Admin Summary

8/4/2019 Admin Summary

http://slidepdf.com/reader/full/admin-summary 1/116

1

Administrative Law Overview

relationship between courts and administrative bodies (executive)

- administrative decisions subject to review from the courts

o judicial review

Judicial Review- an individual challenges a governmental decision in the courts (common law tradition)

Who is subject to judicial review

- administrative/statutory decision makers

o eg., cabinet, tribunals

- someone who traces their authority to a statute is subject to admin law and judicial review

Separation of Powers

- legislature

o delegates decision making power to the executive

- executive

- courts

o interprets terms to which the legislature has delegated to the executive

terms of the statute that delegate where there is ambiguity and silence

- Sovereign

o as a person and as an office

o office that endures beyond the person

o representative of the sovereign Governor General

o power of the sovereign diminished over time

checks and balances put in place

Parliament

- historically not democratic; rule by lords (property owners)

- separate from the sovereign- ultimate authority of law subject to the constitution

- lays out the powers of administrative action

Privy Council

- top federal civil servants who advise the PMs Office

No clear cut separation of powers

- parliament (legislative)

o putting parliamentary agencies in place (executive function)

o eg., information commission, privacy commissioner, elections Canada, human rights

commissions- administrative bodies (executive)

o legislating bylaws and regulations (legislative function)

subsidiary legislation

o tribunals established by admin bodies (judiciary function)

- courts (judicial)

o interpretation and application of legislation (legislative function)

Sources of Admin Law

- statutes and subsidiary legislation (bylaw and regulations)



2

- common law

o standard of review analysis

to what degree the court should defer to the decision of an administrative actor

o procedural fairness

all statutory decision makers must afford procedural fairness

y how much fairness: depends on the context

right of notice and reply right to decision by an impartial decision maker

- constitution

o Constitution Act 1867; s7 of the Charter

division of powers: federal or provincial

s 7

y life liberty and security of person

y principle of fundamental justice

o includes procedural fairness

- policies and practices of administrative decision makers

Hierarchy

- constitution statutes common law policies/practices

Day to Day Practical Relevance

- policies/practicesstatutescommon lawconstitution

Distinct from Criminal Law

- does not involve the application of penal sanctions, ie, the deprivation of liberty

- different level of procedural fairness; not as high as criminal procedure

o right of notice and reply

o right to a decision by an impartial decision maker

Private Actors

- not subject to administrative law unless carrying out a statutory power or governmentalfunction

- eg. Technical Standards & Safety Authority (TSSA) and the downsview explosion

o criticism: inadequacy of its inspection program

TSSA not independent from industry (it was prior to 1996)

should operate within a ministry for greater transparency

y and therefore would be subject to administrative law

Key Concepts

- statutory decision maker

- tribunals v agencies

- judicial reviewo application/challenge pursuant to statutory right of appeal or common law

o appeal to the courts

- deference standard of review

o courts will be cautious in overturning administrative actors in matters of substantive

review

- questions of law

decline to defer;

- questions of fact

likely to defer



3

- questions of mixed fact/law

very difficult to distinguish

- rules vs discretion

o whether one should use rules(clear cut) or discretion (principle or guideline)

- polycentricity

o consideration of wide ranging issues

o wide ranging implications- fairness (procedural; substantive)

o decision making process vs outcome

pragmatic and functional review =standard

correctness, reasonableness, patent unreasonable

correctness and reasonableness

Public Law

- who decides what should happen when a decision is going to be made when it has implications

for others besides the person making the decision

o e.g., police officers stops you for a traffic infraction

- normative

o who should decide

to award a Nobel prize

to go to war

to set interest rates

to expropriate a piece of property

to appoint a superior court judge

o defer to certain institutions to make decisions that affect us

o in some cases, decisions are delegated to quasi-autonomous independent bodies from

parliament deference to expertise and impartiality; bodies that are not subject to public

sway

Who should decide

Legislature

- representation and accountability

Administration

- expertise, speed, organizational capacity

Courts

- independence, direct participation by the affected parties

Each actor is defined also by its distinctive method of decision making

- courts adjudicative process

Concepts & Debates

- is admin law about giving tolls to government to carry out the collective will of the people

- controlling and hckeing the abuse of governmental power

- judicial review ensures tha t governmental power is not abused

Two key concepts (AV Dicey) rule of law and parliamentary sovereignty expert (late 1800s)



4

- Parliamentary Sovereignty

o positive and negative concept

power of parliament to make any rule it wishes so long as it accords with its own

procedure

courts may not rule on the legality of what parliament has decided

s 52 of Constitution Act

y gives court the ability declare a law of no force and effecty Dicey would criticize this section since he is a proponent of

parliamentary supremacy

o formalist conception of sovereignty

sovereignty as an office or status that you have or you do not

the sovereign is not a matter of degree

- Dicey had concern over tyranny of the majority and the increase of voting rights to the working

class

- should not give wide discretion to administrative actors otherwise parliamentary supremacy

would be undermined

Dicey: The rule of law

- no one should suffer in body or in goods but for a distinct breach of law

o civil liberty and property rights emphasis

o entitled to know what the rules are before those rules are enforced against you

notice

o rules cannot be retroactive

clear, predictable

o criticism:

always some element of discretion

- government and citizens alike are subject to the general law of the land

o no one is above the law

o criticism:

something different about a public office different rights and responsibilities due to the nature of the office

rights and activities unique to government; special rights and powers as well as

restraints ie Charter only applies to state actors

- the law applying to government should be administered in the ordinary courts

o reference to Superior Courts of England and Wales

o SCC in Canada

o independent from parliament

o tenure for life

o state guaranteed salary

o administrative independence

o institutional safeguards that do not apply to any other decision making body

o as opposed to the French approach

separate court system for administrative issues

- formalist approach

o laws must be made by a set law making process

- decision making

o rule of law requires procedural fairness

- separation of powers

o role of independent courts in separation of powers



5

J. Willis The Administator as Judge The Citizens Right to an Impartial Tribunal

- Canadian commentator on administrative law

- rule of law in modern society

- rule of law can still be achieved even if Diceys criteria is not satisfied

- need to balance rule of law concerns against the complexity of modern government

o limited access to courts

greater access to justice with dedicated tribunalso need for specialized expertise

judges are generalists

require specialized decision makers

o non-judicial tribunals can be made independent and impartial

eg., OMB not appointed for life, but have a set salary, variety of institutional

safeguards, 8 year term

o more limited judicial review remains available

role should be limited to give respect to the specialized capabilities of

administrative decision makers

Willis: Models of Administrative Agencies

Income Tax Appeal Board

- in between Revenue and ordinary courts

- a poor mans travelling court

- gives greater impartiality when the revenue department makes a ruling that a taxpayer

disagrees with

- separate tribunal that exists within the government apparatus but separate from the civil

servants applying the Income Tax Act

o composed of 3 lawyers; no connection to revenue

o specialist in tax

o private sector lawyers

o sole function to resolve dispute between revenue and the taxpayer- decisions may be appealed to the Federal Court

- take decisions out of courts to enhance impartiality

Workmans Compensation Board

- workers give up the ability to sue for workplace injuries in exchange for guaranteed

compensation of accepted claims

o greater likelihood that injuries will be compensated as opposed to proving fault in tort

- employers avoid lawsuits, pay premiums to support scheme

- courts overburdened with labour/worker compensation disputes

- political deal arising out of limitations of access to justice

Public Utilities Board

- a government in miniature

- implements regulatory policy sketched out in broad statutory standards eg., according to

public convenience and necessity or in the public interest

- Dicey criticism: in the public interest wide discretion

- regulation of public utilities highly technical and specialized field

o concern that the generalist courts will get it wrong

o expert decision makers are vulnerable to

- specialized branch of government whose decision should not be reviewed in the courts



6

- always limits to discretion

The Deference Question

How should courts decide whether to defer to an administrative actor?

- via reference to clear binary rules?

- via consideration of relevant factors- via complete discretion of the individual judge

Rules vs Degrees of Discretion

- no one shall be admitted to law school

who has less achieved than an 80% average or a 75th

percentile on the LSAT.

binary

inflexible

who lacks high academic qualifications.

not clear binary

standard that entails some discretion and guidance

who has not demonstrated exceptional academic potential, extra-curricular

commitment, relevant work experience, and/ or maturity.

list of factors, each factor carries its own component of discretion

discretion should not be based on other factors

exhaustive list

can constrain and contain discretion

favoured by the SCC when courts should defer to an administrative actor

y 4 factors

o presence or absence of privative clause

o nature of the question decided by the decision maker

o expertise of decision maker

o overall context and purpose of statutory scheme

who in the opinion of the admissions committee should not be admitted. absolute discretion

however should not be abused

- but note: application of even the clearest rule involves discretion

Background to Judicial Review

- the superior courts (of each province) have inherent jurisdiction under the common law for

judicial review

- primary remedies (the common law prerogative writs):

o certiorari

o prohibition

o mandamus

o habeas corpus

- there are also statutory courts that carry out judicial review according to their statute: eg

Federal Court of Canada (est. in 1971); Ontario Divisional Court (1970)

- finally, there are statutory rights of appeal to specified courts or tribunals

For the next class: Workmans Compensation

- comparable entity today and how is it different and why



7

The Worker's Compensation Board, WSIBs predecessor was formed in 1914 through the passage of the

Workmen's Compensation Act. In 1998 the Workplace Safety and Insurance Act was passed in Queen's

Park. This resulted in the formation of the Workplace Safety & Insurance Board or WSIB which took over

the functions of the previous boardNo-fault collective liability

The present name, WSIB, charts a new course. Before, the focus was on compensating those injured or ill, due to

work-related causes. Today our mandate includes promoting the prevention of work-related injuries and illnesses.

Through the changes introduced by the Workplace Safety and Insurance Act (1998), we now oversee Ontario's

system of workplace safety education and training. We continue to administer the province's no-fault workplace

insurance for employers and their workers. As part of this system, we provide disability benefits, monitor the

quality of health care and assist in early, safe return to work for workers injured on the job or who contract an

occupational disease.

Income Tax Appeal Board

- now the Tax Court of Canada

- tax appeals no longer heard by the Tax Appeal Board

- wider jurisdiction within the realm of tax

-

attempt to maintain informality option- more separate from CRA

- judges as opposed to administrators

- access and speed vs independence

Workmens Compensation Board

The Worker's Compensation Board, WSIBs predecessor was formed in 1914 through the passage of the

Workmen's Compensation Act. In 1998 the Workplace Safety and Insurance Act was passed in Queen's

Park. This resulted in the formation of the Workplace Safety & Insurance Board or WSIB which took over

the functions of the previous board

No-fault collective liability

The present name, WSIB, charts a new course. Before, the focus was on compensating those injured or

ill, due to work-related causes. Today our mandate includes promoting the prevention of work-relatedinjuries and illnesses.

