- UVic LSS

Admin Law- Crane
Fall 2013
Cassidy Thomson
Part I: Introduction
Scope of the Administrative State
Administrative Law is…
1. a branch of public law
o Concerned with relations between the subject and the State
o Seeks to regulate/control “government action” that affects individuals, groups, and corporations
2. concerned with general principles of law that can be applied to a wide-range of government decision-making in
highly variable and context-specific ways
o Administrative law can arise in connection with the administration of any public program
3. not concerned with the substantive law pertaining to particular subject matters
o i.e. environmental law, labour law, securities law…
4. Judge-made law
o Mostly common-law, rules and principles are made by judges rather than legislatures
General Purposes of Administrative Law:
The major and sometimes conflicting concerns of administrative law include:
1. To control governmental power as exercised by the executive and administrative branches of the state
o to confine gov’t power to its proper scope
o to curb potential for abuses of power
o to ensure proper procedures are followed in the exercise of powers that affect the rights/interests of
o to ensure performance of mandatory statutory duties
2. To foster accountability in the administrative and executive branches of government and greater participation
by interested parties in the decision-making processes of government that affect them
o very much a public law area
o rights of citizen against the state
o democratic aspect – participatory rights to citizens (to a certain degree, in certain contexts)
3. To ensure that the administrative branch of government effectively performs the tasks assigned to it by the
Administrative Law v. Constitutional Law
- admin law is not usually concerned with
the validity or vires of statutes
- Admin law is primarily concerned with
exercises of power by governmental
officials and agencies that are made
under statutory authority
 I.e. admin law is mostly
concerned with exercises of
powers that have been
delegated by the legislature to
government officials and
agencies through statutes
- Both are types of public law
- Administrative law is rooted in fundamental constitutional
principles such as:
o The rule of law
 Dicey’s notion of the rule of law; control of
governmental powers; idea that no one is above
the law – means that regardless of who you are and
how much power you have you are subject to the
law (includes gov’t and gov’t actors)
o Legislative supremacy/Parliamentary sovereignty
 SUBJECT to the constitutional division of powers
and the Charter
(control of the exercise of
statutory powers)
More rarely, admin law is also concerned
with certain of the powers that may be
exercised by government under Crown
Separation of Powers
 Appropriate roles of the different branches of
government is very important, when should the
Courts interfere?
o The constitutionally protected and inherent jurisdiction of
s. 96 superior courts and the principles of judicial
 These kinds of principles are where the authority of
the courts to intervene comes from
There is also a growing intersection between Constitutional and
Administrative law:
o S.7 of the Charter has become a relevant focus of study in
administrative law in relation to the guarantees of
procedural fairness that it provides in certain contexts
o Charter guarantee of fundamental justice, of which
procedural fairness is one – goes beyond common law
o Life, liberty, and security of the person provides the real
limitation – very narrowly interpreted by the courts
o Many admin tribunals now have jurisdiction to apply the
Charter in their decision-making, see the ATA for example.
Who are Administrative Decision-Makers?
Administrative law is primarily concerned with the actions/decisions of individual, bodies, or agencies that exercise
powers under statutes (delegated decision-making authority)
Examples include:
o “Independent” administrative agencies – tribunals, boards, commissions (the amount of independence
will vary and is never total)
o Cabinet (Governor in Council, Lieutenant Governors in Council) and individual Ministers of the Crown
o Departmental officials
o Professional associations exercising statutory powers of self-regulation (i.e. Law Society)
o Municipal government agencies and officials, school boards
o Public inquiries
o The Legislature
o Crown Corporations
The Scope of Administrative Law & the Public/Private Dichotomy
The “boundaries” of Administrative Law are NOT always easy to define (sometimes “uncertain”):
Private corporations that merely receive their existence by incorporation under general incorporation statutes do
NOT exercise statutory powers in the sense that brings them within the ambit of administrative law.
However, nominally private organizations that do exercise statutory powers (as a result of a delegation of power)
ARE subject to administrative law (i.e. Ont’s Children’s Aid Societies)
Bodies such as universities have sometimes in the past been treated as though they were private corporations
rather than public bodies; however, now they 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
Not all actions of government are dealt with by the application of administrative law principles
o For example, where the government acts in ways that are similar to the private sector, such as purchasing
goods or dealing with employees, the principles of contract law or tort law or employment and labour law
may be more relevant and administrative law principles and remedies may not be applicable
The Wide Range of Administrative Agencies
The 20th century saw the rise of “the regulatory state” and a consequent growth in administrative agencies of various
kinds engaged in the delivery of a wide variety of public programs under statutory authority such as:
- Industry: power, transportation, marketing boards, telephone, food and drug
- Land: fire, drains and sewers, zoning, pollution and environment, resources
- Consumer protection and health services: food & drug, retail, financial institutions, human rights, public
health/drug plans
- Employment and income support: labour, employment, safety, UI, CPP, human rights, welfare and housing
- Economic regulators (general): competition, securities, tax
- Trades and professions: professional associations, real estate, taxi drivers, street vendors
- Social control: prisons, parole, psychiatric, immigration
The Wide Range of Administrative Decisions and Administrative Tools
Administrative agencies differ widely in the kinds of administrative tools they use to implement their mandates and in the
kinds of decision-making they may be involved in:
- Some regulate relationships or resolve disputes between private persons on an individual case-by-case basis
through adjudication much like courts (e.g. human rights agencies; labour relations arbitrators)
- Some give approvals/permits/licenses to individuals, groups, corporations, to allow them to do certain things
(e.g. CRTC radio and T.V. licensing, liquor licensing, environmental impact assessments, zoning approvals)
- Some confer benefits on those who meet the statutory qualifications to receive them (e.g. social welfare benefits;
workers comp; unemployment insurance)
- Some impose restrictions/penalties on individuals or grant relief from them (e.g. prison and parole decisions;
conditions on licensing; professional disciplinary boards)
- Some are primarily involved in broad policy making as opposed to making decisions in individual cases
[regulatory rule making]
- Some do not make final decisions but only investigate and report the products of the investigation, with or
without making recommendations to another decision-maker who has the authority to decide the matter
MOST are involved in use of more than one kind of tool and may make various kinds of decisions – they are almost
always multi-functional
Some other areas of difference include:
- Can be more or less a judicial process
- The amount of decisions made: ex thousands of decisions a year or just a couple
- The seriousness of the impact on individuals
- The expertise of the members and how they are appointed
- The extent to which they make and apply policy
- The extent to which they rely on staff support
What are “Independent” Administrative Agencies?
Common features of "independent" administrative agencies (boards, commissions, tribunals):
- Absence of direct control by the executive: they enjoy some measure of "distance" and freedom from control
by the Cabinet, the responsible Minister, and departmental officials in making their decisions
- Hearing processes: they typically engage in some sort of formal hearing process before making a particular
decision or policy (although the nature of these processes may vary widely from agency to agency
Individualized decision-making: they typically make decisions in individual cases (i.e. they apply the provisions
of a statutory scheme to the situation of particular individuals, corporations, or groups)
Specialization: they operate within a particular statutory scheme and usually deal with only one statute or even
with only a part of a statute (they deliver a particular public program or part of one) and members often have
(or acquire by experience) subject-area expertise
Independence of individual members in decision-making: members of the agency cannot be pressured by
others, including other members of the agency or the Chair, in relation to how they decide individual cases
Why do Administrative Tribunals Exist?
Why might the legislature assign decision-making or policy development to an independent administrative agency rather
than to a government department?
1. Legitimacy: there may be a need to "insulate" the decision-making or the policy development process from
partisan politics and pressures in order to attain more legitimacy for the decisions made
 where the decision "pits the government against the citizen" (b/c it concerns eligibility for a benefit or
imposition of a liability), the credibility, legitimacy, and "acceptability" of the decisions made or policies
developed may be enhanced if the matter is distanced from the bureaucracy
2. Better decisions: decisions reached may be better in quality b/c the administrative agency may be better able to
 Draw upon the expertise needed to make decisions
 Develop more open and participatory processes to hear those who are interested
3. Expediency: it is sometimes more convenient for gov’t to shed direct political responsibility for decision-making
in sensitive policy areas
 to avoid unfavourable publicity associated with the decision-making in question
Why might the legislature assign decision-making to an independent administrative agency rather than a court?
1. Policy laden subject-matter: the nature of decisions to be made may be deemed inappropriate for adjudication
by a judge; multi-faceted policy laden matters are not well-suited to resolution through an adversarial judicial
 environmental impact assessments, setting utility rates; setting marketing quotas; licensing vendors
 Tribunals can be mandated to develop policy and to initiate public processes to do so
2. Expertise and specialization: the matter to be decided may be a matter that requires specialized expertise
rather than the general legal expertise of a judge
3. Broader public participation is desired: the legislature may want the decision-maker to have input from a wide
cross-section of the public before making a decision and courts are not well set up to deal with that kind of
4. Volume of decisions: the large number of decisions to be made would clog the courts e.g. appeals from social
welfare denials or workers compensation claims
 Cost is a relevant factor in this reason as well
5. Procedural and efficiency concerns: courts are formal, slow, expensive and require lawyers; a more informal,
more accessible, quicker and less expensive decision-making process may be desired  note: the processes
aren’t always as expedient as people expect them to be
6. Ideology: sometimes the perceived ideology of the judiciary may be thought to be an impediment to the
legitimacy and effectiveness of the statutory scheme
Theoretical Underpinnings
The Rule of Law
is a complex notion and there is contested meaning
is a general principle of constitutional law inherited from British constitutional law and referred to in the
Charter’s preamble
cannot, by itself, be used to challenge the validity of primary legislation (statutes)
was identified in Reference re Secession of Quebec (1998 SCC) as one of the four underlying principles of the
Canadian constitution
 These 4 principles are: federalism, democracy, constitutionalism and the rule of law, and the protection
of minorities
considered foundational to our legal system BUT is also broader than our Constitution (i.e. has a broader
underlies much of administrative law and provides an important rationale for what courts do (i.e. courts act to
“vindicate the rule of law”)
is primarily used in administrative law in substantive judicial review
a malleable concept
The Rule of Law: Thick vs Thin
- The ROL is a formal and
primarily procedural concept
- Basic principle is legality:
gov’t must conduct itself in
accordance with the law
- Gov’t should take place
through law and not
discretion (ROL is antithetical
to ad hoc or arbitrary
behaviour by gov’t
- Law maker itself is subject to
law, at least until the law is
- Relatively little or nothing to
say about the substantive
- This is what the courts
generally ascribe to, again
b/c the constitution and
Charter provides protections
substantively to citizens.
A “thicker” thin
- Includes all the thin stuff plus:
- Laws should be sufficiently
clear and public to enable
individuals to “know where
they stand” and choose their
actions: laws should not be
- Temporal issues: laws should
not be retroactive
- Laws should be general (not
single out groups but apply to
- Laws should be relatively stable
and consistent over time:
capable of being obeyed.
