CML 2312: ADMINISTRATIVE LAW
Forcese
CML 2312: Administrative Law (Forcese)
Where do procedural duties come from?
The Multiple Sources of Procedural Duties
" In the absence of a statutory provision
expressly dealing with the quorum required
for an application to reopen a decision on
the ground that it is vitiated by procedural
unfairness, I start from the premise that
tribunals are masters of their own
procedure and have an implicit discretion
over the process by which they discharge
their statutory responsibilities“
-- Faghihi v. Canada, Federal Court
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
Why are procedural obligations important?
Procedural fairness and liberty
“...procedural fairness and regularity are
the indispensable essence of liberty.
Severe substantive laws can be endured if
they are fairly and impartially applied.”
-- Justice Jackson, USSC
CML 2312: Administrative Law (Forcese)
Historical Background
Chronology of Key Cases
Key Concepts
•Dr. Bentley’s Case (1723)
•Cooper v. Board of Works
(1855)
•Nakkuda Ali v. Jayatatne
(1951)
• Copithorne v. Calgary Power
(SCC)
•Canada v. Coopers & Lybrand
•Ridge v. Baldwin (1964)
•Re H.K. (1967)
•Meaning of “Natural Justice”
• audi alteram partem & nemo
judex
•the common law “supplying the
omission of the legislature”
•the concept of judicial, Quasijudicial and administrative and
the “superadded” duty to act
judicially
•Procedural “fairness”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
The UK Position by the time of Nicholson in Canada
Chronology of Key Cases
Key Concepts
•Dr. Bentley’s Case (1723)
•Cooper v. Board of Works
(1855)
•Nakkuda Ali v. Jayatatne
(1951)
• Copithorne v. Calgary Power
(SCC)
•Canada v. Coopers & Lybrand
•Ridge v. Baldwin (1964)
•Re H.K. (1967)
“…it is now clearly settled, and
is indeed self-evident, that there is
no difference between natural
justice and 'acting fairly', but that
they are alternative names for a
single but flexible doctrine whose
content may vary according to the
nature of the power and the
circumstances of the case“
-- Wade
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
The Nicholson Revolution in Canada
Chronology of Key Cases
Key Concepts
•Nicholson v. Haldimand Norfolk
Police (1979), SCC
Implications:
1. Duty of fairness that applies to
dismissals from public office
2. There is a due process standard
of some sort irrespective of
classification of type of delegate
3. Relationship between “natural
justice” and “duty of fairness”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
The Nicholson Revolution in Canada
Chronology of Key Cases
Key Concepts
•Nicholson v. Haldimand Norfolk
Police (1979), SCC
•Martineau v. Matsqui (1980), SCC
" It is wrong, in my view, to regard
natural justice and fairness as distinct
and separate standards and to seek to
define the procedural content of each…
In general, courts ought not to seek to
distinguish between the two concepts,
for the drawing of a distinction between
a duty to act fairly, and a duty to act in
accordance with the rules of natural
justice, yields an unwieldy conceptual
framework.“
-- per Dickson J
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
The Nicholson Revolution in Canada
Chronology of Key Cases
Key Concepts
•Nicholson v. Haldimand Norfolk
Police (1979), SCC
•Martineau v. Matsqui (1980), SCC
•Cardinal v. Kent (1985), SCC
Implications:
1. Hints as to where a duty to be
fair will be triggered
2. Distinguishes between
administrative and legislative
decisions
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Origin of Procedural Duties
The Knight v. Indian Head “Three Prong Trigger”
Chronology of Key Cases
•Knight v. Indian Head, SCC
Key Concepts
The Three Prong Test:
1. the nature of the decision to be
made by the administrative body;
2. the relationship existing between
that body and the individual; and
3. the effect of that decision on the
individual's “rights”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
The Knight v. Indian Head “Three Prong Trigger”
Chronology of Key Cases
•Knight v. Indian Head, SCC
Key Concepts
Implications:
1.
2.
3.
Provides us with a test for where
procedural fairness will be found
to exist by the courts
Confirms that there is a distinction
between something called
administrative power and
something called legislative power
Confirms that should it wish to do
so, the legislature can bar
procedural fairness by so
specifying in the statute
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
The Knight v. Indian Head “Three Prong Trigger”
Chronology of Key Cases
•Knight v. Indian Head, SCC
•Re Abel
•Re Irvine
•Dairy Producers
Key Concepts
Comments on the Three Prongs:
1.