Through the changes introduced by the Workplace Safety and Insurance Act (1998), we now oversee

Ontario's system of workplace safety education and training. We continue to administer the province's

no-fault workplace insurance for employers and their workers. As part of this system, we provide

disability benefits, monitor the quality of health care and assist in early, safe return to work for workers

injured on the job or who contract an occupational disease.

- greater focus on prevention, public education

- internal appeal process

o WSIAT

o administrative tribunal

Public Utilities Board

- Ontario Energy Board

o regulates distributors

o rate setter; context of a monopoly

o achieve balance incentive to invest and consumer need

o privatization of electricity and other energy sources

- less of a shift towards an adjudicative process; courts have less expertise in this area



8

Background to Judicial Review

- substantive review and procedural fairness

- superior courts have inherent jurisdiction under the common law for judicial review

o do not rely on a statute for their powers

o derive their jurisdiction from the common law courts of England and Wales

o divisional courts however usually engage in judicial review

- if there is no administrative body appointed, may revert back to superior court for an answer- Primary remedies (the common law prerogative writs) Judicial Review Procedure Act

o certiorari

courts says to the decision maker; show me that you have the authority to make

this decision

requires a decision maker to produce a file which provides for the authority to

which the decision maker is purporting to act

o prohibition

power of court to prohibit a decision maker from carrying on a course of action

pursuant to a statute

o mandamus

requires a decision maker to carry out a particular action pursuant to a statute

o habeas cor pus

show me the body -if you have detained someone, must bring that person

before the court

y eg. prison administration

court may demand if the administration is holding someone so that it may ask

questions of that person

- there are also statutory courts that carry out judicial review according to their statute eg Federal

Court of Canada (1971); Ontario Divisional Court (1970)

o each court can exercise certain remedies

- statutory rights of appeal to specified courts or tribunals

Contextual Framework: who/where?- who exercised the power? where is the power located in terms of its statutory

source/regulatory context

Substantive Decision making: what/why?

- what was the decision? why was it taken?

Procedural Fairness: how?

- how procedurally fair was the decision taken or the power exercised

Remedy

- are potential remedies available and of use

- damages are not public law remedies

Substantive Review: Standard of Review Analysis- results and outcome as opposed to the process that led to that decision

Dunsmuir v New Brunswick, 2008, SCC 9

two key aspects for substantive review

- how to decide on the standard of review standard of review analysis

o whether court should defer to the decision maker

correctness standard no deference; reasonableness standard deference

- how to apply the chosen standard



9

Notably, on procedural fairness, the decision overturns the common law requirement that public

officers not be dismissed without a hearing

- Knight

o public officer who was to be dismissed was entitled to a hearing

o requirement overturned

o old: pragmatic & functional approach

- originates in CUPE [1979]

- from Baker [1999], pragmatic and functional approach was applied for all administrative

decisions

- now known as standard of review analysis

Pre-Dunsmuir: Pragmatic and function approach

- too complex and abstract of an approach

Four factors: what standard of review to apply based on the four factors

1. relevant provisions and purpose of statute

2. presence of a privative clause and/or right of appeal in the statute

3. expertise of the decision-maker

4. nature of the question: fact, law, mixed fact and law, discretionary?

o mixed fact/law: when the decision in question was such that law and fact were

inextricably entwined

Facts:

- D was a public servant and statutory office holder with the NB Department of Justice

- D was dismissed by NB without cause being alleged and without a hearing

- on dismissal, D was given 4.5 months salary in lieu of notice

- NB relied on s. 20 of C ivil Services Act : Subject to the provisions of this Act and any other Act[termination] shall be governed by the ordinary rules of contract

o whether this statute precluded review of the dismissal by an adjudicator

- D grieved the dismissal under the NB P ublic Service Labour Relations Act

o s. 97(2.1) of that Act stated:

W here an adj udicator deter mines that an employee has been di scharged or otherwi se di sci plined for

cause and the collective agreement or arbitral award does not contain a specific penalty for the

infraction that resulted in the employee being di scharged or otherwi se di sci plined, the adj udicator may

substit ute such other penalty for the di scharge or the di sci pline as to the adj udicator seems j ust and

reasonable in all the circumstances.

-

whether this statutory provision allows D to challenge the decision or whether the Civil ServicesAct trumps the NB Public Service Labour Relations Act

- D asserted that the government had in reality dismissed him for cause and that he was entitled

to seek reinstatement

- the government challenged the adjudicators authority to go behind the dismissal to ascertain

whether it was in reality for cause

- adjudicator rejected the governments challenge and determined that Ds dismissal was related

to his work performance (though it was not disciplinary) and was in fact for cause

- adjudicator ordered that D be reinstated because he was dismissed without a hearing



10

o relied on Knight

o as a matter of procedural fairness public officer entitled to a hearing prior to being

dismissed

- on NBs application for judicial review, Rideout J. applied the standard of correctness and set

aside the adjudicators decision as incorrect in law

o looks at the four factors and decides not to defer- the NB Court of Appeal applied the standard of reasonableness, rather than correctness, and

set aside the adjudicators decision as unreasonable

o defer to the decision maker however the adjudicator interpreted statute unreasonably

SCC:

- adjudicators interpretation of the Act should be reviewed on a (new) standard of

reasonableness

o defer however still overrule the adjudicators decision

- adjudicators interpretation of the P ublic Service Labour Relations Act was unreasonable

- in separate opinions, Binnie J and Deschamps J adopted a reasonableness and a correctness

standard, respectively, but agreed with the result that the adjudicators decision should be

deferred

Basic Principles

- SCC majority: [27] As a matter of constitutional law, judicial review is intimately connected with

the preservation of the rule of law. It is essentially that constitutional foundation which explains

the purpose of judicial review and guides its function and operation. Judicial review seeks to

address an underlying tension between the rule of law and the foundational democratic

principle, which finds an expression in the initiatives of Parliament and legislatures to create

various administrative bodies and endow them with broad powers.

o rule of law as a component of parliamentary sovereign

o parliament is sovereign but the courts must review whether the admin actor has the

power to make the decision it haso whether the admin actor has gone beyond its statutory power

- SCC majority: [28] By virtue of the rule of law principle, all exercises of public authority must

find their source of law. All decision-making powers have legal limits, derived from the enabling

statute itself, the common or civil law, or the Constitution. Judicial review is the means by which

the courts supervise those who exercise statutory powers, to ensure that they do not overstep

their legal authority. The function of judicial review is therefore to ensure the legality, the

reasonableness and the fairness of the administrative process and its outcomes.

o procedural fairness and substantive review

o legality on a correctness standard

o reasonableness matters you defer but review

o fairness procedural fairness

Adopting a new approach

- majority: [32] . the operation of judicial review in Canada has been in a constant state of

evolution over the years. Despite efforts to refine and clarify it, the present system has proven

to be difficult to implement. The time has arrived to re-examine the Canadian approach to

judicial review of administrative decisions and develop a principled framework that is more

coherent and workable.

Pre-Dunsmuir



11

- three standards of review

o correctness (least deferential)

o reasonableness (simpliciter)

o patent unreasonableness (most deferential)

Dunsmuir

- Correctness

- New Reasonableness

Concept of Reasonableness

- majority: [47] Reasonableness is a deferential standard animated by the principle that certain

questions that come before administrative tribunals do not lend themselves to one specific,

particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions....

- In judicial review, reasonableness is concerned mostly with the existence of justification,

transparency and intelligibility within the decision-making process. But it is also concerned with

whether the decision fallswithin a range of possible, acceptable outcomeswhich are

defensible in respect of the facts and law.

o justification, transparency, and intelligibility: reasons given for a decision

Concept of Correctness

- majority: [50] . When applying the correctness standard, a reviewing court will not show

deference to the decision makers reasoning process; it will rather undertake its own analysis of

the question. The analysis will bring the court to decide whether it agrees with the

determination of the decision maker; if not, the court will substitute its own view and provide

the correct answer.

o analysis of the reasoning that leads to the substantive outcome

3 standards to 2

- reasonableness as a spectrum

Binnie Js critique

- Binnie J: [139] Contextualizing a single standard of review will shift the debate (slightly)

from choosing between two standards of reasonableness that each represent a different level of

deference to a debate within a single standard of reasonableness to determine the appropriate

level of deference. In practice, the result of todays decision may be like the bold innovations of

a traffic engineer that in the end do no more than shift rush hour congestion from one

intersection to another.

o confusion over reasonableness standard

Factors in the Standard of Review Analysis

A.

Does the statute or existing jurisprudence indicate the standard?B. If not, look to the relevant factors:

1. privative clause (or right of appeal)

2. nature of the question

3. expertise

4. statutory purpose

Role of Precedent



12

- majority: [57] An exhaustive review is not required in every case to determine the proper

standard of review. Here again, existing jurisprudence may be helpful in identifying some of the

questions that generally fall to be determined according to the correctness standard.

- e.g. constitutional questions regarding the division of powers between Parliament and the

provinces; other constitutional issues

Standard of Review Analysis- majority: [64] The analysis must be contextual. As mentioned above, it is dependent on the

application of a number of relevant factors, including:

(1) the presence or absence of a privative clause;

(2) the purpose of the tribunal as determined by interpretation of enabling legislation;

(3) the nature of the question at issue, and;

(4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the

factors, as some of them may be determinative in the application of the reasonableness

standard in a specific case.

Privative Clauses

- purports to limit scope of judicial review

- NB Public Service Labour Relations Act (PLSRA) privative clause:

o 101(1) Except as provided in this Act, every order, award, direction, decision,

declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and

shall not be questioned or reviewed in any court.

o 101(2) No order shall be made or process entered, and no proceedings shall be taken in

any court, whether by way of injunction, judicial review, or otherwise, to question,

review, prohibit or restrain the Board, an arbitration tribunal or an adjudicator in any of

its or his proceedings.

- presence or absence of a privative clause is only one of four factors in determining whether or

not to defer

- majority: [52] The existence of a privative or preclusive clause gives rise to a strong indication of

review pursuant to the reasonableness standard. This conclusion is appropriate because aprivative clause is evidence of Parliament or a legislatures intent that an administrative decision

maker be given greater deference and that interference by reviewing courts be minimized. This

does not mean, however, that the presence of a privative clause is determinative.

- Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory

context and that administrative bodies do not exceed their jurisdiction.

- Binnie J: [143] . Chief Justice Laskin during argument once memorably condemned the

quashing of a labour board decision protected by a strong privative clause, by saying whats

wrong with these people [the judges], cant they read? A system of judicial review based on the

rule of law ought not to treat a privative clause as conclusive, but it is more than just another

factor in the hopper of pragmatism and functionality. Its existence should presumptively

foreclose judicial review on the basis of outcome on substantive grounds unless the applicantcan show that the clause, properly interpreted, permits it or there is some legal reason why it

cannot be given effect.

o assigns greater weight to the privative clause than the majority

Statutory Right of Appeal

- not mentioned by the majority.

