ADMINISTRATIVE LAW 210Lyster – 2010 – Robert Kiesman

Introduction to the Effervescence of Administrative Law

Administrative law speaks to the ability of those affected by decisions made under delegated governmental authority to challenge both the process by which the decision has been made and the substance of the decision itself.

Admin law is about government action, specifically delegated government action where decisions are made not in and by the legislature itself, but by the Cabinet, fed/prov departments, municipalities, and boards and tribunals.

Tribunal: Tribunals - fairly formal; act like judge; hear disputes and make decisions. Admin law cases cannot provide an applicant with the opportunity to overturn a piece

of legislation. Charter and constitutional challenges are about overturning and reviewing parliamentary decision-making and the compliance by the executive with very fundamental legal norms; admin law is about reviewing and ensuring a more generic fairness in devolved governmental decision-making.

Because of broad range - formal to informal (financial assistance worker) - there is tremendous variety of decision makers. Can assess that variety on number of scales:1. Formality of process: Quasi-judicial (highly informal) (i.e. human rights tribunal): witness, swore, cross-examined; formal written decision; submissions. Less formal: i.e. Immigration officer - not cross examination, no right to legal counsel.2. Type of issue/dispute dealt with: Adversarial - Independent body from parties - resolving dispute between parties (i.e. labour relations board). Individual - Only one party - seeking something (welfare benefits being sought; liquor license); no disputant. Regulating Sphere - Regulatory in nature (i.e. environmental board; CCRT): regulate broad social or economic sphere; may be many interested parties before them - making representations before the board. *Some have an overlap of these three examples3. Rights based versus interest based: Human rights - seek to have your right upheld = legal rights. Regulating - not necessarily have a right, but you have an interest in something or doing something = variety of interests

The core function of judicial review is to examine how and why the courts decide to intervene in the admin process.

Admin Law: 3-Part Division:(1) Procedural Fairness: Is this an issue the courts should review? Did the tribunal use

proper procedures in reaching a decision?(2) Substantive Fairness: Regarding the decision – did the tribunal make an error of

the kind the court is willing to get involved in?(3) Remedies and the Legitimacy of Judicial Review.

Procedural Fairness: When it comes to PF, the court is not interested in the actual decision, but only in the

procedures followed. Threshold Question: “Is this the kind of decision that should attract some kind of

procedural right?”o Generally, if a decision is made that affects an individual’s rights or

interests there will be some minimum entitlement to procedural fairness, but there are still some exceptions.

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Exceptions: Policy decision; Investigative. Content of PF: Statute; CL; Provincial umbrella legislation – BC has Administrative

Tribunals Act – focuses on empowering tribunal to enact its own rules. Independence: Focused on systemic structure of board – Do members of tribunal

have financial security? Are they dependent on government?

Substantive Error: Courts look here at the decision itself. Courts ask themselves what the standard of review is:

o Correctness: Was it a correct decision – the same the court would have?o Reasonableness: Is the decision one that falls within a band of

reasonable decisions, even if the decision is not exactly what the court would have reached?

o Patent Unreasonableness: If the decision is not unreasonable OK. After determining the standard of review, the court applies it to the decision. Privative/Preclusive Clause: When statute setting up tribunal says the decision is not

open to review by courts. o Modern approach to these to treat clause as one factor among several in

determining the standard of review.

Remedies and Legitimacy of JR: Three sources of review power: (a) Original Jurisdiction; (b) Right of Appeal; (c)

Inherent JR Jurisdiction.

Constitutional Right to Review and Section 96 Courts. Section 96 proves the appointment of superior court judges is the responsibility of

the feds – the provinces cannot de facto create a court and call it an admin tribunal to get around it.

Three-part test: (1) Does impugned power broadly confer a power exclusively exercised by superior, district, or county court at time of Confederation? (2) Is power “judicial” as opposed to administrative? JP = power where private dispute between parties is adjudicated through body of rules. (3) Has power in its institutional setting changed its character sufficiently to negate broad conformity with superior, county, or district jurisdiction?

Trend in case law is that implicit in section 96-100, there is constitutionally guaranteed right to seek judicial review of administrative action on the grounds of judicial error or illegality (Bibeault).

Baker v. Canada (1999 SCC) : Case outlines standard of review, procedural fairness.Mother came to Canada from Jamaica – overstayed visa 10 years and had 4 children (Canadian citizens) – R sought to have her deported – she fought on grounds of humanitarian and compassionate to stay in Canada (suffered post-partum depression, schizophrenia, and had 4 Canadian children) – would have separated her from her kids – Officer Lorenz’s notes form basis for grounds of appeal – A argued she hadn’t received procedural fairness: (a) no sufficient or fair hearing; (b) reasonable apprehension of bias; (c) reasons provided weren’t sufficient. Also, on substantive grounds unreasonable decision; should be turned over because it is just wrong. Treaties entered into by Canada led to legitimate expectation that she wouldn’t be separated from children

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Analysis: Duty of procedural fairness applies: When a decision is administrative and affects the

rights, privileges, or interests of an individual fairness triggered. Factors: (a) Decisions made using fair and open procedure appropriate to the

decision being made and its statutory, institutional, and social context; (b) Opportunity for those affected to put forward views and evidence fully and have them considered “however, it cannot be said that an oral hearing is always necessary to ensure a fair hearing”.

To determine nature/extent of duty of fairness in a circumstance: (not exhaustive)o Nature of decision made and process being followed;o Nature of statutory scheme and the terms of the statute;o Importance of decision to individuals affected;o Legitimate expectations of person challenging the decision;

“If a LE is found to exist, this will affect the content of the duty of fairness owed to the individual…if the claimant has a LE that a certain procedure will be followed, this procedure will be required by the duty of fairness.”

Note : This cannot lead to substantive rights outside the procedural domain.

o Choices of procedure made by the agency itself. Provision of Reasons: “In certain circumstances, the duty of procedural fairness will

require the provision of a written explanation for a decision”. o “…any reasons requirement under the duty of fairness leaves sufficient

flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient”.

o “…in cases such as these where the decision has important significance for the individual, when there is statutory right of appeal…some form of reasons should be required.”

Reasonable Apprehension of Bias: “The duty to act fairly and in a manner that does not give rise to a RAB applies to all immigration officers who play a significant role in the making of decisions…”

o Test : What would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude? Would he think it is more likely than not that decision maker...would not decide fairly?”

Standards of Review : (1) Discretionary decisions…must be made within bounds of jurisdiction conferred by statute…but considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction; (2) Discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of maneuvre contemplated by the legislature, in accordance with the principles of the rule of law; (3) It is inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions.

o Three Standards: (a) Patent Unreasonableness; (b) Reasonableness; (c) Correctness.

o Court must not intervene where a decision is outside the scope of the power accorded by Parliament. Although discretionary decisions will be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, principles of

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the rule of law, the principles of admin law, the fundamental values of Canadian society, and the principles of the Charter.

o Factors : (1) Absence/presence of privative clause – if there is such a provision, there should be lower level of deference on issues related to question (Pushpanathan); (2) Expertise of decision maker; (3) Purpose of provision and Act as a whole; (4) Nature of problem in question, especially whether it relates to law or facts.

These factors must be balanced. “An unreasonable decision is one that is not supported by any reasons that

can stand up to a somewhat probing examination”. “Deference as respect requires not submission but a respectful attention to the

reasons offered or which could be offered in support of a decision…”Application: Important Quote: “The values reflected in international human rights law may help

inform the contextual approach to statutory interpretation and JR.” “Because the reasons for the decision do not indicate that it was made in a manner

which was alive, attentive, or sensitive to the interests of her children…it was an unreasonable exercise of power…and must be overturned.”

Notes applied stereotypes and acted out of frustration on the way the system was being abused.

Held : Appeal allowed – matter returned to Minister for redetermination by different officer.

Crevier v. Quebec AG (1981 SCC) : Feds or provinces cannot insulate a tribunal from review on jurisdictional grounds. Provinces cannot create s. 96 court. Privative clauses are almost always read to mean there is a judicial review available, despite what it says on its face. While constitutional status of appellate tribunal left in doubt - but likely: they are acceptable as long as privative clause doesn’t exclude all review. To give a provincially-constituted statutory tribunal jurisdiction in appeal on questions of law without limitation, and to reinforce appellate authority by excluding any supervisory recourse, is to create a s.96 court.Quebec legislation created professional code and tribunal – exclusive appellate discretion over disciplinary bodies – made up of 6 judges – strong privative clause – exclusively adjudicative function – Crevier sought review on basis it was s.96 court that province didn’t have the power to create. Privative clause actually interpreted as excluding all review made it unusual. Nature of tribunals power were really s. 96 powers: because tribunal’s sole or

central function, it was really acting like a court. If privative clause can’t be construed as upholding superior court power then it must be struck down.

Here, it was not capable to interpret it as upholding that superior court power. “Where a provincial legislature purports to insulate one of its statutory tribunals from

any curial review of its adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s.96 court”.

Lyster: Not clear if privative clause problem enough - or if it was its appellate function - or both. Probably: If only problem was appellate function - that not alone sufficient to have tribunal struck down because there are lots of appellate tribunals (WCB).

Lyster: But privative interpreted as only construable as failing to uphold - likely always successful on its own.

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Note : Crevier is the only case that interpreted the clause literally to mean that no judicial review was allowed. Actually, PCs should always be read down to mean = show deference!!

Tools of the Administrative State

Separation of Powers: In Canada, there is a strong, but no strict description of division of powers. Legislature enacts a statute, and in doing so, it creates a tribunal that is given certain

kind of authority to make certain kinds of decisions. Executive often has ability to create subsidiary rules or regulations.

o Often it is cabinet given rule/regulation-making authority, but it can also be the tribunal itself.

o Cabinet has monetary influence! Each tribunal has budget, but it is the executive that gives the money to the tribunal.

Enabling Statute gives tribunal authority, but the ATA also does. Tribunals do not have inherent jurisdiction.

Varieties of Administrative Decision Makers: Ministers: Often act through government employees. Government Employees: Staff people who have administrative decision-making

authority (residential tenancy officer decides residential tenancy dispute). These have no independence.

Agencies, Boards, Commissions, Tribunals: No magic to what makes each of these what they are called – can be used interchangeably.

o They have adjudicators appointed by government, but have some measure of independence from government.

o Often they are appointed by order-in-council (cabinet appointment).o Created by statute.o Tend to have some kind of common process to make decisions. o They are subject-matter experts. o Can often initiate or enjoin litigation.o Often have investigatory or audit powers; Some have adjudicative

powers; Some have injunctive power; declarative power. Other bodies:

o Acting under statute (Law Society; municipalities; school boards).o Some private bodies occasionally can be administrative decision-makers.

There must be a sufficient public flavour (eg: trade union)

Must ask: Are they acting in legislative capacity or administrative?o A municipality creating a bylaw of general application is acting in

legislative capacity. But if creating bylaw in direct relation to you (particular), is acting in administrative capacity.

“Does it affect the rights, interests, or privileges of a person or persons?”

General Points on Tools and Administrative Actors: Tools are almost always authorized by statute.

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There is vast range of tools that are potentially available to administrative actors, from those that impose sanctions, to educational programs.

Admin actors are often given substantial amount of discretion regarding when and how to use the various tools they have at their disposal (mix).

Discretion as the “Ubertool”: Ubertool is the overarching power that can control the use of other tools.

Criteria to Assess Tools : (1) Effectiveness – does tool achieve its intended objective? (2) Efficiency – takes into account results and costs; (3) Equity – focus on basic fairness, distribution of benefits and costs, and redistribution of benefits; (4) Manageability – focuses on issues of implementation; (5) Legitimacy and Political Feasibility – program must win political support.

Administrative Tribunals Act: Smorgasbord of statutory provisions that are widespread – subsequent acts can

apply particular sections to a certain tribunal. Find out whether ATA applies to a tribunal, and what provisions apply. Section 11 gives tribunal power to make own rules – important to find out if this

section applies! Section 43-45: Does tribunal have constitutional jurisdiction?

o 43(2): If a question of law, including a constitutional question, is raised by a party in a tribunal proceeding, on the request of the party or on its own initiative, at any stage…the tribunal may refer the question to the court”

o 44: The tribunal does not have jurisdiction over constitutional questions. o 45: The tribunal does not have jurisdiction over constitutional questions

relating to the Charter. Section 58-59: Give statutory standard of review – how deferential will court be?

o 58: If enabling Act contains a privative clause, the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

o 59: If enabling Act has no privative clause standard of review is correctness for all questions except those respecting the exercise of discretion, findings of fact, and application of CL rules of natural justice and procedural fairness.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

Oversight: Judicial Review: File petition in superior court seeking JR. Government:

o Financial decisions.o Appointment decisions.o Administrative control (HR, payroll, IT).

Legislative Branch:o Amend legislation.o Annual Reports to the legislature.

Other Public Bodies:o Ombudsperson: If you don’t like what employee/admin agency has done,

you can complain. Jurisdiction is limited – but they can assess fairness.

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o Other tribunal with concurrent jurisdiction or review jurisdiction: Statutory appeal. Internal Reconsideration (overturn itself). Complain to Privacy Commissioner. File complaint with Human Rights Tribunal.

o The Public: Media.

There are often clear cases when JR is appropriate. Judges fit on spectrum between highly interventional and deferential. What can judges review decision for?

o Procedural Fairness: Baker: No lawyer present; reasons for officer not sufficient; notes

showed bias.o Substance of decisions:

Crevier: Constitutional basis for JR (at least for jurisdictional error). Legislature cannot eliminate courts ability in this area.

Regulatory Mix: Rule of Law

Interplay of ROL with Other Concepts: Polarity at times with Law and Discretion. Tension with Rule of Law and Deference. Tension with Administrative and Executive Power.

Attributes of the ROL: separation of powers; judicial independence; access to justice; fundamental justice; proper administration of justice.

ROL: Constrains actions of public officials; Regulates activity of law making; seeks to minimize harms created by the law.

Re: Manitoba Language: ROL conveyed sense of orderliness, of subjection to known legal rules and of executive accountability and legal authority.

o Law is supreme over individualso Law and order are indispensable elements of civilized life within a political

community. Re Secession: Four underlying principles: Federalism; Democracy;

Constitutionalism; Rule of Law. BC AG v. Christie: ROL does not underwrite a general right to legal services, to

legal assistance, or to counsel in relation to court and tribunal proceedings. It cannot constitutionalize a particular type of access to justice – a general right to counsel cannot be found.

All of these have a normative effect and limit and constrain what government and legislatures can do.

Rule of Law characterized by: (a) Legality; (b) Activity and Practice of Law Making; (c) Distinctive Political Morality.

o Intended to prevent arbitrary use of power.o Want responsiveness.

Dicey : Distrust of discretionary decision-making. He advocated for “going to court” rather than administrative decision-making.

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Canada continues to endorse the principle of parliamentary sovereignty, but reconciles it with the principle of the rule of law as manifested in judicial review.

Roncarelli v. Duplessis (SCC 1959) : Panels can only exercise discretion with relevant considerations under perspective of statute. Discretion implies good faith – there is always prospective with which a statute is to operate. R owns restaurant with liquor licence – is a JW – met with incredible opposition of authorities, including premier – R was wealthy and put up bail for JWs in jail – premier ordered liquor commissioner not to renew his liquor license and issue order that he would never again get license – no question that only reason was because he wanted to punish R for supporting JWs. Held : It was not unconstitutional, but contrary to administrative law principles for

premier and AG to have acted in this manner. It was not premier’s decision to make; under statute, it was liquor commissioner’s. Substantive review of discretion:

o Statute did not explicitly say criteria – on face of statute – they had unlimited discretion (or so argued the premier).

