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Sarah Chaster Law 301 – Admin Outline – Fall 2015

Administrative Law

Law 301: Final Outline 2015

Sarah Chaster

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TABLE OF CONTENTS

INTRODUCTION TO ADMINISTRATIVE LAW.................................................................................5BASIC PRINCIPLES OF ADMINISTRATIVE LAW.......................................................................................................5

What is administrative law?.............................................................................................................................. 5What are the purposes of administrative law?.........................................................................................5Administrative law versus Constitutional law...........................................................................................5Theories in administrative law........................................................................................................................ 6

JUDICIAL REVIEW........................................................................................................................................................7Challenging Administrative Action................................................................................................................. 7Remedies in Admin Law...................................................................................................................................... 8Constitutional Basis of JR................................................................................................................................. 10

Re Residential Tenancies Act (1981, SCC)........................................................................................................................12Crevier v Quebec (1981, SCC).................................................................................................................................................12

THE RULE OF LAW...................................................................................................................................................13Basic Principles of the Rule of Law.............................................................................................................. 13Competing Theories of the Rule of Law.....................................................................................................14Critiques of the Rule of Law............................................................................................................................ 17

Reference Re: Manitoba Language Rights (1985, SCC)................................................................................................18Canada (PM) v. Khadr (2010, SCC).......................................................................................................................................19Roncarelli v Duplessis (1959, SCC).......................................................................................................................................20BC v Imperial Tobacco (2005, SCC)......................................................................................................................................21Regie des Rentes du Quebec (2013, SCC)..........................................................................................................................22Ishaq v CIC (2015, FC)................................................................................................................................................................23

ADMIN LAW IN ACTION: BAKER V CANADA (1999, SCC)..............................................................................24

PROCEDURAL REVIEW IN ADMINISTRATIVE LAW...................................................................26INTRODUCTION TO PROCEDURAL FAIRNESS........................................................................................................26

Nicholson (1979, SCC)............................................................................................................................................................... 27Canada v Mavi (2011, SCC)......................................................................................................................................................29

General Framework of Analysis for PF Cases........................................................................................................................30Sources of Administrative Law....................................................................................................................................................30

LIMITATIONS/EXCEPTIONS TO PROCEDURAL FAIRNESS...................................................................................31Non-Final Decisions............................................................................................................................................ 32

Irvine v Canada (1987, SCC)....................................................................................................................................................32

Legislative and General Decisions................................................................................................................ 32Canada v Inuit Tapirisat (1980, SCC)...................................................................................................................................34Homex Realty v Wyoming (1980, SCC)...............................................................................................................................34CPR v Vancouver (2006, SCC).................................................................................................................................................35

Purely Commercial Relationships................................................................................................................. 35Canadian Arab Federation (2013, FC)................................................................................................................................35

Emergency Doctrine........................................................................................................................................... 36LEGITIMATE EXPECTATIONS DOCTRINE...............................................................................................................36

Reference re: CAP (1991, SCC)...............................................................................................................................................37

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CUPE v. MOL (2003, SCC)......................................................................................................................................................... 37Mavi (2011).................................................................................................................................................................................... 38Agraira v. Canada (2013, SCC)................................................................................................................................................38

SPECIFIC CONTENT ISSUES......................................................................................................................................39Notice........................................................................................................................................................................ 39Disclosure................................................................................................................................................................ 40Oral Hearings........................................................................................................................................................ 40

Khan v University of Ottawa (1997, ONCA)......................................................................................................................41Black v Advisory Council for Order of Canada (2012, FC)..........................................................................................41Kane v UBC (1980, SCC)............................................................................................................................................................42

Right to Counsel................................................................................................................................................... 43New Brunswick v JG (1993, SCC)..........................................................................................................................................43

Right to Call Evidence and Cross-Examine...............................................................................................44Timeliness and Delay......................................................................................................................................... 44Duty to Give Reasons.......................................................................................................................................... 44

Mavi v Canada (2011, SCC)......................................................................................................................................................44Congregation v Lafontaine (2004, SCC)..............................................................................................................................45Newfoundland Nurses’ Union (2011. SCC).......................................................................................................................46Catalyst Paper v North Cowichan (2012, SCC)................................................................................................................46

CONSTITUTIONAL/QUASI-CONSTITUTIONAL GUARANTEES.............................................................................46Authorson v Canada (2003, SCC)..........................................................................................................................................48

Oral Hearings & the Scope of s. 7................................................................................................................................................50Undue Delay......................................................................................................................................................................................... 50Right to State-Funded Legal Counsel........................................................................................................................................51

New Brunswick v. JG (1993, SCC).........................................................................................................................................51Common-Law Framework under s. 7..................................................................................................................................52Suresh v Canada (2002, SCC)..................................................................................................................................................52

Ex Parte/In Camera Hearings......................................................................................................................................................55Charkaoui v. Canada (2007, SCC)..........................................................................................................................................55

BIAS AND IMPARTIALITY.........................................................................................................................................58Opening Principles.............................................................................................................................................. 58

Baker (Re: Bias)............................................................................................................................................................................ 59

RAOB: Test and criticisms................................................................................................................................ 59R v S (RD) (1997, SCC)...............................................................................................................................................................60Imperial Oil v Quebec (2003, SCC)........................................................................................................................................60

Specific Categories of Bias............................................................................................................................... 61Pecuniary Interest.............................................................................................................................................................................62

Pearlman v. Manitoba Law Society (1991, SCC).............................................................................................................62Personal/Business Relationships...............................................................................................................................................63

Bennett and Doman v BC (1993, BCCA).............................................................................................................................63Prior Knowledge or Involvement...............................................................................................................................................64

Committee for Justice and Liberty v NEB (1978, SCC).................................................................................................65Wewaykum Indian Band v Canada (2003, SCC).............................................................................................................65

Attitudinal Bias................................................................................................................................................................................... 66Great Atlantic & Pacific Co v. Ontario HRC (1993, ONSC)...........................................................................................66Francis v Minister of C&I (2012, FC)....................................................................................................................................67

Variations in Bias Standards.......................................................................................................................... 68Old. St. Boniface v Winnipeg (1990, SCC)..........................................................................................................................69

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Save Richmond Farmland v Richmond (1990, SCC).....................................................................................................70Nfld Telephone v Nfld (1992, SCC).......................................................................................................................................71

Statutory Authorization Defence.................................................................................................................. 72Brosseau v Alberta Securities Commission (1989, SCC).............................................................................................73Cupe v Ontario (2003, SCC).....................................................................................................................................................73

SUBSTANTIVE REVIEW IN ADMINISTRATIVE LAW..................................................................74FEDERAL COURTS ACT (S. 18)..............................................................................................................................74

Canada (C&I) v Khosa (2009, SCC).......................................................................................................................................75

ADMINISTRATIVE TRIBUNALS ACT........................................................................................................................78ATA: Key Aspects.................................................................................................................................................. 78

ATA (SBC, 2004)........................................................................................................................................................................... 79Lavendar v Ford (2011, BCCA)...............................................................................................................................................80

Definition of PU..................................................................................................................................................... 80BC Ferries & Marine Workers’ Union (2013, BCCA).....................................................................................................81

Questions Raised by Lavendar Approach..................................................................................................81JJ v School District 43 (2013, BCCA)....................................................................................................................................82Jestadt v Performing Arts Lodge (2013, BCCA)..............................................................................................................83

SOR FOR CONSTITUTIONAL DETERMINATIONS..................................................................................................83Dore v Barreau du Quebec (2012, SCC)..............................................................................................................................84Loyola v Quebec (2015, SCC)..................................................................................................................................................86

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INTRODUCTION TO ADMINISTRATIVE LAW

BASIC PRINCIPLES OF ADMINISTRATIVE LAW

WHAT IS ADMINISTRATIVE LAW?

Public Law: Relationship between people & govt Judge-Made Law: Inherent jurisdiction of superior courts to supervise exercises

of public authority (but also has statutory sources) General Law: Encompasses many diverse issues Definition: Admin law concerns the “supervision” by courts of decision-making

made pursuant to statute or the royal prerogative. Scope: Does not apply to all public law (e.g. decisions of Parliament)

o Entities constituted by statute – not normally considered governmental but exercising delegated power – are subject to admin law principles

o When does something not government become governmental?o Private law: You can do anything the law doesn’t prohibit.o Public law: You can only do what the law authorizes you to do.

WHAT ARE THE PURPOSES OF ADMINISTRATIVE LAW?

Red light theorists: To control & constrain government power Green light theorists: To foster participation by interested parties in the

d/making process (more supportive of the welfare state) “Amber”: Middle ground – to ensure administration performs legislative tasks

effectively Tension between the rule of law and the democratic principle of Parliament’s

ability to create administrative bodies & endow them with broad powers

ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW

Admin law: Focus on exercise of authority by public bodies/govt under a statute Con law: Focus on exercises of Parliamentary authority constrained by Charter Growing intersections: Admin law explores constitutional law principles – rule

of law, parliamentary sovereignty, separation of powers, s. 96 courtso Tribunals increasingly face constitutional/Charter challenges

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Admin Law: Pros Admin Law: Cons

Welfare state – increasing need to delegate power to admin bodies

Inconsistent with notions of responsible government/public accountability

Expertise – specialized knowledge Inappropriately supplants the role of the legislature & judiciary

Broader public participation Decisions of questionable legitimacy can hugely impact the lives of individuals

Less susceptible to political pressure

THEORIES IN ADMINISTRATIVE LAW

Legal Formalism: Law as ‘scientific’ rules; decisions made by looking at past cases & plain meaning of words; no need to consider policy implications

o Analytic legal positivism values of classic liberalismo “Diceyan” view of liberty as a negative obligation on the government to

refrain from interfering in the lives of individualso Resisted delegation of power to admin bodieso Saw these bodies as undermining courts/not protecting individual rights

Progressives: The goal of law is social welfare – emerged w/ the regulatory stateo Liberty as a positive obligation on governments to provide freedom and

basic qualities of lifeo Delegation of power from parliament to admin tribunals as both necessary

and inevitable for the welfare state to functiono John Willis: zealous supporter of the administrative state – argued for

wide discretion to administrative bodies to properly take care of citizens Today, administrative state is firmly entrenched, but still a lot of debate around

the proper role of admin d/makers, accountability, etco Often depends on nature of the decisiono E.g. arguments for greater role of admin bodies when distributing benefits

or resolving labour disputes, but arguments for restricting admin action which curtails access to courts for vulnerable ppl (immigrants/refugees)

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JUDICIAL REVIEW

CHALLENGING ADMINISTRATIVE ACTION

Non-Judicial Mechanisms Judicial Mechanisms

Internal appeal mechanisms Private law remedies

- Can get $ (unlike JR)- Usually breach of K or tort claim

(e.g. tort of misfeasance in public office)

Political process (complain to your MP!) Statutory appeals

- If available, JR usually refused- Statute sets out how appeal works:

which court hears, by right or leave

Judicial review

- Superior courts have inherent jurisdiction to hear any matter

Branches of Admin Law

Procedural: The manner in which authority was exercised Substantive: The merits of the decision itself

o Factual/legal basis of the decisiono Errors in interpreting the scope/meaning of statutory provisions

NB: There can also be a constitutional review of admin powers (e.g. division of powers argument or Charter breach)

REMEDIES IN ADMIN LAW

Sources of Review Power

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Where do courts get power to review administrative d/making? Three main sources:

1. Original jurisdiction:- Ordinary courts have jurisdiction if admin d/makers are challenged by way of

direct actions by a citizen in K or tort- Usually when an individual claims state has infringed his/her private legal right2. Statutory right of appeal:- There is no automatic right of appeal for admin decisions- Look to the statute to see if there is any right of appeal3. Courts’ inherent judicial review jurisdiction:- Superior courts in each province may review decisions – constitutional guarantee

of this power found in s. 96

Admin law remedies are:

1. Non-monetary2. Only applicable to public authorities3. Discretionary- Private law: courts have no discretion to refuse- Admin law: courts can refuse if undue delay, adequate alternative remedy (e.g.

appeal that was ignored), issues are moot, etc

The prerogative writs:

Traditional channels for remedies in admin law Other remedies in addition to the writs: declaration (Khadr – court made a

declaration of his rights) & injunctions (restrain conduct)

1. Certiorari- Quashing/setting aside a decision (NB: cannot rewrite decision)2. Prohibition- Prohibits d/maker from proceeding (pre-emptive action)3. Mandamus- Compels d/maker to perform an action- Usually cannot be compelled to exercise a certain form of discretion

(exception: Insite decision!)4. Habeas corpus- “Show the body” lawfulness of detention

The writs were technical, restrictive, difficult

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They were the only way to challenge admin decisions – if no appropriate remedy (i.e. one of the writs), the admin action could not be challenged

Lots of fine distinctions – had to try to “squeeze” cases into one of the writs Vires: this was critical to the substantive outcome of the case

o If an admin decision was intra vires, a reviewing court could only apply one of the writs if the decision was so “patently unreasonable” that the admin d/maker lost jurisdiction

o If the admin decision was ultra vires, a reviewing court could make an order using one of the prerogative writs (no matter how reasonable or correct the decision had been)

Thus, judicial review of admin d/making was very confined for a long time Problematic: courts were defensive – governments were basically giving the

jurisdiction of the courts away & it was v hard for them to review admin decisionso Legislatures started inserting privative clauses; courts responded by

interpreting them very restrictivelyo Courts began squeezing anything they could into prerogative writs &

using the term “ultra vires” so often that it lost its meaning Finally, reform in the 1970s-1980s The McRuer Commission

o Led to codification of procedures for admin tribunals in various provinces (e.g. Administrative Procedures Act)

o Also wanted to extend availability of judicial review/make it easier to useo Led to the JRPA and FCA (see below) basically streamlined/clarified

procedures around judicial review, and created the federal court system Judicial Review Procedures Act: Governs how to apply for JR

o Supplants prerogative writs, but same kind of relief is availableo For questions of law, courts could review decisions of any statutory

authorities that determined rights and interests of an affected partyo For questions of fact, courts could review the decisions of most judicial or

quasi-judicial bodieso All provinces enacted statutes that replaced old common-law writs (the

remedies) with a single application for judicial reviewo NB: Court cannot refuse a remedy simply because of a technical mistake –

move away from the strict technicality of the pasto Relief remains discretionary

Federal court system:o FC & FCA hear JR of federal administrative bodieso Created by statute in 1970so Similar jurisdiction/power as superior courts, but no inherent jurisdiction

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o Source of power is statutory – found in the FCA

Summary: administrative law moved from a complicated, common-law regime (prerogative writs) to a simpler, statutory-based regime (clarified how to apply for JR & which court would hear) which is informed by the common law.

CONSTITUTIONAL BASIS OF JR

There is no explicit guarantee of judicial review in our constitution. The FCA gives statutory authority to federal courts to judicially review federal admin decisions. What is the source of power for JR of provincial admin bodies?

Admin agencies only have the power conferred to them (no “inherent” power), so their powers are legally limited – courts have always seen their role as policing the borders of those legal limits & ensuring admin bodies don’t go beyond them

So historically, even if legislature wrote in privative clauses to shield admin bodies from this review, courts gave them short shrift & read them very narrowly

Parliamentary supremacy would suggest that nothing prevents legislature from enacting whatever it wants – however, there is an argument that s. 96 implies a constitutional guarantee to JR of administrative action which trumps parliamentary supremacy in this context. See below.

Competing models:

Ultra vires – courts ensure tribunals don’t extend beyond their delegated powero But sometimes public law bodies don’t have a statutory foundation, so that

theory fails here Common law theory – based on justice and rule of law Inherent jurisdiction

o Constitution Act, 1867, s. 96 has been held as guaranteeing the power of superior courts to conduct JR of provincial administrative action on jurisdictional grounds

o s. 96 allows federal govt to appoint superior court judgeso Provincial govt appoints administrative tribunalso Superior courts have inherent jurisdiction (which includes policing the

authority conferred on admin tribunals); admin tribunals only have that jurisdiction conferred on them by statute

o “Inherent jurisdiction” means the jurisdiction of superior courts is broader than whatever may be conferred by statute; thus superior courts may hear

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any matter, unless statute specifically says no, or gives exclusive jurisdiction to another court or tribunal

o If a provincial govt tries to confer inherent jurisdiction on an admin tribunal (i.e. by shielding them from JR), they are usurping the power of the federal govt. This would be the same as them creating their own judiciary & is not allowed.

o Further, s. 96 means superior courts themselves are immune from JR (superior courts can only review admin tribunals, not each other)

Thus, provinces can’t make “de facto” s. 96 courts by creating admin agencies and then shielding them from review. To determine whether an administrative tribunal is acting like a s. 96 court, superior courts have created the following three-part test:

Historical Inquiry: Does the power or jurisdiction conform to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation? (Tends to be interpreted broadly to protect the power of s. 96 courts). If yes, go to step 2.

Judicial Power: Can the function/power be considered a ‘judicial’ function, as opposed to a legislative or administrative power?

o How ‘court-like’ does it look? Primary issues is the nature of the question which the Tribunal is called upon to decide

o “Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a matter consistent with fairness and impartiality, then normally it is acting in a ‘judicial capacity’.” – Re Residential Tenancies Act

o The judicial task involves questions of principleo Is it a private dispute between parties, adjudicated through a

recognized body of rules, consistent with fairness & impartiality? Institutional Context: Consider the power in tis overall institutional setting

to determine if the setting changes the character of the power sufficiently so that an administrative tribunal should be allowed to exercise it (notwithstanding that it is a ‘judicial power’ that was exercised exclusively by superior courts at the time of Confederation)

o I.e. the “institutional setting” argument can allow a tribunal to exercise such power provided the power can be characterized as a “necessarily incidental aspect of”, or “ancillary to” a broader, more comprehensive and complex regulatory scheme

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o Scheme is only invalid when adjudicative function is the sole or central function of the tribunal so that the tribunal can be said to be operating like a s. 96 court

If yes to all three, then provincial leg. cannot confer this power to an administrative tribunal

RE RESIDENTIAL TENANCIES ACT (1981, SCC)

Facts: Ontario enacted the Residential Tenancies Act in 1979; created the Residential Tenancy Commission to oversee and enforce rights and obligations under the Act.

Issue: Is it within the legislative authority of the province to empower the RTC to: Make orders evicting tenants? Make orders requiring landlords and tenants to comply w/ obligations imposed

under the Act?

Held: No.

Analysis: Intended effect of s. 96 would be destroyed if province could pass legislation creating tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts

BUT, “s. 96 can no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary ‘judicial’ powers formerly exercised by s. 96 courts”

Ratio: SCC provides a framework for the kind of powers a provincial legislature can give to an administrative tribunal. When is an admin tribunal acting like a s. 96 court, and is thus unconstitutional

CREVIER V QUEBEC (1981, SCC)

Facts: There is a privative clause in the Professional Code of Quebec which says there can be no recourse in the face of a charge that it exceeded its authority.

The clause bars all judicial review of the Professional Tribunal’s decisions (administrative d/maker created by the Professional Code) – “no recourse to Quebec Superior Court by either appeal or judicial review, even if it is alleged that the Professional Tribunal exceeded its statutory powers”

Issue: Is the privative clause constitutionally valid?

Held: No.

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Insulating an admin agency from review of its jurisdiction essentially makes it a s. 96 court; this is not allowed. Only superior courts can determine the scope of their own jurisdiction.

A provincially constituted statutory tribunal CANNOT constitutionally be immunized from review of decisions on questions of jurisdiction

Questions of jurisdiction “rise above and are different from errors of law” Cannot be left to a provincial statutory tribunal to determine the limits of its own

jurisdiction without appeal or review

Ratio: A provincial legislature cannot create an administrative tribunal and then purport to immunize it from JR by superior courts. This case constitutionalized the right to judicial review for jurisdictional questions, even in the face of a privative clause.

