Admin Law: History, Procedural Fairness and the Rule Against Bias Professor Crane Gabriella Jamieson Fall 2014- FINAL 1. INTRO TO THE ADMINISTRATIVE STATE ..................................................................................................................2 A. ADMINISTRATIVE LAW V CONSTITUTIONAL LAW ............................................................................................................................ 3 B. SCOPE OF ADMINISTRATIVE LAW........................................................................................................................................................ 3 C. THEORY AND THE RULE OF LAW ......................................................................................................................................................... 4 D. THE RULE OF LAW IN THE SCC: A JURISPRUDENTIAL PRINCIPLE.................................................................................................. 6 E. THE FUNCTIONALIST THREAD IN CANADIAN ADMINISTRATIVE LAW .......................................................................................... 6 JUDICIAL REVIEW ....................................................................................................................................................................7 A. SUPERVISORY ROLE............................................................................................................................................................................... 7 B. CONSTITUTIONAL BASIS FOR JUDICIAL REVIEW .............................................................................................................................. 8 2. PROCEDURAL FAIRNESS...................................................................................................................................................8 A. HISTORICAL DEVELOPMENT OF THE COMMON LAW ......................................................................................... 10 Historical Theories ................................................................................................................................................................................... 10 Re Webb and Ontario Housing, 1978 ONCA ...................................................................................................................................................................... 11 B. FRAMEWORK FOR ANALYSING PROCEDURAL FAIRNESS RIGHTS AT COMMON LAW ............................ 12 Knight v Indian Head of School Division no.19 (1990 SCC) ....................................................................................................................................... 12 Baker v Canada (MCI) (1999 SCC) .......................................................................................................................................................................................... 13 Mavi v Canada (Attorney General) (2011 SCC) ................................................................................................................................................................ 13 C. FRAMEWORK FOR ASSESSING PARTICIPATORY RIGHTS .................................................................................. 14 1. THRESHOLD QUESTION................................................................................................................................................. 15 RIGHTS, PRIVILEGES, OR INTERESTS .................................................................................................................................................... 15 LIMITATIONS AND EXCEPTIONS TO THE APPLICATION OF PROCEDURAL FAIRNESS ................................................................... 15 i. “Legislative and General” Decision-Making.............................................................................................................................. 15 CARI v Canada (1994 FCA) ......................................................................................................................................................................................................... 17 Homex v Wyoming (1980 SCC) ................................................................................................................................................................................................ 17 ii. Non-final decision Making ............................................................................................................................................................... 18 Re Abel (1979 ONSC) .................................................................................................................................................................................................................... 18 Irvine v Canada (1987 SCC) ....................................................................................................................................................................................................... 18 Taiga Works v BC (2010 BCCA) ............................................................................................................................................................................................... 19 iii. Public Office Holders, Emergencies, and Contractual Relationships .......................................................................... 19 Canadian Arab Federation (2013 FC) ................................................................................................................................................................................... 19 v. Justiciability (Royal Prerogative) ................................................................................................................................................. 20 2. WHAT LEVEL OF PF IS REQUIRED? ............................................................................................................................ 20 1. The nature of the decision and the process followed .......................................................................................................... 20 2. The nature of the statutory scheme ............................................................................................................................................ 20 3. Individual Impact................................................................................................................................................................................. 20 4. Legitimate Expectations ................................................................................................................................................................... 20 Re CAP (1991 SCC) ......................................................................................................................................................................................................................... 21 Mount Sinai Hospital v Quebec (2001 SCC) ....................................................................................................................................................................... 21 Mavi (2011 SCC) .............................................................................................................................................................................................................................. 22 5. Deference to procedures ................................................................................................................................................................... 22 3. REQUISITE LEVEL ACCORDED? ................................................................................................................................... 23 1 CONTENT AND CHOICE OF PROCEDURES ............................................................................................................................................. 23 PRE-HEARING .................................................................................................................................................................................................................................. 23 1. Notice ....................................................................................................................................................................................................................................... 23 2. Pre-hearing disclosure ................................................................................................................................................................................................. 23 HEARING ............................................................................................................................................................................................................................................. 24 1. Oral or Written Hearings ................................................................................................................................................................................................. 24 2. Righ to Counsel .................................................................................................................................................................................................................. 25 3. Disclosure of the “case against” (Right to a Decision on the Record) ............................................................................................. 25 4. Evidence and cross-examination ........................................................................................................................................................................... 26 TIMELINESS ...................................................................................................................................................................................................................................... 26 POST-HEARING ................................................................................................................................................................................................................................ 27 1. Duty to Give Reasons ......................................................................................................................................................................................................... 27 4. DOES STATUTORY AUTHORIZATION APPLY? ....................................................................................................... 28 CONSTITUTIONAL/RIGHTS DOCUMENTS TRUMP THE STATUTORY DEFENCE OR APPLY WHERE PF WOULD OTHERWISE NOT APPLY ................................................................................................................................................................................................ 28 The Charter: s.7 Procedural requirements ................................................................................................................................... 28 The Canadian Bill of Rights- Federal Statutes ............................................................................................................................ 30 Other Quasi-Constitutional Provisions ........................................................................................................................................... 31 5. IS THERE A REMEDY? ..................................................................................................................................................... 31 REMEDIES: HISTORICAL AND MODERN ............................................................................................................................................... 32 WHERE THE COURT CAN REFUSE RELIEF: ........................................................................................................................................... 33 Legislated Procedural Fairness requirements ............................................................................................................................ 35 THE RULE AGAINST BIAS ................................................................................................................................................... 36 A. PECUNIARY INTEREST CASES ............................................................................................................................................................ 37 B. PERSONAL RELATIONSHIP CASES..................................................................................................................................................... 38 C. PRIOR INVOLVEMENT CASES ............................................................................................................................................................. 38 D. ATTITUDINAL BIAS CASES ................................................................................................................................................................. 39 i. The Effect of Academic Papers written before Appointments.......................................................................................... 39 ii. The Relaxed Standard for Bias ...................................................................................................................................................... 40 iii. Institutional Bias ................................................................................................................................................................................ 41 E. STATUTORY AUTHORIZATION DEFENCE ......................................................................................................................................... 42 ADMINISTRATIVE INDEPENDENCE ........................................................................................................................................ 