Judicial review of administrative action *Professor Fox-Decent

Judicial Review of Administrative Action Winter 2006

Judicial Review of Administrative ActionProfessor Evan Fox-DecentWinter 2006

PART I: INTRODUCTION.........................................................................................................................41. Introduction to Judicial Review of Administrative Action...........................................................42. Introduction to the Rule of Law......................................................................................................5

Abuse of Discretion as a Ground for Judicial Review (CB 951-954).......................................5Roncarelli v. Duplessis [1959] SCR 121 (Que.), p. 952....................................................................5British Columbia v. Imperial Tobacco Canada Ltd. [2005] SCC 49................................................7

3. The Administrative State and the Rule of Law..............................................................................9Areas of activity that are the subject of administrative schemes:.............................................9Actors of administrative law.....................................................................................................9Judicial Review.......................................................................................................................11

Grounds for Judicial Review............................................................................................................11The Rule of Law and the Administrative State.......................................................................12

4. The Constitutional Basis of Judicial Review................................................................................12Courts and Tribunals...............................................................................................................14

Re Residential Tenancies Act, [1981] 1 SCC 714...........................................................................14Crevier v. Quebec (Attorney General), 1981 SCC..........................................................................17

5. The Role of Judicial Review...........................................................................................................18Baker v Minister of Citizenship & Immigration (1999) SCC..........................................................19

PART II: ADMINISTRATIVE PROCEDURES AND THE DUTY OF FAIRNESS..........................256. Introduction and Historical Overview..........................................................................................25

Cooper v. Board of Works for Wadsworth District (1863) (England)............................................257. Emergence of the Duty of Fairness................................................................................................27

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) SCC.........27Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)....................................30

8. Limitation on the Scope of the Duty: legislative and policy decisions.......................................32Cabinet and Cabinet Appeals............................................................................................................32Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] 2 SCR 735 (Can.)......................32

Bylaws and Rulemaking...................................................................................................................33Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.)..........33

Legislative Decisions........................................................................................................................34Authorson v. Canada [2003] SCC 39..............................................................................................34Wells v. Newfoundland [2004] SCC 53...........................................................................................36East York (Borough) v. Ontario (Attorney General), [1997] O.J. No. 3064...................................36

9. Legitimate Expectations.................................................................................................................38Liverpool Taxi Fleet Operators’ Association, [1972]2 QB 299 (CA,) UK.....................................38Kahn, UK, House of Lords...............................................................................................................38Old Saint Boniface Residents Assn. Inc. vs. Winnipeg (City), [1990] 3 SCR 1170 (Man.).............39Reference re Canada Assistance Plan [1991] 2 SCR 525 (BC)......................................................39Mount Sinai Hospital v. Québec [2001] 2 SCR 281 (Qué).............................................................41Baker v Canada [1999] 2 SCR 817 – LEGITIMATE EXPECTATIONS...................................................42

10. Interests Protected by the Duty of Fairness............................................................................42Re Webb and Ontario Housing Corporation, [1978] Ont. CA........................................................42Hutfield v. Board of Fort Saskatchewan General Hospital, District No.98....................................43Mullan and Ceddia, “Globalization and Domestic Law: The Impact on Public Law of Privatization, Outsourcing and Downsizing – A Canadian Perspective.........................................44

11. Constitutional Dimensions: Section 2(e) of the Bill of Rights & Section 7 of the Charter...45

1


National Anti-Poverty Organization v. Attorney General of Canada, [1990] FCA........................46Singh v. Minister of Citizenship and Immigration, [1985] SCC.....................................................47

12. The Content of Procedural Fairness........................................................................................4912.1 Introduction and Framework........................................................................................49

Mullan (pp. 171-6)...........................................................................................................................49Baker v Minister of Citizenship & Immigration (1999) SCC..........................................................49Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)....................................50Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3...............................51Quebec Charter of Human Rights and Freedoms RSQ 1977, c. C-12............................................52

12.2 Oral Hearings................................................................................................................53Khan v. University of Ottawa (1997) (Ont CA)...............................................................................53

12.3 Right to Counsel...........................................................................................................54Re Men’s Clothing Manufacturer’s Association (1979) (Arbitration Ont Div Ct).....................54NB (Minister of Health and Community Services) v. G. [1999] 3 SCR 46.....................................55

12.4 Disclosure.....................................................................................................................56Kane v. Board of Governors of UBC [1980] 1 SCR 1105...............................................................57Haghighi v. Canada (Minister of Citizenship and Immigration) [2000] FCA...............................57Pritchard v. Ontario (Human Rights Commission) [2004] SCC.....................................................58

12.4 Duty to Give Reasons...................................................................................................58Baker v Minister of Citizenship & Immigration (1999) SCC..........................................................59Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3...............................60VIA Rail Canada Inc. v. National Transportation Agency [2001] 2 FC 25 (FCA).........................60Liang v. Canada (Minister of Citizenship and Immigration) [1999] (FCTD)................................61Gray v. Ontario (Disability Support Program) (2001) (Ont CA)....................................................61

12.5 Bias and Lack of Independence....................................................................................62Energy Probe v. Canada (Atomic Energy Control Board) (1984) (FCTD FCA).......................632747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – IMPARTIALITY...............................................................................................................................652747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – INDEPENDENCE...........................................................................................................................66Newfoundland Telephone Co. v. Newfoundland (Bd of Comm of Pub Util) [1992] 1 SCR 623.....67Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3.....................................................68Bell v. Canadian Telephone Employees Association [2003] 1 SCR 884.........................................69

12.6 Unreasonable Delay (not covered this year).................................................................69Blencoe v. BC (HR Commission), 2000, SCC from BCCA..............................................................69

13. Reflection on Procedural Fairness...........................................................................................71PART III: SUBSTANTIVE REVIEW AND JURISDICTION..............................................................72

14. Introduction...............................................................................................................................72The Meaning of Jurisdiction (Mullan)..............................................................................................72Law Society of New Brunswick v. Ryan [2003] SCC......................................................................74Dr. Q v College of Physicians and Surgeons of British Columbia [2003] SCC.............................75Toronto (City) v C.U.P.E., Local 79, [2003] SCC..........................................................................75

15. Pragmatic & Functional Approach.........................................................................................7615.1 Patent Unreasonableness..............................................................................................76

C.U.P.E., Local 963 v. New Brunswick Liquor Corp. [1979] SCC.................................................76National Corn Growers Assn. v. Canada (Import Tribunal), [1990] SCC.....................................77

Problems Distinguishing between Patent Unreasonableness & Reasonableness.............................7815.2 Correctness...................................................................................................................79

Canada v. Mossop, [1993] SCC......................................................................................................79Trinity Western University v. British Columbia College of Teachers, [2001] SCC........................81

2


Pushpanathan v Minister of Citizenship and Immigration, [1998] SCC........................................82Barrie Public Utilities v Canadian Cable Television Assn, [2003] SCC........................................82

15.3 Reasonableness simpliciter...........................................................................................83Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 SCR 748...................83Chamberlain v. Surrey School District No. 36, [2002] 4 SCR 710.................................................86Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 SCR 609.........................................................................................................................................................87

16. Discretion....................................................................................................................................9016.1 Ultra vires and review for unreasonableness: Abuse of Discretion as a Ground of Judicial Review.......................................................................................................................91

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3...............................92Shell Canada Products Ltd v. Vancouver (City) [1994] 1 SCR 231 (BC).......................................93

Failure to Consider Relevant Factors................................................................................................95Baker v. Minister of Citizenship and Immigration [1999] – REVIEW FOR UNREASONABLENESS.......95Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] FCA............................96

16.2 Discretion and the Constitution: the Charter and Underlying Principles of the Constitution.............................................................................................................................97

Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038......................................................97Lalonde v. Ontario (Commission de restructuration des services de santé) (2001) Ont.CA..........99

17. Application of International Human Rights Law.................................................................102Baker v Minister of Citizenship & Immigration (1999) SCC – INTERNATIONAL LAW....................102Ahani v Minister of Citizenship & Immigration (2002) Ont CA....................................................103Dyzenhaus, Hunt, Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation.................................................................................................................104

18. Discretion, Rulemaking and “Soft Law”...............................................................................10519. Agency Jurisdiction to Determine Constitutional Matters..................................................106

Cooper v Canada (Human Rights Commision) (1996) Ont CA....................................................106

3


Part I: Introduction

1. Introduction to Judicial Review of Administrative ActionJudicial Review: review of administrative decisions or determinations made by someone who has the power and authority to make a certain set of decisions of determinations, but this person is not of the judiciary (typically part of the administration, which refers to all agencies, tribunals, commissions, ministers who have been delegated powers from statutes as acts of Parliaments or legislatures to deliver public goods or administer public programs). This includes immigration officers, competition tribunals, regulatory agencies (e.g. CRTC), labour boards, municipal counsels, …

Judicial Review vs. Appeal: Judicial review is concerned with legal errors and can be available when there is no leave for appeal. It is a review of the procedure and substance of the tribunal’s decision seeking the relief of a prerogative remedy. The lawfulness of a tribunal’s decision may be impugned by a challenge to procedure (natural justice)

OR that the decision does not accord with the law (the empowering statute).

A decision of an administrative board may be reviewed on either two grounds: Process (Procedural fairness): that body of common law that requires a decision maker or an

administrative tribunal to allow a person subject to their decision-making ability to reply to the case before them.o Based on natural justiceo Has to do with process, not substanceo The decision-making body is given a certain amount of latitude, but idea that there is an inherent

right of the reviewing body to review the procedure that was used.o Courts will feel quite comfortable reviewing process issues (have the expertise, they have an as

good or even better understanding of knowing what natural justice is) Substance: Review of the particular outcome that the decision-maker reached, and the reasons that

the decision-maker gives for a particular determination.o Whether the decision complies with the constitution

All the powers that are exercised are powers that are granted by statutes . As such, all of the exercises of power that emanate from the statutory authority have to be valid from a constitutional perspective that is, they have to be consistent with the Charter (Bill of Rights) and the BNA.

o Whether the decision-maker has acted within the bounds of the bounds that are contemplated by the Statute. Rand J. in Roncarelli : there is always a perspective with which a Statute is contemplated.

o There is no clear way to distinguish review of a particular decision on the basis of whether it is in excess of a jurisdiction, or whether it is the substance the court disagrees with.

o Courts are typically working with a model inherited by Dicey – in public law, the Parliament has a whole-sale monopoly of production of law, judges have a whole-sale monopoly of the application or interpretation of law of particular facts. Up to the 19th c., this model has more or less worked, at least in England, because there was not much administrative law around. In the early 19th c., the administrative state has start taking hold (distrust in the market for safe water, equitable operation of municipalities and other things in which the administrative state has started to develop).

o Over the course of the past 150 years, there has been undergoing tension between boards set up with authorities to decide on the issues before them (labour, immigration, compensation, etc.).

All powers that are granted by the legislatures are by nature limiting powers .

4


If a public official is given discretionary power, historically the approach has been, within the bounds of this discretion, the administrator is given the power to do whatever he wants.

E.g. Roncarelli: in a state of civil unrest with Jehovah’s witnesses, the retaliation against a person who was supporting this movement, Premier Duplessis ordered that the liquor board cancel Roncarelli’s permit to sell alcohol. The cancellation of the liquor license drove Roncarelli out of business. On the face of the Statute, the Qc liquor authority had the authority to cancel or revoke a liquor license at its own discretion. That aspect of the Statute is underlined by Cartwright J. (the most interesting dissent). But SCC ruled against it. Rand J. (majority) has to overcome the Statute and history of common law / public law judicial review which says that when a discretionary grant of power is made to an administrative body, the latter can act within the bounds of this discretion.

Rand J: What courts are developing is a common law history and background of concepts and ideas. Procedural fairness is a right of quasi-constitutional nature; so it does not matter whether a certain a specific procedure has been followed. Process / fairness is intrinsic to legality itself, so it is intrinsic when reviewing public law.

The only source that we should be recognized in public law is the legislature . Judges are not supposed to make law, but interpret it, and when judges impose obligations on decision-makers, you will find that in some cases it is unwarranted judicial activism. Judges acting as legislators in an unjustified way.

2. Introduction to the Rule of Law

Abuse of Discretion as a Ground for Judicial Review (CB 951-954)At COL, number of discrete grounds of judicial review for abuse of discretion: The decision maker may have acted in bad faith, wrongfully delegated its powers, fettered its exercise

of discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another. – RARE

The agency to which it has been given has exercised it in order to achieve some purpose not contemplated by its grant. – MORE COMMON

In exercising discretion, the agency has taken into consideration some factor that is irrelevant to achieving the ends for which the power was granted or, conversely, that the agency neglected to take into consideration some factor that was relevant.

Issues of relevancy and purpose normally boil down to questions of statutory interpretation. There is in interpretation of statutes plenty of scope for differences in discretion.Points of reference:1. Statutory language in which the discretion is granted – objective or subjective terms, specific or more

general purpose.2. Nature of the interest affected by discretionary power3. Character of the decision4. Character of the decision maker

The agency to which the legislature has granted discretion may decide how or whether to exercise it. However, discretionary powers are presumptively limited in scope and the agency’s discretion does not extend to defining the limits of its own powers. (Roncarelli)

Roncarelli v. Duplessis [1959] SCR 121 (Que.), p. 952

Facts:An order by Premier Duplessis to the liquor licensing commission to revoke the restaurant licence held by Roncarelli, because he had posted bail bonds for Jehovah’s Witnesses who had been charged with distributing their literature in violation of municipal bylaws. Duplessis publicly warned him to stop, he

5


didn’t, and then, via the commissioner of the Qc Liquor Commission, had his license revoked. The liquor licensing statute simply state that licences could be revoked in the discretion of the commission and did not specify the circumstances in which, or the purposes for which, the power was exercisable. The order added that no future license would ever be issued to him. Issue:Was the Liquor Commission entitled to use its “discretion” to deny Roncarelli a license? Did the Liquor Licence Act give Duplessis authority to revoke Roncarrli’s license? Was it within Duplessis’ rights to intervene?Held: No. Appeal allowed (found for P).Ratio: Rand J. (Cartwright J dissenting)1. In a time of increasing public reg, such administration cannot act without impartiality and integrity,

and grounds for refusal must not be incompatible with the purpose of the reg.2. Nothing about the revocation was pertinent to the liquor license, the operation of a restaurant. R was

denied a permit b/c he was exercising a civil right to post bail. It was meant to stop JW activities and punish R for the part he played, as well as warn others that they too would be stripped of provincial “privileges” if they participated in objectionable campaigns.

3. Discretion entails 1) good faith, 2) non-arbitrariness and 3) no fraud or corruption in discharging public duty. Therefore, the respondent’s action is a breach of public statutory duty, an abuse of legal power. The discretion of the commissioner is not absolute, it must remain within the bounds of the purpose of the statute. Duplessis, in instructing the commissioner, acted outside of his legal powers.

4. The rule of law, a fund postulate of the constitution, must be upheld in the face of expanding gvt regulation and the potential for exec abuses that it facilitates.

Look at the Statute. Js, in their role of legal interpreters, will first look at the words of the Statute to find whether or not the administrators exceeded their jurisdiction. In the Statute, the Commission is given wide-ranging powers for liquor licences in Qc. Wrt to cancellation of licences, the Statute simply says that the Commission can revoke the Statute at any time at its discretion. There is no restriction on the terms of revocation nor on the reasons of revocation.

Cartwright J.:1. There is no basis in law to say that any restriction apply to the LC’s authority to cancel

Roncarelli’s license.We have to distinguish between courts of law and administrative tribunals. Courts of law / jurisdiction weigh the facts on the basis of pre-established standards of reference and administer justice on the basis of pre-existing rights and duties. Administrative tribunals exercise their discretion and based their decisions and orders on the basis of policy and expediency. They do not look to the rights and obligations that the parties which come before them might have; typically, it is the case that the parties do not have pre-existing rights. A judicial tribunal looks for some law to guide it, while an administrative tribunal is a law unto itself. No one in Qc in the 1940s who apply for a license or have their license renewed have a pre-existing right to apply for a license or to get their license renewed. Cartwright J emphasizes that these licenses can be revoked at any time.

2. Distinction between rights and privileges. Courts deal with rights; administrative tribunals deal with privileges. Because there is no pre-existing right, individuals such as Roncarelli have no standing, no capacity to make claims at law about what hurt their interest.

Courts have judicial capacity; administrative tribunals have administrative capacity.Cartwright J recognizes that in some cases, administrative tribunals, when they act in a quasi-judicial capacity, they have to abide by principles of natural justice. But this is not the case here. It might be a good thing for the LC to provide reasons, however, there is no obligation to for the LC to do so.

6


Rand J.: Principle of Dictation: The discretion cannot be exercised under dictation. Administrative decision-makers cannot act under the influence of someone else who does not have the authority to make the decisions that they themselves alone have the authority to make. In this case, only the LC had the authority to make such decision.Often Statutes do not spell out all the powers which the administrative tribunal cannot exercise; restraints on the authority of the administrative agency.You have to have in mind the purpose for which the Statute is intended to operate. Rand J (at 140): “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. (…) “Discretion” necessary 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(…) To deny or revoke a permit because a citizen exercises and unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred.”Public interest must also be kept in mind. Rand J (pg 15, CP1): “It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiallity and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute.”

TEST to review discretion: whether discretion has been exercised1. taking into account all relevant factors and2. not taking into account irrelevant factors3. nor improper or personal purposes.

GENERALIZED PRINCIPLE: Where, by a statute restricting the ordinary activities of citizens, a privilege is conferred by an administrative body, the continuance of that enjoyment is to be free from the influence of third persons on that body for the purpose only of injuring the privilege holder.

British Columbia v. Imperial Tobacco Canada Ltd. [2005] SCC 49

Facts:The Tobacco Damages and Health Care Costs Recovery Act (the “Act”) authorizes an action by the government of British Columbia against a manufacturer of tobacco products for the recovery of health care expenditures incurred by the government in treating individuals exposed to those products. Liability hinges on those individuals having been exposed to tobacco products because of the manufacturer’s breach of a duty owed to persons in British Columbia, and on the government having incurred health care expenditures in treating disease in those individuals caused by such exposure. The appellants, each of which was sued by the government pursuant to the Act, challenged its constitutional validity. The British Columbia Supreme Court dismissed the government’s actions, concluding that the Act was unconstitutional because it failed to respect territorial limits on provincial legislative jurisdiction. The Court of Appeal set aside the decision, finding that the Act’s pith and substance is “Property and Civil Rights in the Province” within the meaning of s. 92(13) of the Constitution Act, 1867, and that the extra-territorial aspects of the Act, if any, are incidental to it. The court also found that the Act does not offend judicial independence or the rule of law. [1] [21-23]Held: The appeals should be dismissed. The Act is constitutionally valid.Ratio: Major J.The rule in law in some respects function as a fundamental apostolate of our constitution.The court is asked to review the legislation on 3 grounds:1. Extraterritoriality – The Act is not unconstitutional by reason of extra-territoriality. The cause of

action that constitutes the pith and substance of the Act is properly described as located “in the

7


Province” under s. 92(13) of the Constitution Act, 1867. The Act is meaningfully connected to the province as there are strong relationships among the enacting territory (BC), the subject matter of the law (compensation for the government of British Columbia’s tobacco-related health care costs) and the persons made subject to it (the tobacco manufacturers ultimately responsible for those costs). The Act also respects the legislative sovereignty of other jurisdictions. Though the cause of action may capture, to some extent, activities occurring outside of British Columbia, no territory could possibly assert a stronger relationship to that cause of action than British Columbia. The breaches of duty to which the Act refers are of subsidiary significance to the cause of action created by it, and thus the locations where those breaches might occur have little or no bearing on the strength of the relationship between the cause of action and British Columbia. [37-38] [40] [43]

2. Independence of the Judiciary: The Act does not violate the independence of the judiciary. A court called upon to try an action brought pursuant to the Act retains at all times its adjudicative role, and the ability to exercise that role without interference. It must independently determine the applicability of the Act to the government’s claim, independently assess the evidence led to support and defend that claim, independently assign that evidence weight, then independently determine whether its assessment of the evidence supports a finding of liability. The fact that the Act shifts onuses of proof in respect of some of the elements of an aggregate claim or limits the compellability of certain information does not in any way interfere, in either appearance or fact, with the court’s adjudicative role or any of the essential conditions of judicial independence. Judicial independence can abide unconventional rules of civil procedure and evidence. [55-56]

3. Rule of Law: The Act does not implicate the rule of law in the sense that the Constitution comprehends that term. Except in respect of criminal law, the retrospectivity and retroactivity of which is limited by s. 11(g) of the Charter, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our Constitution. Nor does the Constitution, through the rule of law, require that legislation be general in character and devoid of special advantages for the government (except where necessary for effective governance), or that it ensure a fair civil trial. In any event, tobacco manufacturers sued pursuant to the Act will receive a fair civil trial: they are entitled to a public hearing, before an independent and impartial court, in which they may contest the claims of the plaintiff and adduce evidence in their defence. The court will determine their liability only following that hearing, based solely on its understanding of the law as applied to its findings of fact. That defendants might regard the Act as unjust, or the procedural rules it prescribes as unprecedented, does not render their trial unfair. [69] [73] [76-77]

Notes:Fox-Decent: In Imperial Tobacco: SCC takes a very restrictive view of the rule of law and cuts back its application from previous judgments.

Rule of Law: 3 principles:1. Every person, regardless of stature, is subject to law.2. There must be positive laws.

Manitoba Language Ref: an advocate for Franco-Manitoban ticket received a parking ticket that was exclusively in English despite the fact that there was then a requirement that laws be bilingual. There must be laws for public order.

3. The relationship between the state and its citizens must be a relationship that is regulated by law. Roncarelli: people who sit in position of public authority are not free to exercise their authority on

the basis of their likes and dislikes.

Complaints of the tobacco industry1. The law is retroactive. – The Act gave BC the explicit right to sue tobacco manufacturers

retroactively, i.e. to sue tobacco producers and distributors that have participated in the past to production or distribution of tobacco products SCC: cannot do it retroactively; you have to give the opportunity to comply. There is a general

8


prescription against retroactivity, but this prescription only applies to criminal law.2. The law is not general in nature. – Laws typically are general in nature. Laws are not supposed to be

drafters to attack a particular constituency. Arg that tobacco producers have been singled out.

SCC: We cannot confuse the rule of law with the rule of good law. It is not because Imperial Tobacco disagrees with the merits of the law, i.e. the content of the law and the mechanisms which gives effect to the law that it necessarily violates the rule of law. The rule of law is not associated with the content and the substance of the legislation per se, but with the form with which the legislation is implemented.

Principle of parliamentary sovereignty: within the ambit of the constitution, Parliament is free to enact laws. Unless the legislature is explicitly clear in stripping people of the entitlement that they have (as in Roncarelli), discretion needs to be read within the purpose and ambit of the Statute.

3. The Administrative State and the Rule of Law(CB 3-35)The subject matter of administrative law is the law governing the implementation of public programs, particularly at the point of delivery, where they are likely to have their most immediate impact on the lives and rights of individuals. Most of these programs are administered under the authority of a statute, enacted by either the Parliament of Canada or a provincial or territorial legislature, depending on the level of government with constitutional competence in the area.

Areas of activity that are the subject of administrative schemes:1. Employment – Labour relations are regulated in the first instance by statutes (statutory requirements

that all employers must satisfy). In every jurisdiction, there are comprehensive labour law regimes that allow for bargaining. These regimes set up labour relations board as well as empower arbitrators to administer this labour law regimes and settle disputes that may arise.

2. Regulated industries – Mostly operated by private parties, but are nevertheless highly regulated, especially where there is a monopolistic control over the delivery of the good (utility, railway companies, exploitation of natural resources, commercial transportation).a. Resources – Private parties, exploitation of resources, regeneration is often required.

3. Economic activities – economic activities that we think are important for the proper functioning of our society and as such must be regulated, e.g. mergers and acquisition, the development of industry in accordance to certain standards, IP and the way in which patents and copyright is regulated, …

4. Professions and trades – specialized services, professional association setting particular standards, ensuring that standards are met. Operate on the basis of a statutory mandate. As public authorities, they can be called before courts for having acted contrary or in excess of their statutory authorization.

5. Social controla. criminal law: e.g. facility where people who have committed crimes are incarcerated: quasi-

juridical process whether the status of the person is going to be changed.b. mental health: commission or tribunal ordering whether or not people are at risk to injure

themselves or others in society.6. Human rights – Human rights tribunals have authority to impose fines or make particular orders to

undo the injustice that has been resorted to them.7. Income support8. Public services – education (universities are not subject to the standards of the Charter – only public

bodies performing some public function are subject to the Charter; notwithstanding, universities have not been found to subject to the standards. Still plays an important role.)

Actors of administrative law1. Legislature: principal public forum – it is from these legislatures that we get public law set up

9


2. Cabinets: both fed and prov. The governor (or lieutenant governor) in council, or individual ministers, may be empowered to supplement the statute with delegated legislation. In addition, the minister, through departmental officials, may exercise discretionary powers that directly affect individuals. E.g. under the Immigration and Refugee Protection Act, the minister may allow a person to enter

Canada who is not otherwise eligible; the minister of justice decides whether to surrender a person whose extradition has been requested by another gvt and upheld by a court in Canada.

3. Municipalities: municipal officials exercise delegated statutory power to deliver many programs; subject to a measure of provincial control (standards, ministerial policy directives and guidelines, terms by which provincial funding is provided).

4. Crown corporations: operate under a particular statutory mandate and typically with gvt support. They enjoy substantial independence in their day-to-day operations so that they can make commercial transaction without gvt interference; nonetheless, the gvt exerts considerable influence over them.

5. Private bodies and public functions: some private bodies derive their legal authority purely from contract, but, by virtue of the control that they in fact exercise over particular activities and the nature of the functions that they perform, they may resemble administrative agencies discharging governmental functions associations that govern sports; bodies that operate under private legislation, but that rely on

market power and contract rather than a statutory monopoly for their control over an industry and its members, e.g. stock exchanges; real estate boards; boards responsible for child welfare in Ontario; universities.

6. Independent administrative agencies: commissions, tribunals, labour relations boards, immigration refugee boards, licensing boards.Similarities:a. Independent of government. They enjoy a measure of independence from the gvt department

with overall responsibility for the policy area in which they operate. This provides for these agencies a certain level of independent decision-making. It is incumbent upon decision-makers in these agencies to exercise their power independently.o The minister cannot direct what decision they must reach in a matter that is before them, and

in turn the minister is not politically accountable to the legislature for individual decisions. Nonetheless, agencies are supposed to stay somewhat at arms length (appointment of members, resources, statutes).

o Members of independent administrative agencies are in law immune from directions from colleagues, including the agency chair, on how they should decide any given case. Difficult to reconcile the notion that members should enjoy the same degree of autonomy

as judges with the need to ensure that agency decisions made in the implementation of a public program are both consistent and informed by the collective wisdom and experience of the agency as an institution.

b. The effective parties have some opportunity to participate in the decision-making process by producing evidence and making submissions – if the stakes are high. Effective parties, individuals or groups, are invited to make submissions to the decision-maker in response to a decision. o To a large extent, procedural openness underpins the legitimacy of administrative agencies

and makes good much of the “democratic deficit” inherent in the appointive nature of their member’s position and the lack of direct political accountability for the major questions of public policy that many agencies make.

c. Independent agencies typically operate at or close to the sharp end of the administrative process, i.e. at the point when the public program is applied to the individual (e.g. denial of a

10


licence, refusal to rezone, determination whether a person is a refugee, unfair dismissal of an employee). Administrative agencies are those agencies that are making decisions day in and day out that affect the rights of all.

d. All administrative agencies are specialized; they deliver a particular public program or a part of one. (Courts of law, on the other hand, decide cases across a much broader spectrum of criminal and civil law).

Differences:a. Decisions made by agencies can be found along a continuum that ranges from those resembling

courts to those that are more akin to the decisions made in the political process. Some are very concerned with rights determination that effect particular individuals (IRB, human rights tribunals, labour arbitrators). Others are polycentric, multifaceted and affect a group or society at large – much larger policy-making mandate, e.g. CRTC.

b. Some boards operate in a court-like manner. Public law in Canada is based on COL. Administrative agencies act as civil law judges in playing an active role. Administrative tribunals will take on an active inquisitorial role and will question the parties before them. Other agencies, generally at the policy-making end of the spectrum, employ a large staff to provide exert analysis to assist in policy development.

c. Number of cases heard: In 2001-2002, IRB heard 27,500 cases; labour boards typically do not hear that many cases.

d. Place they occupy in the decision-making process. Some decision-makers will be implementing a final decision; others, only first determinations.o What is the actual authority and what is the place in the decision-making process of the person

making decisions? Who should have the final say?e. Composition of the membership of agencies is highly variable.

Independent agencies or courts?Principal reasons for preferring an independent agency to a court to resolve disputes that arise in the course of implementing a public program:1. the nature of the decisions made by many administrative agencies are simply inappropriate for the

courts – more governmental than judicial;2. it may be desirable that decisions be made by persons other than judges – experience and expertise in

areas other than law may be required, as well as an approach to the issues that is more sympathetic to the aims of the program than that often displayed by judges;

3. many of the disputes with which we are concerned involve relatively small sums of money – to process them through the courts would be a wasteful use of public resources;

4. a more informal process than that associated with the courts may enable decisions to be made more expeditiously and reduce the need for legal representation.

Judicial ReviewGeneral features of judicial review4 things j.r is about (as per Mullen): (1) review of what some public body or decision maker does on basis of procedural fairness. (2) review of reasonableness of a particular decision maker’s determination (whether there’s rational basis in fact or in law – aka substantive review) (3) This concerns not just issues of reasonableness but also consideration of legality or illegality – whether decision-maker or board or tribunal interpreted correctly the terms of its enabling legislation. (4) Remedies and things people can do at court.

Grounds for Judicial ReviewWhen the legislature has provided no right of appeal, in what circumstances may a court intervene in the

11


administrative process at the instance of a person who has invoked its supervisory jurisdiction?1. Procedural impropriety: Before taking a decision that may adversely affect the interests of

individuals, administrators are generally under a legal duty to act in a manner that is procedurally fair: give prior notice to those likely to be affected and a reasonable opportunity to respond; impartiality. The content of the duty of fairness has been developed by the judges as a matter of common law (sometimes thinly disguised as statutory interpretation) and, since 1982, under the rubric of the Charter. In addition, legislation may prescribe the procedures to be followed by a particular agency. An applicant will ask the court to quash, or set aside, a decision that has been made in breach of a

procedural duty. When relief is granted, the agency will normally be free to decide again, after complying with its procedural duties; its second decision may be the same as the first.

2. Illegality: Public statutory authorities have only those powers that are conferred on them by legislation; their powers are legally limited; and it is ultimately the function of the courts to determine what those limits are, especially when they threaten the rights of the individuals. I.e. Statutory interpretation is driven by the judiciary’s constitutional ideas about the distribution of decision-making power between courts and admin agencies appropriate in a system of gvt subject to the rule of law.

3. Unreasonableness: Legal duty on administrators not to exercise their powers unreasonably. An administrative agency’s interpretation of its enabling legislation must not be patently unreasonable. Unreasonableness is a ground of review of the exercise of many of the discretionary powers conferred on public authorities. Conversely, when administrative action infringes a Charter right, it may be justified under s.1 as a reasonable limit prescribed by law.

4. Unconstitutionality: 2 points:a. Regardless of whether it is authorized by statute, administrative action may always be impugned

in court on the ground that it breaches either the division of powers or the individual rights provisions of the Constitutions;

b. Both administrative law and constitutional law are branches of our public law, and their concerns overlap; it is thus important that the standards imposed by constitutional law are informed by previous experience with the problem at the level of administrative law, e.g. balancing procedural fairness against administrative efficacy.

The Rule of Law and the Administrative State The rule of law has no generally agreed meaning as applied to law and administration (like liberty and

democracy). An important function of administrative law, including the contribution of the courts, is the

vindication of the rule of law. The challenge is to amplify the concept in a way that is compatible with the democratic claims of majoritarian government and the tasks with which it has charged the modern administrative state, including the regulation of private power, the promotion of social equality, and the redistribution of wealth.

Dicey and the Liberal Idea of the Rule of Law: No one should be made to suffer except for a distinct breach of the law. Government and citizens alike are subject to the general law of the land administered in the ordinary courts. See functionalist critique, p.30.

4. The Constitutional Basis of Judicial ReviewThis section considers whether, and to what extent, the constitution guarantees the courts’ power to review the decisions of administrative agencies for error of law or jurisdiction, or for procedural unfairness.

In Canadian public law system, the common law model has been primariily adopted. This is mainly due to the CA1867: the preamble of the BNA states that Canada will be a adopting a constitution that is similar in principle to the constitution of the UK. This has been taken by the courts to mean that

12


Canadian public law includes the principles of the rule of law, and that parliament is at the top of the Canadian legal order – parliamentary supremacy (clearly expressed will of parliament that is).

In the civilian legal systems, there is usually a Council of State at or near the top of the legal order. This council will typically consist of both of judges and ministers. Subordinate, but attached to this council, we usually find a court called the “administrative tribunal”. The role of the tribunal is to hear cases brought before it that allege one violation or another of particular aspects of the country’s positive law (usually a code for administrative process that is often similar to the civil code). The code for adminstrative process codifies the norms or procedures that officials must adhere to when exercising public duties or powers. If, therefore, someone thinks that there has been a breach in procedure (and these procedures, though codified, have similarities to those that the common law system has ‘found’ to be important to natural fairness and so on) they can appeal to the administrative court. Another, substantive rather than structural difference is that the rules are found in codes.o The rules that apply to civilian legal systems are fundamentally those rules that are codified in

administrative codes.

The Westminster SystemIn Canada, not only we have a system inherited from Westminster, but in the Constitution itself (BNA, Charter), there is no specific procedure for review of administrative action except if we look at the Charter as allowing appeal to a court in the case of infringement of Charter rights (fairly broad).

Breach of Procedural FairnessThere are also procedures in place, for instance in the Federal Courts of Justice Act. This channel is not typically an appeal to a superior court (the ‘descendents’ of the British courts of justice). At the prov level we have these provincial courts, (superior courts) aka courts of inherent jurisdiction. The characteristics of the courts are that they are independent and impartial (these being the hallmarks of the judicial system) and the facility to review adminstrative action taken by administrators exercising public power pursuant to some provincial statutory regime. (ie labor agreement and disputes).