Basically, the role of superior courts in maintaining the rule of law is so important that it is given constitutional protection

Since Crevier, courts tend to read down privative clauses (i.e. they are invalid only to the extent that they seek to prevent review)

Same principle applies to federal Parliament – cannot immunize federal administrative agencies from judicial review

Highlights the importance of independent judiciary to ensure admin decisions are authorized (rule of law concerns)

Result: Today, privative clauses are usually quite broad, and then are read down to apply to everything (including merits) except questions of jurisdiction – shows the high deference given to decisions of administrative bodies

What is an “error of jurisdiction”? Very flexible – left unclear in Crevier

THE RULE OF LAW

BASIC PRINCIPLES OF THE RULE OF LAW

ROL is a basic, foundational, constitutional meta-principle, with both written and unwritten sources. No set definition from the SCC. Defining features:

1. A jurisprudential principle of legality2. Institutional practices imposing legal restraints on the exercise of public power3. A sense of shared political morality

ROL explores the legitimate scope and content of judicial power

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As a meta-principle, ROL includes many related principles, including: legality, separation of powers, responsible govt, judicial independence, honour of the crown, PFJs, access to justice, etc

Core meaning = principle of legality, i.e. law should always authorize the use and constrain the risk of the arbitrary use of public power. How does the principle of legality restrain arbitrary power?

- It constrains the action of public officials- It regulates the activity of law making- It seeks to minimize harms that may be created by law itself

“Laws, not men, should rule in a well-ordered political community.” – Aristotle

ROL = supremacy of law over unconstrained political power ROL guarantees that nobody (not even highest ranking officials) is above the law

(all officials bound by the law, even if source of power is prerogative – Khadr) ROL is explicitly acknowledged in the preamble to the Constitution Act, 1982 ROL guarantees legal accountability for everyone in a democratic society ROL prevents arbitrariness (which leads to unfair results) – ties into PF

o Arbitrariness can be in procedure (unfair process in reaching a decision), jurisdiction (statutory body goes outside its enabling statute) or substance (a biased, illogical or unreasonable decision)

o Arbitrariness can also be found in unconstrained discretionary powers (dating back to the type of power wielded by absolute monarchs)

o Insite: Recent example of substantive arbitrariness (arbitrary exercise of discretion in denying the exemption – decision did not conform with statutory objectives of upholding public health & safety)

o In summary, problems around arbitrariness animate ROL attempts to ensure the legality, reasonableness & fairness of admin. processes

Problem: Do all these competing definitions mean advocates can basically read into the ROL whatever they want to support their particular view? (FCA in Imperial Tobacco)

COMPETING THEORIES OF THE RULE OF LAW

1. Diceyan (Formalist, Traditional Approach in Admin. Law)

Albert V. Dicey: 19th century British scholar – popularized the concept of ROL. Hugely influential – themes below comprise the classic Diceyan account of ROL.

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Legality: There must be lawful authority for state actions that interfere with the rights and liberty of citizens.

o “Government must be subject to law”o Clear legal rules preferred – distrust of discretion (fear of arbitrary use of

power)o Private people can do w/e they want as long as it isn’t prohibited;

conversely, public officials can only do what is authorized by lawo Dunsmuir (2008, SCC): Reflects Diceyan ideas about the legality principle

See para 28 “All exercises of public authority must find their source in law” Role of JR is to ensure legality/fairness in the admin. process

Formal legal equality: Everyone, governments and citizens alike, are subject to the ordinary law as administered by the ordinary courts. Nobody is above the law.

o Courts are the “final arbiters” of what law iso Same courts should apply for everyone (i.e. shouldn’t constitute special

tribunals for public officials as opposed to private citizens) Judges as guardians: Courts through administrative law are the citizen’s bulwark

against arbitrary government power.o The role of the court is to protect the rights of citizens against the state

(courts = better protection of fundamental rights than written Constitution)o Executive and administrative branches of government are particularly

‘dangerous’ and courts needn’t show any deference to themo This argument is the bedrock for those arguing against the expansion of

the regulatory state General notes:

o Judge-made law/unwritten constitution better than written rules (less vulnerable to executive attempts to curb citizens’ rights)

o Champion of parliamentary sovereignty – this is the source of all ordinary law and government power

o Strong advocate for judicial intervention (supervise admin. bodies, etc)o Diceyan model viewed admin bodies with distrust (seen almost as lawless,

not accorded any deference) Criticisms: Too much ambiguity, some contradictions (i.e. he supports an

expansive view of ROL but also a strong proponent of Parliamentary sovereignty)

2. Substantive Rule of Law – “Thick” ( Roncarelli )

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Departs from formalistic, Diceyan theory by injecting more values into an assessment of government action

ROL as a particular vision of what “justice” requires in substance, i.e. rule of “good” law – injects a moral content

ROL can be used to measure the content of legislation for a policy perspective Thus substantive ROL reads written rules through substantive purposes/values The “thick” version of ROL demands that ROL embody a particular vision of

social justice, structured around moral rights and duties which citizens have against each other & society as a whole (see Dworkin)

Compare this to the “thin” view below, which amounts to a constitutional principle of legality (demands that govt be conducted n accordance with established & performable norms, but doesn’t have as much of a role in substantive policy)

Formal versus Substantive (Summary): Formalist account = administrative law concerns written rules that govern public decision-makers & courts make sure d/makers don’t go outside the authority given to them by statute or prerogative.

Substantive account = authority is bound by the purpose and terms of the statute, regulations, Constitution, and written/unwritten legal principles. Formally valid exercises of discretion can offend the rule of law and thus be an abuse of power. This is a deeper principled and purposive approach to understanding ROL.

3. New Minimalist Rule of Law – “Thin” ( Imperial Tobacco )

Joseph Raz: Central principle law must be capable of guiding its subjectso Law should be general (not discriminate) and prospective (not retroactive)o Law should be open and clear - clear rules/procedures for making lawso Law should be stable & not changed too frequentlyo Importance of the independence of the judiciaryo Affirms non-arbitrariness & need for positivist lawso Basically, law should be prospective, clear, stable, consistent, etc –

citizens must be able to predict the legal responses to their actions & adjust their behaviour accordingly

o This is a minimalist view (rule of law basically equals legal formalism) because adherence to the rule of law doesn’t mean resulting laws are substantively just – it simply means they are valid and meet the minimum legal conditions considered essential for procedural justice

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Raz’s minimalist view was that law should be relatively separate from politics – i.e. we live in a diverse society, and we won’t always agree on how our fundamental values should be ranked compared to each other, so keep policy for the legislatures and away from courts/legal culture

However, it is easier to protect the independence of courts than the independence of administrative bodies (they are like “governments in miniature” and policy infuses much of their behaviour and d/making)

o Retroactivity: Raz argued law should be prospective (i.e. apply forward) and not retroactive, but Imperial Tobacco confirms there is no constitutional requirement for prospectivity except in crim. Law

Regie des Rentes also said legislature can enact retroactive laws – it will be assumed they considered the potential unfairness and went ahead with it

Both cases respect Parliamentary sovereignty on this point Lou Fuller: Sees law as “a kind of reciprocity” – citizens derive benefits from

following the law, so makers have an interest in making clear laws that are conducive to voluntary compliance

o Law is not a “one way projection of authority” onto subjectso Emphasizes principles of accountability and transparency in govt actiono Doesn’t view admin bodies with distrust, unlike the Diceyan view –

rather, if they follow these principles, they should be shown deference More restrictive view of ROL than the “thick” version if ROL is too broad, it

basically becomes a legal philosophy. ROL is not “liberalism” – it is a restrictive concept with a specific role

Though law can be informed by unwritten principles, ROL cannot invalidate legislation based on content that is otherwise constitutional

o Importance of the written constitutiono Less willing to “read in” substantive values/purposes to ROLo “The rule of law is not an invitation to trivialize or supplant the

Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour.” – Imperial Tobacco

CRITIQUES OF THE RULE OF LAW

1. Functionalist (i.e. “Traditional”) Critique of the Diceyan Model

Bora Laskin/John Willis – supported the rise of the regulatory state

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Old-school critique of ROL that says it vests too much importance in the courts Associated with “green light theory” which says administrative law is about

promoting the effective functioning of a modern state (i.e. regulating private power, promoting greater equality by redistributing income/benefits)

Courts should take a more restrained/limited role, less interventionist in overseeing administrative action

The goal of administrative law is to promote effective functioning of the modern state – this can be done best through policy and discretion

Sees policy as a central part of stat. interpretation (shouldn’t separate out law from policy!)

Governments as guardians: judges are elitist and shouldn’t hold a monopoly on how to interpret statutes/make sure they are consistent with legislative intent and the proper functioning of the administrative state

2. Critique (i.e. “New”) of the Minimalist Mode

Kent Roach: Critically assessed Canada’s response to 9/11 (enacted many procedures which defied the rule of law – secret evidence/arrests, etc)

o Criticized Canada’s tendency to expand criminal law as a symbolic act in response to well-publicized crimes

Heavily politically charged events are thus used to create laws which defy the rule of law – this is problematic

Examples: detainees denied POW/accused status, refused recourse to courts, etc Need to bring back substantive ROL values

3. Critique of ROL as a Liberal Concept (i.e. another “New” critique)

S. Razack: 2008 book “Casting Out”o Race thinking in the law creates “states of exception”, i.e. two orders of

humanity – one that is excluded to ensure the survival of the othero Powerful critique of Western lawo States of exception are justified by race and other difference-based

thinking, and is seen as required to preserve the ROL and “civilization”o Basically, the law excludes people to bolster ROL/its own legitimacy

REFERENCE RE: MANITOBA LANGUAGE RIGHTS (1985, SCC)

Facts: Reference question re: whether Manitoba laws had to be in both languages (for years, only in English).

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Held: Yes – legislature had to follow its own rules, i.e. enact everything in both languages. Represents positive law.

“The rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life.”

SCC rules against arbitrary/unauthorized government action However, declaration of invalidity was suspended until translations were re-

enacted to avoid a legal vacuum & ensure continuity of the rule of law

Ratio: Represents the idea of order in the rule of law, i.e. positive law – a philosophical view that society must be based upon written rules.

CANADA (PM) V. KHADR (2010, SCC)

Facts: Khadr was imprisoned at Guantanamo for over 7 years. PM asked the SCC to reverse the decision of the FCA which required the Canadian govt to request the US to return Mr. Khadr from Guantanamo Bay to Canada.

Held: Partial victory – SCC made a declaration that Khadr’s Charter rights were violated, but refused to make an order to request his return (left discretion ot the government on how best to respond to his Charter breach).

Reasons: Khadr’s rights were clearly violated at the hands of Canadian govt officials (no due process, no lawyer, illegal gathering of info, etc

Argument that the remedy sought is precluded by the fact that it touches on the Crown prerogative over foreign affairs (i.e. can the courts order the executive branch to do anything in the area of foreign policy?)

Prerogative power: “The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown” a limited source of non-statutory administrative power accorded by the common law to the Crown

Still exists in the context of prerogative power over foreign affairs However, just b/c power is prerogative doesn’t mean it is shielded from

constitutional scrutiny Governments can choose between a range of constitutional options, but courts are

still tasked with determining the constitutional limits on any government action Summary: Courts do have a narrow power to review and intervene on matters of

foreign affairs to ensure the constitutionality of executive action

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However, the best option is to declare his rights were violated, and then leave the remedy to the discretion of the govt (record is incomplete, court doesn’t know where negotiations stand/what the best course of action is

Ratio: Government officials are bound by law, even where the source of power is prerogative and non-arbitrary. Prerogative power is still subject to constitutional scrutiny. However, in this case the remedy is declaratory only (i.e. declaration of rights violation) – discretion left to govt on how to proceed in light of this.

RONCARELLI V DUPLESSIS (1959, SCC)

Facts: Dispute between Duplessis (Premier of Quebec) and Roncarelli, a wealthy Jehovah’s witness & café owner who posted bail for over 400 Jehovah’s Witnesses who had been jailed or distributing religious pamphlets (Duplessis warns him to stop but Roncarelli refuses).

Duplessis instructs liquor commissioner to cancel Roncarelli’s licence – licence is cancelled & he’s told he’ll never get one again

Relevant statute: “An Act Respecting Alcoholic Liquor” s. 35 allows the Commission to cancel any permit at its discretion, so commissioner uses this authority to cancel Roncarelli’s licence

Good example of arbitrary power: unlimited discretion, d/making in bad faith, considering irrelevant factors in d/making, disregarding the purpose of a statute

Issue: Was this cancellation contrary to the rule of law? (Private law remedy – Roncarelli privately sues Duplessis for damages).

Held: Yes, against ROL. This was not a lawful act of the Liquor Commission.

Analysis (Rand J.): “Thin” view of ROL says that the Act permits wide discretion, thus the cancellation of the permit was allowed.

“Thick” view says there is no such thing as absolute and untrammelled discretion No legislative Act can, without express language, be taken to contemplate an

unlimited arbitrary power Discretion implies good faith, i.e. carrying out the statute for its intent and

purpose, where malice means carrying out action for a reason and a purpose which is foreign to the statute

Finally, even if they did have authority to cancel the licence, they didn’t have authority to cancel it forever

Rand J. highlights procedural/evidentiary difficulties here (these breaches of public duty may be happening frequently, and we just don’t know about them!)

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Doesn’t matter that the commissioner technically cancelled the licence – Roncarelli was the “instructing mind” (not off on a technicality)

Premier was acting beyond his public authority (i.e. outside the terms of the statute) – this was a private act – thus procedural protections which would have been there were he acting in a public capacity were no longer available to him

Ratio: Illustrates the “thick” substantive rule of law (versus formal approach). There is no such thing as absolute and untrammelled discretion. Gives “good faith” and “malice” specialized meaning in an administrative law context.

BC V IMPERIAL TOBACCO (2005, SCC)

Facts: In 2000, BC passed an act allowing government of BC to sue tobacco manufacturers for recovery of healthcare expenditures incurred by govt in treating population exposed to those products. Imperial Tobacco challenged the validity of the Act on 3 grounds: division of power, and two underlying principles of judicial independence and rule of law.

Issues: Does the Act violate the underlying constitutional principle of a) judicial independence and/or b) the rule of law?

Held: No. The Act is constitutionally valid.

Analysis: Re: judicial independence “The Legislature can introduce illogical or draconian legislation as long as it does not fundamentally alter or interfere with the relationship between the courts and other key branches of government.” Shift in onus found in the Act does not interfere with the court’s adjudicative role.

ROL embraces three principles:i) Law is supreme over both govt officials and private individuals

(protects against arbitrary power) LEGISLATION MUST APPLY TO EVERYONE

ii) Creation/maintenance of an order of positive laws which embody the more general principle of normative order

LEGISLATION MUST EXISTiii) The relationship b/w state & individual must be regulated by law

STATE ACTION MUST BE LEGALLY FOUNDED None of these principles speak directly to the terms of the impugned legislation,

so ROL can’t be used to invalidate it Re: ROL “The rule of law is not an invitation to trivialize or supplant the

Constitution’s written terms” (para 67)

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Court rejects that advocates can try to simply read into the ROL anything which supports their particular view on what that specific law should be

If we think legislation is unfair, then it is up to us to vote out the government, not try to use the rule of law as a principle to invalidate that legislation

Retroactive legislation is allowed (except in criminal law) Thus the Court shows little willingness to read in substantive values to the

purpose of ROL, and instead adopts a view based on the supremacy of the written terms of the Constitution (the court’s role is to give effect to legislation, as long as that legislation is constitutionally valid)

In summary: ROL is directed at executive (rather than legislative) actiono ROL is not an invitation to avoid legislative actiono ROL does not ensure a fair trial (the Charter guarantees this in criminal

sphere – to go further and add this to the civil context would trivialize the written text of the Constitution)

Ratio: Illustrates the new, minimalist, “thin” rule of law. Can’t use ROL to avoid legislative initiatives of which one is not in favour.

REGIE DES RENTES DU QUEBEC (2013, SCC)

Facts: RR issued decisions under Quebec’s Supplemental Pension Plans Act (SPPA) which partially terminated some employees’ pension plans. The Court of Appeal said RR had to review its initial decisions and make some changes. The SPPA was then amended which adopted RR’s approach and rejected the approach taken by the Court of Appeal. On another appeal, the Court of Appeal said it’s initial judgment had acquired the authority of a final judgment and should have been followed by RR.

Held: Res judicata (which prevents parties from relitigating an issue if there has been a final determination) does NOT prevent the legislature from negating the effects of such a determination basically, the legislature can – after a court decision – go back and offer a binding interpretation of its own law by enacting declaratory legislation

This legislation has an immediate effect on pending cases, meaning it is an exception to the general rule that legislation is prospective

It was clearly the legislature’s objective to overrule the Court of Appeal’s decision in order to protect the plan’s members

Administrative d/makers are bound by stare decisis if the judgment of the court above is based on “good law”. Following the legislature’s intervention, the Court of Appeal’s direction became bad law, and the RR was entitled to interpret the SPPA in light of the declaratory provisions (reasoning which gets them around the issue of stare decisis)

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If a legislature enacts retroactive legislation, “it is presumed to have weighed the need for the interpretive clarity the provision would bring against the disruption and unfairness that might result from its retroactive nature” highlights the deferential attitude of the courts towards the legislature here

Dissent (McLachlin C.J.): The majority decision disrupts the rule of law. Administrative d/makers (like RR) cannot second-guess the final judgment of a court (like the Court of Appeal) on the legality of its decisions. The majority judgment allows the RR to disregard clear instructions from the Court of Appeal and to revisit an issue that had already been decided

The issue here isn’t about legislature enacting retroactive provisions Rather, it is about an administrative d/maker ignoring the directions of a court

that has supervisory jurisdiction over it, which it shouldn’t be allowed to do

Ratio: Legislatures can enact declaratory provisions to existing legislation, and these provisions can apply to pending disputes – exception to the general rule that legislation must be prospective. Courts take deferential attitude towards legislature.

ISHAQ V CIC (2015, FC)

Facts - Act says GIC is statutorily authorized to make regulations regarding ceremonial procedures to followed by citizenship judges & the citizenship oath

- Citizenship Regulations say the judge will allow the greatest possible religious freedom during the citizenship oath

- Guideline CP 15 (amended in 2011) says candidates cannot wear face coverings during the oath-taking portion of the ceremony

Issue Is this guideline unlawful?Held Yes.Reasons - FC says this guideline is unlawful; it is a mandatory guideline and

is contrary to the regulations allowing the greatest religious freedom possible

- Since citizenship can’t comply with both the Policy and the Regulations, then the regulations prevail (enacted by GIC – higher legal status than guidelines and policies)

- FCA upholds FC’s decision (though says they don’t necessarily agree w/ all the reasons), dismisses appeal

- “Thick” vision of ROL? Maybe, construed “greatest possible freedom” quite broadly; but generally a “thin”, mechanical appl’n of the ROL (simply prioritized regulations over guidelines, focused

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on structure of sub-leg)- Minister can’t make a mandatory policy – this would effectively

create a regulation, and he doesn’t have authority to do thatRatio Recent case, illustrates different versions of ROL and critiques.