- Binnie J: [123] In the absence of a full statutory right of appeal, the court ought generally to

respect the exercise of the administrative discretion, particularly in the face of a privative

clause.



13

o a full statutory right of appeal would weigh in favour of correctness

- Deschamps J: [163] . deference is not owed on questions of law where Parliament or a

legislature has provided for a statutory right of review on such questions.

Nature of the Question

- majority: [51] . As we will now demonstrate, questions of fact, discretion and policy as well as

questions where the legal issues cannot be easily separated from the factual issues generallyattract a standard of reasonableness while many legal issues attract a standard of correctness.

Some legal issues, however, attract the more deferential standard of reasonableness.

o if fact, discretion, policy, mixed fact and law reasonableness

- majority: [53] Where the question is one of fact, discretion or policy, deference will usually

apply automatically. We believe that the same standard must apply to the review of questions

where the legal and factual issues are intertwined with and cannot be readily separated.

- [54] . Deference will usually result where a tribunal is interpreting its own statute or statutes

closely connected to its function, with which it will have particular familiarity.

- majority: [60] . courts must also continue to substitute their own view of the correct answer

where the question at issue is one of general law that is both of central importance to the legal

system as a whole and outside the adjudicators specialized area of expertise. Because of their

impact on the administration of justice as a whole, such questions require uniform and

consistent answers.

Questions of Jurisdiction

- majority: [59] Administrative bodies must also be correct in their determinations of true

questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from

the extended definitions adopted before CUPE [1979]. Jurisdiction is intended in the narrow

sense of whether or not the tribunal had the authority to make the inquiry. In other words, true

jurisdiction questions arise where the tribunal must explicitly determine whether its statutory

grant of power gives it the authority to decide a particular matter.

o whether tribunal had the authority to make the inquiry

Expertise

- majority: [54] . Deference may also be warranted where an administrative tribunal has

developed particular expertise in the application of a general common law or civil law rule in

relation to a specific statutory context. Adjudication in labour law remains a good example of

the relevance of this approach. The case law has moved away from the strict position where it

was held that an administrative decision maker will always risk having its interpretation of an

external statute set aside upon judicial review.

Expertise/Purpose

- majority states: A discrete and special administrative regime in which the decision maker has

special expertise as a factor leading to a reasonableness standard [para 55]

Determination of Review Analysis Determination of Standard

- look to past precedent

- resort to four factors if there is no precedent

o correctness or reasonableness (spectrum)

o previous standard may live on from statute or precedent (ie. patent unreasonableness)



14

Application of Standard Outcome of Judicial Review

- judicial review will vary according to the standard employed

Whether the methodology applies only to adjudicative tribunals or to all administrative decision

makers?

- interpretation: applies globally (confirmed in Khosa SCC), not just tribunals

Alternative Approach of Deschamps and Rothstein JJ

y Deschamps J: [158]. Any review starts with the identification of the questions at issue as

questions of law, questions of fact or questions of mixed fact and law. Very little else needs to

be done in order to determine whether deference needs to be shown to an administrative body.

- [161] . when the issue is limited to questions of fact, there is no need to enquire into any other

factor in order to determine that deference is owed to an administrative decision maker.

Appropriate Standard

- majority + Binnie J.: appropriate standard was reasonableness:

o strong privative clause

o labour relations context

what the appropriate role of the courts

courts traditionally viewed hostile to labour unions and workers

attempted to insulate decisions of labour tribunals from the courts

conflict of the courts in the labour relations context

strong interest of having the conflict resolve quickly

labour arbitration is desirable since it is consensual

o legislative purpose of fast and cheap dispute resolution

o the legal question was not both of central importance to the legal system and outside

the adjudicators expertise

question of law; statutory interpretation to decide extent of the authority

bestowed upon the adjudicator

questions of law can still lead to deference- Deschamps, Charron and Rothstein JJ. would have applied a correctness standard

o little or no deference

o emphasis on question of law

Application of Standard reasonableness

- majority: adjudicators decision, based on his interpretation of the two statutes, was

unreasonable

- i.e. it did not fall within a range of possible, acceptable outcomes which are defensible in

respect of the facts and law [para 47])

- majority [para 75]:

o The decision of the adjudicator treated the appellant, a non-unionized employee, as aunionized employee. His interpretation of the P LRSA creates a requirement that the

employer show cause before dismissal.

- but is this an accurate statement?

Result

- the adjudicator:

(a) rejected the employers argument that he had no authority to look behind the

employers characterization of the dismissal as not for cause,

(b) concluded that it was a disguised dismissal for cause, and



15

(c) ordered reinstatement on the basis that D was denied a hearing.

based on Knight

- Key question: did the adjudicator have the authority to look behind the employers

characterization of the dismissal as not for cause?

- C ivil Services Act , s. 20: Subject to the provisions of this Act or any other Act, termination of the

employment of a deputy head or an employee shall be governed by the ordinary rules of

contract.o employer wants to be governed by the ordinary rules of contract; not the Knight

decision

o subject to the provisions of any other Act

- P SLRA, s. 100.1(2): An employee who is not in a bargaining unit may present to the employer

a grievance with respect to the discharge, suspension or a financial penalty.

- P SLRA, s. 100.1(3): Where an employee has presented a grievance and the grievance has not

been dealt with to the employees satisfaction, the employee may refer the grievance to the

Board who shall refer the grievance to an adjudicator appointed by the Board.

- P SLRA, s. 97(2.1):

Where an adjudicator determines that an employee has been discharged or otherwise

disciplined by the employer for cause and the collective agreement or arbitral award

does not contain a specific penalty for the infraction that resulted in the employee being

discharged or otherwise disciplined, the adjudicator may substitute such other penalty

for the discharge or discipline as to the adjudicator seems just and reasonable in all the

circumstances.

o does this language give the adjudicator the authority to decide whether the dismissal

was for cause

not clear

deference applies to legal interpretations arrived at by the decision maker

was this a reasonable interpretation that was defensible in terms of the law

y where the statutory language is not clear

y courts role is to determine whether the decision was within the range

of reasonable interpretationsCritique

- a reasonable interpretation that the adjudicator could reasonably conclude that he had the

authority to decide whether the dismissal for cause

Result

- adjudicator: The employer can use the power to terminate on notice but not as a disguised

manner of dismissing for cause. Where the dismissal is truly on notice, the only ground of

grievance is that the period of notice is too short. However, if the employer either explicitly or

under the guise of dismissing on notice is dismissing for cause, the employee can contest the

cause and, if successful, seek reinstatement.

-

SCC majority: The employer can use the power to terminate on notice even when in reality theemployer is terminating for cause. In such instances, the only ground of grievance is that the

period of notice is too short. However, if the employer purports to dismiss for cause, the

employee can contest the cause and, if successful, seek reinstatement.

- both appear to be reasonable interpretations; however the SCC rejects the adjudicators

interpretation as outside the range of reasonableness

- difference between something as correct or reasonable

Substantive review

- Privative (or preclusive) clauses and statutory rights of appeal



16

- The constitutional limits of privative clauses

o Re Residential Tenancies Act [1981]

o C revier [1981]

Privative Clauses

- statutory provisions that purport to oust the jurisdiction of the superior courts to review

decisions of an administrative body- nevertheless, the courts may intervene in spite of a privative clause to protect the

constitutionalized role of the superior courts or to ensure that an administrative body has not

exceeded its jurisdiction

- a full privative clause is one that declares that decisions of the tribunal are final and

conclusive from which no appeal lies and all forms of judicial review are excluded.

- yet a full privative clause may also exist: where the legislation employs words that purport to

limit review but fall short of the traditional wording [in which case] it is necessary to

determine whether the words were intended to have full privative effect or a lesser standard of

deference.

o P asiechnyk v. Saskatchewan ( W orker s C ompensation Board), [1997] 2 S.C.R. 890 at

para. 17

Full Privative Clause

- Ontario Labour Relations Act , s. 116:

o No decision, order, direction, declaration or ruling of the Board shall be questioned or

reviewed in any court, and no order shall be made or process entered, or proceedings

taken in any court, whether by way of injunction, declaratory judgment, certiorari,

mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or

restrain the Board or any of its proceedings.

- SaskatchewanW orker s C ompensation Act , s. 22(2):

o The decision and finding of the board under this Act upon all questions of fact and laware final and conclusive and no proceedings by or before the board shall be restrained

by injunction, prohibition or other proceeding or removable by certiorari or otherwise in

any court.

- whether the wording precludes any and all review by the court

Partial Privative Clauses

- Immigration Act , s. 76(2) (an exclusive jurisdiction clause):

o The Refugee Division has ....sole and exclusive jurisdiction to hear and determine all

questions of law and fact, including questions of jurisdiction.

sole and excl usive j uri sdiction

y meant to convey that other tribunals do not have jurisdiction to decideover this particular issue

- signals a degree of deference

- New Br unswick Human Right s Act , s. 21(1) (a finality clause):

o All orders and decisions of a Board of Inquiry are final and shall be made in writing,

together with a written statement of the reasons therefor....

o final and binding

decision maker may not revisit its decision once it is made

weighs in favour of deference



17

Statutory Rights of Appeal

- may depend on provisions in:

o the enabling Act of the decision-maker

o a subject-specific Act, e.g. Human Right s C ode

that governs this area of decision making

o general legislation, e.g. F ederal C ourt Act; Judicial Review P roced ures Act

- may indicate:o time limits

o to whom to appeal

another tribunal, specific court

o notice of appeal to specific parties

the tribunal, minister

o basis for appellate jurisdiction

question of law/fact or both

o extent of appellate jurisdiction

the power that the reviewing court has

power of the court

y confirm, vary or rescind the decision below

y order rehearing

- Ontario Health P rotection and P romotion Act , s. 46:

o (1) Any party to the proceedings before the [Health Services Appeal and Review Board]

under this Act may appeal from its decision or order to the Divisional Court in accordance

with the rules of court.

o (5) An appeal under this section may be made on questions of law or fact or both and

the court may confirm, alter or rescind the decision of the Board or the court may

refer the matter back to the Board for rehearing.

o broad statutory right of appeal : law or fact or both

Immigration and Ref ugee P rotection Act , s. 74 and 162(1):- 74. Judicial review is subject to the following provisions: (d) an appeal to the Federal Court of

Appeal may be made only if, in rendering judgment, the judge [of the Federal Court who

granted leave to appeal a decision of a Division of the Board] certifies that a serious question of

general importance is involved and states the question.

o limitation of the right of appeal

o appeal with leave from judge

- 162. (1) Each Division of the Board has, in respect of proceedings brought before it under this

Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including

questions of jurisdiction.

o partial privative clause

o each division of the board has exclusive jurisdiction

o subject to a right of appeal with leave

provincial legislature has constitutional limits as to what kinds of tribunals it can create