Division of PowersSo unsurprisingly, we have a division of power with respect to review that mirros the federal/provincial division of powers pursuant to the BNA and the CA1982. Can the Federal Court of Justice Act provide a constitutional basis for judicial review? No bc the act

is not a constitutional act. However, there is a provision in the act stating explicitly that any decision made by an administrative actor operating pursuant to federal legislation can be reviewed by the Federal Court. Does this mean that without such an explicit provision in the FCJAct there would be no recourse for judicial review?

FD’s point: unlike the civilian systems, there is not much in terms of explicit provisions on judicial review, particularly not constitutional provisions. Nonetheless, bc of the Westminster system, and the importance of cml principles of fairness and so on, judicial review exists. In other words, the court has adopted the history of judicial review as practices in Great Britain. Is there any constitutional basis for this? Explicit Exclusion: What if the legislator specifically states that the decisions of the admin agency

are final and not reviewable by a court of inherent jur’n (see Residential Tenencies Act case)?

Legislation conferring power on public authorities and those public authorities in the exercise of that power are always subject to challenge on the basis that there has been a disregard of the division of power between Parl and the provincial legislatures provided for in ss.91 and 92 of CA1987. Legislation cannot take this right away nor the right to launch a constitutional challenge on other grounds such as violation of Charter and failures to observe other limits on legislative capacity in the various Constitution Acts, other constitutional instruments, and now also the unwritten principles of the Canadian Constitution

13


as recognized in Reference re Secession of Qc [1998].

However, the Constitution Acts 1867-1982 contain no provision that expressly deals with the power of the courts to review decisions of administrative agencies.

Courts and TribunalsTo what extent provincial legislatures can confer on admin tribunals (whose members do not have the attributes of s.96-100 judges) authority over matters coming within the historical jurisdiction of the courts presided over by those judges?

Hogg, Constitutional Law of Canada Increase in the number of administrative tribunals in Canada (and elsewhere) due to the vast increase

in social and economic regulation which has occurred in the last 100 years. Novel tasks of adjudication have been entrusted to admin tribunals rather than courts because:

o Desire for a specialist body : experience and expertise in the field of regulationo Desire for innovation : can be given broad discretion to develop the policies and remedies required

to implement a new scheme of regulation (foreign investment review, control of pay television)o Desire for initiative: tribunals e.g. human rights commission, securities commission can be given

power to initiate proceedings, to undertake investigations, to do research, and to play an educative and policy-formulating role as well as an adjudicative one.

o Problem of volume : tribunals can develop procedures to handle a case-load that would choke the ordinary court system.

o Economy: less formal, speedier and less expensive than ordinary courts But the ordinary courts, through their exegesis of s.96 and the other juridicature sections of the

CA1867, have assumed the power to review legislation investing a provincially-established administrative tribunal with adjudicative functions: if those functions ought properly to belong to a superior, district or county court, then the legislation will be unconstitutional. By this means, the courts have erected constitutional barriers to legislative encroachments on their own traditional functions.

Leading case on the impact of s.96 on the creation of provincial administrative tribunals: Re Residential Tenancies Act, [1981] SCC.

Re Residential Tenancies Act, [1981] 1 SCC 714

Facts:The Residential Tenancies Act, 1979 was enacted to implement recommendations of ON gvt’s Green Paper. The Act set up the Residential Tenancy Commission (an admin trib), to oversee and enforce obligations of landlords and tenants. The tribunal had wide-ranging powers and duties, including the resolution of disputes btw landlords and tenants.Issues: Were the Commission’s powers to evict tenants from residential premises and to require landlords and tenants to comply with the obligations of the Act constitutional?Held: No. Appeal dismissed.Ratio:Dickson J (Laskin CJ, Martland, Ritchie, Estey, McIntyre, Lamer JJ concurring)1. Courts have held that admin tribs in provincial jurisdiction are constitutional, and they can have

“judicial functions” as part of a broader policy scheme.2. Old test for determine whether a particular power or jurisd can be conferred on a prov body:

a. Consideration of “institutional setting” – In context of s. 96, are powers being exercised judicial or administrative? If former, is admin body broadly analogous to a Superior, District or County Court?

14


b. Admin trib may have power formerly exercised by s. 96 courts if that power is adjunct or ancillary to a broader admin or reg structure.

c. However, if the power is a dominant aspect of the function of trib – i.e. trib acts like a court – then conferral of power is ultra vires (invalid).

3. TEST Dickson J: Need to formulate test in 3 steps b/c jurisprudence has evolved:a. Step 1 – Historical inquiry: Consideration, in light of historical conditions existing since 1867,

of particular power or jurisdiction conferred on trib. Does the power or jurisdiction conform to that exercised by Superior, District or County Courts (s. 96 courts) at time of Confed.? If NO, then end, trib is valid. But if YES, then on to Step 2.

b. Step 2 – “Judicial” inquiry: Consideration of the function w/in institutional setting to determine if function is dif when viewed in that setting. I.e. Can the function still be considered a judicial function? Subject matter (nature of Q trib decides), not apparatus, is imp. If power not judicial, trib is valid. If it is, then on to Step 3.

c. Step 3 – “Institutional setting” inquiry: Reviews the trib’s function as a whole in entire institutional context (context of the exercise of power). If the “judicial powers” are subsidiary or ancillary to general administrative functions of trib or if powers are incidental to broader public policy goal of leg, then valid. Invalid if adjudicative function is the main purpose of trib.

4. Despite worthiness of policy objectives, SCC cannot choose jurisdictions for problems, it can only interpret the constitution as it understands it and as it has been interpreted in the past. If the powers in Q violate s. 96 they must be struck down.

5. Application of test:a. Step 1 – Yes, Commission’s powers were exercised by s. 96 crts in past.b. Step 2 – Yes, Commission’s powers are “essentially” judicial.c. Step 3 – Rendering judgements is the main function of the Commission.

The Commission’s powers are ultra vires (invalid). I.e. in violation of s. 96.

Reference re Residential Tenancies Act TEST in a nutshell 1. Are powers analogous to those exercised by s.96 trib since 1867?2. Within the institutional setting, is it a judicial function?3. Is the judicial function subsidiary or ancillary to gen admin functions of trib?

“The Residential Tenancies test” is the test for determining whether a provincial board established by legislation will be constitutionally valid provided it does not infringe on what the judiciary takes as the exclusive jurisdiction of courts of inherent jurisdiction (s.96 courts).

Ref re Residential TenanciesBasis for challenge: See section 96 of BNA (on court’s inherent jur’n): the landlord tenant board set up by the provincial legislation is exercising a function that is in the exclusive domain of the courts of inherent jurisdiction (superior courts). Before this case, there was a history of courts rendering invalid the decisions of boards that they

found, that were established by provincial legislation, and that exercised the function of a s.96 court of inherent jur’n.

Dickson’s three-part TEST:

STEP 1 – “the institutional setting”: Is the function of this board or any board is a function that at the time the BNA Act 1967 was enacted, was exclusively exercised by the courts of inherent jurisdiction (s.96 courts). YES: there was no such board in place in 1867 and landlord/tenant issues had to be resolved in courts

of inherent jur’n (s.96 courts). If answer yes, then move to (b).

15


Note: Depends on how you characterize the function of the administrative tribunal that is being challenged.

STEP 2 – the “judicial inquiry”: Is the function that is being impugned primarily a judicial function or an administrative or legislative function? Dickson J suggested that a power was “judicial” if it involved (1) a private dispute between parties,”

(2) “that must be adjudicated “through the application of a recognized body of rules,” and (3) that must be adjudicated “in a manner consistent with fairness and impartiality.”

FD: These categories are nebulous and difficult to maintain with any sort of clarity. If tribunal’s function is to look at fundamentally disputes btwn private parties, then it will lean to judicial as opposed to administrative. If function is mainly adjudicative as opposed to setting policy, establishing guidelines and creating administration, then again the particular tribunal in question may be characterised as judicial and be subject to review by s.96 court.

If this part of test is answered in positive, then go to (c) (where most of discussion occurs).

STEP 3 – “the institutional setting”: The institutional setting and context within which the tribunal that is being attacked exercised its legal power. Whether the tribunal’s central function is adjudicative in nature. I.e. within the broader context of the private law regime within which this tribunal operates, is his

central function adjudicative? If court finds that tribunal that is under attack performs these functions (e.g. conducting investigation,

research, policy analysis) as well as settling these conflicts, then court is less likely to come to conclusion that tribunal under attack is unconstitutional on grounds that it’s taking place or usurping role of s.96 court.o In Tomko and John East, the court-like adjudicative function of the labour relations board was

ancillary to a broader administrative and policy-making role as administrator of the labour relations legislation. Similarly in Sobeys, the labour standards tribunal’s power to reinstate employees was upheld as “a necessary incidental aspect of the broader social policy goal of providing minimum standards of protection for non-unionized employees.”

o In settings other than labour relations, the institutional setting has sustained many other adjudicative functions vested in administrative tribunals.

The institutional setting will not save an adjudicative function which, having been held to be a s.96 function at confederation (step 1), and having been characterized as judicial (step 2), is the “sole and central function” of the tribunal.o This was the case in Re Residential Tenancies Act: although the rent tribunal did perform other

functions in the administration of Ontario’s residential tenancy legislation, the other functions were ancillary to the central function of adjudicating disputes between landlords and tenants.

o A-G Que v. Farrah: the sole function of the Qc Transport Tribunal was to sit on appeal from a tribunal of first instance and decide “any question of law”: this was held to be an unconstitutional s.96 function.

o Crevier: the sole function of the Qc Professions Tribunal was to sit on appeal from several tribunals of first instance: the Professions Tribunal also had the power to decide questions of law.

Hogg: “The allocation of jurisdiction between different levels of court and administrative tribunals is primarily a political question, upon which the inevitably self-interested views of the courts should not be unduly influential.” Solution: an amendment to s.96 granting to the provinces the power to confer on an administrative tribunal (but not as an inferior court) any function within provincial legislative competence (including s.96 function), so long as the tribunal’s decisions remained subject to superior court-review.

(From 1st year constitutional law notes)Problems: There has been criticism of this test as a hindrance to achieving the public policy goal of making justice more accessible to people in view of overload on courts, and that it is unduly vague and

16


arbitrary: Hogg – steps are vague/disputable, small differences b/w provs in history or institutional arrangement

can mean validity or invalidity for apparently similar admin tribunals Elliot – judges have applied the steps in very different ways, particularly the initial historical inquiry

(Step 1). Canada is now a different country than it was at Confed, and test (esp Step 1) may not be flexible

enough for us to take into account modern public policy problems (that did not exist in 1867) (e.g.Lord Simonds in John East Ironworks [1949]).

Examples:o In Ref re Young Offenders Act (1991) PEI, two JJ. questioned whether latter 2 branches of test can

be meaningfully applied to an inferior crt.o In Re Attorney General of Qc and Grondin (1983), SCC upheld the conferral by the Qc gvt broad

powers wrt leases on a prov board, the Régie du logement, in contrast to the result in Ref re Residential Tenancies Act. (Grondin illustrated how different results can be obtained for similar leg schemes based on the outcome of the historical inquiry.) Question also addressed by Wilson J. in Sobeys.

Crevier v. Quebec (Attorney General), 1981 SCC

Facts:(1) The Professional Code (Qc) set up a discipline committee for each of the 38 professions that fell under it; these cmtes had jurisdiction over every complainant of an offence under the Code. The Code also created a Professions Tribunal (PT) to which decisions of the cmtes could be appealed. Appointments to the cmtes were made and consisted of 1 lawyer and 2 members of the profession, those to the PT were prov court judges appointed by the Chief Judge (i.e. note s. 96 appts by GG).(2) S. 175 of Professional Code: “The tribunal may confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in the first place. … The tribunal’s decision shall be final.” This was supported by other s. 195 of Code. (I.e. sounds pretty judicial.)(3) 2 optometrists were convicted by their cmte and appealed to PT, which decided that cmte had acted beyond its authority in deciding that offence had been committed.Issue: Do powers of the PT violate s. 96 of the Constitution Act, 1867?Held: Yes. Appeal allowed.Ratio: Laskin CJ (Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer JJ concur)1. CA decided that SC has judicial review power over PT in terms of excess of jurisdiction, even if

Code doesn’t say so.2. PT has no function other than that of general tribunal of appeal; therefore, its final appellate

jurisdiction is not part of an institutional arrangement set up as a regulatory scheme by prov gvt.3. Privative clause to limit judicial review of decisions is o.k.; however, privative clause to limit review

of jurisdiction is unconstitutional “by reason of having the effect of constituting the tribunal a s. 96 court.” A provincial statutory tribunal cannot set the limits of its own jurisdiction without appeal or other review.

4. In giving a provincially-constituted statutory tribunal a jurisdiction in appeal on Qs of law w/out limitation, and to reinforce this appellate authority by excluding any supervisory recourse to a sup court is to create a s. 96 court – and is unconstitutional.

Comments: A provincially-constituted statutory tribunal cannot constitutionally be immunized from review of

decisions on questions of jurisdiction. Privative clauses purporting to oust jud review are inconsistent with s.96.: invalid.

Crevier decision has received much criticism in scholarly circles. It relates to profrssional tribunals and how it can be appealed to. (A ‘professional tribunal’ set up in Qc operated as an appellate tribunal for

17


professionals who were appealing decisions made by the tribunals of their professional associations)

The decisions of the professional tribunal were protected by a privative clause (also referred to as preclusive clauses, or as ouster clauses). Its decisions would not be reviewable by courts of inherent jurisdiction. The importance of the privative clause is that it was understood to imply that the Qc legislature had intended to protect the PT even wrt determinations concerning its jurisdiction as well as the remedies it applies. Laskin J: Privative clauses that attempt to isolate tribunals like the professionals tribunal from judicial review are unconstitutional. Judicial review is implicit in s.96 of the BNA Act of 1967. The federal power to appoint judges to

superior courts would be made a mockery if the powers that these tribunals enjoyed would be subverted by the establishment of parallel tribunals such as the Professionals Tribunal.

Crevier says a tribunal such as PT will not be allowed to be a watch dog of its own jurisdiction. Next step should be to a court of inherent jur’n (rather than the PT); the PT cannot be the ‘last stop’.o Consider Tribunal Administratif du Québec (TAQ : The TAQ is general tribunal that has authority

to review the decision of any provincial administrative tribunal in Qc. Once all avenues within the admin tribunal have been exhausted, you can appeal to the TAQ. The SCC has yet to hear an appeal with respect to the jur’n of the TAQ

Courts have been criticized for reviewing the decisions of administrative tribunals that they have reached on the merits.

Mullan (p.50): Has the SCC endorsed the view that, implicit in s.96-100, there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality? (If so, Crevier extends to all manner of administrative agencies exercising legally limited powers, and applies to judicial review of federal administrative agencies.) There is now considerable support for the proposition that Parliament is subject to precisely the same

limitations as provincial legislatures may not create tribunals with traditional superior court jurisdiction, unless they conform to ss. 96-99.

Federal Review: ex. Refugee BoardRB is created pursuant to federal legislation and a federal board. What if the refugee board is protected by a full privative clause that claims its own supervisor of jurisdiction and finality? Does the section 96 argument work? How would this operate in light of Crevier? The s.96 argument in Crevier has power bc of the federal appointment of superior court justices.

Provincial legislation may not, therefore, insulate itself from constitutionally entrenched review by federally appointed judges.

Can a federal power legitimately infringe on federal power? Charter section 7 argument (that the absence of an adequate opportunity to ensure that the agency complies with its statute violates the principles of fundamental justice). But this application applies only to certain categories of administrative law; this also removes non-citizens.

An argument in principle can also be presented: unwritten principles of the rule of law, unwritten constitutional principles, etc.

Crevier and the RTA case are not driving judicial review. Rather, it is the judge’s perception that they are occupying a range of power or separate branch that they will not give up lightly. When SCC has to deal with cases of JR that come up from Fed Court they treat them the same as those cases that come up through provincial channels. There has been no case law to suggest that a privative clause in a federal scheme would be given any more weigh than a privative clause in a provincial scheme. The constitutional arg seems very weak prima facie with respect to federally created agencies.

18


5. The Role of Judicial ReviewBaker (1999)1. Procedural Fairness

o Nicholson (1979): a constable was dismissed without a hearing. (4:5) Laskin J: Despite the fact that there was no statutory requirement, ct said that the constable was still entitled to some procedural safeguard and protection.

o Knight (1990): Employment case – a director working for a school board who had a conflict during negotiations wrt renewal of his contract. Ct dismissed arg that Knight had no further recourse. Interestingly, there was unanimity on result, and a 4:3 split on procedure. Despite the fact that the statute provided no procedural safeguard, the board was still under a COL obligation to treat him fairly, let him be heard on the case against him. Dissent (Sopinka): such obligation can only arise from Statute.

o It is on the basis of the majority decisions of Nicholson and Knight that Baker was decided.2. Review of Substance

o Bibeault (1988): Ct’s first articulation of what is now referred to as pragmatic and functional approach to review of agency of board decisions. What courts are trying to get away from is what they refer to as the battle whether questions before them were questions of law or of jurisdiction. To distinguish the two remains difficult.

o Southam (1997): Pragmatic and functional approach is applied again, but here the understanding of the approach is expanded. In Bibeault, courts would typically review a decision on the basis of two standards of review:

1) correctness: agency had to reach the correct decision; had the court turned its mind to the issue in the first place?; or 2) patent unreasonableness: deferential standard of review where the court will defer a decision or determination even though they disagree with the merits as long as the decision is not patently unreasonable.

In Southam, addition of a third standard of review: reasonableness simpliciter: looking at the reasons underlying a particular decision – there has to be some rational basis for the decision the agency has reached. Decision would be held to be reasonable on standard of reasonableness if it can stand up to a “somewhat probing examination” (as per Iacobucci). This reasonableness standard falls somewhere between the other two.

o Pushpoinathan (1998): the decision, which related to the determination of a question of law by the IRB, was subject to a standard of review of correctness.

Baker v Minister of Citizenship & Immigration (1999) SCC

Facts: Ms Baker, a citizen of Jamaica, entered Canada on a visitor permit, but overstayed illegally for many

years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered.

When discovered to be living in Canada illegally she is ordered to be deported under the Immigration Act. Her last resort under the Act is application to the Minister to be allowed to stay in Canada on “humanitarian and compassionate grounds”. Her written application includes medical evidence that if deported she will likely become ill again with no medication, and that she is sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if she is deported).

Application reviewed by junior Immigration Officer and recommends she not be allowed to stay on humanitarian and compassionate grounds. Recommendation sent to senior Immigration Officer who agrees, so application denied (with no oral hearing and initially no reasons given).

When Baker’s counsel asks for reasons, senior Immigration Officer sends notes from junior Immigration Officer. Notes appear inflammatory e.g. capitalized her total number of children (4 in Canada, plus 4 in Jamaica), says she will be a “tremendous strain on our social welfare system”, say

19


that fact she is still in Canada is an “indictment of our system”, and “Canada can no longer afford this kind of generosity”, recommends refusal but warns of “potential for adverse publicity”.

Baker challenges deportation in court, and deportation stayed until concluded. Note not a Charter s.7 case, rather dealt with on common law PF grounds.Claims:i) Some PFOs were owed (court said yes).ii) Insufficient PFOs given:

(1) There should have been an oral hearing (no).(2) There was a duty to give reasons (yes, but notes sufficient)(3) There was a reasonable apprehension of bias from notes (yes).

iii) Substantively there was an abuse of discretion (yes).Decision: L’Heureux-Dube J: on threshold question, there is a duty of PF owed:1) Not entitled to an oral hearing, because to determine content of PF must look at similar issues as in

determining the threshold question, with purpose of participation to ensure fair/open procedure appropriate to statutory context. Balance 5 factors (but says not exhaustive):a) Nature of the decision and decision making process : look at closeness of administrative process

to judicial process:i) Legislative & general / discretionary policy suggests less PFOsii) Administrative & specific / resembles adversarial court-like process / fact-finding &

credibility suggests more PFOsb) Nature of statutory scheme : also consider if there is a general statute specifying procedures such

as Ontario’s Statutory Powers Procedures Act (none in B.C.)i) Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh

Wilson J. is statute intended by legislature to be exhaustive for PFOs)ii) How general scheme affect PF (e.g. multi-stage process and preliminary investigation v. final

decision)iii) Is there an administrative appeal or redetermination (if not suggests more PF)iv) Is case arguing for ordinary scheme to be followed or looking for an exception (which might

suggest less PF)c) Importance of impact of decision on individuald) Consider if any legitimate expectations, which has 2 meanings:

i) Promises / conduct / usual practices by officials that gives individual legitimate expectation that a certain level of PF would be given.

ii) Where an individual has a legitimate expectation of a particular result (e.g. that license would be renewed) – can’t be used substantively to actually get that result, but can be used to argue for more PF before expected result denied.

e) Should consider why agency made choices of procedure that it did (but this can’t be determinative and so carries less weight since court reviewing if they are adequate): look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000’s of decisions), expediency, informality, etc., which can all be trade offs against requiring high PFOs

2) In this case looking at these 5 factors:a) Nature of decision has high level of discretion and must consider many factors, not very court-

like suggests less PFOsb) Statutory scheme is that ordinarily people will apply for permanent residence from outside

Canada, whereas here Baker applying for exception to this suggests less PFOsc) Impact here on both Baker and her children very significant, and no administrative appeal

suggests more PFOsd) No legitimate expectations (i.e. no promises / conduct by officials to Baker suggesting she would

be given more PFOs, nor history of giving oral hearings) neutrale) Statute gives Minister much flexibility

20


Balancing these factors L H’D concludes no need for oral proceeding, rather written submissions sufficient to hear all relevant information.In this case, the appropriate standard of review is reasonableness simpliciter.

Application for judicial reviewAt trial, Simpson J said that there was no bias in the decision of the decision-maker. The grounds on which Baker sought a judicial review were not sufficiently compelling to overturn the minister’s delegate decision. J did certify, however, the domestic enforceability on the rights of the child. Baker argued at trial that because Canada has ratified the Convention on the Rights of the Child, and because the convention spoke to the child’s interest (in admin proceedings, the best interests of children must be a primary consideration for the decision-maker), that the minister was bound to give her children’s interests due consideration and consequently compelled to grant her stay on humanitarian and compassionate grounds.Decision was made by a middle-level delegate of the minister: officer Cabin. C’s letter said simply that discretion was not exercised in Baker’s favour for H&C considerations – no further explanation.

In decision making process we find out that decision is made by middle level delegate of Minister. Officer Cadent made decision and letter said simply request had been denied on compassion grounds not being met and discretion was not exercised. Baker’s counsel sought further reasons and eventually some notes that had been made by lower level officer Gorans were disclosed. In these notes we find what L’H-D calls “a litany of discriminatory remarks”. Notes show how in officer’s view, Canada can no longer take position of generosity for ppl in Baker’s position bc of burden she represents to society not only for her children but bc of drain she would be on social welfare and health costs. L’H-D finds that children were thus seen as consideration that worked against the application.

Bc Canada had ratified convention on Rights of child, Canada was bound by its term. This arg was rejected at trial but was basis of question formulated by trial judge for court to go up to Ct of Appeal. In CA, you get brief summary of Strayer J’s decision. It doesn’t give quite the sense in which Strayer echoed the sentiment of Officer G saying things along lines of “only interests at stake here are those of parent” and that merely having children in Canada is not reason for blocking operation of immigration law. Also did not find Child’s Convention could not have direct and binding effect in Canada bc it had not been implemented through direct Parliamentary action. This question was formulated and on this basis went up to SCC.

Convention on the Rights of the Child cannot have a binding effect in Canada (should not require a decision-maker to take into account the best interests of the child even though Canada has ratified the Convention). On what basis?1) Division of powers If executive ratifies a treaty and then there is no implementation, then it should

have no effect bc of s.91 and s.92. View is that legislature and legislature alone is source of rights and obligations and that executive cannot unilaterally create these without going thru legislative implementation. If fed executive ratifies a treaty, and then provs are bound by the authority of the treaty, it seems that the executive is trenching on the authority of provinces, violating the division of powers.

2) Separation of power btwn legislature and executive in implementation. Treaty that is later put to law through some implementation process. To be a legislator.

On appeal, issue of whether the decision of the SCC limited to answer the question of whether the Convention on the Rights of the Child was binding on officials making decisions on H&C grounds.No, it is the trigger that gets the case, but once the case is before the courts, courts are entitled to consider all issues in play in a particular case.

I. Procedural fairness (L’Hereux-Dubé in Baker )

21


1. Threshold question: Are there any rights or entitlements to procedural fairness?Where the interests, privileges and rights are not of a trivial nature, then the threshold question will be answered in the affirmative, i.e. some duty of procedural fairness will be due (this comes from decisions in Nicholson, Knight and Cardineau) where the interests, privileges and rights of particular individuals are at stake).Exceptions to this rule of thumb: Procedural fairness may not be due:a. If issue of a legislative / policy natureb. If a non-final question (when recourse of appeal has not been exhausted)c. The importance of the interest at stake will often be commented on by the court. Note: In Baker

the importance of the interest at stake is undeniable.If answer is yes, then look at:

2. Contents of Procedural Fairness (Participatory rights)If a duty is owed, what is the content of the duty of procedural fairness? The content of the procedural fairness is variable (the list of contextual factors in Baker is not exhaustive).Contextual factors mentioned in Baker - participatory rights which flow from procedural fairness:a. Nature of decision the more it looks like one btwn agency and indiv (not policy) it favours

greater procedural safeguards.b. Nature of statutory scheme where does decision fall within the scheme? If final decision, it

requires closer look. If indiv subject to discretion, there is favour to greater procedural protection.c. Importance of interest at stake kind of procedural safeguards are gonna be diff when

applying for hunting licence or for immigration.d. Legitimate expectations If the government or its agencies publish or through the use of

practice, let somebody know that a certain procedure will be followed, this promise has risen legitimate expectations and its agencies have to comply. So, in the absence of an overriding public interest, the legitimate expectation of an individual must be respected, i.e. the public official must grant the request that is sought.

Similar Australian case to Baker: Teoh (1995). HC Australia said that the fact that the gvt of Australia had ratified though not implement the Convention, this create legitimate expectations and these children’s best interests will be treated as primary factors in the decision of the case.

e. Choice of agency with respect to procedures provided. In Baker, court finds that providing Baker the ability to submit reports was sufficient to satisfy the participatory rights.

3 aspects of procedural fairness discussed in Baker:1) Participatory rights2) Duty to provide reasons for the decision: There is a duty to give reasons where there is an important

interest at stake, but it is a duty that can be satisfied from the procedural side of things simply by providing the general bases or grounds of the decision. E.g. notes of officers can stand as reasons for this decision even if not drafted with that purpose in mind.

3) Reasonable apprehension of bias or want of impartiality: Test for reasonable apprehension of bias (case from the 1970s): when it is reasonable to believe that the decision-maker did not consider the decision in an impartial way. In Baker, the officer’s notes played a large role in showing bias and animosity on part of decision maker.

II. Substance

Pragmatic and Functional Test: if there was bias here, that’s enough to quash decision. Nevertheless, SCC discusses merits of decision. Before engaging in that substantial analysis, court must decide what standard of review will be. The standard of review can be of three standards: 1) correctness; 2) reasonableness (there has to be some rational basis for the decision; 3) patent reasonableness (unreasonable on its face).

22


4 factors when determining which standard of review is appropriate:1. Whether there is a privative clause or a statutory right of appeal (if there is one, it suggests greater

deference). In Baker, there was no privative clause yet appeal was considered. Leave to appeal to the Fed

Court needed to be granted for an appeal to take place, so there is no statutory right to appeal (but rather has to be granted leave). This signals that legislature had contemplated that such appeals would take place.

2. Expertise: considered as most important substantive issue in determining the level of deference due. More will be due when expertise in question is not one that is fact intensive.

3. Act or purpose of provision: look at purpose of the act as a whole and specific provision in context. In Baker, there is exercise of discretion. The Minister is expected to have very specific knowledge of case and of Canada’s interest in having immigration laws applied and respected. But on other side, provision was put in place precisely for Minister to take into consideration humanitarian grounds and the implications of individual vis-à-vis the govt.

4. Nature of the issuea. Factual : credibility of testimonyb. Legal : interpretation of law that is of sufficiently general character that can stand to have future

valuec. Mixed fact and law: a particular legal rule interpreted and applied to the fact that is of sufficient

specificity that it is unlikely to have future value.

Standard of reviewApplication of the pragmatic and functional approach to determine the appropriate standard of review. Here the appropriate standard of review is reasonableness simpliciter . This is a case where an individual faces the gvt, so this indicates that we want a more probing, more

searching review. This cuts deference, in favour of more searching review.

“Considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court, Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as “patent unreasonableness.”

Southam (prior to Baker): “somewhat probing examination” standard. On the basis of the Southam standard, L’H-D asks if decision stands up to probing examination based on facts in evidence.

L’H-D goes through this exercise (appropriate standard of review) because if she had stopped at bias, she would have just been telling immigration officers to not be so stupid to writing such comments on margin. This would have been the wrong message.

TEST – applying this test to the matter before us, we have to consider the nature of the decision – this is a discretionary decision.

Common sense understanding of discretion (as seen in Roncarelli): administrative decision-makers within the realm of their decision-making ought to make laws for themselves; can decide on a certain range of outcomes; typically, because the decision is discretionary in nature, it is one of mere judgement and opinion.

The discretion granted to the Minister, is extremely broad. The text is in subjective terms: “Is the minister satisfied that…?” It is a subjective right of power. However, it says nothing about how to apply legal tests, or procedures. This makes it difficult to review any such discretionary decision.

This language is not accidental: legislators, to keep Js out of public programs, often write legislation

23


granting discretion that will be difficult to review. We saw this in Cartwright J’s judgement and minority in Roncarelli that judges as well as legislators

try to put discretion in as subjective terms as possible to insulate it from review. This explains why judicial review of discretion is normally based on standard of patent unreasonableness and not on reasonableness simpliciter. Baker is the first time the pragmatic test has been applied to a discretionary decision (typically was on interpretation of a particular statute).

Judging a decision from the point of view of bias from procedural fairness is uneasy as it requires some review of substantive matters.

How do we reconcile discretion with the higher standards of review? L’H-D goes through a list of discretions:

1. Boundaries imposed by statute2. Principles of administrative law3. Rule of law4. Fundamental values: When a decision-maker is exercising a discretionary power, this

discretionary power must be consistent with the fundamental values of Canadian society, because it is those values that justify the grant of those discretionary powers. not just out there in abstract of Canadian society, but ones that we must understand for the particular grant of a discretionary measure. In Baker, the fundamental value is children’s best interest. i) Objectives of Immigration Actii) International law (Convention on the Rights of the Child) cannot give rise to independent action where statute is in play, but where there is doubt to statute’s meaning, you can use int’l law for purpose of statutory interpretation.

5. Charter

What is new is the idea that the Minister must take into account Charter and other values fundamental to Canadian society. By looking at the P&S of the legislative framework, a key purpose is to reunite families. Although this does not speak directly to the facts of this case, it is clear that there is a value underlying the legislature’s intentions. Int’l law cannot give rise to independent action in areas where statute acts, but it can bolster the method of statutory interpretations. Some criticize this as a way for the Convention of the Rights of the Child to be brought in through the back door. In order to be sensitive to this concern, L’H-D deliberately chooses language that consistently avoids dictating that the interests of the child must be a primary consideration in the Minister’s use of discretion.

Lastly, there are guidelines developed by the Minister. He has the power to exercise the delegated discretion, but not the power to make new law. Under this view, the guidelines are irrelevant. However, L’H-D says that the guidelines are both evidence of past practice and help to show what a reasonable exercise of discretion consists of.

L’H-D concludes that the actual decision-maker was completely dismissive of the types of interests that are meant to be considered in this process.

There is a duty of procedural fairness1) Threshold2) Content / Choices of procedures

In Baker, simply writing her counsel was sufficient to satisfy the duty of procedural fairness.

24


Part II: Administrative Procedures and the Duty of Fairness

6. Introduction and Historical Overview1) Early common law (e.g. PF for property rights):

Notion of “natural justice”, e.g. in Dr. Bentley’s Case (1723) (English K.B.) it was said that not even God failed to provide Adam and Eve with a hearing before casting them out of the Garden of Eden. Mullan: This dictum exemplifies the extent to which appeals were made to conceptions of morality

and natural law in the foundation of jurisprudence.

Cooper v. Board of Works for Wadsworth District (1863) (England)

Facts: Permit required by Metropolis Local Management Act 1855, s.76 before building a house, and

required 7 days notice before beginning construction. Default of such notice entitled the Municipal Board of Works to demolish the house and charge the owner for the demolition (with no mention of giving builder notice or opportunity to be heard). Purpose of the notice was to give the Board an opportunity to check plans and give direction about drains.

Cooper, a builder, claims he gave notice to the board but began work within 5 days of said notice day. When house almost built, municipal authority demolished it, which was apparently totally justified

under the statute.Claims:1. Cooper argued the demolition was a tort (trespass), but Board claimed statutory authority as complete

defence. The administrative PF question arose as part of this tort action.2. Board argued this wasn’t a “judicial decision” so didn’t need to give hearing rights, i.e. natural justice

doesn’t apply (it’s just an administrative decision)Held:Cooper won, court ruled Board could not rely on statutory authority defence since court read in PFOs – can only validly exercise statutory power after giving notice and right to be heard.Ratio: (Earl C.J.)i) Implied a legislative intent to give PF rights due to importance of the power, and “no man is to be

deprived of his property without right to be heard”.ii) Good reason to hear from Cooper, since could uncover a reasonable excuse e.g. if Cooper had sent in

notice and house followed all required standardsiii) There’s no reason not to give notice and hear Cooper’s story, would not have harmed Parliament’s

intent (unlike an emergency situation for example).iv) Doesn’t have to be a “judicial decision” to require natural justice to applyv) Statute included appeal provisions to appeal Board decision to higher administrative body (and Board

argued this is what Cooper should have done and that’s where the right to be heard comes in) but what is there to appeal if there is no right to be heard in first instance and house already demolished i.e. not adequate alternative remedy

Moral Rationale by Byles J.:i) Since Board had to decide if there was wrongdoing (failure to give notice) and this is like a

judicial finding, so natural justice obligation should applyii) “although there are no positive words in a statute requiring that the party shall be heard, yet the

justice of the common law will supply the omission of the legislature.”