43 1. INTRO TO THE ADMINISTRATIVE STATE Admin Law is: Public Law: between the citizen and the state Judge-made Law: common law, not all governed by statute “General” Law: o is an umbrella over other regulatory regimes o not concerned with the substantive law pertaining to particular subject matters o provides general principles that apply in many contexts and ranges of government decision making o may be tailored for specific circumstances The Purpose of Admin Law is: Controlling Government Power: to ensure legality and deter arbitrariness of the executive and administrative branch. o To confine government power to its proper scope Promotes Accountability: of the executive and administrative branches of government, ensures effective performance of tasks assigned by the legislature 2 Fosters Participation: by interested parties in the decision-making processes that affect them (through procedural rights) a. Administrative Law v Constitutional Law Distinctions Not concerned with the validity of statutes Embedded with what states and the rule of law should look like Legislative supremacy: trumps the common law, can take away procedural rights Admin law is primarily concerned with exercises of power by governmental officials and agencies that are made under statutory authority o admin law is mostly concerned with exercises of powers that have been delegated by the legislature to government officials and agencies through statutes (control of the exercise of statutory powers) Issues: institutional interrelationships: how far should the courts go in curbing government action? (Particularly comes up in substantive review) Intersections (are growing) Admin law is rooted in fundamental constitutional principles such as: o The rule of law o Legislative supremacy o Separation of powers o Constitutionally protected s.96 courts s.7: increasing the intersection (Insite) scope is narrow: according to current interpretations of s.7 what procedures would have to be in place when s.7 is at play? What is a procedurally fair process in this type of decision making? (this is one leg of the principles of fundamental justice) b. Scope of Administrative Law The boundaries of Administrative Law are NOT always east to define The 20th century saw the rise of the “regulatory state”, evolved in response to perceived public problems Within Scope private organizations that exercise delegated statutory powers: subject to admin law in the exercise of those powers Universities: are usually treated as decision-makers that ARE bound by admin law principles in much of what they do (e.g. in making decisions about the tenure and promotion of Faculty members or decisions about student discipline) Some of the principles of admin law are extended to so-called "domestic tribunals" o “Private” bodies that do not exercise statutory powers but that do hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity (e.g. sports associations, clubs, religious bodies) Outside Scope corporations: set up under statute, granted powers by being recognized by statute not caught by admin law as they are not delegating statutorily delegated powers (look to the source and nature of the power given) not all uses of state power are dealt with through administrative law (contract, tort, or nonjusticiable) SPECTRUM OF ADMIN LAW Administrative Boards can: adjudicate disputes between individuals grant approvals, permits, licences confer benefits based on statutory criteria (ex. Welfare, if criteria is met you have a right to benefits, and perhaps appeal and eventually to the courts) inquiry process (reports) impose restrictions or penalties 3 THE REASONS FOR CREATING ADMINISTRATIVE AGENCIES: Greater legitimacy o depoliticized decision makers, as opposed to assigning function to a government department, although some have a foot in both the executive and the judiciary? Better decision making as there is a high degree of specialization and expertise (this could happen in a department as well) Expediency and convenience to having it outside the department (parliament may not have to answer for all of the agencies if they are “independent” especially for political hot potatoes) As compared to a court: o Faster quicker decision making, higher volume (although consider the other side: if not happy with decision you can go to the courts anyways, creates another layer of court) o Policy laden subject matter: courts should not have to decide policy, not suitable for adjudication o Broader public participation: does not occur in the courts as much- no public consultation, panels, boards ect (although this is only valid when it actually occurs) o Ideology: ex. Labour law, distrust of the courts – have many privative clauses to try to keep courts out- some matters are best left to administrative bodies c. Theory and the Rule of Law The Foundational Concept of the Rule of Law: it underlies administrative law and provides important rationales for what courts do it forms a part of our constitutional law Quebec Secession Reference (1998 SCC): identifies ROL as one of the four underlying principles of the Canadian Constitution Thick ROL The ROL is expansive and substantive (liberal theory of substantive justice) ROL: what justice requires in a society in substance, ex. “good” law Can be used to measure the content of legislation, from a policy perspective: should be able to use ROL to measure any law to see if it meets moral requirements (ex. Doesn’t discriminate on racial grounds) ideological concept that laws should not be arbitrary or discriminatory Because we have the Charter, ROL doesn’t need to be relied on in this way (which is good, because the concept could be arbitrary) Middle Ground (“thinner”) In addition to the thin principles Laws should be sufficiently clear and public (not vague) Laws should not be retroactive Laws should be general, not single out groups (?) Laws should be relatively stable and consistent over time Thin ROL Formal and primarily procedural The basic principle is legality: government accordance with law The government must act through law, rather than through discretion The lawmaker is subject to law (until the law is changed) There is not much about the substantive content of law Because we have the charter to protect substantive rights, the courts generally ascribe to this level of ROL theory Theorists: 4 Mary Liston (Chapter 2 of textbook): the ROL is characterized by three interrelated features: (1) a jurisprudential principle of legality (2) institutional practices of imposing effective legal restraints on the exercise of public power within the three branches of government (3) a distinctive political morality shared by the Canadian political community Characteristics of a state and legal system committed to the ROL: prevention of arbitrariness Public officials are authorized and bound by the ROL in exercising their powers Formal equality (all are equally accountable) ROL: organizes related principles such as the principle of legality, separation of powers, responsible government, judicial independence, access to justice, fundamental justice, honour of the Crown… The Legality Principle restrains arbitrary power by: 1) constraining the actions of public officials 2) regulates law making 3) minimizes harm created by the law itself a. Diceyan Theory (1885) Classical Liberal- legal positivism: Liberty imposes a negative obligation on government to not interfere with individuals. no one above the law (gov must act within lawful authority) law is administered by the ordinary courts of the land, no one can be punished except for a breach of the law (legality principle) these are still core ideas in administrative law (discretion is arbitrary) John Willis (1930’s): One of a few Canadian legal scholars that embraced the regulatory state (counter to Dicey). He supported the creation of “governments in miniature” to hear policy disputes: this addressed current needs, rather than “abstract ideals” that the court deals with. Favoured the creation of administrative appeals rather than court review. b. Joseph Raz and Lon Fuller: recommend a set of formal characteristics that guide all legal subjects (including public officials) it permits predicable legal responses- to avoid sanctions and benefit from freedom generally is important for criminal law determinacy in the law: sees the ROL as legal formalism, laws meet minimum requirements for procedural justice, rather than making resulting laws substantively just compliance with the ROL occurs voluntarily, because it confers benefits Fuller: reciprocity: lawmakers have to create the optimal legal conditions necessary for voluntary compliance (ex. Ensuring a match between rules as announced and rules applied) o Does not presume administrative bodies are inherently lawless: if they follow the above principles, they will be more likely to engage in lawful decisions, so that courts may be obliged to show deference Raz: law must be capable of guiding the behaviour of its subjects- the legality principle is a practical guide for making effective law, so it constrains the harms created by law. o Explicitly includes the principle of judicial independence and access to justice, and access to effective remedies 5 o o ROL is instrumental for realising democracy, equality and human rights, because it constrains arbitrariness and vagueness in law (46). We require both democracy and the ROL, because courts and legal culture cannot respond as quickly as democratic politics. However they should be separate: Through separation of powers, judicial independence, and a complex institution staffed by competent and impartial officials using predictable and fair procedures to make reasoned, public decisions. d. The Rule of Law in the SCC: a jurisprudential principle In sum: The ROL is an underlying principle of the Constitution, it cannot per se be used to strike down statutes, and it mainly pertains to constraining the executive and administrative apparatus of the state Roncarelli v Duplessis: No one is above the law Manitoba Reference: The law is supreme, even over government The rule of law requires the creation and maintenance of an actual order of positive law BC v Imperial Tobacco: Embraces the principles above, as well as that ROL requires the relationship between the individual and the state to be regulated by law ROL requires and includes judicial independence Left open the possibility that it may include additional principles Unanimously rejected that ROL requires legislation be prospective, general, not confer special privileges on the gov and ensure a fair civil trial o The government action constrained by the ROL is primarily that of the executive and judicial branches- not the legislative branch (60) RoL per se not in the amorphous underlying principles of our Constitution, but in its text and the ballot box” (Major J. in Imperial Tobacco at ¶66 qtd. in Liston CB p. 59) BC v Christie: General access to legal services is not an enforceable aspect of the ROL Dunsmuir v New Brunswick: All exercises of public authority must find their source in law All decision making powers have legal limits, derived from the enabling statute, the common or civil law, or the constitution JR: the means by which courts supervise those who exercise the powers, to ensure no one oversteps their authority e. The Functionalist thread in Canadian Administrative Law Administrative law should promote the effective functioning of the modern state (regulation of private power in the public interest and promotion of greater social and economic equality) 6 Concern: The courts are impeding the effective functioning of the state, imposing procedural fairness that undermines the political process Specific Concerns: 1) Concern that the courts have too zealously guarded common law values against the state who may have redistributive aims (ex. Prefer private property rights in the face of a regulatory state’s attempt to achieve redistribution) 2) Not all decision makers should have an adversarial process imposed on them: this favours those who can afford to engage in litigation and it interferes with the efficiency of the admin system 3) Sometimes, policy must be infused into statutory interpretation: the courts do not always have the monopoly on how to interpret legislative intent in the way that will best achieve the legislative purpose, and some specialized agencies are better suited than generalist judges The importance of perspective: it is essentially a political debate (legitimate scope and content of judicial power) Green light = functionalist view, friendly to the state, courts should not unduly restrain a state trying to do good things. Law can be a facilitator of regulation, redistribution Amber light = now is more fine-tuned, depends on what the state is doing o is the state interfering with individual rights? If so, more towards the red light (?) o resolve ROL concerns by broadening public participation in the administrative process o still police agencies from stepping outside of their enabling statutes Red Light: Rule of Law, focus on upholding private property rights and restraining stat power JUDICIAL REVIEW A. Supervisory Role Non-Judicial Mechanisms for containing State Power: Democratic elections/ opposition parties Politics: legislative scrutiny, standing committees, appointments, special reports, question period The media Pubic demonstrations/strikes Ombudsperson, Auditor General, Attorney General’s office Internal appeal in administrative structures (or to cabinet) Judicial Mechanisms for Control of state power: 1) Original jurisdiction of the court (ex. Tort, contract: “ordinary” court action) 2) Right to appeal (no appeal unless the statute allows for one) No inherent right to appeal 3) Judicial Review by superior courts of inferior courts (inherent power, not arising from statute) Or Federal Court (statutory court- no inherent jurisdiction) for review of federal tribunals Can be limited to only PF through statute: but the JR power exists no matter what the statute says Grounds for Review: o Procedural (oral hearing, reasons, bias, independence, dmaker was not properly authorized (improper delegation of authority under the statute) o or substantive review (no evidentiary basis, error in scope 7 of discretion) B. Constitutional Basis for Judicial Review Issue: To what extent does the Constitution guarantee the power of s.96 courts to conduct judicial review of the decisions of provincially constituted administrative agencies? there is no express guarantee of judicial review of administrative action, it is IMPLICIT in the judicature provisions of the Constitution (ss.96-101) Prior to Crevier: the SCC had held that the judicature provisions of CA 1867 limits provincial legislatures in relation to the kinds of powers that can be given to administrative tribunals: can’t give a tribunal exclusively s.96 court powers Crevier v Quebec (AG) (1981 SCC) Constitutional protection of Judicial Review Facts Quebec created bodies to discipline members of particular professions. Then they created an appeal to another administrative tribunal (“professional tribunal”) that was staffed by provincial court judges. It had a privative clause barring review of its decisions (even jurisdictional) Held RULE Res Ten TEST Reasons The privative clause is unconstitutional: tribunals are not capable of determining the scope of their own jurisdiction The judicature provisions have been interpreted so as to guarantee the power of the superior courts in the provinces to conduct judicial review of provincial administrative action on jurisdictional grounds 1) Historical inquiry: is the impugned power one that was exclusively exercised by a s.96 court at Confederation 2) if yes, is it a judicial power? (normally a dispute between parties to be adjudicated through the application of a recognized body of rules, in fairness and