important admin cases

These case notes have been compiled by Ahmed S. Waseem (the ‘author’). These notes are free of cost, and any distribution of these notes for monetary gain must be reported to the author at [email protected]. Appropriate action would be taken against those who would try and sell these notes.


ORIGINS OF PROCEDURAL FAIRNESS

1) Nicholson’s case: There should be a measure of due process and fairness irrespective of

the delegate we are talking about, i.e. admin, quasijudicial or judicial.

2) Martineau: Confirms the above-stated rule and further states that public bodies

exercising legislative functions may not be amenable to judicial supervision.

3) Cardinal: PFR applies to every public body which is not making a legislative decision,

and which affects the rights, interests and privileges of individuals, so if the decision is

legislative the PFR does not apply.

4) Knight’s case: 1st actual trigger: 3 Prong Test: This case gives a distinction between

legislative powers and admin powers, and indicates which legislative decisions the duty

of PFR not applies to. Legislation can bar Procedural fairness. 1st Prong: PFR does not

necessarily apply to preliminary decisions. However, delegates performing

investigations or recommendations may be an exception and here PFR may apply at

an early stage. This was confirmed in the case of Re Abel. Here the Board was merely

an advisor to the Cabinet, but PFR applied, also applies where there is a close connection

between the recommendations and the person’s interest at stake, i.e. where the

recommendations effectively determine the outcome. Also, in the case of Dairy

Producers vs. Sask it was held that the investigations here were too far removed from the

ultimate outcome. Too many steps were removed from the actual decision affecting

rights. 2nd

Prong: Relationship existing between the legislative body and the individual.

We are concerned with public law action. Was the decision making made pursuant to a

public law source, a statute, a regulation, Royal prerogative? Admin law applies to those

who exercise these powers. However, in relation to employment cases look at the case of

Dunsmuir as KNIGHT is no longer good law apart from discussing Prongs. It says the

terms and conditions of an employment contract and the relevant statutes and Acts

would govern the employment. 3rd

Prong: Effect of the decision on an individual’s

rights, privileges, interests, property (May consult the case of Hutfield).

5) Old St. Boniface: TEST FOR LEGITIMATE EXPECTATION (2nd

Trigger) The

opportunity to make representations in circumstances where there would be otherwise no

opportunity because that opportunity was promised to them. This may also be done by

conduct or where the party is led to believe that the admin body won’t proceed without

first consulting them. Statute may preclude this promise and Common law may not

intervene.

6) Libbey (1999): The test for L.E was illustrated more clearly and the Ontario Court of

Appeal stated that where there is detrimental reliance and the person relies on that

undertaking to his detriment. A practice or conduct may also give rise to L.E. The

language giving rise to L.E. must be clear, unambiguous and unqualified. The

doctrine of L.E. does not give rise to SUBSTANTIVE RIGHTS. This means that the

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doctrine is about procedural fairness and not about substantive rights. Has to do with

process, eg. Oral hearing, consultation, right to counsel, time limit etc.

7) Mount Sinai Hospital: for the abovementioned principle. Promises that go to substance

are not covered. If there are doubts whether an entitlement is procedural or substantive,

one must regard it as procedural. This case also introduces in the admin realm the

doctrine of PUBLIC PROMISSORY ESTOPPEL in cases of substantive rights.

Detrimental reliance must be there.

8) AG vs Mavi (2011): SCC refused to apply detrimental reliance, therefore cases that

talk of detrimental reliance are no longer good law in the wake of Mavi. The language

giving rise to L.E. must be clear, unambiguous and unqualified. Promises that go to

substance are not covered.

EXCEPTIONS TO COMMON LAW PFR

1) Martineau: Judge Dikson commented that a purely ministerial decision based on

broad policy grounds would typically afford the individual no procedural protection.

Any attack on such a decision must be based on abuse of discretion. These functions are

tantamount to the types of legislative functions that these bodies perform. So Substantive

Judicial Review is the only attack available in such situations where there is abuse of

discretion.

2) Canada (AG) vs. Inuit Tapirisat of Canada: Concerns a tariff regulation process. See

notes for facts. There was a statutory right of appeal. No hearing was awarded. SCC

stated that Cabinet’s decision could only be reviewed on the issues of exceeding

jurisdiction. No Procedural fairness existed in such a case. It must be noted that the

application of this case was quite general as it applied to one actor (BELL Canada) and

that in a Monopoly Sector. So it bore more resemblance to an adjudication decision

than legislative. The fact scenario here wasn’t suitable.