No person should be deprived of their property by an administrative body without having some

25


opportunity to reply to whatever complaint is outstanding against them. There might me any number of reasons to explain why Cooper gave 5 instead of 7 days notice, but fundamentally the court says, it is just unjust to deprive somebody of property in this matter without at the very least giving them a hearing.2 of the Js go on to say that the common law must apply the omission of the legislature.

Where the legislature is silent, the common law will step in to fill in the gap.This analysis has given rise to commentaries as to what are the bases on which Js impose procedural fairness when the Statute is silent. Bases for judges stepping in:1) Legislature’s intent : The legislature is presumed to intend legislation that is consistent with the rules

of procedural justice.2) Autonomous / common law, free-standing, statute independent: Procedural fairness is owed as an

autonomous, free-standing, independent right. The Board has an obligation towards Cooper. Ensure that people have a right to procedural safeguards. Nicholson: constable on probation, statute gives the board full authority to dismiss this constable

without any procedural safeguards. Even though Nicholson stands for number 2 duty of fairness, there is still a basis for it in the statute. Sopinka J said Nicholson is all about justifying in terms of statutory framework this kind of fairness.

Note Dr Bentley’s Case and Cooper both about (pre-existing) “property” rights i.e. nature of the power to take away important property rights.

2) Post-Cooper limitations / complications: a) Over next century some strict limitations were created on when PF rights would be imposed

(procedural safeguards where property rights were at stake):i) Natural justice applies only if decision categorized as “judicial or quasi-judicial’ and so the

prerogative remedies would be availableii) If purely administrative (a.k.a. ministerial or executive) natural justice would not apply (so no

PFOs beyond what statute required)b) Further, “judicial or quasi-judicial” was restricted, such as Electricity Commissioners, Ex parte

London Electricity Commissioners, R. v. (1924) (English C.A.) as explained in Legislative Committee of the Church Assembly, R. v. (1924) (English) by Lord Hewart:i) The body exercising the statutory power must have “legal authority to determine questions

affecting the rights of citizens” which came to mean only the final decision maker was considered “judicial or quasi-judicial” (although could be subject to appeal) and must concern a pre-existing right (e.g. common law property or contract right), not just a privilege (e.g. in Nakkuda Ali v. Jayaratne (1951) (J.C.P.C.) textile dealer was not entitled to a hearing when licence revoked since entitlement to trade was ruled a privilege)

ii) Further, required a “superadded duty to act judicially” i.e. courts should look closely at statute to see if legislature meant to imply PF rights, by using words like “consider” or “inquire” for example. This made cases complicated and uncertain.

The administrative state gave people discretionary power that typically Js did not view themselves as competent to review; not subject to judicial scrutiny.

Throughout the 20th c. – hostility towards the administrative state (Cartwright in Roncarelli – pre-existing right at stake; administration of policy based on expediency?)

Wrt property, Js would still say that the person depriving people of property would act (quasi-) judicially.

Calgary Power – decision to place a hydro line over the land of a property owner, without giving the property owner any opportunity to dispute the decision. Expropriate a right of way. Procedural fairness – a hearing – was not supplied, as it was thought to be a decision of an administrative nature, utility (electricity).

26


It is not before the 1960s in UK with Ridge (1964) that judges started to read into statutes some procedural protections. Also, we start to see cases where the rights or privileges distinction is not so clear anymore, e.g. Roncarelli (license: right or privilege? Recall that one of dissenting args was that R had no right). Js had been reluctant to protect privileges, but in the 1960s and 1970s, start to see a blossoming of that distinction between rights and privileges and Js more willing to impose a duty of procedural fairness on administrators even if the person does not have a right to the thing at stake.

3) Expansion of common law rights from “natural justice” to “duty of fairness”: a) Above complications / limitations undone with growth of the administrative state and recognition

of need for broader PF rights.b) Ridge v. Baldwin (1963) (English H.L.)

i) Facts: chief constable (a “statutory office holder”, a recognized public status akin to a property right) lost his office which could only be lost for cause

ii) Decision: Classified employee relationships (rejected in Knight below)(1) No PFOs for pure master/servant relationship (mere employee) – (2) No PFOs for statutory office holder at pleasure (i.e. no need to show cause to dismiss)(3) PFOs required for statutory office holder if dismissible only for cause (as in this case

where wrongdoing had to be found) – yes PFOs (need to be told reasons for dismissal and given right to be heard)

iii) Comment: did away with the “superadded duty” in the statute, and inferred PFO due to nature of the decision

7. Emergence of the Duty of FairnessLeading cases in judicial review – Cases that you should really pay attention to in this course Roncarelli (1959) Nicholson (1979) – process (procedural fairness) CUPE (1979)- substance Baker (1999)Note: In Roncarelli, there is no pre-existing right. Nicholson involves an employment interest.

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) SCC

Facts: Regulations under the Police Act said police officers of 18 months or more service must have a

hearing and appeal rights for any disciplinary action. Another provision said power to dismiss if less than 18 months service not affected by this. (implication being that in a “probationary” state for first 18 months)

Nicholson had served for 16 months and was discharged by Police Board. He was terminated without a hearing or reasons for determination.

Claims: Nicholson argues he should have had a chance to be heard (claimed that he had not been given

adequate participatory rights – the rights he thought out of the duty of procedural fairness that the board owed to him).

Police Board argued express mention of one thing excludes the other (expressio alterius rule) which was accepted by the Ont. C.A. and S.C.C. dissent

CA decision:CA sided with the board:1) Nicholson was an employee at pleasure, i.e. an employee that could be dismissed without a show a cause. 2) He was a probationary constable, and the statute said expressly that the board could dismiss him

27


at any time without cause. So the board was under no duty to give a hearing or to give reasons.

Ridge (1964, UK) denotes 3 types of employee-er relationships:1. Master/servant: at COL in the private sphere, unless you have contracted some sorts of procedural

safeguards that you won’t be fired without cause, at default, you can be dismissed for any reason that the employer decides to act on.

2. “At pleasure”: employee can be dismissed without a show of cause or hearing3. Dismissal for cause: can only be dismissed if the employer can show cause, e.g. public employees

Dissent in Nicholson highlights the difficulty in a situation where the Statute imposes no obligation on the employer to give reasons or offer a hearing: the police board could have offered reasons or taken reasons from Nicholson, but was under no legal obligation to do so. (Nicholson was fired under 18 months – he was still on probation.)1. Note: dissent J in Nicholson is the same J that wrote the dissent in the Calgary Power. Same

arguments present in Knight and they will also reappear in Baker.

SCC Majority Laskin C.J. (5):Conceded that the legislature did not intend full-blown hearing (as for officers with 18 months or more) BUT there is a half-way house between full PF rights (“natural justice”) and nothing at all, which they called a “duty of fairness” (i.e. something less than full PFOs). Rationale:

i) There is an important right at issue – police officer is a statutory office holder (which is more important than just an employee who would have no hearing rights).

ii) Interpreting the statute, the police officers could only be dismissed for cause i.e. required fault / wrongdoing to be found, and duty of fairness requires that a person be allowed to answer for such cause

iii) Although legislation does make distinction between less than 18 months and over 18 months with respect to hearing rights, that doesn’t mean nothing for the less than 18 months group.

iv) Hence over 18 months get full natural justice, less than 18 months get a bit less, called duty of fairness.

v) Good policy reasons to hear from Nicholson – “the Board … would wish to be certain that it had not made a mistake…” (i.e. functional better decision rationale) and morally it’s the right thing to do, especially when accusing someone of wrongdoing

Duty of fairness here means: Nicholson should have been told why his services were no longer required and given an opportunity to respond (either written or orally)Police Board decision to terminate quashed.

Dissent Martland J. (4): Agreed with Ont C.A. that if less than 18 months, purely probationary, so no PFOs.

Aftermath:1) Board schedules a hearing and notifies Nicholson of 11 allegations, but Nicholson goes back to court:

a) Asks for hearing to be prohibited (he is now over 18 months and now entitled to full hearing, and further, regulations impose 6 month time limit on dismissal which has elapsed). Court says no, it’s as if the original decision had never been made and Board gets to resume process from where it left off

b) Asks for damages for lost wages since being wrongfully discharged. Court says yes, subject to duty to mitigate (i.e. that Nicholson tried to get other work)

2) Police Board does full oral hearing, with counsel and cross-examination, and decides to terminate him (which he seeks JR on again).

3) So note it’s common if JR quashes original decision, to send it back to same decision maker who may come up with exactly the same decision again. Thus only delay has been achieved (which may be

28


what was really sought by litigant)

Laskin J. and majority contest the trial majority’s decision: Just because Nicholson holds an office at pleasure does not mean that he is entitled to no procedural safeguards. It simply means that the board does not have to give the reasons for dismissing him. Once the Board gives Nicholson the opportunity of a hearing and to explain himself, in good faith, then the Board is under no obligation to give reasons. The substantive determination of the board generally will not be reviewable by a court.It is precisely because the substantive determination of the board vis-à-vis Nicholson has such broad discretionary power to dismiss Nicholson without cause that procedural safeguards are important.

2. Courts will review process and ensure procedure is in place, but once this is done, then it is to the Board to do its job. The mere fact that the constable holds his job within the context of the public law regime changes the frame of reference wrt the context of the norms that we ought to operate between Nicholson and the Board. Certain legal norms – procedural fairness – have to be understood to operate within this framework.

3. In past circumstances, courts would sometimes recognize a duty of procedural fairness when the decision-making context already included a trial-like process, but not for administrative context.

4. Courts typically will be reluctant to require a hearing and will look for other things for the duty of procedural fairness to be satisfied. Laskin J: premising good faith, the ultimate decision will be unreviewable; it is a decision that ought to be made by the board itself.

Judicial or quasi-judicial as opposed to administrative If the decision making context already comprehended or included something like a trial process, then

courts can review. Laskin looks at this distinction (judicial vs administrative) and says that distinction is anachronistic bc

consequences to ppl involved at sharp ends of process are harsh. Distinction is unhelpful because even if particular decision rendered, that doesn't mean that decision made under that context is one that the law can allow to be made arbitrarily. One way to ensure decision is made fairly is to ensure that Nicholson is given a hearing and an opportunity to respond to concerns that the board had with respect to his employment. The concern is that underlying the decision there might be something that if it were to follow this trial-like procedure, it might show a fairness that otherwise would go unnoticed.

Who do we think is best final arbitor in these sorts of cases? Specially provided that going to courts on all these things is not an effective solution. But you must ensure procedural fairness.

Splits: Rand/Cartwright (Roncarelli), LHD/Sopinka (Baker), Laskin/Martland (Nicholson)Debate: is it illegitimate for the court to impose obligations on the decision-makers that the legislator does not want to impose? Judges interpret vs. make law debate.FD: This drives the division in the reasoning between Laskin and Martland JJ. This is why the case was so narrowly decided (5:4). Martland's arg is that here there is a fairly complicated scheme, and we do not want supervisors to

have such discretionary powers. Laskin’s separation of power argument: on what basis does he thinks that he can impose an obligation

on the board that the legislature has refrained from imposing? FAIRNESS. Public power needs to be exercised in an arbitrary way.

1) With Knight comes much broader openness to what procedural fairness entails.

Modern era = Knight steps: 1) threshold Q: any CL right to PF 2) statute 3) content 4) met1) Subsequent case law following Nicholson moved further away from need to categorize as “judicial

and quasi-judicial”. E.g. Martineau v. Matsqui Inmate Disciplinary Board (1980) (S.C.C.) Dickson J. held that “the fact that a decision maker does not have a duty to act judicially does not mean that there may not be a duty to act fairly, which involves importing something less than the full panoply of

29


conventional natural justice rules.” Also held that it is wrong to regard natural justice and fairness as distinct and separate standards, which would create an unwieldy conceptual framework. Referring to “fairness” in Nicholson, it involves “compliance with only some of the principles of natural justice.”

2) However, the distinction is still relevant since some statutes included “judicial and quasi-judicial” language to distinguish when rights would be given e.g. Ontario’s Statutory Powers Procedures Act still uses “judicial and quasi-judicial”, Federal Court Act used to, Quebec Charter does. So still need to be aware “judicial and quasi-judicial” means decision making that closely resembles courts i.e. taking something away for some kind of wrongdoing.

Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)

Facts: Under the School Act the school Board can terminate the Director of Education with cause, or can

give 3 months notice to terminate without cause (i.e. “at pleasure”) Board dismissed Director when he refused to accept a renewal of his contract for a shorter term than

the original. Director brought an action against the Board for judicial review arguing he was entitled to procedural fairness before being dismissed.

Issue: Are there PF rights for an office holder at pleasure?Held:Yes, PF rights are owed here even though “at pleasure” (although minimal PFOs and they were met, so Knight loses)1) Could be dismissed without cause2) To the extent that he was owed a duty, the duty of procedural fairness had been satisfied between the

board of education and Knight.Ratio: Majority (4-3) L’Heureux-Dube J.:Gave a framework for determining when and what PFOs are due:1) Is there any common law right to PF in these circumstances (i.e. threshold question). Need to

look at 3 factors:a) Nature of the decision:

i) No longer need to distinguish between judicial or quasi-judicial and administrative (unless statute requires it), but not all administrative decision making subject to PFOs. Rather, there is a spectrum:

ii) Consider “legislative and general” e.g. decision made on broad public policy grounds such as writing delegated legislation (suggests no PFOs) v. “administrative and specific” (suggests some PFOs)(1) In this case, was “administrative and specific” since decision applied to one individual

regarding his suitability for the jobiii) Consider “preliminary” e.g. initial report preparation, sent to final decision maker (PFOs less

likely) v. “final” (PFOs more likely)(1) In this case, Knight was dismissed i.e. final

b) Relationship between administrative body and the individuali) Here the administrative body was the School Board and the individual was the Director of

Education. Although no PFOs for mere employees have a statutory office holder here (since Director of Education described in Act). Relying on authority in Malloch v. Aberdeen Corp (No. 2) (1974) (Scot. First Div.) rejected Ridge v. Baldwin classification, and concluded PFOs should apply to all statutory office holders whether at pleasure or not. Policy reasons:(1) Morally valuable /dignity to give individual opportunity to participate(2) More informed decision maker can lead to a better decision(3) Dismissal at pleasure is a broad discretion, so important for the public interest and

legitimacy to make it accountable (to ensure not being used discriminatorily)c) Only if what’s at stake is significant and has important impact on the individual

i) Significant issue here, since individual losing office (interests around livelihood, generally,

30


require procedural fairness, but recall doesn’t apply to ordinary employees)d) So weighing these up, in this case, yes Knight was entitled to some PF at common law

2) If so, does the statute (or contract) eliminate or limit the rights to PF? a) Principle of Parliamentary supremacy, although Charter (e.g. s.7) and Bill of Rights trump the

statuteb) In this case, nothing in legislation

3) If not eliminated or limited by statute, what is the content of the PF rights?a) PFOs are “eminently variable” depending on “the specific context of each case … every

administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair.”

b) Spectrum – basically the same 3 steps as in threshold question above c) The closer the administrative process if to the judicial process (e.g. findings of wrongdoing,

adjudication with evidence from parties, determinations of fact and law), more PFOs, and vice-versai) In this case could be dismissed at pleasure, suggesting less PFOs. Knight only deserved

notice of reasons and opportunity to be heard, which did not need to be a formal letter of notice nor a formal hearing

4) Were the PFOs met in this case as a question of fact? a) In this case Knight got these PFOs through the negotiation process with the Board

Minority Sopinka J. (3):1) Office held at pleasure (as defined in Ridge v. Baldwin) so no PFOs.2) Based decision on statutory interpretation, and found nothing in statute to suggest PFOs.

Note: What separated LHD and Sopinka JJ was just the question of whether a duty of fairness could apply as a freestanding duty. Sopinka (minority) argued that in Nicholson, Laskin emphasizes that Nicholson does not have right to

hearing or reasons and points to fact that Police Act had changed to take away the provision of the position being one of at pleasure position. Also there were other provisions for ensuring procedural fairness – so right of fairness operates to some extent, yet Laskin looks at extrapolation from statute as a whole. Sopinka says that unless there are procedural provisions in statute as a whole, no procedural safeguards are due. Exceptionally we can extrapolate from contractual or statutory framework.

L'H-D uses Nicholson as springboard to see a duty of fairness, and compares duty of fairness to quasi-constitutional standards and particularly s.7 safeguards. In a case such as this where an employee is at pleasure and the decision is final and not legislative in character (deals with specific person/issue and not larger policy concerns), procedural fairness is due as a matter of right in common law – independently of statutory rights. Duty of procedural fairness brings duty to give reasons for dismissal.

Sopinka has counter argument to this characterization of procedural fairness. Says it is faulty reasoning. There are two categories of employment: at pleasure and for cause. To demand as matter of procedural fairness that board communicates given the broad grounds for dismissal to Knight would convert his position from one of at pleasure to one that is dismissal at cause. Giving him reasons would change the conditions of his position. This, to Sopinka, shows that L'H-D’s championing of procedural fairness as over standing right is one are a that judges should not step into because it makes judges legislatures as opposed to just interpreters of law.

L'H-D’s response: although board has to communicate the broad grounds, even the board's mere displeasure would suffice. No justification is required, just the giving of a reason. BUT, then what's the point? Knight brings to fore that substance-process distinction is slippery. The whole rationale underlying procedural fairness is not for some charade of cosmetic dialogue, but because we think that these sort of procedures will render judgments and decision that are more fair than otherwise. L'H-D gives 2 fundamental reasons in defence of composing these sorts of procedural safeguards:

31


(1) principle of accuracy and(2) principle of legitimacy: picks up on spirit of Laskin's judgement in Nicholson. Says that we all have right to expect delegated public power to be used fairly rather than arbitrarily.

As the distinction of judicial vs administrative waned in the 11 years between Nicholson and Knight. The distinction is replaced in Knight by distinguishing btwn administrative as opposed to legislative. In context of administrative she means to distinguish it from legislative or policy decisions. And so when decision makers are setting policy, there is no duty of procedural fairness. Given that L'H-D says in Knight that the duty of procedural fairness in this context includes duty to give reasons, do you think she does what Sopinka claims she does (that she converts an office that's held at pleasure to an office where dismissal is only at cause)?

8. Limitation on the Scope of the Duty: legislative and policy decisions

Asks the Who and the What…Who? Is decision maker is the Minister or a legislative body? What? Is the question posed legislative in nature or is it policy?

Inuit Tapirisat Cabinet decision Homex Realty Municipal decision Authorson Federal legislation Wells v Newfoundland Provincial legislation East York v Ontario Provincial legislation

The Rule of Thumb comes from Dickson J in Martineau (followed by L’H-D in Knight):« A purely ministerial decision, on broad grounds of publicp olicy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. »

Cabinet and Cabinet Appeals

Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] 2 SCR 735 (Can.)

Facts: In 1976, Bell applied to increase their rates. CRTC has authority to approve rate increases and does so Governor in Council has discretion to vary or rescind such orders by CRTC. Inuit Tapirisat (IT) intervened to CRTC to oppose part of Bell’s application. When case went to

Cabinet, IT not given opportunity to make submission on their own behalf. Minister dimissed appeal.Claims IT argue hearing should have been given, and had it been given it did not comply with principles of

natural justice. Crown argues that IT had already had opportunity to make submission to Bell and CRTC. Also,

decision of Cabinet was of legislative nature, and statutory provisions did not provide procedural safeguards and so no protections were owed as a matter of law.

Issue Does the Governor in Council have a duty to observe natural justice, or even a duty of fairness, when

reviewing regulatory decisions?Holding NO (Canada/CRTC/Bell wins)Estey J for the SCC

32


Court is to look at the statutory provisions for procedural requirements for Cabinet to provide notice to groups such as IT.

Statute delegates to CRTC the function of approving rate hikes with directives on standards to be applied. Secondary delegation of this function is to the Governor in Council, but without any standards or guidelines.

Cabinet’s decision to give a hearing to IT is not an obligation, but a discretion that can be taken. This b/c Cabinet is at the high end of policy making spectrum. Also b/c this kind of decision is a political-policy one since it will potentially affect all inhabitants of Canada and must factor competing interests

To provide hearing to reps of Inuit T would mean potentially to provide hearing to anyone and everyone with complaint for the rate increase.

The duty to observe procedural fairness need not be express, but this doesn’t mean it will be implied in every case.

Statute gives Governor in Council complete discretion provided he obsesrves its jurisdictional boundaries, this means there is no need to hold any kind of hearing or even acknowledge the receipt of a petition.

Considerations would be different if the executive had been assigned a function performable in past by Parl. itself and the subject-matter is not an individual concern or a right unique to the petitioner.

Comments L’H-D would later distinguish administrative decisions from legislative decisions at threshhold of

procedural fairness. Is court right in this kind of case to limit the reach of procedural fairness?

Bylaws and Rulemaking

Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.)

Facts: Dispute between municipality and Homex about obligation to instal services in subdivision owned by H

and who would pay for the services. The municipal authority passed a by-law that made it impossible for Homex to sell any of its parcels of

land without the consent of the Municipal Council (Homex not allowed it to convey (ie alienate) property. The by-law was passed subject to Planning Act.

Important to note that this wasnt by-law that affected the entire municipality but exclusively the sub-division where Homex was devg lots for sale.

Claims Homex sought judicial review By-law 7. What they complained of, amongst other things, was that the

effect of the By-law was tantamount to an expropriation (or quasi-expropriation) and the loss of an important entitlement of it. Homex compained that they were neither given notice nor opportunity to appear before council to dispute the by-law.

Municipality argued that had they given Homex notice, H would’ve built in checkerboarding manner. This would have precluded the municipality from in effect passing a by-law which would have affected Homex and the area it planned to develop.

Issue Was Homex entitled to hearing given By-laws expropriating effect?Holding NO. (Municipality wins and By-law is upheld)EsteyJ for the majority (Laskin CJ, Martland, Beetz and Chouinard JJ) Homex not entitled to relief bc of the inconsistent and evasive conduct of its principals. However, under normal circumstance, the Council should provide prior notice. While the passage of the by-law stripped Homex of its right of conveyance, it is also clear that the

balance of the township may also be affected by the action of Homex if they are successful in avoiding

33


the consequences of the by-law. So there are competing private and public interests at play. Concludes that action taken by the council was not in substance legislative but rather quasi-judicial in

character so as to attract the principle of notice and the consequential doctrine of audi alteram partem. Agrees w/ Dickon that hearing requirement was not satisfied but argument about conduct was accepted

Dissent of Dickson J (and Ritchie J) Cml recognizes that before a public body can limit or abrogate the property right of citizens, it must

give the individuals concerned the right to be heard. This is long-standing principle of PF. Where statutory body seeks to limit property rights, Courts will imply the right to be heard unless there

is an express declaration to the contrary. No such declaration here, Homex should have been heard. The Municipality argues that it was exercising a ‘legislative function.’ Dickson J disagrees. The right to

a hearing does not spring from there being competing groups, but from the fact that the by-law interferes with the property rights of one owner. The presence of a compelling public interest doesn’t diminish the citizen’s right to procedural protection. If anything, public interest is best served by giving private interests full disclosure and fair opportunity to be heard. The act cannot be labeled ‘legislative’ for the purpose of dispensing with fairness and procedure.

It is unnecessary to classify a process as judicial or quasi-judicial to establish a right to procedural fairness (based on Martineau and Re Nicholson). Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard that must be met by the statutory body. This analysis requires flexibility (ie nature of the funcation and facts of each case).

Homex entitled to some procedural safeguards – at a miniumum to be given notice of the proposed by-law and the opportunity to be heard.

Comments Take from this case that By-law is legislative in nature (subset of law). Nevertheless, in this case, the

court found that procedural fairness was owed. The crucial point in the Homex decision is that the municipality had made a policy decision that had an

immediate and specific target. This suggests that where a by-law or subordinate legislation of a more general character is being enacted, claims to procedural entitlements even by those affected immediately may be either diminished or eliminated.

Unlike Inuit, here we have something that looks like acts of retainder (where law is done to affect someone in particular).

Legislative Decisions

Authorson v. Canada [2003] SCC 39

Facts: Authorson represents class of disabled vets who received pensions and other benefits from the Crown. Dept of Veterans Affairs administered the funds but did not invest them or put them in interest accounts Parliament passed the DVA Act s.5.1(4) which explicitly limited the Crown’s liability for past interests

and stripped veterans of entitlement to claim damages for Crown’s failure to divest interests. Claims Crown breached fiduciary duty to vets by not placing the monies in interest-bearing accounts. s.5.1(4) bar was inoperative under the Canadian Bill of RightsON Superior Court (Rockenshire J) Crown owed fiduciary duty to the vets and had obligations to invest the funds on their behalf or pay

interests. Failure to do so constituted breach. Despite legislature declaring that the veterans were barred from making claims on basis of interests

owed, Ct said that Bill of Rights, which guarantees no expropriation without procedure, had been violated since vets had not been heard or allowed to make their case.

So judge found that the amendment (s.5.1(4)) was inoperative (of no force or effect).ON Court of Appeals (Appeal dismissed)

34


Bulk of decision dealt with fiduciary duty of crown. It found that Crown did have such a duty.SCC Holding There is NO fiduciary duty. (Attorney General wins)Major J for the SCC Where federal legislation conflicts with the protections of the Bill of Rights, the Bill applies and the

legislation is inoperative (for rights that existed in 1960) Vets owed fiduciary duty from the crown and the crown breached this duty and in doing so the vets

acquired real proprietary interest in the monies due them as result of this breach. Question then turns on the Statute : its enactment and its application.(1) Procedural fairness. It looks first at what PF is due prior to enactment of legislation. It says that unfortunately none.

Legislators free to legislate whatever they want without consulting in any way with their constitutents. Due process requirement in Bill of Rights is PF in front of tribunal. Due process protections of the Bill of Rights do not reqiure that veterans received notice and a hearing

before Parliament. This is not set by Parliamentary tradition and due process provisions cannot interfere with the right of the legislative branch to determine its own procedure.

No adjudicative procedure is necessary for the nondiscretionary application of a law to incontestable facts.

(2) Application of the statutory bar. The impugned provision is not inconsistent with the Bill of Rights and the veterans were lawfully

denied interest on their pension and other benefits. Bill of Rights does not protect against the expropriation of property. Parliament has right to expropriate

property, even without compensation, if this intention is clear and unambiguous. Courts say that when looking at application of law that may deprive someone of their property, then

certain due process rights will be due. Here the statutory bar operates in black and white fashion much like amendment to tax code – so it’s not like you get right to procedural fairness or to make submissions before its application, like with other statutes.

What the clear amendment did was expropriate that money from the vets. Cml doctrine on expripriation is clear and says that such legilation will not be given effect unless

expropriation is mandated thru clear and express words. Here, the court says, the words were clear and express, so vets are out of luck.

(3) Substantive due process (SDP) This is term taken from American law. The SCC goes thru how devt of SDP had been regressive in the US. SCC says this sort of DP is not

what they want to subscribe to and they dont want to question Parl where it has expressed its will thru clear and expressive language.

So when Parl has expressed clearly its intention, then courts cant question or by-pass them, even in matters of expropriation.

Comments Court thinks this decision is atrocious, but they feel like they have to do it. Vets had been lobbying the govt since early 1970s to put the money in interest accounts and get

compensation. DVA aware, as per internal memos, of a ‘problem.’ There was a fear of liability. It could be read as acknowledgement of liability and failure to have administered the funds properly before. Total claim was around $6 billion.

After DVA Act was passed the govt started to invest the monies in interest-bearing accounts. Vets had already tried with Callie case in the Fed Cts but failed. So Authorson went thru the Ont Ct

system.

Wells v. Newfoundland [2004] SCC 53

Facts:

35


Andy Wells was a member of Public Utilities Board as Consumer Representative. He didnt get along well with his superiors, but he was tenured. Wells could only be fired for cause or must retire at 70 with pension if he’d been there 5 yrs.

Wells was fired as result of new legislation that lowered # of ppl on board. He had served 4.5 yrs. He was 6 mths short of having his pension vest. He was not reappointed to the

new Board and did not receive any compensation. He claims damages in K for remainder of his term (another 2.5 yrs)Newfoundland Supreme Court (Trial Division) Action dismissedCourt of Appeals Wells won. Crown found to be in breach of statutory and contractual obligations. Damages given for

2.5 yrs of salary plus pension benefits.Issue Is there a contract? Was it breached? Can legislature breach contract thru statute?Holding YES. YES. NO. Appeal dismissed. (Wells win)Major J for the SCC Govt offered him the position, there were negotiations, he accepted. This was a contract. Terms and conditions of K may be dictated by statute, but employment relationship remains a K. So

general law of K applies unless specifically superceded by explicit terms in statute or the agreement. The provincial legislation is clear and explicit. As consequence this person’s employment is terminated. In private sector, Wells would be entitled to damages. His status as employee of Crown should not be

different. While his position could be eliminated, he could not be deprived of the benefits of the job except by virtue of age or bad behaviour.

Crown breached its obligation to Wells when it cut off his remuneration. Crucial distinction btwn Crown legislatively avoinding a K and altogether escaping the legal

consequences of doing so. In the absence of a clear express intent to abrogate the rights stemming from the K, those rights remain in force.

Parliament did not specifically enact a clear and explicit statute that stripped Wells of the compensation flowing from the K. Court cannot read this into the statute.

Comments Ct says legislature could’ve used clear and express language to strip Wells of any entitlement but it did

not do that. Govt simply terminated him on basis of new legislation and a new structure for the board. Court is quite anxious to defend ppl’s rights in face of legislation, unless legislation is clear and express

in its terms. One of govt’s arguments was that govt K with Wells frustrated by the legislature. Court didnt think

much of this bc it is ill of govt to claim frustration on basis of legislation that govt itself passed and implemented

East York (Borough) v. Ontario (Attorney General), [1997] O.J. No. 3064

Facts: City of Toronto Act, 1997, merges the GTA. There was no meaningful consultation with the inhabitants The Bill creates two unelected bodies, the financial advisory board and the transition team, to plan the

municipality.East York Claims Charter violations: freedom of expression and association, liberty, fundamental justice + discrimination In creating two unelected bodies the legislature exceeded its powers under s.92(8) to enact laws in

relation to municipalities. Particularly bc of legislature’s failure to consult. In giving authority to transition team to plan the merger, the province had unconstitutionally delegated a

power which it held exclusively.

36


They ask for the entire Act to be declared invalid either for Charter arguments or bc it’s ultra viresHolding There are no violations of the Charter nor of s.92(8). Application dismissed (Ontario wins)Borins J for the Ontario Court (General Division)Section 92(8)

It is prerogative of govt to pass legislation without consultation. There is no obligation to do so. S.92(8) gives legislature power to delegate to municipalities any authority, to take it away, etc.

Municipalities have no constitutional protection whatever against provincial laws that change their structures, functions and financial resources without their consent.

Moreover, remedy cannot be obtained whether there has been a failure to follow constitutional convention

Power to reorganize TO was exercised, not delegated to the advisory board or transitional team.Charter Rights- Charter was not created to alter or limit legislature’s jurisdiction over municipal institutions

Freedom of expression: ppl would lose ability to express themselves as effectively as they had before in city council. Ct said that it’s not clear that it is an infringement of expression, neither to ppl who will be represented in the Global Community Councils once restructuring occurs.

Freedom of association: argument that merging infringed freedom to associate as they so desire. Here Ct says that no person or municipality has right to establish a municial jur’n within which they are going ot live. This right was exclusively of provinces.

Liberty (s.7): right to be consulted does not fall within the meaning of liberty under s.7 Fundamental justice (s.8): it was not established that the law violates this principle. Discrimination (s.15): no evidence to show how the Act discriminates a group.

Comments Court says that even if megacity project flew in face of popular will of the majority of the inhabitants

that would be subject to this merger, it was unable to do anything. Any sort of restructuring re: municipality of this size is necessarily going to involve transition process

and will need some sort of body struck for that purpose. There is no basis in law for thinking that group of constituents subject to legislation have any

entitlement or right to be consulted prior to legislation beeing put before the House. The only remedy is under the electoral process.

37


9. Legitimate Expectations

This is a newly emerging doctrine. It started off in UK courts, which appeared to maintain the position that such procedural protections were attached to the statutory powers in question as opposed to particular exercises of it. Thus, procedural fairness either applied every time a power was being exercised or not at all.

The SCC, in the post-Nicholson era did not espouse this last all-or-nothing theory as it recognized that procedural fairness obligations did not necessarily attach to all exercises of a particular statutory power.

The modern doctrine arose in Schmidt [1969] where Denning said that in some cases, despite absence of statutory requirement, we will say that circumstances exercised pursuant to statutory authority may require certain procedures. “It all depended on whether the person has some right or interest, or some legitimate expectation of which it would not be fair to deprive him without hearing what he had to say.”

“Legitimate expectation” is also used to describe the nature of the substantive interest for which procedural protections were being sought in Webb and Hutfield.

Denning expanded on the concept in R. vs. Liverpool Taxi.

Liverpool Taxi Fleet Operators’ Association, [1972]2 QB 299 (CA,) UK

Facts: Taxi Association had been promised by municipal council that the Council would not produce any

additional licenses without consulting them. Despite these representations, Liverpool issued more licenses. Taxi Association attacked this exercise of power saying it had legitimate expectation to be consultedReasoning (Denning) Not only did the municipality have to provide a hearing for the benefit of the association, but the

issuance to others would be legal only if some overriding public interest required it.1- Legislative/Policy part The decision by the Municipal Council is, in its nature, a policy one that takes into account a wide

range of issues (like CTR and its rates, unlike Baker where it’s state vs. individual). Nevertheless, the order to issue more licenses had to be quashed until such time that the Taxi

association had been consulted. 2- Overriding Public Interest The issuing of more licenses must come from some over riding public interest. So Taxi Association

must also take these into account when it is being consulted.Note This is not just a procedural component – there is a substantive requirement. But, the substance is not

the guarantee of a particular outcome. But there has to be some reason given for issuing licenses. This doesn’t come out in the coursebook, but it is very explicit in Kahn case (below, s.12.2).