- Includes all the thin stuff plus:
- Positive law must be obeyed and
embody a particular vision of social
- expansive and substantive
- encapsulates a liberal theory of
substantive justice
- ROL as a particular vision of what
“justice” requires in a society in
- i.e. law should be “good”, moral content
- ROL can be used to measure the
content of legislation from a policy
perspective, i.e. some argue that laws
that discriminate invidiously on racial
grounds are contrary to the ROL per se
- Therefore, you should be able to use the
ROL to measure any law and see if it
meets the moral requirements
- But b/c we have a Charter, we don’t
really need to go down this road and
rely on the ROL in this way.
The Rule of Law: The Theorists
- The following criteria are pre-conditions for “good” law-making: publicity, non-retroactivity, clarity, generality,
consistency, stability, capable of being obeyed, constrain admin law and discretion of public officials.
- Perspective is essentially procedural in nature—not substantive
- The preconditions should be respected in the creation of law so that citizens “know where they stand” in regard
to what the law requires, meaning that they can plan their activities accordingly
- Result will be law that is more effective in government human conduct and more likely to be obeyed
Joseph Raz
- Similar perspective to Fuller, many of the same principles
- A key idea for him is that law must be capable of guiding the behaviour of those subject to it
- Adds several preconditions for a system to be governed by ROL: judicial independence, access to justice and
effective legal remedies
Mary Liston
- Sees ROL as characterized by 3 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
- It isn’t just about what the Court does to keep the gov’t in line, it’s also about what the gov’t itself does to
ensure they abide by the ROL
- Citizens expect the state to act in a certain way, and if it doesn’t citizens should be prepared to take action to
hold it to account
Therefore, it is important to clarify what is meant by the term ROL when it is used in any given context, and generally
the “thin” version is used by the Courts.
Traditional Application of the Rule of Law
Basic (Traditional) Understandings of the Rule of Law (“Dicyean”)
- There are 3 fundamental concepts, rooted in Dicey’s understanding of the rule of law, are relevant in thinking
about and understanding administrative law:
o “Government acts only with lawful authority”
 Principle of legality: there must be lawful authority for all state actions that interfere with the
rights and liberty of citizens
 “No one should be made to suffer except for a distinct breach of the law”
 There should be clear and knowable legal rules – broad discretionary power is therefore suspect
and dangerous for Dicey (might be used in an arbitrary or discriminatory manner and makes
accountability difficult)
 All power is legally limited; courts can determine the limits of government power and hence the
lawfulness of government action
 Example: Dunsmuir SCC 2008: “all exercises of public authority must find their source in law”
and “judicial review is the means by which courts supervise those who exercise statutory
powers to ensure that they do not overstep their legal authority” and “the function of judicial
review is therefore to ensure the legality, reasonableness and fairness of the admin process”
o “No one is above the law”
 Governments and citizens alike are subject to the ordinary law of the land
 Example: Roncarelli v Duplessis SCC 1959: Attorney General of Quebec held to account for overstepping his legal authority when demanding a liquor licence of a JW be cancelled.
o It is the role of the “ordinary courts of the land” to impose the law on government
 Governments and citizens alike are subject to the ordinary law of the land as administered by
the ordinary courts
 There should be no separate court system with separate rules for administrative (public) law as
there is, for example, in France
 Courts are the “final arbiters” of what the law is (i.e. courts must have ultimate authority to
determine what a statute means and where its boundaries lie)
 Courts act as the citizen’s bulwark against arbitrary government and will protect the rights of
citizens against the state
 Example: Bloedel v.Simpson SCC 1995: “governance by the rule of law requires a judicial system
that can ensure its orders are enforced and its process respected” (Lamer, CJ)
Canadian Jurisprudence Regarding the Rule of Law
Roncarelli v. Duplessis (1959, SCC)
- The rule of law is a “fundamental postulate for our constitutional structure”
Manitoba Reference (1985, SCC)
- This case concerned statutes in Manitoba which had been passed and enacted for decades without being
published in both French and English
- The statutes were found to invalid as they violated the Constitution
- BUT this left a huge legal vacuum in the province  the SCC had to rely on a “rule of law” argument to declare
that the statutes were legally binding and in effect for as long as it took Manitoba to translate them
SCC finds that “Rule of Law means at least 2 things:
(1) The law is supreme over officials of gov’t as well as private individuals and is therefore preclusive of the
influence of arbitrary power (supremacy of law over gov’t)
(2) the rule of law requires the creation and maintenance of an actual order of positive laws (i.e. the existence of a
system of public order)
Imperial Tobacco (2005, SCC)
- This case originally involved challenge by BC to tobacco companies for health costs based on a rule of law
- SCC makes it clear cannot use rule of law to overrule the legislature
- The Court stated that the rule of law [apart of course from the role of Constitutional law] constrains primarily
executive and judicial branches...
The Court also held that the rule of law embraces 3 principles:
(1) Rule of law means law is supreme over officials of govt... (Man Lang Ref)
(2) Rule of law requires an actual order of positive laws... (Man Lang Ref)
(3) Rule of law requires that the relationship between the individual and the state be regulated by law (Succession
(4) Requires judicial independence
(5) Left open the possibility that the ROL may include additional principles
BC (Attorney General) v. Christie (2007, SCC)
- General access to legal services is NOT an enforceable aspect of the ROL
Functionalist Critique of the Rule of Law
A central concern of administrative law should be to promote the effective functioning of the modern state
Purposes of modern state should be fostered by law, not hindered. These purposes include:
o Regulation of private power in the public interest
o Promotion of greater social and economic equality through the redistribution of income and benefits
Courts have sometimes used administrative law principles (based on ideas about the rule of law) in a way that
operates to uphold the status quo and curbs the interventionist state
o This thwarts the regulatory state in a way that is too restrictive
Courts should take a more restrained, limited, and “less interventionist” role in their oversight of administrative
action – concerns about the interventionist role of the courts recur in almost all subject areas – huge issue for
our system of gov’t today
Specific “Functionalist” Concerns
1. Guided by laissez faire ideology, courts have sometimes too zealously guarded “common law values”
against state encroachment
E.g. courts may act in administrative law in order to protect private property rights and freedom
of contract in the face of state regulation in a way that unduly inhibits the regulatory state and
its redistributive aims and purposes)
2. Courts have imposed an adversarial adjudicative model on administrative decision-makers when it
has not been appropriate to do so and this…
 Interferes with the efficiency of the administrative system and
 Favours those who can afford to engage in litigation
3. Courts have sometimes failed to appreciate the need to infuse policy into statutory interpretation and
to recognize that they do not hold a monopoly on how to interpret statutes in a way that is consistent
with legislative intent and that will best achieve legislative purposes
Example: Dunsmuir SCC 2008: Functionalist concerns are alive and well in the jurisprudence, as the Court is
always trying to balance the ROL and Parliamentary Supremacy.
“Middle Road” between functionalism and the ROL
- Ensure procedural openness and enhance accountability in public administration (e.g. by encouraging broader
public participation in D/M)
- Protect the interests of the intended beneficiaries of an admin program (e.g. by closely scrutinizing Ds that
seems contrary to the interests of the intended beneficiaries)
- Prevent admin agencies from subverting the clear meaning of an enabling statute (after making allowance for
agency expertise, linguistic ambiguity and legislative purpose
Exerting Control Over Government Power
Non-Judicial Mechanisms for Control of Government Powers
1. General Legislative Oversight and Politics:
 Scrutiny of legislation before enactment
 Review of regulations by standing committees
 Scrutiny of appointments to agencies
 Annual or special reports to Parl by agencies
 Questions to Minister in the legislature
 Elections and electoral politics
2. Ombudsman, Access to Information Legislation:
 OM has power to receive complaints from citizens – can investigate and make reports BUT do NOT have
binding authority
 Access to information legislation can expose secrets
3. Informal Internal Control Mechanisms:
 Day to day management and accounting policies and procedures (a government’s general “culture” and
the role of government lawyers is an important factor in control)
 E.g. AG has separate role to play as a Minister
 Internal reviews of operations and policies
 Internal reviews and reconsideration of individual decisions
4. Formal Non-Judicial Appeal Mechanisms:
 Formal internal appeal mechanisms i.e. statutory appeals to other administrative bodies or to the
Minister, or to Cabinet
Judicial Mechanisms for Control of Administrative Actions
There are 3 ways courts get involved in administrative matters:
1. Appeals
 Appeals to a court from an administrative decision may be provided for by statute [for there to be any
appeal rights, there MUST be a statutory provision creating the appeal/setting out parameters]
 No inherent right to appeal – for there to be a right to appeal, there MUST be a statute
 Statutes state grounds the court has authorization to review on appeal
2. The “Judicial Review” Jurisdiction of the Courts
 The superior courts in the provinces exercise a power to engage in judicial review of administrative
action that is, in its origins, a common law power exercised as a matter of the superior courts’ inherent
supervisory jurisdiction over “inferior tribunals”
 Since this is an inherent power, it does not come from a statute
 This power exists regardless of what the statute says, but may be limited by statute to only procedural
fairness issues due to a privative clause protecting the substantive decisions from review
 This jurisdiction (for procedural fairness) is constitutionally protected as part of the inherent powers of
superior courts under s.96 of the C.A. 1867 (Crevier, SCC, 1981)
 In the federal realm, this kind of jurisdiction is exercised by the Federal Court operating under the
powers granted to it in the Federal Courts Act
 This is similar to the inherent power that superior courts exert
3. The “Original Jurisdiction" of the Courts:
 Sometimes an administrative action may amount to a tort or a breach of contract or a trespass to
property (etc.) or a Charter breach; if so, the matter can be brought before the courts in an “ordinary”
court action
 I.e. Cooper case
Primary Grounds for Judicial Review
1. Procedural Impropriety - Judicial review of the manner in which statutory powers of decision are exercised and
by whom they have been exercised:
 Breach of procedural fairness obligations
 Breach of the “rule against bias”
 Lack of the requisite degree of independence
 Improperly constituted or authorized d/maker
2. "Substantive" Illegality and Irrationality - Review of the substantive adequacy of the factual and legal basis of
decisions made under statutory authority (review of “the merits” of the decision). Grounds for review,
depending on the circumstances, include:
 Errors made in interpreting the scope and meaning of the statutory powers (errors in interpreting the
enabling legislation which may be characterized as errors of law or jurisdiction)
 Note: All errors of jurisdiction are also errors of law. BUT NOT all errors of law are jurisdictional.