3) NAPO (1977): National Anti-Poverty Organisation: Almost same facts as above case

(S.64 and CRTC involved). Issue here was whether the Cabinet’s decision could be

quashed due to an error of PFR? NAPO was not given an opportunity to be heard.

Trial judge distinguished NAPO with INUIT’s case and stated that here the decision

involved a handful of entities. These were in fact two BELL Canada companies. The

COA did not dismiss the distinction. This was a matter of private convenience as opposed

to INUIT which was a matter of public convenience. The court concluded that the

decision was legislative and therefore no PFR exists.

4) Canadian Ship Owners Association (1995): The more personal the nature of the

decision, the more it would resemble an adjudicative decision and the decision would

lose its legislative nature.





5) Canadian Association of Regulated Importers: A legislative decision in nature would

set out GENERAL RULES which would apply to a large number of people. This is

counterpose to a decision affecting one single individual.

6) Homex Realty: The more general the rule, the more likely it would be viewed as

legislative, but if it applies to an individual or a handful of people (specific), it would

be viewed as administrative. Here the developer did not carry out certain functions

which were agreed upon by him and the Municipality. M enacted bylaws disallowing H

to use certain features. Another bylaw was passed decertifying the subdivision plan. H

said these bylaws were against natural justice and violated PFR. SCC held that the CL

PFR would supply emission of the legislature and afford the subject an opportunity of

being heard. The bylaw looked like exercise of legislative powers, however looks

weren’t enough. The bylaw was enacted by M to go after H and he was a target.

Decision was therefore specific in nature as it applied to a single individual who was

targeted so PFR applies.

7) Thamotharem: (REFUGEE CASE) Agency Guidelines; T, a Tamil citizen’s refugee

application was denied. T claimed that Guideline 7 deprived refuges of their right to a

fair hearing. Guidelines may be implemented by Agencies or Admin actors to ensure

that all cases receive the same treatment. No statutory authority is required to make these

guidelines. However, guidelines must not be construed as law and applied in that

manner. This fetters an admin actor’s right to exercise discretion. This can only be

done by exercise of a statutory power to create HARD LAW. Note that where guidelines

require cabinet’s approval, it may become mandatory and take shape of delegated

legislation. But where a single delegate has the power to make rules and guidelines both,

that require cabinet’s approval, it may be the case that the legislature did not intend to

give a binding effect to the guidelines that it intended to give to the rules.

CHARTER AND BILL OF RIGHTS

Life, liberty and security of person

S.7. Everyone has the right to life, liberty and security of the person and the right not to be

deprived thereof except in accordance with the principles of fundamental justice.

1) Irwin Toy’s case: The word “Everyone” does not include companies.

2) Howard vs. Stoney Mountain: Penitentiary case, disciplinary offences, risked losing earned

remission. Request to Counsel was denied in this case. So, does S7 term “Fundamental Justice”

include the right to counsel, and would a right to counsel apply in prison disciplinary

proceedings? COA stated that the Right to be heard at common law does not include a right

to Counsel. So, does S.7 change that? Yes, where s.7 applies, and where life. Liberty and





security of a person (inmate) are at stake, such as remission benefits in this case that were gained

from good behaviour. The court in assessing S.1 justification observed that there is no absolute

right to Counsel in all cases U/S 7. One must look at the circumstances in each case.

3) Gough: Prison disciplinary proceedings; s.7 and disclosure.

3) Singh vs Canada: This was a Refugee case. Determination of refugee status. The process was

entirely documentary (written) and no oral hearing was given. The Statute itself precluded an

oral hearing and required a documentary procedure. So, CL PFR could not be invoked. So

we will have to see if S.7. applies. So there has to be deprivation of life, liberty, or security of a

person. Prospect of being deported, facing TORTURE and other persecutions all constitute

deprivation for the purposes of security of a person. So the phrase security of a person, says

Justice Wilson encompasses freedom from threat of punishment or suffering. It does not matter if

Canadian Govt itself tortures the individual. It is sufficient that the Canadian Govt would put in

place a process that would eventually put that person to a risk of being punished or tortured. This

is sufficient to trigger s7. So once s.7 is triggered, what about fundamental justice? According

to Justice Wilson, at the very least it includes a notion of PFR. However, it does not always

require oral hearings, nor does s.7import a guarantee with it that an oral hearing would be

awarded. Sometimes written submissions are adequate, such as in the case of BAKER. So,

when does s.7 REQUIRE AN ORAL HEARING? Where serious issues as to the Credibility

of the witness are involved, in other words where the delegate has to weigh credibility to make a

decision, which can’t be done solely on the basis of written submissions as per Wilson. So, in

this case, the court concluded that s.7 was violated because there was no oral hearing. S.1

justification was not adequate and the Govt failed to demonstrate a reasonable limit. The

remedy awarded was that the appellant was entitled to an oral hearing. The Act was declared

unconstitutional.

