cases used at the court of appeal to defend the jurisdictional issue had stated that at the
threshold of the inquiry, the Board or the adjudicator had to determine whether the case before
them was on of the kind upon which the empowering statute permitted entering an inquirty (i.e.
board had to ask – can I make an inquiry over this matter? And, if they couldn’t, they would not be
able to look at it)
It is important to note that the board has a privative clause in s.101. This type of clause is
particularly found in labor relations legislation. The rationale for it goes as follows: “The labor board
is a specialized tribunal which administers a comprehensive statute regulating labor relations. In the
administration of that regime, a board is called upon not only to find facts and decide questions of
law, but also to exercise its understanding of the body of jurisprudence that has developed around
the collective bargaining system, as understood in Canada, and its labor relations sens acquired from
accumulated experience in this area.” (p.235)
Usual reasons for judicial restraint upon labor board decisions are reinforced by cases such as the
one at bar. Legislature has given incredibly broad powers to the board to supervise and administer
the novel system of collective bargaining under the Public Service Labor 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.” (p.236) The
interpretation of s.102(3) would seem to lie logically at the heart of the specialized jurisdiction
confided to the Board. “In that case, not only would the Board not be required to be “correct” in its
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interpretation, but one would think that the Board was entitled to err and any such error would be
protected from review by the privative clause in s.101” (p.236)
 Therefore, the Court of Appeal wrongly was of the opinion that the existence of the prohibition was
a preliminary matter and that therefore the Board’s decision was to be evaluated on a standard of
correctness. “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.” (p.237)
 But did the board do something so outrageously wrong to put it beyond the protective powers of
the privative clause? Or put another way “was the Board’s interpretation so patently unreasonable
that its construction cannot be rationally supported by the relevant legislation and demands
intervention by the court upon review?”
 D does not see how it is possible to characterize the board’s interpretation in such a manner: “The
ambiguity of. S.102(3)(a) is acknowledged and undoubted. There is no one interpretation which can
be said to be “right”.” (p.237) Even by just looking at the different interpretations given by the court
of appeal are determinative to see that the provision is highly ambiguous
o For Justice Limerick’s interpretation see p.238-9: Dickson concludes that although his
interpretation is reasonable, it is no more or less reasonable than the interpretation that
was found by the Board
o For Justice Hughes’ interpretation see p.239-40
Justice Dickson then goes over the purpose of s.102(3) within the general context of the NB Public
Service Labor Relations Act (p.240-42). The reason he does this is to reaffirm that the board’s decision
was not unreasonable. He claims that to some the Board’s interpretation may, at first glance seem
unreasonable if one draws too heavily upon private sector experience. Generally speaking, it is just hard
to claim that the Board’ s interpretation is “patently unreasonable”: “At a minimum, the Board’s
interpretation would seem at least as reasonable as the alternative interpretations suggested in the
Court of Appeal. Certainly the Board cannot be aid to have so misinterpreted the provision in question
as to “embark on an inquiry or answer a question not remitted to it.” (p.242)
Canada (Director of investigation and Research) v. Southam [1997]
Facts: Two daily newspapers serve the region in and around Vancouver, the Sun and the Province.
Southam Inc through a subsidiary, owns both. In addition to the two dailies, many smaller community
newspapers circulate in the Lower Mainland. They differ from the dailies in a few respects, they serve
smaller regions, are free and are published at most three times a week. These newspapers are more
successful in the LM than in any other comparable region in Canada. S consulted an expert on why its
newpapers were suffering and she told them that it was because of the dailies. She told them to take
action. In sept 1988, S published a small free supplement bi-weekly that it included in copies of the sun
newspapers, and also sent it to houses that did not get the sun. In January 1989 they started acquiring
the community newspapers. By may 1990 they had acquired a controlling interest in 13 community
newsppaers, a real estate advertising publication, three distribution services, and two printing concerns.
Among these were two of the most powerful community newspapers, the North shore News and the
Vancouver Courier as well as the Real Estate Weekly.
Issues: did the FCA err in concluding that it owed no deference to the tribunals finding about the
dimensions of the relevant market and in subsequently substituting for that finding one of its own?
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Tribunal decision: Sifted through volumes of evidence to find that the community newspapers and the
daily newspapers were not in competition for advertising in general because they appealed to different
markets (local vs city-wide). However in real estate print found that they were in competition and
required S to divest themselves of either the North Sore or the Real Estate Weekly.
FCA: Found that the Tribunal had applied the wrong legal test, even though it had state the correct
formula. Said that the Tribunal failed to consider the kinds of evidence it was supposed to consider.
They said that failure to consider relevant factors was an error of law.
Reasoning:
A. Statutory Right of Appeal
When a tribunal is subject to a statutory right of appeal the standard of review is a function of many
factors. Depending on how the factors play out in a particular instance, the standard may fall
somewhere between correctness and patently unreasonable. There is no privative clause, so jurisdiction
is not an issue. The tribunal enjoys juris by virtue of its constating statue and the appellate court enjoys
jurisdiction by virtue of a statutory right of appeal. The legislative intent is clear. The question is what
are the limits on the appellate court?
B. Nature of the problem before the tribunal
The nature of the problem is one of mixed fact and law. The statute contemplates questions before it to
be divided three ways: problems of fact, problems of law, and problems of mixed fact and law.
Questions of law and questions of mixed law and fact can be hard to tell apart. Questions of law will
apply to a wide variety of cases, where questions of mixed fact and law can apply only to particular
circumstances. As the level of generality of the challenged proposition approaches utter particularity,
the matter approaches pure application and hence draws night to being an unqualified question of
mixed law and fact (para 37).
One side argues that the tribunal considered all the relevant kinds of indirect evidence, so if the Tribunal
erred it can only be in applying the correct legal test to the facts. This is an error of fact. The
respondants say that the tribunal erred in ignoring certain parts of the relevant kinds of indirect
evidence. Even a cursory reading of the Tribunals reasons show that they did not fail to consider
relevant items of evidence. The tribunal also did not err in law by failing to accord adequate weight to
certain factors (para 42). The balancing test is meant to be flexible. These matters should not be
considered matters of law, but should be left at least initially to the determination of the Tribunal. If the
Tribunal erred it seems to be in applying the law to the facts, and this is a question of mixed law and
fact. This is also because the tribunal also used the specific behaviour of these two parties to make its
determination. In this way it does not make a general precedent and is not a question of law. Therefore
the tribunal should be accorded some deference. Courts should be reluctant to venture into a reexamination of the conclusions of the tribunal on mixed law and fact.
C. words of the Constating Statute
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That Parliament granted such a broad, even unfettered right of appeal, as if from a judgment of a trial
court, perhaps counsels a less-than-deferential posture for appellate courts than would be appropriate if
a privative clause were present. However, as this Court has noted several times recently, the absence of
a privative clause does not settle the question.
D. The Purpose of the Statute that the Tribunal Administers

Purpose is included in the act
o To maintain and encourage competition
Held: the decision that the acquisition of several community newspapers did not substantially lessen
competition in the market for retail print advertising is entitled to deference. Because it is not
unreasonable it must be allowed to stand.
Chapter 9, Standard of Review: Back to the Future?
293 - 300
V. Pragmatic and Functional Redux: Pushpanathan v Canada





Pushpanathan concerned the interpretation of a provision of the immigration act
o Section excludes persons guilty of acts contrary to the purposes and principles of the
united nations from refugee status.
o Did Ps conviction for drug trafficking fall under this exception?
The pragmatic and functional approach was reformulated into ‘did the legislator intend this
question to attract judicial deference?’
He gave four factors indicating the legislators intent
o Privative clause
o Expertise
o Purpose of the act as a whole and of the provision in particular
o Nature of the problem
It remains unclear whether, where and to what extent these factors have influence after
Dunsmuir
the four factors really boil down to two
o what did the legislature actually say
 privative clause? Etc
 expertise
privative clauses


the presence of a privative clause went in favour of deference
o not determinative though
privative clause amounts to the legislature telling the courts to defer to the decision makers
expertise
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o
o
however the court held to themselves the authority to define the scope of the actors
expertise
sometimes the lack of expertise can outweigh the privative clause
expertise

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
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


the most important factor
o court will characterise the expertise of the tribunal
o their own expertise compared to the tribunal
o and the how much nature of the specific issue the tribunal was addressing was in their
expertise
if the tribunal possesses broad expertise that is some degree related to the interpretation of the
issue at bar there will be high deference
broad expertise can come from the agency’s composition and specialized knowledge
o agencies with economic, financial or technical matters are at the top
 securities commissions, etc
distinctive expertise could come from the statutory criteria for appointment
o labour boards
 non-legal experts
 they get a lot of deference
human rights tribunals don’t get a lot of deference because of expertise
 the court is better at it
Ryan
o Weirdly the court said a lawyer discipline panel were experts compared to the courts
Chaimberlain v surrey school district
o School board of trustees banned school books portraying same sex families
 They were experts on what the community wanted
 But their decision had human rights consequences and was unreasonable
 Lebel dissent
 Said that elected actors could do whatever they were authorized to do
 Only when they to things they are not authorized to do are their actions
invalid
 Elected actors get deference not because they have expertise but
because they represent the will of the community
Standard of review inquiry is limited to the statutory role of the actor and not the particular
individual occupying the post
o (I guess rob ford still gets deference then, lol)
o They check the formal indications of expertise but not individual competence and merit
 (yup, looks like Ford is off the hook)
Purposes of the Statute as a whole and the provision in particular

Polycentric decisions get more deference
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
Judges have les relative expertise when it comes to these decisions
The nature of the problem



Legislatures are assumed to have left highly generalize propositions of law to the courts
o Questions of law
 For the court
o Questions of fact
 For the tribunal
o Questions of mixed law and fact
If the decision will have a precedential value than that is a hint it should go to the court
EG: in pushpanathan the immigration act had a section which said that a federal court must
certify an issue of general important for the litigants to proceed to the FCA.
o If you make it through that requirement than its fair game for the courts because it is
obvious that it is of general precedential value.
Pushpanathan v. Canada (Minister of Citizenship and Immigration) up to 37
Facts: P left his native Sri Lanka in 1983 and eventually came to Canada. He came to Canada in march
1985. He claimed refugee status on the basis that he had previously been detained by the Sri Lankan
authorities for his political activities and that he would likely suffer persecution if returned to his native
country. This claim was never adjudicated as P got permanent residence status in May 1987 under an
administrative program. In December 1987 the appellant was arrested along with seven others on
charges of conspiracy to traffic in a narcotic. He pleaded guilty along with five other people. P himself
sold brown heroin to a police officer on at least three occasions. At the time of arrest the gro9up
possessed heroin with a street value of 10 million dollars. While on parole he renewed his refugee status
claim. In June 1992 a conditional deportation order was issued dependent on his refugee status claim.
Issue: What is the proper standard of judicial review over decisions of the Immigration and Refugee
board?
Reasoning:
Standard of Review
Under s 83 the certification of a ‘question of general importance’ is the trigger by which an appeal is
justified. The object of appeal is still the judgement itself not merely the certified question. One of the
elements necessary for the judicial review is the standard of review. The central inquiry in determining
the standard of review is the legislative intent of the statute in creating the tribunal.

Was the question which the provision raises one that was intended by the legislators to be left
to the exclusive decision of the Board?
Answering this question requires weighing several factors, none of which are determinative. This has
been dubbed the ‘pragmatic and functional approach’. After Southam the standards of review available
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are correctness, reasonableness simpliciter and patent unreasonableness. There may be a range of
standards of review along a spectrum between high deference and low deference (30). Some provisions
in an act may call for more deference than others. Determining when a tribunal is acting within these
provisions can be describes as a ‘jurisdictional’ question. This is simply descriptive of a provision for
which the proper standard of review is correctness (28).
Factors to be taken into account (Functional Pragmatic test)
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

Privative clauses
Expertise
Purpose of the act as a whole and the provision in particular
The nature of the problem: a question of law or fact
Privative clauses
The absence of a privative clause does not imply a high standard of scrutiny, where other factors
bespeak a low standard. However the presence of a full privative clause is compelling evidence that the
court ought to show deference to the tribunal decision unless other factors strongly indicate the
contrary. The words ‘final and conclusive’ are indicative of a full privative clause. Other words might also
suffice if they are equally decisive. At the other end of the spectrum are clauses permitting appeals.
These suggest a more searching standard of review. On the other hand, some acts are silent on this.
They might use language such as ‘final settlement’. This is a partial privative clause and can be used in
the overall assessment of the test.
Expertise
This is the most important of factors. It includes several considerations. Do they have specific expertise?
Does achieving the aims of the act require particular expertise demonstrated either by the specialized
knowledge of its decision makers, special procedure or non-judicial means of implementing the act? If so
then more deference (Southam). Low expertise might lean towards low deference. There are three
dimensions to this evaluation:



The expertise of the tribunal must be characterized
The court must consider its own expertise relative to that of the tribunal
The nature of the specific issue before the administrative decision maker must be characterized
o Some decisions may have been intended to get broad discretions, while other issues not
so much
 See nature of the problem element
Remember that sometimes even highly generalized statues may still merit deference depending on the
circumstances (34).
Purpose of the act as a whole and the provision in particular
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The need for expertise is sometimes manifested as much as by the requirements of the statute as by the
specific qualifications of its members. For example if the statute requires the tribunal members to weigh
delicate interests between different stakeholders then the power of the court to review diminishes. Eg:
the idea of ‘management’ from Corn Growers. The polycentricity of the question is important as well
and merits a higher deference. Polycentric decision making is where a large number of interlocking and
interacting interests and considerations inform the issue. While judicial decision making is premised on a
conflict between two parties, polycentric issues require balancing numerous interests and require
balancing benefits and costs for many different parties. The more polycentric the administrative model,
the more restraint a court should exercise.
The nature of the problem: A question of law or fact?
Even pure questions of law might merit a lot of deference, where the other factors of the test suggest
that this was the intention. However where there is no such intention manifested, then courts can be
less deferential on pure questions of law. This also relates to the relative expertise of the tribunal and
the court. See Southam on mixed questions of law and fact. If a question is based on a really specific set
of facts and is unlikely to be passed on as a general legal principle, it will be more on the fact side.
Sometimes as in the case of the WCB the creation of a legislative scheme combined with a highly
specialized administrative decision-maker and a strong privative clause is sufficient to grant an
expansive deference even over questions of law. However in absence of a clear intention, general
questions of law should be assumed to be left to courts. Keeping this in mind, the generality of the
proposition decided will be a factor in favour of the imposition of a correctness standard. Generally the
broader the propositions asserted and the further the implications of the decisions go from the
expertise of the tribunal, the more less likely they will be shown deference. Without clear intent,
legislatures are presumed to have left highly generalized propositions of law to the courts.
The proper standard: Correctness
Applying the pragmatic functional test comes to a different conclusion than Richard J. S 83(1) would be
incoherent if the std of review were anything other than correctness. The statute allows that serious
questions of general importance are reviewable by the courts. If courts are required to defer to
questions that are incorrect in law but ‘reasonable’ then this section is incoherent. The only way to read
this section would be that in serious cases of general importance the CA and FC are allowed to
substitute their own findings. S 83 codifies the principle of generality discussed in Southam.
Furthermore, in this case the board does not seem to have expertise on the issue in question here.
The boards expertise is in evaluation whether the criteria for refugee status have been met. The
relationship between this function and the provision in question here is remote. As lawyers are not
required to be on every panel it would be unthinkable to allow the board to make exclusive
determinations on the broad definition of basic human rights guarantees. The board is also not in a
managing or supervisory function as in Southam and corn growers. They are not responsible for policy
evolution. There is no poly-centricity. Also the pragmatic functional test allows for different standards of
review based on different decisions up for review.
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Principles of treaty interpretation
The purpose of the act incorporating 1(f) is to implement the underlying convention. As indicated in the
travaux preparatoires, the nations involved in the convention wished to give a particular meaning to the
words “purposes and principles of the united nations”. The starting point of the interpretive exercise is
to define the purpose of the convention as a whole and to place article 1(F) within that scheme. Article
19(F) is meant to provide and exception to the definition of a refugee, while s 33 of the convention is to
provide for refoulement where the refugee is a danger to the state they are seeking refuge in. 1(F) is not
meant to protect society from dangerous refugees, but to exclude those who are not real refugees. By
examining the statements of delegates and related conventions 1(F) should be interpreted as excluding
those who have committed crimes against humanity other than war, but couldn’t be clearly defined at
the time. The logic of this exclusion is that those responsible for the persecution that creates refugees
should not be able to benefit from Refugee status. In the current case there is no indication that drug
trafficking on any scale is considered contrary to the purposes and principles of the UN. Such a
declaration would be an expression of the international communities judgement that such acts qualify
as serious, sustained and systemic violations of fundamental human rights constituting persecution.
There is no indication that drug trafficking comes close to the core of this. The appellants drug trafficking
is not a violation of article 1(F).
Held: appeal allowed. Matter returned to Convention Refugee Determination Division.
Law Society of New Brunswick v Ryan, until para24
Facts:





R was admitted to the NB bar in 1984 and carried on private law practice.
In 1999 a complaint was filed against him by two of his clients: the clients had sought Rs legal
advice in 1993 w/ respect to their dismissal by their employer and gave him a small cash
retainer to represent them in wrongful dismissal. For 5 ½ years he did nothing to advance the
claims. To disguise his inattention to his clients’ interests he spun an “elaborate web of deceit”.
He lied to them making it seem as if he was taking action on their behalf and placing the blame
for delays on others. As a response to persistent requests for information, he even gave them a
forged decision of the NBCA dealing w/ their case. He also falsely told them that a contempt
motion against the defendants was granted and that they had been awarded money. He then
invented that there were significant delays and appeal periods that prevented them from
collecting the money.
Eventually he admitted that the whole thing was a lie, and they filed a complaint w/ the Law
Society.
The complaint was referred to the Law society’s Discipline Committee, which decided that the
respondent should be disbarred. This had been his third disciplinary hearing in front of the
committee for similar claims of failing to carry out services for his clients.
R appealed and made a motion to show medical evidence that he was under a mental disability
contributing to his misconduct. He claimed that his wife had left him in 1992, he abused alcohol
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during this period, had panic attacks, then got mono in 1994. When he recovered he realized
that the limitation period for his client’s action most likely had expired, so he buried the file. He
even had a suicidal plan for 1997. He wanted to intern himself in a psychiatric ward, but thought
that it wasn’t a good idea because too many people would recognize him. He had gone to see a
psychiatrist once for the panic attacks, but other than that he didn’t seek any medical or
therapeutic intervention during the relevant period.
 CA ordered the case reopened before the Committee for the limited purpose of hearing and
deciding on his medical evidence to show that he was under a mental disability contributing to
his misconduct. After this, the committee reconfirmed its earlier decision.
 CA allowed the respondent’s appeal and substituted its own sanction of indefinite suspension
w/ conditions for reinstatement.
First decision: Committee seems to have really taken into account the facts of the case, as well as the
two holdings of the previous disciplinary decisions. They “noted that the regime of professional selfgovernment obliged it to consider each case on its own facts in light of prevailing professional standards,
the reasonable expections of the public, and the public interest in the administration of justice.”
(para12) For them, his conduct was an egregious breach of professional standards, and there were no
mitigating factors that could help his case. Thus he should be disbarred.
Second decision: The committee found that the medical evidence introduced showed that R suffered
from a long-term substance abuse problem. But that based on expert testimony, he did not suffer from
any other psychiatric illness that could be diagnosed as long as he continued to use alcohol. Plus he
didn’t dedicate himself to the course of the treatment recommended by his doc despite the serious
consequences of misconduct related to his alcoholism. They confirmed the disbarment.
NBCA:


Selection of Standard of Review (SR): Relying on some decisions of other appellate courts
concerning professional discipline bodies, the court concluded that the decisions had moved the
SR more towards correctness. But they concluded on a reasonableness standard.
Application of SR: They looked over previous decisions of previous and similar cases. The court
concluded that the sanction imposed on this case was not similar to ones handed out in those
previous cases: disbarment was too anomalous. Therefore, unreasonable. They allowed the
appeal and suspended him instead until he was mentally stable.
Issue:
Reasoning (Iacobucci)

Courts should use the pragmatic and functional approach to determine the level of deference to
be accorded to the decision in question.
The Pragmatic and Functional Approach


“[C]ourts must always select and employ the proper level of deference. There is no shortcut past
the components of the pragmatic and functional approach as recently set out in Pushpanathan”
(para21)
He wants to address the question put forward w/ the CA’s holding that “on the spectrum this
standard [of reasonableness] is closer to correctness than patently unreasonable. This is
particularly so, as hwere, when you have the most serious of sanctions being considered”
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(para22). For the court this statement can be understood in 2 ways: “(1) the pragmatic and
functional approach involves a choic among more than the three established standards of
review; or (2) that the level of deference involved in these standards may shift according to the
circumstances.” (para22)
 First he wants to addrss the suggestion that there are more than 3 standards of review to which
the pragmatic and functional approach may lead, and then he will apply the approach.
(1) How many standards are available in review of administrative decisions?

There are not more than three. “I find it difficult to conceive more than three standards of
review. In any case, additional standards should not be developed unless there are question of
JR to which the three existing standards are obviously unsuited.” (para 24)
 He really doesn’t want to add up to the complexity of admin law (THANK YOU) by adding a
fourth standard. “A pragmatic and functional approach should not be unworkable or highly
technical.” (para26)
(2) The pragmatic and functional approach applied to the decision
(a) Presence of Absence of a Privative Clause or Statutory Right of Appeal

No privative clause in the act. There is in fact a broad right of appeal on questions of law or fact
pursuant to s. 66(1), and CA can even choose a remedy (see s.68)
 HOWEVER: Remember that the presence of a privative clause is not determinative
(Pushpanathan).
(b) The Expertise of the Discipline Committee

Expertise can be derived from specialized knowledge about a topic or from expernece and skill
in the determination of particular issues.
 At first glance here, this tribunal would not have relative expertise. It is composed primarily of
lawyers and lay appointees. Judges, as members of the provincial law society, will know the
ethical and standards of practice to which those societies hold lawyers. HOWEVER, “there is
nevertheless reason to expect that the Discipline Committee has superior expertise relative to
courts.” (para31)
o 1) The Discipline Committee has greater expertise than courts in the choice of sanction
for breaches or professional standards. The current members of their board, “may be
more intimately acquainted w/ ways that these standards play out in the everyday
practice of law than judges who no longer take part of the solicitor-client relationship.
Practicing lawyers are uniquely positioned to identify professional misconduct and to
appreciate its severity.” (para31)
o 2) Although there is a lay person there, this person can actually help the law society see
how their particular form of conduct and choice of sanctions would affect the general
public’s perception of the profession and confidence in the administration of justice
o 3) Committee has relative expertise generated by repeated application of the objectives
of professional regulation set out in the Act to specific cases in which misconduct is
alleged.
Its not that they are greater experts, but it is that they are more familiar with the area of law in a variety
of settings.
Chapter 9, Standard of Review: Back to the Future? 300 – end
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IV. Dunsmuir: And then there were two

After Southam, judges were still unhappy, and much criticism due to lack of clarity. Dissent in
CUPE, LeBel complained, and was heard in Dunsmuir
 Regardless of the deficiencies of past jurisprudence, the SCC still believed that deference was
the order of the day. The question was really into how to put this into operation? The test that is
currently being provides too little guidance.
 Thus the third standard got completely dissipated, and they made it into 2.
 Suggested that the new SR is no longer a balancing test, but rather resembles a defeasible rule:
“the default position is deference, unless one of the excpetions obtains.”
 Majority started by mentioning that deference applies when: fact discretion or policy;
administrative regime where there is experise, closely related examanitation of a home statute;
particular expertise in application of civil law rule to a specific situation; privative clause
 4 circumstances for correctness are interpreted
o central importance to the legal system as a whole
o constitutional issues
o true questions of jurisdiction; i.e. was the tribunal granted explicty statutory authority
o questions regarding jurisdictional lines btw two or more competing specialized tribunals
 Nothing more is said about PF, except that it automatically received a correctness standard
 2 step process determined
o 1) look at the jurisprudence, and see if the issue has already been resolved in a
satisfactory manner. If no SR analysis
o 2) SR analysis
 Ambiguity #1: What happens to old jurisprudence: the court basically seems to infer that
reasonableness and patent unreasonableness have merged, but it doesn’t necessarily mean that
they are both unalike each other.
 Ambiguity #2) Why reintroduce the Pushpanathan criteria?! How can one reconcile these?! Rule
seems to be that if jurisprudence is not settled, then defeasible rule approach is applied, and
occasionally supplemented by the balancing factors.
 This test works well in practice, but not in theory – conceptual loose ends are lef out.
 Binnie in his concurrent judgment: how can a single standard of deference manage diverse
range of actors, issues, expertise… W/ one choice, we are left back w/ balancing factors.
A) Whatever happened to the Privative Clause?