 Reviewable errors of fact (i.e. deciding without a sufficient evidentiary basis)
 Abuse of discretionary powers (unreasonable or unauthorized exercises of discretion)
3. Other Principle Grounds of Judicial Review in Contemporary Law
 Unreasonableness – Administrators have a legal duty not ot exercise their powers unreasonably
 Unconstitutionality - Unconstitutional exercises of power (breach of division of powers or Charter
violations) [these are governed by Constitutional Law]
The Constitutional Basis for Judicial Review
Crevier v Quebec (SCC 1981)
RULE: The judicature provisions of C.A. 1867 (ss.96-101) implicitly guarantee the power of superior courts to conduct
judicial review of provincial administrative action on judicial grounds
RULE: A provincially constituted tribunal cannot constitutionally be immunized from JR on questions of jurisdiction. (Can
exclude the Courts for substantive review)
o “errors of jurisdiction” remain unclear, but are said to be different from “mere” errors of law
o Apparently they include: breaches of PF and making certain kinds of substantive errors
RULE: A privative clause that attempts to do this will be invalid and ineffective – in practice it will be “read down” so as
to preserve the power of the superior courts to review tribunal decisions for “errors of jurisdiction”
o Quebec legislation (the Professional Code) created the Professions Tribunal (the PT) and gave it exclusive
appellate jurisdiction over decisions made by the discipline committees of most self-governing professions in
Que. (this was the sole function of the PT)
o The PT members were 6 PCJs appted by Que
o The statute contained a privative clause – s. 194 purported to bar all evocation [judicial review] proceedings
(privative clauses are inserted in legislation to restrict or prohibit JR – full PC are completely restrictive)
1. Does the PT contravene s. 96 b/c the PT exercises powers that ought properly to belong exclusively to a s. 96
court? (Note: this is the Residential Tenancies Act type of question)
 HELD: YES  the PT has no function other than being a general and exclusive tribunal of appeal and
this means it operates like a s.96 court and contravenes s. 96
2. Is the s. 194 privative clause constitutionally valid? – Can provincial legislation create an admin tribunal and
then immunize it from all JR by superior courts, thus making the decisions of the Tribunal final and beyond
judicial review?
i. HELD: NO  s. 194 is not valid – a province cannot constitutionally do this
ii. Chief Justice Laskin appeared to say the key problem is that such a tribunal would be capable of
determining its own jurisdiction and that is something only superior courts can do
- Judicial supremacy over provincial admin tribunals is constitutionally enshrined by the judicature
- It is part of the “core jurisdiction” of s. 96 courts to review the decisions of administrative tribunals for
“jurisdictional errors” and this jurisdiction cannot be taken away
i. The meaning of “jurisdictional” error is malleable and is capable of expansion by the courts
ii. For this purpose, “jurisdictional errors” include:
1. breaches of procedural fairness
2. making certain kinds of errors of law (errors of law that are held to “go to jurisdiction”)
3. deciding a matter on a finding of fact for which there is no evidence
- Crevier also holds that a privative clause can exclude JR for “mere” errors of law – i.e. errors of law
that are made “within the jurisdiction of the tribunal” and that do not “go to” jurisdiction or that do not
“assume jurisdictional proportions”
- There remains some uncertainty, BUT it appears that the federal Parliament is likely similarly bound:
- Case law post-Crevier seems to support this view
- Note: Macmillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725  powers that form part of the core
jurisdiction of superior courts of the provinces cannot be removed by either the federal Parliament or
the provinces
Re Residential Tenancies Act (1981, SCC)
A 3 step approach is used to determine if a province can give a particular kind of power to an administrative tribunal:
1. Historical inquiry whether the impugned power is one that was exclusively exercised by a s. 96 court at
Confederation in 1867.
 If yes, continue to step 2
 If no, power can be given to an administrative tribunal. This is the end of the story.
2. Court must consider if the power is a “judicial” power as opposed to a legislative or administrative power
- A judicial power for this purpose is one that involves:
- a private dispute between parties
- that must be adjudicated through the application of a recognized body of rules
- and that must be adjudicated in a manner consistent with fairness and impartiality
 If judicial power, continue to step 3
 If not, power can be given to an administrative tribunal
3. Look at the power in the context of its overall institutional setting to determine whether that setting changes
the character of the power sufficiently so that it should be allowed to be exercised by the tribunal and not be
considered a power that belongs exclusively to a s. 96 court
- Note: the “institutional setting” argument will apparently not save a judicial power that is the sole or
central function of an administrative tribunal ...
- BUT it will save a judicial power that can be characterized as a “necessarily incidental aspect” of, or
ancillary to, a broader, more comprehensive and complex regulatory scheme
- In many contexts, this is where the power is upheld
 If power is NOT ancillary, power can NOT be given to administrative tribunal
 If ancillary power, power can be given to an administrative tribunal
Administrative Law Remedies and Procedure
- Exercise of the supervisory jurisdiction of the superior courts in England was largely based on a number of
special remedies that were reserved for public law cases involving the exercise of public duties and powers
- These remedies were known as the prerogative writs and 3 of them were particularly important:
a. certiorari: an order that quashes or sets aside a decision
b. prohibition: an order that prohibits a tribunal from proceeding
c. mandamus: an order requires the performance of a public duty
- Each of these writs were discretionary and could be issued only by a superior court; their essential purpose was
to ensure that bodies that had been given statutory powers did not exceed or abuse those powers
NOTE: Another prerogative writ that has been important in both administrative law and other kinds of public law (e.g.
criminal law) is the write of habeus corpus which enabled courts to review the lawfulness of a detention of “the (live)
body” of a person
NOTE: The private law equitable remedies of:
 Declarations (to declare rights)
 Injunctions (to restrain conduct)
Remedies Under “MODERN” Judicial Review Procedures Statutes…
- Remedies that are similar to certiorari, mandamus, prohibition, declaration, and injunction remain the key tools
used by superior courts in exercising judicial review powers today
- HOWEVER, in many provinces, INCLUDING B.C., procedural reforms mean that the prerogative writs of
certiorari, mandamus, and prohibition can NO longer be applied for or issued per se
- Habeus corpus remains available to review the lawfulness of a detention and it has not been subsumed in the
remedy of an application for judicial review (that is, one may still apply for this writ as a writ)
Provincial (BC): The Judicial Review Procedure Act
- Can no longer apply for “writs”: s.13
- Section 2(1): make an application for judicial
review by means of an originating application (a
- 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”
- More flexible than the old writs, b/c even if you
don’t ask for the correct remedy, the Court can
still give it to you
- Relief remains discretionary
Federal: The Federal Courts Act
- The procedures for making judicial review
applications at the federal court are set out in the
Federal Courts Act
- JR for all federally established boards,
commissions or tribunals (broadly defined under
s.2) must go through the Federal Courts
- Habeus corpus can be issued by superior courts in
the provinces against federal administrative bodies
and the Federal Court itself only has a limited
jursidction to issue it (basically only for military
- Apply to Federal Court or Federal Court of Appeal,
criteria explicitly set out in s.18 and s.28
- Section 18.1(4) provides when a Federal Court may
(preserves discretion) grant relief on JR.
The Supervisory Role of Judicial Review: Example
Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC)
o B. entered Canada from Jamaica as visitor in 1981 and stayed illegally; worked as a domestic worker for 11
years; had 4 children in Canada [1985, 1989 (twins) 1992]
o Became ill: post partem depression/paranoid schizophrenia diagnosed after last child born (1992) and B. went
on welfare; father took custody of 2 children; other 2 were placed in foster care for a time, then returned to B
when her condition improved
o 1992: B was ordered deported when it was found that she had worked illegally in Canada and overstayed her
visitor’s visa [would have been shortly after the birth of the last child?]
o 1993: B applied for exemption on humanitarian and compassionate grds to allow her to remain in Cda to apply
for PR status from w/i Cda [generally under the Act, applicants for permanent residence must apply from
 Under Immigration Act s. 114(2) and Regs, the Minister has authority to facilitate admission to Canada of
a person where the Minister is satisfied, owing to the existence of humanitarian and compassionate
grounds, that admission should be facilitated or that an exemption from the regulations made under the
Act should be granted [the exercise of this ministerial discretion = the “H and C” decision]
o The immigration decision-making process in this case was as follows:
 1993, Baker made a written application accompanied by documentation (lawyer’s submission; letter
from psychiatrist; letter from Children’s Aid social worker) for H and C consideration
 The documentation indicated (1) B was still ill but getting better; (2) B might get worse if forced to
return to Jamaica where she may not be able to get treatment; (3) B is the sole support of the 2
children in her care and is closely involved with her other 2 children in Canada; all 4 of her
Canadian children would suffer if she were deported and so would she
 The application was initially reviewed by junior IO Lorenz who makes notes and recommended against
granting the exemption; the whole package (including Lorenz’s notes and recommendation) went to
senior IO Caden, who decided not to grant the exemption [Caden had been delegated the Minister’s
authority to make the H and C decision]
 April 1994 letter to B from IO Caden says insufficient grounds to warrant processing her application in
Canada - no reasons given
 B's counsel asks for reasons; Immigration sends B a copy of the notes made by IO Lorenz that state,
among other things:
 B is unemployed, on welfare, has no income or assets
 It is an indictment of our system that she is still here
 B has 4 children in Jamaica and 4 born here [TOTAL OF EIGHT] (note Lorenz’s use of capital
 B will be a tremendous strain on welfare system probably for the rest of her life
 There are no H and C factors other than the 4 children – Do we let her stay because of that?
 In my opinion Cda can no longer afford this kind of generosity
 But there is a potential for adverse publicity so should be reviewed
 B was served with a deportation notice in 1994 –directed to report for removal – but the notice was
stayed pending her application for judicial review and then her further appeals in the courts
 SCC did not hear the case and decide until 1999
o Chain of statutory authority/delegations of power in this case were as follows:
 Constitution Act 1867 – s. 91 Parliament has legis. juris. over immigration
 Parliament: enacts Immigration Act s.114(2); delegates statutory authority to Governor in Council (fed.
Cabinet) to make regulations
 Governor in Council: makes regulations under s. 114(2) delegating authority to the Minister to make H
& C (humanitarian and compassionate) decisions
 Minister of Immigration: delegates authority to make H & C decisions to Immigration Officers
(departmental officials) and guidelines are issued that instruct the officers as to how to exercise this
decision-making authority
Note: Immigration Manual’s Guidelines for H & C Decisions: IO must carefully consider all aspects
of situation; ask self what a reasonable person wd do; must consider 2 types of criteria that could
lead to a favourable decision: (1) public policy considerations: e.g. marriage to a Cdn resident; the
fact the applicant has become established in Canada (“an illegal de factor resident”); and (2)
humanitarian and compassionate grounds: will unusual or undeserved or disproportionate
hardship be caused to the applicant and/or her family if the applicant has to leave Canada?
Junior Immigration Officer Lorenz: makes the initial review of Baker’s application in this case, makes
note and recommendations and passes file on to the Senior Immigration Officer Caden
Senior Immigration Officer Caden: considers the whole file, including the notes and decisions of IO
Lorenz, and makes the final H and C decision
Note how the Baker case got to the SCC:
o Federal Court Act (FCA) generally provides for judicial review of decisions of federal boards, commissions or
tribunals and sets out the grounds for such review
o BUT Immigration Act s. 82.1(1) requires that leave is required before decisions under the Immigration Act can be
subject to judicial review
 FCTD judge gave such leave in Baker and judicial review under the provisions of the Federal Court Act
 FCTD judge (Simpson) found against Baker
o Federal Court Act generally provides that decisions made by the FCTD on applications for judicial review can be
appealed to the Federal Court of Appeal BUT the Immigration Act imposes a different and more restrictive rule
in s.83(1)
 Simpson J. in the FCTD, after finding against Baker, stated a serious question of general importance:
Given that the Immigration Act does not expressly incorporate the language of Canada’s international
obligations with respect to the International Convention of the Child, must federal immigration
authorities treat the best interests of the Canadian child as a primary consideration in assessing an
applicant under s. 114(2) of the Immigration Act?
o The stated question was considered by the Federal Court of Appeal per Strayer J.