impartiality) 3) Is the power, in its institutional context, sufficiently changed so that the agency should be allowed to exercise it? Is it only ancillary to a broader scheme? There is a guarantee of JR that is implicit in s.96 of the Constitution Act. Attempting to shield the tribunal from JR was attempting to create a superior court, which the province can’t do. superior court judges have core powers: power to determine what it’s power is – inherent jurisdiction. These core powers cannot be given to provincially constituted bodies (can’t determine the limits of their own jurisdiction) o courts can review tribunals for “jurisdictional errors” Breach of PF Errors of law Decision on fact where there is no evidence a provincially constituted tribunal that is immunized from all review with privative clauses: unconstitutional General Principle: the judicature provisions constitutionally entrench the right of individuals to seek review of administrative action by a judiciary, to ensure the administrative action has been lawfully authorized (ROL concern) 2. PROCEDURAL FAIRNESS 8 Sources of Procedural Fairness 1. Statutes and Regulations Enabling statute, or statute that provides the procedure for an administrative agency General procedural code (statute) for the particular jurisdiction o Note: no federal code o BC ATA: only applies where the legislature has made the specific reference, check the enabling statute o Quebec has an extensive code 2. Rights Documents Quebec has an extensive code, Ontario (SPPA), Alberta (limited) The Charter (s.7), only when it is triggered Canadian Bill of Rights: only federal, only resort to when you need to get around the statute 3. The Common Law of Procedural Fairness last resort if another source applies Fills in gaps, can extend another source Will bow to legislative supremacy (only Charter will trump statute) 4. Policies and Practices of Agencies Rules/codes for each administrative decision maker (or tribunal) Guideline/Practice/Policy of the agency These are sometimes called “soft law” Interaction between the Sources of PF The common law will impose procedures where the statute is silent The statute will override the common law, unless it is unconstitutional A rights document will trump the statute- constitutional or quasi constitutional rights Normative and instrumental arguments in support of Procedural Fairness: Makes the state accountable/transparent (ROL concerns) It is a democratic exercise (more normative argument) Dignity interests are furthered in participation “Justice”: moral claim (more normative) o Nicholson applying the duty of fairness, “deserves this minimal protection” o Dignity of the individual (PF is geared towards individuals at common law) o Individual autonomy Legitimacy of the decision (acceptability of the decision for an individual) Formal equality other decisions will likely be consistent Better decisions o Nicholson reference to listening to the police officer himself o More information = more informed decision makers 9 Counter Pressures to these arguments: what are the limits of procedural rights? The process must be tailored to the context because of: Resources Time (expense) State security interests (confidential process are sometimes required) Bad fit for a full judicial process Accessibility (make sure the process remains simple) Unrealistic? A. Historical Development of the Common Law Historical Theories Idea of Natural Justice: has two components hear the other side: right to notice and a right to be heard audi alteram partem the rule against bias (nobody should be a judge in their own cause) nemo judex insua causa The common law grafts procedures into silent statutes: through statutory interpretation, or because of “what justice required” judges reconcile their roles by imposing unless it is expressly taken out (1920-1960) Judicial v Quasi-judicial: in the early to mid 20th century, the common law developed restrictions on hearing rights based on the classification of the state power at issue. became and issue of classifying the problem Judicial required a final determination of rights that had a serious impact on an individual (restrictive approach) natural justice applied hearing rights accorded certiorari and prohibition available Quasi-judical any decisions that were administrative, executive, ministerial natural justice did not apply, no hearing rights accorded done away with in 1990 Duty of Fairness: adopted in Canada in Nicholson v Norfolk (1979 SCC) Modern Approach and Trends: 1. no distinction between “natural justice” and the “duty of fairness” (unless a specific piece of legislation requires it- note that the BC ATA mentions natural justice). 2. The threshold for when PF applies has been lowered, based on fundamental ideas about how the state should subject people to its decisions (what fairness requires has expanded) 3. Consequence: the triggering of PF has been lowered, but the CONTENT of PF has become highly variable and context specific a balance must be struck when determining the content of PF Nicholson v Norfolk, 1978 SCC duty of fairness applies even if natural justice doesn’t 10 Facts Police officer discharged without notice reasons, but he was allowed to give representations statutory regime is important: rights do not apply to those in service for less than 18 months. Issue Did the decision attract procedural fairness even where the legislation did not provide for it? Held (5/4) a certain level of PF is required- he was entitled to be treated fairly even if he was not accorded the statutory rights there is a duty of fairness that is less than natural justice that applies to administrative decisions Threshold A constable can still be considered a holder of an office at common law rather than just an employee: he is afforded some minimal protection he should be treated fairly, the loss was significant the decision was final and unreviewable Content duty of fairness, less than full natural justice He should have been told why he was dismissed, and needs to be heard Remedy Quashes the decision, sends back for redetermination (he was ultimately still fired) Cardinal v Kent Institution, 1985 SCC threshold test Facts Prisoners were put into segregation, but were held there indefinitely as per the director, despite the recommendation of the segregation review board that they be taken out of segregation (note: precharter). The director did not hear from the prisoners before the decision. Held He needed to hear from the prisoners before deciding to not follow the recommendation Threshold and Context Trigger: not the breach of prison rules, but rather a breach of the duty to act fairly at common law for an administrative decision that is not of a legislative nature and affects the rights of an individual/not necessarily a natural person. This is still cited as the threshold test, although the boundaries are unclear at this time Context: initial decision was made in an emergency situation, it was ok to not hear from the prisoners then. Further, in a prison context, “on the spot” decisions may have to be made. However, after the urgency was over PF was required as soon as possible. Content The common law duty required the director to inform the prisoners of his reasons at the moment he decides not to follow the recommendation, and give them an opportunity to respond, even informally (this is the minimal requirements of procedural fairness). Remedy Prisoners were already released- however consideration of whether the outcome would have been different after hearing from the prisoners were not done (that is not an excuse for a lack of PF) Purpose of hearing rights: an unqualified, independent right Re Webb and Ontario Housing, 1978 ONCA Facts A tenant of subsidized housing was evicted because of her children’s behaviour. The decision to 11 terminate her lease was made by a committee and a board- she was not present at any meetings to present her case. Public law is triggered in this case because it is subsidized housing (rather than just a landlord/tenant situation). Note: there is no statutory entitlement to remain in subsidized housing (or get it in the first place), however there are statutory rights to be heard regarding welfare in general Held The threshold here was low, and was met: They did notify her several times, visited her, and advised her of the consequences Trigger There was an obligation to treat her fairly in the conduct of the investigation before ending her leasethe applicant was in danger of losing an important benefit. Content The OHC was required under the circumstances (in exercising its power of termination) to treat the applicant fairly by telling her of the complaint and giving her an opportunity to address the complaints. Notes: Raises the potential for distinctions in the law o Between decision to give housing, then take it away o If decision to give housing had certain requirements, rather than being broad and discretionary, then perhaps PF would be required at that stage too Duty is expanding: although it didn’t mean much in this particular case, at least it applied to a benefit Note that in this case, she may not have understood the opportunity she had the common law is being grafted onto statutes where the statute is silent or has lesser protections, and when PF is grafted into the regimes, it is seen as a precondition to a lawful (binding) decision. B. Framework for Analysing Procedural Fairness Rights at Common Law Knight v Indian Head of School Division no.19 (1990 SCC) Facts Director of education (office empowered to some degree by legislation) refused to accept a contract for a shorter term, argued he was wrongfully dismissed (not given long term contract). He was found to be an “office holder,” however he could be dismissed without cause (“at pleasure”). Held Common law did apply, but the content was relatively minimal and the duty was not breached he had an opportunity to be heard, was at some meetings, informal course of dealings was seen to be sufficient. See Framework chart Threshold Test 1.the nature of the decision to be made by the admin body: no longer need to distinguish between judicial and not. Decisions of a legislative and general nature would require fairness, unlike more administrative/specific decisions The finality of the decision: preliminary decisions will not trigger duty of fairness 2. the relationship existing between the body and the individual (this was overruled in Dunsmuir- see below) 12 3. the effect of the decision on the individual’s rights Content there is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. In this case, the statute did not explicitly or implicitly excuse the appellant board from acting fairly the concept is entrenched in the principles governing our legal system. A hearing may not be a hearing in the judicial sense: it may be written or oral, provided the board does in substance hear the applicant. Baker v Canada (MCI) (1999 SCC) Facts Seeking an exemption from the regular rules for deportation because of her health issues and her children (overstayed visa, worked illegally). She is found (likely when she goes on welfare), ordered deported. Provisions of Statute: cannot apply for PR while in Canada, unless H&C considerations (this exemption power is delegated to the Minister- “where the Minister is satisfied”) Sequence of Procedure: She made a written application for H&C consideration with supporting documentation Reviewed by a junior officer, who made notes and recommended against H&C Package sent to senior officer, who decides not to grant H&C, without reasons When Baker’s lawyer requested reasons, the junior officer’s notes were sent Threshold The fact that a decision is administrative and affects “the rights, privileges or interests of an for PF individual” is sufficient to trigger the application of the duty of fairness (Cardinal v. Director of Kent Institution) Applying 1. The nature of the decision and the process followed the Baker H&C is not a judicial process, it is discretionary and based on policy factors (-) Factors 2. The nature of the statutory scheme There was no appeal process (+) H&C is an exception to the statutory scheme (-) 3. Individual Impact High (+) Separation from children 4. Legitimate Expectations no expectation from the Convention on the Rights of the Child, it was not a promise (-) 5. Deference to procedures the procedures are flexible, oral interviews not often used (-) Level of PF Required Violation of PF? The duty of fairness owed is minimal oral hearing is not required to achieve the level of PF required, which is to allow a full and fair consideration of the relevant information YES: 1. were sufficient participatory rights, as per the Baker Factors 2. The duty to give reasons was not breached the reasons of the junior officer were sufficient 3. Was there a ROAB? YES (set out in Bias section) Mavi v Canada (Attorney General) (2011 SCC) Facts Sponsored person uses social services- sponsor is responsible for paying it. Crown argued: the decision to register the debt was a duty without discretion 13 PF Triggered? Although it was a purely financial interest, PF was triggered. Consideration of the Baker Factors (para 42) Nature of the decision: Ordinary debt collection, not benefits conferring (-) Not a judicial process, no objective standard to apply (-) Statute: is clear parliament wanted to avoid a complicated process (-) Very narrow discretion (-) Choice of procedure is broad (-) However: Decision is final and specific (+) No appeal (+) The result of the decision is that it is automatically enforceable (+) Impact is financially significant on the sponsors (+) There is a legitimate expectation that the government will consider relevant circumstances in making its enforcement decision (+) PF required is minimal The duty of fairness does not require giving reasons, but did require: Notice opportunity to explain personal and financial circumstances in writing consideration of relevant circumstances keeping in mind the nature of the statute notification of the decision The statute specified certain PF procedures, but giving reasons was not implied on top of them. Statutory Exclusion The statute did not overrule the common law, because the statute does not require the government to collect the debt “may” connotes discretion Discretion exists in the statute, in order to further the objective of the act that is to balance family reunification and abuse of the system. Where discretion exists, PF may be imported Things to remember: “The simple overarching requirement is fairness, and this “central” notion of the “just exercise of power” should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive” (Mavi, para 42) The content of PF requires a balance: a fair process is not expeditious, but the public suffers where the government is perceived to act unfairly (Mavi, para 40) “The function of