Binnie in his concurring judgment seems to have complained a/t its absence. His emphasis on
the distinctiveness of the PC is linked to his prediction of the inevitable emergence of a
spectrum of deference under the rubric of reasonableness. For him, it still remains highly
relevant. But the majority seems to not see it this way, because for them it really is about just
two standards
Khosa: goes directly in defense of the PC. They defend that it reflects legislative intent, and it
means something when absent. Rothstein seems to want to roll back the clock.
In K, Rothstein agreed that SR was reasonbleenss, but he insisted that the basis for deference
was in the language of the statutory provision dealing w/ errors of fact, not in any broader
deferential stance derived from the CML. (306)
Majority didn’t agree with rolling back the clock, but it ded no resovle the question of how
assign unique weight to PC. Instead, they took a perplexing tdetour through judicial discretion to
deny prerogative relief en route to its conclusion
94

Judicial deference to admin decisions is thsu recast as the method by which judges determine
whether and why to withhold a remedy
 Rather than clarify the weight that a privative clause exerts in favor of deference, Khosa adds
uncertainty aobut the weight that a statuory appeal exerts against it. The application of the SR
analysis in Khosa suggests equivocation on whether Pushpanathan’s multifactor balancing
approach can co-exist alongside Dunsmuir’s defeasible rule methodology. They however, remain
difficult to reconcile
B) Whatever happened to jurisdiciton

Remember this used to be a judicial escape hatch from the stricutres of PC. But technically, not
having PC any more brings into question the raison d’être of the jurisdictional question
 In Dunsmuir the court seemed to revive the formal idea of jurisdiction as a boundary drawing
concept capable of rebutting deference.
 Note that the post-D court has been so alert not to brand something as jurisdictional that the
question before the courts is no longer “is this thing a jurisdictional question?,” but “is there
such thing as a jurisdictional question?”
 An issue here is can we use pass jurisprudence that didn’t apply the same test?
 Rothstein seemed to want to reconsider whether questions of jurisdiction really existed. In fact,
wouldn’t it jusr really be more confusing if it is a practically unworkable concept?
 Majority left this issue unresolved just labeling jurisdictional questions as “exceptional”
 Sympathetically reading the majority’s judgment, it might proffer the hypothesis that the other
post-D grounds for correctness review really amount to exemplars of situations typically
regarded as “jurisdictional in pre-D law. But in the end, this question would remain useless.
 In Alberta (Privacy Commissioner), doesn not like the majority’s take on the fate of jurisdiction,
and claims that this might undermine the foundation of JR in admin action.
 Cromwell’s version of SR is: tempers the inclination towards reasonableness w/ a more thorugh
examination of legislative intent when a plausible argument is advanced that a particular
provision falls outside the “presumption” of reasonableness review and into the “exception”
category of correctness review. (309)
 Binnie is the middle ground: he agrees w/ Cromwell that the concept of jurisdiction is
“fundamental” but agrees with Rothstein of the need “to euthanize the issue” on account of
practical disutility
 Not clear what the outcome on this issue will be
C) Whatever Happened to Patent Unreasonableness?





Legislators a long time ago gave up trying to refine the notion of the PC
But after Southam, some legislatures to make their intentions clear to the courts expressed their
acts in terms of correctness, reasonableness and patent unreasonableness.
E.g BC ATA itemizes grounds of JR applicable to the tribunals subject to the ATA and matches
each ground w/ a SR. In cases of JR of discretion ATA also lists factors that are relevant to
determine wehther discretion was exercised in a patently unreasonable way.
But then came D… and ciao patent unreasonableness
In Khosa, the SCC acknowledged the problem of dealing with statutes that incorporate a now
obsolete CML standard of “patent unreasonableness” (see para 19 of Khosa): they claim that
patently unreasonable did no appear out of nowhere to the legislature (it was brought on by the
context), and that the content of it will nevertheless be still be calibrated according to the
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principles of admin law, but then concludes that effects must be given to the expressed
legislative intention
 How has this been interpretetd by courts?
  BC v Figliola: reason was given to the legislature
  Shaw v Phipps: against legislature
 SCC declared eventually that the highest level of deference vailbale under gen principles of
admin law is reasonableness i.e. you respect those questions within the specialized expertise of
the tribunal unless not rationally supported (aka if they are unreasonable)
D) What is a Question of central importance to the legal system as a whole (and outside the decisionmaker’s area of expertise?)?


Expertise post D is not placed on the foreground anymore.
Could it be that there is a presupposition of superior expertise of administrative decision-makers
in interpreting and applying their home sttatutes, absent some indicator to the contrary?
 Position contrasts w/ vision in US
 Issues concerning jurisdictional boundaries btw diff administrative tribunals seem more
ambiguously tied to expertise, but also link back tot eh allocation of questions of true
jurisdiction to the correctness standard.
 Celegene Corp v Canada and Smith v Alliance Pipeline  interpretatiotn of home statue will
usually attract a reasonableness SR.
 In Dunsmuir, Binnie: concern that exceptional justification for intensified judicial scuritiny where
an issue is of central importance and beyond a d-m’s expertise would unleash needless and
distracting debate in lower courts
 Casebook examines CUPE (2) and Mowat v Canada
 D metho presumes the outcome of pre-D P and F analysis will align with outcome of post-D SR
analysis, but the sitaution of HR tribunals gives the SCC a time to pause. They usually attract
little deference. Certain matters such as “costs” would most likely, on a review of the
jurisprudence, always attract correctness. To fix this the Court made a path that would allow to
arrive to a standard of reasonableness. (314)
 Court’s SR in Mowat remains silent on the issue that preoccupied the FCA when it decided the
case.
 Mowat: FCA is presented w/ conflicting interp of the same statutory provision by different
panels of the same tribunal, and then by different FC judges on JR. The judge complained about
these conflicting interpretations, and claimed that it was reasonable to uphold both. This was
equally upheld in Abdoularb v Ontario by a FC judge.
 Mowat however seems to uphold Domtar by its silence. The court in Mowat decided that
reasonableness was the standard to be used in the inclusion of legal costs “as expenses”
VII. Spin-Offs
A) The Charter, Discretion, and the SR (316)

Where a JR application raises several discrete issues, reviewing courts have sometimes
calibrated the SR separately for each issue. Segmentation: arises whenever on link in a decision
chain attracts a different SR than other links on the chain. D offers relief from the complexity of
this process by expanding the range of decisional steps to which deference presumptively
applies, but the problem remains as to which one of the elements of the decision attracts a SR
of correctness.
96


But in D there is no response as to how to fix these issues.
Intersection of discretion and Charter is an object lesson in some complexities of segmentation.
This can be seen in Suresh.
 Doré: SCC offered a ptah out of this dilemma. The court rules that a proportionality test should
be used for Charter stuff instead of Oakes in the admin context. But how wide this is, remains a
question.
B) Reasoning about Reasons

Reasons serve many purposes, not least of which is to communicate that the d-m has genuinely
heard and considered the evidence and args presented (c.f. Lake)
 They will also disclose findings of fact, interpretations of law, applications of lawto fact, and
exercises of discretion that are substance of the discretion. Reasons contain the evidence of the
reasonableness (or correctness, as the case may be) of those exercises of statutory authority.
 Measuring substantive reasonableness includes assessing the justification, transparency, and
intelligibility fo the reasonining process.
 The potential for overlap btw assessing the formal adequacy of reasons as a matter of PF and
evaluating the substantive content of reasons as a matter of merits review.
 Framing ground of reasons review in tersms of procedure rather than substance potentially
invites a greater degree of judicial intervention via the correctness standard.
 Finding a consistent “breake point” btw the form of reasons and the content of reasons proved
challenging for lower courts, and different jurisprudential currents began to emerge, this was
terminated in Newfoundland Nurses.
VIII. Review of SR: I laughed, I cried, I stood on my chair and …
 Tensions at heart of jurisprudence will not go away
 SCC says in principle that it will incline for deference
The simplified test, has it really simplified stuff? Will it come back and bite us in the butt?
Dunsmuir 2008
Facts: D was employed by the DoJ as a legal officer. In 2002 he was appointed to the office of Clerk of
the Queens bench. The employment relationship was “not perfect”. Lol. Ds probationary period was
extended twice to the max 12 months. At the end of this the regional director found that he had
improved and his employment was continued on a permanent basis. He was reprimanded three
separate time during his employment. The first was in July 2002. D had sent an email to the Chief justice
of the court of Queens bench objecting to a request that had been made by the judge of the Fredericton
judicial district for the preparation of a practice directive. The reprimand letter said that he had
exhibited a serious error and judgement and told him how to handle these concerns in the future. If he
didn’t do that, he would be subjected to additional disciplinary measures and even maybe dismissal. He
was disciplined again in June 2004. He was being advertised as a lecturer at legal seminars offered to the
private sector. He had been told that lawyers in the public service cannot practice in the private sector.
He lied to the Law society of New Brunswick about it. He got a one day suspension for this. In august
2004 he had a performance review scheduled. Before the meeting took place they decided to fire him.
They cancelled the meeting and faxed him a termination letter effective December 31, 2004.
97
D grieved the dismissal under s 100.1 of the PSLRA which said that non-unionized employees can grieve
discharge, suspension or a financial penalty. His grievance was denied. He then gave notice that he
would refer the grievance to adjudication under the PSLRA. The adjudicator found that under s 97 of the
PSLRA because D was not part of a collective agreement, if he decides that he was been discharged for
cause, they can substitute another penalty for the discharge. He decided that 100.1 incorporated s 97
and so he could make the determination under s 97 under s 100.1. The Adjudicator found that the
termination disciplinary, but was a termination in lieu of notice.
Issues: 1) what approach to judicial review should be taken in this situation? 2) Was D in an “at
pleasure” office?
Issue 1: Review of the Adjudicator<s Statutory Interpretation Determination
A. Judicial Review
Judicial review is intimately connected with the rule of law. ROL explains the purpose of judicial review
and guides it function and operation. It seeks to reconcile ROL with the foundational democratic
principle which finds expression in the initiatives of parliament. Because of ROL all exercises of public
authority must find their source in law. All decision making powers have legal limits derived from the
enabling statue, the common or civil law or the constitution. The function of judicial review is to ensure
the legality, reasonableness and fairness of the administrative process and its outcomes. Because these
powers are exercised through the statutory regimes, a decision maker can<t exercise authority not
assigned to them through the statute. The reviewing court will therefore check the statute to see what
the scope of their decision making power is intended to be by the legislature as shown in the statute.
Thus the courts are making sure of legislative supremacy.
B. reconsidering the standards of judicial review
There are currently three standards of judicial review. Review of CUPE and the change from thinking
about administrative decisions as jurisdictional to looking at legislative intent (35). However as affirmed
in Bibeault there are still issues which get correctness review. This is what the pragmatic functional test
is for. To see what questions get correctness and which ones get deference. Southam introduced a third
standard of review. The difference between patent unreasonableness and reasonableness simpliciter
was the obviousness of the defect. Turns out that any actual difference between the operation of these
two in practice is illusory. This is because both standards are based on the idea that there are multiple
valid interpretations. Requiring parties to accept an irrational decision because it is not irrational enough
is unpalatable (is this reducing administrative deference by taking away the patent unreasonableness?)
It is also inconsistent with the ROL to retain an irrational decision.
C. Two standards of review
What is needed is a test that offers guidance and is not formalistic or artificial and permits review where
justice requires it, but not otherwise.
Defining the concepts of reasonableness and correctness
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The two standards of review should be collapsed into a single review for reasonableness. Buit what is
reasonableness? What is a reasonable decision? Reasonableness is a deferential standard animated by
two previous standards of reasonableness: certain questions come before the tribunals do not lend
themselves to one result (neither do cases that come before the court). A court must inquire into the
qualities that make the decision reasonable. It is also concerned with whether the decision fell within a
range of reasonable outcomes. In JR reasonableness is concerted mainly 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. Deference imports respect for the tribunal decision making process with
regard to the facts and law.
Deference in the context of the reasonableness standard therefore implies that courts will give due
consideration to the determinations of decision makers. A policy of deference recognizes the reality that
working day to day in complex administrative schemes will allow them to develop considerable
expertise.
Determining the appropriate standards of review
The existence of a privative clause is a strong indication that it should be a reasonableness standard. A
privative clause is evidence of parliament or a legislatures intent that an administrative decision maker
be given greater deference.
Where the question is one of fact, discretion or policy, deference will usually apply automatically. The
same standard must apply to the review of questions where legal and factual questions are intertwined.
Deference will usually be owed where the tribunal is interpreting its own statute, or where the tribunal
has developed particular expertise in the application of a general common law or civil law rule.
Adjudication in labour law remains a good example of the relevance of this approach. A consideration of
the following factors will lead to the conclusion that deference is owed:



A privative clause
A discrete and special administrative regime in which the decision maker has special expertise
the nature of the question of law – Facts or mixed law and fact will get more deference
An exhaustive review is not required in every case to determine the proper standard of review. Existing
jurisprudence may be helpful in identifying some of the questions that generally fall to be determined
according to the correctness standard. Don’t repeat an analysis that has already been done.
In summary the process of judicial review involves two steps. 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 is unfruitful an analysis of the
factors making it possible to identify the proper standard of review (62). The existing approach has been
commonly labelled the “pragmatic and functional approach”. The name has caused problems so the test
99
will now be referred to as the standard of review analysis. It is a contextual analysis depending on a
number of relevant factors:




the presence or absence of a privative clause
the purpose of the tribunal as determined by interpretation of enabling legislation
the nature of the question at issue
the expertise of the tribunal
Application
1) the proper standard of review
Does the combined effect of s 97(2.1) and s 100.1 permit the adjudicator to inquire into the employers
reason for dismissing an employee with notice or pay in lieu? This is a question of law. In light of the
privative clause should the standard of review be correctness? The PSLRA contains a strong privative
clause. This is an indication that reasonableness should apply. The nature of the regime also favours a
standard of reasonableness. Labour arbiters have often been shown deference. The adjudicator was
interpreting his enabling statue, although they were appointed on an ad hoc basis he was selected by
mutual agreement of the parties. They still have relative expertise about the statutes they interpret. The
legislative purpose confirms this view. The remedial nature of s 100.1 and its provision for timely and
binding settlements also imply that a reasonableness review is appropriate. The nature of the question
is not of central importance. Therefore a reasonableness standard is appropriate.
2) Was the adjudicators interpretation unreasonable?
The adjudicators decision was not reasonable. The reasoning process of the adjudicator was deeply
flawed. It relied on and led to a construction of the statute the fell outside the range of admissible
statutory interpretations. The adjudicator reasoned that the statute allowed him to inquire into the real
causes of D’s dismissal even though it was with PILN. However, the employment relationship between
the parties was governed by contract. Where the employer chooses to dismiss with reasonbale notice or
PILN, they are not required to assert cause for discharge. The grievance process cannot have the effect
of changing the rules of contract. By enquiring into this, arbitrator adopted a reasoning process that was
fundamentally inconsistent with the employment contract and thus fatally flawed.
The decision of the arbitrator also treated D, a non-unionized employee, as a unionized employee. It
requires the employer to show cause before dismissal. This is not a reasonable interpretation of the
PSLRA. The purpose of 97(2.1) and 100.1 is that employees who are dismissed for cause, and without
notice have the right to grieve the discharge. It cannot be interpreted to remove the employers right to
dismiss without cause. However, the decision of the adjudicator turned on entirely different reasons
which must be examined.
Issue 2: review of the Adjudicators procedural fairness determination
The employee raised the issue that the reasons for the employers dissatisfaction were not specified and
that he did not have a reasonable opportunity to respond to them.
100
Bastarache, Modernizing JR
Argumetn/takeaway:

Southam brought 3 standards, and everybody started getting more and more critical about it.
Corut really wanted to solve this in Dunsmuir
a) theoretical underpinings





Fundamentally, JR aims at addressing the tension btw RL and legislative intent
RL requires that all find their decision in law. “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.” (2)
Legislative branch can never remove entirely the court’s power
Despite all this, admin bodies are created so as to provide an alterntive to the court process
SR analsyis tries thus to determine the authority given to the body in relation to the subject
matter
b) SR

The reason they got rid of both standards of reasonableness was because the difference
between them both was illusionary

Also, can we really ask parties to accept an irrational decision simply because on a deferential
standard, the irrationality of the decision was not high enough?
c) Analytical Process
i) Considerations of previous jurisprudence


First step – check if jurisprudence hasn't already solved the problem
Correctness: applicable to constitutional questions given s.96 courts, also general law important
to the legal system as a whole, jurisdictional lines between two competing tribunals
 The more controversial issue was that of determining true jurisdiction or vires (i.e. on th
question of whether or not the tribunal had the authority to answer). In the end this was going
back to pre-CUPE
 Guidance can be found in previous case law, if not second stage.
ii) Factors to be considered
 The same ones as in the P&F analysis
 Adding to this questions of fact, discretion and policy attract reasonableness
iii) Application of reasonableness standard



Criteria:
1) the coherence and intelligibility of the reasons, and
2) whether or not the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
101
3) Addressing the Critics
a) Notion of jurisdictional questions


For many (e.g. Mullan) this is going back to pre-CUPE jurisprudence
1) “we specifically noted that we wanted to avoid the pre-CUPE v. New Brunswick Liquor
predicament by looking strictly at true vires questions. Such questions will likely be those of
statutory interpretation, the nature of which would be described as questions of pure law.”
 2) is it really possible to avoid jurisdictional questions?: The rule of law demands that courts
rectify the unauthorized and inconsistent application of law.
b) Effect of merging the 2 standards


Criticism is that this actually achieves nothing
The goal with the 2 standards was to shift the focus on determining: whether the substance of
the administrative decision is unreasonable in any one of the myriad of possible ways of being
unreasonable, more than on which one of the two apply.
c) Presence of express statutory right of appeal

Criticism is that the majority would have wanted to leave the possibility to apply a standard of
review of reasonableness to cases where there is a right to appeal
 Answer: Nope. Where there is a privative clause, the rule of law and the intent of the legislature
are arguably in opposition. Where there is an express statutory right of appeal, both factors
militate towards correctness.
d) alleged spectrum of reasonableness

Crticism (Binnie and Mullan): majority’s reasons focus exclusively on the adjudicative context. So
is it a “variable” standard (i.e. that there will be great hesitation or caution in setting aside a
decision that was previously subject to the patent unreasonableness standard)?
 One cannot be somewhat pregnant, and therefore one cannot be somewhat unreasonable
 The manner in which reasonableness is to be assessed is by looking at whether or not the
reasons are rational and coherent, and whether or not the result falls within the range of
possible, acceptable outcomes.
 In terms of variability argument: fails to appreciate that the driving force behind the decision to
eliminate the distinction between unreasonable and patently unreasonable was the inability to
distinguish in practice between the two. The implication is that a decision deemed patently
unreasonable in the past will continue to be viewed as unreasonable despite the elimination of
the tautology that was patent unreasonableness.
e) Applying the reasonableness standard



Criticism: Professor Mullan suggests that it is unclear whether if reasons are coherent ends the
inquiry or whether a court must go on and ensure whether in isolation of reasons provided, the
outcome can be justified as reasonable in terms of coming within what a reviewing court
regards as an acceptable range of results.
Answer: “I find it difficult to contemplate a situation where rational and coherent reasons could
somehow arrive at a conclusion that is not within the range of acceptable outcomes.”
Criticism: Mullan also suggests that, where a decision falls within the range of acceptable
outcomes, courts are permitted to accept not only the reasons offered but also those that could
have been offered.
102

Answer: What was intended is that a court may consider the reasons that could have been
offered as a means of evaluating the coherence of the reasons provided. The reasons that could
have been offered thus serve to highlight any deficiencies in the reasons of the administrative
decision-maker. A court is not invited to substitute such reasons for those provided.
f) Requirement to give reasons
 Criticism: are giving reasons still required post Dunsmuir?
In terms of substantive review, giving reasons is part of the duty to articulate the application of a legal
rule. If an administrative decision-maker fails to explain his or her decision, he or she is not applying the
rule but acting arbitrarily.
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12
Facts: K immigrated to Canada when he was 14. He is a landed immigrant. In 2000 him and another guy
were street racing through a commercial area of Vancouver. (it does not say this in the judgment, but
while street racing he lost control and killed a pedestrian). He denied that he was street racing. He
received a conditional sentence of two years less a day. The conditions included house arrest and
community service. Because of the conviction a deportation order was ordered by Immigration. K
appealed the decision to the IAD for an exception to the deportation order on humanitarian grounds.
The IAD refused his request for an exception to the Immigration order and upheld the deportation
order. K does not dispute the first order, but the IADs refusal to grant him an exception.
Issue: What is the standard of review? Does the IAD decision fall within it?
Reasoning:
A. a difference of perspective
In this case the legislature has enacted judicial review legislation, so this must be analysed. Judicial
review statues must be understood against the background of administrative law because they are
drafted with that in mind. Dunsmuir recognized that with or without a privative clause a measure of
deference has come to be accepted as appropriate where a particular decision had been allocated to an
administrative decision maker rather than to the courts. Deference recognizes that the day to day work
of the tribunal with a particular scheme will allow them to develop expertise in applying it.
b. Section 18.1 of the FCA
Interpretation of the Federal Courts Act must be flexible enough to apply to the decision of hundreds of
different administrators. Some have privative clauses, some do not, some have a right of appeal some
do not… etc, you get the picture. Resort to the general law of judicial review is all the more essential in
cases like 18.1 of the FCA because it is not limited to particular issues before a tribunal.
c. Matter of statutory interpretation
The FCA was created to transfer the jurisdiction of certain writs away from provincial courts into federal
courts. Neither the FCA itself or any changes to it excluded the common law. Courts assume that
legislation is meant to be assimilated into the common law. Discussed differences between the French
103
and English versions which gave different levels of discretion to the courts. This issue was resolved by
going to the intention of the legislature. There is nothing else to indicate that the legislature intended to
eliminate the long standing existence of the courts discretion in judicial review remedies. As discussed
the original intent of the statute was to ensure that federal tribunals were evaluated by federal courts.
Therefore, notwithstanding the French and English versions, the courts get discretion to grant or
withhold relief.
Judicial intervention is authorized where (1) the tribunal acted without jurisdiction, beyond jurisdiction
or refused its jurisdiction. According to Dunsmuir when reviewed on this there is a correctness standard.
It is also authorized when (2) the tribunal failed to observe a principle of natural justice, procedural
fairness or other procedure. Dunsmuir says that fairness is to be done on a correctness standard. Again
relief to be granted is governed by the common law. Intervention is authorized when (3) the tribunal
erred in law. This is also on a correctness standard. However Dunsmuir says that if the interpretation of
the home statue by an expert decision maker is reasonable, then the judge will have to stay out of it.
Intervention is also authorized where (4) the tribunal based its decision on an erroneous finding of fact
that it made in a perverse or capricious manner. This demonstrates that the legislator intended that fact
findings by the tribunal get high deference, thus via Dunsmuir, reasonableness. Finally the court can
intervene (5) if the tribunal acted in a way that was contrary to law. This includes law outside the FCA.
More evidence that the FCA is not meant to be a self-contained code. A legislature has the power to
specify a standard of review if it manifests a clear intention to do so. However courts will



not interpret grounds of review as standards of review
they will apply Dunsmuir principles.
They will presume the existence of to grant or withhold relief based on the Dunsmuir teaching
of restraint
D. Standard of review
The process of judicial review involves two steps:
1) Review to determine the standard of review. It does not have to be exhaustive. Choose between
reasonableness and correctness.
2) when jurisprudential categories are not conclusive, look at