ADMIN LAW IN ACTION: BAKER V CANADA (1999, SCC)

Facts: B came to Canada as a visitor in 1981 & stayed on illegally Employed as a domestic worker, had 4 children, post-partum depression She applied for welfare; 2 kids went to dad, other 2 went into foster care Ordered deported in 1992; applied for exemption on H&R grounds Her args: making progress in Canada, treatment may not be available in Jamaica,

kids depended on her, emotional hardship if separated IO notes: “Case is a catastrophe”, B has “no qualifications”, she and her kids will

be strain on social welfare – “Canada can’t afford this kind of generosity”

Chain of Statutory Authority: Constitution Act 1867, s. 91: Powers of Parliament Immigration Act: Statute of Canada

o S. 9(1): Sets out general process for PR status (must file outside Canada)o S. 114(2): GIC may authorize the Minister (not Minister’s choice directly)

by regulation to exempt on H&C grounds – Minister delegates this authority to immigration officers via regulation, with guidelines published to guide their exercise of authority (including factors in H&C grounds)

Immigration Regulations, s. 2.1: Minister can exempt any person from any regulation under 114. Or facilitate their entry, based on H&R grounds

UN Convention on Rights of the Child: Int’l instrument, ratified by Canada (though not domesticated into Canadian law, so limited applicability)

Statutory Authority re: JR/Appeal: Immigration Act, s. 82.1(1): Application for JR under the FCA may only be

commenced w/ leave of FC judge Immigration Act, s. 83(1): FC decision may only be appealed to FCA if the

judgment certified and stated a “serious question of general importance”

Procedural Fairness: PF is “eminently variable” and context-specific B argues she was entitled to oral interview, right for kids/dad to make

submissions, right to have counsel present, and provision of reasons. Also RAOB. PF clearly triggered here (“rights, privileges, interests” affected, per Cardinal v.

Kent). But what is the content? See non-exhaustive list in table below.

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Underlying purpose: Admin decisions should be made using fair and open procedure, appropriate to the decision being made in its full context, with an opportunity for those affected to put their views forward & have them considered

New rule: recognized that provision of reasons will sometimes be requiredo Benefits: creates better d/making, public confidence, easier of decision is

appealed or reviewedo Concerns: increased cost/delayo Reasons may be required depending on:

a) Significance of decision to individualb) Statutory right of appealc) Other circumstances

Non-exhaustive list of factors which determine content of PF:1. Nature of decision Does nature, function, process of ADM resemble

judicial process (adversarial, formal) or is it a discretionary or polycentric decision?

More it resembles trial = higher PF required2. Nature of statutory scheme What does the statute say about procedures?

No appeal procedure (note finality factor) = higher PF owed

Is it a preliminary/investigatory or determinative stage? (note finality factor = higher PF)

3. Nature of interests at stake More important/greater impact = higher PF owed4. Legitimate Expectations LE can require that certain procedures be

followed, or more extensive procedural rights LE cannot lead to a specific substantive outcome Examples: representations, promises,

undertakings, past practices, or current policies5. Respect for d/maker’s choice of procedures

Does the statute allow d/maker to choose its own procedures? Does ADM have expertise in determining those procedures?

Must allow ADM’s to work out a system that is flexible, adapted to their needs, and fair

Non-exhaustive list. Balance all factors to determine overall content of PF. No single factor is determinative/most important.

Application: LE: UN Convention didn’t create any LE – wasn’t a government representation

about how H&C applications will be decided Participatory Rights: H&C decision is not very judicial & it is an exception to

the general rule – thus, reduced content of PF.o But no appeal procedure & very important rights at stake – thus, higher PF

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o 5th factor: statute allows Minister lots of flexibility in deciding procedure & IO’s don’t conduct interviews in every case

o DOF here is more than “minimal”o However, oral hearings are not always necessary, and in this case wasn’t

required. Written submissions from her & kids were enough. Provision of reasons: Was required but IO’s notes satisfied the requirement.

Reasonable Apprehension of Bias: PF also requires that decisions be made free from RAOB by an impartial d/maker Applies to IO’s, even if they are subordinate to the actual d/maker Test in National Energy Board: Whether an informed person would conclude

that the d/maker would not decide fairly IO’s notes disclose apprehension of bias – stereotypes, link about her mental

health and strain on welfare system of her and her kids Not subjective – doesn’t matter if he intended this or not

Held: RAOB = procedural fairness violated. Appeal allowed.

Ratio: Court reiterates purpose of DOF and sets out a number of criteria relevant to determining its content.

NB: Also discusses SOR & review of discretionary decisions – not examinable.

PROCEDURAL REVIEW IN ADMINISTRATIVE LAW

INTRODUCTION TO PROCEDURAL FAIRNESS

The duty of fairness (“DOF”) is context-specific & most common way to attack an administrative decision.

From Natural Justice to Fairness

Historical dichotomy: judicial/quasi-judicial decisions subject to full protections of natural justice, whereas administrative decisions had no procedural protections

Main principles of natural justice:1. D/maker must “hear the other side” before deciding (notice, hearing rights etc)2. Man cannot be a “judge in his own cause” (rule against bias)

Rigid, formalistic approach – focus on nature of power rather than its impact Became indefensible w/ the rise of the modern regulatory state & the importance

of rights affected by ADMs – needed some PF here HOL in Ridge v. Baldwin & SCC in Nicholson – abandoned all-or-nothing

approach

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NICHOLSON (1979, SCC)

Facts - Nicholson (police constable) discharged after 16 months w/ no reasons or hearing rights

- Police Act Regulations said no constable shall be dismissed w/out a hearing – but exception for employment of less than 18 months

Issue Can Nicholson be dismissed without notice or hearing, i.e. fair procedure?Held No. There was a duty of fairness owed to Nicholson.Reasons - Under old CL rules, this was an admin decision, so no PF rights

- SCC overturns old approach – there is a “halfway house” b/w full natural justice rights (judicial decisions) and no PF whatsoever

- Too difficult to keep distinguishing b/w judicial & admin decisions- Tho he doesn’t get full hearing/appeal rights available to those

employed 18 months or longer, there is still a “halfway house” where he gets some procedural fairness

- Thus, natural justice applies in judicial decisions, and in the administrative realm there is a general duty of fairness

- Content : something less than natural justice. He should have been told why he was being terminated & given opportunity to respond

Ratio Court abandons “all or nothing” approach re: PF. A general “duty of fairness” exists in the administrative realm, while full natural justice exists in judicial decisions.

Post- Nicholson : Distinction between NJ and DOF loses relevance

Benefits of DOF: Promotes sound public administration & accountability of public d/makers Allows individuals to participate in processes which affect them Thus allows people to be treated w/ dignity and respect

Breach of DOF: Decision is quashed and remitted to be made in accordance w/ required PF

Requirements of DOF:1) Right to be heard2) Right to an independent and impartial hearing Same basic tenets as natural justice

CL/Statute: Fairness is a CL concept and can be ousted by statute (subject to Charter) But can only be done through express language or necessary implication – Kane

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Courts presume Parliament intends PF to apply, even if nothing is said – PF is thus attached to parliamentary sovereignty

Often codified (either fully, or partially – e.g. notice requirements)

Judicial Review for PF: Courts will ask:

1) Threshold – does the DOF apply?2) Content – what does DOF require?

SOR is correctness. If incorrect, quashed & remitted for appropriate procedures. If remitted, doesn’t necessarily mean substantive decision will be different, but

means decision must be remade in accordance w/ proper procedures

Threshold for PF: Applies whenever an individual’s rights, privileges or interests are affected –

Cardinal v. Kent Observance of fair procedures is central to our notions of a ‘just’ exercise of

power – Dunsmuir As a general rule, we presume that Parliament intended ADMs to deal fairy w/

people and that the DOF applies. This is now the “default” – Mavi Thus, subject to some limitations/exceptions, DOF applies as a general rule when

rights, privileges or interests are affected (very broad interpretation to these terms) Covers almost any decision made by public authorities that could affect an

individual Arises even if no right to substantive outcome (e.g. prisoner has no right to early

release, but if jail sets a parole system, prisoner is entitled to PF in that process) Can be limited by statute, subject to constitutional limits

Rights, Privileges & Interests: These are broadly construed – low threshold for PF to apply Historically, didn’t apply to things like welfare – now, covered under “privilege” Modern recognition of more non-rights and non-traditional property interests Examples:

o Property rights (Homex, CPR)o Liberty rights (Cardinal)o Being a parent (NB Minister of Health)o Privileges – being a law student (Khan)o State benefits (Webb)o Reputational interests (Irvine)o Religious observance (Lafontaine)o Financial interests (Mavi)

Licences: Categories per McInnis (UK case, but relevant to Canada)1) Forfeiture cases: taking away existing right/status for reasons related to

individual’s fitness – PF applies

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2) Pure application cases: denial of licence/state benefit where individual has no reason to expect a positive decision, and negative decision will not harm their reputation – no PF

3) Expectation cases: application made where there is a LE of a favourable decision – PF applies

Thus whether the right/privilege/interest passess threshold will depend on a) importance of the privilege/interest, b) the three categories above, and c) whether there is a slur on the person’s character (only individual, not group or corporation)

Webb: Woman applied as tenant in subsidized housing, was accepted, but then son made problems and her lease was terminated. Held she was owed PF – thus DOF extends to privileges/state benefits.

o Timing: no PF before she had applied; but once she became a tenant, she was “qualified for” and received the benefit

Content of PF: Eminently variable; as threshold is lowered, becomes v. context-specific Baker sets out 5 factors, but ultimately depends on facts of each case

CANADA V MAVI (2011, SCC)

Facts - Federal Immigrant Sponsorship Program: citizens/PR can sponsor relatives to immigrate to Canada

- Underlying value: imp. of family reunification- If relative arrives & goes on social assistance, sponsor is deemed to

have defaulted & either fed or prov. govt. can recover the cost- IRPA, s. 145: an amount that a sponsor is required to pay by an

undertaking may be recovered by Crown- Thus sponsor sign a contractual undertaking w/ govt – Minister

may choose not to take action if sponsor defaults in situation of abuse “or other appropriate circumstances”

Issue Does this discretion impose on the Minister a duty of fairness?Held Yes, but minimal DOF required in the circumstances.Reasons - Undertakings are valid Ks but also statutory, thus enforcement is

not only governed by private law of Ko Distinguishes Dunsmuir (which was governed purely by K law)

– here, terms of K controlled by statute. Tho there is a contractual aspect to the undertakings, the governing statutory framework means there is a DOF

- Discretion is minimal, but still exists (i.e. cannot simply forgive debt, but may delay enforcement action or enter into agreement re: terms of payment, depending on sponsor’s circumstances)

- Wording of undertakings creates LE that discretion will be exercised in appropriate circumstances

- PF analysis:

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o Statute makes clear serious financial obligation on sponsors (lower PF)

o Straightforward debt collection (lower PF)o Nature of decision is final and specific, no appeal (higher PF)o High financial burden on sponsors (higher PF)

- Thus w/ this minimal discretion there is a minimal DOF. Requires:o Crown notify sponsoro Allow sponsor to explain circs in writingo Consider any relevant circumstanceso Notify sponsor of govt’s decisiono No duty to give reasons

- Outcome/remedy : declaratory relief (Court makes declaration of what is required)

Ratio Important & recent decision outlining DOF. Court emphasizes balance b/w added delay/cost in administering a “fair” process, versus the damage if a govt is acting unfairly or ADM is basing decisions on erroneous, incomplete or ill-considered findings of fact/law.

GENERAL FRAMEWORK OF ANALYSIS FOR PF CASES

1. What is the “factual context” of the case?

Who was ADM? What was being decided, about whom? What was the statutory regime? Focused on statutory chain of authority

2. Threshold questions Does PF apply in this case? If PF does apply, why? What did the court say about

why PF is “triggered” in this context? If PF doesn’t apply, why?

3. Content questions What did PF require here? What “level” of PF was required (high, med., low)? –

use Baker factors to determine this Why was PF set at that level? NB: other sources of procedural rights (governing

statutes, internal policies and guidelines)4. Outcome and remedy questions

Was requisite PF met, or was the duty breached? Does the statutory authorization defence apply? If stat. auth. defence applies, is there a “rights

document” that can “trump” the defence (e.g. Charter)? Assuming PF was not provided, what remedy? Is there

any reason a court might withhold a remedy in JR proceedings, given these are discretionary?

5. Any other “noteworthy points”?

Does the court state anything else that seems noteworthy about PF? Its functions, purposes or underlying values?

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SOURCES OF ADMINISTRATIVE LAW

1. Governing Statutes and Regulations

Critical: Start w/ tribunal’s governing statute! May not be the same statute pursuant to which the

particular proceeding arises Provisions may create unique procedural requirements Statute also characterizes the tribunal – adjudicative?

Regulatory? Licensing? Review govt decisions? Statutes often reflect normative policy choices (e.g. to

provide income for injured workers, protect investors, encourage competition, etc)

What are the purposes of the statutory scheme? What is the theme of the statutory scheme?

2. Tribunal Rules, Policies and Guidelines

External rules: statutes, regulations, procedural codes Internal rules: policies, directives, guidelines,

precedents, procedural orders, notices of hearing, etc Internal rule-making by tribunals is both necessary and

efficient – they are experts in their own processes Externally, tribunals are accountable to a ministry or

department of govt – may be overseen by various means3. Statutory Procedural Codes

Some tribunals have statutory procedural codes which set out procedural requirements for admin. proceedings

Often set out in tribunals’ enabling legislation Note: a tribunal may be established under one statute but

its proceedings may be governed by another E.g. the BC ATA: few procedural requirements here

(empowers tribunals to make their own rules) Procedural codes are “minimum rules” – CL may

operate to require added procedural protections4. CL Principles of PF PF varies widely by context (oral hearing? Disclosure?

LE? All very context-specific). Modern CL approach to DOF: Baker Now, admin. d/making seen on a spectrum between

quasi-judicial and legislative d/making, with PF requirements varying depending on placement

Baker balances legislative intent in admin processes (efficiency, accessibility, cost) with need to ensure that processes protect individual interests

Clear legislative restrictions can oust CL protections5. Charter and Constitutional Law

If Charter/constitutional rights at issue – does tribunal have jurisdiction? (Many now do – look to statute)

LIMITATIONS/EXCEPTIONS TO PROCEDURAL FAIRNESS

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PF is the general rule. Three main categories of exception:1) Where there is not yet a decision (preliminary/investigatory)2) Where the decision is “legislative and general”3) Where the matter is purely private law (e.g. K) rather than public law

NON-FINAL DECISIONS

PF attaches to decisions (not investigations, advisory processes, etc. - Knight) The more final/determinative the decision, the greater the claim for PF (both as a

threshold question, and to determine content) Preliminary decisions will likely require PF where:

1) An important issue is at stake2) Proximity/close nexus b/w preliminary decision and final decision

IRVINE V CANADA (1987, SCC)

Facts - Multi-staged process under the Combines Investigation Act- Stage 1: Investigation by Director

o Examines witnesses, private proceedingso No findings of fact, no penalties –recommendation onlyo Purpose: to see if there’s enough evidence for stage 2

- Stage 2: Commission receives “statement of evidence” from stage 1 and decides whether there will be a hearingo If hearing is held, lots of PF accordedo Result: report and recommendations to Minister

- Stage 3: Spin-off to Minister of Justice (possible after stage 1)o Minister decides if crim prosecution (if so, full NJ applies)

Issue Restricted role of counsel and cross-X rights at stage 1. Breach of PF?Held No. PF is minimal; nothing more than has already been accorded.Reasons - Cannot unduly burden the investigative process

- Just gathering raw material for further consideration; courts reluctant to intervene here

- At stage 1, Director’s role is purely investigatory – preliminary to any action which may adversely affect someone

- Emphasis that tis is to catch unfair trading practices; things move quickly, govt needs to be able to respond quickly

Ratio Courts are reluctant to intervene/mandate PF in the investigative portion of proceedings.

LEGISLATIVE AND GENERAL DECISIONS

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Biggest exception.

Absent a statutory provision to the contrary, PF generally does not apply to the exercise of legislative power

Our only procedural rights re: passage of legislation is that it receives three readings in the Senate & HOC and receives Royal Assent (Authorson v Canada)

Rationale: Parliament = accountable to electorate, not courtso May be exempt from DOF if interests are too numerous/diverse for

everyone to participate (even if decision isn’t legislative)o Separation of powers requires this proceedings in Parliament can’t be

impeached or questioned by courts Application: Purely ministerial decisions on broad grounds of public policy, or

public bodies exercising legislative functions (Martineau v Matsqui)o If ADM has been delegated functions that were traditionally performed by

legislature (Knight) Examples: primary legislation, subordinate legislation, public policy, executive

decisions, ministerial decisions, discretionary decisions, general decisions which broadly affect public. Typically based on public interest, morality/ethics, politics, economics, social justice, etc

Problem: Hard to define “legislative”; leads to all-or-nothing results re: PF

Sub-Categories: Cabinet/Ministerial Decisions:

o Generally, no PF attacheso As a strict rule, would not be subject to the legislative exemption, but easy

to characterize as legislative (e.g. Inuit Tapirisat)o Criticisms of Inuit – could be easy to tailor PF to certain Cabinet decisions

– but generally courts want to stay out of thiso Courts are wary to scrutinize decisions of the executive branch of govto Per IT, to argue for higher PF, look for:

Statute – does it say Cabinet must exercise certain PF procedures? Does the decision relate to/target an individual? Less discretion/objective standard?

Subordinate Legislation: o Generally, no PF attaches (exception: Homex – specifically targeted him)

Policy Decisions: o Generally no PF attacheso Political decisions = accountable to electorate, not courtso E.g. Imperial Oil Quebec’s decision to require oil company to

decontaminate site – this was part of their political role – no PF

Summary of principles on LGD:1. PF does not attach to primary legislation making: Inuit Tapirisat.

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2. PF does not normally attach to other types of legislative and general decisions: Inuit Tapirisat.

3. But if the legislative or general decision is targeted at a particular person, then the decision is legislative in form, but not in substance and PF will likely attach: Homex.

4. Simply because a small, identifiable subset of the population is affected by the decision does not necessarily make it targeted, but if a non-targeted decision overwhelmingly affects one person more than others, PF may attach: CPR.

5. It is unclear how small the group or deliberate the action against that group must be before an otherwise legislative and general decision will lose that characterization and be subject to PF: CPR, LaFontaine.

6. There appears to be decreasing importance, at least with respect to municipal law-making, as to whether something is “legislative” or not in answering the threshold question: CPR. The legislative context nonetheless affects the content question: CPR.

7. It is also unclear whether “legislative” and “general” are synonymous.

CANADA V INUIT TAPIRISAT (1980, SCC)

Facts - CRTC (federal tribunal) regulates whether Bell’s rates = reasonable- IT (intervener) opposes Bell’s application- CRTC allows Bell’s application- IT appeals CRTC’s decision; Cabinet heard from utility and CRTC,

but basically left IT out of the proceedings & didn’t hear from them- IT appeals to Federal Court

Issue Was IT owed PF by the Cabinet?Held No hearing required. This is legislative action in its “purest form”.Reasons Factors which suggest a decision is “legislative and general”:

1. Nature of function and statutory power in issue (rate setting, traditionally always associated with Parliament – delegated to Cabinet, but still legislative)

2. Not an “individualized decision” (affects many communities, doesn’t target any individuals, not lis inter partes)

3. Nature of d/maker (Cabinet)Ratio No PF accorded when decision is “legislative and general.”Criticisms Overstates the difficulty in applying PF to cabinet decisions. Flexible

standard, could be altered.

HOMEX REALTY V WYOMING (1980, SCC)

Facts - Development company & municipality in dispute over whether Homex needs to install certain services in a subdivision that it owns

- With no notice, municipality enacts a bylaw effectively prevents Homex from being able to sell its lots

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Issue Did Homex have right to notice & right to be heard before bylaw passed?Held Yes. But…. Doesn’t grant their remedy.Reasons - Long-held principle that a statutory must give notice & opportunity

to be heard, before it interferes w/ property rights- Court accepts Homex’s argument that this decision seems

legislative, but isn’t b/c it was targeted at them specifically- BUT, no remedy (discretionary) b/c of Homex’s behaviour

(checker-boarding) – clean hands principleRatio Legislative decisions are not exempt from PF if they are targeted at an

individual. However, remedies are discretionary and may be withheld if the claimant doesn’t come with “clean hands”.