Provides us with a test for
where procedural fairness will
be found to exist by the courts
• The issue of “preliminary”
decisions
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
The Knight v. Indian Head “Three Prong Trigger”
Chronology of Key Cases
•Knight v. Indian Head, SCC
Key Concepts
Comments on the Three Prongs:
2. the relationship existing
between that body and the
individual
• Private voluntary
organizations
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
The Knight v. Indian Head “Three Prong Trigger”
Chronology of Key Cases
•Knight v. Indian Head, SCC
•Webb
•Hutfield
Key Concepts
Comments on the Three Prongs:
3. the effect of that decision on
the individual's rights
• Meaning of “rights”
• Fairness exists where
rights, interests,
property or liberties of
the person affected by
delegate’s actions
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
Key Concepts
• Good administration may
demand the observance of
fairness wherever the citizen has
been given a legitimate
expectation that he or she will be
treated fairly
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
Key Concepts
•Citing Hong Kong v. Ng Yuen Shiu
“When a public authority
had promised to follow a certain
procedure, it is in the interest of
good administration that it
should act fairly and should
implement its promise, so long
as implementation does not
interfere with its statutory duty"
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
Key Concepts
• Court supplies the omission
where, based on the conduct of
the public official, a party has
been led to believe that his or her
rights would not be affected
without consultation.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
Key Concepts
• When a public authority has
promised to follow a certain
procedure and an interested
person relied and acted upon
that promise, it is not in the
interest of good administration
nor is it in the interest of fairness,
to disregard that promise and to
deal with that person by way of a
procedure different from the one
the public body committed itself
to follow
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
Key Concepts
a party affected by a decision of a
public official who has been promised
an opportunity to make
representations in circumstances
where there would otherwise be no
opportunity
• legitimate expectation creates
procedural, not substantive rights
•
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
•Libbey v Ontario, ONCA
Key Concepts
•
What is legitimate expectation and
where does it arise?
• those who deal with
government bodies and
agencies who wield power for
the public good should be able
to rely on representations made
to them.
• the court will intervene by way
of judicial review where a public
authority attempts to resile
from a representation to the
detriment of someone who has
relied on that representation.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
•Libbey v Ontario, ONCA
Key Concepts
• What is legitimate expectation
and where does it arise?
•Problem: doctrine is an aspect
of procedural due process and
not a source of substantive
rights
• Problem: the existence of a
statutory regime dealing with
the vacation pay determination
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
•Libbey v Ontario, ONCA
Key Concepts
• Even if legitimate expectation
applied would the letter be
enough?
• for there to be a legitimate
expectation, there has to be
a clear and unequivocal
representation by the
government authority
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
•Libbey v Ontario, ONCA
•CUPE v. Ontario, SCC
Key Concepts
“[legitimate expectation] looks to
the conduct of a Minister or other
public authority in the exercise of a
discretionary power including
established practices, conduct or
representations that can be
characterized as clear, unambiguous
and unqualified, that has induced in
the complainants (here the unions) a
reasonable expectation that they will
retain a benefit or be consulted
before a contrary decision is
taken.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
Key Concepts
•Old St. Boniface, SCC
•Gaw v. Corrections, FCTD
•Furey, Nfld SC
•Libbey v Ontario, ONCA
•CUPE v. Ontario, SCC
•Mount Sinai, per Binne J at SCC
• Legitimate expectation and public law
promissory estoppel
• The party relying on the doctrine
[of promissory estoppel] must
establish that the other party has,
[1] by words or conduct, made a
promise or assurance [2] which
was intended to affect their legal
relationship and to be acted
on. Furthermore, the
representee must establish that,
[3] in reliance on the
representation, [4] he acted on it
or in some way changed his
position. … [T]he promise must be
unambiguous but could be
inferred from circumstances.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Legitimate Expectation: What worth a promise?