procedural fairness is to set minimum standards, not to enable a reviewing court to determine how it would have exercised the Tribunal’s discretion as to when to hold an oral hearing” (as quoted in Black) SEE CHART ON FRAMEWORK FOR SPECTRUM OF PROCEDURAL RIGHTS C. Framework for Assessing Participatory Rights 14 1. THRESHOLD QUESTION Rights, Privileges, or Interests GENERAL RULE Procedural Fairness will usually apply where there is something sufficiently serious at stake and the decision is not legislative and general The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness (Cardinal v. Director of Kent Institution) also see Baker Pre-existing legal rights or status of an individual, including property rights Homex, CPR Liberty Issues (continued detention, move to more severe detention) Cardinal, Re Abel Being a Parent (separation from child) NB Minister of Health Accorded Privileges (licence, quota amount, being a 3L) CARI, Khan Established State benefits (as distinct from the initial decision to grant the benefit) Re Webb Reputational Interests (low PF where it is all in private, and no PF for a purely investigatory process, no cross examination allowed) Irvine Religious Observance is a right and interest LaFontaine Financial Interests (esp. when they have a great impact or it is a direct interest) Mavi, Sinai Forfeiture- taking away rights related to an individual’s fitness (related to reputation) McInnis v Onslow Application with an expectation (where unfitness/reputation issues would be implied by denial) as opposed to “pure application” cases where there is no expectation/reputation damage McInnis v Onslow, Webb Note on the application/forfeiture distinction: This distinction is not firmly rooted in case law, but it is related to the nature of the interest at stake. Look to the criteria on which the application decision is made, are certain procedures suggested? Is the application process adequate “hearing”? Limitations and Exceptions to the Application of Procedural Fairness i. “Legislative and General” Decision-Making What is a legislative and general decision in substance? Generalized impact, rather than only affecting an individual Decision about establishing standards/quotas: policy making as opposed to the application of policy in a particular case Political and discretionary decision 15 Cardinal (SCC 1985): “This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges and interests of an individual.” Knight (SCC 1990): Some powers traditionally belonging to legislatures have been transferred to administrative bodies. These are distinct from acts of a more administrative and specific nature. Legislative and General Decisions PF likely won’t apply the making of primary legislation Re CAP regulation (subordinate legislation) making by Cabinet Inuit Tapirisat **Note: opportunities for Notice and consultation may come from legislation, for example: Quebec has legislation requiring publication of proposed regulations prior to their enactment, enabling a notice and comment process to occur many federal statutes have similar requirements a Federal Cabinet Directive requires a notice and comment process prior to enactment of regulations that includes prior publication of draft regulations in the Canada Gazette ** also note where governmental practices of giving notice and an opportunity to be consulted in past cases in a specific context could potentially give rise to an argument for PF based on “legitimate expectations” in future cases in that same context. policy-making by Cabinet or other admin agencies when the policy is sufficiency general in nature and is based on broad discretionary powers to be exercised in the pubic interest Just because a small and identifiable group is seriously and differentially affected by a governmental policy-making decision does not necessarily mean that the decision is targeted sufficiently to attract the duty of PF [note: it is unclear how small a group or how “targeted” the governmental action against that group must be before an otherwise “legislative and general” decision might arguably be seen as subject to PF] Inuit Tapirisat, CARI CARI Where PF may still apply: decisions that aren’t actually legislative and general in substance municipal bylaws that have a direct and specific impact on the property rights of an individual are subject to PF even though they are legislative in form when a decision that is legislative in form is in substance specifically targeted at a particular individual, and has a serious impact the rights of that individual, it is arguable that PF should apply Homex; CPR v Vancouver Homex AG of Canada v Inuit Tapirisat (1980 SCC) cabinet is not restrained by PF in this case Facts Inuit Tapirisat appealed CTRC’s decision to increase rates to the federal Cabinet. The appeal was denied without a hearing: Bell responded to their petition, but T did not get a response. The statute had two appeal provisions: one to cabinet for an override, or an appeal to the FCA with leave on a question of law or jurisdiction. The Tapirisat brought an action on the ground they were not given a hearing in accordance with the principles of natural justice. Issue Do common law PF hearing obligations attach to the cabinet appeal process triggered by a petition? 16 No PF: It is a legislative decision: a policy decision based on broad discretionary powers and exercised in the public interest. The statute gives complete discretion to the GinC, provided jurisdictional boundaries are observed. No need to give reasons, hold a hearing, or acknowledge receipt of the petition Factors Considered Cabinet Decisions nature of the decision: about rate setting, parliament used to do this directly before delegating to the admin agency+ GinC- more legislative than otherwise not individualized: would apply broadly (but note- impact is more on some?) Cabinet is not above the law: it must keep within the law Should not have PF procedures imposed in this circumstance (Cabinet)- although a blanket statement is not made on all cabinet decisions. CARI v Canada (1994 FCA) Facts No PF: Notes CARI argued the historic importers were entitled to procedural fairness (notice and consultation) before a decision was made about the criteria for the new quota system that would negatively affect them (they would no longer have first dibs). There was no effort to give individualized notice to the historic importers Not required to give notice about the change An established position in the market+ established economic viability is not a right to import If they had listened to only stakeholders, would they have had to listen to everyone? If there had only been one historic importer, perhaps would have been a more individualized decision. There is difficultly in separation existing stake holders from future ones. The court noted it would not have been impractical to have provided notice, but the law did not require it look to CPR: this decision could have been decided differently today Homex v Wyoming (1980 SCC) Facts Homex bought subdivisions. The village enacted a bylaw deeming the lots to not be part of the subdivision without notice to Homex. Homex applied for a JR, quashing the bylaw (which, if valid, means they can’t sell the lots) Threshold Triggered The action by council was not legislative, it was quasi-judicial. It was characterized as a dispute among two parties, and the bylaw was a way to end the dispute. It was targeted at Homex. must look beyond the type of decision, to the effect on the individual and the substance of the decision making while the form may not be administrative, the content was Content While all parties were clear on each other’s positions, Homex did not have notice that the municipality was going to use its bylaw power. (notice was required) No Remedy Homex “checker boarded” the property in response to the bylaw the court denied the remedy Congregation des temoins de Jehovah v Lafontaine (Village) (2004 SCC) Threshold Affected the rights and interests of the group: even though it is a legislative body, it was denying a Triggered specific application for re-zoning. The elected councillors cannot deny the application in an arbitrary manner 17 CPR v Vancouver (2006 SCC) Facts CPR owns an unused rail corridor in Vancouver. Vancouver passes a bylaw to keep it a public thoroughfare. A public hearing was held. CPR JR’s the bylaw PF Because of the potential impact of the bylaw on CPR, the city owed a duty of fairness. municipal bylaws that deal directly with and impact the property rights of an individual attract the common law of PF despite the fact that it is subordinate legislation making, and bylaws have broad public impact and are made based on public policy Content of could be fulfilled through a public hearing (that they held) PF no breach occurred ii. Non-final decision Making Principle: “self correcting” is encouraged Applicants applying for JR must generally have first exhausted all other remedies first (Harelkin) Applies to: o o o o Investigations (fact finding processes) Inquiry processes (fact finding and reporting to a final d/maker) Preliminary stages of multi-stage processes of decision making Where there is an appeal provision Re Abel (1979 ONSC) Facts lawyers for patients requested reports that were to be submitted to the Board for the annual review to consider continued incarceration of mental health patients. The Board makes a report, which is then sent to the decision maker. (s.7 case today) Issue The board is not the final decision maker: is PF accorded to this stage of a multi stage process? What to Consider at the prelim stage Held 1. The proximity: what is the impact of the preliminary decision on the final decision? 2. The Exposure to Harm: what is the impact of the preliminary process on the rights/interests/privileges of the person? As this was the only (annual) chance of being released, the effect is of vital concern generally entitled to full disclosure (note- pre Charter) but here there were reasons to limit disclosure. Issue lay in them not considering whether or not to disclose. Irvine v Canada (1987 SCC) Facts Issue Correction Possible? Administrative Decision (PF Breached) - - - (internal appeal)- - - > Administrative appellate appeal Can the appeal correct the breach of PF at the first level? What kind of appeal is it? If the appeal is based on a record that is biased/unfair, can’t correct it (if the record is “tarnished”) If the appeal is done on a new hearing, then it can correct it (de novo trial) 18 Threshold PF Content Required If damage is done to the reputation at the first stage, the decision may be quashed Look for potential of internal correction before going to the courts (exhaustion principle) = “remedial exhaustion” Some PF was required at this first investigatory stage, but it was accorded. Minimal because: Purely investigatory stage, evidence gathering No recommendations or determinations made, no publicity Mere exposure to the possibility of future proceedings is not enough to trigger high PF obligations Taiga Works v BC (2010 BCCA) Rule Factors to consider look at the proceedings at both stages, and ask whether overall the procedures satisfy the requirements of PF i. the gravity of the error committed at first instance ii. the likelihood that the prejudicial effects or the error may have permeated at the rehearing iii. whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo iv. the seriousness of the consequences for the individual v. the width of the powers of the appellate body (what can they do if a breach is found? Can they send it back? If the power to send it back is not available, perhaps the only option is to go to the court) iii. Public Office Holders, Emergencies, and Contractual Relationships Mavi v Canada : Contract Issue when will public law principles apply to government contracts? The Dunsmuir employment contract exception to the application of PF is narrow o That was a specific context of dismissal from public employment The sponsorship undertaking in this case is distinct from other contracts the contract is created by statute o The undertakings (the sponsoring) are both contracts and statutory (structured and supplemented by federal legislation) so the debts created are not exclusively governed by contract o The statutory framework governs the rights and obligations of the parties and opens the door to PF Canadian Arab Federation (2013 FC) Facts Issue (threshold question) No PF Funding agreement between crown and CAF to provide language instruction to immigrants. Crown decided not to renew funding. Is this seen through the contract law lens or public law (citizen/state relationship)? (Does PF apply or not?) This is seen as a contract The only statute involved was the one that allowed the crown to allocate funding Distinguishes Mavi: crown does enter into lots of non-public contracts No legitimate expectation: no guaranteed renewal 19 Floodgates: of allowing PF into all crown contracts Even if PF was triggered, they got ad adequate amount (letter stating reasons) Old St Boniface: Although the rules of PF were formerly determined according to the classification of the functions of the tribunal or body, now the content is determined by factors, indicating the nature of the statute and body and decision. v. Justiciability (Royal Prerogative) In principle, an exercise of prerogative power is justiciable (because of s.32(1)(a) of the Charter which states it applies to Parliament and the government) but look to the subject matter. Types of prerogative powers: Making of treaties Defence Prerogative of mercy Dissolution of Parliament Appointment of PM and Ministers Conferral of honours The taking away of an honour (the final decision) The exercise of prerogative power may be JR’d where it affects either an individual’s rights, or an individual’s legitimate expectations (Black, para 49). Just because an honour has been conferred does not mean the privilege is now a right 2. WHAT LEVEL OF PF IS REQUIRED? See chart: 1. The nature of the decision and the process followed 2. The nature of the statutory scheme 3. Individual Impact 4. Legitimate Expectations **LED can extend PF obligations beyond what the common law would otherwise require Procedural Expectation: where there is a legitimate expectation of procedure (due to past conduct or promises) then the body has to afford that right. Substantive Expectation: Does not mean the person can get the expected result, but means the person will be afforded higher PF before the substantive expectation is taken away EFFECT of a legitimate expectation when it The scope of PF will be broader; it is a factor in determining what is required by the common law duty of fairness (Agraira). 