CPR V VANCOUVER (2006, SCC)

Facts - CPR owned land for railroad; then decided to develop land for residential and commercial purposes

- City of Van enacted bylaw establishing plan which freezes redevelopment – CPR can only use for uneconomic purposes

Issue Did City owe CPR PF in the bylaw?Held Yes, but City’s actions didn’t breach the duty.Reasons - City plan hugely affects CPR, so City owed DOF

- However, City held public hearing process- Despite this seemingly targeted at CPR,

Ratio City will owe corporation PF if the decision affects corporation. However, content may not be that high.

PURELY COMMERCIAL RELATIONSHIPS

Employment Context: If area is governed by private law, then private law remedies govern If an individual’s employment is governed by contract, then private K law

remedies will apply to their dismissal, regardless of any public nature of job (erases distinction between public office holders and other employees: Dunsmuir)

General Principles: Evolving and relevant exception to the DOF Ministers often have power to conclude contract by statute or by CL power So where govt exercises its powers to contract, do ordinary K laws apply, or do

administrative rules apply, or a combination? Mavi: the contractual obligations were so integrated in statutory framework that

PF fairness applied (not governed exclusively by K). Contrast to CAF.

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CANADIAN ARAB FEDERATION (2013, FC)

Facts - Minister establishes LINC langague program for newcomers- Contracts with CAF to carry out LINC- CAF gets funding for two consecutive years, but not a 3rd –

Minister says CAF has made statements of hatred/anti-SemitismIssue Did Minister owe CAF a DOF?Held No.Reasons - Strictly commercial relationship

- Nothing in the statute or K conferred the PF rights CAF claimed- Efficiency concerns: if PF owed here, then every failed applicant

would be entitled to notice- FCA, instead of deciding on contractual aspects, said CAF didn’t

have sufficient reputational interest to attract PF –strange!Ratio If government power is primarily contractual (i.e. governed by private

law), then private law remedies apply, not administrative law. Per Mavi and CAF, must examine how closely integrated the contractual aspects are w/in the statutory framework.

EMERGENCY DOCTRINE

Emergency situation: Procedural requirements may be suspended Cardinal v. Kent: DOF applied to seg in dangerous/hostage situations, but no

right to prior notice or opportunity to be heard before the decision Caution: d/makers can’t “overzealously” find an emergency situation to bypass

PF requirements

LEGITIMATE EXPECTATIONS DOCTRINE

What is LED?

Legitimate Expectations Doctrine (LED) is a recent development Arises if claimant has LE that a) a certain procedure will be followed or b) a

certain result will be reached (Baker) Arises if public authority a) makes representations about procedure to be

followed, or b) has consistently followed certain procedures in the past (Agraira) Now part of the 5 Baker factors determining the content of PF

What is required to establish LED?

Govt official makes “clear, unambiguous and unqualified” representations (Mavi) Representations are procedural only & can’t conflict w/ statutory duty (Mavi)

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Proof of reliance & proof of prior knowledge not required (Mavi)

What are limitations of LED?

1. Can give rise to procedures only, not substantive rights If claimant has LE about a certain outcome, they do not have substantive

rights to that outcome, but content of PF may be higher2. Does not apply to legislative decisions

Always ask 1) What kind of LE is being claimed and 2) What is the source of that LE?

REFERENCE RE: CAP (1991, SCC)

Facts - Govt changes legislation governing fed-prov transfer agreements- Created a deficit reduction plan & amended CAP w/out province’s

consent & without giving notice- Under new plan, “stronger” provinces got less $$ (e.g. BC)

Issue Did fed govt violate BC’s legitimate expectations by amending CAP w/out BC’s consent? Basically, do the terms of the agreement give rise to LE that Canada would not introduce a bill to change this w/out BC’s consent?

Held No. LED doesn’t apply.Reasons - Rejected BC’s argument that this was an executive decision

- The process b/w the introduction and passage of bills is entirely legislative, so these PF arguments do not apply

- Restraint of this kind would interfere w/ legislative sovereignty- LED gives rise to procedural rights, not substantive rights- Further, a govt is not bound by its predecessor (here, conservatives

had taken power & decided to change the CAP)Ratio LED does not apply to purely legislative decisions. Further, LED

cannot create substantive rights – procedural only.

CUPE V. MOL (2003, SCC)

Facts - Arbitration Act sets out process for hospital disputes- Process to select arbitrators (panel of 3): hospital management

picks 1, union picks 1, and then Minister picks 1- Includes process where there is a list of mutually agreeable

arbitrators from which Minister usually chooses the 3rd arbitrator- 1985: New legislation changes process. Union opposed. Reverts

back to old process; union assumes it will go back to selecting arbitrator from a mutually agreeable list, but instead Minister

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selects a number of retired judges not on the list.Issue Were Union’s LE (that Minister would only appoint arbitrators from the

mutually agreed upon list) violated?Held No.Reasons - Minister’s representations were not clear & unambiguous

- Based on past practice (Minister hadn’t always selected from list)- Also based on Minister’s statements (used deliberately ambiguous

language when talking about reverting to old regime)Ratio For LED to apply, representations must be clear and unambiguous.

MAVI (2011)

Facts - People sponsored immigrants who subsequently went on social assistance; govt tried to collect debts from the sponsors

Issue Did sponsors have LE that govt would not take enforcement action w/out considering its discretion not to take enforcement action in cases of abuse?

Held Yes.Reasons - Undertakings document said govt will consider ways other than

enforcement action to move forward; creates LE to this effect- However, result is minimal; extended procedural rights (no

substantive outcome), i.e. govt must provide notice & sponsors may make a case for deferral of debt, but not debt forgiveness

- Analogizes to K law (govt representations will be sufficiently precise if, had they been made in a private K law scenario, they would have been capable of enforcement)

Ratio Classic statement on LE (para 68): “Where a govt official makes representations w/in the scope of his or her authority about an administrative process that the govt will follow, and the representations said to give rise to the LE are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision-maker’s statutory duty.”

AGRAIRA V. CANADA (2013, SCC)

Facts - A seeking PR status, but held inadmissible b/c of membership in LNSF (terrorist org., according to CIC)

- A applied for ministerial relief under IRPA and was denied- Seeks JR; argues his LE regarding decision were thwarted

Issue Did A have LE regarding a) that the framework set out in the guidelines would be followed, and b) that Minister would consider certain factors (e.g. humanitarian and compassionate factors)?

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Held Yes, he had LE, but the obligations were fulfilled.Reasons - Guidelines create clear, unambiguous procedural framework, so A

had LE that this framework would be followed- A did not show that this process wasn’t followed (burden on A) so

his LE was fulfilled- Further, Minister interpreted “national interest” to include all

factors in the Guidelines, including H&C factors – so A’s LE was also fulfilled in this regard

Ratio If Guidelines or Minister’s representations set out clear, unambiguous process to be followed, LE arise. However, if claimant can’t show that the process was not followed, then LE are fulfilled.

SPECIFIC CONTENT ISSUES

How do you determine the content of PF?

Remember the two central branches:1) Rule against bias2) Hear the other side

Go thru 5 Baker factors, balance each, & make overall determination Look to specific additional content issues explored in this section

o Pre hearing issues: notice, disclosure, delayo Hearing: oral hearings, right to counsel, right to call evidence/cross-Xo Post hearing: duty to give hearings

Consider any possible bias issues Conclude & determine whether any PF violations exist

NOTICE

Basic aspect of DOF (duty of fairness) Person needs adequate/reasonable notice in order to exercise their right to be

heard and right to respond Basic requirement is the idea of reasonableness Rule: “Notice must be adequate in all the circumstances in order to afford those

concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition.” – Brown & Evans

Notice is an on-going duty (parties must be kept apprised of new, relevant issues) Sub-Issues:

o Written notice: most common/safest way to notifyo Service: Personal service when stakes are high, otherwise mail, fax or

electronic delivery

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Newspaper ads can be used for “mass notice” (e.g. CPR) Base it on common sense. Method must be reasonably likely to be

effective.o Timing: Enough time to decide whether/how to participate

Depends on nature of interests (how serious) and issues (how complex)

Remedy may be adjourning proceedings to give party enough timeo Content/Sufficiency: Specific enough so they know what is at stake

CPR: If there is notice but suffers some defect (e.g. content, delivery) then court unlikely to grant JR unless it has created substantial prejudice

DISCLOSURE

Stinchcombe discloser (“all relevant info”) does NOT apply, per May v Ferndale DOF requires d/maker to disclose info they rely on so the individual knows the

case they need to meet – but not to the level of Stinchcombe. So the question isn’t whether disclosure is required, but how much.

Discovery: i.e. pre-hearing info in hands of 3Ps – typically not afforded. Higher threshold for disclosure/discovery in adversarial proceedings or if serious

individual interests are at stake If disclosure is provided, may be subject to privilege claims or national

security/other interests (Charkaoui) Many tribunals which hold formal hearings have statutory provisions for

disclosure requirements Very context-specific

ORAL HEARINGS

Oral hearings: Some form of face-to-face engagement (doesn’t mean a trial) Often demanded but rarely required. If required, oral hearing will be public unless

good reason not to, or statute says will be private BC ATA, ss. 41-42: Oral hearings should be open to public

o But may not be if personal security interests, privacy interests, national security, protection of police informants, etc

o Some “half-way houses” between full publicity and in camera proceedings (e.g. publication bans, certain testimony taken in private)

In summary: No presumption in PF in favour of oral processes (Nicholson, Baker). However, oral hearing may be necessary where serious interests are at stake or credibility is at issue (Khan, Conrad Black). Person claiming refugee status is entitled to an oral hearing – must be able to tell their story to see if fear of persecution is founded (Singh)

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KHAN V UNIVERSITY OF OTTAWA (1997, ONCA)

Facts - Law student failed evidence which, combined with other low grades, meant she failed the year

- Khan claimed she submitted a 4th booklet- Only proof of its existence is her word- Committee concluded she failed to prove its existence

Issue Did the Committee owe Khan an oral hearing as part of PF?Held Yes.Reasons - Whole issue turned on the existence of a 4th booklet – only proof

was her word – credibility clearly at issue – entitled to oral hearing- Characterization of interests at stake = serious (affects her career)- Relies on Singh re: oral hearings when credibility at stake

Dissent - Brutal dissent. Khan is “making a mountain out of a molehill” and is not entitled to oral hearing

- Lower interpretation of interests at stake – simply means one more semester (doesn’t prevent her from becoming a lawyer)

- Her own poor academic performance also accounts for failed year- General tenor: keep this crap out of the courts. Leave it to uni.

Ratio PF requires oral hearing if decision turns on credibility.

BLACK V ADVISORY COUNCIL FOR ORDER OF CANADA (2012, FC)

Facts - Black appointed to Order of Canada (Crown’s prerogative power)- Runs into trouble: renounces Cdn citizenship to become a British

lord, then charged w/ 17 criminal offences in the US- Informed that his appointment may be terminated; invited to resign

voluntarily or make written submissions- Refused to resign voluntarily, requested oral hearing- Secretary to the GG refuses oral hearing & again invites Black to

make written representations & submit any supporting material- Black seeks JR under s. 18.1 of the FCA; parties agree that a

recommendation re: his termination won’t be made to the GG until his JR application is determined

Issue 1. Is his JR application premature?2. Is the Council’s decision to deny an oral hearing immune from JR?3. Did the Council breach PF in denying an oral hearing?

Held 1. Is JR application premature? No. Typically, interlocutory decisions of admin bodies are NOT

reviewable (prevents fragmentation of proceedings, etc.) However, this is an exceptional circumstance – if denied he

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will have no other remedy (purely prerogative decisions usually not subject to JR & if his appointment was terminated, couldn’t then be reviewed)

2. Is Council’s decision immune from JR? No. Prerogative powers typically not subject to JR; however, not

immune where rights or LE of an individual are affected To determine whether exercise of prerogative power is

reviewable, courts look to subject matter, not source – is it justiciable? Can’t be purely political – needs legal aspect.

Black succeeds b/c he has LE of a fair process (Policy stipulates that termination will be assessed fairly, based on evidence, after Council has considered all relevant facts)

3. Did Council breach PF in denying oral hearing? No. Court goes through each Baker factor & determines he has

been provided w/ reasonable opportunity to make his case Importance of decision: nobody has a right to an honour! He had LE to a fair process, but not necessarily to oral hrng Courts defer to d/maker’s choice of process, i.e. no oral hrg

Ratio Illustrates when exercises of prerogative power are reviewable and when Courts will review interlocutory decisions of administrative bodies. Also is an example of PF not requiring an oral hearing.

KANE V UBC (1980, SCC)

Facts - Tenured UBC prof alleged to have misused grant money- Universities Act – president can suspend any teacher & report

actions to Board. Teacher can then appeal to Board- President suspends Kane, who then appeals to the Board- Kane has oral hearing at the meeting & then leaves so Board can

deliberate. President (member of Board) stays & answers further questions, though he doesn’t participate or vote

Issue Did Board breach PF by having the President there for deliberations & asking him questions in Kane’s absence?

Held Yes.Reasons - Universities needn’t follow court procedures & have high degree of

autonomy- However, must still follow natural justice – one of which is that a

court cannot hear evidence of one side behind the back of the other- Kane couldn’t make full answer if some of the case was heard

behind his back – needed to be able to respond to any further info- High standard b/c high interests at stake (his profession)

Ratio ADMs cannot hold private interviews or hear the evidence of one side behind the other’s back. This is a breach of PF and natural justice.

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RIGHT TO COUNSEL

There is no general right to counsel in administrative proceedings – it depends! But, PF will sometimes require a right to counsel when a lawyer is considered

necessary in order to give the person an adequate opportunity to be heard Right to counsel may be subject to limits – concerns over cost, delay, etc Would be too expensive to broadly recognize a right to counsel in all cases; but

PFJs may require right to counsel if deprivation of life/liberty/security is at stake Depends on three factors, per New Brunswick v JG:

1) The seriousness of the proceedings Required to testify? Is privacy assured, or public? Wrongdoing alleged?

2) The complexity of the proceedings Length, number of witnesses, complicated evidence/points of law?

3) The capacity of the affected party Education, familiarity w/ legal system, communication, emotional abilities

NEW BRUNSWICK V JG (1993, SCC)

Facts - Province has custody of JG’s kids, wants to extend by 6 months- She was poor & on social assistance- She is denied legal aid to oppose Minister’s application (custody

applications not covered by legal aid)- She argues this decision violates s. 7

Issue Does s. 7 require state-funded counsel in these circumstances?Held Yes.Reasons - S. 7 security of the person engaged by removal of children

(psychological integrity)- State can take custody of kids, but must be done through fair

procedure. Whether this requires state-funded counsel depends on:i) Seriousness of interests at stake (child’s best interests)ii) Complexity of proceedings (long, complicated case)iii) Capacities of individual (level of education, familiarity w/

legal system, level of literacy, etc)- Additional costs far outweighed by harm if she was not represented- Parent is valuable source of relevant info; effective participation

(with right to counsel) necessary for best interest of childRatio Sets out factors when PF will require state-funded right to counsel.

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RIGHT TO CALL EVIDENCE AND CROSS-EXAMINE

ADMs can take official notice (like judicial notice) Generally, rules of evidence do not apply to administrative hearings (depends on

spectrum – may apply if court-like processes); see ATA ss. 40(1) and (3) Right to call & cross-X witnesses is usually part of right to an oral hearing; denial

of this may breach PF May not be required if early in the investigatory process (Irvine)

TIMELINESS AND DELAY

Delay can warrant stay of proceedings if significant prejudice is caused (no specific timeline)

Major issue in admin law: many tribunal member/staff are part-time, unpaid Blencoe: Undue delay can breach PF and possibly even infringe s. 7. Factors

include causes of delay, impact of delay, and time taken compared to inherent time requirements of the matter. Very context-specific.

DUTY TO GIVE REASONS

No historical duty to give reasons; changed in Baker duty may arise if a) decision has important significance for individual or b) if there’s a statutory right of appeal or c) “other circumstances” (broad discretion, context-specific)

Very flexible form (e.g. Baker, informal IO’s notes were sufficient) Rationale is that reasons make better decision-making & public confidence PF is about the existence of reasons, not the adequacy of those reasons. Thus if

there are reasons, no breach of PF. Quality of reasons goes to substantive review, not PF. Thus, threshold to satisfy reasons requirement is very low (Nfld Nurses)

NB: Remember Alta v Alta Teachers, issues of reviewing reasons which “could have been given”

MAVI V CANADA (2011, SCC)

Facts - IRPA said money may be recovered by Crown in certain circs from sponsors

Issue Duty to give reasons?Held No.Reasons - Content of PF included: sponsors notified of claim, given

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opportunity to explain, have circumstances considered, and notify the sponsor of gov’ts decision

- PF not extended to include provision of reasons- They were asking for an extraordinary exemption which lowers

PF required- No duty to give reasons because:

1) This was only about debt collection (lower interests at stake, not personal rights/interests)

2) No appeal provision3) Reasons are quite obvious

Ratio Illustrates duty to give reasons depending on rights at stake & existence of appeal provision. If claimant is asking for an exception, lower PF owed.

CONGREGATION V LAFONTAINE (2004, SCC)

Facts - Congregation of JW’s seeking land to start a congregation- Per bylaw, need rezoning for “regional community use zone”- Make 3 appl’ns to change zoning- 1st: Municipality said no, would increase taxes for residents- 2nd & 3rd applications: Municipality denied, didn’t give reasons

Issue Was municipality’s denial unlawful because it breached PF?Held Yes. 1st was okay (gave reasons); 2nd and 3rd were not.Reasons - Step 1: Threshold . Is PF owed? Yes. Municipality bound by DOF

when making decisions which affect individual rights, privileges & interests

- Step 2: Content of PF Court applied Baker factors (see below)

i) High deference usually owed to municipalities, but municipality doesn’t have unfettered discretion (Roncarelli) – brings ROL into PF analysis

ii) Statutory scheme: final decision, no statutory appeal – elevates content of PF

iii) Importance of decision: freedom of interest at stake – high interest

iv) LE: 1st application had reasons, so they had LE that 2nd and 3rd would get reasons

v) Less deference owed – no indication that municipality relied on its expertise in evaluating these applications

There was a duty to give reasons for refusing- Step 3: Remedy

Remits to municipality Court refuses to substitute its own decision; Congregation

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isn’t entitled to a certain outcome, is simply entitled to a fair procedure

Ratio Illustrates PF owed by a municipality. Incorporates ROL into PF analysis. Statutory appeal can be argued two ways (if appeal, argue for provision of reasons. If no appeal, argue decision is final and thus content of PF is elevated). Illustrates circumstance where duty to give reasons is owed.

NEWFOUNDLAND NURSES’ UNION (2011. SCC)

Facts - Arbitrator renders a decision saying time as a casual employee shouldn’t go towards calculating length of vacation benefits

- Provides reasons, but they are very scantIssue Can the union challenge the adequacy of the reasons on PF grounds?Held No.Reasons - Strategic decision by the Union (correctness standard under PF

easier to argue than reasonableness under substantive review)- Court rejects this argument. Duty to give reasons is very minimal

Ratio The only requirement in PF regarding reasons is whether they were given. Their adequacy is a question of substantive review, not PF.

CATALYST PAPER V NORTH COWICHAN (2012, SCC)

Facts - Interesting contrast to Lafontaine- Paper company challenged BC municipality re: industry tax rights- Catalyst argues that tax rates are unreasonable, much higher than

residential tax ratesIssue Does the municipality owe Catalyst reasons for its rate setting bylaws?Held No.Reasons - Unlike Lafontaine, Court characterizes this as legislative or general

decision-making (not targeted)- Municipalities may be req’d to issue reasons in quasi-judicial

adjudication- But this decision was the product of heated debate –can’t expect

councillors to then get together and produce coherent reasons- Practical considerations!- Reasons are represented in things like debate, statements by

councillors, policy documents, etc. No formal reasons required.Ratio Reasons are not required when municipality is passing municipal

bylaws based on discretionary policy choices like tax rate setting.