Kahn, UK, House of Lords

Facts: Kahn was immigrant to UK who wanted to adopt his relative’s child. Home Office had drafted a

circular listing several criteria which, if followed, would permit one to bring and adopt a child. K followed these guidelines but HO refused to let child into the country and gain lawful status. When his case came up for determination, the Home Office refused to follow those guidelines.

38


Reasoning Home Office did not use in the circular – on which K relied – it must therefore explain why it did this. In these circumstances, there arises a legitimate expectation which will give rise to right to have case

determined in accordance with procedures that had been set out previously. Not only was it to be decided on previous practice, but also applying the criteria in the brochure in all

cases – except in those where there is overriding public interest.Note At common law, these guidelines are not binding on decision makers because do not have force of law

– not enactments of a legislature. What we have is not just express promise from public authority but also an established past practice.

LE applies in Canada today when there is: 1- An expectation of a hearing arising out of express representations, 2- A practice of holding such hearings or 3- A combination of the two.* This is related to the evolution of law relating to estoppel and public officials. Legitimate expectations were first discussed in Canada by Sopinka in Old Saint Boniface. It was established that legitimate expectations may give a party rights to certain procedural protections and safeguards where they otherwise might not apply.

Old Saint Boniface Residents Assn. Inc. vs. Winnipeg (City), [1990] 3 SCR 1170 (Man.)

Facts: The OSB residents expected that no further development would occur until such time as there was a new

city plan in place, a process in which the association expected to participate. Devt did occur without consultation. However, statutory scheme had set certain procedures for consultation. These statutory procedural

safeguards were deemed to suffice by the SCC.ReasoningSopinka J In Canada, legitimate expectations are just a part of the procedural fairness. It can give a person

who makes a claim based on PF no right to a substantive outcome.“The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.”

Reference re Canada Assistance Plan [1991] 2 SCR 525 (BC)

Facts: CAP was federal statute. It authorized govt to enter into agreements w/ provinces for sharing costs of

provincial social assistance and welfare programs. §8: agreements subject to termination by consent or unilaterally by either party on 1 yr’s notice. Fed govt reduced contribution to BC, AB and ON to figure below that provided by the Plan and

agreements w/ the provinces. The fed govt did not give prior notice.Arguments BC argues that govt acted illegally in invoking power of Parl to amend the CAP without obtaining the

consent of BC. This violated BC’s legitimate expectations. BC further argued that their legitimate expectations barred the govt from introducing this Bill into Parl

39


Issue Was the fed govt precluded from introducing the bill by virtue of the legitimate expectations that

amendments would only be made to the agreements by consent.Holding NO (Govt wins)Sopinka J BC’s claim that its consent is required must be contrasted with the claim that there was a legitimate

expectation that the fed govt would not act without consulting BC. If the doctrine of legitimate expectations required consent, and not merely consultation, then it would be the source of substantive right to veto proposed federal legislation.

Legitimate expectations do not create substantive rights. It is part of rules of procedural fairness which can govern administrative bodies (ie right to make representations or be consulted)

To allow BC’s claim would be to permit courts to intervene during legislative process. It is not the place of the courts to interpose further procedural requirements in the legislative process (ie it cannot apply to legislative decisions).

On issue of separation of powers, Parliamentary govt would be paralyzed if legitimate expectations doctrine were applied to prevent govt from introducing legislation into Parl. It would fetter cabinet’s freedom and to do so would be to fetter parliament.

Notes There was no duty even to consult because even though that was in the legislation, parliamentary

sovereignty requires that one parliament cannot force a next one to have to consult. “Legitimate expectations does not fetter the result after the consultation or representation.” This is interesting given that in Knight, Sopinka was worried that giving procedural fairness would lead to substantive fairness. He is concerned with distinction between process/substance distinction – what’s the point of consulting them when we can ignore what they say anyway?

LE can only provide relief in terms of procedural claims. It never generates a claim to a substantive outcome, only hearing entitlements.

We know from Knight that there are threshold issues to consider when seeing whether or not procedural fairness applies or not.

1. If legislative or procedural in nature (normally procedural fairness wont apply)2. Final or non-final in nature (if non-final, procedural fairness won’t apply).3. Importance of decision to the affected party or parties (if trivial, courts reluctant to impose

procedural safeguards)

What if you have situation where there is substantive promise of a particular outcome? If LE in Canada only deal with Procedural manners, then if there is a promise of a substantive outcome it seems that in Canada that expectation will not be recognized by the courts. Why? Bc LE only concern procedural matters in Canada.

If there is promise of substantive outcome, what you may get in Canadian law is certain procedural protections possibly enhanced. This takes away anomaly that promise of substantive outcome may not get you much. It will at least guarantee a hearing or even if hearing was already in place, perhaps opportunity to make written submissions and know the case against you (ie give you more procedural protections than you may otherwise be due or have available).

If doctrine of LE is to play a significant role, it will most obviously be as a surrogate for the failure of the conventional cml principles to provide for the imposition of procedural entitlements in the context of rulemaking and broadly based policy decisions.

40


Mount Sinai Hospital v. Québec [2001] 2 SCR 281 (Qué)

Facts: Minister promises to regularize license if the hospital relocates. The hospital relocates, but the new Minister refuses primarily on the basis that to issue the license

would be to commit the govt to additional financial support, something that was not in govt’s priorities. Hospital seeking mandamus to compel the minister to issue the revised licence.Court decisions SupCt refused to make the order bc doctrine of LE couldn’t be used to achieve substantive outcomes. CA accepted this but ruled that hospital entitled to revised license on basis of public law estoppel. SCC (Bastarache) refused to deal with issue of public law estoppel and LE, but case turned on fact that

earlier ministers had made decision on basis of condition to relocate. This was decision that current minister did not have basis for overturning (no evidence supporting claim that grant of licence would involve any commitment of additional funds).

SCC (Binnie and McLachlin, concurring) reached same solution, but on basis that minister’s decision was patently unreasonable and failed to act in procedurally fair manner.

Issue of Legitimate ExpectationsBinnie J Hospital’s argument that LE can be used for both procedural and substantive protection is based mainly

on English cases. The Canadian case law is against this position. Distinction that English law’s approach to doctrine of LE does give substantive remedies, but that’s bc

their doctrine of LE performs functions that in Canada are kept distinct. There, policy is not ordinarily open to judicial review, but courts will ask whether the application of the policy to an individual who has been led to expect something different is a just exercise of power (ie if the frustration of the expectation is so unfair as to be a misuse of the authority’s power).

In Canada this level of judicial intervention in govt policy is inappropriate unless it’s a Charter claim. Canadian cases differentiate for analytical purposes the related concepts of procedural fairness

and the doctrine of legitimate expectations. The availability and content of procedural fairness is driven by nature of the applicant’s interest and

the nature of the power exercised by the public authority in relation to that interest. Doctrine of legitimate expectations looks at the conduct of the public authority in the exercise of that

power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified. Expectations must not conflict with the authority’s statutory remit.

The focus is on promiting “regularity, predictability and certainty in govt’s dealing w/ the public.” If the Court is to give substantive relief, more demanding conditions precedent must be fulfilled than

are presently required by the doctrine of legitimate expectations. Two such limitations are :1) Purely ministerial decisions on basis of public policy give no procedural protection, unless there

is an abuse of discretion2) Public bodies exercising legislative functions may not be amenable to judicial supervision.

Minister’s decision here set aside through ordinary rules of procedural fairness, and so there’s no need to resort to doctrine of legitimate expectations (which would only afford procedural, not substantive, relief anyway).

Notes Binnie J concedes that there would be cases where it is difficult to distinguish procedural and

substantive rights.

We want to allow minister and their delegates to be able to establish policy of general nature and so policy decisions that when implemented will have certain outcomes will not be subjbect to JR. Whereas particular applications of the policy may be subject to review or in certain circumstance be categorized as procedural.

A “legislative/policy” decision in an admin context is a decision the NATURE of which is “legislative” or

41


“policy”-like (as opposed to adjudicative or quasi-judicial). Here, Sopinka is dealing with a Big “L” legislative decision in that it is both legislative in nature (by definition) but also a decision OF the federal legislature (i.e., Parliament). Legitimate expectations can’t block the introduction of “Big L” legislation, but, in principle, it may give a lawyer a toehold to argue for procedural fairness in the context of an admin decision that is legislative in nature.

A distinction is drawn between LE and public law estoppel, where you act in reliance of a promise to your detriment. There has to be a clear and unambiguous promise or representation upon which you act. In public law, we need to allow the minister a certain amount of scope independent of the detriment that this promise has done to this person. Binnie set thte threshold really high, but said that if this threshold is met, it could give rise to substantial remedies.

Baker v Canada [1999] 2 SCR 817 – LEGITIMATE EXPECTATIONS

Legimate Expectations as Factor affecting the content of the Duty of Fairness LE is part of the doctrine of fairness or natural justice; it does not create substantive rights. If LE is found to exist, it will affect content of the duty of fairness owed to the indiv affected by the

decision. If claimant has LE that a certain procedure will be followed, this procedure will be required by the duty

of fairness. If claimant has LE that certain result will be reached, fairness may require more extensive procedural

rights than would otherwise be accorded. In any of these situations, LE cannot lead to substantive rights outside procedural domain. In this case, there is no LE affecting the content of the duty of fairness.

10. Interests Protected by the Duty of FairnessIn a case called Cardinal [1985] LeDain J, for the court, held that duty of Procedural Fairness can go to “rights, priviledges and interests”. This is a step beyond Roncarelli. However, not all interests are treated equally even when at the issue of the threshold. In both Knight and Baker, L’H-D refered to important interests. In such cases the threshold will be crossed.

The discussion stemming from this decision can take two forms for “rights, priviledges or interests”1. Positive or expansive sense: indicates that the old law had ceased ot be part of the terrain; that it

was no longer necessary to establish that a “right” was affected but that mere priviledges and interests qualified as well provided the decision in question was not a general or legislative one.

2. Limited sense: irrespective of whether “rights, priviledges or interests” were at stake, there could be no claim for procedures in relation to the exercise of such powers. Basis for a claim to be a compendious one and not to be disaggregated with the excluded category being those decisions that were of a general nature and did not focus specifically on the situation of an individual or relatively discrete group of individuals.

If either of these is true at the exclusion of the other, then there would be no need to treat “rights, priviledges or interests” as a possible source for the exclusion or denial of claims. But why should things ever be simple?

Re Webb and Ontario Housing Corporation, [1978] Ont. CA

Facts: OHC owned some apt-bldgs, managed by Meridiean. They were leased at below-market rents to

persons on low incomes. Webb and children were tenants since 1970. In 1973 Meridian recommended termination of lease bc of

42


complaints against W’s kids. OHC approved and brought application for termination of her lease. Webb appealed the approved application for termination of her lease.

Issue Was OHC, in its administrative actions, required to treat Webb “fairly”? YES Did OHC treat Webb fairly? YES (Webb loses)

MacKinnon JA Webb receives welfare and was accepted as a tenant bc of that. Once she became a tenant she acquired

a very real and substantial benefit bc of her reliance on and eligibility for welfare. That decision was one which could be made by OHC without any intervention of a rule or principle of PF.

Once she became a tenant and received the benefit of subsidized rent, the situation changed. When considering what is to be required of a particular authority in terms of procedure, must look at:

1) Nature of the authority2) Nature of its power3) Consequence of the exercise of that power to the individuals affected4) Nature of relationship btwn the authority and the individual affected.

Here, OHC required to treat W fairly by telling her of the complaints and giving her an opportunity to make an answer to those complaints. OHC did do these things.

So long as the person adversely affected is advised of the case against him and is permitted to give an answer (even through an agent) that is sufficient, unless there is evidence of bias.

Note:1) The treatment of the intersection btwn procedural fairness claims and the Acct and the sliding scale in

procedural claims dependeing on the nature of the interest at stake. 2) Distinctions btwn an applicant for accomodation in govt-subsidized housing and an existing resident

in such housing. This suggests a continuing relevance for threshold purposes btwn benefit holders and those seeking such benefits.

Webb recognizes that the holders of various forms of state assistance are entitled to some measure of procedural fairness before assistance is cut off or removed. But it does not eliminate entirely the signs of the hierarchy of claims or interests. Once the initial threshold is crossed, there is a ranking of interests that occur and play a significant role in the assessment of what procedures are due. Webb, eg, would not be given the same procedural protections as Hutfield.

The question thus turns from procedural fairness not having relevance in the allocation of benefits, to what level or type of process is demanded. Commonly it will be minimal, but sometimes this will not suffice.

Hutfield v. Board of Fort Saskatchewan General Hospital, District No.98

Facts: Dr. H applied to be appointed to the medical staff of the Gral Hospital. To do so, he applied, application

committee asked College of Physicians for recommendations and then application went to the Board. First time he applied, the College approved him but the Board rejected him. He re-applied and application committee did not send it to the College, did not ask him to appear and

made adverse oral recommendation. H asked to appear before the board but was refused H applied 3rd time and board rejected him and again refused to give reasons. H seeking certiorari to quash board decision and mandamus to compel consideration. Issue Is H due procedural fairness? YES. Application allowed and H wins.

McDonald J

43


H entitled to procedural protections in spite of being initial applicant. Certain factors need to be taken into account, all of which weigh in favor of H (look particularly at last 3):

1) It is not only rights but “interests” that the Courts will protect2) Recognition that certiorari is also available where there is duty to act fairly3) Content of the duty to act fairly varies from one situation to another.4) Board requirements : by-laws require committee to look at the credentials of the applicant.5) H’s interests : Refusal of a licence casts a slut on H’s application and financial stability, so the

duty to act failry requires that the committee offer an opportunity for a hearing.6) Public interests : General interests of the public are affected by the decision of the Board.

Despite fact that he was applicant, the Court said, the board had duty to hear him as well as duty to give him reasons for why his application was rejected. The court made distinction based on facts since he was resident of AB and that he lived near to the hospital

“Such a body, of its decisions will modify, extinguish or affect a right or interest of a person when that person’s rights or interests are being considered and decided upon in a way that is in law or for practical purposes final, or final subject to appeal, must adhere to procedural standards the precise nature of which will depend upon the nature and extent of the right or interest.”

Note : At least court seemd explicitly to say that, in principle, there is no difference btwn someone who holds lease or licence and an initial applicant. What typically drives our intuitions in differentiating the two is that we have someone who has a licence and this creates a reliance interest with respect to someone who holds an entitlement whereas with someone who doesn’t hold an entitlement and thus doesn’t have that reliance interest.

Mullan and Ceddia, “Globalization and Domestic Law: The Impact on Public Law of Privatization, Outsourcing and Downsizing – A Canadian Perspective

Deals with constitutional questions and how the Court could use the constitution or the Charter to limit or intrepret challenges to govt efforts to privatize or globalize.

Mullan refers to areas where legal action has been attempted to restrict govt efforts to privatize or at least deregulate public industry such as licquor stores, utilities and other public entities that operated as public businesses.

Mullen says that Courts have been very reluctant to impose positive duties on the state with respect to social assistance and welfare programs. There have been a few minor exceptions where applicants have attempted to argue on basis of s.15 (Eldridge and restriction of translation access to the hearing impaired as violation of s.15). In these sorts of cases we have specific statutory program that can operate in discriminatory way against a particular class of people.

What courts will more typically get involved in is cases where what’s being argued is more like a basic right to welfare or to social, economic and cultural rights. In these exceptions we have:a) explicit program that would operate against a class of people b) procedure very much like criminal proceeding where “strong arm of the state” generally works against the person

Unlikely that courts will find that s.7 comprehends a right to shelter that is any greater to rights already provided within legislation.

44


11. Constitutional Dimensions: Section 2(e) of the Bill of Rights & Section 7 of the Charter

Two points:1) Guarantee of procedural fairness2) Is there a constitutional basis for procedural fairness?

Ss. 1(a) & 2(e) Canadian Bill of Rights1(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the

right not to be deprived thereof except by due process of law;

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

S. 7 Canadian CharterEveryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Differences in rights that may be relied on for procedural fairness btwn Bill of Rights and Charter: 1) BoR says “person” (2(e)), Charter says “everyone”

Characterization of beneficiary of the right: “Everyone” = every natural person (as determined by jurisprudence)—so doesn’t apply to corporations, municipalities, etc.

It is possible that “person” has wider scope since there are no cases on this and this term has not been cut down.

“everyone” includes refugees (Singh)2) BoR covers property, Charter doesn’t (although Singh says that the guarantees are also about

necessities of life)3) BoR applies only to federal power (it is a federal statute). Charter applied to all government action

(fed, provincial, prerogative) 4) BoR has broader application than Charter – (gives rights against wider range of decision-makers)

a. S. 32 says Charter only applies to acts of the government (BC Htl Boards – Courts determined that universities are not subject to Charter; they are not exercising government powers even though they are governed by provincial statute)

b. In the Charter, the impugned action must fall under the notion of “government powers”c. BoR does not limit the agency that is operating under a law of Canada to be one that

necessarily has something governmental about it (S. 1: “no law of Canada shall be construed or applied so as to…”).

5) Charter is “autonomous” constitutional document. BoR is not autonomous in that it is not capable of invalidating a statute—quasi-constitutional.

6) Violationsa. Can justify violation of Charter right under s. 1 analysisb. No justification provision in BoR—there have been cases in which courts have engaged in

something like a s. 1 analysis 7) Content of the duty:

45


S. 7 helps us cross the threshold but doesn’t tell us what the content is (relies on “principles of fundamental justice—imply procedural fairness). BoR is more explicit.

Ie. s. 2(e) gives “fair hearing”; Charter s. 7 – due process comes in by implication.

Note that a statutory authority that is not in general government becomes subject to Charter when charged with responsibility for the effectutation of government programs. McKinney decision shows that universities, for example, may carry out some undefined and unspecified activities that partake sufficiently of the characteristics of government to be subject to review, and others that are not.

Articles 1(a) and 2(e) of the Bill of Rights are each now viewed as a vehicle for rendering inoperative federal statutes that do not provide the protections of “due process of law” and “fundamental justice” respectively. The precise dimensions of 2(e) remain murky, although “rights and obligations” is now receving a broader interpretation than s.7 of the Charter “life, liberty and security of the person.”

National Anti-Poverty Organization v. Attorney General of Canada, [1990] FCA

[Revisits issues of Inuit Tapirisat re: procedural obligations of the governor in council in the context of “Cabinet Appeals” from the decisions and orders of regulatory agencies.]Lower Court Muldoon J determined that Iniuit Tapirisat had been decided per incuriam (without reference to a

statutory provision) since it was not confronted by any submission on the applicability of s.2(e) of the Bill of Rights. As such, it did not have to be followed as precedent.

Cabinet in these cases was determining the “rights and obligations” of subscribers and was therefore bound to act in accordance to the “principles of fundamental justice”

AG of Canada appeals

Issue Does section 2(e) of the Bill of Rights apply? NO (AG wins)

Stone JA Trial judge found that Governor in Council is obliged to follow fundamental justice and hear the other

party before making a determination of the other party’s rights and obligations. However, one must first ask if any “rights and obligations” are being determined by the Governor in

Council. To this Stone JA answer that “no ‘rights and obligations’ of the respondent where put at stake. Thus it was not intended to be subject to the procedural safeguards that might otherwise be available in

a matter involving individual concern or unique right. A “right and obligation” must exist for the safeguards of fundamental justice to be observed.

CharterSection 7 of the Charter is the principal source of procedural protection. As opposed to section 2(e) of the Bill of Rights which is restricted to procedural claims., the guarantee of the principles of fundamental justice in s.7 is not conditioned by any reference to a hearing.

s.7 procedural fairness ≠ s.15 procedural discrimination. The only form of procedural discrimination that counts is one that has the intention or effect of discriminating against persons within the ennumerated grounds.

Singh v. Minister of Citizenship and Immigration, [1985] SCC

Facts:

46


S was one of several convention refugee claimants. Following the procedure then in place, the minister had determined that they were not convention refugees.

They appealed the decision, but the Immigration Appeal Board didnt refer their cases to an oral hearing Appealed again to FCA alleging the statutory scheme infringed on s.7 of the Charter. They failed. At SCC made oral arguments on Charter case, and then asked to make written submissions on whether

the statutory scheme was consistent with s.2(e) of the Bill of Rights. Issue Was the statutory scheme consistent with s.7 of the Charter? NO. S entitled to s.7 fundamental justice. Was the statutory scheme consistent with s.2(e) of the Canadian Bill of Rights?

Wilson JThe Scheme of the Immigration Act, 1976 The Act does provide Convention refugees with certain limited rights to enter and remain in Canada. The problem passes on to the procedures for determining if someone is a Convention refugee. s.45(4) of the Act does not envisage an opportunity for the refugee claimant to be heard other than

through his claim and the transcript of his examination under oath. The Committee that reviews and is the decision-maker is therefore isolated from the persons whose status it is adjudicating and it makes use of information and applies policies to which the claimant has no access.

The appellants did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. But these are the procedures and they were followed correctly.

For appellants to succeed it must be on the basis that the Charter requires the Court to override Parl’s decision to exclude the kind of procedural fairness that they seek.

Application of the Charter s.7 applies to “everyone” – that is, every human being who is physically present in Canada. Appellants have 3 rights under the Immigration Act, 1976

1) Right to a determination from the Minister on whether he can enter and remain in Canada2) Right not to be returned to a country where his life or freedom would be threatened3) Right to appeal a removal order or a deportation order made against him

Question then becomes wether the deprivation of one of these rights constitutes a violation of the s.7 right to “life, liberty and security of the person”.

Note that even if s.7 is a ‘single right’, a violation of any of the 3 components (life, liberty, security of the person) is a violation of s.7.

Wilson concludes that a denial of the rights possessed by a Convention refugee under the Act to not be removed from Canada to a country where his life or freedom would be threatened constitutes a deprivation of his security of the person.

But the appellants cannot access the rights of Convention refugees. Their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not.

Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a well-founded fear of prosecution, they are entitled to fundamental justice in the adjudication of their status.

While procedural fairness may demand different things in different contexts, where a serious issue of credibility in involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.

The procedural scheme does not provide adequate opportunity for refugee claimant to state his case and know the case he has to meet. This aspect of the procedures set out in the Act is impossible to reconcile with the requirements of “fundamental justice” as set out in s.7.

The breach is such that it cannot be saved under s.1

Beetz (concurring) Agrees with Wilson majority that appeals should be allowed. But on the basis of the Bill of Rights.

47


Appellants’ refugee claim involves the determination of rights and obligations for which they have, under s.2(e), the right to a fair hearing in accordance with the principles of fundamental justice

They were not afforded such a fair hearing. They were denied their claims without their having been afforded a full oral hearing at a single stage of the proceedings.

This does not mean that the principles of fundamental justice will always require an oral hearing. But determining this requires looking at the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.

NotesTwo qualifications on Singh have emerged.

1. Section 7 does not always require an oral hearing2. In addition to the balancing interests that must occur in making determinations as to the precise

procedures that the “principles of fundamental justice” mandate, there is also room for section 1 to be invoked in justifications of section 7 violations.

Using the Charter, have to go to a number of inferential steps to find a requirement of hearing first since fair hearing is not explicit in the Charter.

This means that the BoR is giving broad protections for: Threshold – Any landed resident would have right to fair hearing even if not under threat of major

torture if returning to country of origin – because, on its face, the BoR applies whenever a right or interest is at stake.

S. 2(e) will blow lid off all threshold question because all admin decisions make determinations regarding rights and interests. Therefore, the principles of fundamental justice in s. 2(e) will have to be read to distinguish between cases where there is and isn’t a hearing.

So here, principles of fundamental justice are limiting whereas in Wilson’s judgment, they give meaning to the duty. I.e. constricting rather than mandating role (like s. 1 Charter role).

“Moreover, where life or liberty may depend on findings of fact and credibility, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, is not sufficient.”

48


12. The Content of Procedural Fairness

12.1 Introduction and Framework

Mullan (pp. 171-6)

Framework for the Content of Procedural Fairness The closer a decision-making function is to the legislative end of the spectrum, the fewer the

procedural fairness obligations of the decision maker. Purely administrative decisions may now be caught in the web of procedural fairness, but minimal

efforts will be sufficient to comply with fairness. Aside from the obvious inquiries as to what is the best way to get at the information and arguments

athat are relevant to the exercise of the particular statutory prerogative power, the courts have also recognized here, as in the threshold issue, that certain interests require greater procedural protections than others.

Consider Nicholson (probationary status = minimal PFOs) versus Kane (tenure = greater PFOs) or Idziak (extradition, political decision, already had hearing = minimal PFOs) versus Baker (already in Canada, children, illness = greater PFOs).

Baker finally set out a methodology for determining the content of procedural fairness: (1) nature of the decision – administrative or judicial(2) nature of the statute (purpose, context, and terms of the relevant power) –

appeal/reconsideration allowed or final decision(3) significance of the decision to those affected – what kind of status or consequences are

involved?(4) legitimate expectations – can enhance PFOs beyond the normal common law(5) choice of procedures – deference if explicit statutory discretion or relevant expertise

Baker Baker showed that while the Minister had broad discretion, there was reason to defer to the choice of

procedures, and there were no legitimate expectations, the significance of the decision to her and her family could justify more than minimal PFOs.

However, the court still rejected most of the details of Baker’s procedural fairness claims – no oral interview, no notice to her children or the other parent, no right to be assisted by counsel, no right to make submissions. A paper hearing would suffice – an application with supporting documentation.

Nonetheless, she was entitled to reasons for the decision and an absence of bias.

Substantive Fairness Canadian law has steadfastly refused to attribute any substantive content to the coneprts of fairness

and natural justice. This was shown in both (1) the purely procedural nature of the doctrine of legitimate expectations (Old St. Boniface) and (2) repeated rejections of review on the basis of inconsistency of the current decision with previous rulings (Domtar). Proportionality as a ground of review is also not yet accepted.

The same is largely true of s. 7 “fundamental justice”, although a substantive component has been recognized (mostly in the criminal or quasi-criminal contexts). This may be because, unlike s. 2(e) of the Bill of Rights, s. 7 is not expressed in terms of a “right to a fair hearing.”

There is room for substantive “fundamental justice” to impact administrative law, but it is still undeveloped.

BAKER V MINISTER OF CITIZENSHIP & IMMIGRATION (1999) SCC

49


Decision: L’Heureux-Dube JIt is clear that the duty of procedural fairness applies to H & C decisions as they affect “the rights, privileges or interests of an individual.” (Cardinal v. Dir of Kent Institution) “The concept of procedural fairness is eminently variable and its content is to be decided in the specific

context of each case.” (L’H-D in Knight) 5 factors have been recognized as relevant criteria for the determination of the content of procedural

fairness. “Underlying these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made an its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” “I should note that this list of factors is not exhaustive… Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.”

(1) The nature of the decision being made and the process followed in making it. “The closeness of the administrative process to the judicial process should indicate how much of

those governing principles should be imported into the realm of administrative decision making.” (Knight)

(2) The nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’. “Greater procedural protections, for example, will be required when no appeal procedure is provided

within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.”

(3) The importance of the decision to the individual or individuals affected. “The more important the decision is to the lives of those affected and the greater its impact on theat

person or those persons, the more stringent the procedural protections that will be mandated.” This idea comes from Dickson J. in Kane.

(4) The legitimate expectations of the person challenging the decision. This doctrine is part of the doctrine of fairness or natural justice and does not create substantive

rights. (Old St. Boniface) The legitimate expectation can be that a certain procedure that will be followed (Qi and

Bendahmane) or that a certain result will be reached in the particular case (Mullan). (5) The choice of procedures made by the agency itself and its institutional constraints. These choices should be respected, particularly when the statute leaves to the agency the ability to

choose its own procedures or when the agency has an expertise in determining what procedures are appropriate in the circumstances.

Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)

Facts: Under the School Act the school Board can terminate the Director of Education with cause, or can

give 3 months notice to terminate without cause (i.e. “at pleasure”) Board dismissed Director when he refused to accept a renewal of his contract for a shorter term than

the original. Director brought an action against the Board for judicial review arguing he was entitled to procedural fairness before being dismissed.

Issue: Are there PF rights for an office holder at pleasure?Held: Yes. PF rights are owed here, though his “at pleasure” status causes them to be minimal and they were met here. Knight loses.Ratio: L’Heureux-Dube J.:Nature of Procedural Fairness and its Content “Natural justice is but fairness writ large and juridically. It has been described as ‘fair play in

action.’” (Lord Borth-y-Gest in Furnell, PC NZ) “From time to time lawyers and judges have tried to define what constitutes fairness. Like defining

an elephant, it is not an easy thing to do, although fairness in practice has the elephantine quality of

50


being easy to recognize.” (Maxwell, UK CA) “Both the rules of natural justice and the duty of fairness are variable standards. Their content will

depend on the circumstances of the case, the statutory provision and the nature of the matter to be decided.” (Sopinka in Acadie)

“It is necessary to temper assertions that the concept of fairness is a purely subjective one.” Essentially, the content of procedural fairness follows the spectrum between judicial-quasi-judicial-

administrative decisions found by examining the threshold questions.Compliance with the Duty of Fairness Since Knight could be dismissed at pleasure, there were minimal PFOs – only (1) notice of reasons

and (2) opportunity to be heard. Compliance with these requirements need not be excessively formal – i.e. no need for a formal letter

of reasons, nor a formal (oral) hearing. o “It must not be forgotten that every administrative body is the master of its own

procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair… The aim is not to create procedural perfection but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome.”

If Knight had knowledge of the reasons for dismissal and had an opportunity to be “heard” (whether orally or in writing) by the Board, procedural fairness will be satisfied.

Application to the Facts Fairness to Knight was satisfied through the negotiation process with the Board. According to trial judge, “everything that had to be said had been said”, so “the requirement of the

formal giving of reasons and the holding of a hearing would achieve no more… than to impose upon the Board a purely procedural requirement, against the above-stated principles of flexibility of administrative procedure.”

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Facts: Minister had decided to deport Suresh, an alleged member of the Sri Lankan Tamils (a terrorist group),

on grounds that he was a danger to the security of Canada. But Suresh alleged that there was a possibility that he’d be in serious jeopardy of torture if sent home.Decision: To deport a refugee to face a substantial risk of torture would generally violate s.7 of the Charter. The

Minister must exercise her discretion to deport accordingly – which she did. Constitutional Fundamental Justice = CML Duty of Fairness “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.” Thus, “the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.” (Wilson in Singh)

Also, these requirements “should be applied in a manner sensitive to the context of specific factual situations.” (like fairness generally)

The 5 Baker factors (1) Nature of the decision While deportation decisions have some similarity to judicial processes, they are decisions to which

discretion must attach in evaluating not only past actions and present dangers, but also the risks from future behaviour of an individual neutral

(2) Nature of the statutory scheme There is a “disturbing lack of parity” in procedures for similar measures taken under different parts

of the Immigration Act.

51


Here there are no procedures at all. Thus, no right of appeal or further submissions. strong PF(3) Importance of the right affected Suresh’s status as a convention refugee, the risk of torture, and the serious personal, financial and

emotional consequences are all significant effects of this decision. strong PF(4) Legitimate expectations The CAT explicitly prohibits deportation where there are “substantial grounds” to believe in the risk

of torture. This raises an expectation that participation will be allowed in demonstrating and defending those “substantial grounds.” “It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning.” strong PF

(5) Choice of procedures Minister has discretion to choose procedures in terms of statute. This follows from need for

Ministerial discretion in evaluating future risk and security concerns. This signals deference that Parliament has given to Minister’s choice of procedures. weak PF

In this case, PFOs required by s. 7 do not extend to the level of requiring a full oral hearing or a complete judicial process. However, they require more than Suresh received. In particular, they are:

(1) Must be informed of the case to be met – before consideration of opposing argument and after being provided with an opportunity to examine the material being used against (subject to reduced disclosure for privilege or security reasons)

(2) Must be given an opportunity to challenge the information of the Minister where issues as to its validity arise – such as evidence of the risk of torture, association with a terrorist organization, and assurances by a foreign state. Assurances are particularly suspect in torture cases because past practice may indicate an impotence of the state in controlling the behaviour of its officers. Assurances no to apply the death penalty are generally easier to monitor and more reliable.

(3) Must be provided written reasons – that “articulate and rationally sustain the finding”. They must also emanate from the decision-maker (i.e. the Minister) and not just be the advice or suggestion to the decision-maker (i.e. not just the “prosecutorial” brief/memorandum).

“These procedural protections need not be invoked in every case. … The individual must make out a prima facie case that there may be a risk of torture upon deportation,” before these PFOs are engaged.

Quebec Charter of Human Rights and Freedoms RSQ 1977, c. C-12

s. 56 – applies to all tribunals exercising judicial or quasi-judicial functions.

s. 23 – right to a “full and equal, public and fair hearing by an independent and impartial tribunal” whenever “rights and obligations” are being determined.

s. 34 – “right to be represented by an advocate or to be assisted by one before any tribunal.”

was eventually supplemented by the Administrative Justice Act, SQ 1996, c. 54: applies to any organ of the provincial government and to most bodies the members of a majority of

which are appointed by the government and the staff of which are subject to the province’s public service legislation

procedural fairness requirements (stated very generally) apply whenever individual decision affecting citizens are being taken on the basis of norms or standards prescribed by law.

12.2 Oral Hearings An oral hearing – a face to face encounter with the decision maker (or delegate) and the other parties,

if any – assumes the presence of other procedural entitlements (e.g. right to present evidence and right to counsel), but it can be an independent procedural obligation on its own.

52


The right to an oral hearing was usually included as an element of natural justice (from the audi alteram partem rule).

As the duty of fairness emerged, the presumption in favour of an oral hearing (vs. written submissions) disappeared. Deference to procedural choices became the norm (Nicholson, Baker – written hearing). The countervailing tendency is with the Charter and Bill of Rights (Singh, Suresh).