Constitutional Limits to Provincial Tribunals: Re Residential Tenancies Act (1981) 1 SCR 714 (Ont)

- establishment of Ontario Residential Tenancies Commission

- powers to make orders evicting tenants from residential premises and to require landlords and

tenants to comply with obligations under the Act



18

- provincial authority to establish Commission challenged by Attorney General of Canada and by

both landlord and tenant organizations

- s 96 Constitution Act

o appointment by the GG of judges to superior courts

o federally appointed

o creation of ORTC offends s 96

usurping the appointments power of the federal government displacing the role of the superior courts

ultra vires constitutional authority of the provincial legislature

Re Residential Tenancies Act

- Under s. 92(14) of the Briti sh North America Act (now the C onstit ution Act , 1867) the provincial

legislatures have the legislative powers in relation to the administration of justice in the

province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal

authority. Under s. 96 the Governor General has the sole power to appoint the judges of the

Superior Courts. Under s. 97 the judges who are to be appointed are to be selected from the

respective bars of each province. Section 92(14) and ss. 96 to 100 represent one of the most

important compromises of the Fathers of Confederation. It is plain that what was sought to be

achieved through this compromise would be destroyed if a province could pass legislation

creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of

the superior courts. (para 27)

o traditional view: provincial tribunals could not be established

o moderate view: so long as the courts maintained their authority to review questions of

o Hogg: judicature provision do not limit the creation of provincial tribunals at all

- three questions re: the constitutionality of Ontarios Residential Tenancies Commission:

1. Does the power or jurisdiction conform to the power or jurisdiction exercised by

superior courts at the time of Confederation?

a. historical inquiry

b. if yes, then

2. Can the power, viewed in its institutional setting, still be considered a judicial

function?a. what is the nature of the function of the tribunal

b. is the tribunal acting like a court in applying rules to resolve disputes

between parties

c. if yes, then

3. Is the function of the tribunal sufficiently wide-ranging or altered so as to negate the

courts exclusive jurisdiction?

a. contextual inquiry

b. ORTC was carrying on adjudicative activities

i. were the adjudicative activities incidental

- here, the Commission was outside provincial authority

-

AGO: courts are too expensive, cumbersome

new method of decision making- more accepting of provincial tribunal so long as the courts retain the ability to review the

tribunals decision on questions of jurisdiction

Crevier (1981) 2 SCR 220 (Que)

- establishment of the Quebec Professional Tribunal to hear appeals from professional

disciplinary committees

- broadly-worded privative clause precluded any recourse to the superior court against members

of the Tribunal



19

- Laskin CJC: TEST

1. Was the power exercised by superior courts at the time of confederation? Yes

2. Is it a judicial power? Yes: The [Tribunal] is not so much integrated into any scheme as it

is sitting on top of the various schemes and with an authority detached from them...

(para 17)

- role of the tribunal is to hear appeals and decide questions of law/fact and

resolve disputes in an adjudicative setting3. Has the power changed sufficiently? No.

- However the scheme might have been saved had the statutes privative clause

preserved the courts supervisory authority on questions of jurisdiction.

= unconstitutional

- j udicat ure provi sion li mit the authority of the province to create an adj udicative

tribunal and to insulate those deci sions from review on questions of j uri sdiction

Crevier

This court has hitherto been content to look at privative clauses in terms of proper construction and, no

doubt, with a disposition to read them narrowly against the long history of judicial review on questions

of law and questions of jurisdiction. Where, however, questions of law have been specifically covered in

a privative enactment, this Court has not hesitated to recognize this limitation on judicial review as

serving the interests of an express legislative policy to protect decisions of adjudicative agencies from

external correction.

The same considerations do not, however, apply to issues of jurisdiction which are not far removed from

issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to

determine the limits of its own jurisdiction without appeal or review. (para 24).

- cannot preclude review on questions of jurisdiction

Limits of Privative Clauses

- what possible justifications exist for judicial intervention in the face of a privativeclause?

o federal-provincial division of powers; especially the existing balance of

power in the appointments process (Constitution Act 1867, s. 96)

o need to ensure executive does not exceed scope of its jurisdiction as

delegated by the legislature

o danger of coordinated legislative-executive abuse of individual rights but

how much power should shift to the courts?

next class:

- expertise and statutory purpose

Expertise and Statutory Purpose- eg of deteference to a specialized tribunal/disciplinary committee in spite of a braod right of

appeal in the statute

o Southam 1997

o Ryan 2003

Southam [1997] 1 SCR 748

- Southam owned the two daily newspapers that served Vancouver and the surrounding region

- Many local newspapers also served this region

- Southam sought to undercut them by starting a competing flyer service and bi-weekly paper



20

- Southam then bought up local papers in the region

- in 16 months, it owned/ controlled 13 community papers, a real estate advertising publication,

three distribution services, and two printers

- Southam later discontinued its flyer service and bi-weekly paper

- Director of Investigation and Research of federal Competition Tribunal applies for an order that

Southam divest itself of three local papers

- Application made on basis that their acquisition by Southam was likely to lessen competitionsubstantially in the retail print advertising and real estate print advertising markets in the Lower

Mainland

o mandate: to ensure that prices of retail print and real estate print advertising are

competitive

- Competition Tribunal granted order only with respect to the real estate print advertising market

on the North Shore

o disagrees with Director

o Distinction in the order was drawn on the basis that daily and local papers were not in

the same market

- Federal Court of Appeal overturned the Tribunals delineation of markets and substituted its

own decision more in line with the Directors decision

SCC

- FCA did not show sufficient deference to the tribunal

Iacobucci J - question of mixed fact and law:

- questions of law are questions about what the correct legal test is; questions of fact are

questions about what actually took place between the parties; and questions of mixed fact and

law are questions about whether the facts satisfy the legal tests.

- In short, as the level of generality of the challenged proposition approaches utter

particularity, the matter approaches pure application, and hence draws nigh to being an

unqualified question of mixed law and fact (para 21-23).

o questions of law are highly general no deference; correctness standard

o questions of fact are highly specific

o mixed: when you apply the facts to the law

- issue: whether there was a substantial lessening of competition

o difficult to assign to either solely a question of law or fact

Questions of Mixed Law and Fact

- Dunsmuir majority (para 53): the same [reasonableness] standard must apply to the review of

questions where the legal and factual issues are intertwined with and cannot be readily

separated.

Iacobucci J expertise and statutory purpose:

- The aims of the Act are more economic than they are strictly legal. The efficiency and

adaptability of the Canadian economy and the relationships among Canadian companies and

their foreign competitors are matters that business women and men and economists are better

able to understand than is a typical judge. Perhaps recognizing this, Parliament created a

specialized Competition Tribunal. (para 34)

Iacobucci J standard of review cont.:



21

- Expertise, which in this case overlaps with the purpose of the statute that the tribunal

administers, is the most important of the factors that a court must consider in settling on a

standard of review.

- the Tribunals expertise lies in economics and in commerce. The preponderance of lay

members [on the Tribunal] reflects the judgment of Parliament that, for purposes of

administering the Competition Act, economic or commercial expertise is more desirable and

important than legal acumen. (para 35-36)o composition of tribunal: 4 fed court judges, 8 lay persons

o when deciding questions of law: 4 judges

o when deciding questions of fact or mixed fact/law: all 12 members participate in the

decision

o legislative intent

Reasonableness Standard (third standard introduced after correctness and patent unreasonableness)

- Iacobucci J. re new middle ground deferential standard of reasonableness si mpliciter

- note that the discussion of this aspect (esp. para 39-45) is now subject to Dunsmuir :

o distinction based on immediacy or obviousness of the defect (para 42) is now clearly

gone

no longer applicable post-Dunsmuir

o unclear whether admonition against courts re-weighing factors (para 47 and 51)

survives Dunsmuir

Iacobucci J defers to Tribunals conclusions re whether the papers were in the same market:

- . It is reasonable, if only reasonable, to suppose that advertisers are sufficiently discerning

about the media they employ that they are unlikely to respond to changes in the relative prices

of the two kinds of newspapers by taking their business from the one to the other.

- It is perfectly consistent to distinguish between the broadcast media and the print media on

one ground and to distinguish further between two kinds of print media on another ground.

Broadcasters attract advertisers who want to convey an image (para 53-55)

- retail print advertisingo local papers

o daily newspapers

o finding of tribunal: serve different markets

not sufficiently substitutable; no concern of lessening of competition since they

are in different markets

Iacobucci J. defers to Tribunals re weighting:

- It is possible that if I were deciding this case de novo, I might not dismiss so readily as the

Tribunal did what is admittedly weighty evidence of inter-industry competition. it is very

revealing that Southams own expert, an American newspaper consultant, identified the

community newspapers as the source of Southams difficulties on the Lower Mainland. In thatsense, the Tribunals finding is difficult to accept. However, it is not unreasonable. The Tribunal

explained that Southam was mistaken about who its competitors were. (para 64)

- is the answer reasonable vs is the answer correct

Iacobucci J. judicial self-discipline:

- I wish to observe that a reviewer, and even one who has embarked upon review on a

standard of reasonableness si mpliciter , will often be tempted to find some way to intervene

when the reviewer himself or herself would have come to a conclusion opposite to the



22

tribunals. Appellate courts must resist this temptation. Judicial restraint is needed if a

cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned. (para 65)

Ryan [2003] 1 SCR 247 (NB)

- decision by New Brunswick Law Societys Discipline Committee to disbar lawyer

o representing client dismissed from employment

o over the course of 5yrs, deceived clients into believing he had been working on theircase

- NB Court of Appeal substituted the remedy of indefinite suspension, subject to conditions

- NB CA applied standard of reasonableness but said: on the spectrum this standard is closer to

correctness than patent unreasonableness. This is particularly so, as here, when you have the

most serious of sanctions being considered

SCC

Iacobucci J:

- in spite of a broad statutory right of appeal, the Committee was entitled to deference in light of

its expertise, the statutory purpose, and the fact that the question was one of mixed fact and

law

o expertise

o stat purpose

preamble of the Act

self-regulative body

o mix fact and law

- original decision to disbar was not unreasonable

- also: there are only three standards of review, not a spectrum of innumerable standards; but

assume Dunsmuir has now changed this

Class Example Bio-Sewage Plant Authorization Act of Ontario

What is relevant to the following factors:

P rivative C lause

- s 23 decisions of the commission are in any event, final

o weak or partial privative clause; finality clause

o commission is not to revisit its own decision

o weighs in favour of deference

Right of A ppeal

- s 23 appeal to the Divisional Court on a question of law

o weak right of appeal: little deference

E x perti se

-

s22

one member: legal expertise; other members: extensive experience in sewage treatment- in this case: 2 rural planners and a law student

- 1-3 members might be legal

- s 21 professional merit, personal integrity adjudicative independence

Stat utory P ur pose

- s 1 promotion of a commercial market for biosewage products in Ontario and

- the assurance of responsible conduct by businesses allowed to operate within that market

- s 12 b-c



23

P ezi m [1994] 2 SCR 557 (BC) (additional reading only)

- interpretation of the term material change by the BC Securities Commission re: suspension of

two securities brokers

- interpretation (and suspension) overturned by BC Court of Appeal on correctness standard,

noting statutory right of appeal

- Iacobucci J: need for considerable deference given the complexities of securities regulation,the expertise of the Commission, and fact that the decision went to the core of its mandate

Post-Dunsmuir debate re: expertise and rights of appeal

Rothstein J (separate reasons), Khosa, 2009 SCC 12:

- 87. [P ezi ms] approach of judicially imputing expertise, even on questions of law, was a

departure from earlier jurisprudence that relied on privative clauses as the manifest signal of

the legislatures recognition of relative tribunal expertise.