Chronology of Key Cases
Key Concepts
•Summary:
1. A promise or representation
from a delegate
2. To proceed in a certain fashion
3. (possibly) Resulting in
detriment when promise is
broken to a person who relied on
the promise
• Does not apply to:
1. Legislative decision
2. Promises that conflict with
statutory duties
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Martineau, SCC
Key Concepts
“A purely ministerial decision, on
broad grounds of public policy,
will typically afford the individual
no procedural protection, and any
attack upon such a decision will
have to be founded upon abuse of
discretion. Similarly, public bodies
exercising legislative functions
may not be amenable to judicial
supervision”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•De Smith
“A legislative act is the
creation and promulgation of a
general rule of conduct without
reference to particular cases; an
administrative act cannot be
exactly defined, but it includes the
adoption of a policy, the making
and issue of a specific direction,
and the application of a general
rule to a particular case in
accordance with the requirements
of policy or expediency or
administrative practice.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•Inuit Tapirisat
64(1) The Governor in Council may at
any time, in his discretion, either
upon petition of any party, person or
company interested, or of his own
motion, and without any petition or
application, vary or rescind any order,
decision, rule or regulation of the
Commission, whether such order or
decision is made inter partes or
otherwise, and whether such
regulation is general or limited in its
scope and application; and any order
that the Governor in Council may
make with respect thereto is binding
upon the Commission and upon all
parties.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•Inuit Tapirisat
•Citing Bates v. Lord Hailsham:
64(1) The Governor in Council may at
any time, in his discretion, either
upon petition of any party, person or
company interested, or of his own
motion, and without any petition or
application, vary or rescind any order,
decision, rule or regulation of the
Commission, whether such order or
decision is made inter partes or
otherwise, and whether such
regulation is general or limited in its
scope and application; and any order
that the Governor in Council may
make with respect thereto is binding
upon the Commission and upon all
parties.
“[Common law due process] considerations do
not seem to me to affect the process of
legislation, whether primary or delegated. Many
of those affected by delegated legislation, and
affected very substantially, are never
consulted in the process of enacting that
legislation; and yet they have no remedy ... I do
not know of any implied right to be consulted or
make objections, or any principle upon which
the courts may enjoin the legislative process at
the suit of those who contend … insufficient
time for consultation …”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•Inuit Tapirisat
64(1) The Governor in Council may at
any time, in his discretion, either
upon petition of any party, person or
company interested, or of his own
motion, and without any petition or
application, vary or rescind any order,
decision, rule or regulation of the
Commission, whether such order or
decision is made inter partes or
otherwise, and whether such
regulation is general or limited in its
scope and application; and any order
that the Governor in Council may
make with respect thereto is binding
upon the Commission and upon all
parties.
•Core holding:
•where the executive branch has
been assigned a function
performable in the past by the
Legislature itself and where the
subject matter of the case is not
an individual concern, the
considerations are different from
those the court dealt with in
Nicholson
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•Inuit Tapirisat
64(1) The Governor in Council may at
any time, in his discretion, either
upon petition of any party, person or
company interested, or of his own
motion, and without any petition or
application, vary or rescind any order,
decision, rule or regulation of the
Commission, whether such order or
decision is made inter partes or
otherwise, and whether such
regulation is general or limited in its
scope and application; and any order
that the Governor in Council may
make with respect thereto is binding
upon the Commission and upon all
parties.
•Implications: Little unclear, with
several possibilities:
• Rulemaking and all discretionary
powers not subject to procedural
fairness?
• Discretion exercised by Cabinet
not subject to procedural fairness?
• Certain sort of broad, policybased discretion excluded from
procedural fairness?
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Inuit Tapirisat
•NAPO, FCA
Key Concepts
•matter of public convenience or
matter of private convenience?
• Court of Appeal: “The fact that some
advantage might flow from that
decision in favour of BCI could not, in
my view, alter its true nature so as to
render it a matter of private
convenience falling outside the
Governor in Council's subsection 64(1)
mandate of varying or rescinding the
CRTC's earlier determination.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Inuit Tapirisat
•NAPO, FCA
Key Concepts
•Implications:
• Not all discretion exercised
by Cabinet will be considered
“legislative” and immune
from procedural fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Inuit Tapirisat
•NAPO, FCA
Key Concepts
•E.g.,
• Canadian Shipowners Associations,
FCTD (1995)
• the more personal the issue, the
more likely Cabinet’s power of
review is to lose its legislative
nature and the more the principle
of fairness mentioned in
Nicholson becomes applicable.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Inuit Tapirisat
•NAPO, FCA
Key Concepts
•E.g.,
• Canadian Association of Regulated
Importers, FCTD, 1994: “traditionally a
decision has been classified as being of
a legislative nature if it sets out
general rules which apply to a large
number of persons. This is
counterpoised to a decision respecting
one specific individual”.
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
•Inuit Tapirisat
•NAPO, FCA
Key Concepts
• Definition of “legislative”: Vancouver
Island, FCTD:
”[T]he decision must be discretionary,
usually, but not always, general in its
application, based on the exercise of
judgment after assessing factors of
general policy, of public interest and
public convenience, morality, politics,
economics, international obligations,
national defence and security, or social,
scientific or technical concerns, that is,
issues of policy which lie outside the
ambit of typical concerns or methods of
the courts."