NOTE: the above case demonstrates that even where the statute provides for a procedure,

and if that procedure violates a s7 right, then the courts would substitute the procedure

provided by statute with a more suitable and fair procedure.

4) DEHGHANI (1993) 1.S.C.R: Mr. D was a citizen of Iran and arrived in Canada. Upon entry

he claims Refugee status. Issue here was whether he could get an oral hearing at the

Preliminary stage of his refugee assessment. The court stated, not necessarily. The court in this

case emphasized on the fact that an oral hearing at this stage would be imposing a burden on

the delegate and would impair or obstruct the delegate from exercising his/her statutory

functions. So even where a charter right is engaged, there is no absolute guarantee of an

oral hearing.

5) Blencoe’s case: Security of a person in relation to Psychological Stress.

6) Wilson’s case: Limitations placed on an employee to practice his/her regulated profession

may amount to a limit on liberty.

CANADIAN BILL OF RIGHTS – Confined to Federal Level of Govt.





Recognition and declaration of rights and freedoms

1. It is hereby recognized and declared that in Canada there have existed and shall continue to

exist without discrimination by reason of race, national origin, colour, religion or sex, the

following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of

property, and the right not to be deprived thereof except by due process of law;

2 (e): deprive a person of the right to a fair hearing in accordance with the principles of

fundamental justice for the determination of his rights and obligations.

1) Smith Kline: s.1(a) Due process definition: Due process requires in addition to a fair

hearing a whole process which provides of making of a decision authorised by law a

means of rationally relating the facts in a case to criteria legally prescribed by the

Parliament.

2) Singh’s case: The really strong interest in the outcome of the case was sufficient to

trigger application of s.2(e) of BORs. Look at the nature of the legal rights at issue and

the severity of the consequences to the individual concerned.

3) Central Cottage: Depends on a case to case basis.

CONTENT OF PFR: Audi Alteram Partem (RIGHT TO BE HEARD)

1) Martineau: PFR and its content would vary according to each case. Principle of natural

justice is that every individual must be given a fair opportunity to be heard.

2) Dehghani’s case: The procedural obligations must not be such to frustrate a delegate’s

statutory obligations. Parliament’s wishes to carry out a procedure in a certain manner

must be given regard by the court.

3) BAKER VS CANADA: (I) Lays down the test for quantum of PFR. Content of the PFR

is variable and depends on a case to case basis.(II) Lists specific variable: (a) Nature of

the decision being made, the more court like, the more procedural protection. (b)

Nature of the statutory scheme and the terms of the statute pursuant to which the

body operates. SCC states that greater protection would be required where there is no

appeal provided by the statute and when the decision is determinative of the issues and

any further requests cannot be submitted. (c) The importance of the decision to the

individual or individuals affected. SCC notes that the more important the decision to

the lines of those affected and the greater the impact on the person, the more stringent the

procedural protections that will be mandated. (d) LEGITIMATE EXPECTATIONS of

the person challenging the decision. If one has a L.E and if that L.E is triggered (same

criteria must be followed i.e. triggers above), the content flows from the nature of the

promise, conduct or belief. It is a L.E. that flows from a promise or undertaking. It must

be noted that L.E. would not lead to a substantive outcome. If a substantive promise is

made however, and a claimant is led into believing that a certain outcome would be





reached on his case, then fairness principles would require more procedural protection.

So the presence of a substantive promise may boost up the content of PFR. (e) The

choice of procedure made by the agency itself. We see here an element of deference.

The SCC is concerned with the choices made by the agency itself. Weight must be given

to the choices made by that agency itself and the institutional constraints on that agency.

So, this supports the notion that an agency should not be burdened with procedural

constraints that would impede in its functions as in DEHGHANI.

4) Suresh vs Canada: TORTURE AND NATURE OF INTEREST 5) Central Ontario Coalition (1984): When NOTICE is required and what sort of notice

has to be given. The Ontario Hydro Plan included areas that were not part of Western

Ontario and so all the people in town who were affected by the new plan found out about

the ultimate decision and these folk went to the divisional court to quash the decision of

the Regulatory Board that approved the plan. The court construed that the Notice was

entirely inadequate for several reasons: (1) The Notice did not meet the requirements of

the notice required under the Act that governs the Ontario Hydro hearings. This was a

statutory objection, and therefore the Notice was contrary to what the Statute required.