Claims to oral hearings are also ones that are situation sensitive in the sense that their necessity may depend on the matters that are at issue in the particular proceedings as opposed to being a feature of all exercises of the relevant statutory power. The conventional view has been that the claim for an oral hearing is at its highest when credibility is an issue in the proceedings. However, today there are arguments of competing considerations and that certain kinds of cases favour inquisitorial methods where no parties are present and no cross-examination is allowed (e.g. sexual harassment).

Once again, in answering whether or not an oral hearing is warranted, questions of open hearings, cross-examination rights, and access to and the ability to meet adverse evidence.

Khan v. University of Ottawa (1997) (Ont CA)

Facts: Khan wrote an evidence exam. She thought she had 2 hours and filled 3 booklets which she labeled “1

of 3, 2 of 3, 3 of 3”. She realized toward end that she had another half hour and took a 4th booklet which she labeled “insert”. She didn’t make it clear on the first three booklets that there is another booklet. She failed the exam and realized that the last booklet was not read – it had been lost.

She appealed to the Examinations Committee who took her submissions (did not allow an oral hearing) and decided not to let her re-write on basis that (1) no exam had been lost before, (2) invigilators take great care, and (3) very little was written in the third of three marked booklets. They didn’t believe her that there was a 4th booklet. The Chair also admitted that, had they believed Khan that there actually was a 4th booklet and it had gone missing, she would have been entitled to re-write the exam.

She appealed to University Senate and was again not given opportunity to plead her case. They also rejected her appeal.

Because of failing this exam, she failed the year.Decision: Laskin JA Threshold – “The effect of a failed year may be very serious for a university student.” Khan’s credibility was the central issue before the committee: The only direct evidence that she did

write a fourth booklet was her word. If the Committee believed her explanation, she was entitled to relief. If not, her appeal was properly dismissed. The 3 factors on which the Committee relied to justify their rejection were no more than circumstantial evidence that caused the Committee members to disbelieve Khan.

Thus, procedural fairness required (1) an oral hearing, (2) a reasonable inquiry into the exam procedures, their actual operation in this case, and their general propriety, (3) an opportunity to refute the factors the Committee relied on in its decision.

“In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan’s credibility.”

“Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her. (Kane)” The Committee’s denial of an oral hearing “fatally flawed the proceedings.”

Dissent: Finalyson JA The committee was to determine whether there was an “error or injustice”. The existence of the fourth

booklet would not have been conclusive given that the professor said that “more of the same wouldn’t have been beneficial.”

We should not reverse the burden of proof: “ This is an attempt to place the burden on the two

53


Committees to demonstrate affirmatively that a foruth booklet did not exist, and failing that responsibility, accept [Khan’s] bald assertion.”

Khan was given the opportunity to provide a full and detailed written account of why she deserved relief. She never suggested that it was important to appear in person or that the information she submitted was not complete.

The proceedings were not adversarial in nature. The legal rights involved and the consequences to Khan do not merit the standard of procedural

fairness she claims. Singh can therefore be distinguished because it was a s. 7 case. The rights to “life, liberty, and security of the person” were of great enough importance that an oral hearing was warranted.

Courts have traditionally given administrative tribunals the discretion to determine their own procedures, including the means by which submission are entertained. An oral hearing in these circumstances would impose an unreasonable procedural burden on the university.

12.3 Right to Counsel The Ontario SPPA permits representation by counsel or an agent for proceedings under that Act as do

the Quebec Charter and Administrative Justice Act. Alberta’s Administrative Procedures Act provides that representation is not necessary, leaving it to individual statutes and the common law. The SPPA also puts constraints on the extent to which witnesses (as opposed to parties) are entitled to counsel. Representation by counsel is not a universally recognized right.

Qualifications on this right may not be just an outright denial, but also limitation on the role of counsel and of choice of counsel.

There are many countervailing considerations to having counsel: efficiency of process, cost, procedural context (e.g. inquisitorial), lack of necessity,

Re Men’s Clothing Manufacturer’s Association (1979) (Arbitration Ont Div Ct)

Facts: Disputes in the men’s clothing industry in Toronto had been resolved in arbitration without lawyers for

decades. The union asked to have a lawyer present.Decision: (Arbitration) Arthurs A labour arbitrator must accord to the parties before him all procedural rights which they have agreed

and must observe natural justice in the absence of agreement. Although the common law finds legal representation desirable and discretion should favour it, it is not

regarded as indispensable and there may be some circumstances where the participation of counsel is inimical to the functioning of the tribunal. Indeed, the common law did not guarantee representation in arbitrations or proceedings before administrative tribunals.

The SPPA specifically excludes labour arbitrations from the application of the part of the statute dealing with rights to counsel

The special context of labour arbitration and particularly of men’s clothing arbitration militates against a right to counsel:

1) There is an impartial chairman who holds office for the duration of the collective agreement.2) Arbitration arose in this industry arose by agreement of the parties. 3) Cases are presented informally.4) No witnesses are called.5) Agreement on the facts is not uncommon and agreement on the disposition also occurs.

The scope of disputes subject to arbitration and bases for deciding disputes is confined to areas where an informal process can be carried on.

There are also many informal understandings which are not incorporated in collective agreements that

54


are fostered by this system. “It is important to understand, therefore, that what the parties meant to convey by their mutual

commitment to “arbitration” in the collective agreement was their devotion to a process which differed radically not only from that of the Courts but from that of other, less venerable, labour arbitration systems.” default of not permitting counsel

One cannot imagine that the introduction of lawyers could be accomplished without paying a substantial price in terms of efficiency – and industrial relations effectiveness – of arbitration:

1) Hearings will be delayed by availability of counsel.2) Rules of evidence will lengthen hearings.3) Technical contractual claims will divert from the true industrial relations issues at play4) Costs of arbitration will rise enough to deter its use for minor matters

Altering the process so fundamentally should be done openly and deliberately through collective bargaining.

Decision: (Review) Southey J The only way a corporation can be represented is through an agent. By ruling that the parties to

arbitration could not be represented by counsel, they were being restricted in their choice of agents. This violates a common law right without a clear agreement or statutory restriction.

It is common in other industries to be represented by counsel, thus in those circumstances it should be taken as an implied term in the collective agreement, even for natural persons.

However, here there is a practice that would shift the balance against finding such an implied term. Thus, a natural person may not necessarily be entitled to counsel for the reasons given in the arbitration. Nonetheless, they would be entitled to counsel where another was so represented or where natural justice so demanded.

Note: Even in deciding how he did, the arbitrator gave leave for a very limited participation by counsel on a

specific point of law (that challenged his legal authority). Thus, the judge’s ruling really only extended the participation of counsel because he accepted that many issues in the arbitration would be sufficiently complex as to warrant lawyers’ involvement.

Adjudication is backward-looking and correcting a wrong. Administrative perspectives are forward-looking – parties have to agree to terms which they will obey going forward.

NB (Minister of Health and Community Services) v. G. [1999] 3 SCR 46

Facts: A mother was resisting an application by the Child Welfare authorities for renewal of an order placing

her three children in the custody of the state. She requested the aid of counsel and was refused according to a Legal Aid policy excluding custody

proceedings. She invoked s. 7.Decision: Lamer CJThe right to a fair hearing required that G be represented by counsel because of several factors:(1) the seriousness of the interests at stake

“Few state actions can have a more profound effect on the lives of both parent and child [than separation]. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.”

The seriousness varies according to the length of the proposed separation. This is an extension by six-months which is a significant period of time and may make the difference as to whether custody will ever be regained.

(2) the complexity of the proceedings “Although perhaps more administrative in nature than criminal proceedings, child custody

55


proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised. The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.”

Here, all other parties were represented by counsel, the hearing was to last 3 days, and the Minister planned to present 15 affidavits, including two expert reports.

(3) the capacities of the appellant “An unrepresented parent will ordinarily need to possess superior intelligence or education,

communication skills, composure, and familiarity with the legal system in order to effectively present his or her case.”

Concurring: (L’H-D, Gonthier, McLachlin JJ) “Taking into account all these factors, it is likely that the situations in which counsel will be required

will not necessarily be rare. … The determination of this question must take into account the important value of meaningful participation in the hearing, taking into account the rights affected, and the powerlessness that a reasonable person in the position of the claimant may legitimately feel when faced with the formal procedures and practices of the justice system.”

Notes: The characterization of the children’s interests and the parent-child bond raises the question as to

whether Baker could have been decided as a s. 7 case. It also brings in the distinction between an individual vs. government situation or other imbalance of

power is a key determinant of the right. How would you expect someone who might not even have a high school education to adequately defend her complicated legal interests in a trial-like setting?

12.4 Disclosure The general rule is clear: a party is entitled to know what evidence and representations have been

given and is entitled to an adequate opportunity to respond. The broader concept of disclosure (information available to the agency about the decision to be made)

implies the concepts of official notice (the extent and manner in which and agency may use material not introduced as evidence), pre-hearing discovery and privilege.

In response to the balancing between confidentiality and access, both legislative regimes and common law principles come into play.

Access to Information Statutes: These are useful in discovery, but exemption from these regimes does not mean that natural justice will not supplement its disclosure requirements.

Crown or Executive Privilege: Provisions of the Canada Evidence Act allow the government to withhold information from the courts, subject to a court determination of whether the “public interest in disclosure outweighs the specified public interest.” S. 39 thereof allows withholding without a court determination. Attacks on its constitutionality have failed, however.

Other Common Law Evidential Privileges: Solicitor-client privilege and the presumption of deliberative secrecy among other doctrines can also affect disclosure.

The competing interests for disclosure can generally be categorized into four situations: (1) information collected by the agency directly; (2) identities of persons from which an agency has received information; (3) business information collected; (4) material created by the agency itself.

Three major arguments can be made for disclosure: (1) individuals should have the right to know what government knows about them, (2) disclosure would increase the effectiveness of participation of claimants in the decision-making process, (3) disclosure would tend to improve the quality of reports by exposing carelessness and vagueness.

Reasons for refusing disclosure are generally weak, but there are some legitimate concerns: (1) disclosure may cause harm in certain cases; (2) it may raise the prospect of litigation and liability; (3) it would reduce the frankness and detail of the reports.

56


Disclosure as a deterrent to frankness and thoroughness in reporting may be a serious problem when information is needed after a long delay (e.g. looking at a patient report after many years).

Kane v. Board of Governors of UBC [1980] 1 SCR 1105

Facts: Kane, a tenured professor, was suspended by the president and appealed to the Board of Governors, of

which the president was a member. After the Board held a hearing, the board had dinner and met, without Kane, to discuss the case. The

role played by the president at this meeting was not clear but one unchallenged member of the board stated that the president did not participate in the discussion or vote, but gave the board “the necessary facts.”

Decision: Dickson J “The Board was under an obligation to postpone futher consideration of the matter until such time as

Doctor Kane might be present and hear the additional facts adduced; at the very least the Board should have made Doctor Kane aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made.”

Haghighi v. Canada (Minister of Citizenship and Immigration) [2000] FCA

Facts: Haghighi, an Iranian citizen, after rejections of refugee claims, applied for permanent residency under

H& C grounds. He feared persecution if returned to Iran because he had converted to Christianity. He submitted

country condition documents relating to Iran in support. The IO requested a risk assessment from a post-claim determination officer (PCDO). The PCDO's

report, relying heavily on a 1997 U.S. Department of State Report on Human Rights Conditions in Iran, concluded that Haghighi did not face a serious risk of torture or other forms of persecution. The PCDO's report did not refer to a UNHCR background paper on Iran for 1995 which referred to continuing threats and torture of known converts to Christianity. The IO rejected the claim, stating that she concurred with the PCDO's opinion.

The US report was publicly available – H had some access to it but he was not made aware that this report was foundation on which immigration officer rejected his claim.

Decision: Evans JA Contextual consideration relevant to determining whether disclosure of the PCDO report to Haghighi

for comment mandated include,(1) Likelihood that disclosure will avoid risk of error – i.e. allow the claimant to correct the decision-

maker who is relying on these materials(2) Seriousness of the decision with respect to the individual(3) Likelihood of delays and costs from disclosure(4) Characteristics of the decision-maker – adjudicative vs. bureaucratic?(5) Location of this decision-maker within the statutory scheme (preliminary inquiry, final decision-

maker)? (6) Practice of the agency – deference to choice of the admin agency – here, disclosure was sometimes

done Here, there were 2 documents that are from well-recognized sources with conflicting information re

Iran. Haghighi should have had the opportunity to attempt to change the decision-maker’s mind by challenging allegations of fact within the US Country Report to the extent that those allegations bore upon his individual case.

Pritchard v. Ontario (Human Rights Commission) [2004] SCC

Facts:

57


The HRC refused Pritchard’s request to investigate a complaint against her employer, relying on an in-house legal opinion.

The HRC later refused to release the legal opinion.Decision: Evans JA Solicitor-client privilege applies to a broad range of communications between lawyer and client

including in the context of advice given to an administrative board by in-house counsel. If an in-house counsel is conveying advice that would be characterized as privileged, the fact that the

lawyer is “in-house” does not remove the privilege or change its nature. Solicitor-client privilege is absolute, except in extremely rare circumstances. Procedural fairness does not require the disclosure of a privileged legal opinion and does not affect

solicitor-client privilege. An in-house counsel may have legal and non-legal responsibilities, however. So, each situation

should be analyzed to see if privilege attaches. The requirements of privilege are (1) a communication between solicitor and client (2) which entails the seeking or giving of legal advice and (3) which is intended to be confidential by the parties. The scope of privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; (3) that have the purpose of furthering unlawful conduct. There is also a “common interest” exception (when another person has a joint interest in the matter or fiduciary relationship with the client who has privilege), but cannot extend to apply here.

Notes: This decision pits the potential chilling effect from disclosure of privileged communications against

the public interest in disclosure and the potential abuse of such privilege to systematically deny disclosure.

12.4 Duty to Give Reasons Both the SPPA and the Alberta APA require reasons. The Quebec Admin Just Act has similar

provisions. Although reluctantly, the common law has also developed a duty to give reasons as part of fairness. In Baker, it was the importance of the interest at stake that mandated reasons. That begs the question

as to where the threshold of importance lies. Baker also echoes the previous authority that a statutory right of appeal can generate a reasons

requirement. Interestingly, the court does not cite two cases (Ozanam and Future Inns) where reasons were

required as part of constitutionally guaranteed judicial review of jurisdiction. However, CUPE v. Montreal did explicitly refer to the need to ensure that an affected person’s

entitlement to judicial review was not frustrated – the absence of a transcript of a tribunal’s proceedings would be a fatal error if it prevented the ability of making a case for judicial review. (This judgment was also written by L’H-D, so why did she omit it from Baker?).

The tendency after Baker has been to require reasons (as a default).

Content of the Duty to Give Reasons The duty to give reasons implies that the reasons must be adequate. But, what constitutes adequate

reasons? How specific? How detailed? Any attempt to formulate a standard of adequacy must reflect the purposes served by the duty to give

reasons:o In order to assure a meaningful opportunity to influence the decision-maker and to limit

the risk of error, the reasons should address the parties’ arguments.o In order to assure the possibility of review, the reasons should be sufficient to enable a

court to effectively scrutinize the decision.

58


o If the decision involved discretion, the reasons should acknowledge the power to choose between options and the factors considered in making that choice.

o If the decision hinges on facts, the tribunal should include the findings of fact and indicate the evidence on which these were based.

o Contra: In order to prevent undue burdens, extra costs, delays, or waste, reasons should not be required to be formalistic or perfect.

In Hilo, the reasons stated that “the panel was not fully satisfied of [Hilo’s] credibility.” The court allowed an appeal on the basis that his testimony was uncontradicted and the only evaluation of his credibility is in the reasons. The court said that the ambiguity in the reasons (it was not an outright rejection of his testimony, but it did cast doubt) was troublesome and if the panel wished to come to a conclusion based on his lack of credibility, they should provide particulars of lack of detail, inconsistencies, or inability to answer questions.

Sossin writes that the danger in requiring reasons too often is that it will dilute the requirements as to the adequacy of reasons. The “flexibility” that Baker speaks to may be interpreted such that the reasons requirement may be satisfied in an informal and even ad hoc fashion. This might lead to standards such as Liang, where ticking a “denied” box on a form will be considered sufficient reasons. Lower courts, unfortunately, seem to be adopting this approach.

“If the requirement to provide written reasons is to be a meaningful component of the duty of fairness, those reasons must, at a minimum, shed some light on the actual reasoning of the decision-maker. Elevating form letters and tick boxes to the status of reasons, even if appropriate in some specific institutional and factual contexts, may seriously erode the fairness of the administrative process.”

A 2001 survey of lower court decisions has shown that Sossin’s fear may not be wholly justified and that the reasons requirement is being interpreted in a substantive manner. Although context (and its differential application) was hard to sort out from the outcomes, the decisions where no reasons were required seemed to treat Baker inappropriately (e.g. only applies to H & C decision or reasons section was all obiter). On the other hand, situations of an adversarial nature seemed to require more formal reasons (e.g. declaring applicants a “danger to the public” for deportation purposes). However, these cases seemed to blur the line between reasons and disclosure.

Suresh seemed to further clarify this area (see below).

BAKER V MINISTER OF CITIZENSHIP & IMMIGRATION (1999) SCC

Decision: L’Heureux-Dube J The FCA had held that, in H & C decisions, reasons were unnecessary (Shah) and that notes prepared

by a subordinate should not be considered reasons (Tylo). This is in keeping with the traditional common law position that administrative decisions, as a general rule, do not require reasons.

Still, the arguments in favour of reasons are many:(1) Reasons foster better decision making – by requiring issues and reasoning to be well

articulated and therefore, more carefully thought out.(2) Reasons are invaluable if a decision is to be appealed, questioned, or reviewed.(3) Affected parties are more likely to feel fairly and appropriately treated when given

reasons. There are concerns, however, that a requirement of reasons will (1) lead to an inappropriate burden

being imposed on administrative decision-makers, (2) that it may lead to increased cost and delay, and (3) that it ‘might in some cases induce a lack of candour on the part of the administrative officers concerned.’

“These concerns can be accommodated by ensuring that 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.”

Although the attitude of the common law has been mixed, it is now appropriate that the duty of fairness will, in certain circumstances such as where the decision has important significance for the

59


individual or when there is a statutory right of appeal. Here, it would be unfair for a person subject to a decision such as this one which is so critical to their

future not to be told why the result was reached. However, the reasons requirement was fulfilled by providing Baker with Officer Lorenz’s notes. Accepting documents such as these is part of the desired flexibility in the reasons requirement.


Decision:“[The Minister’s] reasons must articulate and sustain a finding that there are no substantial grounds to believe that the individual who is subject to the [ministerial] declaration will be subject to torture, execution, or other cruel and unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining the position of Citizenship and Immigration Canada is more like a prosecutor’s brief than a statement of reasons for a decision.”

VIA Rail Canada Inc. v. National Transportation Agency [2001] 2 FC 25 (FCA)

Facts: Appeal from National Transportation Agency (NTA) decision that held provision of Via’s tariff

system posed undue burden on disabled persons. A wheelchair basketball team had traveled with Via, had trouble and launched complaint.

Via provides that if a person is disabled, they can purchase one ticket but have accompanying attendant ride for free to provide assistance – the attendant must be capable of assisting in boarding and de-boarding the train. The issue was whether the requirement re boarding and de-boarding placed undue obstacle on mobility of disabled people.

NTA considered the matter and said that this requirement in Via’s tariff was undue obstacle and asked Via to show cause as to why this was necessary and why NTA should not require Via to strike this aspect of the tariff and require Via to assist in boarding and de-boarding. Via could provide the assistance with little effort and does provide it to people without attendants – given this and other considerations, people with attendants are put at relative disadvantage. Therefore, this provision of the tariff was undue obstacle on the mobility of disabled persons and it must be stricken from tariff structure.

Note: S. 39 of the NTA General Rules requires reasons. So we are not talking about common law duty.Decision: Sexton JA “The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes

adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed.”

“The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors.”

Here, the adequacy of the NTA’s reasons must be measured in terms of whether they give VIA sufficient guidance to formulate policy without running afoul of the Agency. Thus, the NTA’s reasons would have to set out the basis upon which the existence of the tariff constituted an obstacle, the reasoning that determined that the obstacle was undue, and the main factors relevant to that determination.

60


The NTA’s reasons do not define what constitutes an “obstacle” – why does an obligation of the attendant to the personal needs of the disabled person on board not constitute an obstacle while the obligation to help with boarding does? Why is a requirement of the capability to help in boarding equated with a requirement to help in boarding? The evidence showed that VIA does not regularly ask the attendants to help in boarding, just that they be able to, if necessary.

The NTA’s reasons do not indicate how an obstacle is found to be “undue” – “undue” has been extensively interpreted by the courts. The Act also qualifies the section on undue obstacles with the words “so far as practicable.” This along with the general scheme of the Act suggests a balancing of interests rather than absolute requirements. There are lots of factors at play in this balancing, none of which were treated by more than reciting the submissions of VIA and the previous statements of the NTA.

Notes: To what extent is this assessment of the adequacy of reasons a disguise for substantive appellate

review?

Liang v. Canada (Minister of Citizenship and Immigration) [1999] (FCTD)

Facts: Liang applied to immigrate and was rejected. He reapplied under H & C grounds. In rejecting the second application, the officer simply ticked a box saying “denied”. Decision: Evans J Reasons are only necessary upon request by the person to whom the duty of fairness is owed. This form would have satisfied the duty to give reasons because there was enough context and

background to show reviewers what the rationale for the decision was. Notes: Here, duty of reasons is purely procedural. The fact that the applicant was not already in Canada may have made a difference to what was

considered sufficient.

Gray v. Ontario (Disability Support Program) (2001) (Ont CA)

Facts: G claims to have ongoing claims of pains and ailments that there was limited objective medical

evidence of. Issue before tribunal was whether G counts as “disabled person” under Act in order to get benefits. Tribunal said that without medical evidence and given that it appears that G is not incapacitated on

daily basis but really only one or two days a month and the statute requires substantial restriction on a person’s life for a year or more than a year, she does not qualify.

They said that her testimony as witness was credible, but that there was nothing to support it, and her ailments did not affect her in ongoing and recurring basis which was the test.

Decision: McMurtry CJO The regulations under the Act require that the decision will set out findings of fact and conclusions

based on those findings.[Reviewed the jurisprudence, especially Via] “It is simply unclear what relevant evidence the Tribunal accepted and what it rejected… There is

little or no explanation of the reasoning process.” The Tribunal also appears to have asked itself the wrong question. It is not whether claimant can cope

day-to-day, but whether she can function in the workplace and community. Both she and her doctor said that she could not and they found them credible.

The error is one in law and appeals are explicitly allowed on questions of law.Notes:

61


This is the first case to apply Via. It seems like the court is trying to say the same thing as Hilo – force the tribunal to be honest. If you

don’t believe her and that is the real basis of your determination, you must be forthright about that. If you do believe her, you can’t reasonably reject the claim without citing good evidence or good reasons against her claim.

“It is my view that as social welfare legislation, any ambiguity in the interpretation of the ODSPA should be resolved in the claimant’s favour.” – i.e. you can’t just say the evidence is wishy-washy, so you lose.

Once again, procedure bleeds into substance, but here that the Act provided for substantive review, the judge does quickly look at the standard of substantive review, and the judge finds that the tribunal asked itself the wrong question. So there are reasons why substantive content could be given to the duty to give reasons without violating the procedure/substance boundary.

12.5 Bias and Lack of Independence Everyone has some biases, so this principle cannot be absolute. Indeed, certain decision-makers are

chosen based on biases – e.g. SCC judges chosen for their “commitment to Charter values.” The principle comes from the latin nemo judex in causa propria sua debet esse – “no one ought to be a

judge in his or her own cause.” The inquiry then becomes what levels of advocacy or adherence to particular causes or points of view

should be seen as disqualifying. But, it is also concerned with associations that are likely to produce predispositions – professional, familial, or other personal links with the persons/groups (and their advocates) who are parties to the proceedings or who stand to benefit or suffer from the result. There is also the possibility that the biased, but altruistic, decision-maker will err against the predisposition in an attempt to be impartial.

How does one know that actual bias exists? This would be an inquiry into the “state of mind” of the decision-maker. This is not only next to impossible, but to evaluate it (by testimony and cross-examination of the adjudicator) would violate many principles of decision-making.

As a result, the court tries to objectively assess whether the particular situation is such as to give rise to a sufficient risk that an impermissible degree of bias will in fact exist. In fact, in the case of a direct stake in the outcome, that has always been enough to disqualify a decision-maker regardless of mitigating circumstances.

The objective approach also reflects the policy that the public should have confidence in the process: “It is of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done.” (Lord Hewart CJ in R v. Sussex Justices, ex parte McCarthy, [1924])

Sliding scale – The courts tolerance will also vary with the statutory context. What may seem dictated in the case of a generalist superior court operating within a system of a strict separation of functions and presiding over and deciding cases in solitary splendour in the context of the adversary system may not be appropriate for all the great variety of administrative agencies that are subject to the dictates of procedural fairness. Adjudication may only be a small part of the range of functions performed. The members may be appointed from and continues to operate in a small community of experts or peers and may be expected to engage in collegial or collective decision making. Their processes may be far less adversarial and more inquisitorial and activist. Their decision making may have an explicit and high policy content. For example, municipal politicians may deserve more latitude than human rights adjudicators. On the other hand, previous involvement may not disqualify someone from sitting on a disciplinary board of a profession or on a peer tenure committee.

The issue of bias has been largely left to the common law, except in cases where the statute specifically mentions qualifications or disqualifications. However, constitutional norms have arisen that may supersede the common law or statute in either direction.

Pecuniary and Other Material Interests

62


Dimes (1852) – the party against whom orders were given discovered that the Lord Chancellor owned shares in the opposing company.

Convent of the Sacred Heart (1961) – zoning was quashed because a member of the board owned property that was, arguably, enhanced by the decision.

Locabail [2000] recognized a de minimis exception that would presumably protect situations of holding a mutual fund or being a member of a pension fund with diverse holdings.

Energy Probe v. Canada (Atomic Energy Control Board) (1984) (FCTD FCA)

Facts: One board member, Olsen, was president of a company that supplied cables to nuclear power plants

and was an official or member of several organizations that supported the use of nuclear power. The Board renewed a license for a nuclear generating station of Ontario Hydro. Trial Decision: Reed J “I have no doubt that the duty to act fairly… must include a requirement for an unbiased decision

maker. Any other conclusion would undercut the whole concept of the requirement of a duty of fairness.”

“A direct pecuniary interest, no matter how trivial, will constitute bias.” Yet, there was no direct pecuniary interest at the date of the hearings in question:

o There was no contract conditional on the renewal.o There was no certainty that more cables would be sold as a result.o The purchase of cables by the nuclear station was by a tendering process.

“The most that could be said of Mr. Olsen as of the date of the hearing was that he could entertain a reasonable expectation of pecuniary gain as a result of approval of the licenses.” There was no authority, “which has held that this kind of contingent expectation constitutes direct pecuniary bias.”

Appeal: [The majority (Heald and Stone JJ) essentially agreed with Reed J: “Olsen’s interest was indirect and uncertain and too remort to constitute either direct pecuniary interest, or bias.” Marceau J concurred for different reasons below.] The trial judge seems to rely on drawing a straight opposition between “pecuniary bias” and

“reasonable apprehension of bias” and on the idea that only a “direct” or “certain” interest will constitute “pecuniary bias”.

On this basis she technically ruled against the claimant that (1) the pecuniary interest was too remote and (2) she could not consider “reasonable apprehension of bias” because it had not been pleaded.

The principle of natural justice that a tribunal should be independent, disinterested, and impartial has evolved to include many interests other than pecuniary which may affect the impartiality of a decision maker, “emotional type interests one might say such as kinship, friendship, partisanship, particular professional or business relationship with one of the parties, animosity towards someone interested, predetermined mind as to the issue involved, etc.” Furthermore, ‘it is of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done.’

The idea of “directness” should not be given such a strict and narrow interpretation that any indirect or uncertain advantage can be ignored. It is more like remoteness.

Instead, “the only rational requirements are that the benefit come from the decision itself and that it be a likely enough effect to “colour” the case in his eyes.”

If one believed the statement that Olsen had a “reasonable expectation of pecuniary gain” as the trial judge said, then there would be pecuniary bias. However, the evidence does not support that finding.

Pecuniary bias and reasonable apprehension of bias are not separate categories, “apprehension” is simply the language used with regards to non-pecuniary interests. However, no other interest than a pecuniary one was alleged here.

Notes: Reed J: “A biased tribunal would be a much more serious lack of fairness than non-compliance with

the procedural requirements.”

63


Burnbrae Farms v. Canadian Egg Marketing Agency [1976] (FCA) – The CEMA withdrew Burnbrae’s license, but some of the members of the board were egg producers from other provinces and their interests conflicted under the marketing scheme with Burnbrae’s. However, the legislation required at least 7 out of 12 members to be producers in other provinces. Jackett CJ: “In such a statutory scheme, it does not appear to me that an apprehension of bias that is based only on the fact that some of the members have, by virtue of the part of the country from which they come, a business background with economic interests that conflict with those of a particular licensee whose licence is in jeopardy can be regarded as a disqualification.”

Moskalyk-Walter v. Ontario (College of Pharmacy) (1975) (Ont Div Ct) – The College imposed a suspension on MW in Fort Erie, a town of about 7,500. One of the members who participated in the hearing owned one store in Fort Erie and operated another. MW successfully appealed on bias.

Pearlman v. Manitoba Law Society [1991] 2 SCR 869 - The SCC summarily rejected that a professional discipline committee composed of fellow members was structurally biased because of self-interest of the members in reducing competition by way of suspending or expelling others.

The General Test: Reasonable Apprehension of Bias The standard of “reasonable apprehension of bias” was elaborated on by de Grandpre J in Committee

for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369: “The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.’”

Lord Denning also captured the essence of the inquiry in Metropolitan Properties v. Lannon, [1969] (UK CA): “The court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if a right-minded person would think that, in the circumstances, there was a real likelihood of bias on his part, the he should not sit. And if he does sit, his decision cannot stand.”

Subsequent House of Lords judgments have characterized the standard as a “real danger rather than a real likelihood” which means “more than a minimal risk, less than a probability.”

There is a balance to be struck between maintaining public confidence and ensuring that adjudicators can get on with their work and not be disqualified because of the fears of the oversensitive or unduly suspicious.

Another question is, what knowledge is to be attributed to the reasonable observer? For example, should an adjudicator be disqualified when newspapers have led the public to believe that an inappropriate link exists, even if that link can be disproven? Does it matter that the evidence available to answer this question is not available to the public? To the challenger? Should someone be able to have someone disqualified based on public impressions, even if they know better? Canadian courts have been inconsistent on this matter because of the vague “informed” qualification. In the UK, however, Lord Goff in R v. Gough [1993] said that the court should “look at the matter through the eyes of the reasonable man” after having “ascertained the relevant evidence, knowledge of which would not necessarily be available to an observer at the relevant time.” Essentially, the HoL said that, even though the public impression at the time is relevant, the court can clarify and satisfy the fictional observer after the fact through judicial review proceedings.

There are four general categories of disqualifying biases: (1) antagonism towards a party, counsel, or witnesses, (2) association between a party and the decision-maker, (3) involvement in prior stages of the process, and (4) attitude towards the outcome.

64


Involvement in an Earlier Stage of ProcessCommittee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369 – An application was made for construction of a natural gas pipeline. The chairman of the Board at the time of the application, Crowe, had previously been the president of the Canada Development Corporation (CDC) and had been involved in discussions and planning of the pipeline until he left to join the Energy Board. It was not clear whether the decision to go ahead with the pipeline or the application to the Board was taken before the CDC joined the pipeline project. Laskin CJ agreed that Crowe’s commitment to building a pipeline gave rise to reasonable apprehension of bias regardless of whether these decisions were taken before his involvement: “The vice of reasonable apprehension of bias lies not in finding correspondence between the decisions in which Mr. Crowe participated and all the statutory prescriptions under [the Act]… but rather in the fact that he participated in working out some at least of the terms on which the application was later made and supported the decision to make it.”

More common cases in this regard involve members sitting on appeal of a decision in first instance (e.g. Vespra and French below).

Law Society of Upper Canada v. French, [1975] 2 SCR 767 – The LSUC discipline committee found French guilty of professional misconduct and recommended suspension. Convocation met to consider the recommendation and two members of the committee were present. French claimed that Convocation was essentially an appeal from the committee, so the committee members participation created bias. However, the majority of the SCC (Spence J) considered it instead to be the continuation of single proceeding in which there are two stages. In dissent, Laskin said that it should not matter whether it was technically an appeal or not given that it was a separate proceeding to consider and allow French to challenge the previous findings of guilt. Later, in Emerson, the finding that it was one single proceeding meant that the rules of natural justice must be followed to a judicial extent even at the committee level.

The principle of no prior involvement is often enshrined in legislation. It can also cause problems in inquisitorial or even supportive proceedings (i.e. “if you want this, just give us X, Y, and Z documentation; call our claims advisor for help”).

Institutional Bias As is the case with bias or impartiality, if the relevant statute clearly authorizes the existence of a

statutory scheme that does not meet appropriate standards of independence for the tribunal in question, there will be no remedy available unless those affected can rely on a constitutional or quasi-constitutional argument. (Ocean Port Hotel)

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – IMPARTIALITY

Facts: After the regie revoked its permit, the company sought a declaration that various provisions of the

liquor licensing statute were contrary to the Quebec Charter which provides for an “independent and impartial” tribunal when it acts in a judicial or quasi-judicial function.

Decision: Gonthier J “Impartiality, like independence, has an institutional aspect… ‘therefore, whether or not any

particular judge harboured pre-conceived ideas or biases, if the system is tructured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.’”

The test for institutional bias is, “that a well-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.” This will necessarily be a contextual process having regard for “the nature of the dispute to be decided, the other duties of the administrative agency and the operational

65


context as a whole.” “A plurality of functions in a single administrative agency is not necessarily problematic…[but] it

must not result in excessively close relations among employees involved in different stages of the process.”