20 applies: “It 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” (Old St Boniface) REQUIREMENTS of a Legitimate Expectation promises or representations by a government official (Agraira) clear, unambiguous and unqualified (Agraira) o either government representations, or else if a contract: sufficiently certain to be capable of enforcement (Mavi) not in conflict with a statutory duty does not require proof of reliance or prior knowledge (Sinai) LIMITATIONS to the LED it cannot give rise to substantive rights, only procedural remedies (CUPE, Agraira) does not apply to legislative decisions (Mt Sinai, Binnie’s minority) o concerns re: unduly fettering the executive, chilling effect, concerns about the judiciary constraining the executive Re CAP (1991 SCC) Facts There was a cost sharing plan to fund provincial health care. Then CAP was amended without consulting the provinces, resulting in loss of federal funding contribution. BC tried to use LED to get a substantive result which was consent to the process, rather than simply procedure which would be consultation Note: BC did not use argument that they could not amend the legislation, because parliamentary supremacy could clearly override this argument Issue Did LED apply in this case? No LED 1. cannot use LED to get substantive result (ex. Consent) 2. cant attach legitimate expectation to legislative decisions where PF doesn’t apply especially in this case: it was a money bill (only the executive can bring this to parliament) leaves this open for other types of legislative decisions? (ex. regulation making), although courts are generally reluctant to fetter the state Mount Sinai Hospital v Quebec (2001 SCC) Facts A long-term treatment facility mixed in short term care beds, received funding for both although it was not recognized by the permit. Facility proposed to move to Montreal, if the permit would be changed, promise affirmed on several occasions. After the move, the amendment was refused. Hospital argued on four grounds: 1) Already have a functional permission (de facto) to operate the way they’re operating, should receive an official one via mandamus 2) Legitimate expectation 3) Promissory estoppel (requires legitimate reliance, reasonable reliance, harm) 4) There’s only one reasonable decision – to grant a permit Issue Can the government be forced to give them the permit, based on LED? 21 Mandamus The Minister had already granted his discretion in favour of the permit, and there was no authority ordered or discretion to then reverse that decision (this option was not advanced by the parties or lower courts) they could not pinpoint at what point it was exercised, but concluded it was before the hospital moved Binnie’s Minority Decision Agreed with the result (the permit should be granted) but thought it was because the Minister’s decision to refuse the permit was a patently unreasonable exercise of discretion (the only reasonable decision was to grant it) he would have refused to extend the availability of LED to get a substantive result Congregation des temoins de Jehovah v Lafontaine (Village) (2004 SCC) LED During the first application the municipality followed an involved process, which in turn gave them a legitimate expectation the same process would occur with the next application Mavi (2011 SCC) Use of LED It was used to establish the existence of discretion which led the court to say there was a duty of PF there was an expectation that they would take into consideration the person’s personal circumstances, not that they would defer the payments government representations will be considered sufficiently precise for the purposes of the LED if, had they been made in the context of private law contract, they would be sufficiently certain to be capable of enforcement The policies as they were satisfied the legitimate procedural expectations of the sponsors. ** note the closeness to using LED to get substantive rights Agraira v Canada (MCI) (2013 SCC) the current law on LED Facts Guidelines Created a LE for process Guidelines were followed Applied for ministerial relief, denied by the Minister. The LED grounds were: there were guidelines published by CIC for the handling of relief applications. The applicant could reasonably expect his application would be dealt with in accordance with the process set out in them (the framework would be followed) He also argued there was a LED for certain H&C factors to be considered The applicant did not show the process did not follow the guidelines. It is not clear there was a legitimate expectation that certain factors would be considered, but in any case they were considered (101) 5. Deference to procedures 22 3. REQUISITE LEVEL ACCORDED? Content and Choice of Procedures PRE-HEARING 1. Notice it must be adequate and reasonable in all the circumstances (sufficient to enable the person to prepare for and participate meaningfully in the process, will be related to the spectrum of PF required) ATA Provisions: ss.19-22 CPR v Vancouver: specific notice can be excused where it can be “readily inferred” that the party was aware of the nature and subject matter of the hearing. Form of Notice Service of Notice (manner) Mass notice (newspaper ads) Mail/fax/electronic delivery Personal service (high end cases) must enable the person to decide whether to participate, and prepare to do so will vary on the context (seriousness and complexity of the issues) Timeliness Content/Sufficiency of notice (connected to pre hearing disclosure) Possible Remedy Written Electronic Oral Decision maker must give enough information regarding what is at stake (understand the possible consequences of the decision and their rights) What the recipients can be expected to understand will be relevant (knowledge/language) Notice should not mislead in any way Will often be for the decision maker to adjourn proceedings to give the party time to prepare 2. Pre-hearing disclosure refers to the release of information in the hands of the decision maker that is related to the decision that will be made Discovery: pre-hearing provisions of information in the hands of third parties (usually confined to an adjudicative hearing resolving a dispute between two parties) often not available in the administrative process 23 May v Ferndale (2005 SCC) Facts Prisoner to be transferred to a higher security institution based on a computerized system of risk assessment (based on a scoring matrix) Disclosure Prisoner had a right to the scoring matrix due to the wording of the statute, but also because PF of matrix? requires it. The decision was void for lack of jurisdiction, because there was no authority to make the decision without disclosing that information. “The duty of PF generally requires that the decision maker disclose the information he or she relied on” Re Abel: decision was quashed because the commissioner failed to consider whether or not medical reports should be disclosed. The law recognizes circumstances where disclosure may not be appropriate given the context (national security, institutional function, witness privacy, individual wellbeing) to prevent harm to the individual. HEARING 1. Oral or Written Hearings There is no presumption in favour of oral hearings (Nicholson, Baker) Oral hearings are required where there is a serious interest PLUS credibility at stake (Khan, Black, Singh) Hearings will generally be public unless: personal security interests, privacy, national security, commercially sensitive information) ATA Provisions: ss.41-42: oral hearings should be open to the public s.51-52: the tribunal’s final decisions must be in writing and include reasons Khan v University of Ottawa (1997 ONCA) oral hearing required Facts Failed evidence exam on three graded booklets. She stated she had completed an extra booklet during the extra time she had after she was mistaken about the length. They could not find the booklet, and she appealed (exams committee, then to senate committee). Consequences: she couldn’t pass 2L, had a booklet been missing, she would have been able to re-write Appeal Denied: they did not believe the 4th booklet existed. Hearing Rights She made written submissions, she did not get notice about a committee hearing. Accorded: “Credibility The issue was about her credibility (whether she was telling the truth): needs to be assessed Determination” through an oral hearing rather than written submission. The impact was high: failing a year of school Minority Fairly serious, but partially caused by the student. Conrad Black v Advisory Council for the Order of Canada (2012 FC) (upheld at FCA) Facts He was informed that the council of the order of Canada were considering terminating his membership and invited to make submissions. He is refused an oral hearing Oral Hearings Where Oral Hearings are required: “the duty of procedural fairness does not confer an unqualified right to an oral hearing” the issue is whether an oral hearing “is necessary to provide a reasonable 24 opportunity for parties to effectively make their case” are there other means available to the applicant to establish the case? Process: goes through Baker factors to see if oral hearing is warranted Credibility? The court finds this is not about credibility: the US courts handed down their ruling and the proper way to appeal that is through the US courts. written submissions are adequate Authorson (2003 SCC) Consultation no requirement for consultation during legislation creation (constitutional guarantees with respect by to legislation are parliamentary sovereignty not due process rights) Parliament Singh v Canada (MEI) (1985 SCC) Oral “where a serious issue of credibility is involved, fundamental justice requires that credibility be Hearing determined on the basis of an oral hearing” Required - the procedures denying oral hearings were incompatible with s.7 2. Righ to Counsel will usually be afforded as a matter of policy and practice s. 32 ATA: a party may be represented by counsel or an agent where it is constitutionally required (NB Minister of Health) common law: when a lawyer is considered necessary to be adequately heard, PF requires that a person be allowed to be represented by counsel (NB Minister of Health) – see constitutional protections possible offsetting factors: speed, informality, economy: will the involvement of lawyers impair those goals by making the process more adversarial or formal? 3. Disclosure of the “case against” (Right to a Decision on the Record) Limitations on disclosure on the record: scope of the obligation will vary depending on the level of PF required, and the nature of the decision person just needs adequate disclosure to know the case against them justification of departure from full disclosure can include: security issues (Re Abel, national securitySuresh, Charkaoui, Harkat), protection of informants, evidentiary privileges To facilitate natural justice processes (to know the case before you, to be able to respond to the case before you and to be able to offer positive information to, there must be disclosure of all information that the administrative decision maker Kane v UBC Board of Governors (1980, SCC) Facts Prof suspended, appeals. Board includes the president, he remains after Kane leaves the appeal. Although he can’t vote, he gives the board information without Kane being present Issue Disclosure: evidence was discussed without Kane knowing what it was whether the evidence changed the decision did not change the fact that a breach occurred High stakes- loss of employment Duty The board had to hear both sides, and allow Kane to respond right to have the decision on the record 25 decision quashed for failure to disclose 4. Evidence and cross-examination administrative tribunals are not bound by judicial rules of evidence (but tribunals at the higher end of the PF spectrum will be influenced by ordinary evidence rules) s.40(1) ATA: The tribunal may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. S. 40(3) ATA: Nothing is admissible before the tribunal that is inadmissible in a court because of a privilege under the law of evidence. a party should be able to present and test evidence that is adequate and reasonable in the circumstances Denial of the ability to present evidence may amount to a breach of PF if it PREVENTS the party from being heard Irvine: cross-examination rights could be denied without a PF breach, it was in accordance with the act. The appellant tried to say the absence of cross rights would result in a loss of reputation, but the report was not going to be published, and it was only at the information gathering stage of the investigation. TIMELINESS Issue: will the delay be seen as so unfair that it results in a stay or an expedited hearing order? Blencoe v BC Human Rights Commission (2000 SCC) Process Complaint to HRC assigned to investigator notify person, collect info report with recommendation to HRC referral to Tribunal Principle Delay can warrant a stay of proceedings, if “significant prejudice” arises from the delay “Significant Prejudice” 1. actual prejudice to a fair hearing (evidentiary sense) where the party’s ability to answer the case against them is impaired 2. delay amounting to an abuse of process where the delay is inordinate/unreasonable AND it causes serious stress/psychological harm or stigma to reputation to the extent it brings the human rights system into disrepute (rare) “Inordinate”: court will consider the overall context, including: o nature of the case/rights at stake o level of complexity of facts and issues o purpose and nature of the proceedings o whether the applicant contributed to the delay, or waived it Majority Did not amount to an abuse of process: stay was refused, but the SCC ordered costs against the commission Notes: he contributed to some extent by challenging all steps, the stress was also due to media representation delay was not significant compared to other jurisdictions media was also a cause of stress, not just the delay 26 Minority complainants would have lost their interest if it was stayed Found it was abuse of process: however would have ordered something lesser, like “expedited hearing order” may be more appropriate than a stay POST-HEARING 1. Duty to Give Reasons Rationale: fosters accountability reinforces public confidence reduces (appearance of) capricious decision making facilitates appeals BUT: a duty too broad would unduly burden the process, cost effectiveness It exists in certain circumstances, it is a flexible standard, takes into account the circumstances of the decision maker: where the decision has important significance for the individual where there is a statutory right of appeal Baker (1999) Minimal PF owed, not an important interest at stake, no appeal provision = no reasons Mavi The duty to give reason is a “bare” one: the only question is whether or not reasons were given, not their adequacy or quality (that is a matter for substantive review) Newfoundland Nurses (2011) Congregation des temoins de Jehovah v Lafontaine (Village) (2004 SCC) Duty to give