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
•Inuit Tapirisat
•NAPO, FCA
•Canada Assistance Plan, SCC
• the concept of a “legislative”
decision is also applicable to the
legitimate expectation trigger for
procedural fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
• A typology of “legislative” decisions:
Type 1: Broad, policy-based power
• usually discretionary,
general in application, based
on exercise of judgement
considering general policy
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
“Legislative” vs. “Administrative” Decisions:
The Classification Game!
Chronology of Key Cases
Key Concepts
• A typology of “legislative” decisions:
Type 2: Rule-making
• Must rule-making also be
“general in application”?
• Homex (SCC): by-law made
with immediate and specific
target in mind
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Emergencies: We don’t have time to talk!
Chronology of Key Cases
Key Concepts
• e.g.,
• Re Walpole Island First Nation
(1996) (Div. Ct.)
• emergency character of
decision placed it beyond
reach of procedural fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
Key Concepts
• “everyone”
• “life, liberty and security of the
person”
• “fundamental justice”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
Key Concepts
"…the standard of what is required to
satisfy [s.7] in its procedural sense...is
not necessarily the most sophisticated
or elaborate or perfect procedure
imaginable but only that of a
procedure that is fundamentally just.
What that may require will no doubt
vary with the particular situation and
the nature of the particular case.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
Key Concepts
•Sample cases:
•Howard, FCA
•Gallant, FCA
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
Key Concepts
"I find it difficult to conceive of a
situation in which compliance with
fundamental justice could be achieved
by a tribunal making significant findings
of credibility solely on the basis of
written submissions."
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
Key Concepts
The concern with administrative
expediency
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
Key Concepts
The concern with administrative
expediency
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
Key Concepts
Summary:
1. Trigger: deprivation of life, liberty
& security of the person
2. Content of fundamental justice:
• at very least, means
procedural fairness or natural
justice
• precise content will vary
depending on circumstances
• Caveats:
1. Fundamental justice
constitutional
2. Fundamental justice may
demand more than procedural
fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
•Charkaoui, SCC
•Suresh, SCC
Key Concepts
Summary:
1. Trigger: deprivation of life, liberty
& security of the person
2. Content of fundamental justice:
• at very least, means
procedural fairness or natural
justice
• precise content will vary
depending on circumstances
• Caveats:
1. Fundamental justice
constitutional
2. Fundamental justice may
demand more than procedural
fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
•Charkaoui, SCC
•Suresh, SCC
•Blencoe, SCC
Key Concepts
Security of the person protects against
only “serious psychological incursions
resulting from state interference with
an individual interest of fundamental
importance” and “it is only in
exceptional cases where the state
interferes in profoundly intimate and
personal choices of an individual that
state-caused delay in human rights
proceedings could trigger the s.7
security of the person interest”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
•Charkaoui, SCC
•Suresh, SCC
•Blencoe, SCC
Key Concepts
Summary:
1. Trigger: deprivation of life, liberty
& security of the person
2. Content of fundamental justice:
• at very least, means
procedural fairness or natural
justice
• precise content will vary
depending on circumstances
• Caveats:
1. Fundamental justice
constitutional
2. Fundamental justice may
demand more than procedural
fairness
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
•Charkaoui, SCC
•Suresh, SCC
•Blencoe, SCC
•Wells, SCC
Key Concepts
Footnote question: can fundamental
justice control the process by which
Parliament passes laws?
“... legislative decision making is not
subject to any known duty of
fairness. Legislatures are subject to
constitutional requirements for valid
law-making, but within their
constitutional boundaries, they can do
as they see fit. The wisdom and value
of legislative decisions are subject only
to review by the electorate. The
judgment in Reference re Canada
Assistance Plan ... was conclusive on
this point in stating that: "the rules
governing procedural fairness do not
apply to a body exercising purely
legislative functions".
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Charter of Rights and Freedoms
Section 7: "Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof, except in accordance with the principles of
fundamental justice"
Chronology of Key Cases
•Sample cases:
•Howard, FCA
•Gallant, FCA
•Singh, SCC
•Dehghani, SCC
•Charkaoui, SCC
•Suresh, SCC
•Blencoe, SCC
•Wells, SCC
•Aurthorson, SCC
Key Concepts
Footnote question: can fundamental
justice control the process by which
Parliament passes laws?