 He held he was confined to the stated question only, and could not hear a general appeal of all the
issues that were before the FCTD on the original judicial review application.
 Strayer J. decided the stated question against Baker, and dismissed the appeal.
o Baker then sought leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada.
Appeals from the Federal Court of Appeal to the SCC with leave are provided for under the Supreme Court Act.
Leave was granted and the SCC entertained the appeal.
- Note: Although Baker had raised them, no Charter issues were considered – the Court held that it could decide the
matter solely on the basis of administrative law principles
SCC Reasons:
o Note: Both parties agreed that a duty of procedural fairness applies to H & C decisions. 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)
o Issue 1: What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of
appellate review? Is the scope of the appeal in the Federal Court of Appeal and the SCC limited because of s.
 Held: the appeal is not limited to the serious question of general importance stated by the FCTD
 Once such a question has been stated, the appeal that follows is a full appeal from the judicial review
decision of the FCTD to the FCA, and from the FCA to the SCC
o Issue 2: Were the principles of procedural fairness violated? Yes
 Three parts to this issue:
(i) Were there sufficient participatory rights given? Yes
o Set out in outline in section on Content Issues: The Level of Procedural Fairness - the Baker
(ii) “Did the failure of Officer Caden to provide his own reasons violate the principles of procedural
fairness?” [was there a duty to provide reasons that was breached?] No (but there was a duty!)
o Set out in outline in section on Content Issues: Specific Content Issues (Reasons)
(iii) was there reasonable apprehension of bias (RAOB) in the making of the decision? Yes
o Set out in outline in section on Bias: Impartiality
o *Note: this was sufficient to dispose of the appeal; however, L’H-D went on to issue 3
Issue 3: Was there an improper exercise of discretion [substantive]? Yes
 Set out in section on Substantive Review & Discretionary Decisions
o The appeal from the FCA was allowed (i.e. this means that Baker’s application for judicial review was granted)
o The decision of Immigration Officer Caden was set aside [“quashed”]
o The matter was returned to the Minister for re-determination by a different IO;
 Note: on the re-determination, the IO would have to decide impartially, and would have to apply the
principles the SCC identified in the Baker decision as required in a lawful exercise of the discretionary
power – i.e. the IO would have to give proper consideration/weight to the interests of the children in
reaching a decision
o [Note the limited nature of the remedies ... the court did not simply substitute its own decision about what was
“humanitarian and compassionate” for that of the IO. It would be open to the new decision-maker, following an
impartial and proper decision-making process and exercise of discretion to reach the same decision as the
Part II: Procedural Fairness
Sources of Procedural Fairness Obligations
There are four main sources of procedural fairness obligations:
1. Statutes and Regulations
o Procedural rights might be in an “enabling act”
o Enabling statutes set out a detailed list of procedural requirements that decision-makers must follow in
making specific decisions
o Procedural rights might also be delegated from the Legislature to the executive powers, who can enact
regulations or rules regarding procedural requirements
- This are known as “subordinate legislation” and it is binding on all those parties subject to it
- This method promotes expertise and efficiency
o Procedural rights might also be set out in general statutes (i.e. the Administrative Tribunals Act)
- Once triggered, these codes prescribe common procedural standards for decision-makers falling
within their ambit
- The scope of the application of these procedural codes may be modified or limited by a public
authority’s enabling statute
2. Rights Documents
o Procedural rights might be set out by constitutional and quasi-constitutional documents
o Examples: Canadian Bill of Rights, the Charter, the Quebec Charter…
3. Common Law of Procedural Fairness
o Procedural rights may be “judge-made”
o Under the CL, a party affected by a public authority’s decision is entitled to be heard by the authority in
an impartial and independent manner
o These rights began to develop with cases like Cooper and Nicholson (see below)
4. Policies/Practices of Agencies regarding Procedures
o Policies are NOT law – they are sometimes called “soft law”
o However, they are nonetheless “entitlements” like the other three categories
o They do NOT need to get set out in an enabling statute
Interaction Between Sources
There is significant interaction between these sources:
- If the statute is silent or contains gaps…
 the CL will impose procedures for decision-making
- If the statute overrules the CL procedures…
 the statute applies (based on legislative supremacy)
 do NOT even need to go to the CL
- If someone has a constitutional right to a particular type of procedure that the Legislature has taken away…
 the rights documents trumps the Legislature
The Historical Development of CL Procedural Fairness Obligations
(1) The Concept of Natural Justice
The concept of “natural justice” has two primary principles or aspects:
1. Audi Alteram Partem  the right to know and respond to the case against you
2. Nemo Judex In Sua Causa  the rule against bias (nobody should be a judge in their own case)
Natural justice is the old terminology for “procedural fairness”
(2) Early English Common Law
- Hearing rights were generally inferred as a matter of justice, when the important rights of an individual were being
affected by the decision or action at issue, especially if allegations of “wrongdoing” of any kind were at issue.
- The courts could consider the following to determine if natural justice applied to the d-m: (Cooper)
o The nature of what was at stake
The effect on the individual
The seriousness of the issue
Cooper v. Board of Works for Wandsworth District (1863, Eng. CP)
- Facts:
o The Metropolis Local Management Act s. 76 requires that anyone intending to build a house had to give
notice to Board of Works in Wandsworth seven days before beginning construction so the board could give
advice about drains; when no notice is given, the board had the right to demolish the house; the legislation
was silent on a matter of procedures regarding notice for demolishing a house
o Cooper started to build a house in Wandsworth; he said he gave 5 days notice (not adequate – he needed to
give 7) but the Board said they didn’t get notice; the Board went and demolished the house
- Outcome: in favour of Cooper
- Reason:
o The court interprets the right to tear down houses subject to a procedural fairness obligation; in order for
the exercise of authority to be lawful, procedures needed to be followed first
o Why was procedural fairness required at the common law in this case?
 The nature of the interest (no man should be deprived of his right to property) and the seriousness
of the state action, targeted at an individual
 Cooper might have had a good excuse if the board would have heard from him
o Byles and Keating JJ: “there are no positive words in a statute requiring that a party shall be heard, yet the
justice of the common law will supply the omission of the legislature”
(3) Later English Common Law: Restrictive Approach
Restrictions on access to hearing rights arose 20th century (1920 – 1960)
- The common law became much more restrictive about when procedures should be imposed
- This prevented procedures from being applied
Common law focused on the classification of the function or decision being carried out
- “Judicial” or “quasi-judicial” decisions
o Natural justice applied (this means fairly high-end procedures)
o Hearing rights were accorded
o In terms of remedies, the certiorari and prohibition were available
- “Administrative”, “executive” or “ministerial” decisions
o Natural justice did NOT apply
o No hearing rights accorded
o Certiorari and prohibition were NOT available
Electricity Commissioners (1924 Eng. C.A.)
“Whenever any body of persons, having legal authority to determine questions affecting the rights of subjects and
having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of
the King’s Bench division…” [the “control” being exercised through the writs of certiorari and prohibition] – Lord Arkin
Church Assembly (1928, K.B. Eng)
- Lord Hewat interpreted Lord Atkin’s pronouncement in Electricity Commissioners to mean that, for natural justice to
apply, the decision in question had to (i) determine rights and (ii) involve a “superadded duty” to act judicially in
making the decision...so...
o If the decision was not a final decision (not “determinative”) - NJ did not apply
o If the decision involved only “privileges” (as opposed to “rights”) - NJ did not apply
o If no “superadded duty” to act judicially was found in the statute - NJ did not apply
(4) Development of “Duty of Fairness” Approach – Less Restrictive
The English common law “undid” the restrictions (above) and moved towards a recognition of a “duty of fairness.”
Ridge v. Baldwin
- A Chief Constable was a public office-holder who could not be dismissed except for cause. The HL held that the
Watch Committee [police board] could not exercise its power to dismiss lawfully unless it had given the Chief
Constable notice of the grounds for dismissal and an opportunity to be heard.
- HL did away with the need to find a “superadded duty to act judicially” before NJ could apply. Rather, the Watch
Committee had a duty to act judicially because of the nature of the power being exercised.
- This was the first sign of doing away with some of the classifications
o Specifically, in this case, they got rid of the need to have a “superadded duty”; there were “rights” being
taken away in this case and it had to do with some sort of a wrongdoing
o There was a duty to act judicial just because of the nature of what was going on  like Cooper
- Note: in this case they still applied classifications for types of public employment:
o Employees – no procedures before dismissed
o Public office holder “at pleasure” – no procedures before dismissed
o Public office holder dismissible only “for cause” – procedures
Re H.K. (1967 Q.B.)
- Immigration authorities have a “duty to act fairly” in making decisions about individuals
- This isn’t about “rights”, but duty of fairness arose anyways
(5) Expansion of Procedural Obligations in Canada
Nicolson v. Haldimand-Norfolk Police Commissioners
- Facts: Summary dismissal of a police officer, he was not given reasons for the dismissal, not given notice, not
allowed to make representations. The Regulations made under provincial legislation governing the police said that
police officers could not be penalized without a hearing and an appeal  but the Board of Commissioners of Police
could dispense with services of any constable w/in eighteen months of being hired. In this case, the police officer
was only 15 months into his term of service.
- Issue: did the decision attract any procedural fairness obligations, even though the legislation did not provide for
any procedures?
- Outcome: Nicholson was entitled to be treated fairly, not arbitrarily, entitled to an opportunity to make submissions
before he was dismissed.
o Under the traditional approach this would have been it  this was not a judicial decision, and so the
common law natural justice procedures did not apply. It was an admin decision and so Nicholson was not
entitled to any protection.
o Majority of the SCC (5-4) held that a general duty of procedural fairness applies to admin decisions
 Got rid of the judicial vs. administrative dichotomy
 Administrative decisions also attract procedural fairness
o NOTE: The SCC did not do away with the distinction btw admin and judicial decisions – instead, accepted as
a general principle of CL that in the sphere of the judicial, the rules of natural justice run and in the
administrative sphere there is a general duty of fairness
o Justifications underlying Laskin’s decision/reasons for according people procedures:
 Correctness (“the police board should want to make certain it has not made a mistake…”)
 Moral claim (“status in office deserves this minimal protection”; the fact that it’s a public decisionmaker under statutory power brings in the public law issues and raises the status of N’s claim)
 The power, once exercised against N, would be final and unreviewable and that makes it all the
more important that it was right in the original decision, which suggests you should hear from the
person in the first place
- Dissent:
o They took the CA line
o The statutory language is clear; N doesn’t get NJ or a “duty of fairness”
- Post-Nicholson:
o The SCC had quashed the police board’s decision, which meant that N was reinstated
o The matter went back to the board to re-decide and the board had to re-decide after a fair process
The Board notified N of 11 different allegations of misconduct
N sought judicial review AGAIN and sought prohibition; he wanted them to stop the proceeding of the police
board because:
 The effect of the SCC was to reinstate him; it was like he was never fired; he was over 18 months
and therefore he got a full right of hearing AND a right to appeal
 There was a 6 month limitation period so the whole thing was over and he was reinstated
 N lost on this review; they treated it as though the new hearing was a continuation of the old one
thus the arguments he made did not succeed
 However, he did receive money for the time he was not being paid
o Note: just because this went back to the same body/same decision-maker doesn’t make this an issue of bias;
the decision-maker is entitled to make the exact same decision they did originally
Note: after this case it remained unclear if there were two distinct levels of procedural protection
(6) Development of Modern Approach to Procedural Fairness
Further development in 1980s towards the modern approach to PF gradually did away with the need to distinguish
between NJ and “duty of fairness,” UNLESS statute law requires that the distinction be made by use of the older
classification terminology. This move away from the bifurcation between “natural justice” and “duty of fairness” rights
for different people is illustrated in two cases (below).