“… should be conducted with complete impartiality and integrity; and that the grounds for refusing or canceling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute. A decision to deny or cancel such a privilege lies within the "discretion" of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration”.

“…there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute”.

Deference as Respect: The relationship of courts to other branches now aspires to a kind of respectful

deference – characterized by an institutional dialogue about the appropriate use and control of discretion, rather than the old command and control.

Two problems with Deference as Respect: o Privative Clauses : Courts approach them in different ways: (a) Read them

out of statute; (b) Defer to Parliament’s intent; (c) Claim Parliament always respects procedural fairness.

o Standard of Review : (a) Correctness: Allows court to show little or no deference – it is either right or wrong; (b) Patent Unreasonableness: Most deferential – only intervene when blatantly evident the agency made an error in law or fact; (c) Reasonableness: middle ground.

Cooper v. Canada (1996 SCC): McLachlin’s dissent carried the day later on…Human rights case – airline pilots forced to retire at age 60 by airline – HR Act said mandatory retirement not contrary to CHRA – Cooper and Bell did not want to be mandatorily retired – wanted to refer to CHRTribunal and argue it is unconstitutional (discrimination based on age) – AirCanada said CHRT had no jurisdiction to rule on whether provision was constitutional.Did Parliament intend to confer on CHRC and tribunals which adjudicate the Act the power to decide general questions of law?

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Before Cooper, there was trilogy of cases (SCC) that said if tribunal had express or implicit power to decide questions of law, it could refuse to apply provision on basis it was unconstitutional.

SCC split 3 ways:o Majority LaForest:

Previous law was correct, but neither CHRC nor CHRT had that power in this case. Commission is gate-keeping body and does not have that power, and despite fact that

tribunal is, it cannot either (Lyster: I don’t understand this part of the reason). This part of view overturned in subsequent decision.

Practical advantages of allowing commission to make decision limited: Inefficient –aren’t in that business; it would be reviewed in court anyway; would tie up commission’s resources.

o Dissent Lamer: NO tribunal should have power to make constitutional decisions – that is for courts alone. Administrative tribunals are not like judiciary, only executive – appointed by government –

no tenure or independence – they are created by statute. He would say a tribunal cannot have this authority despite what any statute would say. Still signed on to what LaForest says because of stare decisis!

o Dissent McLachlin: Trilogy of cases is correct – both commission and tribunal can decide

questions of law. (para 70): Charter is not holy grail – it belongs to people – all law and

persons who touch it are subject to it and tribunals are no exception – many more citizens have their rights determined by tribunals than courts.

“If Charter is to be meaningful, it must find its expression in the decisions of these tribunals. If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it. But if it confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter, and to the question of whether it renders portions of its enabling statute unconstitutional”.

ULTIMATELY, McLachlin’s view wins the day (Martin).

Operation Dismantle v. Queen (1985 SCC) : Even when government not acting pursuant to statute, it may still be subject to JR. If a case presents a Charter breach, the court can engage in review regardless of whether or not there is a political aspect. Court has constitutional obligation under s.24 to decide whether any particular act of the executive violated any right of the citizen.OD group of leftist groups – challenging Canadian allowance of cruise missile testing over our soil – argued it was contrary to s.7 of Charter – Canada argued it should be struck and not allowed to trial because it was not justiciable and because it disclosed no reasonable cause of action. Held : Appeal dismissed. They would have to prove agreement actually increases

chances of nuclear war – it is not provable. Concurring (Wilson):

o Justiciability: (1) Exercise of royal prerogative (don’t need statute to enable government to do something); (2) US political question doctrine.

(1) It is exercise of RP, but does not mean it cannot be subject to JR.

(2) We should not adopt US political questions doctrine. If a case presents a breach of Charter, court will engage in review regardless of whether or not there is a political aspect.

o “…JR is not the same thing as substitution of the court’s opinion on the merits for the opinion of the person or body to whom a discretionary power has been committed”.

Step 1: Determine who has the decision-making power;

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Step 2: Determine scope, if any, of JR of exercise of that power.

Remedies in Administrative Law

Administrative decision makers need statutory authority to grant remedies.o Doctrine of Necessary Implication: Tribunal has authority to do that which

is necessary to give its statute effect Very limited. o Be sure to look at ATA to see if provisions apply to a given tribunal – some

provisions are remedial in nature.o Tribunals tend to be more inclined to create novel or creative remedies.

Statutes intend to give them this creative ambit. Tribunals usually have a great deal of expertise – gives them ability to

fashion creative remedies – including ones for systemic problems. Often required to remain “seized” in overseeing implementation of

remedy: After decision that (prison guards must have training), say tribunal remains seized to ensure the remedy is implemented.

ATA: Some provisions are remedial in nature: s.15: Tribunal may make interim order.

o Be sure to see if this section applies! s.47: Gives tribunal authority to order costs.

o Be sure to see if this section applies! s.28: Chair of tribunal can appoint member of tribunal to conduct ADR.

Enforcing Tribunal Orders: Once order is issued (eg: payment of $), losing side may not obey tribunal’s order. Most tribunals do not have power to enforce their own orders. British Columbia: Most statutes provide for enforcement either in Provincial or

Supreme Court.o File order in court.o Once filed, it has the same force and effect of a judgment of that court.

Whatever enforcement mechanisms you could have taken in civil court available to you now.

o No defense to say decision wrong – seek JR to fight against enforcement. Attempt to do otherwise would be form of collateral attack.

Sometimes the tribunal itself may seek to enforce its own orders.o ATA, s.34: If you want to have witness in hearing, get a summons and the

tribunal will issue the summons – the person served must appear and attend in same way as he would under subpoena.

Party may have ability to go to court and insist the person attend. Tribunal may have ability to go to court (depends on what provision

applies).o s.49: If tribunal orders person to do something and they fail to comply, the

tribunal can go to court to seek to have that person to be held in contempt.

Other Avenues Other Than JR: Internal Reconsideration: Workers’ Compensation Act; Labor Relations Code

o You must go through steps of internal review before a court will look at it. (Adequate Alternative Remedy).

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Practice of Reconsidering Decisions:o Chair may look at applications for reconsideration as practice.

“Inherent Jurisdiction” – read in that tribunals have authority to correct minor errors o Spelling; calculation; mistakes; factual errors “Slip Rule”.

Statutory Appeal to Court:o Appeal mechanisms can be to internal administrative appellant or the courts.(1) Is an appeal available?

Courts have no inherent juris over admin tribunals – right to appeal must be found in enabling statute. If not in ES must seek JR.

(2) What is scope of appeal? Scope is confined to what the statute expressly provides. Labor relations and employment related matters cannot generally be

appealed to courts.(3) Is appeal available as of right, or is leave required? Who may grant leave?

Eg: BC Securities Commission appeals may be brought to BCCA with leave. Eg: Forest Practices Code provides appeal as of right to BCSC.

(4) Is stay of proceedings automatic, or must one apply? ATA, s.25: Commencement of appeal does not operate as stay or suspend

the operation of decision being appealed unless tribunal orders otherwise.o If there is statutory appeal mechanism, you must take that rather than

JR. Ombudsperson: Mandate is to provide forum for citizens to bring complaints

regarding the way gov’t departments and agencies have dealt with them. o They have discretion as to whether or not they will investigate a complaint.

It is never too late to settle!

Using Judicial Review: JR is about inherent jurisdiction of courts to oversee and check administrative action

in the interest of the rule of law. Unlike appeals, JR is review of executive action beyond what the executive itself

provided for.o Only on JR will courts investigate a tribunal’s PF or alleged bias.

Decide whether you are going federal or provincial!o When dealing with federal tribunal going to federal court, vice versa.

Limitations:o Time limitation: Statutes provide limits (ATA, s.57: 60 day time limit).

s.57(2): Court may extend if serious grounds for relief; reasonable explanation for delay; no substantial hardship on person affected.

o Who do you give notice to? JRPA: Other party impacted; tribunal who made decision; AG.

o Immunity? Statutes give immunity to people who give decisions. Be sure you are naming the correct person!

What kind of evidence do you need?o Viva voce; affidavit evidence (most common).

Do you have standing?o Standing as of right: If you are directly impacted.o Public Interest standing: (eg: LEAF).

Discretionary decision on part of court. Are there discretionary bars to court granting relief?

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Types of Remedies Under JR: Statutory: Given statute may provide a court with specific statutory remedies. Certiorari: Seeking to have decision quashed or set aside (*most common). Prohibition: Trying to stop tribunal from doing something you say it does not have

statutory authority to do. Mandamus: “We command” – seeking to have tribunal to order to do something it

does have statutory authority to do.o Frequently certiorari and mandamus used together; certiorari used to quash a

decision, and mandamus used to force tribunal to reconsider the matter in a PF manner.

o Variation on mandamus is court’s ability to send matter back to tribunal for reconsideration with directions.

Declaration: Declaration of what the law is; what someone’s legal obligation might be; statement of someone’s legal rights.

o Declarations are not enforceable and cannot require anyone to take or refrain from taking any action.

Remitting: Remit to tribunal for re-hearing.o Typically seen together with certiorari.

Interim Relief: Eg: Stay decision pending final hearing by court.o Seeking JR does not operate as stay of decision – it continues to have legal

force and effect – unless court orders a stay or tribunal agrees to stay it after you ask it.

You must ask tribunal to stay it first! [Damages: Courts can order costs, but cannot order damages in a petition for JR.

o You may have claim for damages (official committed tort at same time as admin violation).

You must initiate two separate proceedings/sue separately.]

Judicial Review Procedure Act (BC): Act applies to every JR in this province (not federal). JRPA does not create right issue JR. This act is procedural in nature. We must be broadly familiar with this statute, but not memorize. Act provides that application for JR is brought by petition – it is NOT an action. Provides that court can remit (send back) to tribunal for a re-hearing.

o As a general rule, none of the above remedies were substitutionary.o If tribunal gets it wrong, court sends it back, often with explanation of the law.

Discretionary bars to relief:o If before, 1977, there was discretionary bar to relief (before JRPA), it still has

it! If problem in decision is merely technical and there is no substantial wrong, the court

may refuse relief. Court can make interim order. No time limit for filing application for JR.

o There are time limits in many other statutes! You must give notice to 3 people above, and they have right to appear at appeal.

You want to challenge decision of tribunal by JR: JR by the court is ALWAYS discretionary (inherent jurisdiction).

o …even though you always have right to seek JR.

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Discretion applies to whether to hear JR…or remedies the court may(not) choose to grant.

o Breach of procedural fairness causes tribunal to lose jurisdiction. If error you are alleging is PF, and you are correct, court could still

refuse to grant you relief!

Domtar v. Quebec (1993 SCC) : Judicial deference to administrative decision-making is more important that consistency of legal interpretation. JR is always discretionary. Inconsistency between two tribunals is not itself a sufficient basis for JR. Stare decisis does not apply to administrative tribunals.Employee of D injured at work – suffered injury 3 days before plant closing down – employee applied for benefits – went up 3 levels of admin decisions makers – tribunal said employee was entitled to benefit for 14 days (full period of time he was injured) – employers argued he could have only worked 3 days anyway! Employer sought JR on basis that decision was patently unreasonable and on basis that it conflicted with another tribunal came to opposite conclusion. SCC : If decision PU JR. But assuming it is not, is fact that there are two inconsistent decisions on

same legislation a basis of JR. Held that decision was not PU. Court does not have to intervene, and should not. Consistency is important value in the law; it smacks of arbitrariness when two tribunals come to two

different conclusions…these are valid arguments.o But, consistency and decision-making in context of rule of law cannot be separated from

decision-making autonomy, expertise and effectiveness of tribunals. Note : PU gives you a lot of wiggle room! Here we have two decisions giving two

different reasons – neither of which were held to be PU! Lyster : Consistency is important – tribunal should have good reason to come to

different interpretation – but not as a matter of law obliged to agree.

Grounds Where Court Could Refuse to Grant JR or Refuse to Grant Relief: Prematurity: If you seek JR too early.

o eg: Tribunal makes procedural ruling in course of hearing (can’t call certain evidence), and you don’t like it go to court seeking JR.

Court will say come back when final decision is rendered.o Exceptions: Bias; severe natural justice concerns; clear jurisdiction question.

Adequate Alternate Remedy: Before you run to court, you should exhaust all of your internal remedies.

Harelkin v. U Regina: Determination whether appellate route is better is very facts based. Exhaust all internal remedies before appealing to court. What will render it not adequate alternative: If they lack statutory authority over issues raised; lack remedial authority to fix it; problems with evidentiary record and they cannot fix it; procedure is too expensive or inefficient.H expelled – appealed under UA committee – committee did not hear him and did not give reasons breach of PF – he asked for re-hearing – committee refused to re-hear – under University Act, there was second appeal level – H did not appeal under it, but instead filed JR.

SCC: PF rights breached, but splits 4-3 of question of whether he should be denied a remedy on basis that he failed to exhaust AAR.

Held : Despite the breach of PF, H should be refused discretionary remedies of certiorari and mandamus.

Was university senate committee (appeal) an AAR? Yes, and it was even a better remedy than going to court: cheaper

and more efficient.

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Senate had sufficient remedial powers to correct decision (hearing whole matter over again).

Consider: Cost and efficiency of appeal mechanism and does it have authority to fix the problem – and no sound evidentiary basis to believe they will not do so.

“The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right”.

Canadian Pacific v. Matsqui (1995 SCC) : Lack of independence of appellate body may render the body to be regarded not AAR. Consider nature of error alleged; nature of body (investigatory, appellate, remedial capabilities); nature of convenience of AAR not exhaustive look at whole thing globally to make assessment. Absent some problem, it is likely internal appeal bodies are AAR. Indian bands were enabled to set up their own taxation authorities under amendments to Indian Act – Matsqui band took advantage and set up taxation authority – made assessments against CP taxing railway through reserve – challenged bands authority to do so under JR.Argument: Appellate authorities lacked impartiality & independence not AAR. Bands say CP should first go through appellate procedure. Held : Appellate authority was not AAR.

o Lamer, Cory (most important): JR was not premature because there was no AAR available.

Not AAR because they lacked institutional independence.

Question is whether TJ properly exercised his discretion. TJ has jurisdiction to decide that question of

determining their jurisdiction. Four Questions in Relation to TJ exercise of discretion: (a) Was it wrong

to consider purpose of enhancing aboriginal self government? No, it was completely appropriate. (b) Was it beyond band’s jurisdiction to create appeal to Federal Court? No. (c) TJ said it was adequate and even better alternative. Was that unreasonable conclusion? No, it was reasonable. They were adequate in part because there was appeal available to FCC. (d) Bias and Independence: He was not prepared to say they were biased, but they did lack institutional independence – and the TJ was wrong not to take that into account.

o LaForest: Not AAR because questions appellate tribunal being asked were questions of law and more appropriate for judiciary.

o Sopkina (dissenting in result): Tribunals were AAR. They were independent. Sopinka agrees with Lamer on everything but that point.

o Major, McLachlin: Same conclusion as Lamer, but held because appeal tribunals do not have jurisdiction to decide legal questions.

Mootness: Case ceased to have practical significance for any of the parties. o Courts can refuse to hear it, BUT can also hear it for other reasons, including

public importance (discretion).o What can make it moot? One party is dead; statute under which decision

made is amended and the problem for the individual has been fixed.

Delay: Not talking about failure to meet time limit, but “laches”, notion that if you sit on matter for long time, court may exercise discretion to deal with it.

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o Significant factor: Is there significant prejudice to the other side?Friends of Oldman: Unreasonable delay may bar discretionary remedy if it is excessive, and especially where there is prejudice to others.Guidelines order required environmental assessments where feds had decision making authority – dam being built on Oldman River – society didn’t want dam built – wanted feds to conduct environmental assessment – governments said they engaged in excessive delay in bringing matter before court.