CONSTITUTIONAL/QUASI-CONSTITUTIONAL GUARANTEES

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When will the Charter create enhanced procedural protection?

We know that, at CL, duty of fairness requires ADMs to give a fair hearing: i.e. hear the other side and decide the matter impartially

May include other rights (oral hearing, notice, disclosure, counsel, reasons, etc) But a duty of fairness may also be owed under the Charter – narrower application,

but leads to considerable duties S. 7 is the only rights-conferring provision that refers to PFJs; this is where

procedural fairness will come up. S. 7 is the primary source of procedural safeguards within the Charter.

Charter, s. 7 : i) Is “life, liberty and security of the person” engaged?ii) Is the violation caused by the state? Is it in accordance w/ PFJs?iii) If no, can it be saved under s. 1?

CL: can dictate less stringent procedural requirements – but can’t do this to constitutional rights (e.g. where s. 7 applies) – legislation must conform to procedural fairness when s. 7 applies

How to establish s. 7 is engaged?o Right to life: one’s right to live and be free of state conduct that increases

risk of dyingo Right to liberty : freedom from physical restraint & freedom to make

fundamental life choiceso Right to security : right to be free from physical and psychological harm

If Charter is engaged, PF comes into play by means of PFJ. If no Charter engaged, may still be owed PF via CL or CBOR

Relevant Charter provisions: ss. 1, 7, 52

Canadian Bill of Rights: Quasi-constitutional document; non-Charter source of procedural safeguards Federal statute, only applicable to federal law Important rights protection; cannot be overridden unless Parliament expressly

declares so in its legislation (Authorson) Limit: only protects rights which existed in 1960, when it was enacted Relevant CBOR provisions:

o S. 1: Recognizes/declares that there exist (without discrimination) the following rights and fundamental freedoms – (A) right to life, liberty, security of the person and enjoyment of property, and right not to be deprived thereof except by due process of the law;

o S. 2: Every law in Canada shall (unless expressly declared by Parliament) not abrogate or infringe any rights or freedoms, specifically (E) deprive a person of a right to a fair hearing in accordance w/ PFJS for the determination of his rights and obligations.

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Charter v. CBOR: S. 7 doesn’t include positive rights to housing, economic rights, etc CBOR has potentially broader reach than s. 7:

o Covers property (unlike Charter)o Charter must apply, per s. 32 (i.e. govt actor) – extra hurdleo Charter govt can justify limitation if in accordance with PFJs – not so

with CBOR (has never actually happened for s. 7, but still…)o CBOR – it isn’t necessary to show life, liberty or SOP is at stake for

procedural protection to apply

PF v. PFJ: PFJ demands, at a minimum, compliance with PF So PF is part of the PFJs, per Suresh PF is subsumed w/in the PFJs, but doesn’t mean the duty of fairness is

constitutionalized; s. 7 only applies in specific contexts (high threshold) The common law of PF informs both the content and application of the PFJs

AUTHORSON V CANADA (2003, SCC)

Facts - Class action by disabled war vets- Dept. of Vet. Affairs handled benefits/pensions on their behalf, but

didn’t invest the funds, no interest on them til 1990- Once DVA realized its mistake, it passed a provision attempting to

bar these claims (estimated at $1 billion)- Veterans sue, claim it violates CBOR ss. 1(A) and 2(E):

1(A) provides right not to be deprived of enjoyment of property except by due process of law

2(E) provides right to a fair hearing in accordance with PFJs for the “determination of one’s rights and obligations”

- 3 arguments re: s. 1 violation (that the DVA took away his right to interest on his funds without due process of law):

No procedural rights were accorded prior to passage of the statutory bar (basically, trying to attach procedural rights to the passage of legislation)

No procedural rights were accorded to Authorson before statutory bar was applied to his specific case

“Due process” can be applied substantively and it protects him from legislation that expropriates his property w/out fair compensation – statutory bar was a “determination of his rights”, thus he should’ve had a fair hearing

- Arguments re: s. 2 violation: Statutory bar was basically a “determination of his rights”, so he should have had a fair hearing in accordance w/ PFJs before Parliament expropriated his interest in the funds

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- Crown acknowledged that it owed a fiduciary duty and that interest hadn’t properly been credited, BUT claimed the legislation bar on claims was valid

Issue What was guaranteed by CBOR when vet’s property rights were extinguished?

Held SCC rejected all arguments & upheld statutory bar. CBOR did not prevent Parliament from legislating as it had in this case.

Reasons - Parliament reviewed CBOR: Federal statute, only applies to federal law Despite “quasi-constitutional” status, hasn’t been used or

litigated over very much If legislation conflicts, it is inoperative unless Parliament

expressly declares that it operates notwithstanding CBOR CBOR only applies to rights that existed in 1960 CBOR provides two protection not included in the Charter:

property (1A) and fair hearing (2E)- Parliament responded to 3 s. 1(A) args as follows (rejected all):

1. No pre-legislative procedural rights (entitled to 3 readings and Royal Assent – that’s it!). Due process can’t interfere w/ right of the legislative branch to determine its procedure.

2. Due process might require notice/opportunity to context if govt is adjudicating a person’s individual rights. However, this was a non-discretionary application of this provision to “incontestable facts” (PF would only arise if it was discretionary, specific to one person). Due process isn’t required where govt completely eliminates benefits (rather than adjudicating one individual’s benefits) A taxpayer could not claim procedural protections against a change in income tax rates that affected him S. 1(A) guarantees due process in an individualized, adjudicative setting; doesn’t apply here

3. CBOR applies to rights that existed in 1960; back then, legal system recognized the right of legislature to expropriate w/out compensation, as long as they did so clearly, which they did here Substantive due process rights based on broad conception of ROL Courts have been wary of recognizing these protections (look to US – American experience using substantive due process to enforce property and contract rights led to a constitutional crisis, based on extreme judicial policy-making – Court was able to enforce policies that had basically been rejected by the legislators, inappropriate) So maybe one day procedural protections will lead to substantive rights, but for now the Court has been reluctant

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to go there- Section 2(E) arguments:

A argues he was entitled to a fair hearing before Parliament expropriated his interest on pension moneys But 2(E) only applies to proceedings before a tribunal/ADM that determine individual rights and obligations Does not impose on Parliament duty to provide a hearing before it passes legislation – 2(E) only protect individual circumstances in a proceeding before a court, tribunal or similar body

- Seems like an unjust result. Crown had even conceded breach of fiduciary duty. But Parliament’s “expropriative intent” was clear and unambiguous, so too bad for Authroson.

- Confirms unassailability of primary legislation hereRatio Neither 1(A) nor 2(E) apply to Parliament as it is legislating. If a

statutory bar exists, with no discretion (i.e. blanket application), due process doesn’t attach (i.e. ‘legislative’ versus ‘individualized’ decision). Court is uncomfortable relying on s. 1(A) in a substantive sense.

There is no right to be heard before passage of legislation when a statutory bar operates automatically and without individual discretion. Due process protections cannot interfere with the right of the legislative branch to determine its own procedure.

ORAL HEARINGS & THE SCOPE OF S. 7

Singh: 1985 – established that the PFJs include procedural fairness Refugee claimants had no oral hearings unless written subs set out “reasonable

grounds” of success S. 7: “Everyone” includes ever human physical present in Canada SOP = freedom from threat of punishment/suffering, not just actual punishment Held: S. 7 applied to Singh – may not have had constitutional right to remain in

Canada, but had right for claim to be determined according to PFJs Key Points: Oral hearings almost always required when s. 7 at stake (v. serious

interests) & always when credibility is at stakeo Example of Charter can overcome clear legislation (where CL cannot)o Charter got over the threshold for PF to apply; but once over threshold, CL

still determines content of the PF

UNDUE DELAY

Blencoe: Undue delay in resolution of human rights complaint may infringe s. 7 SOP

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Possible stigmatization, psychological impairment But threshold is v. high – not met in this case Facts: Sexual harassment complaints, intense media scrutiny, end of his political

career, investigation took 30 months. Despite huge repercussions, and even if delay was the cause, Court held that state had not interfered with his ability to “make essential life choices” and thus hadn’t infringed his s. 7 security interest

RIGHT TO STATE-FUNDED LEGAL COUNSEL

SCC has held neither PF nor ROL in admin setting require state-funded counsel. However, if decision impairs s. 7 interest, state must fund counsel to satisfy PFJs

NEW BRUNSWICK V. JG (1993, SCC)

Facts - Child protection proceedings; state applies to take kids for another 6 months, mom can’t afford lawyer/doesn’t get legal aid

- Sets out doctrinal test for determining when right to counsel arisesIssue Does s. 7 require state-funded counsel in these circumstances?Held Yes.Reasons - When will a court speak to an issue, even if it is moot? (In this

case, the custody application had already been heard) Sufficient adversarial context, question of national

importance, is it “elusive of review”? Has the issue become academic (not limited to the concrete

dispute which started things) Three considerations: 1) presence of adversarial context, 2)

concern for judicial economy, 3) need for Court to not overstep its role

Here, the “live controversy” is over, but court used its discretion to hear it anyway

- Threshold for appl’n of s. 7 Court focused on SOP (didn’t consider liberty interest) SOP includes physical and psychological integrity State action must have “serious and profound effect on

psychological integrity” to trigger SOP Objective assessment from a reasonable person Greater than ordinary stress/anxiety, but not to the level of

nervous shock or psychiatric illness Removing child obviously affects psych. integrity S. 7 is not limited to criminal or penal matters

- Why PFJs required counsel here: Appellant conceded that state might sometimes have to

remove children – her concern was re: fairness of procedure

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PFJs will not ALWAYS require counsel in such cases Paramount consideration is child’s best interests PFJs give right to fair hearing – parents must be able to

present case effectively (b/c if they can’t, court is deprived of relevant evidence & can’t make best decision)

May require counsel depending on a) seriousness of interests, b) complexity of proceedings, c) capacity of parent to participate w/out counsel

Here, very important interests were at stake, proceedings were quite complex and adversarial in nature – she needed counsel for fair determination of child’s best interests (couldn’t participate effectively, otherwise)

- NB: Fair hearing will NOT always require counsel – always depends on three factors above (some hearings short and easy no expets, no complex evidentiary questions, etc; some interests less serious – i.e. permanent versus temporary custody orders; parents’ capabilities vary widely depending on education, communication skills, familiarity w/ legal system, etc)

- Role of s. 1 versus s. 7: Violations of s. 7 saved under s. 1 only in exceptional circs

- Expensive, yes – but govt is not obliged to provide legal aid to every parent who cannot afford a laywer. Obligation only arises when counsel is essential to ensure a fair hearing, where parent’s s. 7 interests are at stake.

- Remedy: Expensive – limited to child apprehension cases.Ratio When govt action triggers s. 7 interests, it must ensure a fair hearing;

this may include a constitutional obligation to provide state-funded counsel, depending on the particular circumstances (seriousness of interests, complexity of proceedings, and capacities of parent).

COMMON-LAW FRAMEWORK UNDER S. 7

Suresh: Baker factors were used to determine procedural rights required by PFJs (though Court emphasized that the common law was not constitutionalized).

Held that S had a right to disclosure of materials on which Minister based her decision, and a right to reply to the claims

NB: disclosure may lead to privilege concerns (if a legal opinion) Duty to give reasons: Baker established this is required wherever important

interests are at stake – reasons were required in Suresh (lots at stake)o NB: Remember, adequacy of reasons is assessed under substantive

review; if any reasons are provided at all, PF requirement has been met.

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SURESH V CANADA (2002, SCC)

Facts - S: Sri Lankan born Tamil, came to Canada in 1990, entered as a Convention refugee (means can’t be returned to a country where his life or freedom would be threatened)

- 1991 applied for landed immigrant status – but before this was processed, Minister C&I began deportation proceedings (T. Tigers)

- Usually refugee status means person cannot be returned to country where they face persecution, but exemption in IRPA allows Minister to exercise discretion where person constitutes a danger to national security

Process Followed:1) Security certificate: Minister issues certificate under s. 40.1

alleging S is member of inadmissible class on security grounds2) Reasonableness hearing: FCTD holds “reasonableness hearing”,

50 day hearing, says certificate was reasonable3) Deportation hearing: adjudicator held S should be deported (based

on his involvement w/ T. Tigers, even tho no finding that he was directly engaged in terrorism)

4) Opinion: Same day, Minister of CI told S she was considering issuing an opinion declaring S to be a danger to national security

This “danger assessment” would allow his deportation even if life/freedom threatened by return to Sri Lanka

S given opportunity to respond in writing; does so; includes materials re: threats/torture faced in Sri Lanka

IO reviews material, prepares memo for Minister, recommends that S be declared danger to national security

IO reached this view even tho he acknowledged S hadn’t committed any acts of violence in Canada or Sri Lanka and that he faced a risk on returning to Sri Lanka

S does not get copy of IO’s memorandum, nor any opportunity to respond.

Based on IO’s memo, Minister issues opinion that S is danger to security & should be deported. No reasons required & none given.

- S seeks JR on substantive, constitutional & PF grounds- Substantive: unreasonable decision by Minister. Constitutional:

violation of ss. 7 and 2. PF: should have had an oral hearing, needed disclosure, especially IO’s opinion

Issue Are S’s s. 7 rights engaged so as to cross the PF threshold? If so, what nature of PF is owed?

Held Yes, rights engaged. S entitled to new deportation hearing. Deportation to face torture under Immigration Act is generally unconstitutional & procedures did not meet required constitutional standards.

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Reasons Govt must be able to respond to terrorism, but can’t undermine fundamental values of

liberty, ROL, and PFJs Immigration Act is generally constitutional, but Minister must exercise her discretion

to deport properly He had a prima facie case showing risk of torture were he returned to Sri Lanka –

hearing did not provide procedural safeguards to protect his rights Content of PFJ

As per Singh, at minimum the PFJ require compliance with CL requirement. “We look to the common factors not as an end in themselves, but to inform the s.

7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to a case.”

In determining the content of the duty owed, you must look to the context of the statute involved and the rights affected – consider 5 Baker factors (here, as in Baker, the statute was silent regarding the process owed).

Is s.7 triggered? YES, if the claimant can show prima facie that they face a “real possibility” that

they will be subject to torture If deported. Deportation to face torture = deprivation of life, liberty or security of the person, thus such a deprivation must be in accordance with POFJ both in substantive and in a procedural sense

1) procedurally : Baker factors used to assess content of PFJ1. Nature of Decision - neutral : somewhat judicial decision b/c weighing of

risks and somewhat individualized; serious nature (>PF) BUT also discretionary and policy element (<PF)

2. Nature of statutory scheme – more PF: Act contained extensive procedures to ensure certificates issued fairly but none at all under s.53(1)(b); no provision for hearing, reasons, right to appeal – basically, no procedures at all. No appeal procedure is particularly significant.

3. Importance of rights at stake – more PF: possibility of deportation leading to torture is very serious personal, financial and emotional consequences

4. Legitimate expectations – more PF: Canada has signed Convention Against Torture (and incorporated into domestic law); prohibits deportation of persons to states where there are substantial grounds for believing they will face torture - gives rise to expectation.

5. Deference – less PF: some need to defer to Minister’s choice of procedures. The statute gave the Minister broad discretion to choose whatever procedures she wished for the s. 53(1)(b) stage, as well as in the evaluation of future risk and security concerns. Very difficult decisions – discretion suggests deference to her choice of procedures.

Weighing all the factors, the court concluded that s. 7 does not require that a full oral hearing or complete judicial process be conducted in this case, but Suresh should get more than the minimal protections he received. Specifically, it concludes that Suresh is entitled to: Notice Disclosure of any materials that the Minister based her decision on

(subject to privilege and/or national security concerns) An opportunity to respond/make submissions (Minister must consider

his submissions) Written reasons for the decision that articulate and rationally sustain a

finding why there are no substantial grounds to believe the individual will be subject to torture (decisions must also emanate from the person making the decision – i.e. Minister – not the form of advice or

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suggestion – i.e. memorandum of the IO) These procedural protections won’t arise in every case – only where refugee

has established threshold showing a risk of torture on deportation. If threshold met, then Minister must meet the minimum duty of fairness required to fulfill PFJs under s. 7 (i.e. disclosure of all relevant info, opportunity for refugee to address evidence in writing, and written reasons)

Note on reasons: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador raises doubt that inadequate reasons will give rise to violation of PF rejects proposition that adequacy of reasons is stand-alone basis for quashing decision (non-constitutional context) net result is that if reasons are provided at all it seems the duty has been complied with, and that the adequacy of those reasons will be assessed together with the outcome in substantive review, perhaps on R rather than C standard

S. 7 violation not saved under s. 1NB: See chart (class hand-out) for above info.

Ratio Illustrates the procedural protections to which an individual is entitled under s. 7. PFJs require, at minimum, compliance with common law duty of fairness. Court uses Baker factors to determine whether PF was met: look to CL to inform the s. 7 analysis (CL is not constitutionalized, it is used to inform constitutional principles).

EX PARTE/IN CAMERA HEARINGS

Post-9/11: new legislation for added power to investigate/prosecute terrorism IRPA already allowed detention of foreign nationals/PRs suspected of terrorism –

no criminal charges, no presumption of innocence, no due process guarantees This was challenged in Charkaoui (see below) Charkaoui II (2008, SCC): SCC reviewed CSIS’s policy of destroying

operational notes (which are used to issue security certificates) Crown has an obligation to retain (and not destroy) these notes When s. 7 is engaged, disclosure requires more than mere summaries of info

(i.e. the notes themselves?) to protect s.7 rights Summary: Singh to Charkaoui – long line of cases where s. 7 provides procedural

safeguards to non-citizens (historically vulnerable to unstructured discretionary authority with minimal review rights)

Final question: Is it just to incarcerate foreign nationals/PRs without the protection of fundamental criminal law principles (e.g. rules of evidence, proof BRD, presumption of innocence)? SCC hasn’t dealt with this.

CHARKAOUI V. CANADA (2007, SCC)

Facts Charkaoui was a PR and convention refugee; suspected involvement w/ terrorist org. Minister of C&I and Minister of Safety & Emergency Preparedness issued security

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certificates pursuant to IRPA s. 77 led to his detention pending deportation Two ministers can jointly issue security certificates against either permanent residents

or foreign nationals on various grounds, including connection w terrorist activities - issuance of certificate enables immediate detention and triggers a process that can lead to deportation.

Certificates are then reviewed by federal court judge to determine if the certificates are reasonable (i.e., conducts a “reasonableness review”):

Key features of “reasonableness review” process: Ex parte and in camera (person named on certificate & their lawyer not there)

held at the request of Crown if judge believed that disclosure of any of the info could undermine national security

Person would then get summary of evidence, but not its sources or details that might compromise national security

Judge could rely on evidence that would be inadmissible in a court of law (e.g. uncorroborated hearsay evidence provided by foreign security agencies known to use torture)

If judge decided certificate was reasonable, no appeal or opportunity for further judicial review – certificate becomes a removal order

Issue Does the procedure for the “reasonableness review” under the IRPA infringe s. 7?

Held Yes. Not saved by s. 1.Reasons

1. Is s.7 engaged? Yes. “Doubly” engaged liberty interest (persons faced detention pending

deportation) and security interest (might be deported to a place where they risk torture and life/freedom may be threatened)

Per Suresh, deportation to torture will generally violate the PFJs Non-citizens do not have an unqualified right to remain in Canada – but the

proceedings are not immune from Charter scrutiny 2. If yes, deprivation in accordance with POFJ?