Is there a privative clause
Purpose of the tribunal as demonstrated by the enabling statute
The nature of the issue
The expertise of the tribunal dealing with their legislation
Not just a checklist, but must be put in context. In this case there is a privative clause indicating that
judicial intervention should be deterred. There is no statutory right of appeal. Second the purpose of
the IAD is to determine a wide range of appeals under the IRPA. They can also make exceptions to the
IRPA on humanitarian and compassionate grounds. They IAD had the advantage of conducting the
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hearings and assessing the evidence. IAD members have considerable expertise in determining appeals
under the IRPA. All these factors point to deference. The standard is reasonableness.
E. Applying the Reasonableness Standard
Where reasonableness is used it requires deference from courts. They can’t substitute their own
decision for that of the tribunal. They have to determine whether the decision falls within a reasonable
range of outcomes. In this case because of the considerable deference owed to the IAD and the broad
scope of discretion (wait a minute, I thought there were only two standards… deference/correctness,
what is with this “considerable” shit?). Fish takes a different view of what the scope of reasonable
outcomes are in this case, however because he is seeking exceptional and discretionary relief and the
IAD are experts, the scope is small. Dunsmuir says that you have to look into the qualities that make a
decision reasonable. If it falls within a range of possible, acceptable outcomes which are defensible on
the facts and law then it is okay. This also reinforces the need for reasons. However , the lack of good
reasons should not dilute the fact that the tribunal gets a lot of deference (para 63). Both the dissenting
and majority reasons of the IAD demonstrate the reasons why they made their decision. Courts should
not reweigh the facts. The decision not to grant an exception to the removal order was within the range
of reasonable outcomes.
Held: appeal allowed, decision of the IAD reinstated.
Dr Q (James Bond style) v College of Physicians and Surgeons of BC
Facts:






1998 Inquirty Committee finds that the respondent physician had take physical and emotional
advantage of one of his female patients.
He was a psychologist treating her for depression from 1994 onwards.
1995 the relationship became sexual, and lasted for 18 months. He denied the allegations
Committee concluded that the sexual acts occurred, and that they accepted the patients
evidence and disbelieved him. He was suspended for 18 months, with stringent conditions for
his return to the profession. S.73 of the Act allows for an appeal on the merits of the case.
TJ: set aside the committee disagress w/ the committee based on credibility reasons
CA: look at Medical Practitioners Act, and disagree the finding as to credibility, dismissed appeal
because the reviewing judge was not clearly wrong.
Issue:
Reasoning: (McLachlin)
A. The role of the committee



BC = ultimate authority for the medical profession and has given this to the college of physicians
and surgeans through the inquirty committte mechanism. Committee gives opinion to college
and imposes sanction if the complaint has merit
Composition: 2 physicians + public rep
Committee had amongst others the oblgiations to make findings of fact, and they determined
that it was best to apply a standard of “clear and cogent evidence”. Everyone agreed at the
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time. Actually does seem to be the case to be used according to the jurisprudence. Credibility
was the main issue in this case before the Committee.
 Based on the facts they disagreed w/ him, which lead to their conclusion on him Para12
B. Role of reviewing judge

TJs role is not to substitute his views of evidence for those of the tribunal, but needs to “review
the decision w/ the appropriate degree of curail deference.” (para16) But they still substituted
their views.
 They did theis on two assumptions (1) since the standard of proof was the itnermeidate
standard of clear and cogne evidence, evieiwing judge was required to review the evidence and
make their own evaluation, and (2) b/c ac give right of appeal, that the review was not to be
treated like a usual admin tribunal para17.
 Both of these are mistaken approahces
 #1)
o TJ erred by applying too stringent a test and substituting her own view w/ of the
evidence for that committee
o Standard of “clear and cogent evidence” does not permit reviewing judge to enter a
revaluation of the evidence.
 #2)
o The fact that the Act grants a of appeal “does not mean that the matter could be dealt
with without recourse to the usual admin law principles of standard of review
o Here the court has to apply the pragmatic and functional approach as a first step. They
must weigh a series of factors (Pushpanathan) to find out the outcome. Remember the
P +F approach is really a way that allows to balance between inquiring into the
legislative intent + courts constitutional duty to protect the law para21.
o Cannot interpret one factor, but must look at all and weigh them para 22
o Goes over what the factors are (paras 27-34)
  Considering the 4 contextual factors here, we need to use a reasonablenesss simpliciter para
36
o Purpose: leg intended to assign to the college role of balancing competing interests and
policy objecitves (s.3 act) suggests deference. Yet issue of adjudicating claim of
professional misconduct, in the way they do makes them quasi-judicial in nature 
militates vs deference. Therefore in between.
o However nature of problem (credibility) requires findins fo fact, and relative advantage
who heard viva voce evidence must be respected
 Applied to TJ: the reviewing judge did not assess this question at all. This is why the court took a
correctness standard. More precisely: she only considered whether the statute granted a right
to appeal, and failed to address the need for deference in view of the purpose of the Act and the
nature of the problem (aka credibility)
C. Role CA


CA erred in setting askied the judge’s order. CA determined that standard was whether in her
re-weighing of the evidence she was clearly wrong, which is not the right test for a secondary
appellate level. Role of the CA is to determine whether the reviewing judge had chosen and
applied the correct SR, and if not to assess the admin body’s decision in light of the correct SR 
reasonableness.
Here the CA is dealing the with an appellate of a subordinate court and not the JR of an dmin
decision
106

Quesiton of right standard to select and apply is one of law and, therefore, must be answered
correctly by a reviewing judge. The cour erred by giving deference where none was due.
 CA should have corrected reviewing judge’s error, substituted the appropriate standard of
admin review and assesst eh committee’s decision on this basis.
ON the appropriate standard of reasonableness: there was enough evidence to support the committee’s
conclusions.
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342
III. Standards of Review in Theory and Practice
A. contested correctness


Correctness Review in Theory
o Central questions of law that are important to the whole legal system are outside the
scope of administrative tribunals
 Constitutional
 Jurisdictional (like the real kind)
 Etc.
o Arguably Dunsmuir has reduced the reach of correctness review
 By making the broad categories of law allowed for correctness review more
specific
 By indicating that a “narrow” approach should be taken to jurisdictional
questions
o But at the same time it tells us that we don’t need to change any of the existing
correctness jurisprudence
 But what it means to “get it right” and the method by which you can get there is
hotly contested
o Ryan
 When assessing on correctness the judge can re-do the reasoning and come to
its own conclusion
 This is in contrast with how a court must study carefully the tribunals reasoning
in a deferential review
o Underlying rationals for the correctness standard
 The idea of jurisdiction
 Certain matters fall within the administrative tribunals authority, and
some fall outside
 Expertise
 Tribunal cannot claim expertise where it does not have it
o Many exceptions have developed
 Consistency and predictability
 Judges are best placed to ensure this when it comes to the law
o The correctness standard might now be obsolete
Correctness review in practice
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o
o
o
o
Two cases that indicate the tension in correctness review are mossop and bibeault
Bibeault was about a school board terminating contracts with companies whose janitors
were on strike.
 In this case beetz continues to take a diceyan approach to jurisdiction
 He found that the statute contained terms of art to the civil law, to interpret
these he found that judicial expertise was needed
 Should terms of art in civil or common law be protected from “novel” or
contextually informed interpretations of tribunals?
Mossop
 SCC overturned a decision of the tribunal on the basis that “family status” could
not be interpreted to extent to same-sex couples
 Correctness standard was applied, but then the judges disagreed on what the
right decision to substitute was
 Lamer found that the legislature did not intend that family would
include same sex couples
 LaForest concurring found that family in the ordinary sense meant
“traditional family” to the Canadian public
 HD dissented
o Human rights codes are interpreted with the fundamental ideas
of equality and liberty which usurp even legislative intent
o Only the most explicit legislative intent can curtail them
o Her judgement reflect the model of the rule of law known as
common law constitutionalism
o Under this model statutes are not closed systems but requiring
interpretation in light of animating principles of the wider social
and legal tradition
o She also picked reasonableness simpliciter
 She found that the tribunal had a role in indentifying
and prioritizing the fundamental values she was
speaking of
 Since mossop and the introduction of review for reasonableness there has been
increased willingness to defer to human rights tribunals
 On fact-intensive situtations
 Or where the matter is tribunal processes
It is not clear if after Dore, Pushpanathan would have received deference
 They applied a correctness standard to the decision of the refugee board
involving the interpretation of a section of the refugee act
 The language had been incorporated from a UN convention
 So the issue was interpreting a general legal principle
 Something the board did not have expertise in
 Courts still get to interpret human rights, not tribunal
108
o

If statutory interpretation is not an exact science, then on what grounds can courts
continue to apply correctness review to disputes of this sort?
o Northrop
 Another dispute about statutory interpretation that was resolved on the
correctness standard
 This involved a commission who heard complaints about government
procurement processes
 They decided that they could hear complaints from non-canadian companies
based on their interpretation of the legislation
 Courts quashed the decision
 While the court of appeal looked carefully at the reasons for the
tribunals decision, the SCC totally ignored it
 The CA was in dialogue with the tribunal, the SCC was having its own
conversation
 Too bad because the tribunal had some good reasons
o Which is better? Should you be able to go into reasons of the
tribunal even on a correctness review?
o This might be better for Canadians and the tribunal itself
o Tension between positivist statutory interpretation which looks at the text (and
sometimes context) as a closed system indicative of a determinative legislative intent vs
a normative approach which views problems in light of background assessments of
social facts and competing purposes
The bedrock of correctness review is the concept of jurisdiction
o Administrative decision makers do not enjoy unlimited authority
o They don’t get to decide their own mandate
o It also reflects the rule of a concern for stability of law
NOTE: ALL OF PUSHPANATHAN IS SUMMARIZED ABOVE
Canada (AG) v Mossop [1993] 1 SCR
Facts:



Mossop, a federal civil servant, applied for a bereavement day of leave from work to attend the
funeral of his same-sex spouse’s father.
The employer refused on the ground that collective agreement only referred to death of
“immediate family”, term defined as including common-law spouse (which was restricted to
person of the opposite sex)
TJ: He complained to Cdn HR Commission of discrimination based on family status (Cdn HR Act).
Cdn HR concluded that this practice went vs the Cnd HR Act which prohibited discrimination on
the basis of “family status”. The tribunal upheld the complaint and ordered that the collective
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agreement be amended so that the def of common –law spouse include persons of the same sex
who meet the def in other respects.
 FCA: Overturned by the Federal C.A on grounds that tribunal’s interpretation of “family status”
was erroneous in law, saying “family statuts” does not include homosexual relationships.
Issue: 1) What is the standard of review? [Correctness] 2) What is the proper meaning of family status?
[does not include same-sex couples, majority = parl did not intend for it to be there and should have
explicitly wrote it down]
Reasoning:
(Lamer CJ + 5)  on nature of question asked

General question raised in appeal is one of statutory interp, and as such is a question of law over
which they have jurisdiction under s.28 of the FCA (see p.577)
(Lamer +3)  on Question of family status

Denial of bereavement leave is not discrimination on the basis of flia status within the meaning
of the Act
(Lamer +2)  on standard of review

FCA has necessary jurisdiction to review the decision, the court is only limited in cases of patent
unreasonableness. In a HR tribunal there is no privative clause.
 In this case we deal w/ stat interpretation. Even if courts show deference to those tribunals that
interpret their home statute: this does not apply to findings of law where the tribunal has no
particular expertise (i.e. like in HR tribunals) (c.f. LaF) (p.587)  fact: he bases this on HD’s
previous judgment. This is not a charter case p.578-80: there was no question of the
constitutionality of the law. Thus just matter of stat interpretation. Canadian HR Act did not
prohibit discrimination on the basis of sexual orientation when he was denied bereavement
leave, but when parliament had decided to add “family status” to the act, it was as if it were
explicitly refusing to add sexual orientation to the list of prohibited grounds of discrimination.
(p.580)
 Here: complainants sexual orientation is closely connected to the grounds of refusal that this
denial cannot be condemned as discrimination on the basis of “family status” without indirectly
introducing into the Act the prohibition which Parl didn’t include (i.e. by allowing him to
recuperate, it was as if the Court would be allowing to include homosexuals in family status,
which Parl had not done): see “Absent a Charter challenge … should prevail” p. 581
 “Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts
and administrative tribunals are not empowered to do anything else but to apply the law.”
(p.581)
 “absent charter challenge, the Charter cannot be used as interpretative tool to defeat the
purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to
have.” (p.582)
 Note: sexual orientation had not been included in the prohibited grounds of discrimination in
the code back then, judge says he might have ruled differently if it was the case (582)
(Lamer CJ – in sum)
This is a question of law – proper meaning of “family status”. Does pragmatic and functional approach:
110
1)Statutory right to appeal – exists therefore less deference
2)Expertise – no particular expertise on this matter. It is a question of HR law but court makes
distinction between tribunals that administer specialized areas of law (like labour relations law)
and areas where the law is very general. So, although the HR tribunal has jurisdiction, its
expertise relative to the court is no greater therefore no special deference due.
3)Purpose of the act and provision – Policy purposes of the Commission. Therefore, some deference
due. But, the particular provision in question falls under a particular area of the Canadian HR
Act. This gives the commission its adjudicative powers. In this particular role and function, the
HR Commission is acting in a quasi-judicial/adjudicative role rather than policy role of evaluating
and balancing interests. Therefore less deference.
4)Nature of the Problem – the question is proper interpretation of family status. This decision has
direct impact on society at large with respect to basic SOCIAL VALUES. This is close to a
constitutional litigation – interpretation of fundamental interplay of HR statute and society at
large – more deference
 Therefore, the standard is CORRECTNESS.
Applying the standard to the decision


Family status had been added as enumerated grounds but sexual orientation had not.
So, if L’H-D is right, we would have funny situation whereby homosexuals in couples
would have protection and those not in couples would not.
HRC’s decision is wrong in law – cannot add words to the statute that Parl declined to
put in.
(LaF +1)  on standard of review





General question is one of statutory interpretation – therefore question of law
If no privative clause, the normal supervisory role of the courts remains. This is the case w/ the
HR tribunal: there was no privative clause (p.583) See: “The normal approach … supervisory
jurisdiction”. It is not that they cannot make rulings on these issues, it is just that they are
subjected to the supervisory role of the courts.
Although courts are willing to show deference to HR tribunals for reasons of relative expertise,
the superior expertise of a HR tribunal “relates to fact-finding and adjudication in a human
rights context, and does not extend to general questions of law such as the one at issue in this
case.” LaF makes an emphasis on the fact that we are not dealing with a labor tribunal (584):
“The tribunals themselves are ad hoc bodies established to settle a particular dispute – no huge
expertise. In this respect their positions are similar to that of a labour arbitrator. But a human
rights tribunal does not appear to me to call for the same level of deference as a labour
arbitrator. A labour arbitrator operates, under legislation, in a narrowly restricted field, and is
selected by the parties to arbitrate a difference between them under a collective agreement the
parties have voluntarily entered.” (585)
Questions of law are more for the judiciary! “The courts cannot abdicate this duty to the
tribunal, and must therefore review the tribunal’s decisions on questions of this kind on the
basis of correctness, not on a standard of reasonability.” (p.585)
Here: although Act “should be interpreted generously w/ a view to effecting tis purpose, neither
ordinary meaning, context, nor purpose indicates a legislative intention to include same-sex
111
couples within “family status” (i.e. no context says that this term should be included). Also, this
does not fall under the Charter, and the court cannot review the actions of parl.
HD (dissent):

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
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




Courts should be cautious and exercise deference when reviewing a tribunal’s decision
Best approach to determine appropriate standard of review is the P&F approach that was
articulated in Bibeault
Must ask:
o 1) did the legislator intend the question to be within the jurisdiction conferred on the
tribunal?
  Yes? Role of courts should be superintending one, and intervention will be
warrented only if decision is patently unreasonable
“This approach requires a focus on jurisdiction which accounts for the general values of
deference, and the ease w/ which questions can be improperly branded as jurisdictional”
First used in the context of privative clauses (that protected the boards).
This is a principled approach of general application which does not focus on formal categories,
but rather seeks to determine the rationale behind deference in a specific context.
Court will examine not only the wording of the enactment, but the purpose of the statute
creating the tribunal, the reason for tis existence, the area of expertise of its members, and the
nature of the problem before the tribunal
If after considering all of these factors, it is concluded that the courts should answer the
question, “then the question is one which does not lie within the board’s jurisdiction and the
test of correctness should apply.” If not, it will only be done for a patently unreasonable
decision.
Nothing in s.28 that dictates review of every error of law. “Review is a discretionary remedy.”
Given the rationale for deference and importance of court’s supervisory power, an error should
be a serious one to merit a court’s intervention.
Here:
o Tribunal has jurisdiction to determine a question of fact, and they also have jurisdiction
to interpret its Act, and the meaning of the term “family status” in s.3 of the Act. Courts
should be deferent, because parl gave the tribunals this responsibility. Courts only have
a limited role.
o “It is well established that HR legislation has a unique quasi-constitiuional nature, and
that it is to be given a large, purposive and liberal interpretation.”
o Even by taking a textual approach to s.3 of the act, the term “family status” seems to
have a pretty broad scope.
o “Parliament’s decision to leave “family status” underdefined is evidence of clear
legislative intent that the term’s meaning should be left for the Commission and its
tribunals to define.” Even if we were to say that Parl had something specific in mind
when thinking of the scope of family status, “there is no definition in the Act which
embodies this scope.” “Concepts of equality and liberty which appear in HR documents
are not bounded by the precise understanding of those who drafted them.”
o “The eneumerated grounds of discrimination must be examined in the context of
contemporary values, not in a vacuum. Their meaning is not frozen in time and the
scope of each ground may evolve. Textual context should not detract from the
112
purposive approach mandated by HR documetns, and legislative intent is best inferred
from the legislation itself.”
o The Tribunal’s itnerp is not patently unreasonable. Traditional conception of flia is not
the only conception. Multiplicity of definitions and approaches illustrates clearly that
there is no consensus as to the boundaries of family, and that “family status” may have
varied meanings depending on the context or purpose for which the definition is
desired.” (i.e. there are many definitions as to what constitutes a family). Families are
not merely creations of the law. When defining “family status”, tribunal took into
account non-traditional families. W/ the evidence it received, the Tribunal concluded
that the potential scope of “famly stauts” is broad enough that it prima facie does not
exclude same-sex couples. They used the proper interpretational approach. W/ a
functional approach, Tribunal then concluded that the specific relationship b4 it was one
that came within the scope of “family status”, therefore it should be left undisturbed
b/c it is not patently unRe
o Collective agreement left bereavement to “immediate family”, this definition included
some and excluded others (i.e. same-sex couples). Tribunal found that this was
discriminatory, it is not an unreasonable conclusion, and the court should not interfere.
L’Heureux-Dubé (dissent) – In Sum:
Pragmatic and Functional Analysis
Deference on:
1) Privative clauses: There is none but, absence of a privative clause does not necessarily result in
review of all questions of fact and law. Here, there is internal mechanism.
2) Specialized nature of certain boards: Importance of expertise: A related consideration is the
connection of the board to the context. That is, even a body made up of "non-specialists" may
develop a certain "field-sensitivity" where that body is in a position of proximity to the
community and its needs. Where the question is one that requires a familiarity with and
understanding of the context, there is a stronger argument that a higher degree of deference
may be appropriate. The HR Commission is a specialized tribunal. The policy making powers
conferred on it suggest that Parliament intended to give the Commission considerable leeway
within which to exercise their powers.
3) Nature of the question or interest: This is a question of fact with respect to whether M can be
included as a matter of fact within the concept of family status.
4) Whether the question is one of fact or law
 The proper standard of review is patent unreasonableness.
 The Tribunal has jurisdiction to interpret its Act and, consequently, the meaning of the term "family
status" in s. 3 of the Act; courts should defer to the Tribunal's interpretation since the legislature
specifically intended that the Commission and its tribunals carry out the task of interpreting the
grounds of discrimination in the Act.
 While courts do have a role to play in this task, that role is a limited one, confined to overturning an
interpretation which, is "so patently unreasonable that its construction cannot be rationally
supported by the relevant legislation and demands intervention by the court upon review".
(Cory (dissent))
113