Role of the Regie lawyers – The Act and regulations do not define their functions, but annual reports and job descriptions show that they review files in order to advise on the action to be taken, prepare files, draft summons, present arguments to the directors and draft opinions. These documents leave open the possibility that the same lawyer could be involved in performing various functions in the same matter. There are no measures to separate the lawyers involved at different stages of the process. The prospect that the same lawyer could make submissions to the directors and then advise them on the same matter is “disturbing, especially since some of the directors have no legal training.” Without a clear separation of the lawyers’ functions, there would be a reasonable apprehension of bias in a substantial number of cases.

Role of the Regie directors – Similarly, the Act and regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so desires. The annual report also indicates that the involvement of a director in the decision to hold a hearing does not disqualify them from forming part of the subsequent panel. Without a clear separation of the directors’ functions, there would be a reasonable apprehension of bias in a substantial number of cases.

The problem is not that the Regie, as an institution, is involved in various stages of the proceedings, but that the same persons within it could be.

This problem of institutional bias did not require amending the statute. It could be dealt with by changing internal rules of the agency.

Notes: Note that the relevant act could leave open possibility of operating in an institutionally biased fashion

as long as the actual practice can be shown not to be flawed.

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – INDEPENDENCE

Facts: After the regie revoked its permit, the company sought a declaration that various provisions of the

liquor licensing statute were contrary to the Quebec Charter which provides for an “independent and impartial” tribunal when it acts in a judicial or quasi-judicial function.

The directors have only renewable, fixed-term appointments.Decision: Gonthier J Security of Tenure - Once appointed the directors can only be removed for specific reasons during

the term of their appointment. Their appointments need not be for life (like a court of law). satisfies the minimum conditions of independence.

Contact with the Minister – There are numerous contact points with the Minister, but it is not unusual for an agency to be subject to supervision by a member of the executive. satisfies the minimum conditions of independence.

The essential elements of institutional independence are summed up as “judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.”

Notes: The court seemed to be satisfied that as long as the directors did not serve merely at pleasure, they

had enough independence. Compare this to Katz where the fact that members of the board did not depend on that work for their livelihood contributed to their independence. The practice was also to serve until voluntary resignation or death.

Newfoundland Telephone Co. v. Newfoundland (Bd of Comm of Pub Util) [1992] 1 SCR 623

Facts:

66


Wells had acted as a consumer advocate prior to being appointed to the board. When appointed, he stated that he intended to play an adversarial role on the Board as a champion of consumers’ rights.

The statute said only that commissioners cannot be employed by or have any interest in a public utility. It did not provide for appointment of commissioners as representatives of any specific group nor prohibited such appointments.

The Board started an investigation into the accounts of Nfld Telephone. On the basis of an accounting report, the board decided to hold a public hearing.

After the decision to hold a hearing and before the hearing took place, Wells made a series of public statements, objecting to the “fat cat” executives’ pensions and saying that these costs should come from shareholders’ profits, not rate payers.

The Telephone company objected to his participation in the hearing on bias. The Board rejected the request and continued.

Wells continued to make statements that implied that there was no way he could change his mind as to the justifiability of these expenses.

The eventual decision by a majority that Wells was a part of disallowed these expenses. Decision: Cory J “There is no reason why advocates for the consumer or ultimate user of the regulated product should

not, in appropriate circumstances, be members of boards… Boards need not be limited solely to experts or bureaucrats.”

“There is a greate diversity of administrative boards. Thos ehat are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. … At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councilors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.”

“Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not mean that there no limits to the conduct of board members. … In the end, however, commissioners must base their decision on the evidence which is before them. Although they may draw upon their relevant expertise and their background of knowledge and understanding, this must be applied ot the evidence which has been adduced before the board.”

Here, the board is closer to the legislative end of the spectrum and wide licence must be given to public comment. However, where those statements indicate a mind so closed that any submissions would be futile, they are subject to attack on the basis of bias.

Wells’ comments before the hearing did not indicate a closed mind. However, once the matter reaches a hearing a greater degree of discretion is required. Wells’ comments at this point would be interpreted to the reasonable observer (as they were by the TV reporter) that Wells had made up his mind before hearing all the evidence. Thus, the hearing and decision are invalid as violating procedural fairness.

Notes: Would a reasonable bystander have any reason to believe that Wells would be less closed-minded if

he just went silent after a hearing was ordered? Probably not. In fact, his silence would be very suspicious. Dyzenhaus criticizes this decision on this point and suggests that transparency by board members with strong views is preferable to the silence dictated by the SCC.

Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3

Facts: Indian bands established regimes for taxing real property on reserve land. Each regime included a

67


means of challenging an initial assessment. The Matsqui band had an internal, two-tier appeal structure and then a further appeal on questions of law to the Federal Court.

Members of the appeal tribunals could but need not be paid and had no tenure. Band members were eligible appointees.Dissent: (on independence) Lamer CJC (2)[Bias in a structural sense because band members had a financial stake in the outcome was dismissed as “too speculative”.] While the context of aboriginal self-government informs other factors, it is not relevant to the

question of institutional independence. “Principles of natural justice apply to the bands’ tribunals as they would to any tribunal performing similar functions.”

“The requisite level of institutional independence (i.e. security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.”

o Interest at stake – assessment of property taxes flexible approacho Financial security – No guarantee of salaryo Security of Tenure – No fixed term, no protection against arbitrary dismissalo Administrative Control – The Chiefs and Band Councils make the appointments and

control remuneration and tenure. “A party should not be required to present its case before a tribunal whose members have been appointed by an opposing party.” Here the Chiefs and Band Councils are the ones opposing CP’s claim.

o Indices of Independence – There is an oath of office, but it cannot replace financial security or security of tenure.

The combination of these factors outweighs the grant of flexibility. Provincial regimes address this common problem by having a different level of government make the

tribunal appointments. Although any allegations are yet speculative, the inquiry is an objective assessment of the structure of

the tribunals, the perception that is created, and the potential for abuse of discretion.Decision: (on independence) Sopinka J (4) The aboriginal self-government policy context is relevant to the entire exercise of judicial discretion.

The federal and provincial governments have relinquished authority over the field of taxation on reserve lands. Statutes and treaties relating to Indians should be liberally construed and resolved in favour of Indians.

Independence should also not be ruled on before the taxation by-laws are examined in the knowledge of how they are applied in practice. “Otherwise, the administrative law hypothetical ‘right minded person’ is right-minded, but uninformed.”

Thus, a judgment on independence is premature. It should wait until the members have been appointed and/or the tribunal has rendered a decision.

Notes: The court splits on the timeliness of judicial review. Lamer CJC seems to believe that they could not

possibly operate “independently” under the current structure. The SCC has accepted that, where it is possible to exercise discretion in an institutionally independent

manner, it is relevant to look at actual practice. (2747-3174 Quebec v. Regie des permis d’alcools)

Bell v. Canadian Telephone Employees Association [2003] 1 SCR 884

Facts: Bell challenged the independence and impartiality of a Human Rights Tribunal convened to hear

complaints by female employees on two grounds: (1) the power of the Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases” and (2) the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.

Decision: McLachlin CJ and Bastarache J

68


Neither power compromises the procedural fairness of the Tribunal or violates any applicable constitutional or quasi-constitutional principle:o The Tribunal is subject to a very strict standard given its adjudicative, non-policy

function. However, it must be kept in mind that it serves the purpose of implementing government policy. the standard is somewhat lower than that of a court.

(1) Guideline power – Independence pertains to the structure of tribunals, not with independence of thought. Guidelines are a form of law and being fettered by law does not render a tribunal partial. Impartiality does not consist in the absence of all constraints.

The fear that the guideline power could be used by Commission to manipulate the outcome of cases would be significant if there were any evidence that the Commission had in practice used the power in this way. The guidelines are also subject to strict judicial review. The Tribunal is bound not to apply guidelines that it finds to be ultra vires. Finally, the guidelines are also subject to the presumption against retroactivity.

(2) Extension power – Extension of appointments does not violate independence according to Valente, which does not even apply such a strict standard for provincial court judges. Nor does it create partiality. A reasonable person informed of the facts would not conclude that members whose appointments were extended were likely to be pressured to adopt the Chairperson’s views. Nor would the reasonable person regard the Chairperson granting the extension as partial.

12.6 Unreasonable Delay (not covered this year)

Blencoe v. BC (HR Commission), 2000, SCC from BCCA

Facts: B minister in BC government accused of sexual harassment. Accusation made publicly. Ended up before BC HR Commission. Government dismissed him from cabinet. Lots of media coverage. He resigned from his seat. From the time the complainants filed complaint until HR Commission scheduled a hearing, 30 months had passed. B’s reputation was destroyed by this time. There was no reason given for the delay. B applied for stay of proceedings until challenge to the proceedings could be heard. Issue: 1) Does the Charter apply to the Commission?2) S. 7 interest (liberty and security of the person) infringed by the delay caused by the Commission?

Pointed to the psych harm caused to him from media coverage, nature of accusations and stigmaReasoning: Charter Scrutiny: Counsel for the Commission said the Commission is not a “government organization” and does not exercise a governmental function as required by s. 32 of the Charter for it to apply. SCC lays out test for whether particular agency falls under Charter scrutiny:

1) Whether the agency exercises mandate independently of government – this agency is independent of government but that is required for the nature of human rights regulation.

2) Whether the challenge is to a statutory provision or some action by the agency – here, the challenge is to an administrative action.

3) Whether the agency is acting judicially – is what it is doing closer to adjudication than administration of policy program? Here, the Commission is acting judicially.

To escape Charter scrutiny, must satisfy all three of these. But here, the court says the Commission is subject to Charter scrutiny even though it seems to pass these indicia. The basis of the Commission’s authority is statute. Its is inconsistent to think that a legislature which is bound to enact statutes consistent with the Charter, can delegate a power to an institution created by statute that could exercise powers that would not be subject to Charter scrutiny. Parliament cannot delegate more powers than it has. Since it must exercise its legislative making authority pursuant to Charter, anything born of this power must also be subject to public scrutiny. Also, this is a public program concerned with supporting human rights.

Ratio (Charter scrutiny): Any admin agency with constitutive statute will be subject to Charter review.

69


S. 7 Liberty Interest: This interest responds to fundamental personal choices that people can make with which we are very reluctant to see the state interfere (abortion, right to end your life) – control over one’s person – autonomy. This is an expansion of s. 7 application only to freedom from detention (criminal context). This issue does not fall under liberty.

S. 7 Security of the Person Interest: 1) Harm must be state-imposed2) Harm must be serious

B has suffered great harm but the principle cause has not been the delay (even with the 5 month unexplainable lapse), it is the publicity associated with the claims. The harm was not serious because it is not interference with fundamental personal choices.Dignity: There is no autonomous, free-standing right to dignity and reputation.

Note: Bastarache analyzes liberty and security of the person separately. But, what he looks at in security of the person is the same as what he looks at for liberty. In this kind of case, what’s the difference between security of the person and the interest protected by liberty?Note: Courts will be reluctant to scrutinize under the Charter where the courts feel there are adequate admin law principles.

Delay: Common law tradition that unreasonable delay can lead to stay of proceedings if it has prejudicial results on the proceedings (e.g. witnesses die, etc.). Unreasonable delay is part of the content of duty of fairness that can act as a trump card—whatever the merits of the case to which one is subject, if a court determines that there has been a delay caused by the admin agency that is unreasonable and that prejudices the person subject to those proceedings, the proceedings can be stayed.

Here, the court says that there is no prejudice caused by the delay (this is delay going to evidentiary factors – hearing fairness). But, the court was asked to consider whether unreasonable delay in and of itself is sufficient ground to stay the proceeding. Could a delay itself constitute an abuse of process (this is about the delay itself)? In principle, delay by itself, if sufficient, could constitute an abuse of process (bring the human rights process into disrepute). There was a 5-month unreasonable period during which there was no communication. Court has to answer whether the public’s interest in avoiding the abuse of process would exceed the harm to the public’s interest if proceedings are stayed. On the basis of this balancing act, the court found that the delay was not so unreasonable as to merit a stay of proceedings.

“The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the case and its complexity, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay. Here, although the Commission took longer than is desirable to process the complaints, the delay was not so inordinate as to amount to an abuse of process.”

Balancing Test: Abuse of process from delay versus damage to the public’s interest in seeing the proceedings continue. I.e. the government had acted wrongly but not wrongly enough when balanced with the other public interest. Held: No stay but gives some relief – he gets costs for being dragged through this lengthy process. Ratio: In principle, delay by itself, if sufficient, could constitute an abuse of process (bring the human rights process into disrepute).Minority: Bastarache casts this as a dispute between the state and B. But, there are also the people who allege harassment. Also set out test for unreasonable delay:

1) Time taken compared to the inherent time required to prosecute the matter2) Causes of the delay – e.g. B challenged many of the motions for disclosure another procedural

70


matters. B was free to do so, he could not blame the commission for delay caused by him exercising his procedural rights.

3) Impact of the delayAbusive delay is wrong. The board was inept and incompetent.

Note: Although the court recognizes that there is public interest in seeing the proceedings continue given the gravity of the charges, it awards costs as a message to the Commission. The decision seems strange because we le serious alleged criminals out of jail because of an illegal search by cops but here the court is letting the HR Commission proceedings continue even after wrongful government action.

Maybe the Charter analysis focuses more on the individual and the judicial review stuff focuses more on the institutional side. Also, the victims of the alleged wrongdoing have to have their interests considered – this doesn’t happen under the Charter. Here, the victims’ interests are considered because not represented by the Crown.

13. Reflection on Procedural Fairness

71


Part III: Substantive Review and Jurisdiction

14. IntroductionFor the longest time, the theory and practice of JR were dominated by the concept of jurisdiction. So the questions were constrained to Privative or Preclusive clauses. These clauses are the source of much debate. On the one hand, a statutory direction that the decisions of a particular tribunal are not subject to review challenges the pervasive assumption that it is the constitutional function of an independent judiciary to determine the rights of individuals according to the law. On the other, it should be up to the court to interpret statutes and apply them to facts and to ensure that administrative decisions are made on the basis of procedures that meet the minimum standards of fairness.

The Meaning of Jurisdiction (Mullan)Jurisdiction mainly concerns the limit of statutory power or authority. But this is highly qualified since statutory interpretation is itself a murky affair.

While it’s ok for a statutory authority to be given the power to hear and decide challenges to it’s jurisdiction, it’s not ok for this power to be given and not be subject to review. This creates three categories of questions :

a. Challenges to a statutory authority’s jur’n that that authority doesnt have the power to entertainb. Challenges that it is empowered to entertain and determine, and subject to court review.c. Issues that the authoriy has power to entertain to the exclusion of the courts.

The jurisdiction limits extend to the way matters are resolved both substantively and procedurally.

Question remains: how are we to determine which matter are for the determination of the statutory authority and which are ultimately the province of the courts?

Note that constitutional matters will be treated as jurisdictional and always subject to scrutiny for correctness on judicial review.

Why Privative Clauses ? (mainly in context of labour disputes)1. Time efficiency : Protracted delays would inevitably accompany applications for judicial review.

This would be detrimental to the parties’ labour relations.2. Cost efficiency : the conduct of litigation through the courts is expensive. To allow restrictive

access to the courts would confer an advantage on the employer.3. Litigation efficiency : admin tribunals created precisely to reduce workload of the courts. To allow

the courts to scrutinize decisions made by tribunals for error of law would frustrate this purpose.

Approaches to the Definition of JRHow to know if an agency has exceeded its jurisdiction or merely made a mistake in the way it exercised its decision making powers :

1.The “Preliminary question” doctrine Distinguishes between questions of law that were within the area of decision-making authority (jurisdiction), and those that were either preliminary to the exercise of the agency’s jurisdiction, or collateral to the merits of the decision. This is no longer used (deemed unsatisfactory in both theory and practice)

72


The theoretical idea at the core of the doctrine has not been abandoned – ie. that jur’n, or decision-making power, of administrative agencies do not exceed the limits imposed by the legislature on their authority to decide.

2. Wrong Questions and Irrelevant considerations Decision of an admin tribunal can be set aside as being outside its jur’n if, in the course of making the decision, the tribunal had asked itself the ‘wrong question,’ taken into consideration legally irrelevant factors or ignored factors that it was legally required to consider.This has never been fully embraced in Canada and this approach now only of historical interest

3.CUPE v New Brunswick Licquor, the start of the Pragmatic and functional approach This is the starting point on the standard of review of administrative agencies’ interpretation of their legislation, when the legislature has expressly precluded the courts from reviewing their proceedings or decisions.The courts began to pay much more attention to statutory purposes and structures and the sense they conveyed of the relevan tribunal’s expected areas of competence or expertise.

Quotable: The question of what is or is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. (Dickson J. in CUPE v NB Liquor at 233.)

In the adoption of the pragmatic and functional approach, these are the leading cases : CUPE v. New Brunswick (1979) largely responsible for subsequent devt of pragmatic and

functional approach Bibeault (1988) goes over 2 standards of review: patent unreasonableness and correctness Southam (1997) To the 2 standards, the third one (reasonableness simpliciter) is introduced. Pushpanathan (1998) fullest explanation of history of Pragmatic approach as well as of the

standards of review.

[Note : In between 1988 and 1997 the courts only use the other 2 standards of review. So be senstive to timelines so you know why RS is not used.]

Before this, there was review of administrative action on basis of jurisdiction (taken from UK case law). Courts would typically say that they didn’t want to interfere with administrative state, but articulating that it is inconceviable that legislature would grant a body a limited power with limited purpose, but let that body to be the police of the scope of those limits.

When an administrative body made a decision within the jurisdiction and scope of powers conferred to it by legislature, the courts would defer and have no business supervising. But courts said they do have business supervising issues of jurisdiction: when body was exercising powers beyond those confered to it by the legislature. This, in turns, means that if body has to answer constitutional questions of correctness then it is exercising powers lacking jurisdiction and its decisions would be quashed. Presumption: in the absence of stautory words to the contrary then tribunal’s powers are limited.

The Pragmatic and functional approach seeks to reconcile two approaches:

(1) Legislative intent and deference –administrative tribunals have technical expertise – (Distinguish from a legal approach to deference –involves privative clauses that say that clauses cannot be reviewed).

73


(2) The rule of law requires courts of inherent jurisdiction to play a supervisory role as administrative states operates. So courts have a constitutional right to set aside administrative decisions that lack of rational basis or lack of procedural fairness.

Law Society of New Brunswick v. Ryan [2003] SCC

Facts: Lawyer is disbarred for professional misconduct. He sought review of law society’s disciplinary board,

claiming that they didn’t take account of medical condition. The Court asked the committee to consider this new evidence. The board did & reaffirmed its decision to disbar him. He appealed again.

Court of Appeal admitted his appeal and substituted a penalty of ‘indefinite suspension’.

Issues1) Are there more than 3 standards of review? NO2) What is the appropriate standard in this case? Reasonableness.

Holding (Iacobucci J)

The Pragmatic and Functional Approach The pragmatic and functional approach applies to judicial review, whether that review is by application

to the court or statutory right of appeal. This means court must always select and employ the proper level of deference.

There are only three standards of review. The P&F approach determines, in each case, which of the three standards is appropriate. Additional standards should not be developed unless there are questions of judicial review to which the 3 existing standards are obviously unsuited.

The Application of the P&F Approach to the Disputed Decision Goes through the 4 contectual factors:

1) Presence or absence of a privative clause or Statutory right of appeal : there is no privative clause in the Act. Existence of broad statutory right of Appeal indicates less deference. However, as per Pushpanathon, the absence of a privative clause does not imply a high standard of scrutiny where other factors bespeak a low standard (p.782).

2) Expertise of the Commission : asks whether the decision making body has greater expertise than the reviewing court with respect to the question under review. On the sanction to apply to the misconduct, it does. So more deference.

3) Purpose of the Act : purpose of statute is to regulate their profession but with the need to keep lawyers competent –cuts in favour of greater deference.

4) Nature of the Question : here they are mixed law and fact, with fact-intensive elements within the question. This suggests a higher degree of deference.

A more deferential standard of review than correctness is owed – so reasonableness simpliciter.

The Standard of Reasonable simpliciter While it is conceptualized as a spectrum, the standards are the only 3 “points” on the spectrum.

Reasonableness simpliciter does not float along the spectrum. Judicial review on a standard of reasonableness involves deferential self-discipline. It will always answer the question: “after a somewhat probing examination, can the reasons given,

when taken as a whole, support the decision?” When deciding on unreasonableness, a court should not at any point ask itself what the correct

decision would have been. Court is to look at the reasons given by the Tribunal. If any one of the reasons that are sufficient to

support the conclusion are tenable, then the decision will not be unreasonable and a reviewing court

74


must not interfere. This does not mean that every element must be reasonable. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision.

Here, the Discipline Committee’s decision on sanction was not reviewable (Ryan loses)

Dr. Q v College of Physicians and Surgeons of British Columbia [2003] SCC

Facts: College’s Inquiry Committee found that Dr. Q had taken physical and emotional advantage of a patient

and was guilty of infamous conduct. There were no direct witnesses that could verify the story. The inquiry had to assess the credibility of

the testimony and found Dr. Q not credible. It gave its reasons. Q suspended for 18 months with possibility of return under strict conditions. Q filed for judicial review. Court Decisions Reviewing judge set aside the Committee’s decision, disagreeing with its findings as to credibility. CA dismissed the College’s appeal bc it could not conclude reviewing judge was “clearly wrong” SCC allows the appeal and the order of the College Inquiry Committee is restored. Issue What was the correct standard of review to apply? Reasonableness simpliciter (College wins)Holding Reviewing judge erred by applying too exacting a standard of review. She skipped the pragmatic and

functional approach part. This approach calls upon a reviewing court to weigh a series of factors and determine the appropriate standard of review.

The effect of this failure to conduct the usual administrative law analysis was to review the Committee’s findings of fact on what amounted to a correctness standard.

Role of the CA was to determine whether the reviewing judge had chosen and applied the correct standard of review, and if she had not, to assess the administrative body’s decision in light of he correct standard, reasonableness. The CA is dealing with appellate review of a subordinate court not judicial review of an administrative decision.

Judged on proper standard of reasonableness, there was ample evidence to support the Committee’s conclusion.

Toronto (City) v C.U.P.E., Local 79, [2003] SCC

Facts: O was convicted of sexual assault. The City then fired him. O grieved his dismissal. Arbitrator rule that the criminal conviction was admissible evidence, but that it was not conclusive as to

whether O had sexually assaulted the boy. The Divisional Court quashed this decision. CA upheld that decision. SCC dismisses this appealIssue What is the appropriate basis on which to decide this case? Doctrine of abuse of process What standard of review is applicable to the arbitrator’s review of evidence? Patent unreasonablenessHolding Arbour J (+6) It is improper to attempt to impeach a judicial finding by the impermissible route of relitigation in a

different forum. This amounts to an abuse of process. Casting doubt over the validity of a criminal conviction is very serious. The arbitrator was required as a

matter of law to give full effect to the conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion.

Lebel J (with Deschamps, concurring) The arbitrator’s determination in this case that O’s criminal conviction could be relitigated during the

grievance proceeding was incorrect. His failure to give full effect to O’s conviction was sufficient to render his ultimate decision patently unreasonable.

75


Lebel warns of the drawbacks of the current framework, where there are conceptual and practical difficulties bc of the overlap btwn patent unreasonableness and reasonabless simpliciter, and the difficulty caused bc of the interplay btwn patent unreasonableness and correctness.

Notes that JR on substantive grounds enures rational justification of decisions; review on procedural grounds ensures that they are fair.

15. Pragmatic & Functional Approach

15.1 Patent UnreasonablenessSince CUPE [1979], the Court’s approach is characterized by an acceptance that statutory language has more than one possible meaning. Provided the tribunal’s meaning doesnt move outside the bound of reasonably permissible visions of appropriate interpretation, there is no justification for court intervention.

Examples of errors that cross the threshold of the Patently Unreasonable test include :1. Acting in bad faith2. Basing the decision on extraneous matters3. Failing to take relevant factors into account4. Breaching the provisions of natural justice 5. Misinterpreting the provision of the Act so as to embark on an inquiry or answer not remitted to it

Four situations in which a remedy might represent a patently unreasonable exercise of power :1. Where it is punitive in nature2. Where it infringes the Charter (see Slaight)3. Where there is no rational connection between the breach, its consequences, and the remedy4. Where the remedy awarded is inconsistent with the object and purposes of the Act.

Delineating patent unreasonableness requires close attention to the context or circumstances of each case. Further, this approach is relevant to both questions of fact as well as to questions of law.

In the review of factual determinations, the standard will be the more stringent one of patent unreasonableness.

C.U.P.E., Local 963 v. New Brunswick Liquor Corp. [1979] SCC

Facts: Background: Public servants are not allowed to picket their workplace. There is a tradeoff in the

legislation that prevents replacement workers. However, the legislation is poorly written: says they cannot be replaced by employees, but elsewhere it excludes management from definition of employee.

Union complained that the NBLC was replacing striking employees with management personnel contrary to the Public Service Labour Act. Issue as to the meaning of an “employee” under the Act (ie does it include management). Board ordered employer to refrain form using management.

Judge in CA said that provision was ambiguous. Employee is a defined term in the statute. But management could argue that on a plain reading of the statute, they were excluded from the ambit of employee as used in the particular statute.

In 1st instance and on appeal, they upheld management position and overturned labour relations board. The definition excludes management personnel, so that management can rely on its personnel in the case of a strike.

Issue Is deference owed to the tribunal? YES Is its determination reasonable? YES

76


Holding The term employee is naturally ambiguous There are good reasons for both interpretations – historical tradeoff/legislative definitions The decision is clearly within their jurisdiction, there is a privitive clause, and there is expertise

deference is owed. In cases of statutory ambiguity, where there are good reasons for multiple interpretations of the same

terms, the court should defer to an expert tribunal When there are multiple reasonable interpretations of a term, all of which are reasonable, and

deference is owed, a court should not substitute its decision for that of the lower body.

Note: This is a ground-breaking case:1) Courts should be alert not to brand too quickly as jurisdictional questions that may be doubtfully

so (i.e. not all questions of law are jurisdictional). Interpretations of provisions in enabling statutes may not be jurisdictional.

2) Reasons for privative clauses – courts have to pay attention to the expertise of the tribunal deciding the matter.

3) Even once we determine that the matter is within the jurisdiction of the board, it can lose jurisdiction by deciding question not remitted to it.I.e. call for deference with attachment to the language of jurisdiction

3 Propositions coming out of the post-CUPE jurisprudence:1) Despite the presence of a strong privative clause, an agency’s decision may be set aside as in

excess of its jurisdiction if it is based on an incorrect interpretation of the general law or of a provision of its enabling statute, which, on a pragmatic and functional analysis, the legislature should be held not to have left to the conclusive determination of the agency.

2) An agency exceeds its jurisdiction by placing a patently unreasonable interpretation on those provisions of its enabling statute which, on a pragmatic and functional approach to the statutory scheme, the legislature should be regarded as having entrusted conclusively to the agency to interpret.

3) Privative clauses that fall short of outright prohibitions of judicial review do not provide much protection from judicial review.

National Corn Growers Assn. v. Canada (Import Tribunal), [1990] SCC

Facts: JR of Can import tribunal – US passed bill giving subsidies to grain producers. The commodity price

of grain in US was set by the Chicago Board of Trade based supply & demand within US economy. Between Can & US there was pretty much free access to grain; Canadian producers claimed that the subsidy was deflating the cost of grain to buyers in Canada, and this had an effect on Can producers, b/c it also lowered the price in Canada. Causation problem – no direct effect of subsidy proven – it’s a roundabout depression of the market. Also an injury problem: pure economic loss.

Legal question: is a THREAT enough to engage the authority of the tribunal? The tribunal used GATT to interpret this fact & interpreted its statute in light of Canada’s intl obligations under the GATT.

Issue What is the appropriate standard of review? Patent Unreasonableness Did the tribunal err in looking at Canada’s obligations under the GATT? NO. How deep should a court probe in a patent unreasonableness review? Gonthier: full analysis; Wilson:

look for immediate defects onlyHoldingGonthier (majority) Proper standard of review is patent unreasonableness:

1) No privative clause

77


2) Expertise on part of tribunal3) Complex policy oriented matters (polycentric)4) The question is of mixed fact and law (determination of what counts as material injury – requires

understanding of economics) It is appropriate to look at actual versus hypothetical imports. Looked at GATT. Tribunal will review

such an international commitment and the reasonableness of the tribunal’s decision is decided in light of how the tribunal understands its responsibility in light of the GATT (showing that material injury could arise from potential imports).

Having regard to the evidence before the Tribunal, it cannot be said that its finding of a causal link between American price and injury to the Canadian market was patently unreasonable (p.884).

Wilson (concurring) Review on patent unreasonableness standard involves question of whether it is evident that a tribunal’s

interpretation of its governing statute is patently unreasonable. The inquiry ends there. Don’t go on to look at the way in which the tribunal may have interpreted aspects of international law or tribunal’s findings with respect to the underlying facts. It is not for the court to review the inquiry that the tribunal engaged in with respect to analysis of actual versus hypothetical imports.

Note: This case was decided before there were 3 standards. Patent unreasonableness was seen as the way people took Dickson’s judgment in CUPE to be that the court will be willing to allow for an error in law (getting constitutive statute wrong) as long as it was in its jurisdiction. This was hard to maintain and drove people toward three standards.

If this decision were to come up now, the standard would probably be reasonableness. Wilson says that as long as the determination is plausible, judicial review should end there. Even with looking into the reasons, you don’t need a lot of evidence to hold up the decision.

Problems Distinguishing between Patent Unreasonableness & Reasonableness Mullan asks

o What is the basis in principle for being able to determine from patently unreasonable, and merely unreasonable???

o Why would a court even let a merely unreasonable decision stand? Critique by LeBel:

o when courts review on patent unreasonableness, they are asking “is this decision clearly wrong”o when the look at reasonable, they ask, “determination merely unreasonable”

Part of leBel’s deeper worry is that the magnitude or immediacy of the effect does not really connect to the strength of the reasons for coming to a determinationo I.e. why does it matter how long it takes you to find the bad reasons?

EFD’s view: if there is no rational basis, the decision will fail on any standard (Mullan is asking the wrong questions)o It is not about the court deferring to a sort of unreasonable decision; the court only defers when

there ARE reasonso If there is some rational basis, even if it is not the one that the court would have chosen, it can

survive review on a standard of reasonableness I.e. in cases where there are a lot of diff remedies available and they chose one over another

In what context would a court defer on a standard of patent of unreasonableness, but would turn it down on a standard of reasonableness?o Ex. Baker, a highly discretionary contexto Decision-maker must grant an exception from normal application of the lawo In Baker’s case – the appropriate standard was reasonableness – Children were at stake

78


o Applying p&f lets the court say “we can over turn this standard on reasonableness” but perhaps not if it were patent unreasonableness b/c Ct must show that tribunal did not take reasons into account in the proper way

o Many discretionary decisions will be reviewd under the standard of patent unreasonableness

Quotable: The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect. If the defect is obvious on the face of the tribunal’s reasons, then the decision is patently unreasonable. But if it takes some significant testing to find the defect, then the decision is unreasonable but not patently unreasonable. (Iacobucci J in Southam at 777)

15.2 CorrectnessThis standard applies because it has become clearer that a deferential approach is not confined to situations in which some degree of privative protection exists in the relevant legislation. Even where there is no privative protection, or where right to judicial review is explicit, the courts may accord deference to certain aspects of a tribunal’s exercise of its authority.

Canada v. Mossop, [1993] SCC

Facts: Guy didn’t get day off for the funeral of his same-sex partner. He complained to HR Commission. HR

tribunal upheld the complaint. Overturned by the Federal C.A on grounds that tribunal’s interpretation of “family status” was erroneous in law.

Holding: (Lamer CJ)This is a question of law – proper meaning of “family status”. Does pragmatic and functional approach:

1) Statutory right to appeal – exists therefore less deference2) Expertise – no particular expertise on this matter. It is a question of HR law but court makes

distinction between tribunals that administer specialized areas of law (like labour relations law) and areas where the law is very general. So, although the HR tribunal has jurisdiction, its expertise relative to the court is no greater therefore no special deference due.

3) Purpose of the act and provision – Policy purposes of the Commission. Therefore, some deference due. But, the particular provision in question falls under a particular area of the Canadian HR Act. This gives the commission its adjudicative powers. In this particular role and function, the HR Commission is acting in a quasi-judicial/adjudicative role rather than policy role of evaluating and balancing interests. Therefore less deference.

4) Nature of the Problem – the question is proper interpretation of family status. This decision has direct impact on society at large with respect to basic SOCIAL VALUES. This is close to a constitutional litigation – interpretation of fundamental interplay of HR statute and society at large.

Therefore, the standard is CORRECTNESS.

Applying the standard to the decision Family status had been added as enumerated grounds but sexual orientation had not. So, if L’H-D is

right, we would have funny situation whereby homosexuals in couples would have protection and those not in couples would not.

HRC’s decision is wrong in law – cannot add words to the statute that Parl declined to put in.

La Forest (concurring) Re the tribunals’ policy and educational functions the tribunal is not, simply by these other functions of the Commission, entitled to be free of normal

review in its adjudicative function. The tribunals themselves are ad hoc bodies established to settle a particular dispute. In this respect their

positions are similar to that of a labour arbitrator. But a human rights tribunal does not appear to me to

79


call for the same level of deference as a labour arbitrator. A labour arbitrator operates, under legislation, in a narrowly restricted field, and is selected by the parties to arbitrate a difference between them under a collective agreement the parties have voluntarily entered.

As well, the arbitrator's jurisdiction under the statute extends to the determination of whether a matter is arbitrable. This is entirely different from the situation of a human rights tribunal, whose decision is imposed on the parties and has direct influence on society at large in relation to basic social values.

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal.

They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.

In sum, neither ordinary meaning, context, or purpose indicates a legislative intention to include same-sex couples within "family status". I underline that the present case is not an action under the Charter where the Court may review the actions of Parliament or the government, and I would refrain from saying anything about the issues such an action might raise.

L’Hereux-Dubé (dissent): Pragamatic and Functional AnalysisDeference on:

1) Privative clauses: There is none but, absence of a privative clause does not necessarily result in review of all questions of fact and law. Here, there is internal mechanism.