Martineau v. Matsqui Inmate Disciplinary Board (No.2), (SCC 1980)
- Facts: two inmates were disciplined and alleged that they were not given a hearing; they made an application for
certiorari in the Trial Division; the application was based on the fairness requirement
- Outcome: procedural rights were awarded to Martineau
- Reason: “In general courts ought not to distinguish between Natural Justice and the duty of fairness, 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.”
o Therefore, there was a movement away from the distinction
o Dickson also noted that there were some situations where distinctions would need to continue to be made
 I.e. when drafting statutes, sometimes the drafters used the words “judicial” or “quasi-judicial”; if
that was the case, they would have to go back to the old law
- Note: the SCC appeared to expand the limits of certiorari to include the enforcement of procedural requirements
Cardinal v. Director of Kent Institution (SCC 1985)
- Facts: some inmates, after a riot, were put in desegregation (punished); they were kept there; a review panel
recommended the prisoners were released; the director of the prison has the final decision and decides not to
release them without hearing from the prisoner
- Issue: did the director of the prison have a duty to hear from the prisoners before overruling the recommendation?
- Outcome: yes; he should have heard from the individuals before making the decision
- Reason:
o The original decision of the director did not need a hearing, because it was an urgent situation (an
emergency), BUT when the director decided not to release the prisoners, he should have heard from them;
it could have been informal, but they should have let them know they were staying here and allowed them
to comment
o “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.
o ...denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a
reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing
must be regarded as an independent, unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an administrative decision is entitled to have. It is not for a
court to deny that right and sense of justice on the basis of speculation as to what the result might have been
had there been a hearing.
Just because a hearing wouldn’t have made a different doesn’t mean that it should have happened;
that is NOT an excuse
The only time that reason MAY apply is when the outcome was determined without a hearing as a
“matter of law” that was clearly stated
This goes back to the idea of a “moral claim” discussed above in the Nicholson case
Modern General Framework for Procedural Fairness Question
Knight (SCC 1990)
1) Threshold test—Does a duty of fairness at common law apply in these circumstances?
2) If so, does the defence of Statutory Authorization apply? Is there anything in the statute which modifies or
overrides the common-law duty?
3) The Baker 5 Factors—What is the content of the duty of fairness?
4) Has the duty been complied with—look at the facts and see if what happened was valid.
5) What should the remedy be—is there any reason to withhold the discretionary remedy?
The Threshold Test
When does PF
Cardinal v
Kent (SCC)
(1) Public
(2) Finality?
Re Abel
Re Webb
Re Abel
(3) Legislative in
The requirements for procedural fairness to apply are:
(1) a public authority
(2) who has made a ‘decision’
(3) not of a legislative nature and
(4) it affects the rights, privileges or interests of an individual.
(5) it is not an emergency or urgent situation
(6) there are special considerations for employment contexts
Police Board
Director of a Prison
School Board
Advisory Review Board at a prison
Property manager of state housing hired by government—D went through series of
boards and committees as well.
Hearing Officer for Combines Investigation Act.
There are two factors to consider
Ex: even though the report from the
when determining whether a decision advisory board was non-binding on the LG in
is ‘final’ in the sense that it attracts
C, it attracted PF b/c
procedural fairness.
(1) there is no way that the LG in C
(1) The proximity of the decision:
would allow release of a NCRMD
In a multi-stage decision
prisoner w/o a positive
making process, consider the
recommendation in the report.
relationship of the stage in
(2) Huge impact on individual’s rights
question to the other stages.
b/c it was about liberty
What is the impact of this
stage on the final decision?
(2) The exposure to harm: What is
the impact or effect of this
stage of the decision making
process on the rights,
privileges or interests of the
person who is seeking PF?
While considering the two factors, it is Policy: Some statutory schemes may require
also important to consider the specific more deference than others.
statutory context.
Ex: don’t want to unduly burden or
complicate law enforcement investigative
processes –here investigating economic
crimes, which would be hard to do if you had
to accord PF first.
Duties that legislatures have traditionally performed but transferred to an
administrative body, and are ‘general’ in nature (i.e. not focussed on the individual)
are likely ‘legislative’ decisions and therefore do not attract PF.
To determine if a decision is legislative Here G in C making a ‘legislative’ decision
in nature, it is necessary to interpret
because they are setting the rates, statute
the statute and see if:
allows them to act ‘of their own motion’,
(a) Is the function comparable to
applies to many people generally, political
that which was exercised by
policy choice.
(b) Is the subject matter unique to NOTE: later criticized as making it overan individual or generally
difficult to apply PF to cabinet decisions
Homex (B)
Note: Perogative
(4) Rights,
Privileges or
Re Webb
Re Webb
(5) Emergency or
Cardinal v
(6) Employment
(c) Is it a political policy change,
or a resolution of a dispute
between parties?
(d) Does it create general norms,
or is it applying the norm to a
particular person/group?
Municipalities exercise both legislative
and administrative decisions.
Decisions are administrative when the
municipality is dealing with a conflict
between private parties, or issuing or
withholding licenses to individuals.
Policy decisions are legislative
decisions and not subject to PF,
despite the fact that some benefit and
some may be harmed from a policy
Here the decision was judicial because it
only applied to Homex and was meant to
resolve a dispute between the municipality
and Homex.
This is because the answerability of
legislative decisions are in the political
Only Parliament can impose a public
consultation process on legislative decisions.
Allocating a quota to an individual
would not be a legislative decision, but
a general quota policy applicable to all
people engaged in the activity would
Generally, crown prerogative power is The decision in other words needs to be
not subject to JR UNLESS
‘justiciable’ in that it has a sufficient legal
(1) The D alters an individual’s legal
component for the court to decide on and is
rights OR
not merely political.
(2) The D affects the individual’s
legitimate expectations
Something non-trivial must be at stake for an individual. Admin law takes a “broad”
view of rights, privileges and interests.
Holding a licence or quota = a privilege
Deprivation of state benefits = an
However, if the decision to allocate a state
benefit may not be an interest… it’s only
being deprived of a state benefit you already
have that counts as an interest.
*this is ‘pure application’ and is NOT firmly entrenched in case law. b/c you have no
right or expectation to receive state benefits. Also ‘being heard’ may happen in the
app. If reputation is involved by being denied a state benefit (i.e. you must be bad b/c
you didn’t get it) then this is likely an interest.
Reputation = an interest
Ability of a religious group to engage in religious observance = interest
An emergency or urgent situation may - However, you may have to hold a hearing
justify foregoing procedural fairness, if
after the decision is made, and
the situation demands an immediate
- as soon as the urgency subsides PF must
decision be made.
be brought back.
If the terms of employment are
The only people who are still protected by
governed by a K, then the remedy for
admin law in the employment context are
dismissal must be sought through K
those who are not protected by Ks or
law not PF regardless of the public
employed ‘at pleasure’. Nevertheless, the
nature of the office.
duty of fairness may still arise through
necessary implication from the statute.
Alternate Threshold Test: Legitimate Expectations
How does it work? Re:
Legitimate expectations may afford a party procedural fairness in a situation where they
would otherwise not be entitled to.
Cannot create substantive rights, can
Policy: b/c legit expectations easier to prove (no
only create rights for PROCEDURE,
reliance or knowledge necessary) it doesn’t
doesn’t affect what decision is
make sense to increase its power to give a
ultimately made.
substantive remedy (Mt Sinai)
Mavi Requirements:
1. Public official makes promises or
- Proof of reliance is NOT required
- Proof of prior knowledge of the promise/
2. MUST be clear, unambiguous and
representation also not required.
3. MUST NOT conflict with statutory
4. MUST be w/n the authority of the
official to make
Cannot apply to legislative decisions
- Unclear as to what this means in this context,
arguably must be different than normal
threshold b/c this is a way to get over
threshold when that test doesn’t work
- But can’t be so narrow as to be ONLY pure
legislative decisions (i.e. statute passed in
Mavi Sufficiently precise if they could serve as the basis for an enforceable K… i.e. not too
Policy Behind not requiring reliance or prior knowledge:
- Promote regularity, predictability and certainty in Gov’t action
- Don’t want to be unfair to those who were simply uninformed
- Don’t want to encourage ADMs to act unfairly by letting them off the hook b/c party
simply uninformed.
Why NOT to use
Broad public policy is for the Minister to decide not the courts, and you don’t really need
as threshold test
Sinai Legit expectations to get over threshold b/c...
Mavi It has become “the default” to require some sort of PF, so not hard to pass the threshold.
Statutory Authorization
Is there anything in
Kane v UBC as
the statutory scheme cited by Knight v
that either limits or
Indian Head
negates the right to
Nicolson v
Haldimand SCC
“Express language or necessary
implication must be found in the
statutory instrument” in order to
override the procedural fairness
accorded by the common law
Silence in the statute as to procedural
fairness rights does not indicate that
no procedural fairness is required.
The only way to override the
statute would be through the
constitutional or quasiconstitutional provision, should the
statute block PF.
Statute accorded Police Officers full
PF after 18 months, but said
nothing about probationary
officers. PF still required for
probationary officers.
Over-ride the Statute with the CBR
What are the
s. 1(a)
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;
s. 2(e)
Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of
Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the rights or freedoms herein
recognized and declared, and in particular, no law of Canada shall be construed or
applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles
of fundamental justice for the determination of his rights and obligations
Does it still
The CBR is of full force and effect due to s.26 of the Charter.
Authorson Feds enacted statutory bar to claims for lost interest in disabled veterans pensions
SCC 2003
scheme: argued that no procedural rights were accorded prior to statutory bar, thus it
took away property rights w/o due process
s.1(a) only guarantees some PF in an
Thus you still need to pass the threshold
individualized, adjudicative setting and
test before you can use the CBR to overNOT for legislative decisions
ride the statute and give you PF rights.
Can’t get PF for legislative decisions!
s.2(e) guarantees a fair hearing when
before an ADM that determines individual
rights or obligations, but it does NOT
guarantee this in the context of legislation.
What is
Authorson The CBR only protects the types of rights
Thus it does not protect against the
SCC 2003
that existed in 1960.
expropriation of property w/o
compensation by the passage of
legislation b/c this was allowed in 1960.