PFJs include PF, per Suresh Need to ask if the process is fundamentally unfair to the affected person the

greater the effect on liberty = greater need for procedural protections to meet duty of fairness and requirements of PFJ (note: the court’s analysis here is a departure from Baker)

Canvassed PFJ re: judicial independence/impartiality, and said this was okay PFJs violated because review procedure denies the right to a fair hearing

First, fair hearings requires judge to decide case based on all relevant facts & law – here, judge may be deciding reasonableness of Crown’s case without having all the evidence adequately tested. Re facts, Judge may not have all available evidence before him/her. Our system is not inquisitorial, so judges can’t themselves gather all the evidence. Thus judges might not be “exposed to the whole factual picture”. Re law, named person cannot raise legal objections to evidence, legal arguments, etc.

Second, person doesn’t know the case they need to meet (based on

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undisclosed material) – this principle has been “effectively gutted” Thus, deprivation of liberty in this case contrary to POFJ (b/c of non-disclosure) Relationship b/w s. 7 and s. 1:

The balance between the interests of the individual and the interests of society (i.e. national security concerns) must be assessed in the s. 1 analysis, not s. 7 (undue burden – s. 7 just concerned w/ breach of individual rights)

S. 7 asks whether the limit respects the PFJs; s. 1 asks whether a balance is struck between individual and societal interests

Procedures required to conform to the POFJs must reflect the exigencies of the security context; but they cannot be permitted to erode the essence of s.7

POFJ’s require that before state detains people, it must accord them fair judicial process meaning: the right to a hearing before an independent and impartial magistrate, on the

facts and the law The right to know the case against them, and right to answer to that case

3. Violation of s.7 saved by s.1? no, scheme does not choose the least intrusive measures; as there are alternatives

for keeping the info secret (‘special advocates’ with security clearance) Interestingly, Court’s endorsement of special advocate system is in its s. 1

analysis – so it’s unclear whether the special advocate is consistent w/ PFJs, OR whether it is inconsistent w/ s. 7 but justified under s. 1 (would be the first time!)

This is important b/c it means a special advocate program in a non-constitutional context would not accord w/ CL DOF, b/c CL duty informs s. 7 and thus is similar to the procedural content of s. 7 (so to be valid, would need statutory language saying so, since legislation can override CL DOF)

NOTE: Canada has since amended IRPA to provide for special advocate (independent lawyer to represent named person during in camera hearings – though they cannot communicate w/ the person during the hearing – still v. secretive)

Key Points (1) What this tells us about PFJs and the contextual nature of the inquiry about PFJs under s. 7 PFJs do not guarantee a specific kind of process under s. 7 – rather, they guarantee a “fair process having regard to the nature of the proceedings and the interests at stake” – v. context-dependent Backing away from Baker

(2) How the Court deals with “national security context” of the decision in question and the extent to which national security interests can be taken into account at the s. 7 stage, as opposed to the s. 1 stage S. 7 is not concerned with whether the limit is justified (this is for s. 1), but whether the limit accords w/ the PFJs If s. 7 analysis determines the process is unfair the affected person, then the limit does NOT conform with the PFJs. Only at this point does the analysis shift to s. 1 to determine whether the limit can nonetheless be justified, based on public interest

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National security concerns cannot be used to excuse procedures that do not conform to the PF requirements at the s. 7 stage The context (here, the detention and deportation of FNs) may impose admin. constraints that make certain procedures difficult, but then substitutes must be found. PFJs must be respected – that is the “bottom line”. Yes, the government may need to act quickly, or maybe full disclosure of info relied on isn’t possible, but we can’t ignore the serious effects this has on detainees – can’t basically gut the PFJs using national security as an excuse

(3) What the case tells us about PF generally and especially the role and importance of disclosure – court’s elaboration of the purpose and functions of disclosure generally is relevant in both the CL and s. 7 analysis Lack of disclosure means person doesn’t know the case they need to meet (breaches PF) National security requirements can limit the extent of disclosure (right to know the case to be met is not absolute); However, given the grave intrusions on individual liberty here, it is hard to find a substitute for non-disclosure that will satisfy PFJs. The substitute here is the “reasonableness review” by an FC judge, but that isn’t enough. The only protection for the individual here is the reasonableness review by the judge, but this isn’t enough. Remember: the judge isn’t balancing individual and societal interests (that is for s. 1). The judge is ensuring limits accord with PFJs, and here the basic requirements of PF haven’t been met, and there is no substitute for lack of disclosure. The judge only sees what is put in front of him, can’t ask questions of the named person limited by non-disclosure, and basically can’t “fill the vacuum left by the removal of the traditional guarantees to a fair hearing.”

BIAS AND IMPARTIALITY

OPENING PRINCIPLES

Impartiality: State of mindo Ideal state of mind for a d/maker – haven’t prejudged anythingo Bias is the opposite of impartiality

Independence: State of a relationshipo This is a means of achieving impartialityo Rules/institutional safeguards ensuring independence (eg ADM from govt)

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Rationale: Maintain public confidence in the administration of justice. Ensures ADMs are not perceived to be:

(I) Making decisions benefiting them or those w/ whom they have relationships(II) Partial towards certain interests/relationships that negatively impacts a certain

party; and(III) Making decisions based on irrelevant factors (e.g. prior knowledge)

Rule against bias is one of the oldest CL doctrines. All ADMs who are required to meet standards of procedural fairness are subject to the rule against bias.

Onus on party alleging bias Result: quash any decisions made; proceedings must be reheard by new panel

BAKER (RE: BIAS)

Comments on RAOB PF requires decision be made free of RAOB Here, duty of impartiality applied to the IO who made the

notes (not just the ultimate d/maker) – his reasons were used for the ultimate decision

Standards for RAOB vary depending on context. Here:- Highly important decision to affected individuals- Important to Canada’s interest as a country- Individualized (rather than general) decisions- Immigration decisions require sensitivity & recognition

of the diversity of our country Held: IO’s comments give rise to apprehension of bias

- Stereotypes, burden on social welfare system, etc.

RAOB: TEST AND CRITICISMS

Rule against bias applies to all ADMs required to meet standards of PF Bias must be raised as early as possible. If bias found, decision will be quashed &

re-heard by new d/maker. If no decision, simply replace the d/maker. Test (Committee for Justice and Liberty v. NEB, 1978 SCC): The apprehension

of bias must be a reasonable one, held by reasonable and right-minded persons […] “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude…”

Thus, apprehended bias is enough – need not be actual (too hard to prove) Bias can be individual or institutional Institutional version of test: Could there be “RAOB in the mind of a fully

informed person in a substantial number of cases?” (Lippe, 1991 SCC) – i.e. bias in repeated institutional action

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Standard: Claimant must show real probability/likelihood mere suspicion isn’t enough (very high threshold)

Context specific: Bias may be found in one administrative context and not so in another (e.g. CLJ v NEB and Imperial Oil – both dealt with prior involvement but led to different results)

o CLJ was adjudicative; Imperia Oil was political/public interest Greater diversity on bench and among ADMs will hopefully reduce bias & will

bring a diversity of perspectives to the bench Criticisms: People call the “reasonable person” an enduring fiction – a gendered,

racialized, privileged term that is inherently discriminatoryo NB: the “Reasonable person” is a culturally specific ideal, born from a

specific legal tradition – won’t work in every contexto E.g. Aboriginal context – decisions are fair when rendered by non-

strangers whom they know and trust – impartiality is not central to indigenous legal traditions

Explanation of test: R v S (RD)Importance of context: Imperial Oil

R V S (RD) (1997, SCC)

Facts White cop arrested 15 yo black kid, charged w/ assault, resisting arrest TJ remarked that cops have been “known to mislead the court” in the

past & have overreacted particularly to non-white groups But said her comments weren’t tied to the cop testifying at trial

Issue Did TJ’s comments give rise to RAOB?Held No.Reasons Must read comments in full context to determine RAOB

Defines impartiality as the absence of bias, whereas bias indicates a state of mind predisposed to a particular result, and partiality occurs where someone has biases and will allow those to affect their decision

Sets out test for RAOB – must simply show reasonable apprehension, not any actual bias

Test has two-fold objective element:(1) Person considering the alleged bias must be reasonable;(2) The apprehension of bias must itself be reasonable, in the

circumstances of the case. Must be a real likelihood of bias, more than a mere suspicion – high

threshold (b/c stakes are very high, when bias is found) Onus of demonstrating bias lies on the person alleging its existence Neutrality doesn’t mean judges have to discount their life experiences –

every human is the product of social experience, education, etc. – takes a nuanced, realistic view on the requirements of neutrality

Ratio Defines bias and impartiality/partiality. Sets out test and factors for

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assessing RAOB

IMPERIAL OIL V QUEBEC (2003, SCC)

Facts QC adopted “polluter-pay” legislation Imperial’s site became contaminated; Minister ordered them to pay for

a site study, including appropriate decontamination measures Minister had previously been involved in earlier failed decontamination

attempts at the same site Minister had previously ordered Marina to decontaminate same site,

after which they had begun residential process But problems re-surfaced – let to legal actions brought against Minister

by current owners on site, claiming damages against Crown Imperial argues Minister’s decision tainted by bias – b/c of superstition

or appearance that Minister is trying to insulate Crown from legal consequences of earlier failure to decontaminate site

If Imperial has to pay to clean up site, this mitigates damages claims brought against Crown by current land-owners

Thus Imperial grounded its RAOB argument in a conflict of interestIssue Does the Minister’s decision create RAOB?Held No.Reasons Statute

Minister has broad power to administer, enforce and implement the Act and uphold its policies

To enforce “polluter-pay” provision, Minister can issue an order – this is an important enforcement tool – broad discretion allowed to Minister when issuing order

Statute has some procedural rules (beyond the general duty of PF) – Minister must give 15 days’ prior notice of intention to issue order, give reasons for the decision, etc)

Procedural Fairness Duty of impartiality is a fundamental obligation of the courts D/makers cannot be influenced by personal interests/outside pressures D/maker must also appear impartial (per NEB test)Context Impartiality, like all other rules of PF, varies with context ADMs play diverse roles – some are adjudicative, others have policy-

making discretionary functions. Examine full context to determine role Role: Minister’s role is not adjudicative; he is ensuring the

fundamental legislative policies of the act are implemented & has a responsibility to protect the public interest in the environment

B/c of his political (and non-adjudicative) role, duty of impartiality did not apply. Must comply with procedural requirements only (as set out in the legislation).

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Personal interest: Minister was defending public interest and protection of environment (no personal benefit)

Ratio Establishes importance of context when assessing RAOB. Full scope of duty of impartiality is required in an adjudicative context; if ADM is fulfilling a mainly political role, duty of impartiality will not apply.

SPECIFIC CATEGORIES OF BIAS

Four categories where RAOB may arise (broad categories, case may not fit neatly within one, but useful starting point):

I. Pecuniary or material interest in the outcome – conflict of interestII. Personal or business relationships with those involvedIII. Prior knowledge or info about the matter in dispute – prior involvementIV. Attitudinal bias (attitudinal predisposition toward an outcome)

PECUNIARY INTEREST

Direct Pecuniary Interest: A direct pecuniary interest is certain – i.e. close link b/w interest and d/maker A direct pecuniary interest, no matter how small, violates the rule against bias

automatically (no need to inquire whether a rsble person would apprehend bias) A direct pecuniary interest exists if it is not speculative or remote (e.g. Minister

owns a share) ADM can’t make a decision that advances his or her own cause (old principle) –

monetary gain is part of “advancing one’s own cause”. Very strict. A Minister will not be seen to have a direct interest if they are exercising a

political function, i.e. acting in the public interest, exercising broad discretion in a non-adjudicative context (Imperial Oil)

Indirect Pecuniary Interest: Much more flexible appl’n of test Indirect pecuniary interests are more speculative, remote, uncertain No bias if the d/maker’s gain is no more than that of the average person in a

widespread group of benefit recipients If pecuniary interest is indirect, whether it violates the rule is a contextual inquiry

o How significant is the interest?o How much does it benefit the d/maker?o How remote is the link (i.e. how many degrees of separation)?o How speculative is the interest (how likely it is) given the context?

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Remember: rule against bias will not be violated if there is SAD, waiver, or a necessity (applies to all categories of bias).

PEARLMAN V. MANITOBA LAW SOCIETY (1991, SCC)

Facts LS took action against Pearlman – alleged “conduct unbecoming” Act allowed costs of investigation into misconduct to be recouped from

a lawyer found guilty of such conduct Pearlman argued RAOB based on pecuniary interest: if he pays costs of

proceeding, costs go to Law Society, and thus members have a financial incentive to find him guilty

Issue Did the LS have a pecuniary interest in finding Pearlman guilty?Held No.Reasons Reminder that PF is eminently variable and context-specific

RAOB test requires a flexible application Wider context: lawyers are self-regulating, this is important for the

public interest, they must be able to discipline members Indirect pecuniary interest: financial gain here was simply too remote

for members to have a pecuniary interest here (negligible effect on each lawyer’s fees)

First, this was about reimbursements, not profits Second, pecuniary interest was too remote – individual members

wouldn’t really get anything – thus no personal interest Third, this argument is improbable b/c the relative size of costs

recouped makes a difference of a few dollars a year per member SCC also rejected argument that members of disciplinary committee

have interest in fining him guilty b/c it means one less lawyer in the profession (bold argument – but has been successful in very small communities!)

Ratio If indirect pecuniary interests are either remote or negligible, they will not give rise to RAOB.

PERSONAL/BUSINESS RELATIONSHIPS

Balance desirability of having d/makers with experience (and thus possible connections) in the field with the undesirability of relationships that will influence d/makers in favour of their connections

Examples: family/friend, collegial/professional relationships, business competitor Very common in Canada – huge jurisdiction w/ relatively small population Factors in determining RAOB:

o Is the relationship current?o How tenuous is the link to the party?o Business competitors – depends on level of competition, size of field, etc

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Marques v. Dylex: Labour board member had previously been a lawyer w/ the firm acting for the union appearing before his panel.

Held: No bias. Factors: Timing (over a year had passed since he’d been involved w/ the firm),

necessity, etc

BENNETT AND DOMAN V BC (1993, BCCA)

Facts Devine was a member of a panel of commissioners who issued a ruling under the Securities Act (v. high penalty)

Devine is the prez of a competitor co. in the forest products industry Doman argues RAOB (i.e. if he is penalized and his co. can no longer

sell products into the market, this will help Devine’s company)Issue Is Devine disqualified based on RAOB as the prez of a competitor co.?Held Yes.Reasons Problem with determining whether Devine would benefit from

Doman’s misfortune is that it’s based on speculation (i.e. arguing that Devine would benefit from greater availability of bank credit, easier access to equity markets, more demand – “who can say?”)

Decides instead based on RAOB – was there an apprehension, here? Colourful judgment – reasonable person is a “mythical creature” Close case, but decides that a reasonable person would apprehend bias Remedy: Devine not qualified – other two commissioners were okay.

Ratio Illustrates personal/business relationship category of bias. Here, the director of a company sitting on an inquiry into the conduct of a competitor company was held to give RAOB.

PRIOR KNOWLEDGE OR INVOLVEMENT

Various ways this can occur:(1) DM sits on appeal from their own decision (classic example, very rare nowadays,

would usually give rise to RAOB) Will usually raise RAOB

(2) DM rehears matter after successful JR application (seems unfair if it was held that PF wasn’t followed and then goes back to same d/maker)

RAOB not automatically – must be able to point to something the d/maker specifically did which raises RAOB (e.g. made emphatic statements, reached a negative assessment of a party’s credibility)

(3) DM had prior involvement w/ subject matter before he became tribunal member

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E.g. BC Human Rights Tribunal – someone who was an investigator on a matter now serving as an adjudicator on the same matter

Raises concerns about prejudgment, inappropriate prior knowledge Courts will look to nature and extent of d/maker’s prior involvement If DM was actively involved in the actual matter before being appointed to

the ADM, this will generally raise RAOB (see CJL v NEB) But where file was one of many & no active involvement, then maybe no

RAOB (Wewaykum) Also, no RAOB where Minister is acting in the public interest in a

political role – even if Minister’s prior involvement led the Minister to be sued (Imperial Oil)

(4) “Overlapping functions”: DM had prior involvement with the subject matter within the tribunal

COMMITTEE FOR JUSTICE AND LIBERTY V NEB (1978, SCC)

Facts Crowe was appointed as Chair of the NEB Prior to being appointed, Crowe had been involved in a Study Group

considering the physical and economic feasibility of a pipeline Crowe & 2 other panel members then chaired a board hearing

applications from companies who wanted to build the pipeline 88 companies at the hearings – only 8 objected

Issue Was Crowe disqualified from chairing the board, based on RAOB?Held Yes.Reasons Clearly no personal, financial or proprietary interest for Crowe

The question is an apprehension of bias, not any actual bias Analogizes to lawyers, who refrain from sitting on cases involving

former clients, even if they hadn’t participated in the case Functions of board and Study Group are different, but issues are same Rationale – need public confidence in impartiality of ADMs Why was bias apprehended here?

- Nature of scenario (competing companies/interests, closer to classic adjudicative scenario rather than general policy decision)

- Crowe was heavily involved previously (working out terms, dealing with plans to implement the pipeline, etc)

De Grandpre J, in dissent, sets out test for RAOB- Would not have found RAOB – small population, we need people

with expertise to staff the board, can’t disqualify them easily- Characterizes proceedings as policy-making rather than judicial

Ratio Sets out test for RAOB. Bias based on prior involvement will depend on nature of scenario (adjudicative or legislative/policy-making?) and degree of prior involvement.

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WEWAYKUM INDIAN BAND V CANADA (2003, SCC)

Facts Binnie J dismissed an appeal from two bands who sued Crown over entitlement to reserves on Vancouver Island

Binnie had been Associate Deputy MOJ in early 1980s (at the time when these claims were in their early stages) – had been responsible for all litigation – supervisory authority over 1000s of cases

FOI request showed Binnie had received some info regarding the claim and had attended a meeting where it was discussed

Binnie recused himself from any further proceedings on the matter and said he had no recollection of involvement in the case

Both bands agreed actual bias wasn’t at issue, but alleged RAOBIssue Did Binnie’s prior involvement give rise to RAOB?Held No.Reasons Heavy presumption of judicial impartiality; onus on party alleging bias

Each case is very context and fact-specific to determine bias Abundance of caution – judges often recuse, even when not necessary Binnie’s involvement was limited, no active role, never participated in

the litigation. 15 years ago, overseeing thousands of cases – a reasonable person wouldn’t apprehend bias here

Ratio If prior involvement was a limited supervisory and administrative role, this isn’t enough prior involvement to lead to RAOB.

ATTITUDINAL BIAS

When will pre-existing attitude/disposition held by d/maker lead to disqualification? Baker: notes of IO gave rise to RAOB (based on stereotype, strong statements) Generally no RAOB:

o If statutory scheme/nature of d/maker reflects desire for peer review or having a d/maker with expertise in the field (even if one-sided)

o Where d/maker is an expert (even if one-sided) and makes general public statements/advances opinions (not amounting to “Advocacy” related to the regulatory sector they are involved in (Great Atlantic)

May be RAOB: o If d/maker makes a statement during proceedings that declares their

opinion on an issue which has/is to be decided in the proceedings (G.A.) RAOB often raised of d/maker “personally descends” into dispute by deciding the

same type of issue for which they were previously a complainant before the ADM on which they now sit (Great Atlantic)

What if d/maker was a public advocate for a “Cause” related to the issue before them? No clear answer.