(2) The Notice also did not meet the requirements of Common Law Procedural Fairness,

because the property rights of the members of the public were affected, and therefore

they were entitled to PFR at common law, and the notice was in adequate. The TEST

whether the notice was proper is an objective one. Was the notice adequate from the point

of view of a reasonable person? So the notice given by Ontario Hydro was not reasonable

since it referred to South Western Ontario and the residents who brought the action did

not believe that they were part of South Western Ontario. The geographical description

was therefore too vague, which wasn’t supported by Maps even. Thus the decision made

by the regulatory board was quashed.

6) CIBA-Geigy (1994): DISCLOSURE: Consideration must be given to the duties that a

board exercises in public interest and the level of disclosure requested. One must not

impose so many restrictions to obstruct the ability of the tribunal to get the job done.

Deference must be shown to the board that performs economic regulatory functions.

Admin efficiency is given consideration.

7) Charkaoui : In some cases the level of disclosure might even reach criminal standards

(i.e. very high). This was a s.7 decision. The SCC held that limitations on access to

information in this case were justified on National Security grounds.

8) Blencoe: The concept of DELAY as an abuse of process was canvassed by the SCC in

this case. The SCC was to decide whether the delay had produced an unfair hearing.

Prejudice by an unfair hearing was not established on facts in this case. However, SCC

did realise that there could be situations where harm of this sort could arise. So where

can abuse of process arise due to extended delay? SCC suggested that unacceptable

delays may still amount to abuse of process even where the fairness of proceedings

itself has not been compromised. Instances where a person has been affected so much

that the system itself is brought into disrepute. So in order to amount abuse the delay

must have been unreasonable or inordinate and must taint the very proceedings. The

delay must be causally linked to the oppression itself in order to attack fairness.

9) BAKER VS CANADA: ORAL HEARING: Must look at this case to ascertain what the

quantum of procedural entitlements is. However, in this case an oral hearing was denied





and it was held that the opportunity to submit written reasons were sufficient. This case

did give some indicators where an oral hearing might be allowed: (i) Oral hearings are

required where the credibility of a person becomes a factor in the outcome, e.g. serious

reputational issues at stake, for instance where one could be stripped of a license to

practice law or medicine (Regulated Professions), or where everything turns on

believing a witness. (ii) The affected person’s level of education or lack of familiarity

with the proceedings that affects his or her ability to make written submissions. So

naturally if a person has limited education and cannot properly express himself through

written submissions, then an oral hearing may be warranted. (iii) General observation: An

oral hearing may be awarded where a Charter or Bill of Rights section has been

engaged. However, an oral hearing is not an absolute right even under the Charter or the

Bill, but jurisprudence has always required an oral hearing where such a right is engaged.

10) Men’s Clothing Manufacturing: COUNSEL: is not a guaranteed right. However,

counsel may be permitted where there is a legal complexity of the issue before the

tribunal, the more complex the issue the more likely that the tribunal would require

counsel. The nature and complexity of the facts were an issue in this case. (Also see

Howard v Stoney above).

11) Inisfil: CROSS EXAMINATION: Is not an absolute right, no breach of PFR if not

allowed by delegate. All that is required is a fair opportunity to contest the prejudicial

decision or statement. It is not a necessary ingredient of natural justice that one who

has submitted relevant evidence in writing or ex parte must also be produced for cross

examination provided that the evidence is disclosed and adequate opportunity has been

afforded to the individual to prepare a reply to it. So generally cross examination does

occur in adversarial proceedings that involve conflicting evidence where credibility is at

issue. In such situations cross examination may only be the way through which truth

could be extracted from contradicting evidence.

12) BOND’s case: EVIDENCE: Admissibility of evidence depends on whether it is relevant.

To determine relevance one looks at the Notice and other documents that describe the

nature and the subject matter of the proceedings, and evidence that falls within the

parameters of these documents is presumptively relevant, thus admissible. Weight; not all

evidence is of equal probative value. Delegates must assess whether the evidence is

reliable and persuasive. In fact, delegates are permitted to omit things like hearsay.

Hearsay evidence is generally admissible in administrative proceedings. HOWEVER

where the delegates decision is a serious one having serious consequences on the person

the decision relates to, a decision that is based entirely on hearsay may in fact rise to a

level where it violates procedural fairness.