- 88. I do not believe that the longevity of P ezi m should stand in the way of this Courts recent

attempts to return conceptual clarity to the application of standard of review. .

90. where a legal question can be extricated from a factual or policy inquiry, it is inappropriate

to presume deference where Parliament has not indicated this via a privative clause.

Binnie J (+6), Khosa, 2009 SCC 12:

- 23. Rothstein J. writes that the Courts depart[ed] from the conceptual origin of standard of

review in P ezi m. P ezi m was a unanimous decision of the Court which deferred to the

expertise of a specialized tribunal in the interpretation of provisions of the [B.C.] Securities Act ,

despite the presence of a right of appeal and the absence of a privative clause. .

- 26. P ezi m has been cited and applied in numerous cases over the last 15 years. Its teaching is

reflected in Dunsmuir . With respect, I would reject my colleagues effort to roll back the

Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in

administrative matters which further experience showed they did not possess.

Substantive review

Nature of the question/ disaggregation

- P ush panathan [1998]

- Dr . Q [2003]

- Smyth [2008] (Ont CA)

Disaggregation (additional reading)

- Lévi s [2007]

- VI A Rail [2007]

Recall Dunsmuir

Deference will usually apply automatically:

- questions of fact

- questions of discretion or policy

- questions where the legal and factual issues are intertwined and cannot be readily separated

- where a tribunal is interpreting its own statute or statutes closely connected to its function,

with which it will have particular familiarity



24

Courts will continue to substitute their own view on:

- constitutional questions

- questions of general law that are both of central importance to the legal system as a whole and

outside the adjudicators specialized area of expertise

- true questions of jurisdiction or vires

P ush panathan [1998] 1 SCR 982 (Can) general question of law correctness standard- IRB order to deport permanent resident following conviction for a serious narcotics offence

- deportation conditional on his not being a refugee

- refugee claim denied by Immigration & Refugee Board because claimant found guilty of acts

contrary to the purposes and principles of the United Nations (i.e. drug trafficking)

= an exception to the right to claim refugee status pursuant to the UN Refugee Convention

o refugee protection is not extended to individuals convicted of such acts

Bastarache J. (SCC):

- Immigration and Refugee Board erred in law by characterizing narcotics offence as contrary to

the purposes and principles of the United Nations

- here, standard of review is correctness re: the IRBs interpretation of this exception to a basic

human rights guarantee in the Refugee Convention

o distinct question of law which had to be decided by a correctness standard

- IRB interpretation of treaty: treaty provision involved basic human rights guarantee

Expertise

- displayed in various ways: specialized knowledge, familiarity with certain kinds of procedures,

method of implementation of the distinctive statutory regime

- admin decision makers are specialists relative to the courts who are generalists

- field sensivity: greater familiarity/exposure how the Act should be implemented

weak privative clause:- 76(2) The Refugee Division has ....sole and exclusive jurisdiction to hear and determine all

questions of law and fact, including questions of jurisdiction.

- did not preclude all review

limited right of appeal (from Federal Court):

- 83(1) A judgment of the Federal Court... on an application for judicial review may be appealed

to the Federal Court of Appeal only if the Federal Court has at the time of rendering judgment

certified that a question of general importance is involved and has stated that question.

- trial court certified the question

limited expertise in legal interpretation:

- The expertise of the Board is in accurately evaluating whether the criteria for refugee status has

been met and, in particular, assessing the nature of the risk of persecution. Only 10 percent of

the members of the Board are required to be lawyers and there is no requirement that there

be a lawyer on every panel. While this may not be a liability for the purposes of assessing the

risk of persecution it renders unthinkable reposing the broad definition of a basic human rights

guarantee exclusively in the hands of the Board. (para 47)

- questions the IRBs overall expertise in the interpretation of this particular question

- expertise assessed in light of the nature of the question



25

why focus on the particular question of law and not on the whole decision of the IRB? Para 47:

- why does the court disaggregate: court only focuses on one element of the decision

o depends on how the parties have framed the issues in the litigation

- this case does not involve any significant impregnation of legal principle with fact, as

demonstrated by the ease with which the reviewing court was able to extract a question of

general importance for the purposes of s. 83(1). Here, the legal principle is easily separable fromthe undisputed facts of the case and would undoubtedly have a wide precedential value.

o question of law easily separated from the factual issues at stake

- with this determination, the tribunal is in fact seeking to stifle the application of its own

expertise, rather than exercise it.

o expertise of the IRB is in deciding refugee claims, not in the particular question of law

which affected the outcome of refugee claim

o IRB did not have expertise in deciding this question of law however it affected the

outcome

o IRB must decide whether there is a risk of persecution

so, is the focus put on the question of law primarily because:

- this is what was certified for appeal based on s. 83(1)?

- the legal question has wide precedential value?

o general question of law upon which the tribunal does not have expertise which attracts

correctness

- the tribunal is limiting the scope of its own authority?

Nature of Which Question

- depending the question being asked, a different standard of review may be used

- law correctness; fact reasonableness

Dr . Q [2003] 1 SCR 226 (BC)

- isolates a question of fact; reasonableness standard employed- decision by Inquiry Committee of College of Physicians that Dr. Q guilty of infamous conduct

- finding that Dr took physical and emotional advantage of a patient based on the Committees

assessment of oral evidence + supplementary evidence

- BC Supreme Court overturned the finding as unsafe on basis that the evidence was not

sufficiently cogent

o does not mention standard of review; deference

- BC Court of Appeal upheld BC SC decision as not clearly wrong

o fails to consider deference question as well

McLachlin CJ (SCC):

-

trial judge inappropriately (implicitly) instructed herself to apply a correctness standard andengaged in a wide review of the evidence

o looked at the evidence afresh and substituted her own decision

- she in effect substituted her own views on the credibility of witnesses

- BCCA should not have deferred to the trial court

- nature of the problem a finding of credibility; quintessentially a question of fact

o between Dr Q and patient

o weighs in favour of deference

- nature of the question weighed against other factors that discounted deference (broad right of

appeal; fact that the Committee was no more expert than a court on the question)



26

- the Committees interpretations of the evidence were not unreasonable

- whether the tribunals conclusions were reasonable: plenty of evidence to support the

committees answer as reasonable

Smyth v. P erth and Smith F all s Di strict Hospital [2008] (Ont CA) isolate question of jurisdiction

- Hospitals Medical Advisory Committee recommended to Board of Directors that Dr. Smyth not

be reappointed to the hospital (as required annually)o passed a resolution that he undergo an anger management program

- S, the Hospital, and the MAC agreed to arbitration of all the disputes and matters and

differences as identified in the arbitration agreement

- the arbitration agreement referred to the factual circumstances in dispute and whether S had

complied with a Board resolution directing S to undergo a conflict resolution program

- the arbitrator ruled that S would not be reappointed but could resign

- S sought to set aside the arbitration award pur suant to s. 46(1)(3) of the Arbitration Act, which

allow s a court to set aside an award where it deal s with a di spute that the arbitration

agreement does not cover

o arbitration: a decision by two parties to take their dispute outside the court system and

have their dispute resolved by an arbitrator

- S argued, and Kershman J of the SCJ set aside the award on basis that, the arbitrator improperly

heard evidence on the disposition of Ss application for reappointment

MacPherson JA (Ont CA):

- Kershman J implicitly applied a correctness standard; this was appropriate because S raised a

jurisdictional issue, as described in Dunsmuir

o language of the Arbitration Act was jurisdictional

- however, the arbitration agreement had referred to Ss application for reappointment: this

arbitration will be the full and final determination with respect to Dr Smyths reapplication for

privileges at the Hospital

- the arbitrator decided correctly that he had jurisdiction

MacPherson JA:

- besides the issue of jurisdiction, the decision was reasonable:

o The arbitrator was a senior and experienced doctor and administrator chosen by the

parties. He received substantial affidavit evidence and heard oral testimony from the

witnesses, including Dr. Smyth. He prepared an 11-page arbitral award. He specifically

addressed the two issues [He] then summarized the situation and his views in

forthright fashion. (para 23-24):

o 4 factors helpful in deciding whether a decision was reasonable

Fact Scenario

Nature of the Question

- how would you characterize the question if you wanted the decision overturned, upheld?

If you wanted the decision overturned

- question of jurisdiction

- upheld suspension so long as the plant not exceed 5 tonnes of production did not have

jurisdiction with respect to production under 10 tonnes

- due respect for natural health



27

o not in the Act

- procedural fairness always subject to correctness

If you wanted the decision upheld

- question of fact or mixed law and fact leading to a standard of reasonableness deference

- suburban development priorities outweigh the commercial interest in this case mixed fact/law

question- reasonable grounds that one of the criteria in s 12 has not been complied

- 12 c what would be judged to be in the public interest

- reasonable grounds that the public interest have not been complied with

Substantive review

discretionary decisions

Roncarelli [1959]

Baker [1999]

Suresh [2002]

Discretion & Policy

re-call Dunsmuir (majority) re: nature of the question

- [53] Where the question is one of fact, discretion or policy, deference will usually apply

automatically. We believe that the same standard must apply to the review of questions

where the legal and factual issues are intertwined with and cannot be readily separated.

Roncarelli [1959] SCR 121 (Que)

- Maurice Duplessis: Premier of Quebec 1936-39 and 1944-59

- repression of Jehovahs Witnesses

- Duplessis ordered liquor commission to revoke liquor license of Roncarelli

- R had posted bail for Jehovahs Witnesses charged under municipal bylaws

- Act Respecting Alcoholic Liquor , s 35: The Commission may cancel any permit at its discretion

o wide power to issue or cancel liquor licenses or permitso discretionary administrative action was not traditionally reviewable by the courts

- limits to discretion introduced

Rand J:

- It is a matter of vital importance that a public administration that can refuse to allow a person

to enter or continue a calling... should be conducted with complete impartiality and integrity;

and that the grounds for refusing or cancelling a permit should unquestionably be such and such

only as are incompatible with the pur poses envi saged by the stat ute....

o a statute has a purpose and delegates powers for that purpose

o power must trace back to the purpose

o implicit in the delegation of discretionary powers is the understanding that thediscretion be used for the purpose of furthering the object of the statute

- . In public regulation of thi s sort there i s no such thing as absol ute and untrammelled

di scretion, that i s that action can be taken on any ground for any reason that can be suggested

to the mind of the ad mini strator .... Di scretion necessarily i mplies good faith in di scharging

public d uty; there i s alway s a per spective within which a stat ute i s intended to o perate....