“Long-standing parliamentary tradition
makes it clear that the only procedure
due any citizen of Canada is that
proposed legislation receive three
readings in the Senate and House of
Commons and that it receive Royal
Assent. Once that process is
completed, legislation within
Parliament's competence is
unassailable.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
2. Every law of Canada shall,
unless it is expressly declared
by an Act of the Parliament of
Canada that it shall operate
notwithstanding the
Canadian Bill of Rights, be so
construed and applied as not
to abrogate, abridge or
infringe or to authorize the
abrogation, abridgment or
infringement of any of the
rights or freedoms herein
recognized and declared…
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
1.
It is hereby recognized and
declared that in Canada there
have existed and shall continue to
exist without discrimination by
reason of race, national origin,
colour, religion or sex, the
following human rights and
fundamental freedoms, namely,
(a) the right of the individual to
life, liberty, security of the
person and enjoyment of
property, and the right not
to be deprived thereof
except by due process of
law;…
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
2. …no law of Canada shall be
construed or applied so as to
(e) deprive a person of the
right to a fair hearing in
accordance with the
principles of fundamental
justice for the determination
of his rights and obligations
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
1.(a):
• Who can rely on this section?
• “Individuals”
• What are the triggers?
• Deprivation of right to life,
liberty, security of the person and
enjoyment of property
• What procedural guarantees must be
met?
• “Due process of law”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
• Sample cases:
• Smith, Kline & French
Laboratories, FCTD
1.(a):
“Due process requires, in addition to a
fair hearing, a total process which
provides, for the making of a decision
authorized by law, a means for
rationally relating the facts in the case
to criteria legally prescribed by
Parliament.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
• Sample cases:
Key Concepts
2.(e):
• Who can rely on this section?
• “Persons”
• What are the triggers?
• When rights and obligations
being determined
• What procedural guarantees must be
met?
• Fair hearing in accordance with
the principles of fundamental
justice
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
• Sample cases:
• Singh, per Beetz J., SCC
2.(e):
"the most important factors in
determining the procedural content of
fundamental justice in a given case are
the nature of the legal rights at issue
and the severity of the consequences to
the individuals concerned"
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
2.(e):
• Sample cases:
• Singh, per Beetz J., SCC
• Canada v. Central Cartage, “The fair hearing guaranteed in
FCC
paragraph 2(e) of the Bill of Rights is
not a frozen concept that remains
static. … In other words, the guarantee
of a fair hearing in paragraph 2(e)
should be given a meaning that
recognizes not only the interpretation
and evolution of the term over time
but also the particular circumstances
involved.”
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
Bill of Rights
Chronology of Key Cases
Key Concepts
• Sample cases:
• Singh, per Beetz J., SCC
• Canada v. Central Cartage,
FCC
• 785072 Ontario Inc., FCTD
CML 2312: Administrative Law (Forcese)
PROCEDURAL OBLIGATIONS
Trigger for Procedural Duties
What variables drive content?
Chronology of Key Cases
• Gallant, FCA
Key Concepts
…when it is said that the rules of natural
justice and of fairness are flexible and vary
from case to case [this means] that the same
general rule will produce different results if
it is applied to different factual contexts. In
that sense, it can be said that natural justice
may or may not, according to the
circumstances, require an oral hearing; this
is so because, in certain circumstances, it
may be impossible for a person to answer
adequately the case made against him,
unless he is heard orally. The requirement of
natural justice always remains the same:
that the person concerned be given a fair
opportunity to be heard. The consequences
of the application of this basic requirement
vary, however, with the circumstances.
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Content Varies with the Circumstances
What variables drive content?
Chronology of Key Cases
• Gallant, FCA
Key Concepts
…when it is said that the rules of natural
justice and of fairness are flexible and vary
from case to case [this means] that the same
general rule will produce different results if
it is applied to different factual contexts. In
that sense, it can be said that natural justice
may or may not, according to the
circumstances, require an oral hearing; this
is so because, in certain circumstances, it
may be impossible for a person to answer
adequately the case made against him,
unless he is heard orally. The requirement of
natural justice always remains the same:
that the person concerned be given a fair
opportunity to be heard. The consequences
of the application of this basic requirement
vary, however, with the circumstances.
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Content Varies with the Circumstances
What variables drive content?
Chronology of Key Cases
Key Concepts
General Observations:
1. the more the delegate's decision
making function looks like a
criminal or civil proceeding, the
more the courts will insist on a
strict array of procedural
protections
2. the more significant the rights or
interests affected, the more likely
the courts are to require a higher
level of procedure
3. the procedural rules imposed
should be applied so as to not
frustrate a delegate's attempts to
carry out its statutory obligations
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Content Varies with the Circumstances
What variables drive content?