Agrees w/ LaF in so far as they pertain to the duty of the courts to review and the SR that
shouldbe applied to the decisions of HR tribunals. (i.e. correctness)
 Having no privative clause is one of the factors that may be taken into account when
determining the deference that should be accorded to the decision of a tribunal
 Following the factors discussed by HD, tribunal was correct
(McL (dissent))
 Agrees w/ LaF as to SR
Agrees w/ HD on the application to “family status”
Pushpanathan v. Canada (Minister of Citizenship and Immigration) after 37
The nature of the problem: A question of law or fact?
Even pure questions of law might merit a lot of deference, where the other factors of the test suggest
that this was the intention. However where there is no such intention manifested, then courts can be
less deferential on pure questions of law. This also relates to the relative expertise of the tribunal and
the court. See Southam on mixed questions of law and fact. If a question is based on a really specific set
of facts and is unlikely to be passed on as a general legal principle, it will be more on the fact side.
Sometimes as in the case of the WCB the creation of a legislative scheme combined with a highly
specialized administrative decision-maker and a strong privative clause is sufficient to grant an
expansive deference even over questions of law. However in absence of a clear intention, general
questions of law should be assumed to be left to courts. Keeping this in mind, the generality of the
proposition decided will be a factor in favour of the imposition of a correctness standard. Generally the
broader the propositions asserted and the further the implications of the decisions go from the
expertise of the tribunal, the more less likely they will be shown deference. Without clear intent,
legislatures are presumed to have left highly generalized propositions of law to the courts.
The proper standard: Correctness
Applying the pragmatic functional test comes to a different conclusion than Richard J. S 83(1) would be
incoherent if the std of review were anything other than correctness. The statute allows that serious
questions of general importance are reviewable by the courts. If courts are required to defer to
questions that are incorrect in law but ‘reasonable’ then this section is incoherent. The only way to read
this section would be that in serious cases of general importance the CA and FC are allowed to
substitute their own findings. S 83 codifies the principle of generality discussed in Southam.
Furthermore, in this case the board does not seem to have expertise on the issue in question here.
The boards expertise is in evaluation whether the criteria for refugee status have been met. The
relationship between this function and the provision in question here is remote. As lawyers are not
required to be on every panel it would be unthinkable to allow the board to make exclusive
determinations on the broad definition of basic human rights guarantees. The board is also not in a
managing or supervisory function as in Southam and corn growers. They are not responsible for policy
evolution. There is no poly-centricity. Also the pragmatic functional test allows for different standards of
review based on different decisions up for review.
114
Principles of treaty interpretation
The purpose of the act incorporating 1(f) is to implement the underlying convention. As indicated in the
travaux preparatoires, the nations involved in the convention wished to give a particular meaning to the
words “purposes and principles of the united nations”. The starting point of the interpretive exercise is
to define the purpose of the convention as a whole and to place article 1(F) within that scheme. Article
19(F) is meant to provide and exception to the definition of a refugee, while s 33 of the convention is to
provide for refoulement where the refugee is a danger to the state they are seeking refuge in. 1(F) is not
meant to protect society from dangerous refugees, but to exclude those who are not real refugees. By
examining the statements of delegates and related conventions 1(F) should be interpreted as excluding
those who have committed crimes against humanity other than war, but couldn’t be clearly defined at
the time. The logic of this exclusion is that those responsible for the persecution that creates refugees
should not be able to benefit from Refugee status. In the current case there is no indication that drug
trafficking on any scale is considered contrary to the purposes and principles of the UN. Such a
declaration would be an expression of the international communities judgement that such acts qualify
as serious, sustained and systemic violations of fundamental human rights constituting persecution.
There is no indication that drug trafficking comes close to the core of this. The appellants drug trafficking
is not a violation of article 1(F).
Held: appeal allowed. Matter returned to Convention Refugee Determination Division.
Chapter 10, Pas de Deux: Deference and Non-deference in Action, pp.342-79
Author: Sheila Wildeman
B. Review for Reasonableness
1. Enduring Questions from the pre-Dunsmuir Case Law


Not pay attention cases that looked at standards by reference to the depth of probing or
magnitude of error allowable under each
Pre-dunsmuir jurisprucence can help us see two main areas of controversy about deference that
are alive today
o Controversy about method/conduct of judicial reasoning on review that is most
consistent w/ deference
o Substantive indicia
a) The conduct of deferential review

Reasonableness can give more than one interpretation (dunsmuri + CUPE)
115
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But how to find the limits
Post cupe they looked at what was the right answer, even if general sense was that there was no
correc answer
How do we adjuge the legality of the decision under review if not in light of the judge’s opinion
of the correct response?
1) fix on depth of probing
2) staying close to the reasons (Iacobucci in Ryan)
Ryan as well mentions that no spectrum
In the sessence: these two approaches illustrate the challenge of adopting a mode of reasoning
on review that avoids measuring the contexted decision against the cout’s independent
determination of the correct answer
In CUPE: Dickson looks closely at the tribunal’s reasons
CUPE 2003 (retired judges): although not correct answer, construction that is determinative in
the result (opposition with CUPE)
i.e. how probing must a judge get? (345)
b) substantive indicial of (un)reasonableness
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simpliciter meant they stood next to the judge’s reasons
interposition of simpliciter between correctness and patent unreasonableness is the confidence
in reason
SO IMPERATIVE OF STAYING CLOSE TO REASONS
RSimp – concern that there are certain reasons that do not stay close to logic
When trying to enforce values it becomes a problem (i.e. prioritization of certain values): not the
courts role to decide
i.e. they refuse to reanalyze the weight given to the criteria (e..g southam and Iacobucci)
tension between ensuring that admin decision makers advance rule of law and that they are
granted deference  what if they are wrong?
Surshe claimed that baker invited the ministerial delegates to consider and weigh implied
limitations r patently relevan factors. Pé349
In sum, although the logic or reasonableness simpliciter was drawn out of the law on patent
unreasonableness – a line of case law ostensibly tolerant of administrative decisions that were
unreasoanblen, though no “patently” so – the cases elaborating the new standard intoruced
new expectations for judicial attentiveness to administrative reasoning, along with new
expectations that adminsitartive decision-makers publicly justify their decisions. Arugably, these
central features of reasonableness review begin to erode the logic underpinning the formal nonengagement with tribunal reasons that characterizes correctness review.
2. Reasonableness Post-Dunsmuir
a) Dunsmuir Reasonableness in theory 350
116




D majority makes tentative attempts to offer clearer guidance about what it means to express
deference on review.
Builds on foundations of Southam and Ryan, and CUPE
 Those judgments centered on the idea that judges applying a reasonableness standard
should closely attend to administrative reasoning, and that the decision should stand unless it
“cannot be rationally supporte byt eh relevant legislation” on the evidence
Steps in right direction to fix
i) Deference as respect



Guidance in Dunsmuir comes from the concept of deference “as respect” (i.e. not as submission)
This is respect for the legislative intent (i.e. how much power put on the admin decision makers)
 i.e. respect for the choices of the legislature
Pronouncements are made following the premise that certain questions do not lend themselves
to one specific, particular result. Instead they will give rise to a number of possible conclusions.
Range of solutions.
ii) Targets of Reasonableness Review: Reasons and outcomes 352

The famous D quote: but remember this is more of an organic approach, look at both phases
iii) The criteria of Dunsmuir reasonableness
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3 touchstones:
o jusitification
o transparency
o intelligibility
seems like they are embedded in the “process of reasoning”
but it seems that it can be argued that at least eh criterion jursification should be applied
application of all three criteria to both foci of reasonableness review (reasons and outcomes) is
suggesd in Khosa  see para59
question: how does the concern for justification – which implicitly speaks to the normativityor
value-ladennenss of the law, even reaching to considerations of proporitonaltiy – is to be
integrated w/ the other, more process-oriented criteria? (354)
iv) post-dunsmuir developments
117

3 important elements of significance that refer to the proper application of the reasonableness
standard:
1. “no reasons” versus substantive (un)reasonableness: the distinction btw review to determine
wehther the duty to give reasons has been met and review for suntsantive reasonableness
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Newfoundalnd nurses: on how to advance whne there are gaps in admin reasoning
First, is this more a matter of substantive or procedural fairness. Abella: low threshold in
whether provided for PF; the quality is more a quesiotn of substantive review
Second: how should deference be given in gap filled thing? In this case, Abella rehearsed briefly
the arbitrator’s reasoning (“outlined the facts, the arguemtns of the parties, the relevant
provisions of the collective agreement, a number of applicable interpretative principles”) all
of it seemed to provide a reasonable conclusion 355
Where gaps how approach deference as respect: it is respect for “the reasons offered or which
could be offered in support of a decision” – may require looking beyond the reasons to the
wider recored of evidence and argument, “for the purpose of assessing the reasonableness of
the outcome”
2. Contextual dimensions of reasonableness: the effort to give content to the idea that reasonableness
“takes its color form the context”
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Binnie seems to suggest shades in concurring opinion of Dunsmuir
Came again in Khosa, where reasonableness is described as a standard that “takes its colour
fromt eh context”
This question of proportionality seems to have risen w/ Doré
Seems like reasonableness is taking more color from context.
Catalyst paper corp  refines the analysis, basically stated there athat review for
reasonableness “is essentially contextual inquiry”
3. doré and proportionality: integration of proprtioanlity analysis
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Traditionally avoid weight
Problem this resurged w/ the notion of fundamental values in baker 359
In doré, this seems to favor a proportionality approach
Proportionality has arisen within reasonableness
Doré supports these principles: proportionality should apply at least where what is in issue is the
application of Charter values to an individual administrative decions
118

Erosion of correctness: “ exercise of adjudicative discretion is carved off from situations in which
“a gribunal is determining the constitutionality oa law, [in which case], the standarad of review
is correctness.”
4. patent unreasonableness as statutory standard: (take note) the interpretation and application of
statutory standards of patent unreasonableness

What happens when statutoryily mandated…. Not on exam.
5. conclusion: reasonableness post-dunsmuir  how has it been applied?
b) Dunsmuir: Reasonableness in practice

reasonabelenss has not yet overcome the instability between impulse toward judicial
supremacy and giving too much deference to the legislature
i) Dunsmuir: judicial supremacy in practice


EXAMPLE OF JUDICIAL SUPREMACY
They immediately conclude otherwise
ii) Knosa as judicial abdication: still battling the weight problem

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
JUDICIAL ABDICATION
Fish seems to have been the only one that argued proKhosa. Fish however had reweighed the
evidence.
Khosa confirms the statements in D indicating the importance of deference to expert tribunals
in matters that fallin their expertise
iii) celegene: Respect for, not submission to, administrative assessment of statutory purposes

On a case we didn't see.
119
iv) resurgent tensions in (context-sensitive) reasonable review: catalyst Paper to Doré


Mostly on case not saw
Doré
o Admin decision maker will not be exxpted to engage in formal rights  they must do is
“demonstrate that they have given due regard” to the competing values engaged by
their decisions.  what “will be expetected in demonstration of due regard is beyond
the instance of Doré and so is the impact.
o In general timers the way that reasonblenss standard is applied in Doré brings together
two important trends in reasonableness review
 1) supplementation of the insistence that courts “stay close to the reasons” of
the administrative decision-makers with an insistence that they first make
efforts to scertain the perspective” or range of acceptable options, whihthin
the decision is expected to stay
 2.) erosion of the once-dominant principle that courts may not revisit the
weight accorded to the competitng factors (especially legal values) on review –
although this erosion is so far, restricted to adjudicative discretion implicating
Charter values
IV – Conclusion


in admin law it is not about measureing the decision against an objective standard of legal
accuracy: “Rather, it is about striking the proper relationships among legislatures, judges,
adminsiterators, and those affected by administrative decisions, in the common work of
securing and advancing the rule of law.” (p.377)
ongoing challenge or reasonableness is on the commitment to deference, especially when
thinking of a tribunal that has expertise
Domtar inc v Quebec, 1993
Facts:


Employee of D gets injured in industrial accident 3 days before temporary closure of plant.
Company refuses to compensate him for more than 3 days. Employee had argued s.60 of the Act
respecting industrial accidents and occupational diseases (AIAOD) to try to get indemnity
 Employer’s decision confirmed at the commission (CSST)
 Appeal agrees w/ employee (CALP)
 SupC goes for appeal board because its within its jurisdiction, and decision is not unreasonable
 CA: reverses the judgment  CA court observes that with respect to the interpretation of s.60
it was the interest of justice to resolve at once the conflicting decisions of CALP and the labor
court which has jurisdiction over AIAOD proceedings (i.e. the accident board). [CALP is not
reversed under patently unreasonable standard] CA to fix this problem, abandoned curial
deference and solved the issue.
Issue: should there be JR?
120
Reasoning [HD]





Interpretation of s.60 is within CALP’s jurisdiction
Functional analysis demonstrates that leg meant to give tribunal final power on ruling of the
meaning of this article
o As admin tribunal, it hears and disposes exclusively all appeals brought under the AIAOD
and its members have all the powers necessary for the exercise of their jurisdiction
(including power to rule over questions of law and fact).
o CALP’s decisions are protected by full privative clause
o S.60 is not only one of the legislative provision on which the CALP has the express power
to rule it employs concepts which are at the core of its area of expertise
o Interpretation of s.60 is a function directly relating to the objective sought by the
legislature
o  Since the interpretation of s.60 is within the tribunal’s jurisdiction, the SR applicable
is whether the decision is patently unreasonable
The decision was not patently unreasonable: it can be rationally defended both on the facts and
on the law. While the CALP may have overlooked several aspects which are peculiarl to the
general system of compensation : this is not a basis for judicial intervention as this ismply be an
error of law within jurisdiction
Doubtful whether there is a conflict btw the decisions fo the CALP and labor court w/ respect tot
eh interpretation of s.60.
o CA: conclusion is based on a single judgment o fthe labour court in a penal matter and
fails to take into account the numerous decisions rendered by the ALP which has always
adopted the same interpteation.
o  Situation created by isolated decision at variance w/ a consistent line of authority
cannot a priori be characterized as a true jurisprudential conflict. Why not?
 Two bodies interpreted the same legislative provision, but in the particular
context of each one’s jurisdiction, in the one case a penal one, and the other an
administrative one. (i.e. they both had different jurisdictions and therefore
could technically have contradictory judgments…?!) According to the judge,
since these are matters where the ground rules are completely different a
disagreement on the interpretation of a legislative provision does not
necessarily place the CALP and the labor court in a jurisprudential conflict
 Also, wrong to say that CALPs interpretation leads to a dead end: there exists a
civil remedy parallel to the penal remedy
 Finally, the allegedly irreconcilable conflict between these two tribunals is
mitigated by the fact that the Labor court’s decisions, unlike those of the CALP,
can be appealed to the Superioru Court under the CCP
Even if it would create a jurispurdiental conflict, “such a conflict does not constitute an
independent basos for judicial review.”
o  When decisions made within jurisdiction are not patently unreasonable, the
principles underlying curial deference should prevail. Consistency in the application of
the law is a valid objective but it is not absolute!
o Consistency has to be pursued keeping w/ the decision-making autonomy and indep of
members of the admin bodies: “Inquirign into a case of decision-making inconsistency
and solving it where there is no patently unreasonable erroer means altering the
institutional relationship between administrative tribunals and courts. Such
intervention by a court of law risks eliminating the decision-making autonomy,
121
expertise and effectivreness of the administrative tribunal and risks at the same time,
thwarting the original intention of the legislature, which has already has already
determined that the admin tribunal is the one in the best position to rule on the
disputed decision
o Admin tribunals have the authority to err within their area of expertise, and a lack of
unaninmity is the price to pay for the decision-making freedom and independence
given to the members of these tribunals.
o “Recognizing the existence of a conflict in decisions as an independent basis for JR
would constitute a serious undermining of those principles given that administrative
tribunals and the legislature have the power to resolve such conflicts themselves.”
Ratio: If not patently unreasonable two conflicting decisions can exist.

 Basically the whole previous paragraph is important, but general paragraph:
“When decisions made within jurisdiction are not patently unreasonable, the principles underlying curial
deference should prevail. Consistency in the application of the law is a valid objective but is not an
absolute one. This objective must be pursued in keeping with the decision‑ making autonomy and
independence of members of the administrative bodies. Inquiring into a case of decision‑ making
inconsistency and solving it where there is no patently unreasonable error means altering the
institutional relationship between administrative tribunals and courts. Such intervention by a court of
law risks eliminating the decision‑ making autonomy, expertise and effectiveness of the administrative
tribunal and risks, at the same time, thwarting the original intention of the legislature, which has already
determined that the administrative tribunal is the one in the best position to rule on the disputed
decision. Administrative tribunals have the authority to err within their area of expertise, and a lack of
unanimity is the price to pay for the decision‑ making freedom and independence given to the members
of these tribunals. Recognizing the existence of a conflict in decisions as an independent basis for
judicial review would constitute a serious undermining of those principles given that administrative
tribunals and the legislature have the power to resolve such conflicts themselves.”
Law Society of New Brunswick v. Ryan after para. 24
Review of Administrative decisions
There are only three standards based on a pragmatic functional approach to situation.
The Pragmatic and functional approach applied to the disputed decision

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
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The presence or absence of a privative clause or statutory right of appeal
The expertise of the tribunal in relation to that of the court
The purposes of the legislation and the provision in particular
The nature of the question – law, fact or mixed law and fact
Presence or absence of a privative clause or statutory right of appeal
122
Here there is no privative clause, but a broad right of appeal on question s of law or fact under s66 of
the legislation. This indicates less deference.
Expertise of the discipline committee
Does the tribunal have specialized knowledge about a subject that the court does not? Do they have
experience or skill in determination of particular issues? Even though judges know about legal ethics the
discipline committee has expertise relative to the court. There are current members of the law society
on the panel. They will be more apprised of the courts of the way ethics standards play out in real life.
There are also members of the public on the board. They understand how the sanction will affect how
the profession is viewed. They have to apply the objectives of the act to specific cases all the time. Thus
they have expertise over the court. Thus because of its composition and familiarity with the issues they
have more expertise than the court.
Purpose of the law society act and disciplinary process
To create a self-regulating body to maintain professional standards of practice. They have to protect the
public’s interests. The committee has discretion on what sanctions will help them achieve the objectives
of the act. They have to balance multiple issues to select a discipline. Thus the purpose of the act merits
deference.
Nature of the question: law, fact, or mixed law and fact?
The question of what sanction Mr Ryan should face is a mixed question of law and fact because it
involves the application of general principles of the act to specific circumstances. The committees
decision to sanction is one that will not create a precedent. The decision is intimately bound to many
factual finding and inferences. The committee got to hear the testimony and cross examination of R and
the expert witnesses.
Conclusion
Even though there is a statutory right of appeal the other factors suggest that that the appropriate
standard is reasonableness simpliciter.
B. The standard of reasonableness simpliciter
Does the standard float along a spectrum according to the case?
There is no fourth standard of review. The standard does not float. The question that a court must
answer on a standard of reasonableness is: “After a somewhat probing examination, can the reasons
given, when taken as a whole, support the decision?”
What does the reasonableness standard require of a reviewing court?
A court must not interfere under this standard unless the party seeking review has positively shown that
the decision was unreasonable. Unreasonable means not supported by any reasons that stand up to a
123
somewhat probing examination. The court has to stay close to the reasons and decide whether they
support adequately the decision. In a review for reasonableness the court does not undertake its own
analysis for the correct answer. A review for reasonableness acknowledges that the legislature intended
the tribunal to have the primary responsibility of deciding the issue. Furthermore the administrative
body, unlike under a review for correctness, may have had to weigh several issues that exist in tension
with one another. Therefore there is no single best answer (although if you look at Mossop and other
cases, even in correctness review the court can disagree on what the correct outcome is).
There is also a difference between reasonableness simpliciter and patent unreasonableness. Patent
unreasonableness has to have an obvious defect or flaw. There is no doubt under this that the decision
is defective. It is so flawed that no amount of curial deference can let it stand. Under this there are no
lines of reasoning that could support the decision. To know whether a decision is unreasonable you have
to look at the reasons given by the decision maker. You have to see if there is a line of reasoning in the
decisions that supports the conclusion of the tribunal. Even a line of reasoning that is wrong can work,
as long as there is something there, and it is not crazy (55). You don’t look at every single line of
reasoning in the decisions, instead you have to look at the decisions as a whole to see if overall it
supports the conclusions.
Applying the standard of reasonableness to the committees decision
What reasons were given?
There were two committee hearings. In the second one they found that R did not have any mental
illness except alcohol abuse. He was not really interested in getting treatment, so they found it was no
use to allow him to keep his licence to practice on conditions. They found based on the new evidence
presented at the second hearing that the decision made by the first committee was appropriate. They
found that the new evidence did not show that the original sanction of disbarment was inappropriate.
The second decision incorporated reasoning from the first decision. They found that previous
committees had disbarred lawyers for similar conduct.
On the whole there is nothing unreasonable about the committees decision. The problems the court of
appeal had with the decision seem to be based on the idea that they would have made a different
interpretation and weight they were given. However this is a review for reasonableness not correctness.
Nowhere has it been shown that the decision was unreasonable (61).
Held: Appeal allowed, Court of Appeal decision set aside, the Discipline committees original decision
reinstated.
Canada (Fisheries and Oceans) v David Suzuki Foundation
Facts:

Subsection 58(5) of the SARA provides that the Minister must make an order under subsections
58(1) and (4) protecting the critical habitat of listed endangered or threatened aquatic species
124
only if such critical habitat “is not legally protected by provisions in, or measures under, this or
any other Act of Parliament” (para2)
 The minister had determined that the Fisheries Act legally protected some aspects of the critical
habitat of killer whales and could thus be resorted to as a substitute to a protection order under
SARA
 FC:
o declared ministerial discretion does not “legally protect” critical habitat under s.58 of
the Species at Risk Act (SARA) and which declared that it was unlawful for the Minister
to have cited discretionary provision for the Fisheries Act in a protection statement
concerning the critical habitat of the Northeast Pactific Northern and Southern
populations of killer whales.
o He ruled that the minister may avoid issuing critical habitat protection order under SARA
only where the legal protection offered that habitat under another Act of Parliament is
the same as that provided under a protection order. He further ruled that the measures
available to the Minister under the Fisheries Act could be diluted under the sweeping
and largely unfettered discretions granted to the Minister under that statute.
Consequently, he concluded that the fisheries act could not be resorted to as a
substitute to a critical habitat protection order under the SARA.
 Minister argues: his interpretation is to be granted deference on both statutes because he has
been made responsible for admin of the regulatory schemes of Sara and the fishers act. Bases it
on Dunsmuir, where home statute interepretation can give deference
Issue: should he be granted deference? [NO]
Reasoning:

No deference is owed to the minister. His interpretation fails to consider the context in which
both statutes were developed and the reasons which may warrant deference to an admin
tribunal where it interprets its enabling statue.
 Reasonableness standard does not apply to interpretation of a statue by a minister responsible
for its implementation unless Parliament has provided otherwise.
 He thus concludes like the federal corut judge that “where an application for JR of a decision as
to the implementation of SARA is based on an allegation that the Minister has ministerpreted a
provision of the SARA or the Fisheries Act as it relates to the SARA, the Minister’s interpretation
must be reviewed on correctness. “The courts owe no deference to the Minister in that
respect.” (para6)
In sum: Minister wants to say that by merely being a minister, and having the responsibility over a
federal statute, SR ends there. However, judge claims that it is necessary to establish legislative intent
and that to find deference it is important to pass through SR anlaysis. It is important to remember that
the analytical framework was developed in the adjudicative tribunal context, and tha tParl is presumed
to have restricted JR of a tribunal’s interpteation of its engablishing statute and statutes depending on
their adjudicative functions. This can be rebutted if contrary to parl’s intent. He claims that the Minister
is basically asking that Dunsmuir be applied to all decision makers who are responsible for the
administratiof of a federal statute. But he does not believe that Dunsmuir and the decisions of SCC
follow this idea. For him:
125
“What the Minister is basically arguing is that the interpretation of the SARA and of the Fisheries Act
favoured by his Department and by the government’s central agencies, such as the Department of
Justice, should prevail. The Minister thus seeks to establish a new constitutional paradigm under which
the Executive’s interpretation of Parliament’s laws would prevail insofar as such interpretation is not
unreasonable. This harks back to the time before the Bill of Rights of 1689 where the Crown reserved
the right to interpret and apply Parliament’s laws to suit its own policy objectives. It would take a very
explicit grant of authority from Parliament in order for this Court to reach such a far-reaching
conclusion.” (para98)
Issues in this appeal however, concern the interp of a statute of a minister who is not acting as an
adjudicator and has no implicit power to decide on questions of law. The presumption of deference
coming from Dunsmuir does not extend to him.
Dunmsuri analysis