13) BAKER VS CANADA: DUTY TO GIVE REASONS (For PFR): There was no general

obligation either under the Common Law or s.7 Charter to give reasons. However, this

case changed the position and provides indications where reasons might be required. It

must however be noted that the right to reasons is not an absolute one even after this case.

Indicators are: (i) The decision has an important significant affect on the individual

OR/AND (ii) Where there is a statutory right of appeal the duty of PFR would require a

written explanation for the decision.





14) DUNSMUIR: DUTY TO GIVE REASONS (In Substantive Review cases): The SCC

discovered the adequacy of reasons in deciding whether a decision was substantially

reasonable or not.

15) Newfoundland Nurses case: There was a little uncertainty when it came to drawing a

distinction between providing reasons for PFR purpose on one hand and substantive

review on the other. In this case the SCC decided that for PFR the question really is; is

there an obligation to provide reasons and do those reasons exist, and the adequacy of

the reasons then becomes a consideration when we examine the nature of the decision

itself in a substantive review analysis, whether the outcome/decision was reasonable or

not.

16) Patel v Canada (1998): HE OR HE WHO HEARS MUST DECIDE: A delegate must

not sub-delegate. Application of Permanent Residence by the Applicant, but his son was

deleted from the application because the visa officer considered that he was not a

dependant as he was not a genuine student. The original visa officer was then transferred

by the time the matter was sent back for reconsideration. The new visa officer reviewed

the same file which included the notes of the previous officer, and the new officer also

dismissed the reapplication. So did he/she or hear decide? The court concluded that

reliance on the interview notes of the former visa officer tainted the whole decision. It

was hard, even impossible to determine the “extent of influence” of the old interview

notes on the new final decision. So the officer who heard did not in fact decide. This was

a breach of PFR. The decision was set aside and the issue sent back for redetermination.

17) Ellis Don: The doctrine of he/she who decides (Applies to Bias as well) gets even more

complex with institutional decision making. This doctrine does not prevent members of

a panel who conducted a hearing from informally discussing policy and legal matters that

arise with other members who did not hear the case. While these other members may be

consulted, they must not participate in finding facts or in the decision making process.

This is a task solely to be performed by delegates who heard the case.

18) Tremblay’s case: (Applies to Bias as well, see below) Communal decision making by

one of the large plenary tribunals; the president of the tribunal who was a judge was

essentially in a position to lean on the panel and get them to change a draft decision. This

goes against the doctrine of he/she who hears and is also a manifestation of bias.

NEMO JUDEX: UNBIASED DECISION MAKER (either s.7 or CL PFR must be

triggered before)

1) National Energy Board: Does personal bias require actual bias? NO! In this case, an

issue at part was membership of the panel hearing the application, to the Board. The

grounds for objection was reasonable apprehension of bias on part of the chair of the

Board, because prior to the appointment to the Board the chair was a director at a

certain crown corporation and the Corporation at some level had been involved in

feasibility studies into the movement of Arctic Gas into Southern Markets. The Chair

was an active participant in the Corp’s study group being both a member and an officer

of some of its important committees. So, the issue was whether the Chair could be





disqualified in being a member of the panel that decided the application for the pipeline?

The TEST of a reasonable apprehension of bias, what would an informed person,

viewing the matter realistically and practically – and having thought the matter

through – conclude? There were two judgments in this case – the dissenting opinion

was that there was no reasonable apprehension of Bias, and they gave this test. The

majority while agreeing with the test of bias concluded that there was in fact a

reasonable apprehension of bias in the case, and therefore the chair was disqualified.

2) Old St Boniface: PREJUDGMENT: The test for bias would vary with factual contexts,

just like audi alteram partem. Justice Sopinka said that a flexible approach would have to

be applied for the test for disqualifying bias, because on the facts in that case the decision

maker was a political actor, namely a city councillor, and the applicable test for such a

political actor could not be as demanding as the test applied in other circumstances. So

the party alleging prejudgement in this case had to establish that the Councillor had a

CLOSED MIND and that he would not have been persuaded and was otherwise

immovable in his opinion. Situations of this sort may arise in elections, where a political

actor may express his views during campaign, does not mean that he exhibits

prejudgment and his opinions would not change. Therefore, a tender approach must be

applied to such persons who are exercising their role in office. This case establishes that

there is a potential for, in the test for reasonable apprehension of bias, a spectrum at

least in so far as prejudgment is concerned, and this view is affirmed at least in part in

the following case.

3) Newfoundland Telephone: The above approach was applied here in different

circumstances. A distinction was drawn between the nature of the decision that what sort

of decision making is involved and who is making that decision. Focus on the concept of

adjudicative decision making on one hand and policy decision making on the other. In the

present case, comments were made during investigations and before the hearing as well.