Chronology of Key Cases
• Baker, SCC
• Suresh, SCC
Key Concepts
Baker Test:
1. Nature of the decision and the
process followed in making it
2. The nature of the statutory
scheme
3. The importance of the decision to
the affected party
4. Any legitimate expectations of
the party
5. The choice of procedure made by
the agency itself
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Content Varies with the Circumstances
The Precise Meaning of Audi Alteram (in Context)
Chronology of Key Cases
Key Concepts
At the most basic level, audi alteram
partem means: Delegates must
always give a fair opportunity to
those who are parties in the
controversy for correcting or
contradicting any relevant statement
prejudicial to those parties
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context)
Chronology of Key Cases
Key Concepts
For the “right to be heard” to be real:
• there is a duty on all delegates
who are subject to procedural
fairness to give sufficient notice of
the decision
• in giving notice, there must
be enough detail about the
decision and the arguments
and evidence that interested
parties can make a meaningful
submission of their own
• interested parties must have an
opportunity to make submissions
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Notice
Chronology of Key Cases
• Central Ontario Coalition
Key Concepts
•notice required because property
rights and interests of public affected
• test of whether notice adequate
objective: reasonable person
standard
• Referred to the wrong region of
Ontario
• Geographic description too
vague
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Notice
Chronology of Key Cases
• Central Ontario Coalition
Key Concepts
• Notice requirement
• Must give accurate description
of the true nature and scope of
the decision (see e.g., Crevier
Commission case)
• Must be timely
• Failure to give adequate notice
can void the delegate’s decision
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Disclosure
Chronology of Key Cases
•
•
•
•
Key Concepts
Ciba Geigy, FCA
May v. Ferndale, SCC
Chiarelli and Ruby, SCC
Charkaoui I and Charkaoui II, SCC
• Disclosure and the idea of a
“spectrum” that balances different
considerations
• No direct application of criminal
standard
• ...but when the consequences are
serious enough basically amounts to a
very robust disclosure requirement
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Disclosure
Chronology of Key Cases
Key Concepts
• Canada Evidence Act
• Privileges
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Delay and Abuse of Process
Chronology of Key Cases
• Blencoe, SCC
Key Concepts
• unacceptable delays may at some
point amount to an abuse of process,
even when the fairness of the hearing
process itself has not be
compromised
• delay must be so oppressive as to
taint the very proceeding (and the
delay must be causally related to the
oppression)
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Nature of the Hearing
Chronology of Key Cases
•
•
•
•
Khan, OCA
Singh, SCC
Hundal, BCCA
Masters, (On Div Ct)
Key Concepts
•Examples from the caselaw: Oral
hearings more likely where:
1. the credibility of the parties is
a factor in the outcome
2. the affected person's level of
education or lack of familiarity
with the proceedings affects his
or her ability to make written
submissions
3. Charter or Bill of Rights
interests are at stake
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Right to Counsel
Chronology of Key Cases
Key Concepts
• no universal right to representation in
oral hearings before delegates
• counsel more likely to be required by
procedural fairness:
1. the more complex the legal
issues, the more likely a court will
require counsel
2. the more serious the
consequences, the more likely the
court will require counsel
3. the less capable the person is of
representing themselves, the more
likely the court will require counsel
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Witnesses and Evidence
Chronology of Key Cases
Key Concepts
•Issue 1: Who can call witnesses?
• Issue 2: Cross-examination of witnesses
• Innisfil (1981), SCC:
“…it is not a necessary
ingredient of natural justice
that one who has submitted
relevant evidence in writing or
ex parte must be produced for
cross-examination, provided
that the evidence is disclosed
and an adequate opportunity is
given to reply to it.”
• Cross exam generally occurs in
adversarial proceedings where
credibility is at issue
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Witnesses and Evidence
Chronology of Key Cases
Key Concepts
•Issue 3: Rules of Evidence
•Delegates need not apply strict
rules of evidence, unless required
by statute/regs
• Must be evidence
• Admissibility
• Weight (Bond v. NB)
• Burden of proof
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Reasons
Chronology of Key Cases
Key Concepts
• Why would we want
reasons?
• How are reasons relevant
to fairness?
• Is there a duty to give
reasons?
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Reasons
Chronology of Key Cases
Baker, SCC
Key Concepts
• Is there a duty to give
reasons?