Cartwright J (dissent, citing earlier Ashby case):

- A tribunal that dispenses justice, i.e. every judicial tribunal, is concerned with legal rights and

liabilities, which means rights and liabilities conferred or imposed by law; .



28

- In contrast, non-judicial tribunals of the type called administrative have invariably based their

decisions and orders, not on legal rights and liabilities, but on policy and expediency.

- A judicial tribunal looks for some law to guide it; an administrative tribunal, within its

province, is a law unto itself.

- privilege vs rights distinction

o rights review

o privilege not reviewable

Discretion & Polycentricity

- previously: silo approach discretionary decisions treated differently from other types of

decisions

- discretionary decisions could previously be overturned for:

o bad faith

had to show intent; difficult to prove

o wrongful delegation of powers

o fettering of discretion and refusal to address individual cases

o acting under dictation of another

o use of discretion to achieve a purpose not contemplated by grant of discretion

o consideration of irrelevant factor or failure to consider relevant factor

- since Baker [1999], discretionary decisions are subject to same standard of review analysis as

other substantive decisions

Baker [1999] 2 SCR 817 (Can)

- substantive review and procedural fairness

- deference in light of a discretionary decision

- 5 factors that dictate the general level of fairness a person is entitled to expect

- order to deport Ms Baker from Canada after 11 years in the country (illegally)

- discretionary decision by immigration officials whether to allow Ms Baker to remain on

humanitarian or compassionate considerations- childrens aid, psychiatrist, lawyer provided supporting documentation

- Ms Baker suffered from mental illness and had had four children in Canada

- application denied by officer Caden on advice from (junior) officer Lorenz

- requested reasons for decisions

o given notes of officer Lorenz

Was the denial of the application reasonable?

Baker: notes of officer Lorenz

- PC is unemployed on Welfare. No income shown no assets. Has four Cdn.-born children

four other children in Jamaica HAS A TOTAL OF EIGHT CHILDREN- Says only two children are in her direct custody. (No info on who has the other two).

- There is nothing for her in Jamaica hasnt been there in a long time no longer close to her --

children there no jobs there she has no skills other than as a domestic children would

suffer cant take them with her and cant leave them with anyone here. Says has suffered from

a mental disorder since 81 is now an outpatient and is improving. If sent back will have a

relapse.

- Letter from Childrens Aid they say PC has been diagnosed as a paranoid schizophrenic

children would suffer it returned

- Letter of Aug. 93 from phychiatrist from Ont. Govmt.



29

o Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when

was 25 yrs. old. Is now an out-patient and is doing relatively well deportation would be

an extremely stressful experience.

- Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PCs mental

condition would suffer a setback if she is deported etc.

- This case is a catastrophy. It is also an indictment of our system that the client came as a

visitor in Aug. 81, was not ordered deported until Dec. 92 and in APRIL 94 IS STILL HERE!- The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a

domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of

course, be a tremendous strain on our social welfare systems for (probably) the rest of her life.

There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay

because of that? I am of the opinion that Canada can no longer afford this type of generosity.

However, because of the circumstances involved, there is a potential for adverse publicity. I

recommend refusal but you may wish to clear this with someone at Region.

- There is also a potential for violence see charge of assault with a weapon.

Baker Arguments

- did not consider best interest of the child (international treaty) Convention on the Rights of the

Child

- entitled to an oral hearing --rejected

- legitimate expectation rejected

- duty to give reasons: reasons were inadequate

o courts: notes were sufficient

- bias

- substantive review should be reasonable

Was the decision reasonable?

- in Canada illegally

- no assets, little contribution to the Canadian economy

- however not enough weight to the h+c groundso mentioned that she had 4 cdn born children

passing consideration

identifies the h/c grounds but discounts them

Baker: decision on substantive review

- standard of review = reasonableness : 4 factors of pragmatic and functional approach

o no privative clause; limited right of appeal

o some expertise of minister in immigration matters

o high level of discretion delegated by Parliament, but with great significance for

individuals

o highly individualized and fact-based determination- notes of officer Lorenz reveal that exercise of discretion went beyond permissible bounds of

statute and public international law

o failure to give appropriate consideration to the factor of best interests of the child

the key value of concern in the h/c consideration

- notes were dismissive in this value

- best interest of the child

o sources of law

purposes of the Immigration Act

Convention on the Rights of the Child



30

minister guidelines

y do not mention best interest of the child however

o imports provision of an international source in interpretation of a domestic law

no force of law until implemented by statute

cannot draw upon convention: not binding dissent

Suresh [2002] 1 SCR 3 (Can)

- judicial review of discretionary decisions- order to deport permanent resident on grounds of danger to the security of Canada

o danger to the security of Canada: also includes danger to allies of Canada or assets in

foreign states

o danger to the Sri Lankan state

- Mr Suresh was a senior figure in the Tamil Tigers (armed wing of the Tamil independence

movement in Sri Lanka)

- relevant substantive questions:

o was Mr Sureshs presence in Canada a danger to the security of Canada?

discretionary question for the Minister

if yes, should he still be deported on the basis of the following question:

o did Mr Suresh face a substantial risk of torture on return to Sri Lanka?

- what is the appropriate standard

o in Baker reasonableness

o Suresh: deportation invoked s 7 of the Charter: life, liberty, security of the person at

stake

consequences of decision were severe

- SCC commented on (but did not decide) the standard of review, emphasizing deference:

o wide ministerial discretion in statute

o right of appeal only with leave from FCTD

o superior expertise of security agencies (citing Rehman [2001] UK HL)

o statutory purpose requires polycentric balancing of humanitarian concerns against

security

- first question (national security): patent unreasonablenesso highest level of deference

- second question (risk of torture): suggests high deference, but does not commit to patent

unreasonableness

o deference

- a quick retreat from Baker ?

o intervention in discretionary decisions (Baker)

o national security context (Suresh)

o deference takes its colour from context

- what standard(s) would Dunsmuir lead to?

o existing jurisprudence of Suresh

o would patent unreasonableness apply

o patent unreasonableness lives on in statutes not existing case law

o circumstances of the case will determine deference

Baker: drain on welfare vs Suresh: danger to the security of Canada

risk is more serious in the case of Suresh

Discretion & Polycentrism

- Polycentric tasks: We may visualize this kind of situation by thinking of a spider web. A pull on

one strand will distribute tensions after a complicated pattern throughout the web as a whole.

Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions



31

but will rather create a different complicated pattern of tensions. This would certainly occur, for

example, if the doubled pull caused one or more of the weaker strands to snap.This is a

polycentric situation because it is many centered each crossing of strands is a distinct centre

for distributing tensions

o Lon Fuller The Forms and Limits of Adjudication

Bastarache J (P ush panathan): - [36] Where the purposes of the statute and of the decision-maker are conceived not

primarily in terms of establishing rights as between parties, or as entitlements, but rather as a

delicate balancing between different constituencies, then the appropriateness of court

supervision diminishes.. That legal principles are vague, open-textured, or involve a multi-

factored balancing test may also militate in favour of a lower standard of review (Southam).

o policy = deference

- . These considerations are all specific articulations of the broad principles of polycentricity

well known to academic commentators who suggest that it provides the best rationale for

judicial deference to non-judicial agencies. [S]ome problems require the consideration of

numerous interests simultaneously, and the promulgation of solutions which concurrently

balance benefits and costs for many different parties.

Discretion & Polycentrism

- are all discretionary decisions polycentric?

o discretion: wide range of options available to the decision maker

o polycentrism: multiple considerations

o in Baker

highly discretionary, however individualized (not polycentric)

- are all polycentric decisions discretionary?

o discretion dictated from the language of the statute (Dunsmuir)

o not all polycentric decisions will be discretionary

statute may lay out certain factors that must be met in order to reach a decision

precedent applies to administrative tribunals where you have a decision from the courts

however precedent does not apply within a tribunal: tribunals are bound by courts of their jurisdiction;

do not create precedent within the tribunal

Substantive review

- Questions of jurisdiction

o CUPE [1979]

o recall Dunsmuir (para 59)

o Health Protection and Promotion Act

o AT C O [2006]

Substantive Review: Juri sdictional E rror s

- no deference: correctness

- cannot exercise power unless such power has been delegated by statute

- ultra vires: beyond the power

- intra vires: within the power

- jurisdictional versus non-jurisdictional questions of law

- e.g. dog-catcher who has the power to capture any stray dog or cats or, in exceptional cases of

danger to public safety, any creature:

o dog-catcher captures a dog



32

was the dog stray?

power to interpret own statute

o dog-catcher captures an elephant

was this an exceptional case of danger to public safety

Dunsmuir: liberal view of what a decision maker intended to decide about its

own powers

power to interpret their own statuteo dog-catcher takes into custody an errant child who was found playing with matches in

the park

not a jurisdictional question: question of law

legislature intended the dog catcher to interpret the word creature

o dog-catcher gives a parking ticket

no way legislature intended to give the dog catcher the authority to issue

parking tickets

- do the facts require the decision maker to interpret its own statute

o if yesquestion of law

- preliminary question and collateral issues framed in terms of jurisdiction

- which involves a jurisdictional question or excess of jurisdiction

Jurisdictional questions

- direct route to correctness standard

- if correct intra vires

- if incorrect ultra vires

- use caution before classifying something as jurisdictional (Dunsmuir)

Standard of Review

- correctness or reasonable

Apply the Standard

- if correctness

o correct or incorrect- if reasonableness

o reasonable or unreasonable

CUPE [1979] 2 SCR 227 (NB)

- history of courts evading full privative clauses

- end of preliminary questions doctrine and collateral issue doctrine

- greater respect for privative clauses

- generally defer to interpretation of decision makers of ambiguous language

- labour dispute during strike re: replacement workers and picketing of stores

- secondary picketing

-

management was hiring replacement workers- NB Labour Relations Act :

- 102(3) ... employers may strike and during the continuance of the strike

(a) the employer shall not replace the striking employees or fill their position with any

other employee, and

(b) no employee shall picket, parade or in any manner demonstrate in or near any place

of business of the employer.

102(3)a

- with any other employee

o what do you mean by employee?