The court said these were fine. However, comments that were made 3 days after the

hearing was ordered were held to give rise to prejudgment and thus a reasonable

apprehension of bias. 4) Energy Probe: CONFLICT OF INTEREST (Pecuniary or material bias): Can be

either direct or indirect. Complex to determine in cases of indirect interest, like this one.

The court concluded that a person who seems to have a fairly direct pecuniary interest, in

fact that interest was too far removed to give rise to conflict of interest in the

disqualifying bias. No direct pecuniary interest was found in this case.

5) EA Manning: Doctrine of CORPORATE TAINT: Failed here. The concept of

corporate taint has not been well received by the Courts. The Ontario Court of Appeal in

this case stated that, an entire broadly based Board is tainted by the participation of

prior members in a prior decision that the court decided that it was inappropriate. In

other words, can this Board be forever precluded from rendering a decision in relation to

matters that a prior iteration of this Board had already considered and in fact decided

adversely to the applicant in this case? (The same board members were hearing a

matter against the same applicant that they had decided against before). The Court

of Appeal said, NO! There is no such thing as corporate taint. You can’t forever preclude

an important administrative tribunal (securities commission) from even rendering any

further decisions in relation to this particular applicant because in some prior case they





had found against the applicant. There is no Corporate Taint that would preclude the

Commission from performing their statutory duties.

6) Tremblay v Quebec: (Also applies to he or she who hears decides; see above) This

case is comparable with EA MANNING. Here the members of the panel are not in any

way compelled or induced to change their views or their views were not altered in

anyway by the discussions that were undertook by the plenary body of the Board as a

whole, such consultations could be allowed. So, discussions of policy issues that the

Board faced as a whole were appropriate, but discussions of factual specifics of

individual cases would give rise to concerns that he/she who heard the case did not

decide the case, and a reasonable apprehension of bias. This case was different

because consultation was compulsory, it was much more formal, essence of forced

consultation between the members of the Board and this compulsory and formal system

of consultation entrenched on the independence of those panels that have heard cases. It

gave rise to as a consequence a reasonable apprehension of bias. This was because

minutes were taken, attendance was taken, there were votes trying to arrive at a

consensus, the president of the commission had the capacity to intervene quite directly in

order to build this consensus, all of which pointed to a system in which peer pressure

was exercised vis a vis those who actually heard the case. That was enough to give rise to

a reasonable apprehension of bias. This case isn’t truly corporate taint of the sort of issue

at EA MANNING but it amounts to a corporate arrangement where an internal

institutional system which applied in individual cases gave rise to doubt about the

integrity of the decision making process.

7) Quebec v Regie: STRUCTURAL LACK OF INDEPENDENCE: Here the Court

quashed the decision of a liquor licensing body because the functions performed by the

officials in that licensing body OVERLAPPED too substantially. Staff lawyers who

made submissions to the Regie might then advise it regarding the same matters. Directors

meanwhile could initiate a review of a specific case, decide to hold a hearing and then

participate in the actual decision making process. Decision maker was performing

more than one function in a given case or where tribunal staff are employed in a way

that gives rise to a concern about bias, for example the staff participates in all stages of

the investigation through to advising on a decision or where a party has an institutional

role in the proceeding that might be viewed as biasing the outcome, e.g. where an

investigative body decides whether a complaint should proceed and that same

investigative body is also responsible for selecting a decision making panel. This case

along with the case of Matsqui gives an idea of how elements of Judicial Independence,

i.e. Security of Tenure, financial independence and administrative independence might

apply in an admin setting. The test for Judicial Independence must be applied in the light

of the functions being performed by the particular tribunal. The above three elements

would depend on the nature of the tribunal, the interest at stake and other indices of

independence such as oaths of office.

8) Ocean Port Hotel v British Columbia: If a tribunal’s parameters are defined by Statute

and the structure is objectionable but statutorily mandated, there is no attack that one may

launch on the structural lack of independence ground unless a s.7 charter or Bill right

has been triggered. In this case the Court held that the Liquor Appeal Board lacked

institutional independence because its members lacked security of tenure despite explicit





legislative authority for “at pleasure appointments”. The SCC rejected this approach of

the Court and gave precedence to the Statute that created the Board.

STANDARD OF REVIEW (SUBSTANTIVE GROUNDS i.e. Errors of Law,

Fact, Discretion)

1) Crevier: The basis of Judicial Review is entrenched in the Constitution and even the most

robust privative clause cannot exclude it. This was also stated in Para 27 Dunsmuir.