•the claimant and others
whose important interests
are affected by the decision
in a fundamental way must
have a meaningful
opportunity to present the
various types of evidence
relevant to their case and
have it fully and fairly
considered.
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Reasons
Chronology of Key Cases
Baker, SCC
Key Concepts
• Is there a duty to give reasons?
•It is now appropriate to
recognize that, in certain
circumstances, including when
the decision has important
significance for the individual, or
when there is a statutory right of
appeal, the duty of procedural
fairness will require a written
explanation for a decision.
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Reasons
Chronology of Key Cases
Via Rail, FCA
Key Concepts
• Is there a duty to give reasons?
•the decision-maker must set
out its finding of fact and the
principal evidence upon which
those findings were based.
The reasons must address the
major points in issue. The
reasoning process followed by
the decision-maker must be
set out and must reflect
consideration of the relevant
factors
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
Reasons
Chronology of Key Cases
Dunsmuir, SCC
Key Concepts
• Reasons and substantive
review?
•“reasonableness” requires
justification, transparency
and intelligibility in the
decision making process
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
He or she who hears must decide
Chronology of Key Cases
Patel, FCTD
Consolidated Bathurst, SCC
Ellis Don, SCC
Footnote: Tremblay, SCC
Key Concepts
•corollary of the right to be heard
is the right to have it decided by
those to whom it was presented
• the whole purpose of the right
to present one's case is defeated
if the decision is made or
influenced by persons who have
not heard the evidence and
argument
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
He or she who hears must decide
Chronology of Key Cases
Consolidated Bathurst, SCC
Ellis Don, SCC
Key Concepts
•Consultation among board members:
• The full board meeting was an
important element of a legitimate
consultation process and not a
participation in the decision of
persons who had not heard the
parties.
• For the purpose of the
application of the audi alteram
partem rule, a distinction must be
drawn between discussions on
factual matters and discussions on
legal or policy issues.
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
He or she who hears must decide
Chronology of Key Cases
Armstrong, FCA
Key Concepts
•Use of lawyers and staff:
•a tribunal is generally free to
use a lawyer unless this practice
is prohibited by statute
• however, the lawyer's
involvement must not create the
impression that he or she had
taken over the hearing and
become the effective decisionmaker
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
The Precise Meaning of Audi Alteram (in Context):
He or she who hears must decide
Chronology of Key Cases
Armstrong, FCA
Key Concepts
“…the principle of natural justice
requires that factual information
within the knowledge of a tribunal be
disclosed to the parties for comment
and rebuttal if it will be relied on in
reaching a decision. However, it is
open to a tribunal to use (and not
disclose) its accumulated background
or experience, skill and specialized
knowledge in analysing and
evaluating the evidence properly
presented to it.”
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Audi Alteram
Nemo Judex: The Right to an Unbiased Decision Maker
Chronology of Key Cases
Key Concepts
•Two components:
• Personal bias: Partial state
of mind
• Institutional bias: Lack of
independent institutional
arrangements
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Key Concepts
National Energy Board, SCC, dissent
• Classic test:
“...the apprehension of bias must
be a reasonable one, held by
reasonable and right minded
persons, applying themselves to
the question and obtaining
thereon the required
information... [T]hat test is "what
would an informed person,
viewing the matter realistically
and practically - and having
thought the matter through conclude. Would he [or she] think
that it is more likely than not that
[the decision-maker], whether
consciously or unconsciously,
would not decide fairly."
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Key Concepts
National Energy Board, SCC, dissent
Old St. Boniface, SCC
• Variability in the test for matters
of “prejudgment”?
“The Legislature could not
have intended that the rule
requiring a tribunal to be free
of an appearance of bias apply
to members of Council with the
same force as in the case of
other tribunals whose
character and functions more
closely resemble those of a
court. “
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Key Concepts
National Energy Board, SCC, dissent
Old St. Boniface, SCC
Save Richmond Farm, SCC
• Variability in the test for matters
of “prejudgment”?
“A member of a municipal
council is not disqualified by
reason of his bias unless he or
she has prejudged the matter
to be decided to the extent
that he or she is no longer
capable of being persuaded“
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Key Concepts
National Energy Board, SCC, dissent
Old St. Boniface, SCC
Save Richmond Farm, SCC
Newfoundland Telephone, SCC
• Variability in the test for matters of
“prejudgment”?
• A member of a municipal
council is not disqualified by
reason - adjudicative bodies are
expected to comply with the
standard applicable to courts: no
reasonable apprehension of bias
with regard to their decision.