33

o does it apply to only filling the position or replacing the striking employees as well

- management interpretation: any other employee applies to both

- labour board which favours the union interpretation: cannot replace the striking employees

with anyone

Dickson J:

- whether the legal question was preliminary or collateral is not determinative The courts, inmy view, should be alert not to brand as jurisdictional, and therefore subject to broader curial

(judicial) review, that which may be doubtfully so (para 10).

o similar to reasoning in Dunsmuir

- statutory language may have more than one meaning here it bristles with ambiguities (para

4)

- courts should show deference to Boards interpretation of its parent statute:

o strong privative clause (para 14)

o role and special expertise of the Board (para 15)

o purpose of the statutory scheme (para 24-7)

= origins of the pragmatic and functional approach

Recall Dunsmuir: Questions of Jurisdiction

- majority: [59] Administrative bodies must also be correct in their determinations of true

questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from

the extended definitions adopted before CUPE [1979]. (like preliminary questions doctrine)

- majority: [59] . Jurisdiction is intended in the narrow sense of whether or not the tribunal

had the authority to make the inquiry. In other words, tr ue j uri sdiction questions ari se where the

tribunal must ex plicitly deter mine whether it s stat utory grant of power gives it the authority to

decide a particular matter . The tribunal must interpret the grant of authority correctly or its

action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.

Nolan v Kerry 2009 SCC 39

- decision of a pension board- Rothstein J: be cautious over jurisdiction

- courts should usually defer when a tribunal is interpreting its own standard

- [d]eference will usually result where a tribunal is interpreting its own statute or statutes

closely connected to its function, with which it will have particular familiarity." 54 Dunsmuir

- Administrative tribunals are creatures of statute and questions that arise over a tribunal's

authority that engage the interpretation of a tribunal's constating statute might in one sense be

characterized as jurisdictional. However, the admonition of para. 59 of Dunsmuir is that courts

should be cautious in doing so for fear of returning "to the jurisdiction/preliminary question

doctrine that plagued the jurisprudence in this area for many years".

- The inference to be drawn from paras. 54 and 59 of Dunsmuir is that courts should usually defer

when the tribunal is interpreting its own statute and will only exceptionally apply a correctnessof standard when interpretation of that statute raises a broad question of the tribunal's

authority.

Health Protection and Promotion Act

- main actor?

o boards of health

currently 37 in Ontario; members appointed by relevant municipality and the

province

o also: Medical Officers of Health/ Health Units



34

each board of health appoints a medical officer of health to head its local health

unit

- main adjudicative actor?

o Health Services Appeal and Review Board

review exercises of power by medical officers of health

o also: Divisional Court

- powers/ responsibilities of health boards:o respond to health hazards; counter the spread of communicable disease; promote

public health

o programming issues: set up systems to respond to health issues

- powers/ responsibilities of medical officers of health:

o inspect premises; make orders re health hazards or communicable diseases

- how do we determine which questions fall within their jurisdiction and which fall without?

5. Every board of health shall superintend, provide or ensure the provision of health programs and

services in the following areas:

1. Community sanitation, to ensure the maintenance of sanitary conditions and the prevention

or elimination of health hazards.

1.1 The provision of safe drinking water by small drinking-water systems.

2. Control of infectious diseases and reportable diseases, including provision of immunization

services to children and adults.

3. Health promotion, health protection and disease and injury prevention, including the

prevention and control of cardiovascular disease, cancer, AIDS and other diseases.

.

.

4. Family health, including, i. counselling services, ii. family planning services, iii. health services

to infants, pregnant women in high risk health categories and the elderly, iv. preschool and school

health services, including dental services, v. screening programs to reduce the morbidity and mortality

of disease, vi. tobacco use prevention programs, and vii. nutrition services.

4.1 Collection and analysis of epidemiological data.4.2 Such additional health programs and services as are prescribed by the regulations.

s.13: power to make order re health hazard

13. (1) A medical officer of health or a public health inspector, in the circumstances mentioned in

subsection (2), by a written order may require a person to take or to refrain from taking any action that

is specified in the order in respect of a health hazard.

(2) A medical officer of health or a public health inspector may make an order under this section where

he or she is of the opinion, upon reasonable and probable grounds,

(a) that a health hazard exists in the health unit served by him or her; and(b) that the requirements specified in the order are necessary in order to decrease the effect of

or to eliminate the health hazard. .

Interpretation issues:

- is there a health hazard

- reasonable and probable grounds

- where he or she is of the opinion

- are necessary



35

s. 22: power to make order re communicable disease

22. (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order

may require a person to take or to refrain from taking any action that is specified in the order in respect

of a communicable disease.

(2) A medical officer of health may make an order under this section where he or she is of the opinion,

upon reasonable and probable grounds,(a) that a communicable disease exists or may exist or that there is an immediate risk of an

outbreak of a communicable disease in the health unit served by the medical officer of health;

(b) that the communicable disease presents a risk to the health of persons in the health unit

served by the medical officer of health; and

- health unit is a question of jurisdiction (geographic)

(c) that the requirements specified in the order are necessary in order to decrease or eliminate

the risk to health presented by the communicable disease. .

HPPA: review provisions

- right to advance notice and a hearing

o s. 35: application to court for order to compulsory isolation of a person

o s. 43: application to justice of the peace for warrant to access a private residence

- right to notice and an appeal

o s. 43: appeal to Health Services Appeal and Review Board

o s. 46: appeal from this Board to Divisional Court on questions of law or fact or both

Jurisdictional or non-Jurisdictional

s. 1(1): ... health hazard means,

(a) a condition of a premises,

(b) a substance, thing, plant or animal other than man, or

(c) a solid, liquid, gas or combination of any of them,

that has or that is likely to have an adverse effect on the health of any person;

s. 1(1): communicable disease means a disease specified as a communicable disease by regulation

made by the Minister;

- not as discretionary as health hazard determination

AT C O [2006] 1 SCR 140 (Alb)

- regulation by Alberta Energy and Utilities Board of ATCO, the monopoly supplier of natural gas

to Calgary

- approval by Board of ATCOs sale of lands and buildings, subject to condition that revenues be

split between shareholders and consumers/ ratepayers

- did the AEUB have the authority to attach this condition

-

statutory powers of Alberta Energy and Utilities Board:o Gas Utilities Act , s 26 (2): No owner of a gas utility... shall ... (d) without the approval of

the Board, (i) sell, lease, mortgage or otherwise dispose of or encumber its property...

o Alberta E nergy and Utilities Board Act , s 15(3): Without restricting (1), the Board may

do all or any of the following: (d) with respect to an order made by the Board... make

any further order and impose any additional conditions that the Board considers

necessary in the public interest.

o appears to be a discretionary and polycentric decision

Binnie J (3-judge dissent):



36

- the Board believes it not to be in the public interest to encourage utility companies to mix

together the two types of undertakings. In particular, the Board has adopted policies to

discourage utilities from using their regulated businesses as a platform to engage in land

speculation to increase their return on investment outside the regulatory framework. By

awarding part of the profit to the utility the Board rewards utilities for diligence in divesting

themselves of assets that are no longer productive or that could be more productively employed

elsewhere. However, by crediting part of the profit on the sale of such property to the utilitysrate base the Board seeks to dampen any incentive for utilities to skew decisions in their

regulated business to favour such profit taking unduly.

- . Such a balance, in the Boards view, is necessary in the interest of the public which allows

ATCO to operate its utility business as a monopoly. (para 88)

- Board has statutory authority to impose any conditions that the Board considers necessary in

the public interest; better able than a court to make this decision high degree of deference

Bastarache J (4-judge majority):

- applies correctness standard by characterizing decision as jurisdictional rather than

discretionary/ polycentric

- strict (dubious?) approach to statutory interpretation

- e.g. says the statutory language can lead to only one conclusion but also that The Boards

seemingly broad powers to make any order and to impose any additional conditions has to be

interpreted within the entire context of the statutes which are meant to balance the need to

protect consumers as well as the property rights retained by owners (para 7)

o statutory purpose used to trump

nature of the question

expertise

- characterizes as case involving confiscation of property rights and infringement of economic

freedom in a free market economy but ATCO is a monopoly that was always subject to

regulation

- but how is this not a polycentric question?

- orders Board to approve sale and allocate all revenues to ATCO, thus substituting Courts viewfor the Boards in a complex field of economic regulation contrast with e.g. Southam

compare reasons of Bastarache J in P ush panathan (text p 794)

- . While judicial procedure is premised on a bipolar opposition of parties, interests, and factual

discovery, some problems require the consideration of numerous interests simultaneously, and

the promulgation of solutions which concurrently balance benefits and costs for many different

parties. Where an administrative structure more closely resembles this model, courts will

exercise restraint.

Correctness on Jurisdictional Questions

-

of course, no administrative agency may act beyond the bounds of its powers as defined by thelegislature

- but (1) the legislature may want the agency itself, not the courts, to determine the boundaries

of the agencys jurisdiction, and (2) courts may contort policy choices that they dislike into

jurisdictional questions so as to justify correctness

- ask: is this really a question beyond the intended scope of the agencys powers (including any

statutory power to determine its own jurisdiction or make discretionary or policy decisions

consistent with the broad purpose of the scheme)?

Substantive review



37

Applying the Dunsmuir framework:

(1) what standard of review?

y F lora [2008] (Ont CA)

(2) what outcome based on application of the standard? (to be cont. next class)

y C abral De Madeiros [2008] (FC)

y C offey [2008] (MBCA)

Liver Transplants -Who should decide?

Whether transplants are distributed according to:

- medical need,

- prospects for survival,

- degree of contribution to quality of life, or

- choice of the donor?

F lora v. General Manager, OHIP [2008] (Ont CA)

- Ontario doctors concluded that F was not a suitable candidate for a liver transplant

- decision based on Milan criteria, which evaluate size of liver tumour(s) and degree of spread

beyond liver

- gives priority to recipients with higher chance of survival (due to shortage of cadaveric livers)

- evaluation confirmed by medical experts in Ontario and in Germany

- F traveled to the UK where private clinic performed a living transplant program serviced

overseas clients ineligible for cadaveric livers in UK; cost: $450,000

- private clinic applied more relaxed version of Milan criteria

- prior to UK procedure, Canadian medical expert concluded that Milan criteria not met for living

transplant; his application for treatment was denied

- animating rationale for Milan criteria: given the serious and significant risks to the donor

only those patients with high survival prospects would be selected for the procedure (para 18)

- OHIP decision to deny reimbursement was upheld by Health Services Appeal and Review Boardon basis not an insurable service under Ontario Health Insurance Act

- Board heard written and oral testimony from Fs doctors:

o high risk of cancer recurrence

o if F had met Milan criteria, he would be put on Ontario wait list for cadaveric liver

- conflicting evidence from UK doctors re: Milan criteria and likelihood of success

- (statutory) appeal dismissed by Divisional Court: Boards decision was reasonable

- based on relevant Regulatory test, Board rejected that the treatment was an insured service

- did so on basis that procedure was not generally accepted in Ontario as appropriate for

person with same medical circumstances

- F argued that this was a question of law, to be answered correctly by Board

o whether or not the procedure was generally accepted in Ontario as appropriate- Ont CA: Dunsmuir confirms that the factors continue to be relevant

o no privative clause; broad right of appeal

less deference

o question was not policy-based, but was a fact-laden and case-specific question of mixed

fact and law

reasonableness

o relative expertise of Board in assessing medical evidence; experience with Act

- existing jurisprudence (Divisional Court) also supports reasonableness



38

Dunsmuir

- statute which specifically provides for standard?