Yes: the decision to deny the rezoning application affected the congregations rights and interests. reasons? Further, the council gave reasons in the first zoning application Homex and CPR Duty to give reasons? Municipal bylaws that have a direct and specific impact on the property rights of an individual are subject to PF even though they are legislative in form when a decision that is legislative in form is in substance specifically targeted at a particular individual, and has a serious impact the rights of that individual, it is arguable that PF should apply Contrast with: Catalyst Paper Corp v North Cowichan District (2012 SCC) Duty to give Reasons are not required by the municipality when passing bylaws that are based on discretionary reasons? policy choices (held to be purely legislative, although only one large ratepayer was affected) 27 “The reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statement of policy that give rise to the bylaw”(29) 4. DOES STATUTORY AUTHORIZATION APPLY? Where a Statute expressly or by necessary implication states that no PF is required, or states the PF required, it will trump the common law, unless a rights document is invoked. Common law cannot give PF rights beyond the statutorily conferred rights, unless the Charter is invoked. Kane: clear statutory language required to oust the common law Singh: clear or necessary implication required Constitutional/Rights Documents Trump the Statutory Defence or Apply where PF would otherwise not apply The Charter: s.7 Procedural requirements s.7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Liberty: o Free from physical restraint o Personal autonomy (Re B and Godbout as cited in Blencoe) Security of the person o Psychological integrity (NB Minister of Health) Violation: if life, liberty, or security are deprived and not in accordance with the principles of fundamental justice s.1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. NB Minister of Health v GJ (1999 SCC) constitutionally protected right to counsel in this circumstance Facts Minister took custody of her children and applied for an extension. She sought to oppose the extension, but custody is not covered by legal aid. Mootness issue Although the tangible and concrete dispute has disappeared and the issue had become academic, the court decided to decide the case because: There was an appropriate adversarial context Was a question of national importance and is not abstract The nature of the case is that it will be moot when it reaches this stage: if not addressed here, it would be “elusive of review It is a broad issue that is significant s.7 Threshold Security of the person under s.7 was impacted removing a child from a parent imposes threat of serious psychological harm the effect of the state action must be assessed objectively from the perspective of a 28 person of reasonable sensibility the effect need not rise to the level of nervous shock/psychiatric illness, but it must be greater than ordinary stress or anxiety (must have a serious and profound impact on the psychological integrity of a person of ordinary sensibilities) not saved by s.1. Not having counsel meant the judge could not make an accurate determination of the child’s best interest. The Role of s.1 s.7 violations are difficult to justify under s.1 Counsel was required by PFJ the instrumental purposes of fair hearing rights The principles of fundamental justice give a parent the right to a fair hearing when the state seeks custody of children they must have the opportunity to present their case effectively (or else the child’s best interests could not be established) 1) the seriousness of the issues and the impact of the decision 2) the complexity (process and law): will questions of law arise in the proceedings? 3) the capacity of the person affected by the proceedings 3 factors to consider for “effective representation” Suresh v Canada (2002 SCC) Facts Danger opinion issued against Suresh after he was found inadmissible but had a possibility of torture upon deportation. He is given an opportunity to respond in writing Officer reviews material and prepares memo for minister (not given to S) Issues Is the legislation unconstitutional? s.7 s.7 is triggered the deprivation must be in accordance with PFJ substantively and procedurally Threshold Substantively: deportation should be avoided where there is a substantial risk of torture Procedurally Based on the same principles as common law procedural fairness: Baker factors used to assess the in content of PFJ accordance Requires more than the statute provides: with PFJ Adequate disclosure to know the case against and have a fair opportunity to meet it Access to all materials on which the Minister’s opinion will be based (memo) and an opportunity to respond in writing, subject to privilege claims or national security The Minister is required to give reasons Charkaoui v Canada (MCI) (2007 SCC) changing the security certificate regime Facts Security certificate issued, triggering detention and deportation process. Certificates are reviewed by an FC judge for reasonableness in camera and ex parte for national security reasons. Judge then provides a summary of the case against to the person Issue Does the reasonableness review comply with s.7 procedurally? s.7 s.7 is triggered: there is risk of ongoing detention and deportation (deprivation of liberty) threshold s.7 in the The extent to which the context can be taken into account at the s.7 stage of analysis: National it can be taken into account but not used to justify an unfair process Security procedures may differ from the norm because of national security (adapted because of the Context context) PF Content When liberty is seriously at stake a judicial process is needed: right to a hearing, independent an impartial decision maker, decision based on law and facts, 29 right to know the case against equated to a criminal process Disclosure requirements: rationale: it permits the person to contradict errors, identify omissions/gaps, challenge credibility of informers, refute false allegations Limits: not absolute, national security can limit extent and nature of disclosure. These limits are the context for the s.7 inquiry into what PFJ requires o Adequate substitutes for full disclosure may comply with PFJ in some cases Breach Judge could not provide an adequate substitute in this case, given the seriousness of the interests at stake. It is not saved by s.1: there are less intrusive means available to protect national security. Harkat v Canada (MCI) (2014 SCC) system now includes a “special advocate” Facts The special advocate sought to obtain disclosure of the identity of human sources + crossexamination, to compel the minister to obtain updated info and to exclude evidence from intercepted conversations because the originals had been destroyed. Issue Does the IRPA scheme give him a fair opportunity to defend himself despite not having access to the whole record? Level of Disclosure required No Breach Must at least provide the essence of the information Sufficient to be able to give meaningful instruction to counsel and special advocates so they can challenge the information and evidence Designated judge is the arbiter of whether the standard is met- judges must be vigilant and sceptical of minister’s claims (a lot of weight on the judge in this context) The special advocate is an adequate substitute The Canadian Bill of Rights- Federal Statutes s.1(a): the right of the individual to life liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law. nature of Canadian Bill of Rights s. 1 limits rights (“have existed and shall continue” = protects rights of a kind recognized in law in 1960, when the Bill was passed) (Authorson) s.2: unless expressly declared, every law shall be construed so as to infringe any rights herein. No law shall be construed as to: (d): authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards (e): deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. ** note the distinction between person and individual (corporation v not) Authorson v Canada (2003 SCC) Facts Class action by veterans, crown administered the funds without investing or paying interest. Parliament passed legislation declaring the crown was not liable for “lost interest”. The veterens claimed the 30 Issues Held legislation violated the CBR. There were no procedural rights accorded prior to the passage of the law Due process is substantive: CBR protects property 1) there is no right to be heard before the passage of legislation (even if the CBR applies) 2) The statutory bar in the legislation operates automatically- there was no administrative decision to which due process could attach 3) CBR s.1(a) does not protect the citizen against expropriation of property without compensation, through clear legislation Singh v Canada (MCI) (1985 SCC) oral hearing required because of Constitution and CBR Facts Were not found to be convention refugees, were unsuccessful at the appeal stage (at the time, the IAB had to consider whether there were RG to have an oral hearing, or else dismiss the file). Singh sought JR saying the lack of oral hearing violated s.7 of the Charter. Further, CBR is expressly preserved by s.26 of the Charter. s.7 3 judges held s.7 requires the process be in accordance with principles of fundamental justice: requires an oral hearing CBR s.2(3) 3 judges held CBR s.2(3) applies (because this process involves the determination of rights and obligations) and requires a fair hearing – an oral hearing in this case. Statutory Common law can only be extinguished by clear or necessary implication Authorization Other Quasi-Constitutional Provisions Alberta Human Rights Legislation Quebec Charter of Human Rights and Freedoms 5. IS THERE A REMEDY? Judicial Review is seen as a last resort: internal appeals must be exhausted, if that is an adequate alternate remedy. Since remedies are discretionary, they will not be granted where other options exist. Note the JRPA: s.8 states that where a court had discretion to refuse relief prior to the Act (the old writs) then they continue to have discretion Generally where procedural deficiencies can be corrected without Judicial Review: 1. Adjournment until Notice is given 2. Reconsideration (where it has jurisdiction to) 3. Where there is an internal appeal process, and the appeal will be a trial de novo (not on the record of the previous deficient hearing) 31 Remedies: Historical and Modern Prerogative Writs (special remedies reserved for public law cases, were always discretionary and a pleading had to fit into a specific writ) Certiorari Prohibition Mandamus Habeas Corpus Quashes and sets aside the decision used to obtain relief pre-emptively, stops the board from proceeding when there is no jurisdiction compels the lower court/board to perform a duty it is mandated to perform or had a duty to do ensuring imprisonment is not illegal – state must prove the imprisonment was lawful Private law equitable remedies Declaration determines and states the legal position of the parties or the law that applies to them Injunction To restrain conduct Modern Writs: procedural reforms mean the prerogative writs of certiorari, mandamus, and prohibition can NO longer be applied for or issued per se. Habeas Corpus can still be applied for, in the Supreme Court. The writs can be granted with discretion (are more flexible now, don’t have to fit into the box) BC Judicial Review Procedures Act: Came into force in the 1970’s reformed the writs does not attempt to codify or displace the common law principles and rules on which relief may be grounded or denied simplifies procedures and removes the risk that formerly attached to “seeking the wrong writ” s.13 Can no longer apply for a writ specifically s.2(2) on an application for judicial review the court s.2(2): "may grant any relief that the applicant would be entitled to" in proceedings for relief in (a) the nature of certiorari, prohibition or mandamus or (b) for a declaration or injunction” s. 13 “no writ of mandamus, prohibition, or certiorari may be issued” The Federal Courts Act s.2 Applies to all federally established boards, commissions, or tribunals (broadly defined) s.18 (2): application for JR must be done within 30 days of the decision (can extend) (3): The FC can (a): order mandamus (b) declare invalid/quash a decision (4): provides when the FC may grant relief on JR under (3), where a tribunal: (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; 32 (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. s.28 (1): lists the federal boards, commissions, or tribunals the FC has jurisdiction to hear Where the court can refuse relief: Mootness see NB Minister of Health, Cardinal: will hear the case if it is in the public interest and the issue will usually moot by the time it gets to the SCC Delay Where there was an unreasonable delay in bringing the JR and it will prejudice the other party. Statutory requirements: s.18.1(2) of the Federal Courts Act: applications for JRs must be brought within 30 days of the decision of a federal body, but the court has discretion to extend. s. 57 of the ATA: applications for JR must be brought within 60 days but the court can extend s.11 of the JRPA: where the ATA does not apply in BC, an application for JR is not barred by time unless an act otherwise provides and there is substantial hardship/ prejudice as a result of the delay Misconduct See Homex: relief can be denied because of no “clean hands” even if they win – rare. Waiver A party can waive a breach of procedural fairness if they have knowledge of all the facts and legal rights. a waiver can be express or implied depending on the circumstances a mere failure to object will not automatically be a waiver depends if counsel are involved after an objection is made: the party’s continued participation is not a waiver (party may be obliged to continue in order to avoid the court dealing with premature applications) Prematurity Rationale: avoids fragmentation and protraction of administrative processes, “interlocutory” decisions are generally not reviewable (Black, 32-43 pg 144) JR applications brought prior to or during administrative proceedings will usually be dismissed, unless there are severe independence issues or the applicant cannot be sufficiently heard, because: o Procedural defects can sometimes be remedied during the process o The complaining party may ultimately succeed on the merits anyways (SR) o Courts can consider the issues on a whole (full record) rather than on an incomplete basis A JR may still be heard if it is an exceptional circumstance: further processes are not justiciable so the applicant is left with no possibility to challenge the issue, where there is no AAR (Black: not because tarnished reputation, 43) Adequate Alternate Remedy Uses prematurity as a rationale: if it is premature