SARA and Fisheries Act: no privative clause: minister’s interpretation not meant to be shielded
Purpose: provisions in SARA (s.57 and 58) indicate that the Minister does not have that much
discretion (especially use of word “must” in 58(5))
 Minister is acting in admin capacity and not as an adjudicator when issuing protection statement
under SARA (SARA has NO admin tribunal!): thus little deference  question of statutory
interpretation
 Expertise: has only expertise in management of fisheries and of fish habitat and “this does not
confer on the Minister expertise in the interpretation of statutes. Expertise in fisheries does not
necessarily confer special legal expertise to interpret the statutory provisiopns of the SARA or of
the Fisheries Act”
 CORRECTNESS
Chapter 11, Administrative Discretion, 381-401
Author: Geneviève Cartier
I – Introduction

aim chapter: present the state of the law relating to the exercise and review of discretion in
Canada and to highlight the challenges that discretion poses to the RL and to Democracy
126


What is discretion: “ The concept of discretion refers to decisions where the law does not
dictate a specific outcome, or where the decision-maker is given a choice of options within a
statutorily imposed set of boundaries.” (p.382)
Question: is it more a legal or a political phenomenon?
A: The role of discretion in admin state

Discretion is essential to contemporary government  cannot forsee everything, or not enough
knowledge
1: Discretion to decide individual cases


Laws (provisions) are made that give this power, impossible for gov to look at all the particular
sitautions
Baker is a good example of discretionary power, e.g. H+C (humanitarian and compassionate)
applications allow gove to go over decisions individually p.384
2: discretion to adopt general norms
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Admin decision makers can adopt bidning rules of general application: regulations, bylaws,
orders, tariffs…
Justification is
o Expertise
o Time constraints and information constraints  increases efficiency and flexibility
Discretion to adopt non bidning rules (e.g. soft law: directives, gudielines, manuals)
This emerged as a response to the growth of the state, and is largely uncontroversial
Controversial is nature of legal regime that applies to this power
II – The role of discretion and how it was viewed by academics
B: Discretion and academics (p.385)

Divide betweent
o those who associate discretion w/ arbitrariness and
 Dicey, lord hewart
o those who view discretion as instrument that allos the welfare state to reach its
legitimate objectives
127

 Robson, WI Jennings
This division structured law of JR in many ways until Baker and recent judicial decisions suggest
that it has not been forgotten
III – Discretion from Roncarelli to Baker



Prior to baker
o Operated under specific heads or grounds of review usually labeled under “abuse of
discretion”
This part book: presents various grounds of review under the traditional approach to the judicial
control of discretion, but it also analyzes the importance of Roncarellin on this part of admin law
and sketches the elements that led to great change
Roncarelli
o Pivotal
o Affirms that discretion is always limited by legal principles
o Minority and majority show two visions of discretion
 Rand: limit discretion this is his approach to discretion:
 “Here the act done was in relation to a public administration affecting
the rights of a citizen to enjoy a public privilege, and a duty implied by
the statute toward the victim was violated. The existing permit was an
interest for which the appellant was entitled to protection against any
unauthorized inter-ference, and the illegal destruction of which gave
rise to a remedy for the damages suffered.” (quote from Rand)
  “In sum, for Rand, discretion could not be viewed as a pure exercise
of power, as an instrument in the hands of a decision-mkker enabling
him or her to make any decision he or she sees fit. For discretion to be
legally exercised it had to pursue legitimate purposes and take into
account the sitatuion of the indvidiaul affected by the decision.”
 Cartwrightcommission has unfettered discretion, administrative decision
  “For Cartwrignt, then, the decision-maker endowed with a boradlly
worded delegation of discretionary power could not be subject of
control by the courts as long as he or she acted within the limits
explicitly set forth in the statute. Where no formal limits where
prescirged and the delegating statute conferred entire discretion on the
deiciosn maker, the latter as a “law unto itself”.” (p.390)
o so
 roncarell generaly stands for proposition that discretion is limited or contrained
by legal principles
 the opinions of the judges show opposed views of discretion
 Rand: creates a bottom0-up approach to this power need to respect
individual freedom
 Cartwrigth: top-down approach  seeks to protect the public decisionmakers margin of maneouver
128

The following are the specific heads or grounds of review in the traditional approach:
A: Unauthorized object or purpose, irrelevant considerations

E.gs. Roncarelli, majority thinks his permit was made in view of punishing him for his religious
invovlement
B: bad faith
 Roncarelli: cancel permit b/c guy was defending movement vs the Catholic church
C: acting under dictation or influence
 Delegation of power means only one uses it.
 Roncarelli using his power under Duplessis
D: wrongful delegation of powers
 Presumption that one will have expertise, but could not be the case or not be allowed
E: fettering of discretion
 Not following guidleines
F: unreasonableness


Rarely invoked as a separate ground than the SR
Basically something absurd, and had very demanding threshold
IV – Discretion from Baker to Dunsmuir and Beyond
A: The contemporary framework of analysis, p.396








Traditionally abuse of discretion was limited to the above stated grounds
For HD traditional approach to the review of discretion with its limited grounds of review
incorporates two ideas
o Decision maker must be given important margin of manoeurvre when exercising
discretion
o Decision maker must act in limits
For her there was no clear line between discretionary and non-discretionary decision
Review of discretion could follow P+F approach (she concludes that minister’s discretion is to be
evaluated under reasonableness simpliciter)
Now court involves in statutory approach rather than contextual approach
P+F  baker marks the end of law-discretion dichotomy
Discretion can be controlled based on reasonabless as per SCC
Baker is ni lign with Nicholson
129



Duty to give reasons does not depend on the kind of power exercised by the executive, but
rather on the considerations that eh dignity of the indvd requires that he be told why a decision
is critical t to his future
In Dunsmuir, the cour reassessed this approach completely: gave two standards
Question of discretion generally attract a standard of reasonableness, and deference is usually
owed (Baker)
B: The Challenges
1: What is left of the previous approach? P.399
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Not sure how the old heads of claim fit in
Might thinkt hat those that lie in questions of fact are unaffected byt eh approach, but grounds
more closely related to exercise of stat interptation might need to be approached in conformity
w/ appropriate SR
i.e. reviewing courts only intervene if unreasonable if tribunal did not take apporpiate test
not settled, but seems correctness remains, examples
o Lake: courts eems to say that question whether a particular consideration is a relavant
factor tot eh decision to extradite or not is for the court to decide on a correctness
standard, while it was tfor the minister of justice to determine on standard of
reasonableness if the facter was met in that particular case
2: the level of deference
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Dunsmuir raises questions more directly related to the revelavnce and impact of the standard of
correctness in judicial review of discretionary decisions
Holds question of discretion is reasonableness
However SCC pronouncements indicate that discretionary measure of the decision is not
necessarily the determining factor for the identification of the standard of review 
interpretation of home statute = standard of reasonableness, true question of jurisdciton =
correctness
Doré raises the question of the applicable standard or review o f discretion challenged on the
basis fo Charter arguments.
3: To “reweigh” or not to “reweigh”
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Baker reweighed the factors
130
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Suresh: says clearly NO. Minister only allowed to weigh factors. Reveiwieng courts must therefor
limit themselves to ensuring tha tonoly relevant consideration shave been taken into account;
weighing is for the decision maker alone.
Reaffirmed in Lake (minister best placed for extradition cases), Khosa (Fish dissent)
Difficult to reconcile Baker with this
V – Conclusion
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Discretion is undeniably necessary: “Discretion allows the administrative state the flexibility
that is required in order either to make individual decisions adapted to particular situations, or
to conceive general, regulatory norms that will structure the way in which a particular legislative
scheme is to be concretized.” (p.403)
Proper place of discretion is not easy to find, now seems formally recognized by the judiciary,
but a concrete application of such discretion presents great challengs that eh courts have not
entirely overcome
In addition to its complex relationship w/ the RL, discertaion question sdemocracy.
Courts have been oscillating between two different conceptions of discretion since roncarelli:
“dialogue” (bottom up) and “power”
Dialogue: builds primarily on a botton-up approach to discretionary power and seeks to foster a
reciprocal relationship betweent he decision-maker and the individual
Distinctive freatures of a conception of discretion as dialogue relate tot eh content of the
communication that it involves AND to the effect that the dialogue produces on the outcome of
the decision-making process
o Content
 First: allows indvd to expose the particularities of his situation and requires the
dm to demonstrate opening listening
 Second: requires the parties to transend their particular position in order to
deliberate on the norms and values that should govern the exercise of
discretion
o Effect  you narrow the possible decisions that they can make
Power: it is a one way projection of authority
o Rand v Cartwright in Roncarelli
o Rand sets the possibility for a dialogiue!
Author believes that discretion should be conceived as dialogue
o 1: best explains the development that has occurred in admin law over the past 30 years:
i.e. why courts have been willing to impose procedural obltgaitions and oblgiations to
justify their reasons
o 2: justification of the evolution of the law of discretion because It suggests how
discretaion is compatible w/ both RL and democracy
 discretion as dialogue through requirement of justification places executive
authority in the realm of the RL through participation and accountability
 by creating venues for communication and deliberation allows the idnvidual to
participate in the norms that will be applied to him
Is dialogue likely to impose itself as the background metaphore for the years to come? – 3
considerations
131
o
1) Baker put aside view of discreation as exercised in legal void, YET there is still much
judicial ressitence to assessing the substance of discretionary decisions on a standard of
reasonableness that goes beyond absurdity or arbitrariness
o 2) Newfoundland nurses clearly points to a reintroduction of the process/substnacne
disnticntion in administrative law. Baker had weakened it. This disntinction threatens
the justification for dialogue, because it does not recognize that processes may affect
substance, making individual participation considerably less valuable
o 3) When govs are overly sensitive to questions of national security and emergency, as
they are now, temptations are great to fall back on a view of discretion that moves away
from considerations of participation and accountability.
“It is my contention, however, that to have at least a clear view of the competing articulations of
discretion at play in these troubled times is the best weapon to protect individual liberty, democracy,
and the rule of law.” (p.405)
Chapter 12, The Charter and Administrative Law, 422-37
*Authors: Pless and Fox-Decent
III. Review of Administrative Decions Under the Charter

Very inconsistent approach in what concerns administrative decision that engage rights
protected by Charter
 Doré sets a foundation for a new approach. It resolves a significant debate as to the appropriate
approach to take where administrative decisions engage the Charter.
 Inconsistency is found in the following: whether, when and how to conduct a s.1 analysis of an
admin decision that infringes a protected right
 Chapter aims to go through the different approaches, describe them and assess them critically
 Doré:
o Facts: D sends judge an angry letter (which was justified because the judge was a
meanie). D is sanctioned under s.2.03 of Code of Ethics. D claims s.2.03 violaties s.2(b) of
the Charter. Barreau rejects his claim, and they suspend his practice for 3 weeks. They
had done an Oakes test. D then appeals to the Tribunal des professions claiming now
that the decision taken under s.2.03 violated the Charter.
o Tribunal applies correctness, and upholds the decision. Their approach rejected formal
application of Oakes test and uses a proportionality test.
o This decision is upheld on judicial review.
o Court of Appeal also upholds decision, but only after applying Oakes.
o SCC then upholds the decision, but establishes a new approach that rejects Oakes and
uses proportionality. Abella: Oakes is appropriate for dealing w/ a “law” or rules of
general application, but not for an administrative decision that is said to violate the
rights of a particular individual. In the latter case, reasonableness is used, and will be
retained only if it reflects a “proper balance” of implementation of statutory purposes
w/ Charter protection.
 Approach is not revolutionary
 Rest of chapter is divided along the three parts of the framework established in Slaight
A. The Slaight Framework and Doré
132

Facts: D worked for S and got fired unjustly. Labor adjudicator imposes a remedy that is that the
employer will write a reference letter that will be factually objective, and that says that he was
fired unjustly. Employer only needed to provide the letter when prospective employers would
ask him about D. S was basically forbidden from making negative comments about D. S seeks JR
claiming that the remedies violate his freedom of expression under s.2(b)
 Decision: ajudicator is upheld. Orders are rationally connected to purpose enabling legislation
and are propritonate. Claimed tha thte orders were reasonable in admin law sense, and
comments: “admin law unreasonableness, as a preliminary standard of review, should not
impose a more onerous standard upon government than would Charter review.” (425) Dickson
accepted Lamer’s analytic framework in the dissent.
 Lamer’s framework (425)
o Determine whether the disputed order was made pursuant to legilstion that gives either
expressly or by implication the power to infringe a protected right.
o If yes, legislation itself must satisfy s.1
o If legislation (as in Slaight) provides broad or imprecise discretion and the authority to
infringe a protected right is not express, then order must be justified in accordance w/
s.1.
o If cannot be justified, order has exceeded jurisdiction
 Courts after this decision did not follow the steps consistently, and sometimes would apply a
charter approach, some times an admin law approach.
 Doré says explicitly that a decision itself will not invite application fo the Oakes test. Thus
dichotomy in Slaight has new meaning: “A person who has his or her rights infringed as the
result of an express authority to do so appears to be in a diff position than a persion who sees
his or her rights infringed by a decision based on an imprecise authority.” (426)
 2 differences
o constitutionality of rule: correctness; individual decision based on imprecise authority:
reasonableness
o evidentiary burden of Oakes falls on person seeking to defend the rule not on person
attacking it; in case of imprecise authority  burden of showing unreasonableness –
party seeking to have it reviewed
B. Express Authority to infringe a protected right (426)
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So, Slaight framework: if legislation expressly authorizes the infringement of a Charter right,
legislation must satisfy the requirements of s.1 (affirmed by Doré)
But silence on what to do w/ orders that resulted from legislation. This was clarified in Doré –
“the order will not be subject to the Oakes analysis even if the law or rule that authorizes it
could be.” (e.g. at issue in Doré was the decision and not the law, so no need for oakes)
Another good example is the Extradition Act – here there is a prima facie violation of s.6, so the
gov needs to justify every case under s.1 (despite after Doré)
In Doré, court relies on LeBel’s reasons in Lake to show how a reasonableness standard can
embrace constitutional values
It is difficult to see why reasonableness analysis, which is primarily concerned w/ “justification,
transparency and intelligibility within the decision-making process,” would necessarily screen
out decisions that don’t satisfy s.1.
Doré insists that there conceptual harmony btw a reasonableness review and Oakes. But
sometimes decision-makers will skip parts of Oakes. Also if Doré’s assumption is correct, what
do we gain by not following Oakes explicitly?
133
o
Abella claims that that the choice between the two is not about choosing between
different levels of protection. She believes both frameworks will lead to similar results
o Lake stands for giving deference to Minister’s evauation of whether the infringement of
s.6 is justified in accordance w/ s.1 (i.e. deference to the s.1 justification itself). And if
this is the model adopted by Doré, then it means that the burden on the government to
justify the infringement is dramatically lighter
 Therefore, seems like most of the litigation that will arise when dealing with this type of issue
will be around determining whether a law has an explicit authority that infringes the charter
(correctness) of if it is imprecise or discretionary (reasonableness).
 Little Sisters is case which shows that the course of the infringement can be really complex. Here
there was both an express legislative authority to infringe a protected right, but both rule and
application were subjected to s.1 analysis. In this case the court had applied oakes for both,
which would be currently inconsistent w/ Doré
 In PHS Community Services (recent case): court said that Minister’s decisions must always
conform to the charter as with all other acts of discretion. In this case, the court used a s.1
analysis.
 Will the reasonableness form of Doré provide a basis for intervention in Charter cases?
C. Imprecise Authority to Infringe Charter Rights (429)
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Prior to Doré, law not more predictable w/ respect to imprecise grants of discretion than it was
w/ express grants of authority to infringe Charter
Recent application of Oakes to admin decision is Multani (prior to Doré). There was a great
debate as to how to deal w/ this issue
o Charron (majority): applied s.1 to the decision (now rejected in Doré)
o Deschamps and Abella: admin law approach
o LeBel: offers further variation
Majority’s approach was problematic here:
o Practical prob for litigants: when you go to first instance to complain on imprecise
authority, you don’t know if court agrees that authority limits a right protected by the
Charter and that the limit is not saved by s.1. The court can always resolve your case
w/o resorting the charter (e.g. Baker). Doré doesn’t seem to resolve this question
entirely (430): how do we know that there has been an infringement?
o Did not consider admin law implications where a Charter right was infringed, but the
infringement could be justified under s.1
Doré seems to provide a solution, however, has problems on its own: “If the correct reading of
Doré is that express authority to infringe a Charter right requires the Oakes analysis, but
imprecise authority does not, one can legitimately question why, when the Consitution is the
Supreme Law of Canada, tehr eowould be two different approaches to determining the
constitutionality of gov action depending on wehther it si expressly authorized by legislation or
not.” (431)
In Doré, abella does not address wehther the new approach will yield a more relaxed standard
of scrutiny, though introduction of reasonableness points to this direction. Her explanation
really leads one to think that she perceives the approach as merely adapting the same reqs
(those of s.1) to different types of problems, but in not diminishing scrutiny
But do the diff approaches matter? In Multani there were 3 but they all reached the same
conclusion. However, this might have been a fluke…
134
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Difference w/ majority in Multani is not the absence of express statutory authority, but rather
that s.1 should be only applied to a “norm or rule general application” and not to a particular
decision. (433)
 Greater Vancouver Transportation Authority: is not a statutory authority, the issue there as a
rule in a particular decision, so no s.1  here they dealt with a rule rather than a particular
decision
 View that individual decisions are not amenable to the same analysis as rules or norms ahd
received some endorsement from the Court before Doré and since Multani (e.g. Alberta v
Hutterain)
 Doré thus might be read to blur the line btw the Oakes analysis as an analytic tool on the one
hand and compliance w/ s.1 on the other (434). But, it is one thing to say that indvd
discretionary decions are ill-suited for oakes, and another to say that they are a type of gov
action that can legally infringe a charter right w/o needing to satisfy s.1.
 S.1 and Oakes requirements are not identical. Yet the reasons in Doré don’t distinguish between
them.
 Another set of cases where Charter rights are implicated yet the Court preferred to resolve
them on admin law grounds will be of concern to litigants who worry that the salience of
Charter issues would be lost under the new approach (these are cases in which the court has
typically avoided delving deeper into Charter issues in admin law (e.g. baker could have also
been resolved on charter grounds)).
 The jurisprudence however seems to use the approach that was favored in Doré (e.g.
Chamberlain, majority does not use the Charter, Trinity Western does not use it either)
D. Conclusion

Doré provided much clarity to the debate over whether to apply oakes to admin decisions that
infringe charter rights. Doré is clear that the admin law approach and the standard of
reasonableness will apply.
Approach must work for “balance and proportionality”. It is only a question of whether this approach
will provide the same protection as w/ Oakes… But this remains to be seen. Abella at least seems to
think so, but many problems remain.
Slaight communications Inc. V Davidson [1989] 1 SCR 1038
Facts: D was dismissed. In a letter the only witness for the employer said that he was dismissed for poor
performance, and that if did not meet his sales targets she heard about it, and if he did they said he
could do more. The Adjudicator found that D was unjustly dismissed and made several orders. One of
them was that the employer had to give D a letter of recommendation stating the dates he was
employed, his sales budget quotas and whether he met them for the past few years. That he was
unjustly dismissed under the CLC, and that if anyone contacted S for information on D they could only
answer by sending a copy of the above letter. The appeal centers on whether the s 61.5 (in the new
code it is like s 242 or something), allows the adjudicator to make orders like this one.
Issue: Does s. 61.5(9) para. (c) of the Labour Code allow the adjudicator to order the employer to give
the employee a letter of reference of specified content and to order the employer to say nothing further
about the employee? Did the order infringe freedom of expression?
Holding 1.Yes, 2. Yes, but justified under s. 1 (judgment for Davidson)
135
Reasoning:
The relationship between administrative Law review and review under the charter
Dickson CJ (majority):
Where a Charter right is clearly at stake and contending values are at issue, review must occur under the
Charter framework for review of legislation rather than under the principles of administrative law.