Court: On facts, no basis for argument! The society tried everything they possibly could to address their concerns – no evidence the government was prejudiced.

Collateral Attack: If tribunal makes order against party and that party does nothing (appeal, JR, etc) there is enforcement proceedings, and suddenly party says that original order was PF or wrong in law, etc. Strong bar to granting relief.

Misconduct: “Doctrine of unclean hands”. If you commit fraud on court/engage in bad behavior – court will not exercise discretion in their favor. [Not common.]

Waiver or Acquiescence: Something happens in hearing and you do nothing about it at time, lie in weeds, and then later seek judicial review.

o eg: Bias: You know of relationship with decision maker and the other side; you do nothing about it and sit there, have hearing; you later get decision you didn’t like and go to court saying decision is bad.

Court will say you waived right to argue bias. Exam : Parties should object promptly to any perceived impropriety

on the part of the tribunal.

Futility: If it would be pointless to grant relief requested, court will not grant relief.o Very uncommon basis for refusing relief.Oldman River: Relief should only be refused on grounds of futility where the remedy would be effectively nugatory (nothing left to prohibit).By time case went to SCC the dam was mostly built – government said it is built so there is no point in granting remedy. Held : Relief still granted – remedy would not be nugatory.

o Very high onus to satisfy court there would be no practical effect.o Dam was not completed – so there could still be environmental value

to be had in assessment.

Mobil Oil v. Canada (1994 SCC) : It is possible to have futility raised as bar to relief when it would be pointless to send back to board because there would be only one answer where the law would be applied correctly.Oil companies including MO drilled offshore well – requested significant discovery declaration and were given one for part of area requested – statutory amendments came into effect – sought SDD again – in order get SDD the second time, there had to be significant discovery – chair of board said he would not consider application because there were no new wells. MO argued breach of PF: Court agreed there were many (no hearing; letter from

chair who had no authority to make decision).o But, it would be futile to grant usual remedy for breach of PF (decision is

quashed and remitted back to board). Reason : There was only one possible interpretation – they really had

to have dug new well, and they really had not board was correct as there was only one interpretation.

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This is a very unusual result – there is inevitable answer if went back to hearing.

Decision indicated it was NOT to be applied broadly.

Duty of Fairness

Audi Alteram Partem: “Hear the other side”.o Participatory rights: building blocks of fair hearing.

Comes down to: (a) Notice; (b) Opportunity to be heard. Nemo judex In Suacausa: “No one should be judged in their own cause”.

o Takes into account: (a) Independence and (b) bias/impartiality. When PF: You must have (a) Notice and (b) Opportunity to be heard. Process is one of two ways to get at administrative decision on JR. Normal remedy for breach of PF decision quashed and sent back for re-hearing.

(a) History of Development of Duty of PF.

Before Nicholson, the law distinguished quasi-judicial and admin decisions: if quasi-judicial, you were entitled to full protection of natural justice; if administrative, you got nothing in way of procedural protections.

Nicholson v. Halimand (1979 SCC) : Case did not eliminate quasi-judicial and admin, but duty of fairness must be met in both: notice and opportunity to be heard. N was police constable – employed for less than 18 months – terminated with no notice, no reasons, no opportunity to respond before commission – legislation provided those employed 18+ months entitled to full oral hearing, but those without were given no protection at all (at pleasure appointment) – sought JR arguing CL right to be treated fairly. “…while N could not claim protections of 18+, he could not be denied any protection

whatsoever…he should be treated fairly and not arbitrarily…” “In sphere of quasi-judicial, the rules of NJ run, and that in the admin or executive field

there is a general duty of fairness…” What should N have got? (a) …been told why services no longer required, and (b) an

opportunity to respond.o Note : Not necessary to have an oral hearing.

Once they had N’s point of view, it would be for Board to decide whether to terminate him or not – that would not be reviewable on PF grounds.

Lyster : This kind of fairness is just about process. Policy : The Board will make better decision in hearing views from both sides.

Cardinal v. Kent (1985 SCC) : If there is emergency situation, there is no prior obligation to comply with duty of fairness. Where there is breach of PF, the remedy is to quash decision and have another hearing – not for court to speculate on what result may have been. Duty of fairness is protecting a dignity interest. General DOF is a CL principle that can be eliminated or defined by statute.Hostage taking at Matsqui – inmates transferred because they were allegedly involved in hostage taking – on arrival, they were put in segregation, relying on what other warden told him – statute created segregation review board – board recommended to put in general population – warden rejected recommendation – at no point were they given any hearing – they sought JR – they were seeking habeus corpus. Court agreed there was no doubt warden under duty of PF.

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“…there is, as general CL principle, a duty of PF lying on every public authority making an admin decision which is not of a legislative nature , and which affects rights, privileges, or interests of an individual”.

o “General CL principle”: Note – subject to elimination or definition by statute.o “Lies on every public authority”:o “Who is making admin decision”:o “Not of a legislative nature”:o “Which affects rights, privileges, or interests”:o “Of an individual”: Must be determinable group of people for PF to apply.

If legislation explicitly or implicitly derogates from PF, they are entitled to do that. Warden didn’t have to afford protections initially (urgent/emergent situation), but as

soon as practical, the warden was under those obligations.o Specifically, when warden made decision not to accept recommendation

obligation to let them know he was intending to reject recommendation, provide them with reasons, and give them opportunity to respond.

o No need for oral hearing, but had to let inmates know he was considering recommendation, etc.

Knight v. Indian Head (1990 SCC) : Content of duty of PF is variable – always look at statute that can abrogate or modify CL.School board dismissed K after lengthy negotiations – had employment K that said he could be fired on 3 months notice – some concerns about his performance – offered him renewal on shorter term that he rejected – terminated – sued for wrongful dismissal and breach of PF. Court : Subject to PF even though there was K, but there was no breach. General right to PF: Autonomous of any particular statute. No longer distinguish between quasi-judicial, judicial, or administrative. Not all admin bodies on duty to act fairly (legislative or general nature under no

obligation for PF). Three Criteria to Determine if PF :

1. Nature of Decision: Preliminary/investigatory are rarely subject to PF – final decisions likely to be.

2. Relationship Between Body and Individual: Is there statutory flavor to relationship? Delegated statutory powers?

3. Effect of Decision on Individual’s Rights: The more serious the impact, the more likely there will be duty of PF.

Application : This was admin decision; was final, hearing from K may have improved result, board was exercising delegated statutory powers; termination has significant impact on individual and his career.

Does statutory framework modify CL? Not in this case. Did employment K modify CL in any way? Not in this case. Here : All he needed was some reasons and notice and opportunity to be heard

(exchange of correspondence).o They had informal/minimal set of negotiations (communicated, and he was

thus aware); Knight’s solicitor made case before Board met the duty! FILL some facts here.

Lyster : Dunsmuir has overtaken; but everything they say about DF is good law.

(b) Threshold Question: Does Duty of PF Apply?

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Inuit v. Canada (AG) (1980 SCC) : Even if no duty of PF there may still be other legal bases for JR – even where a decision is legislative, court has supervisory authority to see if statutory condition precedent is met. Cabinet/ministry decisions are not subject to legislative exemption per se, but it will often be easy to characterize them as legislative exempt from duty.Bell applied to CRTC for rate increase – Inuit disagreed – statute provided Inuit with ability to appeal to Cabinet – Cabinet decided against Inuit without receiving their final submissions, hearing was in writing only, no parties written submissions given to Cabinet (only received Executive Summaries). Lyster : Would be breach if duty of PF was applicable. Not useful to classify admin/quasi-judicial: New question: Is it any of these versus

legislative? Court : If legislative (no duty of PF), but decision is not immune on any ground. Still

obligation to comply with statutory provisions precedent. Here, no argument the Cabinet failed to comply with SPP – but court wanted to emphasize they could review otherwise.

Legislation : Delegated to CRTC function of approving telephone rates; secondary delegation to Cabinet where there is appeal; where delegating, not subject to PF: (a) Nature of body in question – would be wrong to deprive executive branch of ability to rely on staff – cannot have oral hearings for all these people to Cabinet; (b) Did not want to deprive Cabinet of policy-making function.

Why Legislative here? Legislation authorized Cabinet to overturn decision of CRTC on its own motion.

Lyster : What Cabinet was doing was legislative in nature not subject to PF. Note : Intent of statute is important in determining if legislation Did Cabinet intent

on having duty of PF when legislation passed?

Homex Realty v. Wyoming (1980 SCC) : While a decision may appear to look legislative (bylaw), one must look at intent of statute to determine whether the decision is legislative or administrative. If the decision affects the rights and interests of one person or group as opposed to many people likely more administrative than legislative.Homex owned subdivison – dispute with municipality about provision of services – municipality without notice passed bylaw that designated plan for subdivision – no notice – bylaw has effect of preventing Homex from selling lots without specific approval.Did Municipality owe duty of PF such as to give notice before passing bylaw? Dickson : They owed duty. What is important is not form (bylaw), but the substance

(interfering with private property rights of single property owner). Cannot label legislative to dispense with PF!

Majority agreed with DF, but withheld remedy because they came to court without “clean hands”.

Summary: Take multi-factored approach. Start with Cardinal, is it public authority, are they

making decision, is it legislative, rights/priv/interests, of an “individual”. Cardinal is consistent with Knight. Inuit is helpful in showing how the body making decision, while a factor, is not

determinative. Cabinet, Municipal decisions may be either! o Look past body and form, to look: how general is decision; does it look

legislative; is it a power historically exercised by legislature; does it single out

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one individual or small group; is it matter of public convenience or general policy (legislative)?

o Lyster : It is very difficult to categorize these! If admin subject to PF; if legislative/policy nothing. Even if leg (no PF), it may be subject to review on other grounds (failure to comply

with statutory PP; bad faith).

(c) Content of Duty of PF and its Variability.(d) Factors to Determine Level of Fairness Required.

Content is not fixed; it is variable.

Baker v. Canada: Case sets out non-exhaustive criteria to determine how much PF applies.She challenged decision on PF grounds – no dispute that some degree of PF was owing to her – she argued she had been denied participatory rights (no oral hearing; reasons not sufficient and indicated bias). Criteria to determine how much PF applies in any given case:

1. Nature of Decision being made and process followed in making it : How closely does what tribunal did mirror what court would do? The

more judicial, the higher standard of PF they will be held to. The more a decision maker chooses to act in court like decision more PF. Decisions that resolve disputes between parties by finding facts and applying law more PF.

2. Statutory Scheme; Terms of Statute : Where does decision fit in scheme of statute as a whole?

If statute doesn’t provide for appeal (final) increases PF.

If preliminary or tentative (eg: investigation) limited PF.3. Importance of Decision to Affected Persons :

More important the decision more PF.4. Legitimate Expectations :

LE does not have as much force here as in England. LE can lead only to process, not result.

If claimant has LE to a particular process (website indication, etc) rely on it in arguing the process will apply.

If they provide LE of outcome (“we’ll go in your favor”) you cannot rely on it.

5. Choice of Procedures by the Agency : Considerable weight given to procedural choices of decision-maker. Consider if agency has expertise!

6. Residual: List is not exhaustive ! Lyster : All 5 factors may not be present, but whatever number of factors are present,

they may not all go in same direction you have to weigh and make overall conclusion.

Held : She was entitled to more than minimal PF, particularly due to importance of decision to her and her children. (Despite fact that under statute there was high discretion given to officers).

If faced with PF question, you may need to do threshold analysis, but you will HAVE to determine how much fairness under Baker criteria.

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(e) Elements.

Notice: Can mean a few different things, depending on context. Can mean Notice of Hearing; Notice of Process to be followed, etc. Look at statute, interest to be affected, etc.

o Often, rules/statute will define what kind of notice must be given, and then any applicable rules.

o There can be many problems with: form of notice; manner of service; time line; contents of notice.

o Notice will vary: Are you single respondent? (must be served with dox); if you are one of thousands, notice can be affected by notice in newspaper.

Opportunity to be Heard: Flip side of notice.o OTBH is not necessary oral – very often it is in writing; can be exchange of

correspondence.o Look to statute to determine specifics (writing, etc).

Discovery and Disclosure: Somewhat related to notice, but broader.o Can relate to expert evidence, notice of witnesses, etc.o Extent can vary from not existent to significant.o Look to statutes!o Tribunals cannot order pre-hearing discovery or disclosure unless statute

gives it that power. If tribunal has power to issue subpoena, you could seek subpoena to

require witness to bring dox with them (subpoena duces tecum). If witness shows up with all dox – inefficient.

Freedom of Information Request : Can often get disclosure from dox that you would not otherwise have access to.

Statutory amendment : to order tribunal power to order pre-hearing documents.

ATA: From a party and even a 3rd party.o If tribunal has disclosure power, there may be limits.

Deloitte v. OSC (SCC 2003) : As long as commission has powers to compel dox and disclose them, courts will be sensitive to privacy interests, but the interests are not likely to outweigh a party’s right to full answer and defense.OSC investigating company with power to compel dox from Deloitte who were auditors – Deloitte disclosed – 3rd company says that they are entitled to have those documents also. SCC : Compelling was fine as was disclosure. Applied Stinchcombe: Duty to provide all relevant evidence. Placed a lot of discretion on part of OSC. Important Fact : Court held privacy concerns of D were protected

by order that limited further disclosure of materials. Reasoning : Public interest in ensuring fair process for Securities

Commission was more important than maintaining confidentiality.

o In-house Counsel Opinions to Tribunals : Tribunals often interested in these opinions – want to gain access to internal legal advice.

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Courts have not allowed these applications to be successful – SCP applies to in-house counsel to tribunal.

Oral Hearing; Right to Cross Examination:o Khan v. University of Ottawa (1997 OCA) : Where

credibility is issue (at heart of case), courts may entitle them to oral hearing and X-exam.Law student failed evidence course – she said she handed in 4 booklets in exam – only 3 marked by professor – she said they lost the 4th book – she appealed through Senate and was unsuccessful.Was she entitled to oral hearing and X-examination? OCA : Credibility was an issue entitled to oral hearing with X-exam. “Many courts emphasized that when a decision turns on credibility…” “Her credibility was the primary issue before the committee…”

Evidence: Tribunals often given broad discretion in statute to admit evidence that

would not be admissible in court of law.o Sometimes married with provision that rules of evidence may not

be applied strictly. Tribunals technically will admit hearsay evidence. There are outer bounds to discretion: You could never admit affidavit

where person not available for cross-examination in court. Courts will limit to some extent.

Decision can only be rendered on the evidence heard by the decision maker. Tribunals cannot go and search out new facts or evidence; it does come across – must give both parties notice and right to be heard.

Kane v. UBC (1980 SCC) : To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument. You cannot meet with one side and not provide info to other side.UBC professor disciplined for using computers on university time – during appeal to Board of governors, professor was there – President also attended closed session in absence of professor – not clear what President’s role was in after-dinner; may have answered questions – Board upheld president’s decision after meeting – professor sought JR. Held : PF rights violated. Court unhappy President was present at deliberations.

But having had that happened, (additional info), it was essential the Board not make a decision at that point, but provide the info the professor and give opportunity to respond to it.

“…at the very least the Board should have made Kane aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made…”

“The danger is the possibility that further info could have been put before Board for its consider which affected the disposition of the appeal…”

Dickson sets out six principles which govern the appeal:1. Admin decision makers have large autonomy in making decision :

Can determine own procedures Not court’s job to force to act like a court Not fettered by rules of evidence

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2. But they must observe natural justice/fair play in action : Requirements dependent on circumstances of case.

3. High Standard of justice require when right to continue employment at stake .4. Tribunal must listen to both sides, giving opportunity to respond .