•Boards with popularly elected
members or policy board will have
standards which are more lenient.
(i.e. prejudgment in the matter to
such an extent that any
representations to the contrary
would be futile. )
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Dulmage, Ont. Div. Ct.
Great Atlantic, Ont. Div. Ct.
Large, Ont. Div. Ct.
Key Concepts
• Forms of Personal Bias
• Prejudgment (actual) and
prejudgment (“by ideology”)
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and Personal Bias
Chronology of Key Cases
Energy Probe, FC and FCA
Key Concepts
• Forms of Personal Bias
•Prejudgment (actual) and
prejudgment (“by ideology”)
•Personal relationships
•Past involvement
•Pecuniary interests
•How direct and immediate
is the interest?
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and “Institutional” Bias
Chronology of Key Cases
Energy Probe, FC and FCA
Key Concepts
• Two possibilities:
1. institutional bias stemming
from the behaviour or one or
more members of a board
(“corporate taint”)
2. Institutional bias stemming
from the very structure of the
board that has nothing to do with
the words or actions of a board
member (“lack of
independence”)
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and “Institutional” Bias
Chronology of Key Cases
Manning, OCA
Key Concepts
•“Corporate taint” doubtful concept:
bias is a lack of neutrality by an
individual; no authority for the
proposition that there could be bias
by a corporate taint
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and “Institutional” Bias
Chronology of Key Cases
2747-3174 Quebec v. Regie
Key Concepts
•“Lack of independence”: “whether a
well informed person, viewing the
matter realistically and practicallyand having thought the matter
through -- would have a reasonable
apprehension of bias in a substantial
number of cases”
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and “Institutional” Bias
Chronology of Key Cases
2747-3174 Quebec v. Regie
Key Concepts
• Indicators of lack of independence:
• Some cases focus on “functional”
problems:
(1) where the decision maker carried
out more than one function within a
particular case
(2) where the tribunal’s staff is
employed in a way that gives right to
bias concerns
(3) where a party has an institutional
role in the proceeding that might be
thought to bias the outcome
(4) where the tribunal might be
thought to have a financial interest in
a particular outcome
(5) where a tribunal engages in
improper internal consultations
before the final determination
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Nemo Judex and “Institutional” Bias
Chronology of Key Cases
2747-3174 Quebec v. Regie
Key Concepts
•indicators of lack of independence:
• Some cases focus on indicators
such as security of tenure,
financial security and institutional
independence (see Matsqui, per
Lamer)
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Ontario Statutory Powers Procedures Act
Components
Key Concepts
• Application: applies to all tribunals
exercising statutory powers of
decision which are required by or
under their creating Acts or otherwise
of law to hold a hearing for affected
parties before reaching their
decisions
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Statutory Procedural Duties
Ontario Statutory Powers Procedures Act
Components
Key Concepts
• “tribunals”
• “Exercising a statutory power of
decision”
• a power or right, conferred by or under
a statute, to make a decision deciding or
prescribing,
(a)
(b)
the legal rights, powers, privileges,
immunities, duties or liabilities of
any person or party, or
the eligibility of any person or party
to receive, or to the continuation of,
a benefit or licence, whether the
person is legally entitled thereto or
not
• Application: applies to all tribunals
exercising statutory powers of
decision which are required by or
under their creating Acts or otherwise
of law to hold a hearing for affected
parties before reaching their
decisions
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Statutory Procedural Duties
Ontario Statutory Powers Procedures Act
Components
Key Concepts
• required by or under their
creating Acts to hold a hearing
for affected parties before
reaching their decisions OR
• required otherwise by law to
hold a hearing for affected
parties before reaching their
decisions
• Application: applies to all tribunals
exercising statutory powers of
decision which are required by or
under their creating Acts or otherwise
of law to hold a hearing for affected
parties before reaching their
decisions
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Statutory Procedural Duties
Ontario Statutory Powers Procedures Act
Components
Key Concepts
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CML 2312: Administrative Law (Forcese)
Notice
Hearings
Right to counsel
Witnesses & Cross-Exam
Evidence
Disclosure
Decisions & Reasons
CONTENT OF PROCEDURAL OBLIGATIONS
Nemo Judex
Summary of the Three Question Approach
Components
Key Concepts
1. To whom is the power
delegated?
2. What is the nature of the
power delegated?
3. How is the power to be
exercised?
CML 2312: Administrative Law (Forcese)
CONTENT OF PROCEDURAL OBLIGATIONS
Review