Unreasonableness in administrative law, as a preliminary standard of review, should not impose a
more onerous standard upon government than would Charter review
o Patent unreasonableness is useful in making determinations of fact
o But in terms of value inquiry, should only use this standard in the clearest of cases where a
decision could not be justified under s.1
o Section 1 is better – analysis is more sophisticated

Both the positive order to send the letter and the negative order to refrain from saying anything else
about the employee infringe freedom of expression s. 2(b)
Therefore, must go to s. 1 analysis

Section 1 Analysis
Importance of the Objective
 The objective sought, achieved by the positive order (the letter), was conteracting the effects of the
unjust dismissal by enhancing the ability of the employee to seek a new job without being lied about
by his previous employer.
 The negative order seeks to achieve this same goal, as a complement and reinforcement of the
positive order.
 Adjudicator’s remedy in this case was a legislatively-sanctioned attempt to remedy the unequal
balance of power that normally exists between an employer and employee
o It is in a class of government actions with the object of protecting a vulnerable group or its
members
o In this case, it was designed to address a risk that the inequality would continue even after
the employment relationship had ended
 The court must avoid constitutionalizing inequalities of power such as this one.
 In this case, protecting the freedom of expression would amount to continuation of an abuse of an
already unequal relationship.
Proportionality
 Rational connection:
o Negative order is rationally linked to the objective, no less than the positive order.
o Adjudicator found that Davidson had been the victim of a personal vendetta or set-up, and
that the employer had engaged in bad faith and duplicitous conduct
o Negative order ensured that Slaight didn’t subvert the effect of the letter by unjustifiably
maligning Davidson in the guise of giving a reference.
 Minimal impairment:
136
o

There was no less intrusive way that the adjudicator could have taken and still have
achieved the objective.
o More compensation might have addressed the economic effects of being fired, but not the
personal effects – work is essential to personal well-being
o Employer was only obliged to state a narrow range of facts that weren’t contested anyway –
unlike in National Bank, employer wasn’t obliged to state opinions
o This prohibition is limited since the letter will only be sent when requested by prospective
employers.
o Besides, the letter cannot be said to have a great beneficial impact on D’s job hunt.
o Adjudicator went no further than necessary to achieve the objective.
Deleterious effects:
o The effects of the measures are not so deleterious as to outweigh the objective of the
measures.
o Important to take account of Canada’s international legal obligations
o Normally, the suppression of the freedom of expression is a serious infringement of the
Charter and only outweighed by very important objectives
 Here, the negative order was minimally intrusive in a relative sense and the order’s
balance makes this a less serious infringement – and so it is saved by s.1
Lamer J (dissenting in part):
First does an administrative law analysis; THEN a Charter analysis for the parts of the order that
“passed” the administrative law analysis.
Are the orders reasonable from an administrative law standpoint?
 The letter of recommendation is reasonable, but the gag-order isn’t.
 Letter of recommendation is factual; doesn’t express opinion
 Gag order can be construed as expressing Slaight’s opinion (by saying nothing). This is unreasonable.
 Parliament could not have intended such an unreasonable use of the discretion conferred by it
 This use of discretion is never absolute, is subject to review, and cannot be exercised unreasonably
by the Tribunal.
 Adjudicator, in ordering silence, made a patently unreasonable decision and thus lost his
jurisdiction.
 An adjudicator exercising delegated powers does not have the power to make an order that would
result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.
 Thus, don’t need to do Charter analysis on the gag order
Are the orders that weren’t unreasonable from an administrative law standpoint consistent with the
Charter?
 Adjudicators do not have the power to make orders that infringe the Charter
 Charter does not provide an absolute guarantee of rights and freedoms
o Therefore we are only dealing with an infringement of the Charter if the limitation on a right
or freedom is not kept within reasonable and justifiable limits
 Two basic principles to keep in mind:
1. An administrative tribunal may not exceed the jurisdiction it has by statute
2. It must be presumed that legislation conferring an imprecise discretion does not confer the
137
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power to infringe the Charter unless that power is conferred expressly or by necessary
implication
When applying these two principles above to the exercise of discretion leads to one of the following
situations:
a. The disputed order was made pursuant to legislation which confers (expressly or implied)
the power to infringe a protected right.
 It’s then necessary to subject the legislation to Oakes test to see if it is a reasonable
limit that can be demonstrably justified in a free and democratic society.
b. The legislation pursuant to which the administrative tribunal made the disputed order
confers an imprecise discretion and does not confer (expressly or implied) the power to limit
Charter rights
 It is then necessary to subject the order to Oakes test to see if it is a reasonable limit
that can be demonstrably justified in a free and democratic society
 If it is not justified, the administrative tribunal has necessarily exceeded
its jurisdiction
 If it is justified, then the administrative tribunal has acted within its
jurisdiction.
Here, the order made by the adjudicator is only the exercise of discretion given to him by statute 
it is the statute that limits the right
Letter of recommendation infringes s. 2(b), but this limitation is prescribed by law and can thus be
justified under s. 1
Negative order is unreasonable, and doesn’t even reach the stage of a s. 1 analysis
Beetz J (dissenting):
Both parts of the order violated section 2(b) of the Charter and could not be justified under s.1
Multani v Commission scolaire Marguerite Bourgeoys
Facts:
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G is an orthodox Sikh, and he believes that his religion requires him to wear a kirpan (aka
dagger) at all times.
2001, G drops the kripan he wore under his clothes in the school yard. School board sends letter
to his house asking that there be reasonable accommodation: they would allow him to carry it
under the condition that it was sealed inside his clothing. Parents agree.
Governing board of school refuses to raftify the agreement because this violates s.5 of the
schools Code de vie, which prohibits carrying weapons.
School board’s council commissioner’s upheld the decision, telling him to wear a pendant in the
shape of a dagger instead
B (father of G) file to Sup Court for a motion of declaratory judgment to the effect that the
council fo commissioner’ decision was of no force or effect. This was granted, and G is allowed
to wear the kirpan under certain conditions.
CA sets aside the judgment. They claim SR is reasonableness simpliciter, and restores lower
court’s judgment. But it concluded that G’s freedom of religion was infringed under s.2(a) of the
Charter and s.3 of the Quebec Charter, but that this infringement was justified.
Issue:
138

Should an administrative law standard of review be used? [Majority says no, Abella +
Deschamps say yes, Lebel says that s.1 analysis should be used, but in a modified version]
 Does the decision of a school board’s council of commissioners prohibiting one of the students
under its jurisdiction from wearing a kirpan as required by his religion infringe his freedom of
religion under s.2(a)? [YES. Note: all three judges agreed on the answer]
Reasoning:
Charron (+4)
In sum on admin law SR: Need to apply a s.1 analysis on the issue because we are just dealing with
freedom of religion despite this being an administrative body decision.
The Admin law SR is not Applicable

Court believes that the approach would reduce fundamental rights and freedoms guaranteed
byt eh Charter to mere admin law principles, or perhaps create a confusion between them both.
These rights are there to create minimal constitutional protection to be taken into account by
those subject to the Charter (para16).
 At stake is the compliance of the commissioner’s decision w/ reqs of the Charter that is central
to the dispute, not the decision’s validity from the point of view of admin law (para18). The
commissioners did have jurisdiction over the issue (para19).
 Since the complaint is based entirely on freedom of religion, the CA erred in applying
reasonableness in the constitutional analysis: admin law SR is not relevant. “[I]t is the
constitutionality of the decision that is in issue in this appeal, which means that a constitutional
analysis must be conducted.” (para21) It is the only way to maintain consistency in the law
(para22)
 Charter will apply to the decision of the council of commissioners, despite the decision’s
individual nature (para22).
 Any infringement of a guaranteed right resulting from the actions of an admin decision-maker
pursuant to his statute is also a limit “prescribed by law” within the meaning of s.1, whether it is
because the legislation violated a charter right or the decision of the admin dmer violated the
charter right (para22)
 Where the leg pursuant to which an admin body has made a contested decision confers a
discretion and does not confer, either expressly or by implication, the power to limit the rights
and freedoms guaranteed by the Charter, the decision should be subjected to a test under s.1 to
see if reasonable limit, if there is an infringement (para23).
Internal Limits of Freedom of Religion or Justification Within the Meaning of s.1?

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Freedom of religion is not absolute. E.g. it can be limited if this freedom to act causes harm.
However, court has been able to reconcile competing values under s.1 analysis (para26).
However, we must distinguish the decisions where s.1 analysis was conducted from those where
it wasn’t – because there was no conflict of freedoms (para28).
Here, the Court does not have to reconcile 2 constitutional rights – only freedom of religion is at
issue. However, this freedom is not absolute and can conflict w/ other constitutional rights
(para30).
Since the test governing limits on rights was developed in Oakes, the Court has never
questioned the principle that rights are reconciled through the constitutional justification
required by s.1 (para30) Thus the best way to proceed is through s.1 (para31)
139

Since the decision affects both parties and was made by an admin body, a contextual analysis
under s.1 will make it possible to balance the relevant competing values in a more
comprehensive manner
Analysis
Infringement of Freedom of Religion

Freedom of religion consists in claimant demonstrating (1) that he sincerely believes in a
practice or belief that has a nexus w/ religion, and (2) the impugned conduct of a third party
interferes in a way that is non-trivial or not substantial, w/ his ability to act in accordance w/
that practice or belief (c.f.Amselem) (para33)
 G does not have to show that the kirpan is not a weapon, he only has to show that his personal
and subjective belief in the religious significance of the kirpan is sincere (para37). It was found
that G sincerely believed that he had to wear the kirpan (para38)
 Commissioner’s decision prohibits G from wearing his kirpan, and his freedom of religion is
infringed. G has a sincere belief that he has to wear this for religious reasons (nobody
questioned this). This is not a trivial nor insignificant violation of his rights (he in fact has left the
public system and attends the private system – this has deprived him of his right to attend
school) (para40). Thus, s.1 cannot be justified.
Section 1 of the Charter (paras 42-3)
Importance of the objective

Council’s decision to prohibit wearing of a kirpan was motivated by pressing and substantial
objective (to ensure a reasonable level of safety at the school)
 Note: schools aim to have a reasonable standard of safety and not an absolute standard, an
absolute standard would be incredibly difficult to maintain (para46). However, maintaining
safety at schools is not a minimum threshold. So, “[t]he objective of ensuring a reasonable level
of safety in schools is without question a pressing and substantial one.” (para48)
Proportionality
Rational Connection

Decision had rational connection w/ the objective: the knife (despite being religious symbol)
does have a blade (para49).
Minimal Impairment
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Have to show that this decision minimally impairs G’s rights, and that the decision falls within a
range of reasonable alternatives (para51)
But they have not managed to show that this prohibition minimally impairs G’s rights.
Analogy of duty of reasonable accommodation is helpful to explain the burden resulting from
the minimal impairment test w/ respect to an individual (para52).
“In relation to discrimination, the courts have held that there is a duty to make reasonable
accommodation for individuals who are adversely affected by a policy or rule that is neutral on
its face, and that this duty extends only to the point at which it causes undue hardship to the
party who must perform it.” (para53)
Here, G has not claimed to want to use the kirpan w/o restrictions, so the issue is wehther the
board can justify an absolute prohibition (para54)
140

To establish an absolute prohibition against the Kirpn does not fall within a range of reasonable
alternatives. So the arguments in support of the prohibition fail.
 There were the arguments submitted by the school board
o 1) Kirpan could be used for violent purposes if someone takes it or by the person
wearing it (para56-67):
 The risk of his using his kirpan for violent purposes or of another student taking
it away are really low, especially if it is worn under certain conditions.
 Plus there are other dangerous objects at school (e.g. scissors, pencils, baseball
bats…). Plus evidence reveals that not a single violent incident related to kirpans
has ever been reported.
 In other words, the existence of concerns relating to safety must be
unequivocally established for the infringement of a constitutional right to be
justified.
o 2) It could lead to a proliferation of weapons at the school (para68-9):
 No evidence that allowing G to wear his kirpan to school could have a ripple
effect. This argument was based on the previous argument, which was that
kirpans in school pose a safety risk to other students – forcing them to arm
themselves in turn in order to defend themselves.
o 3) Negative impact on the school environment (wearing kirpans is a symbol of violence
and it sends a message that using force is necessary to assert rights and resolve conflict,
in addition to undermining the perception of safety and compromising the spirit of
fairness that should prevail in schools) (para707)
 This is contradicted by the evidence regarding the symbolic nature of the kirpan
+ disrespectful to believers in the Sikh religion + not take into account Canadian
multiculturalism.
 Court also dismisses submission that other students might feel that it is unfair
for this kid to be allowed to wear a kirpan. Court responds – “Religious
tolerance is a very imp value of Canadian society. If some students consider it
unfair that Gurbaj Singh may wear his kirpan to school while they are not
allowed to have knives in their possession, it is incumbent on the schools to
discharge their obligation to instill in their students” the value of religious
freedom (para76)
Effects of the Measure (para78-9)

The court claims that a total prohibition against wearing a kirpan to school undermines the
value of the religious symbol, and sends students the message that some religious practices do
not merit the same protection as others.
 Accommodating G and allowing him to wear his kirpan under certain conditions demonstrates
the importance that our society attaches to protecting freedom of religion and to showing
respect for its minorities.
 Even if did not see as strictly necessary to do this step, court concludes: the deleterious effects
of a total prohibition thus outweighs its salutary effects.
S.15(1) of Can Charter and Qc Charter
 Judicial economy – i.e. not necessary
Remedy

S.24(1) is granted (technically)
141

G is no longer at school, so appropriate remedy is to declare the decision prohibiting him from
wearing his kirpan to be null.
Deschamps and Abella
In sum on admin law SR:no need to apply s.1, we should stick to administrative law principles. Admin
law decisions and charter issues on legislative matters are two completely different things.

Recourse to a constitutional law justification is not appropriate where what must be assessed is
the propriety of an admin body’s decision relating to HR.
 Whereas a constitutional justification analysis must be carried out when reviewing the validity
or enforceability of a norm such as a law, regulation or other similar rule of general application,
the admin law approach must be retained for reviewing decision and orders made by admin
bodies
 There are 2 reasons for this: “First, the purpose of constitutional justification is to assess a norm
of general application, such as a statute or regulation. The analytical approach developed
uniquely for that purpose is not easily transportable where what must be assessed is the
validity of an administrative body’s decision, even on a human rights question. In such a case,
an administrative law analysis is called for. Second, basing the analysis on the principles of
administrative law averts the problems that result from blurring the distinction between the
principles of constitutional justification and the principles of administrative law, and prevents
the impairment of the analytical tools developed specifically for each of these fields.” (para85)
Also, this approach allows parties and admin bodies to know in advance which rules govern
disputes involving HR issues.
 In Baker it was recognized that admin law analysis does not exclude but incorporates arguments
related to the Charter (para86)
 By simply alleging that s.1 analysis is not applicable, it does not make admin law inapplicable. If
an admin body makes a decision or order that conflicts w/ fundamental values, the mechanisms
of admin law – including the SR – are available. How could an admin law decision stand if it
violates the Charter? (para86)
Admin Law Analysis
Standard of Review (para92)
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For them, the issue is that they need to determine the standard of deference to be applied to
the school board’s decision, which had an impact on freedom of religion, the right to equality
and the right to physical inviolability. They decide to follow Trinity Western and Chamberblain
where it was determined that admin law review was to be used when reviewing decisions of
admin bodies (para95)
Doing a quick analysis, they conclude that the standard of review is reasonableness (para96)
Application to the facts: standard of reasonableness applies to the decision of school board’s
council of commissioners.
o CA focused on inherent dangerousness, but this fails to take into account other facts
that were presented. E.g. it is true that a kirpan is a weapon, but they disregarded that
there are risks inherent in the use of other objects that are used daily: “Risks can — and
should — be limited in the school environment, but they cannot realistically ever be
completely eliminated.” (para 97)
o CA also disregards the conditions that had been imposed byt eh Superior Court. (para98)
142
o
As for the Commission: They did not sufficiently consider either the right to freedom of
religion or the proposed accommodation measure. They just literally applied the Code
de vie. By disregarding the right to freedom of religion w/o considering that there might
have been a solution that posed little or no risk to the safety of the school community
made the decision unreasonable. (para99)
Inappropriateness of Constitutional Law Justification

Just because a party characterizies an issue as requiring s.1 analysis does not make it necessary
to apply a constitutional analysis to an admin decision. “The changes in the standard of review
cannot be disregarded just because the decision maker also has to deal with an argument based
on human rights.” (para101)
 The emphasis is now on the deference owed to admin bodies.
 “In our opinion, the administrative law approach must be retained for reviewing decisions and
orders made by administrative bodies. A constitutional justification analysis must, on the other
hand, be carried out when reviewing the validity or enforceability of a norm such as a law,
regulation, or other similar rule of general application.” (para103)
 Admin bodies do have the power and duty to take values protected by the Charter into account,
but their decision must be subjected to the justification process under s.1 of the Charter
(para107)
 The idea that norms of application should be dealt w/ in the same way as decisions or orders of
admin bodies as suggested by Lamer in Slaight is sexy theoretically speaking, but there seems to
be no advantage to adopting this position. Past jusriprudence does not rule out the applicability
of an admin law approach where an infringement of the Charter is argued. They really “disagree
with an approach that involves starting with a constitutional review in such a case.” (para110)
The cases Slaight and Ross (used by the majority) did not entirely settle the matter (para111).
Meaning of the Expression “Law” in s.1 of the Charter
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A decision or order made by an admin body cannot be equated w/ a “law” within the meaning
of s.1 of the Charter: “An administrative body determines an individual’s rights in relation to a
particular issue. A decision or order made by such a body is not a law or regulation, but is
instead the result of a process provided for by statute and by the principles of administrative
law in a given case. A law or regulation, on the other hand, is enacted or made by the
legislature or by a body to which powers are delegated. The norm so established is not limited
to a specific case. It is general in scope. Establishing a norm and resolving a dispute are not
usually considered equivalent processes.” (para112)
To include admin decisions in the concept of “law” implies that it is necessary to begin every
case by assessing the validity of the statutory or regulatory provision on which the decision is
based! (para118)
“To suggest that the decisions of administrative bodies must be justifiable under the Oakes test
implies that the decision makers in question must incorporate this analysis into their
decision‑ making process. This requirement makes the decision-making process formalistic and
distracts the reviewing court from the objective of the analysis, which relates instead to the
substance of the decision and consists of determining whether it is correct (T.W.U.) or
reasonable (Chamberlain).” (para120)
The Oakes test, developed to assess legislative policies, is based on the duty of the exec and
legislative branches of gov to account to the courts for any rules they established that infringe
protected rights. That test, which is based on an analysis of societal interests is better suited to
the concept of “prescribed by law” than to admin decisions or orders (para121).
143
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The Charter binds everyone. So admin decisiosn should be reviewed in accordance w/ the
principles of admin law, which will both allow claimants and admin bodies to know in advance
which rules govern disputes and help preven any blurring of roles. (para125)
Analytical Consistency

Using both s.1 and admin law principles at once can be pretty confusing for the parties
(para126). S.1 is not to always be excluded but this is to be used only when there is an
infrignment of a law (para128). The tools in admin law are enough to deal w/ these issues
(para128).
 The duty to account imposed on the leg and exec branches si not easily applied to tribunals.
Reasonable Accommodation

Finally, even if the concepts of reasonable accommodation and minimal impairment have a
number of different similarities, they belong to two different analytical categories: (1) the
process required by the duty of reasonable accommodation takes into account the specific
details of the circumstances of the parties (para131), (2) justification of minimal impairment is
based on societal interests. “An administrative law analysis is microcosmic, whereas a
constitutional law analysis is generally macrocosmic. These seaparte streams – public versus
individual – should be kept distinct.” (para132)
LeBel
In sum on admin law SR:When checking a justification under s.1 of the Charter, one does not have to do
a complete s.1 analysis (it is useless). The only stage that is pertinent is that of proportionality.
Nature of the Legal Issue

The rule that is enforced by the school board is not at issue, it is just to see whether the
discretion of this rule went too far (para143)
 He acknowledges that it is always better to begin trying to solve these issues by admin law
principles when they first arise. Not always necessary to resort to Charter or Qc Charter when a
decision can be reached by applying general admin law principles or specific rules governing the
exercise of delegated power. However, there are cases where this is impossible. (para144)
 No matter what although tempting to jump to s.1 analysis, it is important to analyze the right in
issue, define its content, and consider the scope of ecompeting rights (para146)
Delimitaiton and Reconciliation of Guaranteed Rights
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Rights analyzed can actually be pretty complex. In this case for instance we are analyzing
competing interests between freedom of religion and s.7 (“security”) (para147)
Complete s.1 approach is not always desirable when analyzing freedom of religion, although
tempting. Dagenais claimed that a constitutional analysis to not to be mechanically applied
(para150). Oakes is a flexible analysis! (para151) The approaches followed to apply the Charter
must be especially flexible when it comes to working out the relationship btw admin law and
constitutional law (para152).
“Where a decision is contested on the basis that the admin body’s exercise of a delegated
power is vitiated by the violation of a fundamental right, the only way to determine whether
the infringement of the constitutional standard is justified is to consider the fundamental rights
in issue and how they have been applied.”
144
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When dealing with a power that has had an impact on the relationship btw competing
constitutional rights this can be reconciled in two ways (para153)
o 1) Involves defining rights and how they relate to each other
o 2) justification under s.1 of the Charter
Here the first approach is to be dispensed w/: the evidence does not show prima facie
infringement of the right to security of the person. So we need to turn to s.1. (para154)
In case of an individualized decision made pursuant to statutory authority, “it may be possible to
dispense w/ certain steps of the analysis. The existence of a statutory authority that is not itself
challenged makes it pointless to review the objectives of the act. The issue becomes one of
proportionality or more specifically, minimal limitation of the guaranteed right, having regard to
the context in which the right has been infringed. Reasonable accommodation that would meet
the requirements of the constitutional standard at this stage and in this context.” (para155)
Here the prohibition did not meet the constitutional standard.
Little Sisters Book and Art Emporium, BC Civil Liberties Association, James
Eaton Deva and Guy Allen Brice v The Minister of Justice and Attorney General
of BC 2000 SCC 69
Facts:

L is a bookstore that sells books to the gay and lesbian community which consist largely of books
that include gay and lesbial lit, travel info… and erotica. Since it began it has imported 80 to 90%
of all its erotica from the US.
 Code 9956(a) of Section VII of the Customs Tariff prohibits the importation of things that could
be considered obscene under s.163(8) of the Criminal Code
 When things come into Canada: customs officers first determine appropriate tariff classifications
according to s.58 of the Customs Act – the task is to compare imported materials w/ illustrated
manual accompanying a Memorandum which descrbes what is obscene. When something is
declared obscene it has to be subject to redetermination by a special customs unit, and by
further appeal by the Deputy Minister or designate. If they have no more admin measures,
importer may appeal prohibition under .s67 of the Act to a judge of a sup court of the province
where the material was seized, and then of course they have the FC and the SCC. S.152(3) puts
the burden of proof on any question in relation to the compliance w/ the act on the importer.
 In this case: after lengthy trial, TJ found that not only the customs officials had wrongly delayed,
confiscated, destroyed, damaged, prohibited or misclassified materials imported by the
bookstore many times, but these errors were caused by the “systemic targeting” of the sotre’s
importations. He concluded that customs legislation infringed s.2(b) of the Charter, but that it
was justified under s.1. He then denied a remedy under s.52(1), but he issued a declaration
under s.24(1) of the Charter that the Customs leg had at times been construed and appliced in a
manner contrary to ss.2(b) and 15(1) of the Charter.
 CA: dismissed the appeal
Issue: Does the legislation violate s.2(b) and 15(1) of the Charter? [YES] Is it saved by s.1? [YES] Did the
administrative decision violate s.2(b) and 15(1)? [YES]
145
Reasoning
McLachlin (+5)
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Interpretation of s.163(8) of Criminal Code in Butler does not discriminate vs gay and lesbian
community
Constitution does not prohibit border inspections: inspections can involve detention because
Dustoms officials are only human, erroneous determinations. If Parl can prohibit obscenity, and
Butler held that you could, then the prohibition can be imposed at the border and in the
country.
The only material that was prohibited as obscene is material that is subject of criminal penalities
for those engaged in its production or trafficking (or have possession of it for those purposes)
Parl had the right to create this type of government machinery that lay out the broad outline in
the legislation and that left its implementation to regulation byt eh G-in-C or departmental
procedures established by the Minister. A failure at the implementation level can be addressed
at the implementation level.
Parliament can make regulations and work under the assumption that their rules will be
followed: There is no constitutional rule that says that Parl has to deal with Customs treatment
of constitutionally protected expressibe material by legislation rather than by way of regulation
or even by ministerial directive or departmental practice. “Parliament can proceed on the basis
that its enactments will be applied constitutionally.”
There is a 30 day provision within the law that claims that if customs hasn’t taken a decision by
30 days, the classification of the importer applies. This rule has been put in place to protect
importers – sometimes customs can act very slowly. Parl had the option of fixing this section if
they wanted.
There is nothing in the act that says that redetermination should take longer than 30 days, and if
it does, it is not in accordance w/ the act.
A court is the proper forum for resolution of an allegation of obscenity: the deparmten had
their chance to determine whether ti could establish on a balance of probabilities that the
material was obscene. Since at the departmental level there were no procedures for taking
evidence, this requires the appeal to the court in obsceneity matters to binterpreted as an
appeal by way of a trial de novo.
The TJ could find that the appellants suffered differential treatment when compared to
importers of heterosexual explicit material, or even other bookstores that carried some of the
same titles.
Sexual orientation is definitely analogous ground to the listed personal characteristics of s.15 of
the Charter, even if not listed.
Bookstore was entitled to the equal benefit of fair and open customs procedure, and they were
adversely affected in comparison to other individuals importing comparable publications of
heterosexual nature. More generally, there was no evidence that homosexual erotica is
proportionately more likely to be obscene than the heterosexual stuff, nor that they deserved to
be treated as they were. They had the right to import the material.
Although here only the interests of gay and lesbian community were targeted, other vulnerable
groups may be at risk to suffer from overzealous censorship.
The appellants should not suffer from harassment because their erotica came from the US (note
that this erotic is perfectly lawful within Canada)
146