there are likely alternate remedies available s.18.5 of the FCA: where an appeal option is provided for, it must be pursued rather than judicial review more difficult to see whether internal administrative remedies need to be followed before JR. Usually it will be required because: 33 o o o o the issue may be internally corrected (internal “hearing de novo” option or if empowered to review for errors of law) it may be substantively resolved in favour of the complainant anyways the court’s review function may be assisted by the full record, including the internal appeal and the board’s relevant expertise: even if relief is refused for prematurity or because there is an AAR, a subsequent JR can be applied for later will conserve judicial resources Consider the following to determine if there is an AAR or if an exceptional remedy should be granted: the nature of the internal appeal: can it correct the problem? The convenience of the alternate forum (costs time, as opposed to a JR application) Procedures and capacity: will the alternate forum operate with PF and without bias? Will it have immediate consequences for the person? Harelkin v University of Regina (1979 SCC): student ordered to discontinue studies- appeal was to council, where the obligation was to “hear and decide”. They only heard from the university before deciding. The next step of appeal was the senate, but the student JR’d instead of that. Held: had to exhaust the appeal process first. Although there was a breach of PF, the decision was voidable by further process, but was not void at that stage. Dissent: the error amounted to a jurisdictional error – “an appeal is simply not a sufficient remedy for the failure to do justice in the first place” “ascending rigidity” in universities: it will likely not be a trial de novo- ascending rigidity in academic institutions Taiga Works: i. the gravity of the error committed at first instance ii. the likelihood that the prejudicial effects or the error may have permeated at the rehearing iii. whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of rehearing de novo iv. the seriousness of the consequences for the individual v. the width of the powers of the appellate body (what can they do if a breach is found? Can they send it back? If the power to send it back is not available, perhaps the only option is to go to the court) Balance of Mining Watch Canada v Canada (DFO) (2010 SCC): balance of convenience should be considered: Convenience including whether denying a remedy will have a disproportionate impact on the parties, or the interests of third parties. Futility An individual is entitled to a remedy even where it appears the substantive result would have been the same if the PF was corrected. It should not be refused unless the above exceptions apply Cardinal v Kent Institution: the right to a fair hearing is an independent, unqualified right Exception: Mobil Oil (1994 SCC): the court refused to grant a remedy despite a breach of PF, because it was clear there was only one decision that could have been made by law. Therefore a new hearing would be futile. 34 Legislated Procedural Fairness requirements The BC ATA: only applies to the extent the enabling statute provides See CP 127, “ATA Overview” s.11: power to control own processes ss.19-22: provisions on notice 35 1. THE RULE AGAINST BIAS The other prong of common law natural justice: no one ought to be a judge in his or her own cause Historical Principle Now justice requires all judicial and quasi-judicial decisions to be made by an impartial decision maker. Application It is applied contextually to the administrative context (not really the Baker factors though) Adjudicative bodies: high standard Body with many functions, one of which is adjudicative: less high Purpose and Rational There is some overlap with hearing rights fosters public confidence in administrative justice: fosters legitimacy and acceptability of decisions promote substantive fairness and better decision making supports participatory procedural rights linked to ROL and equality goals issue: whether someone is heard when their mind is closed disclosure: having more information than what is on the record Categories of Bias 1. Pecuniary or Material Interest in the Outcome: “conflict of interest” – Energy Probe, Pearlman, Imperial Oil It encompasses administrative decision making, not just judicial or quasi judicial. It is an obligation associated with common law procedural fairness 2. Personal Relationships: ex. Parties, counsel, witnesses – Bennett and Doman 3. Prior Involvement: usually corrected through internal rules a. Re-hearings – BCNU, b. Specific Case Involvement: before appointment to the tribunal – Committee for Justice and Liberty, Wewaykim Indian Band, Imperial Oil c. Overlapping Functions: within the agency, prior to decision making stage, or sitting on an appeal of your own decision. – Brosseau 4. Attitudinal Bias: attitudinal predisposition toward an outcome, difficult to prove, there is a relaxed standard for some circumstances – Turoczi, Miracle Food Mart, Francis, Old St Boniface, Save Richmond Farmland, Newfoundland Telephone Actual Bias Requires proof ex. Decision maker’s comments Institutional Bias TEST for RAOB The way the decision making is structured Committee for Justice and Liberty v NEB, as cited in Baker: 36 (actual bias need not be established) 1) the person considering the alleged bias must be reasonable 2) the apprehension of bias must also be reasonable in the circumstances of the case ALSO this person must: be informed of all relevant circumstances, and not have a very sensitive or scrupulous conscience AND the grounds for RAOB must be substantial (mere suspicion is not enough) Legal Effect of Bias Disqualification: causes a lack of jurisdiction for the decision maker- they can no longer make a valid decision. Legal Options: The decision can be quashed after the fact, or there can be an application for prohibition (note that prematurity objections may arise) Process: must raise the issue before the decision maker makes a ruling, then continue with the proceeding while maintaining the objection, or apply for prohibition Waiver: used to deal with a problem at the outset. Note that this could lead to something in the public interest being waived because a particular party doesn’t have standing Exceptions and Defence against Bias 1. Statutory Authorization (trumps common law): where statute expressly or by necessary implication authorizes a decision maker to proceed despite what might otherwise been seen as a disqualifying bias. A complete defence where it exists, unless the legislation can be challenged based on the constitution or CBR and found inoperative 2. Necessity: where there is no other decision maker who can make the decision 3. Waiver: issue is waived if done so clearly and with knowledge Check: quotes on slide 4 ,6 of Bias 1 PP R v S(RD) (1997 SCC) Facts White PO arrested black teen. Judge acquitted, and made comments that PO have been known to mislead in racially motivated situations, it was the prevalent attitude. No RAOB Judge was contextualizing the situation, not being bias, the threshold is high. judges do not have to discount their life experiences to be impartial. a. Pecuniary Interest Cases Pearlman v Manitoba Law Society Judicial Committee (1991 SCC) Facts Costs of the law society investigation can be awarded against a lawyer found guilty of misconduct by the law society. Pearlman argued they had a pecuniary interest in finding him guilty. No RAOB The monetary interest is too remote to give rise to a RAOB. Perhaps for a smaller self governing profession, the result would have been different (pharmacist in a small town- incentive to get rid of the competition) Imperial Oil v Quebec (MOE) (2003 SCC) highly contextualized took the decision off the bias scale “the duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative justice” 37 Facts Minister ordered Imperial oil to do a site contamination study, company alleged bias because the Minister had been involved in supervising earlier decontamination work at the same site (the ministry had failed to clean up the site, and were facing law suits). No RAOB The Minister was using a discretionary political power not an adjudicative function Nature of the Decision Made in consideration of the public interest: acting in the interest of the tax payer, not himself Power was exercised according to the legislative framework: the power is discretionary as long as the procedures are followed (they were). There wasn’t a personal interest involved. Necessity: the court below used this- he had to make the decision. Note: he could have delegated the power to avoid this (compare to CUPE: where the authority was so clear it did not need to be delegated at all) b. Personal Relationship Cases Bennett and Doman v BC (1993 BCCA) Facts A panel member of a securities proceeding was the director of a forest company. Bennett said they were competing companies in the same industry. RAOB exists Although this is very close to no RAOB, it was held he should not have sat on the panel. c. Prior Involvement Cases Reference by the NEB: Committee for Justice and Liberty v Canada (1978 SCC) contact with the subject matter before becoming a decision maker Facts Mr. Crowe was on a panel to hear applications about the Mackenzie River pipeline. 80/88 had no issue with him presiding (he had previously been a part of a study group considering the feasibility of a northern pipeline). RAOB There is a RAOB, he should be disqualified from sitting on the panel Considerations 1. Extent and Nature of prior involvement He had extensive involvement with a group that brought the issue to the board, and with the issue the board was specifically concerned with. 2. Recency of the Involvement His involvement ended two years before his NEB appointment, however the group applied only 5 months after he left. Test what would an informed person, viewing the matter realistically and practically- having thought the matter through- conclude. Would he think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. Dissent This is a regulatory context: panel members should have expertise in this area, so there should be more tolerance for personal experience with the sector. We should trust those with personal expertise to act in good faith. 38 Wewaykum Indian Band v Canada (2003 SCC) Judicial context Facts Binnie had written a unanimous decision. Bands found out he was with the DOJ during litigation on the issue, would have had prior information about the claim. No ROAB or There is a strong presumption of judicial impartiality: disqualification can only be based on vacated serious grounds. judgment Considerations He was never counsel of record, played no active role, was supervisory It was 15 years ago Even if he was “tainted” the other eight judges were not Brosseau v Alberta Securities Commission (1989 SCC) overlapping functions + statutory defence (below) Facts The commission conducted an investigation into Brosseau, the chair recommended there be a hearing, then sat on the adjudicative panel. No RAOB The chair only fulfilled his statutory duties, and the nature of the commission is not like a court Considerations Highly contextual approach: economic regulation, protection of the public interest d. Attitudinal Bias Cases Turoczi v Canada (MCI) (2013 FC) attempt to establish bias through the use of statistics Facts Failed refugee applicants from Hungary: alleged bias because the Member’s rejection rate was 20% lower than average. Relied on a published report summarizing refugee data No RAOB The data required more information as it was never argued that individual cases were wrongly decided and an informed person would have more statistical questions: ‘ report is not sufficient evidence on its own, further this particular case was not strong on its facts. The Member was “practically obliged” to make the decision he did. Consideration A bias allegation is serious: it must be tested against “credible evidence and sound reasoning” i. The Effect of Academic Papers written before Appointments Gale v Miracle Food Mart (1993 ONSC) Facts A law prof sitting on an HR board of inquiry in Ontario to hear a systemic sex discrimination case was challenged. He had a background as an advocate in this area (had academic writings that favoured a liberal interpretation on HR law) and she was involved in a systemic sex discrimination case from Osgoode that had never fully been withdrawn. RAOB Based on her involvement in a previous HR complaint (not academic writing): it was the same issues as 39 her complaint, as a board member she could “vindicate the position she had taken” Francis v Canada (MCI) (2012 FC) Facts Refugee claimant on the basis of sexual orientation. Member held hearing, five days later they found he had made some remarks and had previous academic writing on refugee policy, asked member to recuse himself. He did not, decided against the claimant. No RAOB Considerations Although the JR was successful on other grounds, the threshold for RAOB is very high. Administrative adjudicators have a presumption of impartiality The comments, when contextualized, did not establish RAOB Previous academic writings did not give rise to RAOB: past experience is valuable to a decision maker, the expression of prior views should not disqualify a decision maker (link to judges in R v SD) Note: Becomes an issue when you have to decide which academic opinions of acceptable and which are notusually only an issue if written after appointment. Should previous advocacy of strong opinions by academics be capable of giving rise to RAOB? Where is the line? ii. The Relaxed Standard for Bias The flexible/relaxed standard arises where: 1. it is not a personal interest, and a. it is a municipal councillor (elected) where the “closed mind” test applies b. a policy board, where the relaxed standard applies before a hearing Historically: The rule against bias didn’t apply to administrative decision makers (natural justice did not apply). So now that it does apply, it must be applied contextually. Old St Boniface Residents Association v Winnipeg (1990 SCC) heard as a companion case with Save Richmond Farmland Society v Richmond (1990 SCC) Facts Savoie was a city councillor in favour of a condo development. He participated in the public (Boniface) hearings about re-zoning, without disclosing he had been involved in the project from the beginning. The residents asked him to remove himself since he had already been in favour, but he refused (there was no evidence he had a personal relationship with the developer) Facts (Richmond) Alderman campaigned for office favouring residential development, was re-elected, new bylaw introduced with public hearing, some objected to his predetermination (said it would take something significant to change his mind) No RAOB Sopinka: There was no personal interest or prejudgment- no disqualification for bias TEST for municipal councillors The councillor will not be disqualified for bias where: the councillor remains “amenable to persuasion”: they must not evidence a “closed mind” to the point where any representations from the other side would be seen as futile. The councillor must not express a final opinion that cannot be dislodged Must be “capable” of change 40 Considerations Unless there is personal interest, the role of a councillor is to take positions as a political and legislative duty. Minority Opinion (difference approach) La Forest: There is no way to gauge the “openness” of a person’s mind. If a politician has campaigned on an issue, it seems fruitless to pay “lip service” to the amenable to persuasion requirement, as long as his mind is not corrupt. the decision making process is at the legislative end of the spectrum closed minds are entitled, as long as they are not the result of corruption. Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities (1992 SCC) Facts The board can investigate and adjudicate matters. The commissioner made public comments against the appellant before and during the hearing, he had a history of consumer rights activism (and stated he would serve this position on the board). RAOB: applies once hearing is set Bifurcated approach applies to Policy Boards: Before Hearing: relaxed standard applies: a member of a policy board is not susceptible to a charge of bias prior to a hearing – during the investigations process a wide licence is given, as long as the statements do not indicate a closed mind. Once a hearing is set: RAOB test applies (would a reasonable person appraised of the situation perceive an apprehension of bias?) iii. Institutional Bias Quebec Inc v Quebec (1996 SCC) Facts Liquor licence was removed, the bar sought to quash the decision because of impartiality due to s.23 of the Quebec Charter, which is triggered when a body is exercising a quasi-judicial function. Both independence of the Liquor Regie and institutional impartiality were alleged. Overlapping Functions That the Regie participates in investigation and adjudication does not give rise to a RAOB. However, individuals had overlapping functions, blending functions of prosecutor and adjudicator = RAOB at an institutional level Overlapping functions: must not result in “excessively close relations among employees involved in different stages of the process” Note: in this case, there was no evidence of operation reality (that an individual could both investigate and adjudicate) but there were no rules in place to assure this wouldn’t happen. The court was looking for objective guarantees for independence as this was quasi-judicial decision making TEST “The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically- and having thought the matter through- would have a reasonable apprehension of bias in a substantial number of cases” because of the way the decision making process has been structured 41 Compare to Brosseau Where the statutory defence shielded overlapping functions from and institutional bias issue without a Rights Doc and only implied authorization, here, the defence does not stand e. Statutory Authorization Defence Note: Rights documents can override this defence statute trumps common law, but only to the extent it is constitutional (Ocean Port) Brosseau v Alberta Securities Commission (1989 SCC) overlapping functions + statutory defence Facts The commission conducted an investigation into Brosseau, the chair recommended there be a hearing, then sat on the adjudicative panel. Statutory Defence Applies Statutory Authority Where the overlap of functions is authorized by statute, there is no RAOB unless the statute is unconstitutional. The Commission has implied authority to conduct reviews. It is not like a court while doing so because it is fulfilling a protective role. The court interpreted a necessary implication to authorize the overlapping functions in the statute because of its context. Considerations Highly contextual approach: economic regulation, protection of the public interest. To disqualify the commission, the chair must have acted beyond its statutory duties Notes Compare with Quebec Inc (tribunal independence) on the interpretation of the statute – in that case the statute did not expressly authorize overlap, and it was up against a rights document Compare with CUPE (below): here, intent was implied rather than express CUPE v Ontario (Minister of Labour) (2003 SCC) Facts Minister has express legislative authority to appoint a member of a labour arbitration board. However, the unions alleged RAOB because the minister was a part of a cost-cutting government that had a pecuniary interest in the outcome of disputes. Note: minister argued it was not his interest and that it was too remote (Pearlman) No RAOB The legislation had an express statutory power of appointment (clear language), the legislature’s choice of the Minister as the decision maker was unequivocal. He was not required to delegate the authority. MacBain v Canada (CHRC) (1985 FCA) Overlapping functions, Institutional Bias Facts M was the subject of a sexual harassment complaint. Legislative scheme is as follows in 1985: CHRA receives complaints investigates, determines whether to refer to hearing chief commissioner appoints a tribunal for hearing CHRC lawyer appears to prosecute the claim Concern: direct connection between prosecutor and decision maker (the overlapping functions are authorized by statute- the CHRA) s.2(e) of the CBR: guarantees the determination of rights and obligations not to be 42 discriminatory RAOB in the process Result Certain CHRC provisions are inoperative because they are inconsistent with the CBR: Notes This was a federal statute, so the CBR applied. Had this been BC legislation, statutory authority would have been a complete defence, absent a Charter challenge (s.7, s.15 discrimination?) Legislative amendments to the CHRA: make the tribunal more independent from the commission so there are less overlapping functions. Chretien v Canada: chair of the inquiry into in the sponsorship scandal seduced by media issues – made inappropriate media statements, Chretien challenged it. 2. ADMINISTRATIVE INDEPENDENCE 1) Individual independence (“adjudicative independence”) Freedom from influence by outsiders, other members of the tribunal who are not hearing the case Are there too many processes seeking consistency in decision making? 2) Institutional independence ** focus on this for 301**: Freedom from political control, executive influence Linked with concepts of judicial independence (Valenti) Are there certain conditions or guarantees that conserve independence? Administrative agencies: are “arms length” from the government in many cases how does independence apply? depends on the spectrum of procedural fairness Purpose Relationship to Impartiality Sources of Ensures impartiality, and the appearance of impartiality (Quebec Inc) Ensures decision makers are free to exercise independent judgement, without being or appearing to be beholden to the executive o Promotes public confidence in the justice system o Promotes perceived legitimacy of decision making Rationale: many administrative decisions involve the Crown as a party, independence is therefore very important: otherwise decision makers may appear to be biased in favour of the government’s position in order to keep their jobs ect. (essay idea? Not enough challenge to this?) Concern: sometimes institutes are part of the executive Branch Both are components of PF and the rule against Bias and are based on the rationale of having public confidence. But: Institutional independence focuses on the tribunal’s overall status or relationship to others (esp. the exec branch) and rests on objective criteria and guarantees (Valenti). Impartiality refers to the subjective state of mind of an individual decision maker and the absence of RAOB. However, it can also be assessed on an institutional level (the structure can give rise to RAOB on an institutional level) s.7: where it applies, maybe also s.11 43 Institutional Independence In the Judicial Context Provincial Judges Reference: judicial independence is an unwritten constitutional principle, applies to civil matters. Valenti: reflected in s.11(d) of the Charter. TEST for Institutional Independence is there a reasonable apprehension of an insufficient level of impartiality due to a lack of sufficient institutional independence ? What would be the perception of the reasonably informed member of the public in this regard (in light of the Valenti criteria)? (Matsqui) To determine sufficiency of independence: assess the relationship between the administrative institution and the executive branch in light of the Valenti criteria Valenti Criteria for Judicial independence 1) security of tenure 2) financial security 3) institutional independence regarding administrative functions that are closely related to judicial ones, like case assignment, court lists, scheduling what is the ability of the agency to control its own criteria? CBR, s.1(a) and 2(e): where it applies to federal acts and administrative decisions Quebec Charter s.23 (when a body is exercising a quasi-judicial function) Alberta Bill of Rights s.1 Legislation: some statutes may provide statutory guarantees ex. ATA s.2-10 Common Law PF: some decision makers must have independence (Matsqui) - arose out of crim context: s.11(d) of the Charter Application The Valenti criteria do not apply to all agencies, and where it does apply, it must be applied flexibly to take into account the administrative context strong principle: where there is a constitutional or quasi-constitutional guarantee of an independent tribunal statutorily provided for: defence of statutory authorization applies unless rights document can override it (Ocean Port) CP v Matsqui Indian Band (1995 SCC) Facts Indian Act changes enabled bands to establish tax bylaws. Matsqui wanted to tax CP: they argued the land was not vested in the crown so was not subject to band tax. They challenged the jurisdiction of the tax process rather than challenging it within the band’s process. AAR and Independence Was there sufficient independence in the process, so that the internal appeal process was an adequate alternate remedy? Majority on independence requirements The Valenti criteria apply for certain tribunals that are functioning as adjudicative bodies, settling disputes, and determining the rights of parties, and should be applied flexibly to assess whether there is sufficient independence. No guarantee of independence in the bylaw There was no mention of term length, payment, financial security or suggestion dismissal can only be for cause. the factors are flexible (and applied functionally keeping the objective of developing self- 44 governance in mind), but can’t be ignored. Dissent on independence issue differing opinions by CJ and Sopinka on this issue as to whether the band appeal process was an adequate alternate remedy. people were not yet appointed to the appeal board so this was premature. The court should wait for “operational reality” before intervening, as at this time there was no clear evidence they would not be independent. Quebec Inc v Quebec (1996 SCC) independence where there is a Rights Document Facts Liquor licence was removed, the bar sought to quash the decision because of impartiality due to s.23 of the Quebec Charter, which is triggered when a body is exercising a quasi-judicial function. Both independence of the Liquor Regie and institutional impartiality were alleged. Independence Issue was ok 1) Tenure security was found to be sufficient: had terms (“up to five years”, but were actually appointed for 2,3, or 5 yrs), could only be dismissed for cause 2) Contact with the Minister: not outside of the expected level of supervision even though the following points of contact existed: Regie provides annual report to Minister Min can require Chair to report re Regie’s activities Min must approve internal rules/regs passed by Regie Min evaluates performance of Chair Min supervises police force that Regie uses Min could initiate a cancellation process What this means: given this agency was at the high end of the PF spectrum, it indicates the courts will have a high tolerance for ministerial supervision over such tribunals, even in the face of a rights document (essay). Ocean Port Hotel v BC (Liquor Licensing Branch) (2001 SCC) Independence where there is no Rights Document Facts Hotel was fined for violating liquor act, they appealed, the JR’d. They alleged lack of independence because the members could be “removed at pleasure” even if they were entitled to payment for their full appointment term. Independence Required for Agencies that Impose Penalties In the absence of constitutional requirements, the legislature (enabling statute) must determine the degree of independence to be accorded to a tribunal. Sufficient Independence Legislative intent is clear + Quebec Inc is distinguished Overlap in functions does not create RAOB if authorized by statute. If the statute is silent or ambiguous, natural justice can be imported. Note: despite the fact this is similar to the Regie in Quebec Inc, and it is close to a criminal proceeding. the unwritten constitutional guarantee of independence does not apply to administrative tribunals. There is a fundamental distinction between administrative tribunals and courts. Administrative tribunals are not constitutionally distinct from the executive, as they are created to implement government policy, sometimes implementing policy requires making quasi judicial decisions- they therefore “span the constitutional divide”. As a general rule, tribunals do not attract Charter requirements of independence. The degree of independence in discerned by finding the legislative intent as to how the body should function- unless there are constitutional constraints. (essay) 45 Ongoing debate… Can still be argued that there is a guarantee of independence for some administrative tribunals, if Ocean Port can be distinguished, but may not be successful Ex. Saskatchewan Federation of Labour v Saskatchewan (2013 SKCA): said unwritten constitutional principle does not apply, even if the labour relations board functions near the judicial end of the spectrum. Policy Problems: 1. Determining which agencies should be independent from government control: as more powers are transferred to tribunals from courts, should some bodies be more independent than others? What criteria would be applied (essay) 2. If only adjudicative/quasi-judicial bodies have independence, what happens to bodies that are adjudicative AND policy making? What bodies rely on executive control to implement government policy? If they are independent how can policy be accountable? 46