These principles apply to an adjudicative context but not necessarily to a legislative and polycentric context (Nfld Tel)

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GREAT ATLANTIC & PACIFIC CO V. ONTARIO HRC (1993, ONSC)

Facts Gale filed complaints of sex discrimination against employer/union Professor Backhouse appointed to Board of Inquiry to hear complaints Backhouse had a background as an “advocate” in issues around sex

discrimination (law prof, wrote on it extensively) She was also party in proceedings which were still outstanding in front

of the HR Commission (though inactive, had never been withdrawn or formally settled)

Many days of hearing from March to June In April, employer raised RAOB against the Board – submissions on

bias were heard by the Board but rejected In April, Backhouse wrote to Commission asking her name be

withdrawn form the list of complainants on the outstanding matter Applicants brought JR appl’n to discontinue hearings, based on bias

Issue Was there RAOB (and perhaps actual bias) on the part of Professor Backhouse?

Held Yes.Reasons ONSC decided on second issue only, i.e. that she was involved in

outstanding proceedings (didn’t address whether her advocacy around sex discrimination would disqualify her based on bias)

Because she had “personally descended” as a party into the very arena that she was now presiding over, there was RAOB

She had very personal ties (had even selected one of the parties before her as her own advocate in her personal complaint)

Remedy: Proceedings before the Board are quashed. Minister can appoint another board to adjudicate the remaining complaints against the union, if so requested.

Ratio If a party “personally descends” into the arena over which they are presiding (i.e. personal party to a complaint) RAOB may be found.

FRANCIS V MINISTER OF C&I (2012, FC)

Facts Francis seeking refugee status b/c she faced discrimination as a gay woman in Saint Vincent

Case heard by Gallagher J of the Refugee Protection Division 5 days into case, Francis ask that he recuse himself due to bias Based on comments he made at hearing (a number of SV citizens are

now established in Canada “because of the refugee system”) & subsequent discovery of comments he had made in academic writing on immigration policy (critical of certain aspects of processing refugee

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claims & negative impact of “mass immigration” on social cohesion)Issue Did his comments/previous writing give rise to RAOB?Held No.Reasons Starting point: strong presumption in favour of the impartiality of the

d/maker – onus on party alleging bias to rebut this Threshold for allegation is very high Why no bias here?

- Comments must be contextualized- He was generally evaluating the refugee system, not specifically

targeting Saint Vincent citizens- Reasonable person would not think he had predetermined case

Gallagher properly applied the RAOB test to himself and decided not to recuse himself.

Ratio RAOB is a very high threshold. It will not be enough that a person has expressed prior views through academic work on a subject matter to disqualify them. In fact, this experience may make them a better d/maker.

VARIATIONS IN BIAS STANDARDS

The RAOB test is always the same, but the application varies depending on context.

“Amenable to Persuasion”/Closed Mind Test: “Relaxation” of the RAOB test. Appearances of bias aren’t triggered as quickly.

o Municipal councillors can advocate for a position as long as they remain “amenable to persuasion” (OSB)

o Unelected polycentric d/maker can make public statements or advocate a particular interest during the investigative stage and before a hearing date has been set and then act as d/maker on that issue as long as he/she remains “amenable to persuasion”. Once hearing date is set, d/maker is subject to regular RAOB test (Nfld. Tel.)

o Standard is very high (i.e. hard to prove a closed mind)o Rationale for municipal councillors/elected officials: they’re at the

legislative end of the PF spectrum – advance certain platforms for electiono Rationale for polycentric d/makers: similar, where appointed to represent

the interests of a particular community (Nfld. Tel.) NB: This relaxed test only applies to attitudinal bias/prejudgment cases.

o Only arises where prejudgment arises when d/maker is acting in professional capacity for the public interest or other legitimate purpose

o Does not apply to pecuniary interests or personal relationships, even if d/maker is elected or polycentric d/maker represents a certain community

o Rationale: Bias concern is that d/maker would be advancing their own personal agenda, not acting in the public interest

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o Further, elected officials = ultimate recourse is the electoral process

Variations in Standards (Bifurcated): Prejudgment of elected officials and unelected polycentric ADMs

Spectrum of test ( grows stronger )

Middle ground is closer to the left than the right. Bifurcated standard depending on whether investigative or adjudicative stage. Even at the hearing stage, Court says it still won’t be as strict of an RAOB test as they apply in the courts – still some flexibility here as to what is “reasonable” (i.e. more flexibility in reasonableness for a polycentric ADM than for a court)

OLD. ST. BONIFACE V WINNIPEG (1990, SCC)

Facts Savoie was member of Winnipeg City Council Involved from early stages in proposed land dvlmpt at OSB Municipal approval needed for land purchases and rezoning bylaws Savoie later appeared at the meetings in front of finance committee (of

which he wasn’t a member) to recommend the project – basically, he took a position on whether the developer should be given the option to purchase the city lands (he was in favour)

Option was granted, developer got land options. Developer then sought rezoning – public hearings ensued before the

Community Committee, of which Savoie was a member He participated w/out disclosing his earlier involvement OSB Resident’s Ass’n (opposing the project) learned of his earlier

involvement & asked him to recuse from rezoning hearings b/c he was already in favour – he refused.

City Council gave approval for rezoning – OSBRA sought JRIssue Did Savoie’s earlier involvement in the land option purchase disqualify

him, based on RAOB?Held No.Reasons DOF is a variable standard: content depends on circumstances of the

case, statutory provisions, and nature of matter to be decided

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So, what circs does the committee operate under? Committee members still act as municipal councillors in this capacity- Often have already taken a stand (when they were getting elected),

part of a committee deciding preliminary matters, or help parties either supporting or opposing a development

- Legislature would have contemplated some prejudgment by municipal councillors – thus cannot have intended RAOB to apply

What is the nature/function of a municipal body? - Distinguishes CJL v NEB – Crowe had assisted in the preparation

of the applications and contributed funds to the Study Group – thus he had a personal interest. Plus, members of the NEB don’t have political/legislative duties, so prejudgment of issues is not inherent

- Distinguishes a case of partiality by reason of pre-judgment versus a case of partiality by reason of personal interest

- Municipal councillors have hybrid functions (political, legislative and otherwise) – no reason to require them to refrain from dealing w/ matters where they have a personal or other interest

- Distinguishes conflict of interest (disqualified if interest is so related to the exercise of public duty that a reasonable person would conclude the interest might influence the exercise of duty)

Test for municipal councillors: They must be capable of being persuaded. Some prejudgment is okay – but bias exists if party can establish that prejudgment is such that any further representations would be futile – i.e. a final opinion on the matter that can’t be changed- Support in favour of a measure & vote in favour will NOT

constitute bias, unless something shows the position was incapable of change

Application: Nothing showed that he had a relationship or personal interest in the developer- Not enough to establish bias that he’d argued in favour before- Test for public officials: Would a reasonably well-informed

person consider that the interest might have an influence on the exercise of the official’s public duty?

- No personal interest here. Purely a prejudgment case, and he hadn’t indicated that his mind couldn’t be changed.

Ratio Canvasses nature and function of municipal bodies. Municipal councillors are expected and allowed a degree of prejudgment. Bias exists if they show they are incapable of persuasion.

SAVE RICHMOND FARMLAND V RICHMOND (1990, SCC)

Facts Parallel case to OSB (also re: municipal councillor/land development) First interview (pre-hearings): said he would listen attentively but

probably wouldn’t change mind

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Second interview (during the hearings): it would take “something significant” to change his mind

Issue Were these statements enough to disqualify him?Majority Not disqualified by bias - no evidence of a closed mind.

Upholds closed/open mind test – leaves room for intervention in egregious cases

Also has a normative role in encouraging municipal councillors to make sure they are still amenable to persuasion/listening w/ open mind

DISSENT La Forest – this is a silly test that gives rise to silly disputes He basically argues there shouldn’t be any allegations of bias here Councillors can bring a closed mind, as long as it is the result of honest

opinions strongly held, not corruption This is more realistic – closed/open mind = impossible to gauge

Ratio Another example of the relaxed closed mind RAOB test. La Forest, in dissent, rejects the test & says it is okay for municipal councillors to have a closed mind, given their legislative role.

NFLD TELEPHONE V NFLD (1992, SCC)

Facts Public Utilities Act creates Board to regulate Nfld Phone Company (who have a quasi-monopoly)

Board appointed by Lieutenant-GIC; statute provides that board members cannot be employed by, or have interest in, a public utility

Wells – appointed Commissioner to the Board Previously a municipal councillor & advocate for consumers’ rights Many colourful statements: publicly said he intended to play an

adversarial role on the Board as a champion of consumers’ rights (statute was silent as to propriety of this)

Statements published in newspapers: “ludicrous/unconscionable” benefits package, bring those fat cats in, “If I am biased its on the side of consumers who pay too much for their phone bills”

Accounting firm provided analysis of Nfld Tel’s costs – Board received report & decide to hold public hearing. Wells will be one of the commissioners at the hearing.

Looking to determine whether certain expenses were unreasonable (executive pension plan, v. high salary for executives)

If yes, these high expenses shouldn’t be part of rates paid by tax-payers NT objects to Wells’ participation Note: all Wells’ statements made before decision was released Board makes a decision disallowing enhanced pension plans

(unreasonable) but makes n order on the salaries (Wells agrees) Company challenges order

Issue Should Wells have been disqualified based on RAOB?Held Yes.

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Reasons Emphasizes prevalence/importance of ADMs in our society. “In Canada, boards are a way of life.”

Some boards need investigative, prosecutorial, & adjudicative fxns to adequately regulate complex industries

Court emphasizes flexible approach to rule against bias. Why?- There is merit to appointing ppl from different sides of the debate

(not everyone need be neutral)- Boards can draw membership from wide spectrum (not just experts

or bureaucrats) – can include consumer advocates Duty of boards:

- All ADMs owe DOF to parties they regulate- Freedom from bias is essential to procedural fairness – but since

bias itself is hard to prove, the test measures apprehension of bias- Standard in applying RAOB test varies (stricter w/ court-like,

adjudicative ADMs; lenient w/ legislative roles, elected municipal councillors, etc)

- Describes relaxed test for policy roles/municipal councillors Application:

- Public utilities commissioners shouldn’t be held to standard of judicial neutrality – we need people who have been involved in the field, represent interested sectors of society, etc

- Expressing strong opinions prior to hearing is not enough for bias- Procedure: Board generally supervises public utilities, including

Nfld Tel, which has a monopoly; may investigate of its own motion any possibly unreasonable charges; investigation may lead to hearing, during which the utility must be accorded fundamental rights of PF (i.e. notice, attendance of witnesses & can make subs)

- Board determines unreasonableness of rates based on economic terms, i.e. policy issues rather than legal questions – legislative end of the spectrum (not adjudicative)

- Statute allows Board to act as an investigator re: charges, and then to act as a prosecutor/adjudicator re: those same charges

- Wide licence given to ADMs during investigatory stage; these statements were okay, as long as they didn’t show a “closed mind” (demonstrates how high the threshold is here – his statements were pretty crazy and strong, yet didn’t demonstrate closed mind)

Bifurcated standard: During investigative stage, court applies relaxed “closed mind” test. Once matter reaches adjudicative/hearing stage, stricter standard applies.

Wells made statements during hearing that seem to indicate he had made up his mind – thus hearing was invalid and result is void..

Ratio Establishes bifurcated standard for RAOB. During investigative stage, the relaxed “closed mind” test applies. Once matters proceed to hearing (i.e. adjudicative stage), stricter RAOB test applies.

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STATUTORY AUTHORIZATION DEFENCE

Arises when the statute (i.e. regulatory system itself) provides a defence – i.e. statute allows overlap of functions (person acting as both investigator and adjudicator on the same case)

Often arises in cases of prior involvement (i.e. person playing numerous roles in regulatory structure) – more often cases where contact with the subject matter occurred while he/she was a member of the d/making body (not before they were appointed) – i.e. prior contact with subject matter from within the tribunal

Legislature may oust the impartiality requirement either expressly or by necessary implication (Cupe)

Always subject to constitutional arguments (e.g. Charter, CBOR)

BROSSEAU V ALBERTA SECURITIES COMMISSION (1989, SCC)

Facts Chair of Alta Securities Commission instructs staff to investigate a particular company

Chair received report, reviews it, decides hearing should be held, and then will sit on the panel hearing the issue

Overlapping investigatory and adjudicatory functionsIssue Should Chair be disqualified from sitting on panel due to RAOB (since he

ordered the investigatory report, i.e. overlapping functions?)Held No. SAD provides a complete defence here.Reasons Generally, overlapping investigatory and adjudicative fxns would lead

to RAOB Exception: if overlap is authorized by statute (assuming the statute is

constitutional) For bias to be found here, some act of the Chair beyond these statutory

duties would have to be found Deference to legislatures to choose structures of ADMs – this may

include overlapping functions Here, statute didn’t expressly authorized, but was implicit in the Act

(i.e. formal review expressly authorized, but Chair implicitly authorized to conduct more informal internal review)

Nature of ADM: Specialized body – more likely to have repeated dealings with a given party for different reasons

Cannot allege bias simply b/c Commission “didn’t act like a court” Nature of statute: Securities Act protective role, “special”

Ratio If the statute expressly or implicitly authorizes the behaviour, and the d/maker is fulfilling his/her statutory duties, SAD offers a full defence (as long as statute is constitutional). Authority can be either express or implied.

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CUPE V ONTARIO (2003, SCC)

Facts Same case as covered in LED section – i.e. changing arbitration system in Ontario hospital sector, Minister appointed retired judges to the board who weren’t on the agreed-on list

Union upset – retired judges usually not in line with union interestsIssue Was there a duty of impartiality in appointing judges?Held No. SAD offered full defence.Reasons Union args: Minister had significant outcome in result of arbitral

awards, as a member of a cost-cutting govt that wants to reduce public spending, including health care and hospital labour costs

Ont. CA found that Minister had “significant and direct interest” in the outcome of arbitral awards

SCC agrees, there is reason to think Minister might have interest in the outcome – however, SAD provides complete defence here

Absent a constitutional challenge, a statutory regime expressed in clear and unequivocal language prevails over natural justice on this point

Provides more guidance than Brosseau – i.e. clear/unequivocal language, either expressly or by necessary implication, v high standard

Union argued Minister could have delegated power to a 3P (more removed, no chance of RAOB); but the language for delegation was permissive, not mandatory. No requirement to delegate this power.

Ratio Statutory language can prevail over requirement of impartiality here, but must be express or by necessary implication. If so, SAD offers a complete defence to allegations of bias.

SUBSTANTIVE REVIEW IN ADMINISTRATIVE LAW

FEDERAL COURTS ACT (S. 18)

The Federal Court Creature of statute, created in the 1970s FC & FCA hear JR of federal administrative bodies – similar power as superior

courts, but no inherent jurisdiction – rather source of power is statutory (FCA) Basis for JR set out in ss. 18 and 18.1 of the FCA (not inherent jurisdiction) Main question post-Dunsmuir: do these principles apply to FCA? Decided, one

year after Dunsmuir, in Khosa.

FCA s. 18: (1) Federal Court has exclusive original jurisdiction to issue admin law remedies (i.e. prerogative writs, injunction, declaration) against federal ADMs; (3) Remedies provided above may be obtained only on appl’n for JR under s. 18.1

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FCA s. 18.1:(1) Appl’n for JR may be made by AG of Canada or by “anyone directly affected”(2) Time limit: within 30 days of decision being issued by federal ADM(3) Powers of FC: FC may a) order ADM to do something or b) declare invalid, quash

or set aside or refer back a decision w/ new directions, or retrain/prohibit a decision(4) Grounds of Review: FC may grant relief under subsection 3 if the ADM:

a) Acted without/beyond its jurisdiction, or refused to exercise jurisdiction;b) Failed to observe a principle of natural justice or PF;c) Erred in law (whether or not the error appears on the face of the record);d) Based its decision on erroneous finding of fact, made in a perverse manner or

w/out regard to the material before it;e) Acted, or failed to act, by reason of fraud or perjured evidence; orf) Acted in any other way that was contrary to law.

(5) Defect/Technical Irregularity: If the sole ground for relief is a defect in form or technical irregularity, FC may either refuse relief, or fix the defect.

FCA s. 18.5: Exceptions to ss. 18 and 18.1: If an Act expressly provides for an appeal (to the FC, FCA, SCC, etc.) then the decision of a federal ADM will not be reviewed or set aside, to the extent that it may be so appealed.

Debates in Khosa: a) role of privative clauses and b) how much the common law applies to statutes.

CANADA (C&I) V KHOSA (2009, SCC)

Facts Khosa, convicted for street racing; removal order to return him to India

TJ finds his prospects for rehabilitation are good, but at some point after his charge (which resulted in a CSO) he gets deportation order

Applied unsuccessfully to the Immigration Appeal Division (IAD) of the Immigration & Refugee Board to remain in Canada

IAD said insufficient H&C grounds (per IRPA) – issued removal order

FC: Upheld based on PU SOR FCA: Overturned based on RS SOR Dunsmuir (decided after these decisions) collapsed into a single

reasonableness standardIssue How should the Dunsmuir approach apply to judicial review under ss. 18

and 18.1 of the FCA? (I.e., is the exercise by judges of statutory powers of JR set out in the FCA governed by common law principles in Dunsmuir?)

Held Dunmsuir applies to the FCA.

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Binnie (Majority)

Summary: Agrees that FCA legislated grounds, not standards. Dunsmuir says JR should be more focused on substance, rather than picking an SOR – upholds applications judge – IAD was w/in range of reasonable outcomes – FCA erred in quashing decision. Decision of IAD restored.

Lower Courts: o Disagreed on choice of SOR (PU v. RS) tho neither

considered that statute displaced the CL of judicial reviewo FC: Considerable deference owed to the IAD (broad

discretion given to it, expertise, etc) – PU is appropriate SOR. Upheld dec.

o FCA: Applicable SOR was RS. Dec wasn’t reasonable (e.g. “rehabilitation” is a criminal law concept – ADM not expert)

Statutory Context: o IRPA: PR/FN inadmissible on grounds of serious criminality –

but sets out possibility of appeal based on H&C factorso FCA, s. 18.1: Sets out basis for JR at the Federal Court

Analysis: o Parliament an legislate SORs (subject to constitutional limits)o E.g. BC’s ATA – but must be interpreted in the context of the

CL (e.g. PU may be legislated as an SOR, but df’n exists at CL)

o Rejects Rothstein’s args (that no deference owed, i.e. CSOR, absent clear statutory direction via PC) Dunsmuir says that, with or without PC, ADMs may be deferred to – they often become experts, are better suited to determine complex issues

o Dunsmuir rejects idea that ADMs should be reviewed as appellate courts (i.e. CSOR). Refuses to “roll back the clock” to era where courts thought they had expertise in all admin stuff

o Flexibility: Parliament can’t have intended, in 18.1, to legislate the same, rigid SOR to be applied to all federal ADMs. Need contextual, elastic approach (many dif. forms/functions of ADMs in many different circumstances)

Federal Courts Act : o 1970s – Parliament created FCA & transferred jurisdiction

over federal ADMs from superior courts to federal courto s. 18.1(4): Enables, but does not require, judicial interventiono (a) through (f) specify grounds for review, but no standards

(tho some indicate more deference than others) – thus must be interpreted against the CL backdrop, drawing on Dunsuir

o Grounds of review: The grounds an applicant must establish to succeed on an application for JR

o Bases reasoning on principles of stat. interpretation – common

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law is trumped only by clear languageo The legislature can always oust CL, but hasn’t done so; many

provinces have enacted JR legislation to provide guidance – but these usually ID grounds for review, not the standards

o Thus legislature has the power to specify a SOR, but must clearly do so. Otherwise, courts will a) not interpret grounds of review a standards of review, b) will apply Dunsmuir principles and c) will presume

PC v. Right of Appeal: A PC deters judicial intervention, but a statutory right of appeal “may be at ease with it” – so, unclear about the weight that a statutory appeal exerts against a privative clause

SOR Analysis: o Courts must uphold ROL, but also not unduly interfere w

ADMo Outlines Dunsmuir categorical approach – says reasonableness

applies hereo Factors for RSOR: existence of PC; IAD determines wide

range of appeals under IRPA (and JR only reviewable if FC grants leave), broad discretion granted to IAD to determine appeals based on facts and policy, IAD members have expertise.

o Defines RSOR: single standard (but takes its colour from context) which requires deference

o IAD gave clear reasons, outcome falls w/in reasonable range – courts should not reweigh issue simply b/c they would have come to a different conclusion. Court should defer.