The source of s.15(1) Charter violation is not the Customs legislation itself: Nothing on the face
of it or in its necessary effects contemplates or encourages differential treatment based on
sexual orientation. The differentiation here was made at the administrative level in the
implementation of the legislation.
 Much discretion is grated in the administration of the Act from customs officials to the Minister,
but “it is well established that such discretion must be exercised in accordance w/ the
Charter.”
 Many of the problems that occurred could have been dealt w/ the institutional arrangements by
regulation  but it was not done. Yet, even if this was not exercised, the validity of the statute
itself cannot come under attack.
 Customs legislation (except reverse onus provision of s.152(3)) infringes s.2(b) of the Chater, and
it is saved by s.1. “Customs officials have no authority to deny entry to sexually explicit material
unless it comes within the narrow category of pornography that Parliament has validly
criminalized as obscene. With respect to lawful publications, the interference sanctioned by
Parliament was limited to the delay, cost and aggravation inherent in inspection, classification
and release procedures.”
Iacobucci (+2, dissenting in part)
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Butler’s test is agreed with.
Application of the Customs legislation has discriminate against gays and lesbians in a manner
that violated s.15 of the Charter. Customs legislation does not violate the Charter for the
majority’s reasons.
Legislation itself violates the charter in this case: As conceded by the gov, Custom’s legislation
violates s.2(b) of the Charter. The legislation has been administered in an unconstitutional
manner, but it is the legislation itself, and not only its application that is responsible for the
constitutional violations. A legislation must provide the sufficient safeguards to make sure that
gov action will not infringe constitutional rights. “The issue is not solely whether the Customs
legislation is capable of being applied constitutionally. Instead, the crucial consideration is that
the legislation makes no reasonable effort to ensure that it will be applied constitutionally to
expressive materials.”
The gov’s burden under s.1 is to justify the actual infringement, not simply that occasioned by
some hypothetical ideal of the legislation. Examining such a ahypothetical ideal runst eh risk of
allowing even egregious violations of Charter rights to go unaddressed.
Where the challenges is to the procedures by which the law is enorced, the fact that far more
materials are prohibited than intended is very relevant. Some of the materials were
unnecessarily seized. This determination did enagage the values underlying the right to freedom
of expression under s.2(b). Although a more deferential approach is due where the gov
mediates btw groups as a social policy maker, the court cannot abdicate its duty to demand that
the gov justify legislation limiting charter rights.
Substantive standard in S.163(8) of the criminal code as applied by customs is intelligible, and
the limit is prescribed by law. They have a pressing and substantial objective (limit importation
of obscene materials to enter the country). Rational connection exists (preventing obscene
materials from entering the country). But it is not minimally intrusive: customs leg failed to
acknowledge effectively the unique Charter concerns raised by the expressive materials. Their
only accommodation is to get the Superior Court under s.67 to revise the conflict. This is
insufficient because there is a fundamental Charter right at stake.
147
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If we are to restrict expressive freedom, it must be done w/ care, especially whent eh nature of
the interference is one of prior restraint, not subsequent silencing through criminal sanction. i.e.
there are insufficient safeguards to protect the people from having their charter right violated!
A minimally instrusive scheme would esure that those enforcing the law actually obey its
dictates. The fact that they were just not there “confirms the inadequacy fo the current
scheme”
The absolute discretion provided for in this regime cannot be said to be minimally intrusive. The
person has no clue what they are doing.
Moreover, the deleterious effects of the existing customs regime outweigh its benefits: there is
a very high rate of error, detentions have had a substantial impact on Canadian’s lives.
Remedy: strike down s.9956(a) of the Customs tariff, because of the systemic errors of
administration. There are many other things that parl can do.
Lake v Canada (Minister of Justice), 2008 SCC 23
Facts:
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Issue
In 1997, L committed a number of offenses in Can related to trafficking crack cocaine and also
sold crack cocaine to an undercover officer from Ontario in Detroit.
In all he was charged w/ 6 offenses, including conspiracy to traffic in crack cocaine, but he was
not charged w/ trafficking cocaine in relation to the Detroit transaction.
He pled guilty.
Upon sentencing, he agreed w/ the joint recommendation for a sentence at the low end of the
range w/ respect to these types of offences because he faced a strong likelihood of additional
conviction in the US.
After he served time in Canada for 3 years, US requested that he be extradited so that he can
stand trial in Detroit for transaction.
He was committed for extradition, in 2005 Minister of Justice ordered his surrender.
CA dismissed application for JR
Reasoning
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The Minister’s reasons for his decision to surrender the appellant were sufficient to allow the
appellant to understand the basis for the decision and the reviewing court to assess the validity
of the decision. He is required to give L reasons for his decision, and to respond to his
submissions, but he is not required to provide a detailed analysis for every Cotroni factor. They
do not have to be given equal weight, and nothing precludes that one issue is determinative in a
given case. i.e. there was nothing unreasonable in the Minister’s decision
Section 6(1) of the Canadian Charter of Rights and Freedoms is prima facie infringed by a
decision to surrender a Canadian citizen, but the infringement can generally be justified under
s. 1 of the Charter.
Assessment of the Minister’s decision to surrender a fugitive is a form of admin law review
under s.57 of the Extradiction Act, and applicable SR is reasonableness (Minister has superior
expertise).
148
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Legal threshold for finding that a surrender violates s. 6(1) of the Charter is evidence of
improper or arbitrary motives for the decision not to prosecute the fugitive in Canada. Thus
minister has much deference. Fact that Minister is not empowered to grant constitutional
remedies does not determine the applicable standard.
Note how they are not doing a s.1 analysis: “The assessment of whether a surrender violates
s. 7 of the Charter similarly involves balancing factors for and against extradition to determine
whether extradition would shock the conscience.” (i.e. Minister must balance indvd’s
circumstances and the consequences of extradition vs seriousness of offense and ensuring that
Can is not merely a safe haven from justice) Thus “[t]he Minister’s decision is largely a political
decision and falls at the extreme legislative end of the continuum of administrative decision
making. Interference with a Minister’s decision should be limited to exceptional cases of real
substance.”
Giving deference to Minister’s assessment of constitutional validity does not unacceptably
attenuate JR. We need to determine whether it falls within range of reasonable outcomes. So
need to uphold unless unreasonable.
Application to the facts: the Minister’s decision of sending him to Detroit was not unreasonable.
His charge was not high enough to bring some concern, plus the sentencing judge that had
prosecuted his appeal took the possibility of his extradition into account when sentencing.
Minister’s deference to the U.S. owing to the fact that the Detroit transaction occurred within its
territory provides a sufficient basis for concluding that the decision to surrender the appellant,
including the decision that the extradition would not violate s. 6(1) of the Charter, was
reasonable.
Doré v Barreau Du Québec [2012]
Facts: D acted as counsel in criminal proceedings. He appeared before Boilard J. in the Superior Court of
Quebec seeking a stay of proceedings, or release of client on bail. B said about D that ‘an insolent lawyer
is rarely of use to his client’. The day after leaving court D sent a personal letter to B where he called him
a whole bunch of names. He called him a coward, pedantic, aggressive, petty and said he had no social
skills. He also called him ‘loathsome’ and arrogant. In the written judgement, which came out later B
accused D of ‘bombastic rhetoric and hyperbole’ and ‘impudence’. He also said that his application was
‘totally ridiculous’ and that he was obsessed with a narrow vision of reality which did not accord with
the facts. Mr D sent his letter to the chief justice who forwarded it to the disciplinary committee. He also
made a complaint about him to the Canadian Judicial Council. D was disciplined by the Syndicat under
the code of ethics which required him to act with dignity. They found that his letter had little expressive
value and that the privilege of being admitted to the bar required an exchange that they may have to
curb some of their freedom of expression. B ended up being disciplined by the CJC as well for making
unjustified derogatory remarks.
Issue: Was the tribunal decision unconstitutional under freedom of expression?
Analysis:
There is some confusion about the appropriate framework to be applied in reviewing administrative
decision for compliance with Charter values. Some use s 1 some use a traditional judicial review analysis.
In Slaight Lamer used the Oakes test to determine whether an administrative decision as constitutional.
149
Lamer did not believe that administrative law could handle charter violations. Criticism of the Slaight
decision indicates that many scholars thought that bypassing judicial review in these cases was a bad
idea because administrative law has been specially developed for reviewing administrative decisions,
and that bypassing administrative law in these cases reduces the role of administrative law (para 27, 33).
However in Baker, HD included charter values in the Baker analysis, importing charter values into the
process of judicial review. Following Conway, administrative tribunals with the power to decide
questions of law have the authority to apply the charter and grant charter remedies.
As administrative law has developed it has become unnecessary to retreat to a s 1 analysis because now
administrative law requires the court to investigate decisions in light of constitutional guarantees and
the values they reflect (para 35). Administrative decisions are always required to consider fundamental
values. The charter is simply a reminder. The approach used when reviewing the constitutionality of a
law should be distinguished from the approach used for reviewing an administrative decision that is said
to violate the rights of a specific individual. In any case, some of the aspects of the Oaks test are poorly
suited to review discretionary decisions. It is difficult to determine the ‘pressing and substantial
objective’ of the decision. The administrative law provides decision makers with a more flexible
approach to charter values.
The standard of review for the constitutionality of a law is correctness (43). However correctness should
not be used to determine whether an administrative decision-maker has taken sufficient charter values
in when making their decision. For professional misconduct in particular the courts have adopted a
reasonableness standard. Thus applying Dunsmuir principles, reasonableness will remain the standard
for disciplinary panels. Just because there are charter principles at stake does not make for a different
standard.
The starting point of the analysis is the expertise of the tribunals in connection with their home statutes.
Those working day to day with complex administrative schemes will have expertise. The rational for
judicial restraint in these cases is not changed because there is a constitutional issue in play. These
tribunals have an advantage when applying the charter to a specific set of facts and in the context of
their enabling legislation. Gives examples of where courts have given deference to admin tribunals
dealing with charter issues including lake (49-50). The alternative, using correctness any time a charter
value is in play, will lead courts to retrying a range of administrative decisions that would otherwise be
reasonable (What is so bad about this if is appropriate? What about a dialogue with tribunals? See
things that were in the book about this pg: 340 – on a correctness review the courts could be in dialogue
with the tribunal). They say that there would correctness applying to too many tribunals.
The decisions of legal disciplinary bodies offer a good example of the problem of applying a correctness
review whenever charter values are at stake. Most ethics breaches invoke freedom of expression.
Despite this fact, deference is still justified on the basis of the decision-maker’s expertise and its
proximity to the facts of the case. Even when a charter value is engaged the tribunal will still be in the
best position to weigh it based on the specific facts of the case (54).
150
Tribunals must balance the charter values with the statutory objectives. 1) the decision-maker should
consider the statutory objectives. EG: in lake it was the importance of Canada’s international
relationships with foreign governments and the suppression of international crime. 2) the decision
maker should ask how the charter value will be best protected in view of the statutory objective. This is
the core of the proportionality exercise. The decision maker will have to balance the severity of the
interference with statutory objectives (but what if the decision maker does not have to be impartial?).
This is the role of the Oakes test, so it aligns. On judicial review the question is whether in assessing the
mipact of the charter protection, the decision reflects a proportionate balancing of the charter
protections at play. If the decision-maker has properly balanced the relevant charter value, the decision
will be found to be reasonable.
Application
The charter value in this case is freedom of expression, and specifically how it should be applied in the
context of a lawyers professional duties. The code of ethics sets out a series of broad standards that are
open to a wide range interpretations dealing with lawyer civility. In dealing with the boundaries of
civility the severity of the conduct has to be assessed in relation to the expressive rights guaranteed in
the charter. In these cases we are balancing the need for civility in the legal profession with the
fundamental importance of the open and even forceful criticism of our public institutions. Disciplinary
bodies must show that they have given due regard to the importance of the expressive rights at issue,
both in the lawyers right to expression and the public interest in open discussion. The question before
the court is whether the conclusion that the code of ethics required a reprimand was warranted. To
assess this the court must consider whether the result reflects a proportionate applicatnio of the
statutory mandate with D’s right to expression.
The disciplinary council recognized that a lawyer must have total liberty and independence to fight for a
clients rights. However they were conscious of the fact that the code of ethics may restrict a lawyers
expressive rights. In D’s case the judge was called loathsome, arrogant a coward, pedantic, petty etc. In
these circumstances the disciplinary council found that D’s letter warranted disciplinary action. In light
of the excessive degree of vituperation in the letters context and tone, this does not represent an
unreasonable balance of D’s expressive rights with statutory objectives.
Held: Appeal dismissed.
Chapter 12, The Charter and Administrative Law, pp438-48
Authors: Pless and Fox-Decent
IV. Agency Jurisdiction over the Charter



2 main question dealt w/ in this section
whether admin agencies have auth to interpret and apply their enabling leg for the purpose of
refusing to give effect to provisions found to violate the charter
authority of admin agencies to grant remedies under s.24(1)
151
A. The Old Trilogy and “Jurisdiction over the Whole Matter”

Trilogy of cases (Douglas/Kwantlen Faculty Assn v Douglas College, Cuddy Chicks Ltd v Ontario
(Labor Relations Board), Tétreault-Gadoury v Canada (Employment and Immigration
Commission) were the first cases where the issue of whether an admin tribunal could apply the
Charter.
 LasF said in them that yes, and that s.52(1) authorizes “to both apply the Charter to their
enabling legislation and refuse to give effect to provisions they determine to be inconsistent
with it.” (438)
 SCC did claim that it retained authority to review agency determinations of Charter issues on a
standard of correctness
 For an agency to be allowed to interpret such questions of law, it must be expressly mentioned
in the enacting legislation that they have the “general power to consider questions of law” (439)
 Majority were careful to say that agency jurisdiction over the Charter did not offend the
separation of powers, but Lamer in his concurring judgment in Cooper was fearful of this
problem (could this be letting the executive decide its own jurisdiction? In a way it would mean
that the legislature and the executive would invert their relationship)
 Cooper: case involving wehther or not the Canadian HR commission could apply s.15 of the
Charter, court decides that there was no explicit legislation enabling so no, therefore this case
would have had to go directly to the courts. McL dissented claiming that all law and law-makers
must conform to the Charter
B. Vindication of the Dissent in Cooper?


Later cases seem to have adopted the dissent. The leading case is Martin
Facts: Compensation board only provides a limited remedy to those people suffering from a
chronic injury. The complainants in this case claim that the legislation infringed s.15(1).
 Appeals tribunal said it had jurisdiction over the issue, and adjudicated w/o giving effect to the
infringing legislation. The issue of jurisdiction was challenged by the Board.
 Court found that admin tribunals have jurisdiction, both explicit and implied, to decide
questions of law arising under a legislative provision and to determine the constitutional validity
of that provision (i.e. overruled Cooper) (440)
 What is new about Martin is that the new question on this issue became “whether the
empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret
or decide any question of law”. There wasn’t going to be a distinction between general and
limited questions of law, but the inquiry was restricted to the question of whether the tribunal
had the power to decide questions of law arising under the challenged provision (441).
 If the legislation does not expressly grant jurisdiction to consider questions of law, the
jurisdiction may still be present implicitly and inferred from a series of factors (see 441), the key
question whether the legislation intended that the tribunal have jurisdiction to decide questions
of law. The question of intent is a rebuttable presumption.
 But tension remains, especially since legislatures can amend and enact law to withdraw
jurisdiction over the Charter. Some legislatures have actually removed this altogether (e.g.
Admin Tribunals Act BC). Legislatures seem to claim that it would be too expensive for people to
hire the appropriate legal council in these situations.
 Do the admin tribunals really require consent to review charter issues? I don’t think so!
Remember, regardless of whatever, they have to conform to the Charter!
C. Remedies under s.24(1)
152

In Conway, Abella followed Martin to determine a new approach as to whether a tribunal can or
not grant specific remedies under 24(1)
 Some sense in which Conway is to s.24.1 what Martin is to 52.1: “Court relaxes the prior test for
determining whether a board or tribunal has jurisdiction to grant the relevant remedy.” (443)
 In Conway, Abella held that the board had jurisdiction to grant Charter remedies generally, but
not one of absolute discharge
 Test is
o Determine whether board is a court of competent jurisdiction within meaning of s.24(1)
(i.e. can it generally grant remedies?)
o If yes, then inquiry moves to whether the board has jurisdiction to grant the remedy
sought (to be determined by legislative intent, as discerned from the board’s statutory
mandate, structure and function)
 Essentially, although it was marketed as different, the approach remains the same in practice.
 Seems like people can only request those remedies and orders that are available under the
statute (and not the list available under the Charter)  later cases should determine whether
agency has jurisdiction to grant remedies under s.24(1) of the Charter
V. Conclusion



We have an uncertain relationship with the Charter and admin law
Doré seems to guide to a more stable future
Scope of auth of admin tribunals to apply Charter is increasingly clear and arguably more
generous
Martin v Workers’ Compensation Board of Nova Scotia and AG of Nova Scotia
2003 SCC 54
Facts:





L and M suffer from disability of chronic pain attributable to a work-related injury
M was a foreman and sustained a lumbar sprain. He attempted to return to work several
months following the incident, but he was eventually required to stop due to the pain.
He attended a work conditioning and hardening program, and during this time the
compensation board gave him temporary disability benefits and rehabilitation services. When
these were discontinued he sought review of the decision, but the board denied his claim.
L was a bus driver that injured her back and right hand when she slipped and fell from the
bumper of her bus. She received temporary disability benefits. She tried to return to work, but it
was not possible She was denied permanent partial disability award and vocational
rehabilitation assistance. M and L both appeal to the Workers’ compensation appeals tribunal
on the rounds that portions of s.10B of the Workers Compensation Act infringes s.15(1) of the
Charter. Provisions exclude chronic pain from reg workers’s compensation system and provide
instead a four-week fundctional restoration program beyond which no further benefits are
available
Appeals tribunal agreed to hear the case, the board challenged the jurisdiction of the board to
hear a charter issue
153


Appeals tribunal affirmed its jurisdiction to apply the Charter, and allowed M’s appeal on the
merits that there had been a violation that failed s.1. M’s case succeeded but not L.
CA allowed the Board’s appeals finding that the appeal’s tribunal did not have jurisdiction to
consider the constitutional validity of the act, and that the chronic pain provisions did not
demean any human dignity of the claimants and therefore did not violate s.15(1) of the charter
Issue:
1. Does the compensation appeals tribunal have authority to refuse to apply on Charter grounds
benefits provisions of its enabling statute? [YES]
2. Does the compensation act infringe s.15.1 of the Charter? [YES]
3. If yes, is this saved by s.1? [NO]
Reasoning (Gonthier):

In sum: S.10B of Act and Regulations infringe s.15(1) of the Charter, and is not justified under
s.1. General declaration of invalidity is postponed for 6 months, and decision rendered by
Appeals tribunal is reinstated
The policy adopted by this Court in the trilogy

There are strong policy reasons as to why admin tribunals should be allowed to make
determinations and refuse to apply a challenged provision found to violate the constitution
(para270.
 Why?
 First: Constituion = supreme law of Canada which makes the question of constitutionaly validity
inhere in every legislative enactment. Techncially, a provision is invalid if it is unconstitutional
from the moment it is enacted, and this is by operation of 52.1 of the constitution (para28)
Canadians should be allowed to their Charter rights w/o having to pass through a parallel court
system (para29)
 Second, Charter disputes arise through a thorough understanding of the objectives of the
legislative scheme being challenged as well as the constraints it faces and the consequences of
the proposed constitutional remedies (para 30)
 Third, their decisions will be reviewed on a correctness standard and constitutional remedies
available to admin tribunals are limited and do not include general declarations of invalidity (i.e.
a declaration of invalidity will not be binding on future courts) “To allow an administrative
tribunal to decide Charter issues does not undermine the role of the courts as final arbiters of
constitutionality in Canada.” (para31)
Applicable Law



General approach has been developed by the court for these cases that rests on the principle
that “since administrative tribunals are creatures of Parliament and the legislatures, their
jurisdiction must in every case “be found in a statute and must extend not only to the subject
matter of the application and the parties, but also to the remedy sought” (para33)
Appeals tribunal did have the jurisdiction to consider the constitutionality of the challenged
provisions of the Act and Regulations
“Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law
arising under a legislative provision are presumed to have concomitant jurisdiction to decide the
constitutional validity of that provision.” (i.e. if given the permission, admin tribunals can decide
on the constitutionality of a law)
154
o





So the question is: “whether the empowering legislation implicitly or explicitly grants to
the tribunal the jurisdiction to interpret or decide any question of law.”
 This will bring in an automatic presumption, unless legislator actively sought to
remove power (not high threshold) (para36)
 The question really is more at whether or not the power was granted rather
than at how broad the granting of the power must be.
There is no need to draw a distinction btw general and limited questions of law (para45)
If it is explicit it must be found in the statute; if it is implicit it must be discerned by looking at
the statute as a whole. (para41)
o 1) Relevant factors: statutory mandate of tribunal, deciding whether deciding questions
of law is necessary to fulfill effectivey the mandate, interaction of the tribunal in
question w/ other elements of the admin system (i.e. tribunal adjudicative in nature,
practical considerations such as capacity to consider questions of law).
 Note: a practical consideration will not override a clear implication from the
statute itself.
o 2) Possible rebuttal of presumption (see paras 42-43): A person trying to prove that the
legislature never intended to grant power of reviewing constitutional questions will be
able to rebut the presumption that an adjudicator can review constitutional questions
by pointing at the provision in the statue, or showing how the scheme really excludes
these types of provisions. In all though, it must rise from the statute itself rather than
external considerations. Cooper is overruled (para42).
o Statement of test para48
Here: Appeals tribunal could properly consider and decide the Charter issue (i.e. the
constitutional validity of their own provision) in this case
o Legislature conferred on Tribunal expressly the authority to decide questions of law (see
s.252(1) of the Act) (see para 49-57) + this is confirmed by other provisions in the Act
(paras59-65)
Also, the provisions infringed s.15(1) of the Charter (CA erred) (para66-106)
o Differential Treatment (para71-4) There is clear deferential treatment that is made to
the group of employees that suffer from chronic employment-related injuries, because
they were completely excluded from the application of general compensation provisions
of the Act and they were limited to the applicable benefits to a four-week Functional
Restoration Program for workers injured after Feb 1st 1996. So by making a differential
treamten ton a physical disability, this goes against their 15.1 rights.
 Note: Court rejects the argument that because both claimants suffer from
physical disabilities they will not be able to benefit. “Differential treatment can
occur on the basis of an enumerated ground despite the fact that not all
persons belonging othe relevant group are equally mistreated.”
o Provision is also discriminatory because it does not correspond to the actual needs and
circumstances of injured workers suffering from chronic pain, who are deprived of any
individual assessment of their needs and circumstances.
o Schme also ignores the needs of those who despite treatmen remain permanently
disabled by chronic pain.
o This does not help this group of employees at all: “the denial of the reality of the pain
suffered by the affected workers reinforces widespread negative assumptions held by
employers, compensation officals and some members of the medical profession.” (509)
This goes against their dignity.
Not justified under s.1 (107-17)
155
o
o
o
Substantial and pressing
 1) Maintaining the financial vialibyt of the Accident fund is not pressing and
substantial: budge considerations do not justify a Charter right violation, even if
relevant in determining degree of deference to be given to gov choices based on
a non-financial objective
 2) Developing a consistent leg response to chronic pain claims cannot stand on
its own: mere admin expedience cannot override charter right
 3) The only substantial and pressing objective is to avoid fraudulent claims
based on chronic pain (i.e. was the pain actually caused by a work related
incidents)
 Rational connection exists
 But not minimally impairing
o Challenged provision makes not attempt to determine who is
genuinely suffering and needs compensation and who might be
abusing the system. They are ignoring the real needs of some of
the workers.
 4) Implement early medical intervention and return to work as the optimal
treatment for chronic pain
 Possible to assume that it is substantial and pressing, and rational
connection
 But no minimal impairment: “No evidence indicates that an automatic
cut-off benefits regardless of individual needs is necessary to achieve
that goal.”
So in all not proportional
In all: Provisions are inconsistent w/ the Constitution and are of no force or effect by
operation of s.52(1) of Constitution 1982 (they are however allowed to remain in effect
until a solution is thought of)
Montambault c Hôpital Maisonneuve-Rosemont, 2001 RJQ 893
Facts:





M is a doctor at the Centre hospitalier Maisonneuve-Rosemont (CHMR) (he started in 1977)
He becomes interested in geriatrics, and eventually is named chief of the geriatrics evaluation
service in 1986 (even if he does not really have a certificate in this specialty)
He has little contact with patients and is mostly involved w/ the theoretical aspect of geriatrics
and the organization of the gerontology congress.
He does not seem to play nice w/ his other colleagues, and after many complaints of
“inacceptable accidents”, head doctor of CHMR proposes that M take a sabbatical w/ pay to
consult a psychiatrist for an evaluation. M goes to a psychiatrist, and is determined to have a
borderline narcissistic personality. Psychiatrist remarks as well that M refuses to acknowledge
his problems and that therefore psychotherapy would be useless.
Several meetings later head doctor asks M to quit, and M refuses. The president of the Conseil
des médecins, dentists et pharmaciens (CDMP) asks him to quit, but he refuses to do so. M is
then told that disciplinary action will be taken against him.
156

The president of CDMP and CHMR then decide to suspend the practice privileges of M
immediately. Their reasoning is that they rather prevent than allow another crisis to occur.
 M is advised by CHMR to turn his practice towards the community health department, where he
would not be meeting patients or directing a team.
 M equally refuses, he fears that if he does not keep his title as chief of service of geriatrics, his
credibility will be affected.
 Eventually, the disciplinary committee hears the complaint against M, and they recommend that
the suspension of privileges of practice be annulled. CDMP agrees, but they accept the
destitution as chief of service and recommends that reintegration is done at the community
health department.
 Administrative council (i.e. bord of directors) hear both M and his lawyer: they understand that
M will only accept to be reintegrated as chief of geriatrics. They refuse to do so, and contrary to
the recommendations they take away his practice privileges. Simultaneously, M is informed that
he failed the oral examination at the geriatrics clinic of the Corporation professionnelle des
médecins du Québec.
 M then takes his suspension of his practice privileges to the Commission des affaires sociales
(CAS), him having lost his title as chief is not revised.
 Following advice from his lawyer, M accepts to follow a therapy
 M starts working part time in other places. He is then excluded from the organizing committee
of the gerontology congress.
 His health starts deteriorating and he is hospitalized. He decides to sue CHMR claiming it was
their fault.
 CAS then annuls the emergency suspension (there was no risk against his patients), but accepts
the decision that revoked his privileges. CAS suspends him for three months, claiming that M
was not undisciplined, but that it was more a psychiatric problem. They don’t want the
punishment to be severe.
 CHMR requests JR, SupCourt rejects their request
 Lawyer and M request CHMR that M be reintegrated, but to consider him merely on sick leave,
but this is refused. M cannot work, he is hospitalized continuously, and eventually he commits
suicide. His mother and brother continue the action blaming CHMR for his death.
 2 thesis exist
o One doctor says: The emergency suspension, the revocation of the hospital privileges,
and the JR basically caused M’s depression, and his collapse.
o Second doctor says: his extremely deteriorated condition caused it
 SupCourt: Accepts the opinion that his psychiatric problems are personal, and that they were
not caused by the suspension of privileges. However, they also find that the president of CMDP
acted negligently by suspending him immediately and not waiting for an inquiry to be made to
see if such an emergency really existed. The CHMR by ratifying this decision became equally
responsible. They also find fault in what concerns the revocation of privileges of M.
 Taking into account the mental health of M, SupC concludes that M should have followed
treatments, and could not have worked full time when he was immediately suspended. So
CHMR only needs to pay half. For the period that CAS told him not to wrok, he cannot receive
anything. For anything after CHMR is not responsible. Court gives M legal fees.
 M’s family appeals claiming thin skull rule, and that they must receive all damages.
 CHMR claims that as a quasi-judicial organization, they have an immunity in which they cannot
be condemned to pay an indemnity related to decisions that were taken in GF.
Issue (relevant for us): Does the CHMR benefit from immunity when making decisions taken in GF?
157
Reasoning:
Juridical link between CHMR and M


Question here is what the link btw M and the hospital is
They evaluate a series of criteria and determine that M is not merely an employment K, i.e. he
has no Ktual liabitity versus the hospital. The question thus is whether he has an ECO action
 CHMR is claiming that their quasi-judicial nature would make them immune
Defense of immunity and the qualification of the function

Judicial and administrative tribunals are distinct. Quasi-judicial tribunals will benefit from an
immunity that protect from a process in the case of BF (para48).
 The distinction between an admin and judicial function has been left behind (c.f. Nicholson)
 Yet should we retain this distinction to determine if an administrative tribunal should benefit
from immunity towards law suits linked to faults? (para51) No. “La qualification des fonctions,
est à mon avis, inutile dans le cotnexte de l’étude de la responsabilité d’un corps public.”
(para53)
The status of public bodies in Quebec law


The immunity that is invoked here has origins in our consitutitonal law
Hospitals have been created by law – as public bodies they are attached to the common law
(para55), and therefore they are attached to public law. The LSSSS does not deal with ECO
obligations of the doctors. Therefore, CHMR has no real immunity protection by statute –
therefore common law and Quebec private law must apply (para58)
Immunity evolution US and UK

From public law comes the dreaded policy/operational distinction. Deschamps goes over its
evolution – para54-74
Canadian approach and the coming together with the control on legality






Distinction has been used in Canada frequently. It is more that the decision rests on whether to
grant immunity lies on an examination of the circumstances (para75)
Takes the approach in X (minors) (para76):
o 1) Study statutory dispositions and evaluate the framework of the public body’s exercise
of power
o 2) Evaluation of discretion itself (here we observe the nature of the decision) – was it
unreasonable?
On one extreme purely political decisions are not subject ot evaluation. When the body acts
within their discretion no intervention is allowed. It is only if there has been a violation of
discretion.
This way of proceeding echoes the continuum used to decide the internvention of tribunals for
the control of legality of state decisions (para78)
Basing herself on Pushpanathan, she suggests that the concept of continuum used to control
legaly should also be used to determine if for an act or decision, a public body will also be
exposed to determine whether a tribunal should intervene.
In the context of searching for an equilibrium between the protection of individual rights of
reparation and the preservation of the independence of administrative decision makers  we
need to get rid of the traditional distinction between the quasi-judicial function, and the
158
administrative function to decide if a decision-maker will benefit from immunity. A more
nuanced approach must be used, specifically one the “continuum” approach used in matters of
norms of control is appropriate to determine whether a tribunal should intervene or not.
(para81)
 So thus, once it has been determined that a court can intervene because either the decision was
unreasonable, or because the discretionary act was not within the discretion of the public body,
the tribunal must verify if the act in question constitutes a contravention of a civil norm.
Fault in Quebec Civil Law


In this case, it falls under the CCLC, therefore article 1053 applies (i.e. 1457)
The only way to repair what was done to M, is to look into the CCQ (CAS being limited in its
functions, the only way for him to get retribution is through the ordinary court system)
Application to the Facts

LSSSS and regulations: CMDP’s authority to immediately suspend should be found in article 110
of the regulations of the LSSSS, and his power to revoke privileges, in article 130; 106-9
 Immediate suspension (para91-99): Deschamps concludes that it is not protected from the
intervention of the courts, 110 does not seem to confer that much discretion, and it seems that
the immunity is not applicable here.
 Revocation of privileges (para100-23): Revocation was within the power of the administration
(para109), and they could use disciplinary measures to sanction him (para113). Furthermore,
they were also not unreasonable, and they are protected by the immunity of the common law
(para122)
Damages
M gest no damages, but he does get legal fees paid… up to 35 759,84$ dollars… fiew!
Grenier v Canada 2005 FCA 348
Facts:
 Inmate attacks guard and gets solitary confinement for 14 days
 Instead of passing via JR, he sues the crown directly
Issue: Can he do this? [NO]
Reasoning:



A litigant who sought to impugn a federal gency’s decision was not free to choose between JR
proceeding and an action damages: s.18 of the federal courts act required him to pass by JR. So:
There is no freedom of choice, if he must pass by JR, he must pass by JR.
Allowing such a remedy by action for damages would disregard Parliament’s intention, and
would lead to duplicity of jurisdictions hta parliament sought to avoid by grating exclusive
jurisdiction to federal court by s.18
“IT would alos allow an infringementof the principle of finality of decsions and legal security it
entailed” (i.e. res juricata), it would promot indirect challenges to admin decisions, which ought
not to be encouraged
159

Had the inmate proceed by way of JR, the prothonary would have no jurisdiction to review the
lawfulness of the institution head’s decision and set it aside, which would make the crown liable
in damages
Pronothary (one who first reviewed decision) was wrong in not applying a correctness standard)
AG and Jim Blackler v Michiel McArthur [2010] 3 RCS
Facts:
 Prisoner again is in solitary confintement seeks damages
 SupC: Rejected based on grenier
 AC: overtunrs
Reasonign

Telezone: textual, contextual and purposive interpretation of FCA does not support the view
that a plaintiff who claims to have suffered compensable loss as a result of an admin decision
must first have lawfulness of the decision determined by the federal courtsup.court is
authorized to consider he validity of M’s detneiotn in the context of his damages claim, as well
as the impact of any valid detention order on crown liability
Collateral attack doctrine: does not support the AG’s jurisdictional challenge in light of the explicit
statutory grant of jurisdiction to the provincial sup courts in the federal courts act, where “relief is
claimed against he federal crown, as well as the provisions of the crown liability and proceedings act
Chapter 15: The Federal Court and Administrative Law
I. Introduction

The federal courts are distinguished by two qualities
o They exercise a monopoly on judicial review
o Because of the narrowness of their jurisdiction they are the administrative law courts
 Federal court judges are thus the closest to being administrative law experts in
administrative law
ii. structure and jurisdiction of the Federal Courts
A. Federal Courts as Statutory Courts

They are created by federal statute and exercise all their powers related to this statute
o Constitutionally parliament has the power to create these courts via 101 of the
constitution act 1867
o They are different from the s 96 courts
 S 96 courts are courts of inherent jurisdiction
 Inherent means automatic
o Because the authority and jurisdiction of the federal court only lies in statute they must
have particular regard to statutory authorization in the exercise of their judicial
authority.
160

The key statutory basis is the FCA
B. Administrative Law jurisdiction of the Federal Courts
The federal court of Canada and the federal court of appeal

The FCA constitutes the federal courts
o It creates the federal court and the federal court of appeal
o FCC is the court of first instance
o The federal court of appeal is the appellate court
 However the FCC is not always the court of first instance
 There are a number of administrative tribunals enumerated in s 28 of the
federal courts act for whom are first instance courts appealing directly to the
court of appeal
Federal courts exclusive jurisdiction



S 18 specifics that subject to the above discussed s 28 the FCC has exclusive original jurisdiction
o S 18 is the course of the FCCs vast role in administrative law
o It gives the FCC exclusive right to give classic administrative law remedies
Federal board or commission is defined in s 2
o Board, commission or other tribunal need only be a single person
o As long as that person is deploying powers conferred by a federal statute or under royal
prerogative
However the FCC power is still concurrent
o With provincial superior courts
III. judicial review before the federal courts

The FCA creates a relatively comprehensive guide to the manner of and basis for judicial review
of federal administrative action
o Special rules for standing, limitation periods, grounds of review and remedies
A. statutory appeals


Applicants must exhaust all other remedies, such as statutory appeals, before applying to
judicial review
Failure to exhaust admin appeal may be a basis for the denial of a remedy
Section 18.5

The FCAct adds a more robust bar to judicial review in the fact of some forms of statutory
appeal
161
o
o
o
Where a statutory appeal from an administrative decision maker lies in one of the
bodies listed in that section there can be no judicial review of the same subject matter
covered by that appeal
S 18.5 is rigid bar on judicial review
Where it applies there is no further analysis required
 It ousts the FCC judicial review
 This is normal: why could you go to the FCC when you could go directly to the
FCourt of Appeal
 It includes times when you can make an appeal to the governor in council or
treasury board
The sometimes tricky operation of section 18.5



Sometimes appeals can go to both the FCA and the GIC (Governor in council)
o Example: CRTC decision
 If you appeal to the Federal court of appeal, then there is no more judicial
review
 You would go back down and appeal it in the regular way
 If you appeal to the GIC, the appeal must be exhausted
 But because the GIC is a ‘board or trubunal’ under the FCA then you
could appeal the decision to the FCC
In the first scenario where the statutory appeal is to the Federal court of appeal s 18.5 has the
end effect of creating an appeal –only route.
In the second scenario s 18.5 prioritizes the appeal to GIC over judicial review
o Then once the GIC is done, the task of judicial review re-emerges and can be done by
the FCC
Leave requirements and judicial review

There is no requirement that leave be obtained before an application for judicial review
o One exception is the IRPA under immigration matters
o Judicial review must be commenced by an application of leave to the FCC
o This may or may not be granted
B. Standing


FCC provides that an application for judicial review may be made by the AG of Canada or anyone
directly affected by the matter in respect of which review is sought
o So either the AG, or someone directly affected can apply for JR
 Rights are affected, a legal obligation is imposed on them, or they are
prejudicially affected
However there are some situations so general that it would be hard to envision a situation that
they would directly affect an individual.
162
o


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If standing rules were not relaxed in these circumstances they would immunize the
government from challenge
The applicant must show that
o a serious issue is raised
o a genuine and direct interest in the matter
o no other reasonable way to bring it to court
seriousness encompasses both the importance of the issue and the likeliness of ti being resovled
in favour of the applicant
o a fairly arguable case
the requirement of genuine or direct interest relates in part to the experience and expertise of
the applicant in relation to the subject matter of the litigation
reaonsable and effective means threshold amount to asking if there is a more appropriate
applicant
o it can be denied if there is someone better
o note: a case currently before SCC may require court to broaden this elemen
 it DID – see downtown east side sex workers!!! :-D
limitation periods
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FCA also established an unusually demanding limitation period
o 30 days
Grounds of review
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The most difficult issues raised by the FCC’s admin law role are raised by the grounds of review
available to applicants challenging decisions
o Great care is required in reading the language of 18.1(4)
 In the past some courts have interpreted these as grounds of review
 This view did not survive Khosa
 A majority of the court concluded that s 18.1(4) although clearly
prescribing grounds of review was largely silent on the standard of
review
 Thus it was entirely up to Dunsmuir
 Thus the following observations can be made:
Action without jurisdiction
o Jurisdictional issues are virtually non-existant in administrative law
Procedural fairness
o Determined on correctness
o Nothing unique about s 18.1 in this respect
 However see Bill of Rights
o Also note that the BoR procedural rights dovetail with those provided by cml
Error of law
o Again nothing unique about this ground
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Erroneous finding of fact
o Some courts envisaged this language in favour of patent unreasonableness
o Parliament intended that administrative fact finding gets high deference – khosa
 Consistent with Dunsmuir
Other way contrary to law
o This ia basket clause allowing the evolution of new grounds ofreivew
 Eg: error of discretion
 This is reviewed on reasonableness
Remedies
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FCC has original exclusive jurisdiction over this
The language of 18.1 encapsulates the meaning of the prepogative write of certiorari,
mandamus and prohibition and ordinary remedies of declaration and injunction
o The FCC power to award these is purely discretionary
o In practice they will award relief in similar circumstances to the provincial courts
Conclusion
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The federal system of administrative law is a variant to that applied provincially
o Because FCC courts are statutory they are unusually attentive to a statutory basis for
their authority
o That statutory basis simplifies matters to an important extent by giving guidance on
issues like standing; limitation periods, grounds of review and remedies.
Canada (AG) v Downtown Eastside Sex Workers United Against Violence
Society
Facts: DTESW is a society whose objects include improving working conditions for female sex workers. It
is run by and for current and former female sex workers living in the downtown east side. The majority
of them are Aboriginal. K is a former sex worker currently working as a violence prevention coordinator
in the downtown eastside. She left the sex industry in 2001 she was unable to participate in the court
challenge to prostitution laws when working as a sex worker because of risk of public exposure, fear for
her personal safety and loss of social services, income assistance, clientele and employment
opportunities. DTESW commenced an action challenging the validity of the sections of the criminal code
that deal wit hdifferent aspects of prostitution.
Issue: Can DTESW get public interest standing and can Ms Kiselbach get private interest standing?
Reasoning:
A. public interest standing
the central issue
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if there is a serious justiciable issues as to the laws invalidity, a person need only to show that he is
affected by it directly or has a genuine interest as a citizen in the validity of the legislation and that there
was no other reasonable and effective manner in which the issue may be brought to court. These three
elements are interrelated factors that must be weighed in exercising judicial discretion to grant or deny
standing. These are not hard and fast requirements.
The purposes of standing law
Limitations on standing are necessary. Otherwise shit would be cray. However in a constitutional
democracy there are occasions when public interest litigation is an appropriate vehicle to bring matters
to the court. A purposive approach is taken to the issue of standing. Courts will balance the underlying
rational for restricting standing with the important role of the courts in assessing th legality of
government action.
Scare judicial resources and busybodies
This is the floodgates argument. Want to keep out vexatious litigants and stop from overburdening the
system. However keeping out busybodies may be overstated. Few people bring cases to court when
they have no interest.
Ensuring contending points of view
Second underlying purpose relates to the need for courts to have contending points of view of the
persons most directly affected by the issue. The courts need two sides to present evidence and
arguments fully and skillfully.
Proper judicial role
The third underlying purpose relates to the proper role of the courts and their constitutional
relationship to the other branches of government. The nature of the issue must be justiciable (aka not
something political)
The principle of legality
Refers to two ideas: 1) that state action should conform to the constitution and statutory authority and
2) there must be practical and effective way to challenge the legality of state action. A question of
constitutionality must not be immunized by denying standing. It would be real bad if there were no way
for a question of an alleged excess of state power to get to court. There has to be some way to challenge
legislation. This is why Finlay extended the scope of discretionary public interest standing to challenges
to the statutory authority for administrative action. Law can’t be immune from challenge.
Discretion
Public interest standing has always been resolved through judicial discretion. It involves careful exercise
of discretion through the weighing of the three factors (serious justiciable issue, the nature of the
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plaintiffs interest and other reasonable and effective means). These factors are not a checklist. They are
interrelated considerations to be weight cumulatively in light of their purposes (36).
A purposive and flexible approach to applying the three factors
The court must be persuaded that the three factors all together merit standing. Everthing being equal, a
plaintiff with standing will generally be preferred.
a) serious justiciable issue
This factor relates to two of the concerns underlying the traditional restrictions on standing. Keeping out
the busybodies. Serious issue must a a substantial constitutional issue or an important one. Must be far
from frivolous. When there is at least one serious issue the court will be satisfied, they don’t have to
examine each tiny issue,.
b)The nature of the plaintiffs interest
This factor reflects the desire to conserve scare judicial resources. It is also concerned with whether the
plaintiff has a real stake in the issue (43).
c) reasonable and effective means of bringing the issue before the court
This factor has often been described as a strict requirement see borowski. But it is not always applied so
restrictively. We should not make clear that it is one of the three factors which must be assessed and
weigh in the exercise of judicial discretion. This factor should actually be assessed in light of
considerations that show that this is a reasonable and effective means to bring the challenge to court.
i)The court has not always expressed and rarely applied this factor rigidly
It was clear that there were persons who were more directly affected by this regulatory scheme then
was the plaintiff. The court assesses from a pragmatic and practical view whether it is unlikely that other
more directly affected people would bring the case. Even when standing was denied courts emphasized
the need to approach discretionary standing generously and not by applying the factors mechanically. It
should be interpreted in a liberal and generous manner.
ii)This factor must be applied purposively
It should be applied in light of the need to ensure full and complete adversarial presentation and to
conserve judicial resources. The benefit of contending viewpoints.
iii) a flexible approach is required to consider the “reasonable and effective” means factor
Jurisprudence does not say much about how to assess whether a particular means of bringing a matter
to court is reasonable and effective. The courts will have to consider whether the proposed litigation is a
good use of judicial resources and if they are presented in a context suitable for judicial determination in
an adversarial setting. Also whether it will help to uphold the principle of legality. There is no yes or no
answer.
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Conclusion
The third factor in the public interest standing analysis should be expressed as: Whether the proposed
suit is, in all of the circumstances, a reasonable and effective means of bringing the matter before the
court. This factor like the other two must be assessed in a flexible and purposive manner and weighed in
light of the other factors.
Weighing the three factors
a) serious justiciable issue
there is no dispute that the action rasies serious and justiciable issues. The constitutionality of
prostitution laws is certainly a “substantial constitutional issue”. At this point it is better not to get into
a detailed screening of the merits of particular aspects of the case.
b) the proposed plaintiffs interest
Applying the purposive approach, there is no doubt that this part favours granting public interest
standing. The society has a genuine interest in the current claim. K is also deeply engaged with the
issues.
c) reasonable and effective means of bringing the issue before the court
The chambers judge took a strict approach to this factor. He rejected their submission because they did
not show that there was no other effective way to bring the issue. However the third factor should not
be weighed in this issue. The original court denied standing partially because there was other litigation
going on on a similar thing. The existence of similar litigation is not necessarily enough to deny standing.
Decisions in one court are not binding in another, so litigation in one province might not answer all the
questions. Also the issues raised in the other case are not the same. The perspectives brought by the
challenges are also different. Another concern related to the vunerability of the group. The judge did not
understand why they were too vulnerable for them to come forward as plaintiffs if they were willing to
come as witnesses(71). Being a witness is much different than being a plaintiff. They fear having their
children removed, their community may not know they were involved in sex work. They fear that their
future education or employment opportunities may be harmed.
Therefore the three concerns identified were not entitled to the decisive weight which he gave them.
There are other considerations that should be taken into account on the reasonable and effective means
factor. This case constitutes public interest litigation: issues of public importance that transcend their
immediate interests. Their challenge is comprehensive, it is being pursued with skill and there is no
suggestion that others who are more directly or personally affected have deliberately chosen not to
challenge those provisions. The record supports the claim that they have the capacity to undertake this
litigation.
Conclusion
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All three factors applied purposively favour exercising discretion to grant public interest standing to the
respondents to bring their claim.
Held: appeal dismissed.
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