When does
s.2(e) protects an individual’s right to a fair The PFJ may require an oral hearing
s.2(e) apply?
hearing in accordance with the principles
depending upon:
What does it
of fundamental justice where there is a
(1) Circumstances of the case
determination of their rights and
(2) Nature of the inquiry
obligations. It does not provide protection
(3) Rules of the tribunal
where the decision is about mere
(4) Subject matter dealt with
(5) Nature of the legal rights
(6) Severity of the consequences
Override the Statute with s.7 of the Charter
When is s.7
s.7 applies to everyone physically present in Canada, to be triggered must:
(1) deprive
(2) life, liberty, or security of the person
(3) NOT in accordance with the principles of fundamental justice
“security of the person” includes psychological
Here s.7 triggered b/c of gross
Minister of integrity, to trigger need serious state imposed
intrusion into private/intimate
psychological distress—greater than ordinary
sphere, parent stigmatized as unfit,
shock or anxiety.
status as parent fundamental to
What are the
PFJ in a
Minister of
Can a breach
of s.7 be
“saved” by
Minister of
Deportation to face torture is a deprivation of life, liberty or security of the person
“Procedural Fairness” is a principle of
The content of procedural fairness
fundamental justice which means that the
required is contextual as always.
decision maker must (1) act fairly (2) in good
faith (3) w/o bias (4) in a judicial temper and the
individual must be (5) given the opportunity to
adequately state their case.
PFJ require effective participation b/c a D must
Thus need PF that accords w PFJ,
be based on all the information and the claimant and that means state for effective
is often an important source of that info.
participation in this case the state had
to provide legal aid counsel,
Based on:
(1) seriousness of interests
(2) complexity of proceedings
(3) capacities of claimant
While the content of PF required by PFJ is not identical to the common law, the Baker
Factors are still useful to determine the content of P.F. required to accord with the PFJ.
The Court does not explicitly use the Baker
Disclosure is necessary so that the
factors to determine the content of PF required, person can answer any claims against
but they look at:
them. This also ensures that all the
(1) Nature of proceedings
facts come out in the proceedings so
(2) Nature of the impact
that the D/M can make the best
(3) National security context (while may
significantly change what PF is required,
still can’t completely override it)
National security interests, protecting
Thus the content of procedural fairness is
informants can place limits on
disclosure. However, there needs to
be an adequate substitute where
these interests preclude the usual
form of disclosure.
It will be very difficult to ‘save’ a breach of s.7 under s.1, especially b/c arguments of
convenience or cost on the administrative side are less likely to be successful where such
high stakes are involved (life, lib, sec of per) and state is not observing PFJ.
Only “exceptional circumstances” such as war, natural disasters or things such as
epidemics will be able to justify a breach of life, liberty or security of the person not in
accordance with PFJ.
Content Test
Statutory Content
Tribunals Act
Factor 1:
Nature of the
Factor 2:
The Nature of the
Only applies if the enabling legislation of the tribunal so provides, and only to the
extent to which it provides. Check first and see if it applies, b/c may dictate what
kinds of PF are required.
A non-exhaustive list of five factors are balanced to determine the content of
Procedural Fairness required.
1. The nature of the decision and the process followed
2. The nature of the statutory scheme and the terms of the statute pursuant
to which the body operates
3. The importance of the decision to the individual affected
4. The legitimate expectations of the person affected
5. Take into account and give important weight to the choice of procedures
made by the agency itself and to its institutional constraints (although this
cannot be determinative)
The over-arching goal of procedural fairness is the “central notion of the just
exercise of power”. Thus in applying the Baker factors, one should not be
mechanical or rigid and keep the mind this goal.
What does this type of decision mandate the
Not judicial if:
process should have? The more closely the
- No set legal standard to apply
decision resembles a judicial decision making
- No dispute between parties
process, the more PF should be accorded.
to be resolved
- No real dispute on the facts
- Policy type of discretion
- About the public interest
Re-zoning Application
Less PF: Municipal gov’t elected
& accountable to constituents
for Ds. Left in their discretion to
decide what is in the public
Ordinary Debt Collection
Consider the role of the particular decision
w/n the scheme and anything in the statute
which indicates what the content should be.
More PF is needed where there is no appeal
and the decision is determinative w no further
requests allowed.
No Appeal provision
Simple process with limited discretion, but no
appeal process.
More PF: With discretion comes
the potential for abuse of
power, no discretion is w/o
limits so might need more
judicial oversight.
Less PF: purely administrative
process, no objective standard
to apply, decision not judicial.
Where the role of the decision
is an exception to the normal
scheme LESS PF:
- Maybe b/c you are already
getting special treatment and
thus more fairness by being
considered for the exception
- Thus gov doesn’t need to give
you more fairness
Thus more PF required—b/c no
further chance to correct defect
in D process.
Less PF:
- Clear gov’t wanted to avoid
Factor 3:
Impact of the
decision on the
Factor 4:
Factor 5:
Agency’s Choices
Other Policy
Balancing the
complicated process
- B/c discretion is narrow, don’t
need that much info to make
More PF:
- No others remedies available,
no appeal
The more important the decision is to the
individual and the greater the impact, the
FACTOR it seems… in Baker was
more PF should be accorded.
very important to individual.
The right to freely practice a faith and to
This is a very important right
congregate with others
(protected by Charter) so big
impact = more PF
Possibly large sums of money to be collected
More PF: huge financial impact
by gov from sponsors.
on individual.
Right to continue in one’s profession or employment is at stake = More PF
If the claimant has a legitimate expectation
**See requirements in Mavi
that a procedure will be followed, then this
threshold test section***
process will likely be required OR if the
claimant has a LE of a certain result, then
more PF needed to give a different result.
First decision, D/M gave reasons and did
More PF like what was given in
careful consideration, second and third time
first application needed, b/c of
gave nothing.
legit expectation
1. Public official makes promises or
- Proof of reliance is NOT
2. MUST be clear, unambiguous and
- Proof of prior knowledge of
the promise/ representation
3. MUST NOT conflict with statutory duty
also not required.
4. MUST be w/n the authority of the official
to make
Deference to the agency’s choices is
Consider other policy at play:
particularly important when the statute gives
- Volume of decisions and
them a lot of discretion in choosing their own
potential cost of adding PF
procedures. This is b/c DM seen as an expert
- Leeway given to state as
in what types of procedures are necessary.
expert when they do provide
a process
- Want to promote values of fair and transparent D/Ming
- Want to reduce the chance of arbitrary or capricious Ds
- Want to encourage public confidence of citizens in public officials
- PF may be inefficient or expensive for tax payers
- But also costs the public if gov’t is seen to act unfairly
Also want to avoid poor decisions, more PF would mean you have more info to
make better D.
Looking to see what is necessary for the individual to fully present their case
given the circumstances.
Keep in mind looking to require a “just exercise of power” –central notion. (The
factors are not exhaustive!)
Specific Content Issues
 Remember to look to the Statute, regs and rules FIRST to determine what specific content is required.
Issues that arise are:
Usually notice requirements
- Form: written, electronic or oral? Unlikely to are part of a tribunal’s
grant JR where the defect is just in form and procedure rules/ legislation.
no prejudice.
- Manner of service: Personal is best, required
for high-end. Just needs to be reasonably
likely to be effective i.e. newspaper ad for
“mass notice” in CARI
- Timing of notice: Must be long enough in
advance to allow person to decide whether
to participate and to prepare. Varies
depending on seriousness and complexity of
issues. Remedy is to give more time to
prepare, i.e. adjourn.
- Content (sufficiency): must give enough info
(and clear enough) to enable person to
decide whether to participate and prepare,
given seriousness and complexity. Can’t be
Getting relevant information from third parties. Many tribunals do not have
- Saved for situations where there is a dispute, authority to order discovery,
adjudicative style
unless ATA provision which
gives power is made
This is where the D/M provides the information Also occurs at hearing stage,
they will rely on in making the decision. Just
often having it only there are
need a reasonable amount of information in
not before will be sufficient.
order to effectively prepare and present their
Check tribunal rules, many
case… the criminal level of pre-hearing
have their own procedure for
disclosure is NOT required in civil context.
it as it speeds up process.
Consider all the circumstances and determine
what is necessary. (May v Ferndale)
Hearing Oral vs
There is no presumption that PF requires oral
This case is a great example
hearings. Will only be necessary if:
of how characterizing the
(1) Something serious at stake
interest at stake can alter the
(2) The decision turns upon the credibility of decision.
the individual concerned
The Court will only intervene to require an oral NOT a question of what
hearing if it is manifestly unfair to the individual would most benefit the
affected for the decision to be made without
An oral hearing is not always required nor
Not required here b/c
necessary to ensure PF as meaningful
claimant had opportunity to
participation (the ultimate goal of hearing
put all relevant info in front
rights) can occur without one.
of D/M
ATA s.41If applicable provides that oral hearings will be open to the public. Other
provisions if applicable allow for information to be taken in camera.
General rule: if there will be an oral hearing, it
Reasons to avoid public:
will be public unless there is a good reason to
- Personal security interests
stay private or the statute says it will be
- Privacy interests (esp
Right to
ATA s.32
NB Min of
Re Abel
Evidence and
- National security interests
- Protect police informants
- Protect commercially
sensitive info
If applicable provides that a party may be represented by counsel or agent
Very unusual to be barred totally, assumed that this exists usually. Often
required expressly by statute. Consider if it is.
State-provided counsel may be required in certain Charter contexts depending
(1) What’s at stake
(2) The complexity of the process and the law
(3) The capacity of the person affected to understand and to participate
w/o counsel
PF generally requires that the D/M disclose the Must happen and happen
information relied upon in making the decision. sufficiently to satisfy PF.
The disclosure must be sufficient for the
individual to know what case they must meet.
It is not necessary for the claimant to show
Ex of breach of PF b/c one
prejudice through lack or sufficiency of
party gave evidence after
disclosure, likelihood of prejudice is good
claimant left but before D
Obiter: there may be good reasons to limit disclosure, such as where disclosure
may cause harm to the claimant or the institution.
Disclosure is necessary so that the person can answer any claims against them.
This also ensures that all the facts come out in the proceedings so that the D/M
can make the best decision.
However, national security issues may limit disclosure, but there needs to be an
adequate substitute where these interests preclude the usual form of
Solicitor-client privilege may limit disclosure, such as when an in-house lawyer
prepares a legal opinion for an Admin agency.
PF does not automatically mandate crossNot allowing cross
examination rights, rather depends upon over- examination may not be a
all leval of PF and that claimant has reasonable breach of PF depending on
opportunity to present and test evidence.
the nature of the
State-caused delay will warrant a stay of proceedings if it results in significant
prejudice, which can happen two different ways:
(1) Actual prejudice to a fair hearing in an evidentiary sense
(2) Amounts to abuse of process
Actual Prejudice:
Heavy onus is b/c courts
- Claimant must have proof that is specific
want to avoid creating
and convincing
judicially imposed limitation
- Show the person can no longer answer the periods.
case against them due to the delay, b/c
witnesses have died or evidence has been
lost etc
Abuse of Process, need all three:
Factors to determine
(1) Inordinate delay
whether delay was
(2) That causes serious stress
(psychological harm) or stigma to
- nature of the case/the
(3) So that the human rights system is
brought into disrepute
Duty to give
Examples of
duty to give
various rights at stake
- level of complexity of
- purpose and nature of
the proceedings
- whether the applicant
contributed to the delay
or waived it
Minority: Other remedies are available to less serious unreasonable delays such
as cost orders or an order of an expedited hearing.