…includes opportunity for correcting/contradicting any relevant statement prejudicial to their views…”

5. Unless statute says it, you cannot meet privately with witnesses, or hear evidence in absence of other party.

6. If breach of PF, courts will not ask what prejudice you suffered – court will not speculate.

“…Court cannot conclude there was no possibility of prejudice as we have no knowledge of what evidence was, given by President following the dinner…”

Important Quote : “We are not here concerned with proof of actual prejudice, but rather the possibility or likelihood of prejudice in the eyes of reasonable persons”.

Reasons:o Baker : In some circumstances tribunal may be required to provide reasons.

Why important ? Ensuring fair and transparent decision-making; fostering better decision-making; allowing parties to see their issues have been canvassed and carefully considered; invaluable in event of JR; parties more likely to feel they are fairly treated.

To contrary : Burden on decision-makers; increasing costs and delay; lead to lack of candor on part of decision-makers.

o Lyster : On latest SCC cases, reasons are of even more importance.o PF requirement is not a requirement for good reasons.o Lyster : Did they tell you enough to understand reasons made about case

against you? Do you have basis for grounds should you want to challenge it?

Speedy Hearing/Decisions: There is PF right to speedy hearing and decisions.o Blencoe v. BC : If delay is unexcused and prejudices ability to have fair

hearing may be breach of PF rights. Lyster: If you had fire and documents were destroyed, etc. Lyster: Has to be egregious.

o Unreasonable/unexplained delay can be breach of PF.

Right to Counsel: Extremely rare to argue constitutional right to counsel in same way as criminal law sphere – must show life, liberty, security of person in jeopardy – few tribunals can impact these!

o Here, they are talking about notion that if you are going to be in hearing/interview you should be able to have lawyer with you.

Not talking about funding lawyers!o Lyster : Rare where it would not be breach of PF where decision maker

prevents representation from counsel (eg: may happen in national security).o Lyster : May take into account whether adjournment should be granted.

(f) Policy Rationales for Duty of Fairness. Why impose duty?

o It provides party with sense they were heard, thereby increasing satisfaction with process whether they won or lost.

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o It will improve quality of result if decision-maker has info from both sides.o Increases transparency of process.

Why not impose duty (or at least not a high duty)?o It is a limitation: It is only dealing with process. Could make too concerned

with process at expense of substance of matter at hand.o Takes up time and resources.o Increases judicialization of administrative decision-making.

Independence, Impartiality, and Bias

Arguments about bias, impartiality, independence can often arise on the same set of facts.

The three have different jurisprudential roots. Impartiality : Ideal state of the decision-maker or institution. An impartial decision

maker is one who is able to make judgments with an open mind – can come to the table without his mind already made up or without connections that improperly influence the process.

o Valente: Impartial connotes an absence of bias, actual or perceived. Independence : A means of attaining impartiality.

Bias: Most cases not actual bias, but reasonable apprehension of bias. You really cannot

know the heart of the decision-maker. All you can know is there are circumstances where RAB arises.

Important Distinction : Fairness – you have to show breach; here, you only have to show RAB, not actual bias.

RAB can result from: relationships; previous statements; previously having acted for one party as counsel, etc.

o Can also arise by virtue of conduct during hearing; after hearing in decision that has been made.

o Financial connections; familial; attitudinal. People making decisions have expertise in these areas (Labor Relations Board vice

chairs). If you are in possession of evidence upon which bias allegation could be made, you

are under obligation to raise issue with decision-maker at earliest appropriate opportunity.

o If you fail to do so, and only raise it on JR in court, the court has discretion to apply doctrine of waiver waived right to raise with court.

(a) Individual Bias

Committee for Liberty and Justice v. Canada (1976 SCC) : Test for individual RAB: The AB must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required info. Ask: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think it more likely than not that the person, whether consciously or unconsciously, decide fairly? The reasonable well-invomred person is not one who is overly sensitive.

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Crow was appointed to sit on Energy Board panel which would decide application for Mac pipeline – earlier member of study group which considered feasibility – challenged whether previous involvement should exclude him on basis of RAB. Majority : Yes, there was RAB. Dissent : No RAB. Difference between them arose on their view of EB function. Majority applied a judicial model

for bias; dissent applied admin/contextual focus and said EB had policy focus. Note : Test not that of sensitive or scrupulous conscience. Page 349: “Basic principle in matters has to be applied in light of the circumstances”.

This body balancing, quasi-judicial, issue transcends particular interest at hand, not limited to deciding matter in way court would”.

Newfoundland Telephone v. NFLD Public Utilities Board (1992 SCC) : There is a 2 stage test that applies where you have investigatory stage and hearing stage. During investigative stages (before Notice of Hearing), court applies “Closed Mind Test” where persons have wide license to say what is on their mind –as statements don’t indicated closed mind that submissions would be futile – not subject to attack on basis of bias. Once hearing underway usual RAB test applies.Person’s involvement in utilities board – Wells was consumer advocate – open about views – intended to play adversarial role as champion for consumer rights – issue was pensions and salaries paid to executives of NT – board investigated whether pensions and salaries appropriate – Wells, after hearing set to begin said: “fatcats…drag in here…if they want to give CEO extra pensions, the SHs should pay it…who the hell do they think they are?” – after hearing started, he continued such remarks. Application of New 2 Part Test: Wells’ remarks were outrageous but did not indicate

a closed mind. Wells failed RAB test because he continued to make outrageous statements. Lyster : Closed Mind Test is very low standard. Lyster : “I’ve made up my mind, and nothing you can say will change it”. Closed Mind Test will not apply in every test: never apply to Human Rights. Only

applies in policy or cases with elected officials.o Old St. Bonaface: In legislative contexts, the party alleging bias must

establish there is prejudgment of the matter to the extent that any representation at variance with the view, which has been adopted, would be futile. The court must conclude they are an expression of a final opinion on a matter, which cannot be dislodged.

o Save Richmond Farmland Society: Municipal councilor who campaigned for election favoring a residential development – made public statements that he would not change his mind with regard to his position despite public hearings – court held councilor should not be disqualified for bias because he did not have a completely closed mind – court said to have ruled otherwise would have distorted the democratic process by discouraging politicians from expressing views.

Lyster : Statement about range of administrative tribunals and what they do: Breadth regarding how boards are from and serve the community – it is not reasonable to demand no previous involvement.

Baker v. Canada: Baker criteria that determine PF also apply to participatory rights and apply to how strict a standard of bias is going to be.

1. Nature of decision made and process followed.

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2. Nature of statutory scheme and terms of statute pursuant to which the body operates.

3. Importance of decision to person(s) affected.4. Legitimate expectations of person.5. Choices of procedure made by agency to be respected.

(b) Institutional Bias and Independence:

Moving to institutional concerns – not about particular individual. Fundamental distinction set out in Valente: Although there is obviously a close

relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements.  Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. . . . The word `independent' reflects or embodies the traditional constitutional value of judicial independence…it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch, that rests on objective conditions or guarantees (Matsqui, para.62).

Partiality has to do with state of mind; independence has to do with status or relationship with others (often executive mind of government).

Impartiality/Institutional Bias: Lippe: Court considered concept of institutional bias/impartiality: If system is structured in such a way as to create RAB on institutional level…not met.

Independence: Concerned with insulating members from threats to independence especially form executive branch. Concerned whether tribunal has intentional/subjective guarantees of independence. Typically 3 from Valente:

o (a) Security of Tenure. o (b) Financial Security or Independence. o (3) Administrative Control: Catch-all.

Lyster : Views differ as to whether any constitutional guarantee of independence of tribunals – some say yes, some say it is simply CL rule.

Canadian Pacific v. Matsqui (1995 SCC ) : Determination of institutional bias presupposes that an informed person, viewing the matter realistically and practically, and having thought the matter through, would have a reasonable apprehension of bias in a substantial number of cases.Indian Bands given power to set up tax authorities by bylaw under Indian Act – made assessment of CP’s right of way running through reserves – CP challenged under JR that band lacked impartiality and independence. Lamer: Agreed in part with CP. CP argued: (1) Members of bands could be appointed to sit on appeal tribunals – as

members were exempt from taxes but would enjoy taxes from CP – gave rise to reasonable apprehension of bias; (2) Non-Indian band members on tribunals would be concerned what would happen to them if they issued decisions adverse to band – under bylaws their remuneration was not secure.

Took Valente and applied in administrative law context. Impartiality : Issue was appointment of band members (wanting to feather own nests).

Applied 2 step test – no RAB in substantial number of cases – rejects notion that because band members have stake in economic health that there was automatic bias (relies on NFLD case in saying that community members should be on boards, not just lawyers and bureaucrats) would lead to no band members being allowed to participate. Maybe could establish on case-by-case basis, but not institutionally.

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Independence : Argument rested on concern of non-Indians not having security of tenure or remuneration. Lamer rejects notion that amendments to Indian Act were created to further ab self-government natural justice should apply. Applies 3 guarantees in Valente: In terms of financial remuneration, right to salary must be established by law, and not be subject to interference by band. In terms of security of tenure – must be only removable by cause – subject to review and hearing.

Principles must be applied in light of functions of tribunal; its nature; nature of interests at stake, etc.

o Content of independence guarantee will vary depending on context – money more flexible than security of person.

Looking at bylaws – tribunals perform adjudicative function – but remuneration or tenure is not secure. Under bylaws, says they “may” be paid, and “may” be paid after decision is made, or “may” not be paid at all.

o Bylaws said members may be removed midterm – nothing of cause.o Same people (chief and band council) who appoint them and control

remuneration and tenure, while appearing as party before them. Held : Reasonable person would have concern for lack of institutional independence. Suggests Solutions : Either by bylaw, guarantee remuneration and tenure or give

power to determine remuneration and tenure to someone else. Court does NOT look at actual exercise of tribunal’s power in order to determine if

independence problem. Inquiry focuses on objective assessment – not what would happen if everyone acted properly. Structure has to be such that there are reasonable guarantees of independence.

Matsqui 2 step test: Step 1: Having regard to factors including potential for conflict between interest of members and parties before them, will there be RAB in mind of a fully informed person in substantial number of cases; Step 2: If answer to #1 is no, allegations of AB cannot be brought on institutional level, but must be dealt with on a case-by-case basis (regular RAB test).

2747 Quebec v. Regis (1996 SCC) : Demonstrates issues that can arise when single agency has responsibility for # of functions – particularly investigating and hearing cases. Court does not say you cannot have multiple functions, but boards need appropriate separation between functions. Adjudicators cannot simply be dismissed at the pleasure of the executive branch.Similar to our Liquor Board – distinct legislative context – Quebec Charter, s.23 entrenches right of citizen to public fair hearing by independent, impartial tribunal – argument there was RA of institutional bias because of way decision-making was structured (single agency responsible for several functions). Bias Question : Applies 2 part test for institutional bias – found that even allowing for

flexibility for admin decision makers RAB of institutional bias.o Reasons: (1) Role of lawyers working for Regis – role not defined by statute

or regulations – but both involved in prosecuting cases before Regis, and acting as advisors to judge – no measures taken to separate functions breach of s.23; (2) Role of Regis’ directors – chair could authorize initiation, decide whether to hold hearing – determine who would hear – could decide himself. Court: Having roles in single person RAB.

Overall, the bar argued there were so many points of contact between the liquor board and minister responsible for the board’s enabling legislation, the board’s institutional independence was threatened.

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o Court : It was not unusual for a minister to have many points of contact with a tribunal under its responsibility. No evidence provided to show a minister could affect the decision-making process.

Ocean Port Hotel v. BC (2001 SCC) : [Represents tide turning in favor of tribunal independence to one that is much less robust. Leading case on independence and CL guarantees of independence.] Statute can overrule CL with respect to degree of independence – if statute silent, court will infer Parliament intended to confer with principles of natural justice. The mere fact that investigators serve with dual roles doesn’t necessarily mean bias. If statute is silent or ambiguous, Court will assume principles of natural justice apply but independence gives way to EXPRESS statutory language. BC Liquor Branch conducted investigation of OPH – allegations of no compliance with LCLAct – held hearings – OPH found in breach – OPH appealed to Liquor Appeal Board – under statute there was direct appeal to Court of Appeal – OPH went to CA who decided in their favor on basis of a lack of institutional independence appointees lacked security of tenure (part time fixed terms appointments, removed at pleasure) – terms of appointments fixed by statute. Province of BC appeal to SCC who overturned CA decision. Para. 20: “…absent constitutional restraints, the degree of independence required of

government decision maker or tribunal is determined by its enabling statute…” Para. 24: “Constitutional requirements for courts to have superior independence;

admin tribunals lacks constitutional distinction from executive – created for purpose of creating government policy”.

o Lyster : Controversial part of decision. Lyster : It is possible to read Ocean Port to limit to tribunals with large policy roles,

rather than those of a more adjudicatory nature.

Bell Canada v. Canadian Telephone Employees (2003 SCC) : Requirements for independence and impartiality are different for different tribunals. Highly adjudicative tribunals endowed with court-like powers and procedures could require more stringent requirements of PF, including higher degree of independence. Tribunals dealing primarily with developing/supervising policy may require less independence from the executive. Being fettered by a law does not render a tribunal partialComplaint union filed with Human Rights Commission that Bell in breach of requirement for equal pay (male-female) – allegation HRC was biased and lacked independence because it could issue interpretive guidelines and where member’s term was going to end, HRC could extend to hear a case. Argued guidelines were problems: (a) Party writing guidelines same party before

tribunal; (b) Limits how it can interpret. Argued terms: Chair could pressure members; security of tenure limited (7 years). Lyster : May be stepping back from Ocean Port’s one-size fits all approach. Court : (a) Guideline Power: Rejects notion it could affect independence of tribunal –

only possibility is it might go to question of impartiality. Powers don’t fetter tribunal’s discretion – guidelines have force of law – applying law is not form of fettering. Not uncommon! Tribunals have government appearing before them – government creates the legislation! (b) Overlap of Functions: Writing guidelines and hearing is OK – statute sets out these powers – commission has expertise, who better to write guidelines? Guidelines must apply in overlap of cases – and cannot apply

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retroactively; (c) Extension of Term: This is very common, and who better to re-appoint but the Chair?

o Valente: Chief Justices have power to allow judges to continue to sit past retirement age for this reason!

o No problem in terms of bias – if extension – this is last case they will hear. Lyster : Example of how Bell (and others) used rigorous rules to derail processes.

May give understanding why looser approach developed by courts. Good summary of Independence and Impartiality from paras. 17-31.Summary of Institutional Bias, Independence:

Institutional Bias = state of mind; Institutional Independence = relationships. Both from perspective of a well-informed, reasonable person. Must show test for RAB applies such that there will be problem in substantial number of cases. Impartiality : Relates to structures that could affect state of mind of decision-maker (multiple roles). Independence : Concerned about objective guarantees of independence (security of tenure;

financial security; admin matters).

“HE WHO HEARS MUST DECIDE”

Often not discussed with bias and independence, but audi alteram partem. Note : Stare decisis does not apply to tribunals – but it is important to foster

consistency in decision making. Many tribunals pool resources and adopt procedures to accomplish these things.

Procedure at issue in following cases: If member hearing case wanted to, they could convene full board meeting and at that meeting the policy or legal issues in question could be discussed so as to ensure members of board charged with deciding would have views of colleagues (better decision making, consistency).