2) Specialized nature of certain boards: Importance of expertise: A related consideration is the connection of the board to the context. That is, even a body made up of "non-specialists" may develop a certain "field-sensitivity" where that body is in a position of proximity to the community and its needs. Where the question is one that requires a familiarity with and understanding of the context, there is a stronger argument that a higher degree of deference may be appropriate. The HR Commission is a specialized tribunal. The policy making powers conferred on it suggest that Parliament intended to give the Commission considerable leeway within which to exercise their powers.

3) Nature of the question or interest: This is a question of fact with respect to whether M can be included as a matter of fact within the concept of family status.

4) Whether the question is one of fact or law The proper standard of review is patent unreasonableness. The Tribunal has jurisdiction to interpret its Act and, consequently, the meaning of the term "family

status" in s. 3 of the Act; courts should defer to the Tribunal's interpretation since the legislature specifically intended that the Commission and its tribunals carry out the task of interpreting the grounds of discrimination in the Act.

While courts do have a role to play in this task, that role is a limited one, confined to overturning an interpretation which, is "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review".

Applying the Standard The majority took too narrow a view of family status. Looks at French version of the act. And notes that

the notion of family is changing – family status is not just in the legal sense. Also, many grounds of discrimination overlap. We have to be sensitive to this. The overlap does not in itself suggest that family status cannot be interpreted to include someone who is in same-sex family. How should we interpret this provision – in the proceedings leading up to the drafting of the act, the minister said he did not define the grounds to let the HR Commission define the scope of application.

80


This case was based on statutory interpretation based on admin law principles – not constitution. The result might have been different if it had been constitutional case.

There was not yet a standard of reasonableness. Even if L’H-D had used correctness standard, she would have come to the same conclusion. But would

the majority have come to the same conclusion on patent unreasonableness standard? Minister left the terms to be defined by the Commission but can’t this be seen as a delegation of power

to the administration to make law rather than simply interpret? Couldn’t we see that as an ultra vires delegation of power from Parliament?

Mullan: As long as the reviewing court’s sense of itself if that it is as expert as the tribunal on the issues in question, there is a large chance that correctness will emerge as the standard of review

Trinity Western University v. British Columbia College of Teachers, [2001] SCC

Facts: TWU has Christian philosophy with 5-year teacher’s program. BCCT imposed condition on TWU that

its students had to go to Simon Fraser in 5th year because concerned about some of the policies that TWU taught – anti-gay stance.

TWU applied to BCCT to get full control of its program so students do not have to go to Simon Fraser. The BCCT acting pursuant to s. 4 Teaching Profession Act said it had responsibility to grant

accreditation to teacher’s programs having due regard for public interest (as well as with regard to good character of people coming out of teaching programs – skills and competence).

BCCT refused TWU’s application as contrary to public interest. HR concerns justified this refusal. TWU argued that BCCT should only be making sure that the training programs accredited provide

teachers with skills to be good teachers.Issue : Is consideration of discriminatory practices within the jurisdiction of the BCCT? What is the standard

of review to determine if the decision of the BCCT Council was justified ?

Reasoning (Iacobucci and Bastarache) The BCCT does have broader mandate than just ensuring that the teachers have the right skills. Can

consider the effects of discriminatory policies within a teaching program. But, in applying the pragmatic and functional approach, the standard is correctness. Two issues to be determined:

1) Preliminary Jurisdiction: Does BCCT have authority to consider discriminatory practices? Yes2) Standard for BCCT’s decision? Correctness.

a. No privative clause in Teaching Profession Actb. College of Teachers has no special expertise to interpret scope of human rights and weigh

and compare conflicting rights (equal treatment versus freedom of religion)c. Question of law – general, not specialized. This is clear by the fact that the BCCT sought

a legal opinion before deciding – the BCCT didn’t even trust its own expertise.d. This is not a case of a particular teacher being discriminatory but is an evaluation of the

whole program. Therefore it is about competing rights.[Note: Shouldn’t fourth factor here be seen as a policy decision about the relevant criteria?]

3) Was BCCT’s decision to reject TWU’s application correct as a matter of law? No The Council is not particularly well equipped to determine the scope of freedom of religion and conscience and to weigh these rights against the right to equality in the context of a pluralistic society.

Dissent (L’Hereux-Dubé): The statute gives the BCCT broad discretion to set policies and standards. Great deference should be

shown in these situations. There are competing views but in the past, the court has said that in these situations, more deference should be shown.

The question itself is largely a question of fact – very speculative: effect of program on teachers who go into public school system and impart their views on vulnerable students. Therefore, the standard should

81


be patent unreasonableness. With respect to competing HR interests: that consideration is not telling in this case because TWU is

free to have whatever views it wants but cannot place risk of discriminatory practices on children who may be vulnerable. I.e. this is not a problem of competing Charter rights. There is reasonable basis for what the BCCT did.

Pushpanathan v Minister of Citizenship and Immigration, [1998] SCC

Facts: Appellant claimed refugee status under the UN Convention Relating to the Status of Refugees

(“Convention”), as implemented by the Immigration Act –claim never adjudicated –was granted permanent residence status under an administrative program. Was later arrested in Canada and charged with conspiracy to traffic a narcotic -8 years in prison.

When on parole, renewed his claim for Convention Refugee Status. Employment and Immigration Canada subsequently issued a conditional deportation order (upon finding he is not a Convention refugee). Immigration and Refugee Board decided that he was not one by virtue of the exclusion clause in art.1(F) of the Convention –says convention does not apply to those “guilty of acts contrary to the purposes and principles of the UN.”

Holding A P&F analysis of the Immigration Act leads to the conclusion that the correctness standard should be

applied.o The use of the words “a serious question of general importance” in s.83(1) of the Act is the key to

the legislative intention as to the standard of review –warrants the review by a court of justice. o Art.1(F) of the Convention: purpose is to protect HR and the Board appears to enjoy no relative

expertise in the matter (the Board is an expert in evaluating if the criteria for refugee status have been met and assessing the amount of risk of persecution upon return to country of origin) –so expertise is remote.

o The legal principle is easily separable from the undisputed facts of the case and would have a wide precendential value –the factual expertise enjoyed by the Board does not aid in the interpretation of this general principle. The Board is also not responsible for policy evaluation.

o Absence of strong privative clause also militates against deference. In the absence of clear indications that the international community recognizes drug trafficking as a

sufficiently serious and sustained violation of fundamental HR as to amount to persecution (necessary to exclude individuals), individuals should not be deprived of the essential protections contained in the Convention for having committed those acts.

Pushpanathan is the clearest articulation of the four elements in the Pragmatic and Functional approach.

Barrie Public Utilities v Canadian Cable Television Assn, [2003] SCC

Facts: Commission (CRTC) ordering provincially regulated electric power companies to grant cable television

companies (CCTA) access to their power poles. The Federal Court of Appeal reviewed the decision on a correctness standard and held that s.43(5) (with words “the supporting structure of a transmission line) of the Telecommunications Act, properly interpreted, does not give the CRTC jurisdiction over the power poles of provincially regulated electric power companies.

Issue: Did Fed. C.A. properly review Commission’s decision on correctness standard?

Ratio: Standard is correctness: all (4) factors of the P&F approach point to this.

s.64(1) of the Act grants right of appeal to the Fed. C.A. with leave of that court on any question of

82


law or of jurisdiction (while not decisive of a correctness standard, factor suggests a more searching standard or review).

Relative expertise : deference to decision-maker only when it is more expert than the court and that question at issue falls under its expertise. Here interpretation of “the supporting structure of a transmission line” is not a question that engages the CRTC’s special expertise in the regulation and supervision of Canadian broadcasting and Telecommunications –it is a PURELY LEGAL question and within the province of the judiciary. Court’s expertise in pure statutory interpretation is superior to that of the CRTC –suggests less deference.

Purpose of legislation and provision point to less deference : s.43(5) accords the CRTC adjudicative role of considering applications from, and providing redress to, public service providers who cannot gain access to the supporting structure of a transmission line on terms acceptable to them.

Nature of problem : Even pure questions of law may be granted great amount of deference where other factors suggest that the legislature so intended –but this is not the case here.

S. 43(5) cannot bear the broad meaning given to it by the CRTC and advanced by the CCTA. Had Parliament intended to submit the utilities’ power poles to the jurisdiction of the CRTC, it would have referred to distribution lines.

The CRTC’s heavy reliance on the policy objectives of the Telecommunications Act was in error –it relied on policy objectives to set aside Parliament’s clear intent as revealed by the plain meaning of s.43(5). S.45 generally and the Act as a whole.

Note re Status of Jurisdictional Questions:1) In Pushpanathan, jurisdiction has gone the way of an application of pragmatic and functional

approach where the standard to apply is correctness2) But, the methodology in TWU is a slide back to the original position where there is initial question –

can discrimination be addressed by the BCCT? And, there was no real analysis on pragmatic and functional approach

3) Run pragmatic and functional approach on every issue. There can be more than one in each case. In CUPE v. City of Toronto, for example, the first issue was standard for allowing grievor to keep out conviction. This is on basis of correctness. Second issue is unjust dismissal – patent unreasonableness but this is met based on the decision for the first issue.

4) But, jurisdiction is always on correctness standard. 5) Also, the terms of the grant of statutory authority are considered to be jurisdictional – on standard of

correctness. But this might be on different for labour relations boards than colleges of teachers. Colleges of teachers and HR tribunals should not be final arbiters of human rights. (See Mossop)

6)

15.3 Reasonableness simpliciter

This standard of review only comes after 1997. It is meant as a middle-ground between correctness and patent unreasonableness. It is applied when there is some match between tribunal expertise and issue. In all other matters of law and mixed fact and law, correctness will be the standard of review.

Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 SCR 748

Facts: Southam bought a number of community and specialized newspapers in Vancouver area in 1989. Within a year, it had controlling interest in 13 community newspapers. The Dir. of Investigation and Research applied for an order requiring Southam to divest itself, alleging

concentration of these properties was likely to lessen competition substantially. Competition Tribunal agreed and ordered Southam to divest itself of one of two newspapers. Dir. appealed tribunal’s decision on the merits. Southam appealed on the remedy.

83


Issues and Holding1.Did FCA err in concluding that it owed no deference to tribunal’s finding about the dimensions of the

relevant market and setting its own dimensions? YES. Tribunal should be held to the standard of reasonableness simpliciter – ie Court only to ask if the decision was reasonable.

2.Did FCA err in refusing to set aside the tribunal’s remedial order? NO. Even though tribunal imposed too strict a test, it chose its chosen remedy is appropriate.

DIRECTOR OF INVESTIGATION WINSReasoningIacobucci J.Statutory Right of Appeal The standard of review, depending on the factors, may fall somewhere between correctness, at the more

exacting end of the spectrum, and patently unreasonable, at the more deferential end. Question is what limits an appellate court should observe in the exercise of its statutorily mandated

appellate function. To do so, appellate courts must look at:1) Nature of the problem

Iacobucci finds this to be a problem of mixed law and fact Questions of law: are questions about what the correct legal test is. Questions of fact: are questions about what actually took place b/t the parties. Questions of mixed law + fact: are questions about whether the facts satisfy the legal tests

Confusion in this case arises from fact that parties are arguing about different questions. DIR says Tribunal erred in law bc it did not consider all the indirect evidence..

BUT Tribunal did consider all the indirect evidence; so there’s no error in law. Suggestion that it did not give proper weight to certain factors is contrary to notion of

balancing test. The according of weight to the factors is up to the Tribunal. The most the court can ask for is that each factor be considered – which here they were.

Southam says Tribunal erred in fact, that it did consider all relevant evidence but did not apply the correct legal test to the facts.

If the Tribunal erred, then it was in application of law to facts (a matter of mixed law and fact). But this decision is too particular to have any value as a general precedent.

The Tribunal made no new legal principle and, if there was an error, it could only have been of mixed law and fact. So some measure of deference is owed to the decision bc appellate courts should be reluctant to venture into a re-examination of the conclusions of a Tribunal on q’s of mixed law and fact.

[This suggests that lesser standard of deference would be given had the case set a precedent!]2) Applicable law in light of its purpose

There is a statutory right of appeal to the Tribunals decisions. The wording counsels a less-than-deferential posture for appellate courts than if there were a privative clause.

Nonetheless, the aims of the Act are more “economic” than they are strictly “legal.” The Tribunal was created by Parl bc of the specialized nature of the economic objectives.

The purpose of the act is better served by appellate deference to the Tribunal’s decisions.3) Expertise of the Tribunal

This is the most important of the factors that a court must consider when settling on a standard of review.

When dealing with highly specialized matters, the more deference should be shown by the appellate tribunal.

In this statute, the preponderance of lay members reflects Parliament’s intent that for this Tribunal economic or commercial expertise is more desirable and important than legal insight. (The tribunal is composed of four FedCt judges and 8 lay members)

In this case, what is required is an assessment of the economic significance of the evidence, and to this task economists are better suited than a judge.

Judges still play a role in this Tribunal, but one of their principal roles here is to decide such

84


questions of pure law as may arise. On these questions they have exclusive jurisdiction.

The Standard of Review The factors require a standard that is more deferential than correctness but less deferential than “not

patently unreasonable” Why deference? (1) dispute is over question of mixed law and fact

(2) fact that purpose of the Competition Act is broadly economic(3) application of principles of competition law is within area of Tribunal’s

expertise Why exacting review ? (1) existence of unfettered statutory right of appeal from T’s decisions

(2) presence of judges on the the Tribunal. Jurisprudence calls for standard of patent unreasonableness, but this is mainly a jurisdictional test,

which the statutory right of appeal has already set to rest. BUT Parl trusted a Tribunal, which calls for a standard of correctness. 3rd standard is needed: reasonableness simpliciter an unreasonable decision is one that, in the

main is not supported by any reasons that can stand up to a somewhat probing examination. Court is to review a conclusion on the reasonableness standard and look to see whether any reasons

support it. Difference btwn “unreasonable” and “patently unreasonable” lies in obviousness of the defect. If

the defect is aparent on the face of the Tribunal’s decision, then that decision is patently unreasonable. But if it takes some significant searching to find the defect, then the decision is unreasonable (but not patently unreasonable).

Decisions of the Competition Tribunal shoud be subject to reivew on a reasonableness standard bc it permits recourse to the courts for judicial intervnetion in cases where the Tribunal has acted unreasonably.

This standard instructs the courts to give considerable weight to the views of tribunals about matters with respect to which they have significant expertise.

Application of the Standard of Review The question here is if the Tribunal acted unreasonably in its decision. It didn’t. FCA ruled that Tribunal failed to consider certain evidence. SCC finds that weighing of criteria in a

balancing test must be largely a matter of discretion. Here, the Tribunal’s attention to functional interchangeability and market reach was reasonable – which is all it needed to be.

Tribunal did not ‘ignore’ evidence, it simply didn’t regard that evidence as decisive. Their finding is ‘difficult to accept’ but it is not unreasonable.

Reviewer will be tempted to find some way to intervene when s/he would come to an opposite conclusion than the tribunal. Appellate courts must resist such temptations.

Judicial restraint is needed if a coherent, rational and sensible system of judicial review is to be fashioned.

Remedy Remedy settled upon by Tribunal should stand. Tribunal’s choice of remedy is matter of mixed law and fact, so it is reviewed on standard of

reasonableness. The remedy it proposed is effective even if intrusive. If the least intrusive of the possible effective remedies overshoots the mark, that’s unfortunate, but from

a legal point of view such a remedy is defective (specially if alternative is one that does not go far enough even to reach an acceptable level).

Notes The more the question approaches the realm of mixed law and fact, the greater is the pull of deference. Court could have done separate pragmatic and functional approach on this issue. Standard for the

85


remedy could be different than for the issue it is remedying. Where statutory provision grants wide discretion for fashioning remedies, more deference is due.

This is the kind of case where the standard would typically be patent unreasonableness. But, there was a statutory right of appeal. The court is trying to figure out how broad the legislature is trying to make the right of appeal.

Chamberlain v. Surrey School District No. 36, [2002] 4 SCR 710

Facts: BC School Act gives school boards authority to approve supplementary educational resource materials. Surrey School Board passed resolution declining to approve 3 supplemental books for use in elementary

school that included same-sex parented families. The Board's overarching concern was that the books would engender controversy in light of some

parents' religious objections to the morality of same-sex relationships ; also: that children at the K-1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same-sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum.

Court Decisions BCSC quashed Board’s resolution, bc it had been significantly influenced by the board member’s

religious considerations (this offended s.76 of the School Act) CA set aside the decision on basis that the resolution was within Board’s jurisdiction.Issue Was the Board’s decision reasonable?Holding NO (6+1-2), Board’s decision was unreasonable in the context of the School Act. Chamberlain wins. ReasoningMcLachlin majority Reasonableness is the appropriate standard of review since question is one of mixed fact and law. Deference is owed bc School Board is an elected, statute created body. But bc ther’s no privative clause, the Act is committed to promoting tolerance and respect for diversity,

and the fact that the problem bf Board has human rights dimension, all mitigate for stricter standard of review.

School Act’s insistence on secularism and non-discrimination lies at heart of this case. Board’s decision is unreasonable bc process through which it was made is outside Board’s mandate under the Act.

(1) Board violated principles of secularism and tolerance in s.76 of Act. It acted on exclusionary philosophy, without considering interest of same-sex parented families.

(2) Board parted from its regulations on how to make decisions on supplementary resources.(3) Board applied wrong criteria, that of necessity, when it should have considered supplementarity.

Decision has rational basis but does no stand up to probing since there were errors in the decision-making process.

LeBel Concurring There are limits to the usefulness of the pragmatic and functional approach, particularly when outside

the context of adjudicative or quasi-judicial decisions. Here, it’s an elected body with delegated powers – so primary function of judicial review is to

determine whether that body acted within the bounds of authority confered to it. Question is whether Board acted legally. Under even most deferential standard of review, the Board’s

decision could not be upheld bc it was patently unreasonable. Unnecessary to go through full analysis of various factors used to determine the appropriate standard of

judicial review bc the decision was patently unreasonable. The Board reached its decision in a way that was so clearly contrary to an obligation set out in the

Act as to be not just unreasonable but illegal. As a result the decision is a breach of statute, is

86


patently unreasonable, and should be quashed.

Dissent (Gonthier and Bastarache) Standard of review is reasonableness (agree with majority) because:

(1) There is no privative clause(2) Decision to approve books requires Board to balance competing interests and expertise Even

though decision has human rights dimension, Board made factual determination balancing the concerns of parents against the objectives of promoting Charter values. This calls for deference.

(3) Board given authority to allow for local input, which they did.(4) Nature of problem involves highly contextual and polycentric analysis.

The decision is consistent with the Charter and within the ambit of discretion that is granted by the Act School Boards don’t have unfettered discretion, but as long as they act in manner consisten with the

School Act and procedures adopted by Board, the decision must be respected by the Courts. Of course we all value equality and respect for ppl regardless of background and types of families they

live in. But School Board had to consider decision where there were different considerations at stake. Given that Board heard from all the parties it is not for SCC but to school board to make the decision.

Context shows that the Board fosters non-discrimination and equality, and so there is no step lacking in showing that they decided reasonably.

Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 SCR 609

Facts: Trade union sent member to respondent Voice Construction, notwithstanding his request that she not be

sent to its job sites. Appellant union claims Voice was required to hire the labourers as per the CBA, prividing they were

qualified and had not been previously terminated for cause. Arbitrator found that CBA’s provisions were acceptable restraint on employer’s right to ‘hire and select

workers’ and so Voice had to hire properly qualified workers the union sent its way.Court decisions SC: arbitrator exceeded her jurisdiction by finding express restriction on employer’s rights. Applied the

standard of correctness and quashed the award. CA: upheld this decision. Issue Should the arbitrator’s decision and award be restored? YES (Union wins) (7+2 concurring)HoldingMajor (+6)Determining the Standard of Review 1st step is to adopt the pragmatic and functional analysis to determine appropriate standard of review Only after this 1st step can administrative tribunal’s decision be scrutinized. Appropriate standard of review in this case is the less deferential standard of reasonableness. Neither

the SC or CA conducted the analysis mandated by the pragmatic and functional approach. In applying reasonableness standard only the reasons as a whole need support the decision, not

every element of the arbitrator’s reasonsing. Arbitrator’s conclusion is reasonable given the terms of the agreement and should not have been

interfered with.

Lebel (+Deschamps) Appropriate standard of review was reasonablenss. Arbitrator’s interpretation fell within the range of reasonable interpretations and should not be changed There is need to re-evaluate standards of patent unreasonableness and reasonableness simpliciter bc PU

is inadequate standard that gives too little guidance and is difficult to distinguish from reasonableness

87


simpliciter.

Note: Normally, labour stuff is on patent unreasonableness but these have very strong privative clauses in the legislation. Here, there was a privative clause with a statutory right of appeal that was narrow. So standard used was reasonableness simpliciter. Also, there is more deference when it is not a complicated question of law. Here, it was a question of law. Note that provincial labour legislation is all very similar and collective agreements in construction industry is very common. The level of generalizability of this interpretation leans toward it being a question of law. Also, since this was about a complicated analysis of how the terms of the agreement relate to each other makes it be more of a question of law.

All questions of jurisdiction are questions of law: Some questions of law are not questions of jurisdiction. E.g. Voice Construction – interpreting how the terms of the collective agreement relate to each other. But, this is within the arbitrator’s jurisdiction.

Can you have a decision that is unreasonable but correct? E.g. decision-maker make correct decision – but not one the court would have arrived at. The court won’t overturn the decision even if the reasons are bad. Can the decision be rationally supported by the legislation (CUPE)? From Voice, we know that what we are looking at is whether the decision can be supported in a global sense. Deference is respect for the reasons offered – let decision stand if some of the reasons offered for it can support the decision OR if there are reasons that can be offered for the decision that can support the decision. I.e. the court considers the reasons offered. But, if the court thinks the reasons may be lacking, a court that wants to exercise deference as respect should see if it can support the reasons and build them up.

Where a term in a statute is ambiguous and there are reasons that can be given to support a particular interpretation, deference favours letting the interpretations stand. Deference generally implies deference to the definition and clarification.

Review: Pragmatic and Functional Approach

P&F involves consideration of four contextual factors:1) Presence or absence of a privative clause or statutory right of appeal2) Expertise of tribunal relative to that of the reviewing court on the issue in quesiton3) Purpose of the legislation and the provision in particular4) The nature of the question – law, fact or mixed law and fact.

There are three standards of review:a)Patent unreasonableness:

o Most deferent and most rarely applied. o Decision must border on the absurd.

b) Reasonableness: o As per Iacobucci in Southam [1997]o Legislature intends some deferenceo Decision must withstand a “somewhat probing examination.”

c)Correctnesso Little or no deference is directed by legislatureo Decision must be correct

88


16. DiscretionAfter Baker, there has been rise of administrative state and the need to know ahead of time all the circumstances under which a minsiter can, eg, order deported or not a person who is a danger to Canada; or all the commissions under which a person should be or not entitled to have a liquor or other license. All these sorts of fact patterns and situations reflect cases that we have seen and reason for which in many instances discretionary power is granted not bc legislature is lazy or unclear, but bc you cannot anticipate ahead of time all the sitautions that life presents.

Discretion is an oft-criticized power. The debate often lies in the balance of predictability in the use of discretion and the broadness of the power as granted.

Dicey saw it as inimical to a system of government that is subject to the rule of law, warning that officials were “always likely to abuse powers that were not strictly confined by law.”

Lord Hewart was against broad discretionary powers delegated by Parl to ministers to make regulations to implement the administrative schemes established by an enabling statute.

The 1968 Royal Commission of Ontario Report warned that discretion should be strictly limited to was is necessary and unavoidable in order to achieve the social objective or policy of the statute. It should not be granted where rules or standards of judicial application can be stated. It shold not be wider in scope than warranted by necessity.

F.A. Hayek saw the danger of discretion in its exercise depending on the preferences of officials, since these were so variable in values and purposes (ie little to no predictability).

The debate, however has become more balanced. The broad statutory grants of discretion to public officials is now common and seen as consistent with democratic ideals. It has become obvious that discretion is the life blood of the administrative state.

Nonetheless, there are criticisms of broad grants of statutory discretion since there is a sense of the further marginalization of the legislative in favor of concentration of real political power in the hands of Cabinet.

Discretion defined: an express legal power to choose a course of action from a range of permissible options including the option of inaction. The discretion may authorize:

a) Administrative action;b) A decision that is aimed at an individual or a small group; orc) The making of a rule that will affect a large number

Four observations that clarify that the distinction between discretionary and rule-based decisions are of degree, not kind:

1) There is an implicit discretion in the interpretation of statutory provisions by officials.2) Since regulatory codes are not self-enforcing, officials are given ample and unstated discretion about

the circumstances in which they will actually be enforced 3) There are legal limits to all express grants of discretion to public officials. It is up to courts to

determine what those limits are by reference to enabling statute, the cml, Constitution and constitutional principles.

4) Discretionary decisions must be made by reference to statutory purposes and other legal limits of power, be informed by any policy objectives formulated by the agency, agency guidelines and past practice.

In Baker L’Hereux-Dubé said discretion always has to be exercised within context of framework that is established by 5 broad principles:

89


1) Bounds of statute, 2) Requirements of rule of law,3) Principles of administrative law (such as procedural fairness), 4) The Constitution and the Charter, and 5) The fundamental values of canadian society.

Far from seeing discretion as some legal wasteland, in Baker the court suggests that there are, in fact, significant restrictions on the way discreationary authority can be exercised.

When there is Judicial Review and the application of a high degree of deference, the importance lies in whether the decision-maker took all th relevant factors into consideration and not whether s/he made the correct decision.

16.1 Ultra vires and review for unreasonableness: Abuse of Discretion as a Ground of Judicial Review

Look at the doctrines the courts have developed to deal with discretion. See also extent to which law of judicial review is alert to, encourages, or discourages the structuring of administrative discretion through measures such as, for example, the formulation of statutory rules, informal guidelines, and policy statements.

The most common grounds of judicial review :a) Agency has exercised discretion in order to achieve some purpose not contemplated by statuteb) In exercising discretion, the agency has considered some factor that is irrelevant to its stated goalsc) Or, that it neglected to take into consideration some factor that was relevant.

Issues of relevanct and purpose normally boil down to questions of statutory interpretation. Some points of reference courts use when sizing up the width of the discretionary power in question and assessing the intensity with which the courts should review the decisions:

1) The statutory language in which the discretion is granted – objective or subjective terms, specific or general purposes?

2) Nature of the interest affected affected by the discretionary power – is it one that is normally very protected? How seriously is it affected?

3) Character of the decision – are there effective alternative checks that can prevent abuse?4) Character of the decision-maker – political accountability?

In the absence of a right of appeal from the exercise of discretion, the legal basis of the court’s intervention was traditionally subsumed under the doctrine of ultra vires (like Roncarelli). The court would ask if the administrative action was authorized by law and, if not, it would have no legal force or effect.

So courts typically assumed that it was their function on an application for review to determine independently the scope of the agency’s statutory discretion: whether a factor considered by the agency was relevant or a purpose pursued was authorized, then it was reviewable by a standard of correctness.

Baker changed this. Court recognized that “P&F approach” was also of use in determining the intensity with which reviewing courts should be approaching decisions in the discretionary section of the spectrum btwn pure questions of law and completely unfettered subjective discretion. The standard of review discourse is now formalized in considering abuse of discretion.

90



Facts: Minister had decided to deport Suresh, an alleged member of the Sri Lankan Tamils (a terrorist group),

on grounds that he was a danger to the security of Canada. But Suresh alleged that there was a possibility that he’d be in serious jeopardy of torture if sent home.Decision To deport a refugee to face a substantial risk of torture would generally violate s.7 of the Charter. The

Minister must exercise her discretion to deport accordingly – which she did. Standard of Review(1) Did Suresh’s presence in Canada constitute a danger to national security?

Deference should be accorded, so review of decision on standard of patent unreasonableness The court should not re-weigh the factors or interfere merely bc it would have come to a

different conclusion. This standard of deference stems from language of the Immigration Act. All 4 factors point to deference

1) Parl intended limited right of appeal (no privative clause, but need leave to appeal to FCA)2) Expertise of Minister and access to special information on natl security.3) Purpose of legislation to permit a humanitarian balance of various interests4) Nature of the case: inquiry is highly fact-based and contextual.

Qn relates to h.r. and engages fundamental interests, but Court finds that deferential standard of ministerial review does not prevent h.r. issues from being fully addressed – as long as proper procedural safeguards are in place and provided decisions meed the constitutional req’s of Charter.

It is the Minister who was obliged to give proper weight to relevant factors. Baker does not allow review of weighing process, only review of whether all patently relevant factors were considered.

If Minister has considered the appropriate factors, the court must uphold her decision. It cannot set it aside even if it would have weighed them differently or reached another conclusion.

(2) Did Suresh face substantial risk of torture if returned to Sri Lanka? Qn is in large part a fact-driven inquiry. It considers a number of issues that are largely outside the

realm of expertise of reviewing courts and possess negligible legal dimension. They are owed deference.

Court may not reweigh factors considered by Minister, but may intervene if decision is not supported by evidence or fails to consider the appropriate factors (patent unreasonableness).

Decision not patently unreasonable, so upheld.Notes Court held that ordering deportation despite serious possibility of torture did not violate principles of

fundamental justice. It was justifiable as an exceptional measure. But since Suresh had raised a prima facie risk of torture, he was entitled to higher level of procedural

fairness than he received. So the matter was remitted.

What’s interesting in standard of review analysis, is that it’s pretty much the same one we saw in Baker. What’s absent of this analysis in Suresh is that standard of review analysis in Baker, the particular statutory provisions played a larger role. L’Hereux-Dubé said there that it was govt vs indiv, and that this suggested less deference. Here in Suresh the court doesn’t bother to refer to this aspect of the decision-making process (that it’s Suresh vs Minister).

The federal court split in its interpretation of how to deal with Baker:1) Process interpretation: Just look at formal process that the minister went through. If they took the

children into account, then the court won’t look at the weighing of factors2) Substantive interpretation: If there are children involved, given the importance attached to children

in Baker, it is almost foregone conclusion that deportation will be stayed.

91


Suresh falls closer to Process interpretation. But, other judges are in defence of more substantive interpretation – including judge in Hawthorne.

Shell Canada Products Ltd v. Vancouver (City) [1994] 1 SCR 231 (BC)

Facts: City passes resolution to not do business w/ Shell bc it deals w/ apartheid South Africa. Shell contests this and alleges the council exercised its statutory discretion for an improper purpose.Issue Does this constitute improper use of discretion? YES (Shell wins) (5-4)HoldingSopinka J What’s being challenged by Shell is not the action of the City council, but their motives. The motives of public authority must coincide with the authority given to them by Statute. City had no material interests in whether Shell was conducting business with South Africa or not.Reviewability Powers of municipality are classified for some purposes – which include legislative, quasi-judicial and

business functions. Since they are creatures of statute, municipalities must stay within these conferred powers.

None of these powers are immune from review. There is no good policy ground for providing immunity. Rather, there’s good reason to encourage municipalities to act within their statutory powers

City conteds that it could have simply refused to deal w/ Shell, without passing the Resolutions. Sopinka does not appreciate this argument since it implies that they could have acted in a manner that would have been immune from judicial review. Instead, he finds that any policy or plan not to deal with Shell would require a decision of Council. Any such decision must be grounded in statutory power and, whatever its form, would be reviewable.

Impermissible Purpose Problem arises w/ respect to the exercise of power that is not expressly conferred but is sought to be

implied on the basis of a general grant of power. So q’n becomes whether the Resolutions were passed for a municipal purpose.

Sopinka limits municipal purpose to “good govt, health or welfare” of the City or its citizens and finds that no implicit purpose can be read into the Resolution. Instead, he finds that City was seeking to use its powers to do business to affect matters in other parts of the world, outside its territorial limits.

Council can have regard for matters beyond its boundaries, but in so doing the action must have as its purpose benefit to the citizens of the City.

The clauses that give municipalities vague powers are “general sections” to be found in most Municipal acts and “must be construed subject to the limitations imposed by the purpose of the statute as a whole.” Any power implied for their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality.

McLachlin dissent It is for elected city council to decide what the interests of City inhabitants are. People can certainly

have interests that go beyond the simply material – ie the moral ones. And this can include not doing business with apartheid.

Courts are to be very cautious when stepping in to review the decision of elected bodies. They can review the process of the decision-making and here the council heard both sides of the issue before passing its resolutions.

Advocates a more generous view of municipal powers and a more deferential approach to judicial review.

Are the Resolutions subject to Judicial Review? There are arguments both for and against allowing judicial review of the procurement or purchasing

92


powers of govts (ie entering into Ks). The most important difference to draw when comparing to the private sphere is that municipalities undertake their commercial and contractual activities with the use of public funds. As such, they are held to higher standards of scrutiny.

As statutory creations, municipalities must always act within the legal bounds of the powers confered to them. So, doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality’s power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review.

The Proper Scope of Judicial Review Judicial review of municipal decisions is necessary, but must be balanced with the courts not

unduly confining municipalities in the responsible exercise of the powers which the legislature has conferred to them.

2 approaches: (1) narrow construction – pro-interventionist approach; and (2) more liberal approach There is an emerging concensus that courts must respect the responsibility of elected municipal bodies

to serve the people who elected them and exercise caution to avoid substituting their views of what’s best for citizens for those of municipal councils. Court only to step in when municipal decision was beyond its powers.

Why this liberal approach?1) Democratic values : Idea that courts must accord proper respect to the democratic responsibilities

of elected officials.2) Autonomy: Generous approach to municipal powers will aid the efficient functioning of

municipal bodies and avoid the costs and uncertainty that come with excessive litigation.3) Nature of modern municipalities : excessive judicial interference may have effect of confining

modern municipalities in the straightjackets of tradition. 4) Deference and stare decisis : more in keeping with Court’s recent decisions. There can be little

justification for holding decisions on the welfare of the citizens by elected councillors to a higher standard of review than decisions of non-elected statutory boards and agencies.

Standard of review must be the most deferential (patently unreasonable). Judicial intervention is warranted only where a municipality’s exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power.