First time court recognizes PF might require
Flexible duty, consider type
reasons. Test:
of reasons required may not
(1) Where the decision has very important
be judicial standard due to
significance for the individual [this was the
broad variety of decision
basis for the existence of the duty in Baker]
making. Based on
(2) Where there is a statutory right of appeal
circumstances… ex here good
[NOT availability of judicial review]
enough for Junior Officer’s
(3) or in other circumstances
It is only the failure to give reasons at all that will amount to a breach of PF,
challenges to the adequacy of the reasons is a matter of substantive review.
Duty to give reasons arose due to L.E. (1st rezoning refusal was given with
reasons) and partly the seriousness of the impact i.e. needed a place to practice
their religion.
Reasons not required of municipality when making policy decisions such as tax
by-laws, even if that by-law only affects one person.
Reasons not required b/c minimal PF owed and interest at stake not very
serious. Also perhaps no reasons required b/c reason is obvious due to the very
narrow scope of the discretion, i.e. they didn’t think your circumstances
warranted delay in debt proceedings.
Compliance with the Duty
Were the
Knight v
An informal process was sufficient
that Knight was (a) made aware of
the concerns of the school board
and (b) had had a sufficient
opportunity to deal with them
over a ‘course of dealings’
between himself and the board
Informal notice and informal
hearing would have been enough
PF, but none was given.
Cardinal v
Nicolson v
Reasons needed to be given as
well as a chance for the police
officer to respond
Re Webb
Re Abel
Written notices given (ok b/c her
children could read) as well as
social workers personally
explaining was enough PF.
Opportunity to be heard is
important, but she took
absolutely no steps to be heard so
that isn’t the D/M’s fault.
Required to consider and balance
disclosure vs non-disclosure and
give reasons for decision.
Irvine V
Don’t have to allow crossexamination in prelim process.
Here it was a board of directors hired by
the school board, whose K was
terminable upon three months notice.
Went into negotiations about K renewal
but could not come to agreement, so
board gave the three months notice and
terminated him.
Here it was prisoners who had been
segregated after causing a riot… the first
decision w/o PF was OK, but later
decisions to continue segregation after a
non-binding recommendation to release
the prisons into the general population
required some sort of PF.
Police officer on probation dismissed
without reasons being given, although
didn’t get the full spectrum of PF that
statute authorized after 18 months,
common law still gave him something.
Notice given to illiterate woman that she
will be evicted from state housing if she
doesn’t get her children to behave. She
doesn’t, is evicted.
Chairman refused to release report to
NCRMD patient and counsel, when
recommendation about release of patient
would be made relying largely on this
report. Huge impact, so needed to give PF
when deciding whether to disclose or not.
Hearing officer in initial investigation
restricted the role of counsel, only
allowed to interview their own client but
not cross-examine witnesses. Cross
examination allowed later in process if it
Cardinal v
The result of a breach in PF “must always
render a decision invalid” regardless of
whether the outcome of the decision would
have been different with the PF or not.
This is because procedural
fairness is required for the lawful
exercise of power. Thus a
decision made without PF is a
jurisdictional error.
Mobil Oil
In exceptional circumstances where it is absolutely certain that only one decision
can legally be made, it is futile to grant a remedy for breach of PF.
Can deficiencies be
Taiga v BC
Appellate administrative tribunals may be
- This depends largely on whether
‘saved’ by according
able to cure breaches of PF at an earlier stage the breach in PF continues to
PF in a later stage?
in the decision making process. The
have negative effects at the
procedure as whole must be considered, and
appellate level.
this includes the appellate process.
(1) The gravity of the error
committed in the first
(2) The likelihood that the
prejudicial effects or error
may also have permeated the
(3) The impact on the individual
of the error
(4) The powers of the appellate
(5) Is the decision based on a ‘de
novo’ rehearing, or is it only
based on the material before
the original D/M?
Substantive Remedy? Lafontaine Cannot assume that the claimant is entitled
to a favorable decision, it is not up to the
Courts to exercise the D/M discretion.
Discretional Nature of the Remedy: When to Refuse Discretion
(1) Mootness
To have standing, a claimant must have more The court is reluctant to overMinister of than “academic” interest in the decision.
step its proper institutional role
Thus need:
in hearing cases that are “moot”
A. Sufficient adversarial context and
(i.e. where the decision being
B. A question of national importance
contested has already expired
that is elusive of judicial review
and is no longer affecting you)
(2) Delay
If there has been an unreasonable delay in an b/c prejudice could arise by
application for JR, it is grounds for the court
detrimental reliance of a party on
to refuse to exercise their discretion in
the decision at issue or b/c
granting a remedy.
difficult to mount a defence after
long time.
Applications for JR must be brought w/n 30 days of the decision, the court does
have discretion to extend this though.
ATA s.57
If applicable, application for JR must be brought w/n 60 days of the decision.
Court can exercise discretion to extend if “there are serious grounds for relief,
there is a reasonable explanation for the delay and no substantial prejudice or
hardship will result to a person affected by the delay”
JRPA s.11
Where s.57 ATA does not apply and the enabling Act does not set a time limit,
this provision applies:
Passage of time does not bar an action for JR unless substantial prejudice or
hardship will result to a person affected by the delay.
(3) Misconduct
(4) Waiver
(5) Prematurity
(6) Adequate
FCA s.18.5
(7) Balance of
Judicial review remedies are discretionary in
nature. The court will not exercise their
discretion if the plaintiff is guilty of bad
Not granted here b/c all Homex
was trying to do was avoid paying
for the subdivision, drew out the
process by refusing to be frank
and engaged in checker boarding.
A party may expressly or impliedly waive their right to complain about a breach of
procedural fairness, including complaints of bias or lack of independence. Thus
occurs when a party has knowledge of all the facts and their legal rights in the
matter, and can be inferred from their conduct if they continue w/o objection.
However if you make and sustain and objection, continuing in the proceedings is
not a waiver of your rights.
A court will refuse to exercise their discretion Policy:
if a JR application is made “prematurely” in
- Don’t want to make trouble for
that the tribunal has not yet completed their
the admin process
proceedings. Need exceptional circumstances - Cheaper, more efficient
to make an “interlocutory” application.
- Correction may be possible
- Claimant might end up w the
decision they want if they
continue in the process
An applicant must exhaust all other adequate External appeals will almost
remedies w/n the statutory scheme before
always be adequate as long as
seeking judicial review. Only in exceptional
Court empowered to give
circumstances will JR be granted where there remedy sought.
are still internal appeals or statutory rights of
appeal available.
Internal appeal will be adequate
- The nature of the internal
appeal body: can it resolve
and correct the matter
- The convenience of the
forum: costs, expeditious.
Compare to JR
- The procedures and capacities
of the appeal body: will it use
PF w/o bias, is it sufficiently
Always take into account the nature of the
Decision to suspend hospital
interests and to what extent they are
privileges for Dr. revoked on JR
immediately and irreparably prejudiced by
despite AAR b/c had immediate
the initial decision.
serious impact and irreparably
harmed reputational interests.
Where there is an appeal from a decision of a federal board, commission or
tribunal to the Federal Court, the SCC, the Court Martial Appeal Court, the Tax
Court, The G in C, Treasury Board, the appeal MUST be pursued rather than JR.
To refuse or grant relief where entitled involves consideration of a ‘balance of
convenience’ in that third party rights or interested parties should not be
disproportionately impacted.
Part III– The Rule Against Bias
General Principles
How is bias a part
of PF?
What are the
purposes of the
When does the
RAB apply?
“procedural fairness requires that decisions be made free from a reasonable
apprehension of bias by an impartial decision-maker”
“[the duty to provide PF] cannot exist if an adjudicator is biased”
“The duty of impartiality…has now become part of the principles of administrative
(i) Fosters public confidence in admin justice: legitimizes Ds and makes them
(ii) Promotes substantive fairness (better Ds b/c not based on irrelevant or
extraneous factors)
(iii) Supports participatory procedural rights
(iv) Linked to the ROL and equality goals
Basically applies to all decisions by administrative decision makers, it’s just the level of
the duty that varies with the context…
Duty of impartiality (positive form of RAB) varies in
The higher on the spectrum,
order to reflect the context of a D/Ms activities and the more you must have judgethe nature of its functions.
like impartiality.
There are two branches of bias, both of which can be institutional or individual
1. Impartiality
o Impartiality is about a state of mind – does the decision maker have a
predetermination? Are they pre-disposed to a party?
o Impartiality is ALWAYS required – even at the low end of the PF threshold
2. Independence
o Independence is about a state of relationship – will the decision maker be
influenced because of a relationship to someone else
o Three factors to determine independence (Valente)
i. Security of tenure
ii. Security of renumeration
iii. Interface between the decision maker and political influence
o Independence is ONLY required at the HIGH END of the procedural
fairness spectrum
RAOB in an
for Justice
and Liberty
R v. S. (R.D.)
Effect of Bias
Process for
Bias Claim
Text p 258
“Would an informed reasonable person, viewing
the matter realistically and practically,
reasonably conclude that it is more likely than
not that the decision maker (whether
consciously and unconsciously) would decide
(1) Reasonable person
- Who is fully informed
- Doesn’t have a “very sensitive”
(2) With a reasonable apprehension of bias
based on all the circumstances
- Grounds must be “substantial”
- Mere suspicion of bias is not enough
*Onus rests on person who is claiming bias*
Disqualifies d/maker from making a valid
decision and therefore causes a loss of
Raise first with d/m and get a ruling; then
continue while maintaining the objection or seek
prohibition (despite risk the application may be
considered premature)
There are four categories in which Bias may
1. Pecuniary or material interest in the
outcome (conflict of interest)
2. Personal relationships with those involved
in the dispute (parties, counsel or
3. Prior knowledge or information about the
matter in dispute
4. Attitudinal bias—predisposition towards a
certain outcome
If they would not conclude that =
Not enough to show D/M has
opinions or attitudes, need to show
that their beliefs/opinions prevent
them from coming to a decision
based on the evidence.
Note it is only the appearance of
bias that triggers the RAB, doesn’t
actually have to exist.
Decision can be quashed and sent
back or can get a prohibition.
If you waive your objection, then
you can’t bring it up again later.
Note these categories are not
Bias can occur on an institutional
or individual level
Pecuniary or Other Material Interests in the Outcome
Test changes based on whether the interest is direct or indirect, but want to always argue both!
This can apply even to more legislative D/Ms such as Ministers!
Very little tolerance for PERSONAL PECUNIARY interests in ANY D/M
 The Board is
NO bias, this is not a
 the mere possibility that a profit
deciding whether
“direct” benefit
could be realized in the future
to renew Ontario
out of other contracts awarded
Hydro facility.