IWA 690 v. Consolidated Bathurst (1990 SCC) : Fostering coherence should not compromise panel member’ capacity to decide in accordance with conscience or opinions: process should not be used to force or induce decision-makers to adopt positions which they do not agree; discussions should be limited to law and policy – NOT fact; parties must be given reasonable opportunity to respond to new grounds arising from the full board meetings. Board decision – issue whether employers engaged in collective bargaining inform union that they were planning to close the plant – 3 member panel of LRB (neutral chair, employer rep, union rep) – BALANCED BIAS – panel decided it was breach of duty to bargain in good faith not to advise union – before decision they asked for full board meeting – employer’s counsel heard about full board meeting and sought JR on basis that full board meeting went on without notice and they could not make submissions – breach of PF (he who hears must decide) – facts were not discussed, it was a matter of policy and law only – attendance was not required nor taken – no minutes – no votes (purely consultative).Were full board hearings a breach of “he who hears must decide” principle of natural justice in that decision-makers are in position of being influenced by others who have not heard the evidence or arguments? Majority SCC : No problem with full board meeting. Rationale of meetings was to foster coherence and to avoid conflicting decisions. Lyster : Hard to JR a LRB decision (privative clause) –you must get it right first time! Adjudicative Independence : Decision makers should not be subjected to any

pressure, while at same time allow board meetings to continue. No principles breached: Panel members who heard decision heard everything – they

alone were responsible for making decision despite presence of others at meeting.

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o There must be appropriate safeguards in place so as not to impact adjudicative independence: Could not be forced to make decision – no attendance taken – no votes – no minutes protected independence.

o There was no audi alterum problem (notice; opportunity to be heard) – discussion confined to policy and legal issues and NOT facts.

Lyster : Would be problem if fact-finding problem impinged.

Tremblay v. Quebec (1992 SCC): Imposition of consultation meetings by a member of the board who was not on a panel could amount to an inappropriate constraint.Granting of welfare benefits in Quebec – wanted reimbursement for dressings and bandages and appealed a decision in writing to 2 Commissioners who make a draft decision that says Tremblay is right – normal practice is that legal counsel checks decisions, but they were on vacation, so President looks at it instead and decides it needs to go to a “consensus meeting” – he discuss this, most people disagree – one Commissioner changes her mind –when there’s a split, goes to President – Tremblay challenges in Court. Held : Did not meet test of fairness for four reasons:

1. Requirement that it was compulsory to send decisions to legal counsel (acting as gatekeeper to ensure consistency)

2. President could request meeting about case that he did not sit on3. At the meeting, people DID vote, kept MINUTES, NOTES pressure to conform

Evidenced by the fact that someone DID change their mind4. Process circumvented legislative will because those not hearing case decided.

Ellis-Don v. Ontario LRB (2001 SCC) : “He who Hears” principle is there, but it is very hard to get at it. It is fine for board to change their mind – cannot just speculate that change was prompted by reassessment of facts – applicant must establish an ACTUAL breach –apprehended breach is not sufficient to trigger JR. Institutional decision-making OK as long as: (a) Consultation not imposed on from above (voluntary and at request of panel); (b) Limited to law and policy; (c) Individual must be free to decide notwithstanding the discussion. Same legislation as above – but evidence here the panel changed its mind as between full board meeting and after, on factual question if union abandoned bargaining rights – retired member of LRB gave copy of first draft of decision to employer counsel – Lyster : Impossible, absent impropriety, to get at what happened at meetings. Ellis-Don did not apply for reconsideration – went straight to court – made application

to examine members of board who attended meeting.o Court said NO – it would be breach of deliberative secrecy.

Argued presumption of regularity should not apply – onus on LRB to establish there was not breach. But the SCC applied presumption.

Employer could not prove breach of procedures and policies – not permitted to examine – mere fact of mind change is no sign of anything.

The Charter and Administrative Law: Cross Fertilization in Public Law

(a) Comparing the Ambit of Constitutional Law and Administrative Law: Scope of admin law: Deals with decisions of public authorities not of legislative

nature that affect rights, privileges, or interests of an individual (Cardinal). Constitutional Law: Deals more broadly with relations between individual and state,

or between different parts of the state. Constitution Act, s.52(1): Constitution is supreme law – inconsistent laws are of no

force or effect.

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o Section 32: Charter applies only to legislatures and the government.o McKinney: Not all statutory creatures are part of government for

purposes of Charter (in this case, university).o Khan: Universities may be statutory decision makers who are under

admin law principles. Eldridge: There may be non-governmental bodies that may exercise

governmental functions – and may in those functions be subject to the Charter.

o In this case, hospitals were at issue.o Held : When delivering services pursuant to Hospital Act subject to Charter.

Blencoe v. BC, HRC (2000 SCC) : In vast majority of admin law cases – it is hard to get in a Charter argument. In terms of PF, it is aspect of duty of PF to give hearing within a reasonable time – but while you have right difficult to get a remedy for it, particularly in human rights cases where another party stands to be impacted. Sexual harassment complaint filed by women working for B, who was an MLA – at time, there were egregious delays in the system – 32 months passed from time of complaints until date set for hearing – Blencoe challenged on basis that Charter rights to life, security, liberty of person were being breached because of unreasonable delay.1. Did Charter apply to HRC ? (Is it constitutional case)?

Majority: It applied, because – There is no doubt that the Commission is created by statute and that all of its actions are taken pursuant to statutory authority. Just because it was independent of government, did not mean it could not apply (Charter, s.32).

2. If Charter applies, does s.7 apply ? No engagement of s.7 – as his rights had not been deprived. Anxiety and

stress were experienced, as was stigma – but these were not sufficient to engage right to life, liberty, security of person.

Majority not saying s.7 could never apply. It was theoretically possible for delay to lead to breach.

3. If s.7 applies, have they been breached in manner not in accordance with principles of fundamental justice?

Not applicable.4. If Charter does not apply, is there remedy on administrative law grounds (right to

speedy hearing)? Majority: Delay not an abuse of process. There must be proof of

significant prejudice in order to give rise of breach of PF. SP = Things that would impair party’s ability to answer complaint.

Memories fade; witnesses died or moved where they cannot be summonsed; evidence lost through sheer passage of time.

o If you can establish this degree of delay breach of PF. Held : Blencoe could not establish these factors.

o Could other forms of prejudice (psychological) suffice to lead to breach of PF? Yes. Even where fairness of hearing not compromised can lead to breach. Para. 115: “Where inordinate delay has directly caused significant

psychological harm to a person, or attached a stigma to a person’s reputation, such that human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process”.

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Para 121: It will be rare case you can establish prejudice on non-evidentiary basis: “The respondent must demonstrate the delay was unacceptable to the point of being so oppressive as to taint the proceedings”.

Reason for Reluctance : What will remedy be? Usual remedy will be stay of complaint against him – but it will not help two complainants.

o To determine if abuse of process : Fact based inquiry; look at nature of case; complexity; facts; law in issue; purposes and nature of proceedings; who caused delay; entirety of circumstances including rights of others who would be affected.

Ask : Would community sense of fairness be shocked by delay?o Application : No gaps of inactivity; problems for Blencoe were not necessarily caused

by delay, but because of his political position.o Even though HRC won, costs were awarded against HRC in favor of Blencoe and

two complainants.o Dissent (Important because of close split):

Doesn’t make sense to think about Charter – rather decide on admin principles, and only if we cannot decide then go to Charter. (Lyster agrees)

Under admin analysis, they would have held there was abuse of process. But, despite abuse, they would not order stay, because of unfairness to

complainants. Para 158: Not all admin bodies are the same: “Three main factors: (1) Time taken to

deal with matter as compared to time requirements – how much more time than necessary was taken? (2) Causes of delay beyond inherent time requirements; (3) Impact of delay – harms to lives of real people.

Dissent would have held it was HRC’s inefficiency breach. It was not a complex case and did not need prolonged investigation.

3 Possible Remedies: (a) Stay – but it would be contrary to public interest; (b) Mandamus – order for body to do its job order for expedited hearing; (c) Costs.

Asad (BCSC): Example of delay.Human rights case – Syrian man traveled to NY and took pictures of WTC – showing pics to friends and 9/11 happened – friends reported – RCMP investigated and said no issue – he was fired at work and filed human rights complaint – hearing started in reasonable amount of time – members did not write decision for 3 years – decision said employer breached in immediate 9/11 context, but not subsequently during firing. Court said delay egregious and excessive – failure on part of tribunal to comply with obligation to issue a decision. Employer did not seek remedy – so court did not offer one.

(b) Constitutional Issues that May Arise Before Admin Tribunal: Division of Powers : Some admin tribunals have to decide these questions –

particularly ones that work in divided federal/provincial jurisdiction (Securities Commissions; Labor Relations; Human Rights).

o All decisions are reviewable on correctness standard on JR. Evidentiary Issues and Other Charter Remedies (s.24) : Application may be made to

tribunals to exclude evidence on basis it was obtained in manner contrary to Charter. o Securities commissions have search and seizure powers – can decide

whether to exclude, etc.o Weber v. Ontario Hydro (1995 SCC) : Labor arbitrator under K was court of

competent jurisdiction under s.24. Employee terminated by OH – OH engaged in surveillance of employee who claimed he was too injured to work – he said his termination was unjust and Charter rights breached.

Held : Arbitrator had jurisdiction and could deal with Charter issue. Lyster : Even if tribunal not competent court under s.24, may still

decide s.24 issues on analogous basis.

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o Charter Values: All courts and tribunals under obligation to decide under Charter values.

(c) Can Tribunals Determine Constitutionality of Their Own Enabling Statutes? Sometimes a tribunal does not want a certain provision to apply. Old Trilogy of Cases: Admin tribunals with express or implied power to determine general law

power to determine constitutional issues. Restricted to not applying invalid legislation – could ONLY say provision inapplicable. [Overtaken].

Cooper v. Canada, HRC (1996 SCC): This case has been overtaken.Issue was mandatory retirement provision in CHRA – airline pilots wanted to challenge mandatory retirement provision – statute provided it was not discriminatory to force retirement. Majority (LaForest): Neither the commission nor tribunal had authority to determine constitutionality of provision.

Nothing in CHRA that provided express power to determine.o Was there implicit power? He said no suggestion of Parliament intending commission had power to

determine general questions of law. Commission not set up to do this kind of work; no expertise; no procedures less efficient.

o He said if the commission had no power neither does the tribunal [Lyster: Tribunal has explicit power to determine general questions of law].

Dissent (Lamer): Signed on to majority only on basis of stare decisis.o He would have overruled Old Trilogy – no admin tribunal should have power to declare provisions

unconstitutional. Even if Parliament granted this power to a tribunal, it still would not have the authority!o They must decide federalism questions; can decide on basis of Charter values.

Dissent (McLachlin): Applied Old Trilogy – they have power to consider and apply general law can consider unconstitutionality of provision.

Nova Scotia WCB v. Martin (2003 SCC) : [Adopts McLachlin’s dissent in Cooper]: Administrative tribunals have the jurisdiction to consider constitutional issues; only express Parliamentary intention can override this rule.Claims for compensation for chronic pain under NSWCA – severe limitations on these claims – if person classified, they could only get 4-week program – argued it was unconstitutional on basis of right to equality. Unanimous Court : Appeal tribunal had jurisdiction to decide constitutional question. First Question to be Addressed: Did tribunal have express/implied authority to decide

questions of law of any sort?o If tribunal has express/implied authority to decide questions of law, it

will be presumed to have concomitant jurisdiction to determine constitutional validity of provision, unless legislature removed power.

o Onus is on person who says the tribunal does not have that power. o Examples of ways to do it: Express conferral to another body; complex areas

too difficult; implied authority (look at statute as a whole: statutory mandate of tribunal; practical ability, etc).

o Court not saying they are overruling Cooper, but to the extent it is inconsistent, with this new Martin rule.

Second Question: Can presumption be rebutted?o Presumption can be rebutted by explicit withdrawal of authority to decide

constitutional questions or clear implication to the same effect. o Ask : “Does exam of statute clearly lead to conclusion that legislature intended

to exclude the Charter from the scope of questions of law to be addressed?”

ATA: BC government purported to deal with Charter jurisdictions of tribunals: If section 43 applies tribunal has constitutional and Charter jurisdiction. If section 44 applies no constitutional jurisdiction whatsoever (most tribunals). If section 45 no Charter jurisdiction, but some constitutional (Human Rights).

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BC is only province to pass this jurisdiction – in all others – Martin applies. In BC, Martin is law, subject to these sections.(d) Exercise of Discretion.

When someone granted discretionary power: there is range in which to exercise it. If faced with case where decision-maker exercised discretion – you seek JR: could

argue it is unreasonable OR it is unconstitutional. Lyster : Law is in state of flux – but some principles are clear.

o Fact that statutory discretion may be exercised in way that it is contrary to Charter does not make grant of power un-constitutional.

o If you have statutory discretion, you must exercise it consistent with Charter. Unclear: If you have case that can be decided either on constitutional or

administrative grounds.

Slaight v. Davidson (1989 SCC) : You are only assessing constitutionality of statute if you have to (if statute is on its face unconstitutional). If broad or imprecise discretion granted: assess decision: (a) On administrative law grounds – if it fails, it fails; but if it passes, then (b) do Charter analysis.Issue was remedial order by adjudicator under Canada Labor Code – Davidson was fired – challenged his dismissals were unjust – adjudicator found in Davidson’s favor and made remedial orders – stat grant of remedial authority was very broad: “do any other like thing…equitable to require employer to do …in order to remedy…” – he ordered a bunch of $ - made “positive order” had to give D letter of recommendation and set out what letter had to say – had to give negative order: if employer received letter of inquiry from another potential employer…they had to send letter of recommendation – seemed like gag order!Court split three ways: Majority (Dickson): Agrees with respect to applicability of Charter application.

o Agrees that freedom of expression was violation but was saved under s.1 (positive order).

o On negative order, disagrees with Lamer, it was reasonable on admin law sense, as far as Charter concerned, it was a breach but was saved by s.1.

Both orders rationally connected to laudable purpose of enabling legislation as well as proportionate to its ultimate end remedying inequality of bargaining power between employers and employees.

o Precise relationship between admin and Charter will be worked out in future, but at minimum, admin law unreasonableness should not be harder or more onerous standard than burden upon government under the Charter.

Dissent (Lamer): Negative order was patently unreasonable. On administrative law grounds, it was struck out. Did NOT get to constitutional questions.

o Positive order, he was with majority: it is not patently unreasonable goes on to Charter analysis.

o Nature of discretionary decision-making: Parliament could never intend to pass a law inconsistent with Charter – nor could it authorize admin action that violates Charter.

o He does administrative analysis first if it survives constitutional. o (around page 10): “It would be useful to describe steps to determine validity of an

order made by an admin tribunal: Two principles: (1) Tribunal may not exceed the jurisdiction it has by statute;

(2) It must be presumed leg conferring imprecise discretion does not confer the power to infringe the Charter unless that power is conferred expressly or by necessary implication.

If legislation confers power to infringe assess whether legislation is unconstitutional (s.1).

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Multani v. CSMB (2006 SCC) : Unclear what impact this case has had on order/test.Sikh boy wore kurpan – school district had rule that you could not wear weapon – they viewed it as weapon, not religious object – it was sewed into cloth under deal for accommodation with school, but school board objected – argued it was discrimination and against right to equality. Court said it was discrimination, but disagreed with tribunal’s analytical path. Court split 3 ways, but majority was 5 (Charron). Majority : Decides as Charter case with crucial issue if district complied with Charter.

o JR may raise both admin law and Charter issues, but substance of this case was not administrative, but Charter. If it is in pith and substance a constitutional law question, just do a constitutional analysis – skip the administrative analysis.

o Majority believed applying administrative law’s “unreasonableness” test would limit rights under the Charter.

"The rights and freedoms guaranteed by the Charter establish a minimum constitutional protection that must be taken into account by legislature and by every person or body subject to the Charter."

The rule against weapons under admin law was not the subject of this case. The real focus was how in practice the law banned the kirpan.

o Lyster : Majority was motivated by confusion of having two analyses. Minority : Concurs in result (unconstitutional) – but they do the opposite.

o Decided only on administrative law principles: Draw distinction between norms and decisions. They would only apply constitutional analysis to a norm. Decisions should be assessed using admin law principles, but would apply Charter values.

o Said it was unreasonable in administrative law sense. Minority (LeBel): Should apply Slaight.