Allow appeal. Restore decision of IAD.Rothstein (concurring)

Concurs with outcome but disagrees with approach to SOR analysis FCA sets out SOR – courts cannot displace this w/ CL analysis Reviewing courts must apply CSOR unless directed otherwise (i.e.

privative clause, or express/implied statutory direction) Rationale: Parliament clearly indicated in s. 18.1(4) when deference

should apply – thus by implication a correctness standard will always apply unless Parliament clearly indicates deference

Language of s. 18.1(4)(d) indicates deference to be applied to questions of fact; thus CSOR applies to jurisdiction, natural justice, law & fraud

Majority approach is inconsistent w/ legislative intent Privative clause: SOR emerged as a way to reconcile the tension that

PC’s create between ROL and legislative supremacy. PCs are at the centre of this tension – they are the most important thing. Thus deference should be accorded only in light of a strong PC. Absence of PC = legislative signal that there’s no need for deference.

Court started to go wrong in Pezim (deference even if PC) and

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Pushpanathan (PC treated as simply one of many factors) Court should NOT impute tribunal expertise on legal questions,

absent a PC Criticisms: Has he reverted to an old, Diceyan approach, with no

deference to ADMs where “courts know best?”Fish (dissent)

Agrees the standard is reasonableness, but would allow the appeal Khosa denied the street racing, but this doesn’t outweigh all the

evidence in his favour on issues of remorse, rehabilitation, and likelihood of re-offence

Rothstein rejects this, says Fish is “reweighing the evidence”Ratio Majority: Dunsmuir applies to Federal Court. FCA legislates grounds

for review, not standards of review. Rothstein: Absent clear leg. intent (i.e. PC) JR should be treated like a regular appeal – i.e. CSOR

ADMINISTRATIVE TRIBUNALS ACT

ATA: KEY ASPECTS

BC’s legislative attempt to simplify SOR; pre-dated Dunmsuir Generally enabling legislation (i.e. creates authority for tribunals) ATA only applies if tribunal’s enabling legislation so provides

o Rio Tinto: SCC made a big mistake – JR of BC Utilities Commission, privative clause (so per s. 58, PU applies) but in the Utilities Commission At, neither ss. 58 nor 59 applied to the Commission – embarrassing!

If ATA doesn’t apply, look to the common law (i.e. Dunsmuir and post-Dunsmuir jurisprudence)

ATA can apply piecemeal, or not at all Upheld in Manz: No “Crevier” problem (i.e. does not violate s. 96).

o Differentiates “what” is done (courts ensuring ADMs staying within their mandate) from “how” it is done (how courts should make this decision)

o The latter (i.e. the methodology – the SOR) can be legislatedo Held that Dunsmuir did not alter the meaning of the PU SOR

Provisions re: appointments (ss. 2 – 10)o Merit-based process for appointments of Chairs and memberso May be terminated for cause

Provisions re: powers (ss. 11 – 61)o See chart – extensive powerso ss. 40(1) and (3): Deal with rules of evidence (usually don’t apply to

administrative hearings but may at higher end of PF spectrum)o ss. 43 – 46: Whether tribunal has authority to hear constitutional matters

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o s. 46: Whether tribunal can apply the Human Rights Codeo ss. 58 – 59: Deal with SOR that court must apply to tribunal’s decisions

ss. 11 – 61: relate to tribunal powers (menu of powers) See Chart below mapping out ss. 58-59

Correctness Reasonableness Simpliciter

Patent Unreasonableness

Other

PC All other matters A finding of fact or law or an exercise of discretion**

Fairness: questions about the application of common law rules of natural justice and procedural fairness

No PC

All questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness(so, findings of law and other matters by deduction)

Finding of fact (?)

Discretionary decision**

** NB: PU defined in the ATA, but only as it applies to exercises of discretion (doesn’t apply to findings of fact or law)

Fairness: Questions about the application of common law rules of natural justice and procedural fairness.

ATA (SBC, 2004)

s. 1 "applicant" includes an appellant, a claimant or a complainant;"application" includes an appeal, a review or a complaint but excludes any interim or

preliminary matter or an application to the court;"appointing authority" means the person or the Lieutenant Governor in Council who,

under another Act, has the power to appoint the chair, vice chair and members, or any of them, to the tribunal;

"constitutional question" means any question that requires notice to be given under section 8 of the Constitutional Question Act;

"court" means the Supreme Court;"decision" includes a determination, an order or other decision;"dispute resolution process" means a confidential and without prejudice process

established by the tribunal to facilitate the settlement of one or more issues in dispute;

"intervener" means a person who is permitted by the tribunal to participate as an intervener in an application;

"member" means a person appointed to the tribunal to which a provision of this Act applies;

"privative clause" means provisions in the tribunal's enabling Act that give the tribunal

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exclusive and final jurisdiction to inquire into, hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its jurisdiction is final and binding and not open to review in any court;

"tribunal" means a tribunal to which some or all of the provisions of this Act are made applicable under the tribunal's enabling Act;

"tribunal's enabling Act" means the Act under which the tribunal is established or continued

s. 58 Legislates SOR if tribunal has a privative clause (see text p. 339)s. 59 Legislates SOR if tribunal has no privative clause (see text p. 339)EXAM New binaries? Revival of jurisdiction? Shows legislative intent?

How successful (compared to P&F or Dunsmuir)? Look carefully at exact language of ss. 58/59 (text, p. 339) Always start with the definitional provision of any statute – this will

tell you whether the ATA even applies to the tribunal

LAVENDAR V FORD (2011, BCCA)

Facts BC Human Rights Tribunal (Human Rights Code provides that s. 59 of the ATA applies)

s. 59 specifies CSOR for all questions except exercise of discretion, findings of fact, and appl’n of CL rules of natural justice and PF

No express mention of mixed law and fact. Must be determined – these form a hefty portion of issues over which ppl seek JR

Tribunal: Argues for RSOR/deference, based on Khosa and Rio Tinto – gap in the statute should be filled by CL (i.e. Dunsuir) which calls for deference on these questions

Issue What SOR is applicable to a decision of the BCHRT on a QMLAWF?Held Questions of mixed law and fact attract CSOR under the ATA.Reasons BC (unique) legislated SOR – thus statute and CL govern SOR issue

Common law remains relevant & informs the content of legislated standards, but does not affect the choice of standard set out in the ATA

CL cannot override the “clear statutory direction” in the ATA ss. 58/59 are a complete code and CSOR is the catch-all – i.e. “SOR

will be correctness for all issues except discretion, fact & PF” Thus, since QMFAL is different than “finding of fact”, CSOR applies Dialogue: BCCA says, the SCC made 3 errors in Rio Tinto Summary on standard of review:

(1) Legislative provisions are paramount and must be examined first. A tribunal’s enabling act specifies which provisions of the ATA apply.

(2) If ss. 58 or 59 of ATA apply, that section represents a complete code of the possible standards of review.

(3) If ss. 58 or 59 apply, the next step is to identify the type of question at issue.

(4) Once the type of Q has been identified, the reviewing judge must

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apply the mandated SOR.(5) If by the enabling statute neither ss. 58 nor 59 apply, the court must

use the CL jurisprudence, per Dunsmuir.Ratio Establishes 5 step process for SOR matters under the ATA. Affirms

that ss. 58/59 are a complete code – no “gaps” to be filled by CL.

DEFINITION OF PU

ss. 58(3) & 59(4) define PU:o Discretionary decision is PU if a) exercised arbitrarily/in bad faith, b) for

an improper purpose, c) based entirely or predominantly on irrelevant factors, or d) fails to take statutory requirements into account.

o Base on unlawful use of discretion per Agraira Limits: Only applies to discretionary decisions – however, other issues can be

subject to PU under the ATA – e.g. s. 58(2)(A) says findings of fact and findings of law can be subject to PU SOR. And PU in this context is not defined in ATA

Issue: What is the def’n of PU under s. 58(2)(A)? Khosa: Issue is particularly contentious b/c of SCC’s comment here that PU did

not “spring unassisted” from the mind of the legislator – definition/content of the expression depends on general principles of administrative law

BC FERRIES & MARINE WORKERS’ UNION (2013, BCCA)

Facts Arbitration award excluded many workers from bargaining unit Dispute under Labour Relations Code Union argued the award was so inconsistent with labour relations

principles that it was patently unreasonableIssue How do we define PU in this context?Held PU is a high threshold indicating deference. Here, decision was not PU.Reasons The term PU is no longer used in most jurisdictions post-Dunsmuir, but

is still relevant in BC due to ATA – SCC jurisprudence has not “diluted” or “altered” the PU standard under the ATA

Defines PU based on earlier case law (e.g. Southam) – “openly, clearly, evidently unreasonable” – definition frozen pre-Dunsmuir

Test must be applied to the result, not the reasons leading to result “PU is at the high end of the deference spectrum and retains its pre-

Dunsmuir character”PU is a very high standard.

Ratio PU remains relevant in BC – Dunsmuir has not altered/diluted this standard. Resurrect pre-Dunsmuir case law to define the PU SOR.

QUESTIONS RAISED BY LAVENDAR APPROACH

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Post-Lavendar, questions still remain:a) How to properly interpret the ATA provisions (ss. 58/59)b) Normative questions as to whether these legislated SORs are actually the best

in all contexts Post-Lavendar, v. advantageous to characterize issue as QMFAL, b/c then CSOR

automatically applies. But JJ and Jestadt rein in that trend. Main questions:

o How far will correctness standard extend? JJo How far will PU category in s. 58(2)(A) extend? Jestadt

JJ V SCHOOL DISTRICT 43 (2013, BCCA)

Facts Successful complainant before BC Human Rights Trib., seeks damages HRT lessens damages she is owed due to doctrine of mitigation Applicant seeks JR BCSC characterized as QMFAL, thus CSOR applies, per Lavendar. No

deference to Tribunal – remits for them to reassess damages. Tribunal appeals.

Issue What SOR applies?Held CSOR to QMLAF, but RSOR to any “extricable” issues of fact.Reasons Purpose of s. 59 was to simply SOR, but that hasn’t really worked –

issues don’t always fall w/in neat categories established in s. 59(1) Lavendar says, per ATA, CSOR applies to QMFAL – but this directly

contrasts with CL (Dunsmuir says deference is accorded to QMFAL) Distinguishes Lavendar: there were no “extricable issues of fact” Warning: courts not to be too quick to brand a question as mixed

law/fact and thus apply CSOR – court won’t have had benefit of hearing witnesses, often no record, thus hard for reviewing court to properly make findings of fact

So court narrows the category somewhat Held: If there is an extricable issue of fact involved in the “mixed”

question, the court must defer in respect of that issue.Ratio Reins in the appl’n of the CSOR. Must “parse out” questions of mixed

law and fact, and defer to any extricable questions of fact.

58(2)(A): Finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable.

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Most contentious/litigated provision in either s. 58 or s. 59 Issue: What does it mean for something to be a “finding of fact in respect of a

matter over which the tribunal has jurisdiction under a privative clause?”o Basically, how to determine jurisdiction?o Courts have taken inconsistent approaches to thiso Carpenter: Apply P&F approach to determine jurisdictiono Kerton: Courts should just focus on language of the privative clause (not

P&F approach – a few years after Carpenter). Simper, broader approach.o This approach affirmed in Jestadt

JESTADT V PERFORMING ARTS LODGE (2013, BCCA)

Facts Landlord/tenant dispute, governed by the RTA Retired actress living at Performing Arts Lodge in Vancouver Landlord terminates lease; she refuses to leave & disputes validity of

the termination clause Dispute goes to Dispute Resolution Officer, appointed per RTA He dismisses her complaint; she seeks JR of that decision Argues she signed lease under duress & DRO didn’t account for this –

argued that duress is a CL matter, outside tribunal’s jurisdictionIssue How to determine “a finding of fact in respect of a matter over which the

tribunal has jurisdiction under a privative clause”? To determine whether tirbunal’s findings are to be reviewed on CSOR or RSOR, must answer this question (i.e. is matter w/in exclusive jurisdiction under a PC?)

Held Yes – w/in jurisdiction. Thus, RSOR applies.Reasons RTA has a privative clause. Enabling statute says s. 58 ATA applies

Main issue here was whether the matter was something over which the director had exclusive jurisdiction under the privative clause

Court notes that not all questions of law will be brought under 58(2)(A) Court cites Kerton & seems to use this approach – i.e. focusing on

language of PC (tho they say P&F approach would lead to same result) Held that duress is at the core of the director’s jurisdiction over

landlord/tenant disputes – wording of PC is broad enough to cover this Purpose of RTA – regulate residential tenancies & resolve disputes. Language of Act – jurisdiction is not limited to the interpretation and

application of provisions in the Act itself. Can also include common law (i.e. duress) as part of the duties. There might be some areas of law that do not come w/in the director’s exclusive jurisdiction, but in this case the common law of contract is at the core of the director’s dispute resolution function

Is this fair? Depends on whether you’re considering it from the POV of the individual claimant, or the POV of administrative efficiency.

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Ratio To determine whether a matter is within the tribunal’s “exclusive jurisdiction under a PC”, simply look to words of privative clause to determine whether it covers the matter at issue.

SOR FOR CONSTITUTIONAL DETERMINATIONS

SOR is correctness if a tribunal is determining the constitutionality of a provision within their home statute (Dunsmuir)

Tribunals have the jurisdiction to apply the Charter, as long as they have the jurisdiction to determine questions of law

What is the SOR if an ADM is applying a provision, and the allegation is not that the particular piece of legislation is unconstitutional, but that the WAY it is being applied infringes Charter rights?

Dore definitively favoured administrative/JR approach over full Oakes analysis, but Loyola reintroduced confusion

Dore Framework (from TWU exercise): Look at the regulatory context ID specifically which decision is at issue Look at stat. objectives - usually lots of room for arg. here – narrow v. broad view

o NB: Live issue in Dore – is it the statutory provision construed broadly, or the specific rules at play? Dore didn’t address this. Argue over how broadly to construe the statutory objectives. Oakes clearly said the particular provision, not the overall statute, but Dore was silent on this

o NB: Will reasonableness always be the standard if we are determining Charter issues? Back to Dunsmuir categories.

Does decision proportionately balance stat. objectives w/ Charter right?

DORE V BARREAU DU QUEBEC (2012, SCC)

Facts Judge made disparaging comments towards Dore (lawyer) – “insolent” Dore wrote a private letter to judge – v. strong language (coward,

unjust – said he was writing form a personal POV, man to man) Barreau du Quebec – violated Article 2.03 of the Code of Ethics (that

an advocate “bear the stamp of objectivity, moderation & dignity”) In the interim, panel of judges investigated Judge Boilard’s comments,

found them “unnecessarily insulting”, merits expression of disapproval Disciplinary Council rejected Dore’s args that letter was private –

disciplined, 21 day suspension. Rejected Dore’s argument that 2.03 violated 2(b) Charter – Dore had

joined a profession where he knew his freedom of expression would be

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limited – this is in exchange for privileges conferred on lawyers Dore switched tactics – rather than saying the legislation itself was

unconstitutional, argued that the manner in which it was applied by the Disciplinary Council was unconstitutional

Appealed Council’s decision to Tribunal, then Superior Court of Quebec, then QCA, then SCC.

Issue What SOR applies when reviewing administrative decisions for compliance w/ Charter values?

Held Oakes not workable in this context. Admin law approach prevails.Reasons Central issue:

Unclear jurisprudence – some applied Oakes, others admin approacheso Slaight – court applied Oakes analysiso Baker/CUPE – move away from this. Charter values infuse

admin law – ADMS empowered to adjudicate these valueso Dunsmuir – JR should be guided by deferenceo Conway – ADMs have authority to apply Charter

Two SOR Options: o Full Oakes test – formalistic (Slaight)o Admin law/JR analysis to assess whether ADM took sufficient

account of Charter values – Baker, TWU, etc. Concerns w/ Oakes : If we go strait to Oakes, we lose rich source of

thought & experience in admin lawo E.g. could simply bypass Dunsmuir by arguing Charter breach,

go strait to CSOR, subvert a lot of earlier work done by Courto Protects Charter rights, but undermines robust conception of

admin lawo Would allow courts to start “retrying” admin decisions that

otherwise would be subject to RSORo “Awkward fit” in admin context – who has the onus?o Clearly designed to test legislation – less suited to a

discretionary decision in an admin context (esp. dealing w/ individual rights)

Admin/JR Approach: o Deeper conception of admin law – recognizes ADMs are

empowered to consider Charter valueso Oakes analysis unnecessary, since ADMs are always required

to protect Charter valueso Admin decisions apply to an INDIVIDUAL, thus are fact-

specific & attract deference (unlike constitutionality of a law, which doesn’t necessarily relate to a particular set of facts)

o Consistent w/ nature of discretionary d/making CSOR/RSOR: CSOR clearly applies when tribunal is interpreting the

constitutionality of a law. But RSOR will apply when assessing whether ADM sufficiently took account of Charter values in

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discretionary decision.o Deference is not diminished simply b/c decision has Charter

dimension – ADM likely have expertise in applying Charter to a specific set of facts

o ADMs balancing many considerations including Charter valueso Thus ADMs have necessary specialized expertise &

discretionary power in the area where Charter values apply Test : In assessing the impact of the relevant Charter protection &

given nature of decision and statutory and factual context, does the decision reflect a proportionate balancing of Charter protections?

o Balances statutory objectives with Charter valueso Asks how Charter value can best be protected, proportionately

based on statutory objectiveso Thus incorporates main features of Oakes test: balance and

proportionality – basically a pared down Oakes test Application:

o Must balance importance of open criticism of public institutions w/ need to ensure civility in the profession

o Fact-dependent and discretionary exerciseo Dore went too far - disciplinary decision was not unreasonable

Criticisms Some say, Oakes allows a range of minimally impairing alternatives, and the same thing is happening here – so it’s okay

Others say, Dore risks watering down protection of Charter rights! No need to show that the objective is pressing/substantial (tho, counter-

arg is that this is rarely an issue in the Oakes test – courts defer to leg) Dore looks fuzzy, unclear, wishy-washy – whereas Oakes test is very

clear, laid out step-by-step, with attendant requirements/rationales Positive reception overall

Ratio Court favours JR approach over Oakes test when assessing whether ADM sufficiently took Charter values into consideration. The RSOR in this case will centre on proportionality – i.e. did the decision interfere w/ the Charter value no more than necessary, given the stat. objectives

LOYOLA V QUEBEC (2015, SCC)

Facts QC Minister of Education denies Catholic high school an exemption from province’s mandatory Ethics and Religion Curriculum (ERC)

ERC had become mandatory, replacing religious instruction Minister had discretionary power to exempt this requirement, if there

was a program that the Minister deemed to be equivalent Loyola (Jesuit institution) applies for exemption, was denied

Reasons 4 judges applied the Dore framework 3 judges applied watered down Oakes test: govt bears burden of

showing that the denial of exemption limited Loyola’s frights no more

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than necessary.Ratio Casts doubt on the idea that, in Dore, the court clearly chose the JR

approach to constitutional questions. Panel of 7, and 3 chose Oakes – casts doubt on future of the Dore framework.

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