If there is a direct
in the course of construction of
 Energy Probe (an
pecuniary interests, the
other units was no doubt too
interest group)
test is NOT the RAOB test
alien, contingent and remote to
claimed that Olsen  a direct pecuniary
constitute pecuniary bias at the
(on the Board) is
interest will lead to
time of the decision
biased – he owned automatic disqualification  Direct pecuniary interests are
a cable company
of the DM
when it is CERTAIN that a
who sold cables to
 The amount of the
financial benefit will be realized:
Ontario Hydro.
pecuniary interest is
interests are not speculative or
NOT a factor,
remote; they are not contingent
whether there are
on something happening
restrictions on the
use of the money
does not matter
Pearlman  Lawyer argues that NO bias
 Mere perception not enough
the benchers have
 “costs” are not profits or gains
a pecuniary
If a financial interest is
rather reimbursement for
interest in finding
considered to be indirect,
expenses that uncovered a legit
him guilty
the RAOB test applies
ground for sanction
 This is b/c if they
 The “costs” become property of
find him guilty, he
the law society as a whole not
has to pay their
benchers individually
costs—which are
 Costs awarded make up only
otherwise born by
.04% of law society budget so it
the law society and
would make a nominal
thus all practicing
difference in fees only
 Thus ability to award costs in
and of itself does not create
Ministers will NOT be seen to have a direct pecuniary interest, even where named as
litigants, if they are exercising a political function – ie: they are acting in the public interest
direct or
and exercising broad discretion in a non-adjudicative context. They can always have a
personal direct interest though… i.e. if they own a company and then exercise discretion in a
way that benefits it.
However, where a Minister is involved, as part of a cost-cutting Cabinet, in a labour dispute,
then this interest could be a direct interest
Personal or Business Relationships With Those Involved in the Dispute
Bennett and Doman
 Allegation of bias b/c
If it can reasonably be
securities commissioner perceived that because of
is a majority
the relationship the D/M
shareholder in an
may be consciously or
alleged competitor
unconsciously inclined to
favour or disfavor a
particular outcome = RAOB
Prior Knowledge or Involvement of Decision Maker at Earlier Stages
Can a D/M rehear BCNU
Generally, no bias will result from a D/M rehearing a
when it is
case sent back for a breach in PF.
quashed and sent
However, this is an exception b/c made a finding of
credibility—thus need new D/M to avoid bias.
involvement of
for Justice and
the D/M in
specific subject
 Nature and degree of the prior involvement
 How relevant was it and what was the depth and
nature of the relationship
 How Recent
NO bias
Type of D/M key: Strong
presumption of judicial
impartiality and thus a high
threshold to prove RAOB
Judges should generally not
preside over a case in which
they played a part.
Where there are overlapping
functions within an ADM, this
likely gives rise to bias b/c
can’t be impartial if you
already know everything
about the case.
 Nature & degree of
business or personal
 D/M made credibility
 There was a breach
of PF
 D quashed
 Director of NEB
previously worked for
a company that was
applying for a pipeline
 Conducted a study on
whether or not there
should be a pipeline
in that area only 5
months previous
 Time was a factor,  Binnie was in charge
this was 15yrs in
of all litigation against
the past
Canada from 82-86
 Connection was
 Involved with a claim
not very specific
that many years later
 He was never
went to the SCC
 Played no active
 Did not plan the
 Responsible for
1000s of files at
the time
 Can’t realistically
think there is bias
Note that statutory
 Securities commission
authorization was a
investigating B’s
complete defence in
this case.
 Staff of commission
reviewed situation,
made report, gave it
to chair
 Commission decided
to hold hearing
 Chair then proposed
to sit on the hearing.
Attitudinal Predisposition (Pre-Judgment) & Different Standards for Different Contexts
Use of
Bare statistics without more
 Statistics may not
 Report shows
are not evidence of bias.
take into account
immigration board
how cases are
member very rarely
assigned etc.
grants refugee status
 Also no one
suggested any of the
cases had been
wrongly decided
 Could just be luck of
the draw that this
member gets all the
bad cases
 RAOB test is an
“informed” person so
they would know
statistics don’t
necessarily show
bias, only
uninformed would
think that.
Where a D/M has made a unique claim and then has the
 Woman law prof
opportunity to decide a case, they are in a position to
complainant at HRT for
vindicate their own case. Thus = bias.
institutional sex
discrimination in the
No determination on writing given as case was decided on
the similar personal dispute issue.
 Has written extensively
on the subject
 Now she is on the
board for the HRT
 Deciding on a similar
sex discrimination case
to her own.
 Thus employed same
counsel as complainant
i.e. the HRT
Someone who has previously  Board members
 Immigration officer
expressed views through
writing was criticizing
had previously written
academic work on the subject
the system generally
‘critical’ writings of the
matter is not automatically
and not specifically
refugee system
disqualified on account of
the applicants country  Used country of origin
bias, as this actually may
of origina.
of applicant as an
make them more qualified for
the job.
 Expressed views that
mass immigration
It is necessary to
 No bias here b/c the
threatens Canadian
contextualize comments
comments were part
investigation &
made during a hearing to
of a reasonable
 Asked applicant during
determine if they give rise to
hearing why she had
not applied earlier
when she knew other
people from her
and Policy
View the comments
cumulatively to see if they
give rise to a RAOB
Old St
Where bias due to “prejudgment” is claimed against
a municipal counsellor, it is
only when it can be proven
they have made a final
determination before
hearing that bias will
disqualify them.
A municipal counsellor is not
disqualified from deciding b/c
of bias unless it can be shown
that they pre-judged the
matter to the extent that
they were no longer capable
of being persuaded.
bifurcated approach the Old
St. Boniface test applies
during pre-hearing stage:
cannot have a mind so
closed that submissions
would be futile.
Bias found here
D/M found to be so
preoccupied with
media and keeping
the spotlight on the
inquiry that the
fairness of proceeding
was affected.
Statute provides for
hearing, but obv
legislature would
know counsellors run
on political platforms
so would have made
statements about
issues beforehand.
 Thus leg cannot have
intended normal bias
test to apply
 Municipal counsellors
are just required to
maintain an open
mind so that they are
capable of being
persuaded and
nothing more.
Minority held a municipal 
counsellor is entitled to
have a closed mind…
would have taken it
country who had
received refugee
During a public inquiry,
justice made numerous
unwise media
Very colourful language
Making statements as
to what he had decided
before the end of the
Treating it as a ‘show’
The state has an interest 
in appointing members
that represent various
interest groups in society,
court shouldn’t impede
Alderman made
comments to the effect
that nothing said @
hearing could change
his mind
But also said that
something significant
could change his mind
Vocal and colourful
language made by
member of rate setting
Comments during
hearing showed that he
had made his mind up
and was no longer
capable of being
persuaded thus BIAS
at hearing stage use the
normal RAOB standard in the
usual contextual manner—so
would be pretty low standard
for policy board.
 This was a public inquiry, but DIDN’T use the bifurcated approach for policy boards…
Institutional Impartiality
Matsqui Will there be a reasonable apprehension of
bias in the mind of a fully informed person
in a substantial number of cases?
Factors Quebec
 Guarantees provided for in the
 Nature of disputes decided
 Other duties of the agency
 Whole operational context
 Plurality of functions not necessarily
If answer is no, then bias cannot be established on
an institutional level and must be challenged on a
case by case basis.
Decided here that yes there was institutional
impartiality problem, but basically didn’t consider
the “operational context” just looked at
hypotheticals, so not a good example.
Ref re
Prov Crt
Test to determine
Security of Tenure
Security of
Admin Control
Prematurity: When can
you bring
independence JR
Consitutional or Quasi
Sk fed of
Statutory guarantee
ATA ss 110
The unwritten constitutional principle of judicial independence is rooted in the
preamble to the CA 1867, protects judicial independence of prov crts deciding
civil matters.
The purpose of independence is to ensure So if an institution isn’t sufficiently
impartiality and the appearance of
independent, it gives rise to RAOB
as the institution no longer appears
Focus is on the tribunal’s relationship with the executive branch of government.
Cannot be applied to all ADMs since some are actually PART of the executive (i.e.
Ministers) can only apply “where the tribunal is functioning as an adjudicative
body settling disputes and determining the rights of parties.” Para 80
Would an informed observer have a
Use the Valente factors
“reasonable apprehension of lack of
 Security of tenure
sufficient independence”, thus giving rise
 Security of remuneration
to a RAOB in light of the Valente factors.
 Admin control
and apply them in light of the
 Nature of tribunal
 Interests at stake
 Other indices of
independence such as oaths
of office
Only removable for cause and cause
This is highest standard, what must
subject to independent review and full
be done for Courts.
A decision making office for a “set term” (rather than for life) is still ok when the
D/M is not at the level of a court and can only be dismissed early for cause.
Must be established by law so can’t be
This is highest standard, what must
interfered with
be done for Courts
Supervision by Minister is OK, doesn’t mean that the Admin body doesn’t have
control. This is normal practice and essential for ensuring accountability.
4 judges:
 Need to consider not only the structure and procedure on the face of the
 But also have to consider the “operational reality”
 So have to wait and see how the tribunal actually works (i.e. they have to
have made at least some decisions) before you can bring an action
2 judges:
 Only need to look at the legal structure of the tribunal
 Don’t need to see how it actually functions first
 Irrelevant if it would actually happen or not, just asking what is possible.
Apply the independence test above and
Here the Quebec Charter s.23
test the results against what is
guaranteed an “independent and
impartial tribunal”.
The unwritten constitutional guarantee of independence flowing from the
preamble does not extend to administrative tribunals.
Even where a tribunal functions quite near Labour Relations Board at issue
the judicial divide it still is not guaranteed
independence by the unwritten consti.
May provide a statutory guarantee of independence if they apply.
Statutory Authorization Defence and Use of “Rights Documents” to Override that Defence
Brosseau Where a statute explicitly or by
Can argue about what is authorized by the
necessary implication provides for
statute vs what actually occurred to get
over-lapping functions, this is a
around this defence.
complete defence to bias.
Policy: Court may be more willing to recognize
stat authorization defence where nature of
ADM and D is protecting a less serious
interest… here was economic…
Statutory language that is clear and
Statute authorizes Minister themselves to
unequivocal prevails over the common- appoint arbitrators… so even if this is bias, is
Where a statute expressly provides for arrangements of tenure, remuneration and
admin independence, statutory authorization provides a complete defence to a lack of
independence claim.
Trump statutory MacBain Statutory language that explicitly
Use test from Singh for s.2(e) of the CBR
authorizes bias can be over-ruled by
(1) Are “rights and obligations” being
the constitution or quasi-constitutional
decided on?
document like the CBR (used here)
 Here yes b/c deciding whether
Macbain complied with obligation
not to discriminate
(2) Are they afforded a fair hearing in
accordance with PFJ?
 Here no b/c there is bias due to
appointing the judge for their own
Other Defences
Necessity and Waiver: Can also make a defence to bias by saying necessity, i.e. there is no other possible D/M or waiver,
where the claimant earlier waived their claim against bias (must be done clearly and with knowledge).