LYSTER: Not clear what affect of Multani is. Does it mean when you raise constitutional

argument it must be decided on constitutional principles? Not necessarily! Arguably, Multani says if constitutional issue, it must be argued on constitutional grounds (Lyster: “That is not what they meant though”).

For purposes of course, take what is clear: o Only assess constitutionality of decision if we have to because provision

authorizes it to exercise in unconstitutional manner.o If provision grants discretion must be exercised in line with Charter.

Unclear: If admin goes first, following a constitutional analysis?

Standard of Review

Talking about people having decision from admin decision maker and don’t like it. First question: What is standard of review to use in reviewing decision?

o Consider anew and substitute judgment for correct answer?o Exercise some degree of deference and only intervene when decision is

bad enough to warrant intervention? Tension between rule of law and deference to legislative supremacy.

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Current law set out in Dunsmuir v. New Brunswick, supplemented by Khosa. Exam: Unlikely to apply earlier cases.

o ATA statutorily determines standard of review to tribunals that it applies.

(a) History of Development of the Law.

CUPE v. New Brunswick (1979 SCC): Sea change case in development of admin law. Threw cold water on preliminary/collateral doctrine. Should not say a certain error goes to tribunal’s jurisdiction – should ask if decision is rational or reasonable. Courts need to be more deferential. Standard of review for JR became patently unreasonable.Strike in NB liquor stores – union alleged employer using management staff as replacement workers – Act prohibited – LRB interpreted provision as preventing use of management staff – LRB ordered employer to refrain from using management. NBCA: Interpretation of statute was a collateral matter – LRB had to be correct as it went to

jurisdiction – LRB was incorrect. SCC: Use of “collateral” is of no assistance in determining jurisdiction or in reviewing

decision. Held : LRB did have jurisdiction in broad sense (over parties, subject matter, and remedy).

o Referred to strong privative clause in statute: Rationale is to protect decisions from interfering courts.

o Lyster: They are interpreted as cautionary sign; not meaning there is no JR at all. Rationales for Deference: Specialist body with expertise lacking in court; area of law where

there is need for quick, sensitive decision-making, etc. Dickson: There is no one correct interpretation of this provision; LRB’s interpretation is a

reasonable interpretation did not lose jurisdiction in argument it was “patently unreasonable”.

Held : LRB decision stood – it was within range of reasonable interpretations.

UES v. Bibeault (1988 SCC): Step back from deferential approach. Real question is: “Did legislature intend question to be within jurisdiction conferred on tribunal?” No simple/precise rule can be stated to answer – origin of Pragmatic and Functional Approach.JR of LRB decision under Quebec Labor Code – successorship provisions were at issue. First question to be decision is whether tribunal was performing act within its jurisdiction in a

strict sense.o If yes, subject to lessor JR; but if not, it was going to be subject to correctness

test.o CUPE does not mean that only patently unreasonable decisions can result in

excess jurisdiction. Pragmatic and Functional Analysis to try to answer “intention” question.

o (1) If Q within jurisdiction only patently unreasonable interpretation will result in loss of jurisdiction.

o (2) If provision is jurisdiction-limiting any error will result in loss.o Consider wording and purpose of statute, and expertise of tribunal.

Lyster : Don’t worry about this case too much.

Canada v. Southam (1997 SCC): Court creates third standard of reasonableness. First four part test elaborated.Application to competition tribunal for Southam to divest newspapers on basis that it had too large of the market share – statutory right of appeal (not JR).Does the standard of review analysis apply to statutory appeals?Held: Yes, it applies.Four Factors:1. What is the nature of the problem ? (Law, fact, discretion, mixed)

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o Law questions: Correct legal test; Fact: What happened; Mix: Do facts satisfy legal test?

o If something question of law less deference; if fact, more deference; mixed, somewhere in between.

2. Language of statute at issue .o Fact it is appeal is relevant less deference than if privative clause.

3. Purpose of statute .o Here there was statutory purpose clause.o More legal purpose less deference.o Suggestion that less expertise for judges more deference.

4. Area of tribunal’s expertise – MOST important. Para.56: “An unreasonable decision is one that, in the main, is not supported by any

reasons that can stand up to a somewhat probing examination.  Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.  The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.  An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence.  An example of the latter kind of defect would be a contradiction in the premises or an invalid inference”.

Para. 57: “The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect.  If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable.  But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable”.

Pushpanahtan v. Canada (1998 SCC): Four factors from Southam are in place. Expertise means expertise relative to the court. P claimed convention refugee status – it had not been adjudicated – granted permanent residency – convicted of trafficking – minister ordered conditional deportation – IRB ruled P was not refugee because of conviction – he sought JR.What is appropriate standard of review of IRB decision? [Case remains important because of court’s discussion of “jurisdictional error”: “Focus still on

provision. a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis…“jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown” (para.28).

Lyster : We apply PF approach (4 Southam factors), then determine correctness review.]

Law Society of NB v. Ryan (2003 SCC): Restated principles in Pushpanathan and Southam. There are only three standards of review.Law society tried to disbar Ryan.Are there only three standards or is there sliding scale or spectrum? Court applied Push factors (there was statutory appeal; expertise) greater deference.

o Reasonableness standard applied (deferential self-discipline). Not searching for error! Question not to ask is “What is right decision?” Correctness v. Reasonableness : In correctness, court make take own reasoning process to

arrive at decision it believes is correct; in reasonableness, court should NEVER ask what decision should have been.

To determine unreasonableness: Look to reasons!

CUPE rejected preliminary question; emergence of doctrine of patently unreasonableBIBEAULT emergence of pragmatic and functional approachPEZIM Patently Unreasonable test can apply on an appeal

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SOUTHAM spectrum of difference; first 4 part testRYAN/DR.Q three standards only; always do P and F analysis to determine SOR

(b) The Law Today.

Everyone was unhappy with state of law. ATA and other provincial statutes came into play; SCC in these two cases also tried

to simplify state of the law.

ATA: Makes presence or absence of privative clause the single most important factor in

determining standard or review; secondly, what is nature of the question? s.58: If there is a privative clause:

o Relative to courts, tribunal must be considered to be an expert tribunal.o For each tribunal, for each question…here is the standard?o (2)(a): Findings of fact, law, or exercises of discretion over a matter within

its exclusive jurisdiction patently unreasonable (most deferential).o (2)(b): Procedural Fairness fairness.o (2)(c): For all other matters correctness.

s.59: If there is no privative clause:o (1) Correctness is default, except discretion, fact, procedural fairness. o (2) With respect to facts can be overturned if no evidence or there is

unreasonableness.o (3) Discretion patently unreasonable.o (5) Procedural Fairness fairness.

Lyster : ATA was an attempt to make things simpler, but it hasn’t worked. o “Mixed fact and law” is not addressed in statute!o “…for all other matters…” is very unclear. o At CL, there is no longer a patently unreasonable standard (Dunsmuir).

Dunsmuir v. New Brunswick (2008 SCC) : New contextual functional test: Standard of Review Analysis. Dunsmuir employed by NBDOJ as court clerk – difficulties in employment relationship – NB terminated his employment with 4 months pay in lieu of notice – did not allege clause – he had right to grieve under Act in NB – went to adjudication – D raised PF issues (no notice of problems, 4 months pay not enough) – adjudicator found he had jurisdiction to provide additional remedies – on merits, he held termination wasn’t for cause (applies Knight to say there was duty of PF and employer failed to comply because no reasons and opportunity to respond) – in alternative, arbitrator said amount of notice not adequate. Majority of 5 rewrote law of standard of review:

o Focus to ensure: legality, reasonableness and fairness of process and result.

o What did legislature intend in terms of scope of admin authority? Try to maintain legislative supremacy.

o Do not be quick to brand things as jurisdictional. o Crevier: Leg branch cannot remove judicial power to review for

constitutional matters, even with privative clause. o There are now only two standards of review: Correctness and

reasonableness.

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They are both predicated on idea that there may be multiple valid interpretations.

Courts should not interfere if one chosen is rationally supported. Should not allow decisions that are patently unreasonable to

stand. Reasonableness : (para.40):

“…inquire into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes…[it is] concerned mostly with the existence of justification, transparency and intelligibility within the decision making process…also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of facts and law”.

Deferential, not more intrusive of what tribunals do. Reasoning is important (transparency and intelligibility).

o Correctness : (para.43): “When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will (a) bring the court to decide whether it agrees with the determination of the decision-maker; if not, (b) the court will substitute its own view and provide the correct answer”.

Deference (para.48): Not supposed to be invitation to be less deferential.

o How to Determine When to use Correctness or Reasonableness ? Question of fact, discretion, policy and law not easily separate

from facts reasonableness most likely. Many legal questions Correctness (but not all). Factors : (1) Privative Clause more likely Reasonableness.

However, not necessarily determinative. JR is necessary to “ensure the privative clause is read in its appropriate statutory context and that admin bodies do not exceed their jurisdiction”; (2) Type of question: (a) Fact, discretion, policy almost always Reasonableness; (b) Intertwined Fact and Law almost always Reasonableness; (c) If tribunal interpreting its own statute or one that is closely related almost certainly Reasonabless; (d) Principles of CL/civil law within statutory context likely Reasonableness; (3) Type of Regime: A “discrete and special admin regime in which the decision-maker has special expertise (labor) is strong presumption Reasonableness.

You don’t have to do the whole analysis every time: “Existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard” (para.50).

Examples of Correctness applying : (a) Dealing with constitutional legal issue, including Charter, and division of powers; (b) True questions of jurisdiction or vires – intended in the narrow sense of jurisdiction to embark on inquiry at all; (c) General law that is central to legal system and outside adjudicator’s expertise; (d) Jurisdictional line between two competing specialized tribunals.

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o Two step Approach : If case law handled it, just follow stare decisis. If not, look at factors similar to Southam.

Application : This case was question of law; there was full privative clause; labor regime; arbitrator interpreting his statute; alternative to judicial process; not question of central importance to legal system; not outside expertise of arbitrator Reasonableness.

Held : Decision was unreasonable. The statute was not interpreted correctly in the least. Arbitrator did not have jurisdiction. His finding turned on finding that employer owed duty of PF.

Does at pleasure appointee have right to PF (Knight v. Indian Head)? Knight overturned in part. Still good law in respect of general discussion of PF.

Everything they said about PF was good, but NOW if you have public employee who has K of employment they are NOT owed duty of PF. If public employee is employed pursuant to K of employment, K law applies!

PF continue to apply to judges, etc., who do NOT have contracts.

Lyster: Important to know/ask how much deference a court will show.

Discretion

Two bases on which admin decision can be reviewed: (a) Fairness of process followed; (b) Merits (content) of decision substantive review.

o Note : Substantive review is sometimes referred to as “jurisdictional”. Errors with respect to discretionary decision-making deal generally with merits or

substance of the decision. Jurisdictional Error : Error sufficiently bad to warrant judicial review.

Errors of Discretion. Under CL, discretionary errors are subject to reasonableness. Under ATA, they are subject to most deferential standard available, patently

unreasonable.

Discretionary Decision-Making: Baker: (a) Decisions where the law does not dictate a specific outcome; or (b) Where

the decision-maker is given a choice of options within a statutorily imposed set of boundaries.

o Where there is not one right answer – there is range of possible answers &outcomes. So long as answer given is within range acceptable.

When does a statute grant discretionary power?o Use of word “may” is a strong indicator, but is not sure-fire.

You can have discretionary power without “may” being used. Sometimes word indicates mandatory power rather than

discretionary.o “In opinion of” … or “…in the view of…”o Look at statute more broadly: Is there specific statutory factor?

Under Human Rights Code, need to file within 6 months. However, statute later says members have power to exercise discretion to accept late applications, with mandatory factors.

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Look at statutory purposes set out in statute – all discretionary decisions are subject to these!

Roncarelli v. Duplessis: Every statute has prospective with which it is intended to operate. There is no such thing as untrammeled discretion. for discretion to be legally exercised, it had to pursue legitimate purposes and take into account the situation of the individual affected by the decision.Statute did not state any statutory purposes – it was about granting liquor licenses – Court : His actions had nothing to do with granting liquor licenses. Taking into

account these activities – were not relevant commissioner lost jurisdiction through abuse of discretionary power.

“There can be no question of good faith when an act is done with an improper intent and for a purpose alien to the very statute under which the act is purported to be done”.

Before Baker, the law developed a number of discreet doctrines that are generally headed under title of Abuse of Discretion. Historically, argue an error of discretion fell under ones of the doctrines. Baker subsumed discretionary decision making under Standard of Review Analysis. If dealing with discretionary decision: (a) Determine standard of review (usually

reasonableness); (b) May apply older abuse of discretion doctrines.

Abuses of Discretion:

1. Unauthorized or Ulterior Object of Purpose . Relating to statute’s object or purpose. In a sense, this abuse incorporates all of the others.

Shell v. Vancouver: Example of a body acting utlra vires – beyond the purpose of their statute.City of Vancouver passed resolutions precluding dealings with Shell given the company’s dealings with the apartheid regime in South Africa – Shell challenged the resolutions on grounds they had been enacted for improper purpose, and they were discriminatory. Minority : The city was not immune to JR just because it was involved in procurement of goods and

services. o How much deference to show to municipality?

Great deal of deference! Court should imply power of city to do what it wishes to do.

o Was resolution created for improper purpose? No. City can decide who it will and will not buy fuel from. It is difficult to determine motives of elected bodies – court should not attempt to

due so in absence of explicit bad faith. City’ actions came within range of Vancouver Charter to do with good rule.

Majority : Whatever function, cities are creatures of statute and must stay within its bounds. Regardless of function – business, quasi-judicial or legislative, their actions are always review-able on basis of ultra vires.

o Municipalities can only act for municipal purposes (explicit in statute, or are compatible for purposes of statute).

o Resolutions were passed for impermissible municipal purpose: No express power in Vancouver Charter; resolutions of no benefit to citizens of city; extra-territorial in nature.

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Lyster : Even though it was mostly legislative, still subject to JR!

2. Bad Faith . Roncarelli is best case: “…discretion implies good faith in discharging public

duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption”.

Decisions are always review-able for bad faith (Inuit). Whether legislative, quasi-judicial, etc. always review-able. Lyster : Proving it is another issue altogether!

3. Taking into Account Irrelevant Considerations . Roncarelli; Shell. Very commonly raised.

4. Failure to Take into Account Relevant Considerations . Baker: Decision-maker failed to take into account the best interests of the

children. By virtue of the international convention that Canada is signatory, it was a consideration to take into account.

One of the most commonly raised and successful grounds for review.

5. Unreasonable in Wednesbury Sense . 1948 decision of House of Lords. Used to be important (discretionary decision could be reviewed if so absurd or unreasonable, no reasonable

authority could have come to it).o Lyster : Essentially means crazy or totally absurd.

In essence, this case was our “patently unreasonable”. Largely overtaken by recent statutes and CL.

6. Discriminatory in the Administrative Law Sense . Shell was decided in alternative on this basis. Singling out for bad treatment as compared to the others. Particularly important in the municipal law field. Different than human rights or Charter law sense.

7. Fettering of Discretion . Has to do with situation where you have discretionary power and through some

mechanism, rather than engaging in genuine exercise of that power, you limit the scope of your discretion.

Refers to decision-makers who in advance decide how they will exercise their discretion before being presented with the particulars of a situation. It transforms the nature of the power that has been delegated to them.

You cannot fetter discretion of decision-maker who is statutorily authorized to make the decision.

Must approach each case with open mind deciding on basis of the merits.