This case deals with issues of jurisdiction and places limits on the legislature to create

s.96 courts.

2) DUNSMUIR (2008): (Also see for reference to Employment cases, above in Knight):

This case is current law. However, it does not cure all questions of Standard of Review.

This case introduced a single concept of Reasonableness (para 46 and 47). The Court at

Para 51 states where correctness would apply and where the standard of reasonableness

applies. This is the Simple Standard of Review Test. This case creates a set of

DEFAULTS. (1) Where there is a Privative Clause Courts are likely to show deference

to the process and Reasonableness would apply. (2) Where there are Questions of

mixed facts and law (intertwined) the courts are likely to show deference and apply the

standard of Reasonableness. (3) Where the tribunal is assessing a question of Fact courts

are likely to show deference and apply the standard of Reasonableness. (4) Where the

delegate is exercising a considerable amount of Discretion, or where the statute awards

discretion to the delegate, courts are likely to show deference and apply the standard of

Reasonableness. (5) Where the Tribunal is assessing a Question of Policy courts are

likely to show deference and apply the standard of Reasonableness. (6) Where the

area/matter in question lies within the expertise of the tribunal courts are likely to show

deference and apply the standard of Reasonableness. (7) Lastly, where the Tribunal is

interpreting its own home Statute (although these are questions of law but must fall

into the tribunals specialised area or closely related to functions e.g. definitions of certain

words) courts are likely to show deference and apply the standard of Reasonableness.

All of these defaults were later discussed and applied in the case of Smith vs. Alliance

Pipeline (2011). Furthermore, CORRECTNESS applies where: (1) A Question of Law

is involved that is of central importance to the legal system and outside the expertise of

the tribunal, (2) Determination of True Q’s of Jurisdiction, (whether the statutory

authority allows the tribunal to proceed with the matter) and (3) Constitutional

Questions e,g, Charter rights or division of powers. The court further stated that, if an

issue fell in one of these defaults then no further analysis had no be undertaken.

However, where a solution was not obvious, one may still have to conduct the

Pragmative Approach Analysis. The factors that one must consider in conducing this

analysis are (1) the presence or absence of a privative clause, (2) the purpose of the

tribunal as determined by interpretation of enabling legislation, (3) The nature of the Q

at issue, and (4) The Expertise of the tribunal. The analysis must be contextual and based

on these four factors.





So according to this case, one must first look at any prior jurisprudence, and if that

does not give an answer, one must look to the defaults, and if an answer is not found

even then, one must conduct the pragmatic and functional approach analysis and

then conclude whether correctness applies or reasonableness.

3) Khosa: Certain Statutes may still state the applicable standard of review as Patent

Reasonableness so in those cases would the court regard this now dead concept.

4) Dore (2012): SITUATIONS OF CONFLICT: Where there is a Ministerial Decision

(Deference, Reasonableness) and the question to be decided is a Constitutional

Question (Correctness, no deference)? This case suggests that a Court must accord

Deference to the Minister’s decision. The reason being that the exercise of discretion by

an administrative decision maker operating with an eye to the governing statute and the

decision maker is trying to determine what the Constitutional requirements are that might

affect that exercise of discretion, we will review that decision under a Reasonableness

Standard. In such a case there is no need to conduct a separate s.1 analysis since

reasonableness has been automatically assessed.

5) Newfoundland Nurses: This case draws a distinction between reasons required in PFR

and under Substantive Review. Reasonable here means that the reasons do in fact or in

principle support the conclusion reached. That is even if the reasons given do not wholly

adequately support the decision, the Court must first seek to supplement the reasons

before it seeks to subvert them. If a tribunal has expertise in a case, the decision must be

construed as correct even if the reasons provided are a bit defective. So the Court states

that the inadequacy of the reasons on the face do not hold the decision unreasonable in

substantive review if the court can conceive of alternative reasons or explanations why

that decision was arrived at.

STANDING

1) Finlay v Canada: PUBLIC INTEREST STANDING: (Declaration and Injunction;

Remedies): Public interest standing is a matter of considerable judicial discretion. This

case follows the same tests as applied in the cases below.