Were the Resolutions beyond the City’s powers? Must look at legal principles relevant to review of municipal decisions on the basis of motive. Such

actions are beyond municipal powers in two ways:1) If the action itself is beyond authority’s powers2) If within its powers, if the purpose for which action is taken is outside municipality’s powers

Canadian courts have rejected the notion that municipal legislation, short of bad faith, should be invalidated on the ground that it was passed for improper purposes, particularly in cases where the municipality can be seen as expressing the moral views of its citizens.

The motives here did not exceed the powers which the legislature has conferred on the city. Amongst the powers is seeing to the “welfare of its citizens” – and this is to include psychological welfare. Courts should not be quick to substitute their views for those of elected officials for what constitutes the welfarfe of the city’s citizens – unless the city has clearly gone beyond its powers.

Material interests of the city should not be seen territorially, in same way moral interests should not be read restrictively.

If the court interprets the general powers narrowly, as Sopinka suggests, they will defeat the very purpose for which these provisions were enacted.

Notes Both judges agree that considerable deference was due to city councils and municipalities bc of elected

nature. But Sopinka felt the decision here went beyond the scope of what interests the municipality.Shell is the reverse of Chamberlain.

93


Failure to Consider Relevant FactorsFailing to take into consideration a relevant factor is equally a basis for impugning the vires of an agency’s exercise of discretion, although there is some doubt about its scope.

While an agency may lawfully consider a large number of factors in the exercise of a discretionary power, it is required to consider only some of them (mandatory relevant considerations). An exercise of discretion will be ultra vires only if the agency has overlooked a factor that its enabling statute expressly or impliedly obliged it to consider. If it does overlook, it doesnt mean that it has misinterpreted its statute, but that it has overlooked evidence that would establish whether a legally relevant fact existed.

The problem, as seen in Baker, is the extent to which mandatory relevant considerations have to be taken into account or the weight that has to be given to them. Suresh may, or may not, settle this question of whether weight is not the concern of the Courts.

BAKER V. MINISTER OF CITIZENSHIP AND IMMIGRATION [1999] – Review for unreasonableness

Was this Decision Unreasonable? The standard of review is reasonableness simpliciter. The use of discretion must stand up to a

“somewhat probing examination.” The approach taken to the children’s interests shows that this decision was unreasonable.

Failure to give serious weight and consideration to the interests of children constitutes an unreasonable exercise of the discretion conferred by the Act, notwithstanding the considerable deference owed.

Reasons of the immigration officer show that decision was inconsistent with values underlying the grant of discretion – and so don’t pass the somewhat probing examination.

Intention of Parl was that those exercising discretion act in a humanitarian and compassionate manner. Taken in the contextual approach, this requires close attention to the interests and needs of children.

(a) The Objectives of the Act These include “facilitating family reunion”. This places important weight on keeping children in

contact with both parents. (b) International Law While UN Conventions may not have direct application in Canadian law, the values reflected therein

helps inform the contextual approach to statutory interpretation and judicial review. This speaks to the importance of being attentive to the rights and best interests of children when

decision are made that relate to and affect their future.(c) The Ministerial Guidelines Officers are expected to make decisions that a reasonable person would make, with special

consideration of humanitarian values. The guidelines show what are considered humanitarian and compassionate (H&C) decisions.

There is emphasis on the rights, interests, and needs of children. These are values that should be considered in reasonably interpreting the H&C considerations that guide the exercise of discretion.

Bc these were not considered as an important factor in relation to Ms Baker’s children, it was an unreasonable exercise of the power conferred by the legislation, and must be overturned.

Discretion is granted within certain boundaries – one of which is that the decision must be made following an approach that respects H&C values. If the decisions are in conflict w/ this, they can’t stand

This is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H&C claim. But where the interests of children are minimized in a manner inconsisten with Canada’s H&C tradition and the Minister’s guidelines, the decision will be unreasonable.

Disposition There was violation of procedural fairness and the exercise of the H&C discretion was unreasonable. Appeal allowed. Matter returned to Minister for redetermination by a different immigration officer.

94


Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] FCA

Facts: H came to Canada in ’92 to live with A, child’s father. Child, S, left behind in Jamaica for 8 yrs. H left A bc of abuse. In ’99, A sponsored S to come to Canada, but S has lived and been maintained by

H ever since. Although lacking status, H has maintained gainful employment and not relied on social assistance. She made H&C application at time when her removal was under consideration. Claims Minister appeals decision to set aside immigration officer’s refusal for permanent residency. Officer had not been satisfied that H&C grounds were met H argued that the officer had exercised discretion unreasonably by giving inadequate consideration to

the best interests of respondent’s daughter – a Canadian permanent resident. SC accepted this argument given Baker and the question of child’s best interest, and whether parent’s

removal will subject the child to unusual, undeserved or disproportionate hardship. Pelletier J found the officer to not have considered the best interests of the child as an important factor.Issue Was proper consideration given to the child’s best interests? NO (Hawthorne wins)HoldingDécary (Rothstein concurring) Standard of review is reasonableness. If the officer has reasonably balanced the factors, it is not for the

Court to consider balance btwn child’s best interest and the public interest. But the officer was not alert to the child’s best interest in summarily rejecting her concerns and ignoring

the financial implications for her of H’s removal.Evans (concurring in the result) Grapples with difficulty that arose since Baker and Suresh. Now Js are not simply looking to see if the

decision-makers have considered the right factors, but also the weight given to the factors in any given context.

He goes around this question and finds that instead of considering child’s best interest, the officer simply considered her interest. Basically, she asked the wrong questions and did not see the difference btwn considering the effects of deportation on a child and the child’s best interest.

The officer having fallen into error before she weighed the H&C factors against law enforcement considerations, the statement in Suresh that Baker does not permit the Court to weigh the various factors is cast aside and obviated.

Discretion will only be overturned if made on the basis of irrelevant factors, improper purpose Courts will usually stop though at making sure that they took into account all of the relevant factors &

no irrelevant factors they do not look at how much weight is put on each of the facts

Approaches to Discretion:1) Balancing approach (Suresh): Front line decision-makers make decisions on basis of balancing

factors, decide which factors have more weight, then come to final determination.

From Hawthorne: In Suresh, the Court stated that Baker was not to be read as authorizing a court, under the guise of review for unreasonableness, to reweigh the factors that the officer had taken into account when determining an H & C application.

2) Constitutional/rights-based approach (Baker): Although there may be need to weigh factors, what is critical to recognize is the fundamental interest that the law is seeking to protect (children’s best interests). Once this is done, it is a question of seeing whether there are any considerations that justify an infringement of that fundamental interest. This asks us to apply something similar to a

95


proportionality approach ((a) rational connection, (b)minimal impairment, (c) effects to the children outweighed by the other consideration)

Note, in Europe, this kind of proportionality analysis is applied to all admin decisions Baker doesn’t tell us that we have to apply an Oaks analysis but it is not dissimilar to that

either – justifying infringement against this fundamental factor The first test is a careful consideration and characterization of the interest at stake – evidence

of what the interest is can be found in the three indicia (ministerial guidelines, international law, purpose of the legislation)

NOTE: Best interest of the child can be characterized as a question of law.

16.2 Discretion and the Constitution: the Charter and Underlying Principles of the Constitution

Before the Charter, it was a matter of presumption that the legislature did not intend a discretion to be exercised so as to curtail basic liberties. The rights protected included freedom of speech and association, the right not to have one’s property expropriated without compensation, and the right to earn a living.

The Charter improves the protection of individual rights in at least 3 ways :1. Charter identifies, albeit not exhaustively, those rights that, bc of constitutional entrenchment, are

to receive particular protection.2. Section 1 makes it clear that Charter rights are not absolute, and may have to be accomodated to

other claims.3. Charter operates independently of statute, so it will normally prevail over even express statutory

language authorizing the curtailment of Charter-protected rights.

Note that there is a strong relationship between admin law and constitutional law with respect to the control of discretionary power and the restriction of fundamental rights.

Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038

Facts: D was radio time salesman. He was fired and he filed a complaint. An adjudicator was appointed. The adjudicator found that the “major complaint” was D’s failure to achieve monthly sales budgets. But

no evidence backed this up. Adjudicator asked for disclosure of the “real reason for dismissal” but none was given.

Adjudicator ruled there was no just cause for dismissal and ordered payments and that Slaight draft a recommendation letter with certain provisions. This letter was the only thing Slaight was to give when asked for references re: D (ie gag order)

Issues Does Labour Code allow adjudicator to order the employer to give the employee a letter of reference of

specified content and to order the employer to say nothing further about the employee? Does this infringe or deny freedom of speech? Is it justifiable under s.1? YES. YES. (Davidson wins)HoldingDickson CJ Administrative law unreasonableness, as a preliminary standard of review, should not impose a more

onerous standard upon govt than would Charter review. Freedom of expression is infringed since Slaight is prevented from expressing its opinion as to the

qualifications of D beyond the facts set out in the letter. Must go to s.1 analysis (Oakes Test)Importance of the Objective

96


The objective sought, achieved by the positive order (the letter), was contracting the effects of the unjust dismissal by enhancing the ability of the employee to seek a new job without being lied about by his previous employer. The negative order seeks to achieve this same goal, as a complement and reinforcement of the positive order.

Adjudicator’s remedy in this case was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists btwn an employer and employee. In doing so, he prevented the unequal balance to continue even after the employee’s termination and into his search for a new job.

The court’s role is to avoid constitutionalizing inequalities of power such as this one. In this case, protecting the freedom of expression would amount to continuation of an abuse of an already unequal relationship.

Proportionality1) Rational connection: negative order is rationally linked to the objective, no less than the positive

order. It ensures that Slaight didn’t subvert the effect of the letter by unjustifiably maligning D in the guise of giving a reference.

2) Minimal impairment: there was no less intrusive way that the adjudicator could have taken and still have achieved the objective. Negative order seeks to prevent S from passing on an opinion. This prohibition is limited since the letter will only be sent when requested by prospective employers. Besides, the letter cannot be said to have a great beneficial impact on D’s job hunt. Adjudicator went no further than necessary to achieve the objective.

3) Deleterious effect: the effects of the measures are not so deleterious as to outweigh the objective of the measures.

Normally, the suppression of the freedom of expression is a serious infringement of the Charter and only outweighed by very important objectives. Here, the negative order was minimally intrusive in a relative sense and the order’s balance makes this a less serious infringement – and so it is saved by s.1

Lamer J (dissenting in part) The letter of recommendation is factual and thus ok. But the gag-order isn’t. Ordering the letter was not unreasonable, and so it is not the function of the Court to examine its

appropriateness or substitute its opinion for that of the adjudicator, unless the decision impinges o na Charter-protected right.

Gag order can be construed as expressing Slaight’s opinion (by saying nothing). This is unreasonable. Parl could not have intended such an unreasonable use of the discretion conferred by it. This use of

discretion is never absolute, is subject to review, and can no be exercised unreasonably by the Tribunal.

Adjudicator, in ordering silence, made a patently unreasonable decision and thus lost his jurisdiction. An adjudicator exercising delegated powers does not have the power to make an order that would

result in an infringement of the Charter, and he exceeds his jur’n if he does so. It is only if the limitation on a right or freedom is not kept within reasonable and justifiable limits

that one can speak of an infringement of the Charter. When applying the two bolded principles above to the exercise of discretion leads to one of the

following situations:1) The disputed order was made pursuant to legislation which confers (expressly or implied) the

power to infringe a protected right.i) It’s then necessary to subject the legislation to Oakes test to see if it is a reasonable limit that

can be demonstrably justified in a free and democratic society.2) The legislation pursuant to which the administrative tribunal made the disputed order confers an

imprecise discretion and does not confer (expressly or implied) the power to limit Charter rights i) It is then necessary to subject the order to Oakes test to see if it is a reasonable limit that can

be demonstrably justified in a free and democratic society(1) If it is not justified, the admin tribunal has necessarily exceeded its jur’n(2) If it is justified, then the admin tribunal has acted within its jur’n.

97


Here, the order made by the adjudicator is exercise of discretion given to him by statute. Positive order satisfied the Oakes test. Negative order, similar to Dickson CJ, are saved by s.1. But he

reaches this by first doing an administrative law approach to the question, and not a Constitutional one right away like Dickson.

Beetz J Both parts of the order violated section 2(b) of the Charter and could not be justified under s.1

Lalonde v. Ontario (Commission de restructuration des services de santé) (2001) Ont.CA

Facts: Montford was Ottawa’s only francophone hospital. It sought JR on decision to downsize hospital

alleging this was a violation of ON’s French Language Services Act (FLSA) and the unwritten Constitutional principle to respect and protect minorities.

Issues1) What is the relevance to Montford of the principle to respect and protect minorities?2) Do the Commission’s directions violate the French Language Services Act?3) Are the Commission’s directions reviewable pursuant to unwritten constitutional principles?

HoldingWeiler and Sharpe JJA (Rivard concurring)Issue 1 (Relevance to Montford) The principle of respect and protection of minorities is a fundamental feature of the Constitution that

explains and transcends the minority rights that are specifically guaranteed in the constitutional text. ON argues that text of specific language rights doesn’t give minority right to a French hospital, and that

courts have no role in adding to protected rights. Lalonde argues that given Montford’s importance as cultural, social and educational insitution in

minority’s struggle for survival, the Consitutional principle may be invoked as basis for review. What is at issue is whether a certain conduct of govt agency falls within the parameters of what’s

permitted under the Constitution. There is a difference btwn the validity of legislation and the possibility of unconstitutional behaviour under legislation.

The Constitution’s structural principle of respect for minorities is a bedrock principle that has a direct bearing on the interpretation to be accorded the FLSA and on the legality of the Commission’s directions affecting Montford.

Issue 2 (Violation of FLSA) Before limiting Montford’s services as a community hospital, ON must also have taken “all reasonable

measures” to comply with the Act. But the direction didn’t – it violated s.7 of the Act. Discretion is not absolute, and so the Commission cannot issue a directive removing available servies in

French from Montford, when there is no other alternative for the Fr community, without complying with the “reasonable and necessary” requirement of the FLSA.

Commission’s directions fail to respect the FLSA requirements.Issue 3 (Review under Unwritten Constitutional Principles) Commission had broad statutory discretion, but “there is no such thing as absolute and

untrammelled ‘discretion’” This case engages the constitutional principle of respect for and protection of minorities, and failure to

take into account a fundamental principle of the Constitution when purporting to act in the public interest renders a discretionary decision subject to judicial review.

If implemented, the Commission’s directions would impair hospital’s role in the community, and this would be contrary to the fundamental constitutional principle of protection of minorities.

The directions are entitled to a high level of deference, but they are by no means immune from JR. Deference does not protect decisions that impinge on fundamental Canadian constitutional values without offering justification.

98


Correctness or reasonableness are the correct standards where constitutional or quasi-constitutional rigths or values are concerned. But consideration of this standard is not necessary bc the directions cannot survive even the most deferential standard since Commission refused to take into account Montfort’s broader institutional role (directions had failed the test of patent unreasonableness at the Divisional Court level).

Decision Commission’s directions quashed on the grounds that, in the exericse of its discretion, it failed to give

serious weight and consideration to Montfort’s role in the survival of the Franco-Ontarian minority, contrary to the constitutional principle that protects minorities.

Notes This possibility of review of discretionary decisions on the basis of fundamental Canadian

constitutional and societal values is set ought by the SCC in Baker. (“discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter”)

What this case does is extend it to the realm of the unwritten consitutional norms. Upshot of reasoning is that given that Minister did nothig to justify the virtual closure of the hispital,

and much less anything to justify that closure taking into account the effects it would have on the Ottawa francophone minority, the decision was patently unreasonable. Bc it was PU the court didn’t need to go through standard of review, bc even under most deferential standard, the order must be quashed

1- What if Minister had said he had taken into consideration the effect it would have on the minority, but nonetheless made the decision that he made?

2- What is the weight and or role of international law?

EFD’s Comments: Discretion must be exercised in a way that is sensitive to unwritten constitutional norms. The degree of sensitivity, presumably, may vary depending on the standard of review the court adopts. In Lalonde there was no sensitivity, and so the Court found that the exercise of discretion would fail this test even on the most deferential standard of patent unreasonableness. Since the principles at issue are unwritten constitutional principles, my guess is that the court would usually say that a standard of correctness applies to review of the weight to be given them – courts are happy to review weight on constitutional matters.

And then the pragmatic and functional test would have to be run again to determine the proper standard of review of the substantive issue that has to be addressed within constitutional limits (eg, the issue of closing down the hospital with sensitivity to minority rights).

What is a bit curious about Lalonde, however, is that the Court seemed to suggest that it is at least conceivable that even on this quasi-constitutional question concerning unwritten constitutional principles, the standard of review could be patent unreasonableness…)

99


17. Application of International Human Rights Law

BAKER V MINISTER OF CITIZENSHIP & IMMIGRATION (1999) SCC – International Law

Facts: Ms Baker, a citizen of Jamaica, entered Canada on a visitor permit, but overstayed illegally for many

years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered. She is now sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if she is deported).

When discovered to be living in Can. illegally she is ordered to be deported under the Immigration Act. Immigration Officer’s notes appear inflammatory e.g. capitalized her total number of children (4 in

Canada, plus 4 in Jamaica), says she will be a “tremendous strain on our social welfare system”, say that fact she is still in Canada is an “indictment of our system”, and “Canada can no longer afford this kind of generosity”, recommends refusal but warns of “potential for adverse publicity”.

The Convention on the Rights of the Child says that “in all actions concerning children… the best interests of the child shall be a primary consideration.”

The Minister’s guidelines for making H & C decisions echo this value of children’s interests. Decision: L’Heureux-Dube JIn this case, the appropriate standard of review is reasonableness simpliciter. Intl treaties and conventions are not part of Canadian law unless they’ve been implemented by statute. “Nevertheless, the values reflected in international human rights law may help inform the contextual

approach to statutory interpretation and judicial review.” This is supported by the statutory interpretation doctrine that “the legislature is presumed to respect the

values and principles enshrined in the international law, both customary and conventional.” (Driedger on the Construction of Statutes)

The Convention on the Rights of the Child, UN Declaration of the Rights of the Child, and Universal Declaration of Human Rights all support the requirement that children’s best interests be taken into account in decisions of a humanitarian nature.

This approach is also reflected in the Ministerial guidelines. Taken together, these indices evidence a requirement that the applicant’s children’s interests must be

treated as an “important factor” and given “sufficient weight” – that is “the decision-maker must be “alert, alive, and sensitive to” Baker’s (or any applicant’s) children’s interests.

This requirement must be qualified by stating that “the Act gives the applicant no right to a particular outcome or to the application of a particular legal tests, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instrument.” As long as “the decision [is] made following an approach that respects H&C values,” it will stand.

“That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even where children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and Minister’s guidelines, the decision will be unreasonable,” as it is here.

Dissent: Iaccobucci J. Agrees in the disposition, but differs on use of international law instruments. If “an international convention ratified by the executive branch of government is of no force or effect

within the Canadian legal system until such time as its provisions have been incorporated in to domestic law by way of implementing legislation,”the executive “is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parl.”

100


Ahani v Minister of Citizenship & Immigration (2002) Ont CA

Facts: Ahani, a recognized Convention refugee, was found to be a terrorist and ordered deported. On the basis of a risk of torture if returned to Iran, he challenged the deportation order all the way to the

SCC and lost. He then sought relief from the Human Rights Committee under the Optional Protocol of the Int’l

Covenant on Civil and Political Rights (ratified, but not implemented). The HRC asked Canada to stay the deportation until they concluded their process. Canada refused.

Ahani then filed for an injunction to stay the deportation, claiming (1) that s. 7 (fundamental justice) guarantees him the right not to be deported until the Committee has

considered his communication and (2) a legitimate expectation that he would not be deported until the HRC has ruled.

Decision: Laskin J.A.s. 7 – fundamental justice Regardless of other circumstances, Ahani is a Convention refugee, therefore his “life, liberty, and

security of the person” is engaged in a deportation. However, no principle of fundamental justice is breached:

o Even though international human rights commitments may inform the content of Charter rights, Ahani is seeking to use s. 7 to indirectly enforce an international convention that has not been implemented by legislation.

o It was clear when signing the Optional Protocol, that Canada would not be bound by the HRC’s decisions or interim orders and that there was no binding obligation to stay deportations until these proceedings finished.

The courts should be aware of their proper role and recognize that they are not competent to assess the balancing of the many international obligations of that the Executive branch carries out in its area of foreign relations expertise. Furthermore, constitutionalizing treaty obligations may make Canada wary of signing similar human rights instruments in the future.

To give effect to Ahani’s position would convert a non-binding request in a (non-ratified) Protocol into a binding obligation enforceable in a Canadian court, and more, into a constitutional principle of fundamental justice. This is an untenable result.

There is no basis in domestic nor intl law to ask a Canadian court too prevent Ahani’s deportation.Legitimate expectations Legitimate expectations is limited to procedural fairness. It does not create substantive rights. Here, Ahani does not seek procedural rights from the HRC, but a substantive right to stay during the

HRC proceeding in Canada. In coming to its deportation decision, Canada has afforded Ahani adequate procedural rights all the way to the SCC. To stay the proceedings now would be to recognize a substantive right to stay during analogous external legal proceses.

Nothing in Canada’s past dealings with HRC interim requests evidences a past practice that can be relied on.

Dissent: Rosenberg J.A. While there can always be overriding public concerns, it is an accepted principle of fundamental justice

that the state cannot frustrate a right to review through executive action. It is hypocritical of the executive to sign an international treaty and then hide behind the principle that

ratification without implementation is of no legal force or effect. Instead, the executive can be seen as having conferred jurisdiction on the international body.

The test for interlocutory injunctions can be used to provide a balance the individual and state interests. Govt can show justification that a “balance of convenience” favours deportation in the circumstances.

101


The majority’s decision has a stricter reading of the obligations that flow from international agreements, particularly those that are signed but not ratified. This seems to go counter to the spirit of Baker.

Dyzenhaus, Hunt, Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation

[Essentially they argue for exactly what is behind (but not explicit in) Rosenberg’s judgement in Ahani.]Thesis: The ‘dualism’ involved in separating the spheres of ‘domestic law’ and ‘international law’ is the same

dualism evidenced in the rest of administrative law b/t the roles of the courts in upholding fundamental common law principles and the roles of legislatures in conferring discretion and determining its limits.

Under the principle of legality, broadly expressed discretions are subject to the same fundamental values, including values expressive of human rights, of the common law.

The principle of legality is an extension of the culture of justification, a conception of democratic legal culture in which decision-makers are obliged to justify their decision by showing either how the decisions conform to fundamental values or that they are justifiable departures from these values. o The legitimacy of this kind of review comes from the interpretive principle that, as far as possible,

statutes should be interpreted in a manner consistent with international law. Although this principle was relegated to situations of ambiguity or constitutional values, this seems to be a by-product of the response to positivism and a lack of legitimacy in early judicial interventionism. When the approach described in the article is properly applied, there is no reason to believe that it would no accord with the legislature’s express or presumed will or that it will inappropriately constrain the discretion granted thereby.

Ultimately, this means that “judicial review of such decisions should focus on the question of whether the reasons given by the decision-maker are capable of justifying the decision and not solely [focus] on the decision itself.”

This requires 2 counterbalancing duties:o A meaningful duty to give reasons from decision-makers (i.e. a substantive duty)o Deference by the courts to those reasons as seen in the idea of “deference as respect”

“The combination of both duties makes decision-makers accountable to fundamental values without squeezing out the space for exercise of their discretion.”

This also leads us to/requires that the principle of legality be thought of as a constitutional principle – that administrative law be constitutionalized. However, this would be a constitutionalization similar to recent Charters, “where the legislature is given a legitimate role in either determining the content of constitutional values or even in determining when such values are justifiably overridden.” [i.e. a complement to deference under an Oakes-like test is a unification of administrative law under this approach]

Notes: This debate has taken form in the context of the Convention on the Rights of the Child in all jurisdictions

except the UK, where the European Convention on Human Rights and its associated court have assumed an important role.

Different jurisdictions have made different inroads towards giving intl HR treaties a role to play:o NZ – Tavita – treaties could treated as mandatory relevant considerations or “starting points”o Australia – Teoh – ratification could create a legitimate expectation the treaty would be followed

unless an express statement had been made that it wouldn’to Canada – Baker – decisions are unreasonable when they dismiss treaty obligations

Only in UK does something truly resembling principle of legality in a constitutional sense seem to arise. All these attempts to expand judicial review, due to an attempt to maintain legitimacy, produce more

dichotomies, contradictions, and hollow requirements: there is a duty to give reasons, but any reasons will do; a relevant factor must be considered, but ticking a box that names that factor is sufficient; only

102


procedure is protected when the substance evidences contempt for the procedural requirements; constitutional values will be protected to a standard of correctness, but common law values must then cede deference to a fault. This is why a unifying approach is valuable.

18. Discretion, Rulemaking and “Soft Law”Rulemaking is essentially “subordinate legislative power”. Regulatory agencies with rulemaking powers are “governments in miniature.” It has become far more important than regulations and, arguably, discretion in its nature as the “cutting edge” of public power. Rulemaking is necessary because “it is unrealistic [and impractical] to expect legislatures to deal with implementing detail in their legislation.”

Despite a recognition of its importance in the exercise of public power and the need for effective accountability and transparency, rulemaking has remained almost completely untouched by judicial review. This is a result of two factors: (1) the courts have not been able to analogize to their own judicial process, making it difficult for them to envisage a procedural design appropriate to multi-party rulemaking and (2) it has been perceived as analogous to the “legislative functions” that courts have not been prepared to spread procedural fairness requirement to (e.g. Inuit Tapirisat). However, where the judicial analogy seems compelling, as where a by-law has a specific ipact on specific individuals, the courts may be willing to impose procedural requirements such as a hearing (e.g. Homex). Nonetheless, rulemaking can have an indirect effect on judicial review by providing a basis on which to assess the reasonableness or the mandatory relevant considerations involved in the exercise of discretionary power.

In this context, consultation requirements have been the focus of how to deal with rulemaking. All sides seem to agree that consultation is a good thing. They differ on how formal the requirement should be made. The early attitude (1960’s) was that it should be left informal and unstructured. In the 1970’s, there arose an acknowledgement that consultation was not only a “good thing” for democratic reasons, but it also promoted success of regulatory objectives and compliance with resulting rules. Informality was still valued and formal constraints on regulators deplored, but support grew for loose notice and comment requirements. In 1986, Quebec enacted the Regulations Act, which prescribed a 45-day notice and comment period for any proposed regulation, with exceptions under certain circumstances. The federal government created such requirements on a statute-by-statute basis and then began a practice under Mulroney of an annual and thorough exercise of consultation for all proposed or foreseeable regulations. The Liberals did away with most of this plan, but some of these practices continue in annual reporting requirements. Ontario had also proceeded on a statute-by-statute basis, although this was shown not to be working in practice. However, a crisis involving the Ontario Securities Commission had a broad impact on rulemaking in general in Ontario. A report on reforming the OSC proposed a robust notice and comment procedure including requirements of publishing detailed supporting statements for the regulation, a summary of public comments received, a reply by the commission, and the possibility of oral hearings. Exceptions to this process would be made only for urgent, interim measures that would last only 9 months maximum. Most of these measures were implemented in the Act that followed the report. Although such notice and comment provisions are still uncommon in Ontario legislation, they are becoming more prevalent in recently-created agency statutes.

Broader Issues in Rulemaking GovernanceSeveral major recurring (procedural) issues arise in deciding on a participatory rulemaking scheme:

(1) Timing - When should consultation take place? If it is too early, agencies might not have much information for a public response and this may invite speculation about hopes and fears. If it is too late, the agency may be reluctant to tamper with a well-developed proposal.

(2) Quantity - How much consultation should take place? Practical considerations start to outweigh the benefits of consultation if carried too far.

103


(3) Whom – How do we define the nature of an “interest” which is entitled to be represented? Identifying who should be consulted depends on the relationship between the agency the affected parties and the public, among others. Practical considerations and procedural choices may also influence this factor. For example, there may be a different class of parties depending on the procedure chosen (e.g. written submissions vs. oral hearing).

(4) Inequalities in influence – There also exists the more complex question of how to prevent more dominant groups from exercising excessive pressure upon the rulemaking authority. Agency “capture” is a common problem where the regulator begins to serve the interests of the group it is meant to regulate rather than advancing the public interest. Although participatory rights seem to entrench an inequality, they at least provide a system for less advantaged groups to have some influence.

(5) Context – The may be areas where participatory rights are not suitable. They are but one tool in the arsenal of accountability. It may hinder the regulatory goal or other checks and balances. For example, consider the difference between managing “bureaucratic rationality” (i.e. efficient processing of claims) and deciding upon rights-based “entitlements”. The latter obviously favours procedural requirements while the former is more concerned with a regulatory goal.

Four Specific Rulemaking Issues:(1) Confidential Submissions – Two fundamental principles collide here: transparency

and broad participation. The OSC decided to leave it to be decided a case-by-case basis whether confidential submissions could be accepted and whether the weight of these submissions would be discounted.

(2) Exceptions – What circumstances should qualify? What level of urgency is necessary? Should exceptions be limited to “interim rules” with a short lifespan?

(3) Oral Proceedings – Written submissions tend to be preferred and are more convenient. However, there could be a limited use to oral hearings where facts are in dispute. Cross-examination?

(4) Standing to Initiate Rulemaking – Although any member of the public can request that a rule be changed, these request will be taken more seriously if it is authorized by legislation. It would perhaps not be going too far to require the agency to seriously consider and subject to notice and comment a properly formulated request.

19. Agency Jurisdiction to Determine Constitutional Matters

Cooper v Canada (Human Rights Commision) (1996) Ont CA

Facts: Cooper and Bell, airline pilots for Canadian, were forcibly retired at age 60 according to their collective

agreement. They filed a complaint with the HRC that they were discriminated on the basis of age. Canadian

responded that s. 15(c) of the Act stipulated that it was “not a discriminatory practice if… an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual.”

The HRC appointed an investigator. However, in the middle of the investigation the SCC came out with the McKinney decision that upheld forced retirement of University professors at age 65. Cooper and Bell argued that s. 15(c) was against the Charter and that McKinney was inapplicable to their case, but the HRC declared that it was bound by McKinney and thus an inquiry was no longer warranted.

Cooper and Bell sought judicial review. The courts assumed that s. 15(c) would apply to Cooper and Bell’s case.

Issue:

104


Did the HRC have the jurisdiction to find s. 15(c) unconstitutional? Either:o the provision was operative and the HRC did not have jurisdiction or o the section is inoperative and they could hear the complaint including Charter arguments.

Decision: LaForest J. “The essential question facing a court is one of statutory interpretation—has the legislature, in the case

Parliament, granted the administrative tribunal through its enabling statute the power to determine questions of law?... If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) [of the Charter] that it must be able to address constitutional issues, including the constitutional validity of its enabling statute.”

“With the exception [of the power to interpret its own enabling statute], there is no explicit provision in the Act giving the Commission power to determine questions of law. Nor is there anything in the scheme of the Act to imply that the Commission has this power.” The fact that the HRC’s role is to screen applications and that it is not an adjudicative body is instructive.

“The practical advantages in having the Commission consider the constitutionality of its own statute are limited.” Once again, the HRC is not an adjudicative body and is not bound by the traditional rules of evidence. Also, the accessible, efficient and timely disposition of complaints by the HRC would be thwarted by allowing parties to raise constitutional issues before it. It would be more efficient for the parties and the system to have a complainant seek a declaration of constitutional invalidity in a Federal or superior court. Finally, the HRC does not have any relative expertise in determining questions of law. (Mossop)

If the HRC does not have jurisdiction to deal with constitutional matters, it logically follows that a tribunal appointed by it cannot either. A tribunal could never be appointed without the HRC exceeding its jurisdiction and having considered a constitutional matter when forwarding the complaint.

Concurring: Lamer C.J. The basic principle that gives tribunals with jurisdiction over general questions of law the further

jurisdiction to consider constitutional grounds by virtue of s. 52 of the Constitution Act, 1982 ought to be re-examined.

“Although judicial review is necessary to preserve important constitutional values, in a democracy like Canada it is inherently controversial, because it confers on unelected officials the power to question decisions which are arrived at through the democratic process. For this reason, in my view, as a matter of constitutional principle that power must be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made without the parameters of guidelines established by the executive branch of government.”

“Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter in 1982. Granting the power to tribunals to refuse systemically to apply laws which violate the Charter could not have possibly been within the contemplation of Canada’s legislatures.”

“Moreover, inferring the power to refuse systematically to apply the laws which violate the Charter from the power to interpret and apply the general law strikes me as profoundly illogical. A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal’s enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary. But it is very hard to imagine a situation in which a legislature would know that it was passing constitutionally suspect legislation. If anything, the presumption of constitutionality seems to suggest that legislatures assume the constitutionality of their enactments. In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to the legislation the power to hold various provisions of the legislation inoperative. Surely, a legislature

105


intent on passing a constitutionally suspect law would not plant within that law the seeds of its own demise.”

To decide otherwise would also thwart the separation of powers and parliamentary democracy:o The de facto equivalence between refusing to apply a provision and a judicial declaration of

constitutional invalidity shows that tribunals are usurping the roles of the courts. o Through tribunals’ application of the Charter, the executive can defeat the laws of the legislature.

Dissent: McLachlin J. “The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The

Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decision of these tribunals. If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it. But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counterindications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of its enabling statute unconstitutional.”

“It behooves this Court to ask why every party with a stake in the matter urges this Court to find that the Human Rights Commission may deal with the issue of the constitutionality of the “normal age of retirement” exemption in one way or another. The answer, I venture to suggest, is that this is the result which best achieves the economical and effective resolution of human rights disputes and best serves the values entrenched in the Canadian Human Rights Act and the Charter.”

Notes: Why is the HRC disabled from considering such issues of constitutionality validly but the Ontario

Labour Relations Board (Cuddy Chicks) and a labour arbitrator under a collective agreement (Douglas College) are not? This question has been problematic since Cooper.

This summary was graciously provided by:

Martin Doe and Miguel Bernal-Castillero

Please show your gratitude by making your own summaries (or modifications of this one) available on PUBDOCS.

106

Documents

Judicial review of administrative action *Professor Fox-Decent