Falman v. Community Living (BCCA 2007) : Fettering of discretion as a ground of review falls under category of abuse of discretion. The essential allegation is the decision-maker failed to exercise discretionary powers genuinely in an individual case, and rendered a decision on the basis of pre-existing policy.Falman was 19 years old at time adoptive mom initiated proceeding – had many disabilities – received services from government and an agency created by government – statute created CLBC set out criteria for receiving its services – adults and children had different standards of

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disability requirements – without statutory authorization, the agency applied criteria for mental retardation as the standard, with IQ of 70 as limit – his IQ was 79 – tester (psychologist) recommended he still receive services – CLBC rejected recommendation – he was cut off. Court : CLBC was ultra vires – acting outside of statutory powers in utilizing IQ

criteria: (a) Unlawful Sub-Delegation (para 37): Cabinet could have made IQ regulation, but did not – only it had the authority; (b) CLBC Fettered Discretion: In absence of rule from cabinet, they adopted inflexible policy. In doing so, they fettered statutory discretion to determine whether someone should receive these services after reaching the age of 19.

o Important Fact on (b): They refused to consider other relevant factors, including his severe behavioral deficits, as highlighted by the shrink!

Decision was quashed, and sent back with relevant factors. CLBC appealed, but the BCCA upheld the decision of the BCSC.

BCCA : Upheld on both grounds above, and in addition found an error of law in interpretation of “developmental disability”.

8. Unlawful Sub-Delegation . Someone given exclusive authority to do something (statute), but instead,

someone lower on the food chain does it instead. There is absence of statutory authorization (Falman). Sometimes it is implicit in statute where SD is lawful. Courts are ready to imply

that ministers may sub-delegate their powers. We are not dealing with content of the decision here! Decision will be rendered void. The person who has the authority need not necessarily have granted the

delegation – it is enough that the person/body took it upon themselves. Vic v. Montreal: SD is okay when it involves simple matters of execution,

where delegation is possible because the exercise of power does not require any particular ability or expertise.

9. Dictation . Person statutorily authorized is in formal sense making the decision, but

someone else is telling them what to do. Lyster : You could argue this category is a form of fettering.

Standard of Review in Addressing Discretionary Decisions. ATA: If the ATA applies, for discretionary decision-making, it doesn’t matter if you are

under section 58 or 59 (privative clause) – they are treated the same way.o The standard of review is patent unreasonableness:

58(3) and 59(4): (a) Arbitrary (not based on reasons) or bad faith; (b) Exercised for improper purpose; (c) Based entirely or predominantly on irrelevant factors; or (d) Fails to take statutory requirements into account.

This list is exhaustive! o Lyster : Tricky to fit these with Fettering, Unlawful Sub-Delegation, or

Dictation. o If ATA applies, you must fit discretionary error we are arguing into one of

these four points.

Canada (Immigration) v. Khosa: While in Dunsmuir, the court eliminated patent unreasonableness, that does not mean less deference is to be shown to

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adjudicators under reasonableness standard. Courts should stand back and show deference to administrative tribunals. Emphasizes importance of written reasons.Khosa convicted of criminal negligence causing death – alleged and proven at trial that it arose out of street-racing incident – at time, he had landed immigrant status – prepared to acknowledge he was engaged in dangerous driving but not street-racing – under Immigration Act, landed immigrants involving criminality may be removed – applied to Immigration Appeal Division on basis of humanitarian and compassionate considerations – majority held he must leave Canada – they were exercising discretionary power – key consideration not to exercise discretion was his alleged lack of insight in nature of conduct (refusal to admit street-racing) – he sought JR in Federal Court who denied him – FCA overturned decision applying reasonableness standard. Majority : Restored decision of Immigration Appeal Division.

o JR should be more concerned with substance, post-Dunsmuir.o Required application of broad policy considerations.o Legislative Intent: It is for IAD to find facts, weigh and assess them, and

apply broad policy considerations. o Para. 17: This case demonstrates why Dunsmuir was decided the way it

was. By switching to reasonableness, the FCA felt empowered to retry the case, even though it had to do with policy, not law.o Unless the IAD has gone seriously astray, it is not for the SCC to

reconsider or retry the case. Federal Courts Act :

o Section 18.1(3) says what FC may do on application for JR: (a) Order board to do any act thing to do or unreasonably failed to do; (b) Grant relief if satisfied that…acted without jurisdiction…no natural justice, etc…

o Lyster : Where Parliament sets out these criteria, does the CL apply, or do you simply apply the statute?

Court: These are not statutory standards of review, but grounds of review.

The CL standard of review analysis remains relevant. Para.25: “Dunsmuir recognized that with or without a privative

clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts.  This deference extended not only to facts and policy but to a tribunal’s interpretation of its constitutive statute and related enactments because “there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision is rationally supported”.

Court talked about ATA (para.19): Can only be sensibly interpreted in the CL context. o Patent unreasonableness continues to live on in BC ATA.o Lyster : People have been trying to use Khosa to breathe life into the ATA,

but it is unclear where that stands. Standard of Review Analysis (paras.52-58 – good analysis post-Dunsmuir):

a. Look to existing jurisprudence, apply stare decisis: “…as between reasonableness and correctness, existing jurisprudence may be helpful…”

b. If none, do SRA to determine if correctness or reasonableness: (a) Privative; (b) Purpose of Enabling Statute; (c) Nature of question at issue; (d) Expertise of board.

i. Take contextualized approach – may not need to apply all of them – no checklist with tight balance: “…what is needed is an overall evaluation…” (para.54).

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ii. Applying these: (a) There is privative; (b) IAD determines wide range of appeals; (c) Nature of question was highly fact dependent and discretionary; (d) Considerable expertise was evident.

1. Reasonableness is the standard.c. Applying Reasonableness: (para.59): Single standard that takes color

from its context; requires deference; cannot substitute own appreciation of the appropriate solution, but must determine if it comes within a range of possible outcomes in respect of fact and law. There could be MORE than one reasonable outcome. But as long as process fits comfortably within the terms of justification, transparency, and intelligibility not open to court to substitute its own view of a preferential outcome…”

Whether they agree with decision is beside the point, Parliament entrusted decision to IAD.

Lyster : Significance of reasons of tribunal below to JR – primary form of accountability.

o NOT job of court to get behind reasons and reweigh evidence, but if they provide justification for their decision should be fine.

Lyster : SCC just examined to see if decision was reasonable, and didn’t go into the nine categories above.

Relationship Between Doctrines and Contemporary SOR: We are in early days of finding relationship between these doctrines and

contemporary standard of review. In many cases, after determining standard, it will be useful to look at these

doctrines to see if they are reasonable.o But often, just look at whether decision was reasonable without looking at

those doctrines!o If faced with discretionary decision, determine SR, and consider

potential applicability of these doctrines in saying whether decision reasonable or not. But if you cannot pigeonhole, it may still be unreasonable.

Administering Security: Limits of Administrative Law in the National Security State

Suresh v. Canada (2002 SCC) : The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. There is a reluctance to second-guess Minister in terms of National Security, but court is more prepared to enter in the procedural realm. Relying on fair procedures to limit government making substantially unfair decisions. The authority to re-weigh the relevant considerations in Baker was for the Minister, NOT the reviewing court.Suresh was detained on grounds he was member of terrorist org in Sri Lanka – ordered deported – challenged both on grounds he would face torture – Section 19 of Immigration Act said no person granted admission if (e) reasonable grounds to believe

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members of organization…terrorist…etc – Section 53: No person determined under Act shall be removed to place where person’s life will be threatened UNLESS Minister of opinion that person constitutes danger to Canada. Held : Largely for Suresh. Overturned on procedural grounds.1. Standard of Review Applicable to Ministerial Decisions :

NOTE: Pre-Dunsmuir. [Factors pre and post are the same, but PU no longer applies.]

Decided standard here was PU (privative; expertise, Minister has access to special information in national security; purpose of legislation said Minister in better position to decide; inquiry in question was fact based and contextual).

Lyster : Decision conflicts with Baker.2. Constitutionality of Conditions for Deportation :

Suresh argued they were unconstitutionally vague: court held they were not. However, the court did not give terms (eg: danger to Canada) the same meaning that the government did.

In essence, statutory interpretation being used to limit state action. Generally speaking, deporting to torture would violate s.7, but it could be justified. Minister’s discretion had to be exercised in accordance with constitutional

norms. 3. Procedures in Process Unconstitutional :

Court applies Baker criteria for determining what kind of PF you are entitled to in order to determine content of s.7 protection.

Lyster : Administrative law principles are being imported to determine what principles of fundamental justice are (paras.113-114).

“…as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the CL factors not as an end in themselves, but to inform the s. 7 procedural analysis…the CL law is not constitutionalized; it is used to inform the constitutional principles that apply to this case”. NOTE: List is not exhaustive!

Applying Criteria : (a) Nature of Decision: It is to deport, and bears some resemblance to judicial proceedings, but also deference not in favor of strong or weak procedural safeguards; (b) Statutory Scheme: Under s.53, when Minister forming opinion, no provision for hearing, reasons, appeal, etc… absence of safeguards need for strong procedural safeguards; (c) Nature of Right or Interest: Convention refugee facing risk of torture strong procedural safeguards; (d) Legitimate Expectations: Article 3 of Convention explicitly prohibits torture when substantial grounds, etc. This Convention “informs” s.7. Note: Law does not mean LE of outcome, but increased procedural safeguards; (e) Choice of Procedures by Agency: Minister not bound to any procedure. Given this freedom, deference is to be shown, but it must be reconciled with elevated level of protection, suggested by 3 of 4 other factors.

Heightened level of procedural protection is due when person facing detention to torture. Does not require judicial process, but it does require more than Zero protection he received: (a) Informed of case to be met; what minister is thinking, subject to privilege or other valid reasons for reduced disclosure…..documents…including…and public security; (b) Opportunity to examine….Minister … decision…; (c) Opportunity to challenge info given to Minister, including giving own evidence; (d) Must give written reasons for decisions to articulate and rationally sustain findings that there was reasonable belief of torture – must be reasons, and not submissions made to Minister.

He got none of these violation of s.7.

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Appropriate Remedy in Event Suresh Successful: Decision sent back to Minister to ensure procedural rights protected.

Charkaoui v. Canada Immigration (2007 SCC) : [Know 5 prerequisites for fair process under s.7 and way in which process interacts with IRPA.] Overriding Principle of Fundamental Justice requires that before the state can detain people for long periods of time, it must afford them of judicial process; (a) Hearing of some sort…(b) before an independent and impartial magistrate; (c) Magistrate must make decision based on facts and law; (d) Person detained has right to know case against him; (e) Person must have right to answer that case.At issue was constitutionality of security certificate process as it then existed under IRPA – process allowed Minister to issue cert of inadmissibility with respect to foreign national in Canada led to detention – required to be deemed threat to national security – once detained, could be deported…all review-able by court – review process to determine reasonableness was such that persons could be deprived of some or all of the info on which cert and detention were ordered – s.7 rights are engaged (detention). Court : Procedures depend on context. “Question is whether principles of fundamental justice relevant to the case have been

observed in substance, having regard to the context and the seriousness of violation” (para. 22).

National security context and consequences for detainee are BOTH important.

Overriding Principle of Fundamental Justice : Before state can detain people for long periods of time, it must afford them of judicial process; (a) Hearing of some sort…(b) before an independent and impartial magistrate; (c) Magistrate must make decision based on facts and law; (d) Person detained has right to know case against him; and (e) Person must have right to answer that case.

Application : (a) “The IRPA process includes a hearing…process consists of two phases, one executive and one judicial. There is no hearing at the executive phase that results in issuance of the certificate.  However, this is followed by a review before a judge, where the named person is afforded a hearing Sufficient; (b) Under legislation, judge sees all material, but detainee and lawyer do not. Because judge has access to this info, and detainee does not, judge is forced into quasi-inquisitorial role – suggests judge may be perceived in government’s camp; but also as inquisitor, may be perceived as in detainee’s camp (protection). Ultimately, IRPA designed to preserve neutrality, despite concerns Independent; (c) One could not be sure judge had access to all relevant info; because detainee received no info could not raise all legal arguments (no participation) Requirement not met. (d) Right to know case against you is not absolute, but is important. In context of non disclosure…grave…difficult to find substitute….. Despite best efforts of judges, could not provide s.7 breached. (para.63). Breach was not saved under s.1, but considers possible alternatives for process to pass constitutional test… (e)

Important Quote on Right to Know Case : “The right to know the case to be met is not absolute. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side. In Rodgers, the majority of this Court declined to recognize notice and participation as invariable constitutional norms, emphasizing a context-sensitive approach to procedural fairness. And in Goodis, the Court held that while “hearing from both sides of an issue is a principle to be departed from only in exceptional circumstances”, in the ordinary case, a judge would be “well equipped…to determine whether a record is subject to SCP” without the assistance of counsel on both sides…More particularly, national security considerations can limit the extent of disclosure of info to the affected individual (Chiarelli)”.

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Ultimately, court struck provisions at issue in IRPA; suspended decision.

After Decision : Government amended IRPA which put in place special advocates not acting for detainee, but represent their interests given access.

2008: Issued new security certificates to Charkaoui and others.

That led to Charkaoui #2 2008 SCC (not to read): [Dealing with old provisions] Under old provisions – Charkaoui appealed to SCC a dismissal of application for stay – basis for stay was allegation that government breached obligation to give him info – court ruled in his favor – Basis for decision: CSIS policy was to destroy original evidence upon reports being filed – Some documents were not disclosed to Charkaoui (summaries of discussions) – He requested them, but government said no because they had been destroyed under policy. Held : The policy of immediate destruction of notes was bad, and not required under CSIS Act. Retaining those notes is important – is best evidence of what was said and done. Having retained notes, were they under obligation to disclose? This is admin context, not evidence (eg: Stinchcombe). There is constitutional duty to disclosure. Consequences not necessary to have stay, etc. You need to engage in contextual analysis. Lyster: Court saying going forward (future cases) they must disclose. Ultimately, there was s.7 breach, but no stay granted. Bare declaration was all he got. Lyster: Declaration may be all you get in this sort of case.

Amendments to IRPA (special advocate system) more information. New security certificate issued to some people. New cases to determine reasonableness:

Re Charkaoui (2009 FC): Under new Bill C-3. New security certificate held void. Reasoning: Ordered disclosure of info consistent with Char #2 (more access to info). Rather

than comply and provide info, the government said they would not longer rely on it so injurious to national security, they folded tents and would not rely on.

Federal Court: Government asked federal court to certify serious question of general importance. Under IRPA, need SQGI for appeal.

Federal Court declined to certify. Feds left without grounds for appeal. Char now suing government for $20-million in separate proceeding (civily because damages

not available).What all of these cases should do is get us to think about how courts draw balance for people like Charkaoui’s interests with national interest of preventing terrorism.Lyster: Inclination for courts to deal with these matters on procedural bases, rather than substance of decisions.

(No exam on this case). Prime Minister v. Koddar (2010 SCC): Limited ability of courts to exercise review on Royal Prerogative. Most cases will result in a bare declaration.Koddar held in Gitmo – seeking order from court requiring government to request his released from US – in Koddar #1 SCC ruled Gitmo conditions in violation of our international human rights obligations ordered disclosure of interviews – in Koddar #2 here, seeking repatriation. Held : Charter rights violated, but declined government ordering to do anything about it. Why did they refuse patriation? Patriation exercise of Royal Prerogative (discretionary, arbitrary power

in hands of Crown). Source of administrative power not based in statute “Limited source of non-statutory power in hands of Crown”. These include: declaring war, giving passport, etc.

Rare case where court will do anything but order bare declaration in response to problem in exercise of Royal Prerogative.

Lyster : Know what RP is and that it may be subject to review; unlikely to get meaningful remedy other than bare review.