2) Canadian Council of Churches: TEST for Public Interest Standing was laid down in

this case. When Public Interest Standing is sought, consideration must be given to (1)

there is a serious issue raised as to the invalidity of legislation in question? (2) Has it

been established if the plaintiff is directly affected by the legislation or if not does the

plaintiff have a genuine interest in its validity? (3) Is there another effective way to

bring the action before the Court? This was a REGUFEE case and the challenged

legislation directly affected all refugee claimants. Each one of them had a standing to

initiate a constitutional challenge. It was also observed by the Court that refugee

claimants had in fact in the past challenged the legislation when their rights were

affected. Therefore, there were other reasonable methods of brining the matter before the

Court. The granting of public interest standing is not required when on the balance of





probabilities; it can be shown that the measure will be subject to attack by a private

litigant.

3) Borowski: Conditions that a plaintiff must satisfy in order to be granted standing.

4) Virend v Alberta: Virend and 3 gay organisations challenged a legislation for omission of

sexual orientation under s15 of the Charter. They did not confine their challenge to the

employment provisions of the Act but sought to raise the issue generally in relation to all

provisions in the Act spelling out the proscribed species of discrimination. The test laid

down in Canadian Council of Churches was applied here and the court said that there

was a serious issue of constitutional validity raised, Virend and the 3 organisations had a

genuine and a valid interest in the provisions they sought to challenge and in fact they

had a direct interest in the exclusion of sexual orientation. Finally, in relation to the last

aspect, the court stated that the only other way the issue could be tried before the court

with respect to the other sections would be to wait until someone is discriminated against

on those grounds and challenge the validity of the provision in each appropriate case.

This would not only be wasteful of judicial resources but also unfair in that it would

impose burdens of delay, cost, and personal vulnerability to discrimination for the

individuals involved in the eventual cases.

5) Harris v Canada: Action against MINISTER: Finlay (above) was applied to a

Minister’s action of providing another tax payer with preferential treatment on the basis

of holding an ulterior motive.

REMEDIES

1) Homex Realty: Misconduct of the Applicant: Homex’s illicit dealings with the

Atkinson village forced the court to deny the issuance of the order to Judicial Review.

2) Harelkin v University of Regina: Student applied for judicial review remedies of

mandamus and certiorari rather than pursuing the available Right of Appeal to the

committee of the university senate. The student argued that the alternative remedy was

not adequate in that he would have been denied a hearing at the senate committee. The

Court said that he should not assume that a hearing would be denied. The court held that

the alternative remedy in the circumstances was adequate and in the court’s opinion more

convenient in terms of costs, expenditure and delay.

3) Matsqui Indian Band: An appellant must exhaust all his alternative remedies before

commencing Judicial Review.

4) Howe v Institute of Chartered Accountants: PREMATURITY: The application in this

case was premature and it was held that the Courts should only interfere with

preliminary rulings made by an admin tribunal where the tribunal never had jurisdiction

or has irretrievably lost it. Further, a Court must not encourage applications for JR in

preliminary or interlocutory matters as long as the appellant has an adequate right of

appeal.

5) RJR v McDonald: TEST for Injunctions: Interlocutory Injunctions; Until a certain

matter is pending. The test devised by the Courts was that there is a serious





issue/question to be tried, which is not frivolous or vexatious, and no one is harmed. One

must weigh the harm done to both the parties on a balance of convenience.

6) Roncarelli v. Duplessis: SEEKING DAMAGES COLLATERALLY (Jehovah

Witness): this case illustrates extreme violations of administrative precepts. This was not

an administrative law case in reality and was actually a tort case. This was an action for

damages. It was a lawsuit brought for compensation based on exercise of statutory

powers by Mr. Duplessis. Tort of misfeasance of public authority by a delegate, that tort

remains alive and well.

7) Odhavji v Woodhouse: Tort of misfeasance was revived in this case. O was fatally shot

by police. Investigation was commenced by the SIU, and certain procedures that were to

be followed in that investigation were not in fact followed. So, O’s estate commenced a

law suit, and the defendants (police) tried to throw the matter out of court, stating there

was no cause of action. The SCC stated that there was a tort of misfeasance in the public

office. There was a failure on the public officer to perform a statutory duty which

constituted a misfeasance in public office in extreme cases. So, this is an intentional tort

requiring the individual deliberately and unlawfully conduct their public functions

with awareness that their conduct is unlawful and likely to injure the plaintiff and if

the plaintiff can prove this then that creates the required nexus between the actions of the

delegate and the litigants bringing the law suit.

8) Canada (AG) v Telezone 2010: One issue in the Federal Courts was the fact that

whether you had to first proceed with Judicial Review before you sue for damages? The

Supreme Court in this case indicated that there is no need to proceed with Judicial

Review at federal Court before you bring a civil cause of action for behaviour that is

cognizable both as a violation of administrative law and also as a civil wrong.



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