Regulations and Rule-Making: The Dilemma of Delegation

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In enacting statute, it is impossible to set out in detail all applications. Legislature delegates power to make subsidiary legislation as necessary: often to Cabinet, minister, tribunal, etc.

Most admin law is concerned with adjudicative decision-making, but here, we are looking at creation of rules. Rules intend to create norm of conduct of general application (versus solving a dispute).

Key Principle: Delegatus non potest delegare: Delegate does not have power to sub-delegate.

Only the body to whom power is delegated has the power to exercise that authority.

Sometimes statute gives decision-maker the power to sub-delegate then this rule does not apply.

o Example : ATA, s.4: “If chair is absent, he may designate vice-chair or member for the period the chair is absent”.

Sometimes power to sub-delegate is implied: Court looking at matter sees “necessary implication” (statutory interpretation).

o Example : Where minister given power to do something, court will imply that minister himself cannot do everything.

CLBC: Mom filed lawsuit on behalf of son who would not be provided services as adult. Struck down: Purported to exercise rule-making power in place of Cabinet unlawful sub-delegation.

Subordinate Legislation:1. Regulations These have the force of law – legally binding in same way as statute. Subsidiary law, but still same effect. Usually broader and more substantive force.2. Rules: These have the force of law – legally binding in same way as statute. But, these are

often more procedural. No real distinction between Rules and Regulations – what is important is whether it

has the force of law.

3. Soft Law: Guidelines, policies, manuals, information sheets, practice directions, etc. Do not have same force of law as Regulations and Rules – not legally binding. Decision maker cannot be held liable for not abiding by these “laws” – at least

not directly. These are still important, however: Baker: Minister issued guidelines to guide officers

– court took guidelines into account in determining whether officers in exercising discretion was reasonable.

Para. 72: “Guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise…of power”.

May be taken into account in Baker factors in determining level of PF. Can play into 2 factors : (a) Legitimate Expectations: If tribunal issues guidelines of

procedures – they could create legitimate expectation; (b) Agency’s Choice of Procedures: Measure against practice directions, etc.

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Why soft law created? Helpful to decision-makers – particularly ones not legally trained in helping them to understand complex legislation.

Can be helpful to the public in this manner as well. Negatives :

If decision-makers treat soft law as legally binding fettering discretion (CLBC). CLBC adopted rigid IQ requirement that was not in legislation.

4. Hybrid: ATA, s.12: Tribunal must issue practice directives. Statutorily backed mandate to issue practice directives. Sub 2: Tribunal not bound by practice directives. s.13: Tribunal may make directives, providing consistent with enabling Act

and ATA not bound by them.

Who Can Leg Delegate Rule-Making Power To? Anyone they see fit: Cabinet; specific minister or ministries; private bodies;

private/public partnership entity. Admin Tribunal example: ATA, s.11: “Tribunal has the power to control its

own processes and may make rules respecting practice and procedure to facilitate the just and timely resolution of the matters before it”.

Why Delegate? Cannot foresee every eventuality. Comparative expertise and knowledge (eg: scientific knowledge for environmental

regulations). Too time consuming for legislature to create this legislation. Legislature does not want to be tarred with making certain decision (passing the

buck). Desire not to be transparent – don’t want it subject to Question Period. Desire to consult. Easier to amend rule or regulation than legislation – greater flexibility.

Negatives: Can be anti-democratic. Can be elitist. Can be non-transparent. More pressure from special interest groups (more focused pressure). Delegatee may not exercise powers consistent with intention of legislature

(principle-agent problem).

Mechanisms to Control Process of Delegated Decision-Making: Legislative Control After the Fact : Amend legislation and eliminate delegation;

amend so it is more obvious what intention was; void out rules or regulations made and create their own.

Choice of Delegate : Give to cabinet or minister of their party. Choices of Ministry : If environmental power required, do you give to Ministry of

Mines, or Ministry of Environment, etc? Consider how they would act in delegating. If you want to reduce political interference, delegate to administrative tribunal (Bell

Canada). HRC had authority to create guidelines (rules) that provided binding interpretations of CHRAct – binding even to arms length body – court said no problem…not a big deal to apply the law.

Limit Resources of Body Granted the Power .

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Provision in Legislation Providing for Legislative Review : eg: Require cabinet approval; have rules placed before legislature for review and approval; etc.

Other Process Requirements : eg: Delegated rule-making body chooses them, or they could be mandatory in legislation. Tribunals can consult with other bodies, persons in developing rules.

Mandatory examples: Hold public hearing before creating rule; public consultation.

Notice and Comment Requirements: If considering creating rule, give public notice of proposed regulation.

o These do not impose requirement to take advice, but must provide opportunity for advice, and take into account.

Judicial Review of Delegated Rule-Making: Delegated Rule-Making can be subject to judicial review:

Fettering: Improper use of delegated rule. Unlawful Sub-delegation. Ultra vires – failure to comply with statutory condition precedent – resulting

lack of jurisdiction (Inuit). Bad Faith: (Thorne’s Hardware), but almost impossible to prove.

Almost never review-able for lack of PF : Because if it is true rule-making, it is not exercise of admin power, but legislative.

Be SURE to address this issue on any exam question: Is it legislative or administrative?

Thorne’s Hardware v. Canada (1983 SCC) : (a) OIC are subject to JR; (b) Can seek JR for failure to comply with statutory conditions precedent leading to fatal jurisdictional defect; (c) Decisions made by Cabinet in matters of public convenience and general policy are final and not review-able; (d) Cabinet decisions review-able on other compelling grounds – but takes egregious facts.Federal cabinet made order-in-council under authority of National Harbor Board Act to expand boundaries of Port of St. John – appellants had built dock outside harbor – by OIC, area where they had dock was made part of harbor where company had to pay harbor dues – company argued made in bad faith and improper purpose of increasing revenues. “…the mere fact that a statutory power is vested in governor in council does not

mean it is beyond JR.” “Law and jurisdiction are within the ambit of judicial control and the courts are entitled

to see that statutory procedures have been properly complied with (National Fish Co.)”.

“…no doubt of right of courts to act in event that statutory conditions precedent have not been met – fatal jurisdiction defect. But decisions made by Cabinet in matters of public convenience and general policy are final and are not review-able in legal proceedings…”

“Although the possibility of striking down an OIC on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action”.

Held : OIC was not made in bad faith. It was not task to weigh evidence to determine cabinet’s motives – they are unknown and unknowable.

Point of Interest : Court does review evidence anyway – to show that extension was one of economic policy and politics and not jurisdiction.

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“Cabinet…believed that he had reasonable grounds for passing the OIC extending the boundaries of Saint John Harbor and we cannot enquire into the validity of those beliefs in order to determine the validity of the OIC”.

Lyster : Case does not stand for proposition that you can never review delegated rule-making for bad faith – it is just that it would have to be egregious!

Will be hard, short of Roncarelli situation (manifest bad faith). Lyster : If what you have is decision is made for public convenience/policy

(legislative) not review-able for PF. Must be administrative decision, not legislative!

Statutory Condition Precedent: Unsure what it is, but would include process requirements (eg: Notice; must be right decision-maker). Should be interpreted narrowly. Should not open up substance of rule to JR. Essentially saying whatever rule is made is actually authorized by the statute. Homex: Municipality passed by-law that singled out developer – despite it was in

form, it was in substance about single individual subject to review in terms of PF.

Enbridge v. BC (AG) (1997 SCC) : Courts will review the substance of rules and regulations for whether the regulation is within the grant of power and whether the regulation violates the Charter.

Lyster Summary: Overall, courts have hard time placing in broader principles. In particular, standard of review is unclear in this area. Generally speaking, not subject to JR. If truly legislative (norms of general application) not subject to review on PF, but ALWAYS subject to review on statutory conditions precedent.

Access to Justice and Other Worries

Standing: Who has Right or Ability to Appear Before Tribunal?

(a) Standing to Appear Before Tribunal.

Generally determined by statute. These say who has right to appear, or if not, who may have opportunity to appear before tribunal to persuade it to hear them.

In theory, tribunals are set up for lay litigants to navigate process without counsel. But, HRT stats indicate correlation between success and representation.

Lyster : In reality, in many instances you just need a lawyer.

(b) Standing to Challenge Administrative Action in Court.

Only those with rights directly affected have right to seek JR. Trilogy of standing cases – two forms of standing recognized:

Standing as of Right (Finlay): Having sufficient personal interest (eg: interference with private right; suffering damage peculiar to oneself).

Public Interest Standing : Person or body has to establish: (1) Serious and justiciable issue to be tried; (2) Genuine interest in the matter; and (3) There is no other reasonable or effective way to bring issue before the court.

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Finlay v. Canada (1986 SCC) : Those principles in constitutional sphere apply equally in administrative sphere. The test under Public Interest Standing: (1) Serious and jusiticable matter? (2) Is party genuinely interested in matter? (3) Any other reasonable and effective way for the matter to be brought to court?Finlay wanted to raise question if province’s welfare law put it in breach of Canada’s Assistance Plan – he was welfare recipient – Manitoba was reducing monthly benefits because he had overpayment in past – that reduction was putting him below minimum level pursuant to CAP – he said he had standing as of right, and if not, he should have public interest standing. Held : No standing as of right.

o He had direct and personal interest in non-compliance of Manitoba, but it was not sufficient.

o “I am on balance of the view that the relationship between the prejudice allegedly caused to the respondent by the provincial non - compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal payments is too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule”.

o Lyster : It was a close call! Held : Public Interest Standing found.

o Policy concerns regarding reluctance to grant PIS: (1) Scarce judicial resources; (2) Desire of court to have benefit of contending points of view in controversy. If 2 parties out there better able to give court contending points of view better way to bring issue before the court; (3) Proper role of courts and relationship to government: Courts exercise judicial, not legislative role requirement for justiciability.

Canadian Council of Churches v. Canada (1992 SCC) : Example of not granting PIS despite fact that discretionary nature of public interest decision is to be exercised in a liberal and generous manner. Public interest standing is not required when it can be shown on a BOP that the measure will be subject to attack by a private litigant. CCC and other groups wanted to challenge amendments to Immigration Act – CCC did not have standing as of right. Held : No public interest standing. Court emphasized discretionary nature of public interest deciding: To be exercised in

liberal and generous manner. Reasons why no PIS : (a) There were individual refugee claimants who could and

would bring individual challenges other means to bring before court; (b) Persons applying for refugee status are in no danger of early or speedy removal – they have time to prepare for litigation.

Policy reason for granting status : To prevent immunization of legislation or public acts from any challenge (para. 252).

Lyster : Often these organizations will find individual, and participate through him.

CBA v. BC (2006 BCSC) : The limitation of PIS to legislative challenges is express and intentional.CBA and others tried to mount broad challenge to BC Legal Aid.Did CBA have standing? Not as of right – no direct interest. Did not consider public interest standing – not necessary because there was no

reasonable cause of action under R.24.

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On basis that CBA’s petition failed to disclose reasonable cause of action for broad challenge – court turfed whole thing – did not consider public interest standing.

“…the Supreme Court intended to extend public interest standing only in those circumstances where a challenge to administrative action was analogous to a challenge to legislation. In other words, public expenditure or other administrative action could be challenged but only on the basis that it was without or in excess of statutory authority” (para.42).

Lyster : Any kind of broad based argument around constitutionality around anything to do with funding legal services will go nowhere. If they want to succeed it will be on case-by-case basis.

Duty of Procedural Fairness.Does it include right to counsel? Absent specific circumstances, if tribunal refused to hear from lawyer breach of PF. Right to Counsel : Does not mean right to state-funded counsel. If you want

counsel, try to anchor to s.7 and 10 of Charter – but these don’t apply in administrative contexts all that often.

State funded counsel is sometimes available. Sometimes there are contractual obligations to provide counsel/advisors.

BC (AG) v. Christie (2007 SCC) : There is no general right to legal services determining rights and obligations before tribunals.Christie was petitioner, lawyer, who chose to provide cheap representation – challenged constitutionality of 7% Legal Services Tax – tax was for funding legal aid, but it went to general revenue – challenge on basis that effect was that low income clients would be barred from bringing action – Held : Legislation constitutional.

o No general constitutional rights to counsel before courts and tribunals.o Right to access courts is not absolute – government has power to impose

some conditions.o General right to legal services is not precondition to rule of law.o Absent s.10(b) or 7, no general right to legal assistance.

Lyster: Criticism is that SCC misconstrued claim – he was not arguing for general right to access to legal services.

Language. Questions yet to be answered: Are the tribunals’ materials available in plain English,

in translation? Are interpreters available, and if not, should a tribunal provide them? Filgueria: It is within discretion of Tribunal to determine whether the objective

of removal of discrimination can be achieved in the absence of providing, in whole or in part, translations services to a language other than an official language to a party.

With Respect to COURT Context: Tran: A party who does not understand or speak the language has the right to assistance of an interpreter. Level of understanding need not be high some basic opportunity to understand and be heard.

Note : Error must go to “vital interests” of accused, even in criminal context. Thus, even a serious problem with translation on a minor point will not constitute violation.

Clearly, Filgueria modifies the CL for administrative contexts.

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In reality, linguistic access remains a significant hurdle for almost all tribunals.

Legal Representation. Generally, non-lawyers can appear before tribunals. Problems : Not subject to same professional and ethical obligations; conduct may not

necessarily be expert; questions of ability to control appearance of non-lawyers.

Costs. In civil sphere, the norm is that the winner required to pay portion of legal costs of the

loser. Unusual for tribunals to have costs power. In order for them to do so, they require

statutory authorization – there are none implied. ATA, s.47: If statute applies, will allow tribunal to order costs. Other enabling statutes authorize the power. In JR, courts have power to order costs!

This is significant factor in many persons choosing not to seek JR.

Fees. Some tribunals have power to charge fees (eg: filing fees). ATA, s.60(c): Government has power to make regulations setting out fees associated

with filing applications before tribunals. (-): These can serve as barrier to justice. (+): Prevents some junk cases.

Trend: Judicialization of Administrative Justice Process. Written reasons; procedural fairness, etc make tribunals more like courts. There is significant pressure also from threat of JR.

Constitutional Jurisdiction. General rule: Tribunal that has jurisdiction to apply law, has jurisdiction to determine

constitutionality of enabling statute (Martin). In BC, ATA, s.45 indicates that tribunals do not have jurisdiction to apply

Charter. Lyster : You can argue both ways in terms of access to justice.

Controlling Process. Unless statute says a tribunal has power to declare person vexatious, or contempt

power they cannot! Can have impact on access to justice – those who are difficult to deal with (10%),

can use up limited resources.

Complaints: What Else Can You Do? JR is difficult for lay litigant! Consider complaint to ombudsman. You can complain to HRT regarding another agency! Public opinion: Write letters. Seeking legislative change. Many tribunals offer ADR mechanisms.

Remedies. In JR, remedy is usually that decision is quashed, and new hearing is ordered.

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But, for new result to come, there will have to be new hearing costs become huge, and party with $ can keep running party who does not have $ to the ground.

Advocacy Before Administrative Tribunals

Ethical Obligations. Officer of Court: Obligation to client, court, society, opposing party. These obligations apply to tribunal hearings as well as court.

Suggestions for Practice. Learn about the Tribunal! Visit a hearing beforehand. Pay attention to detail. Know the legislation, rules, regulations, and practice directives. Be persuasive, respectful, while taking hard positions.

o Formulate arguments in manner consistent with tribunal’s view of its own mandate.

Opening Statement : Opportunity to say what case is about and why tribunal should take your view.

More cases are won on direct examination, than cross-examination. The facts are more important than the law 90% of the time. You can prepare and

shape the facts. But you still need to know applicable law! Be truthful and accurate at all times.

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