- existing jurisprudence?

- four factors

o nature of the question

o privative clause/right of appeal

o expertiseo statutory purpose

Class Example: Appropriate Standard

- reasonableness or correctness

Bio Sewage Plant Authorization Act of Ontario

statute

- does not provide for standard

existing jurisprudence

- assume none

Four factors

privative clause

- Decisions of the Commission are, in any event, final. s23

- weak privative clause

o little deference

right of appeal

- may appeal from the Commissions decision to the Divisional Court on a question of law.

Decisions of the Commission are, in any event, final. s23

- narrow statutory right of appeal question of law onlyo little or no deference on questions of law

o deference on questions of fact and mixed law and fact

nature of the question

b) the conduct of the owner or operator of the plant affords reasonable grounds to believe that he or

she will carry on business with due regard for the protection of the natural environment and human

health;

(c) the permit is judged to be in the public interest having regard to the needs and wishes of the

residents of the municipality in which the plant is located

did Jill carry on business with due regard for human health?

Mixed Fact and Law

- apply a standard in the statute to the facts provided

Reasonableness Deference

suburban development priorities of Ontario outweigh the commercial interests in this case

- no reference to the statute



39

expertise

- law student

- two rural planners

- The Minister shall designate one member of the Commission as its chair. The chair may direct

that a hearing be held before a panel consisting of either one member or three members of the

Commission, as he or she may designate. At least one member of the panel must have legalexpertise or experience and the remaining members, if any, should have extensive experience in

sewage treatment, rural planning, or environmental regulation s22

stat purpose

promotion of a commercial market for bio-sewage products in Ontario and the assurance of responsible

conduct by businesses allowed to operate within that market.

Summary of Correctness

- usually, but not always, where there is a (distinct/ separable) question of law or jurisdiction

(rather than a question of fact, mixed fact and law, or discretion or policy)

- court substitutes own view; emphasis on correct interpretation of statute, common law, or

constitution

- e.g. P ush panathan [1998] interpretation by Immigration and Refugee Bd. of treaty provision

involving human rights

Summary of cases adopting deferential standard

- CUPE [1979] patent unreasonableness: upholds Labour Boards interpretation of an

ambiguous statutory provision

- Southam [1997] reasonableness: upholds Competition Tribunals characterization of whether

daily and community newspapers were in the same market

- Baker [1999] reasonableness: overturns denial of application on humanitarian &

compassionate grounds- Suresh [2002] patent unreasonableness: concerning Ministers opinion that individual posed

danger to security

- Ryan [2003] reasonableness: upholds decision of Discipline Committee to disbar lawyer

- Dr Q [2003] reasonableness: upholds Inquiry Committees decision based on its findings of

credibility

- AT C O minority [2006] patent unreasonableness: upholds Boards discretionary decision on

distribution of revenues from sale of assets by gas utility

C abral De Madeiros v. C anada (Min of C itizenshi p and Immigration) [2008] (FC)

- decision by immigration officer that applicants could safely return to Portugal based on state

protection from family violence- weight given to general documentation that was reviewed about conditions in portugal as

opposed to specific documentation of similarly situated cases and the evidence of the victim

support advisor

- follows past decisions to adopt reasonableness: significant deference is owed in particular [to]

decisions regarding the weight to be given to evidence presented (para 15)

- application of standard

- what does reasonableness mean in this context

o context of 18.1(4)d of the Federal Court Act

o factual determinations were perverse or capricious



40

- upholds the decision: the Officer took into account all of the critical documentary evidence and

preferred general country conditions documentation on state protection against family

violence to more specific and case-oriented documentation (para 16)

- also: While I might have reached a different conclusion that is not relevant the Officers

analysis was thorough and his conclusion was open to him (para 17)

C offey v. C ollege of Licensed P ractical Nur ses of Manitoba [2008] (MBCA)- decision by disciplinary committee to reprimand nurse for professional misconduct

- reprimand based on circulation of inaccurate information about College staff salaries outside

the membership

- adopts reasonableness standard after reviewing the four factors:

o no privative clause; broad right of appeal

o statute directs College to govern its members in the public interest

o question of mixed fact and law: a heavily fact-laden question, with some legal aspects

o panel is best positioned to know what conduct will bring the profession into disrepute

application of standard

- cites Ryan (and Dunsmuir ): is there no line of analysis within the reasons that could reasonably

lead the tribunal from the evidence to the conclusion at which it arrived? (para 47)

- The reasons of the Panel demonstrated that it considered the evidence before it (para 48) and

each of its essential findings can be linked to the evidence (para 53)

- That there might possibly be some evidence on one or more of these matters that might tend

to point in a different direction is not relevant. It is clearly the role of the Panel, and not of this

court, to weigh and evaluate all the evidence (para 53).

- Professional misconduct and conduct unbecoming are not defined in the Act . I do not think

that it is necessary that they be defined, either in the Act or in its decision for the Panel to

have been justified in reaching its conclusions.

Substantive review

- summary of the standard of review analysis- application of the standard: correctness

- application of the standard: reasonableness

Summary: standard of review analysis

- The analysis must be contextual. it is dependent on the application of a number of relevant

factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the

tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at

issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all

of the factors, as some of them may be determinative in the application of the reasonableness

standard in a specific case.

Is there a relevant precedent?- existing jurisprudence may be helpful in identifying some of the questions that generally fall to

be determined according to the correctness standard.

what is the nature of the question?

- Is it a question of fact, discretion or policy?

- Is it a question where the legal issues cannot be easily separated from the factual issues?

= generally a standard of reasonableness; deference will usually apply automatically

- Is it a question of law?

= many legal issues attract a standard of correctness



41

- Is it a question regarding the constitutional division of powers or other constitutional issues?

= correctness

If it is a (distinctive/ separable) question of law:

Is the tribunal interpreting its own statute or statutes closely connected to its function, with

which it has particular familiarity?

= deference will usually result

Is the question at issue one of general law that is of central importance to the legal system as awhole and outside the adjudicators specialized area of expertise?

= correctness; Because of their impact on the administration of justice as a whole, such

questions require uniform and consistent answers.

Is it a (distinctive/ separable) jurisdictional question?

i.e. Is it a true question of jurisdiction, understood in the narrow sense of whether or not the

tribunal had the authority to make the inquiry, where the tribunal must explicitly determine whether

its statutory grant of power gives it the authority to decide a particular matter?

= correctness

Is there a privative clause and/ or a right of appeal?

Is there a strong privative clause?

= a strong indication of reasonableness, but not determinative (must preserve constitutional

role of the superior courts; ensure that administrative bodies do not exceed their jurisdiction; and

read [a privative clause] in its appropriate statutory context)

Is there a weak privative clause (e.g. exclusive jurisdiction clause or finality clause)?

= some indication of deference

Is there a right of appeal?

(not mentioned by majority in Dunsmuir )

= weighs against deference depending on the language of the appeal provision

What is the purpose of the tribunal?

as determined by interpretation of enabling legislation

If it is a question of law, does it involve the interpretation of a statute that is closely connectedto the tribunals function?

What is the tribunals expertise?

If it is a question of law, does it fall within the adjudicators specialized expertise?

Dunsmuir: Correctness

- [50] the standard of correctness must be maintained in respect of jurisdictional and some

other questions of law. When applying the correctness standard, a reviewing court will not

show deference to the decision makers reasoning process; it will rather undertake its own

analysis of the question. The analysis will bring the court to decide whether it agrees with the

determination of the decision maker; if not, the court will substitute its own view and provide

the correct answer.

Dunsmuir: Reasonableness

- [47] Reasonableness is a deferential standard animated by the principle that certain questions

that come before administrative tribunals do not lend themselves to one specific, particular

result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals

have a margin of appreciation within the range of acceptable and rational solutions. A court

conducting a review for reasonableness inquires into the qualities that make a decision

reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial

review, reasonableness is concerned mostly with the existence of justification, transparency and



42

intelligibility within the decision-making process. But it is also concerned with whether the

decision falls within a range of possible, acceptable outcomes which are defensible in respect of

the facts and law.

Summary or Correctness

- usually, but not always, where there is a (distinct/ separable) question of law or jurisdiction

- court substitutes own view; emphasis on statutory interpretation- little or no deference/ exacting review (Dr Q [2003]); significant probing or testing (Southam

[1997])

- Dr Q

o infamous conduct by a doctor who entered into a sexual relationship with one of his

patients

o trial judge inappropriately applied a correctness standard to finding of credibility

credibility: factual issues which call for a reasonableness standard and

deference

o The reviewing judge's analysis of the corroborative evidence confirms that she assessed

the Committee's findings of credibility from the perspective of correctness, rather than

reasonableness. For example, when addressing the Committee's [page244] reliance

upon the discrepancy between Dr. Q's letter to the College and the number of times he

had actually had lunch with Ms. T, the reviewing judge argued that "one explanation for

Dr. Q.'s less than forthright description of his lunch relationship with Ms. T. is that the

letter was written without dealing with specific allegations pursuant to legal advice"

(para. 13). Yet when the standard of review is reasonableness, the reviewing judge's role

is not to posit alternate interpretations of the evidence; rather, it is to determine

whether the Committee's interpretation is unreasonable. When considering the

Committee's conclusion that Ms. T's ability to describe distinct bodily markings

suggested an intimate relationship between Ms. T and Dr. Q, the reviewing judge noted

that Ms. T had some experience as a surgical nurse and asserted that, "[i]n my view, her

description is no more vivid than one might expect from someone who has experience

with surgical scars if such a scar had been described to her as Dr. Q testified he haddone" (para. 20). With respect, when applying a standard of reasonableness simpliciter,

the reviewing judge's view of the evidence is beside the point; rather, the reviewing

judge should have asked whether the Committee's conclusion on this point had some

basis in the evidence

o how a reviewing court reviews evidence

- e.g. P ush panathan [1998] (interpretation by Immigration and Refugee Board of treaty provision

involving human rights); Mossop [1993] (interpretation by Human Rights Tribunal of family

status as a prohibited ground of discrimination

o contrary to the purposes of the UN

o substituted its own interpretation

o important human rights issues at stake

Correctness on Jurisdictional Questions

- no administrative agency may act beyond the bounds of its powers as defined by the legislature

- but (1) the legislature may want the agency, and not the courts, to determine the boundaries

of the agencys jurisdiction, and (2) courts may contort policy choices they dislike into

jurisdictional questions merely to justify correctness (see CUPE [1979]; dissent by Abella J in

Lévi s [2007])



43

- ask: is this really a question beyond the intended scope of the agencys powers (including any

statutory power to determine its own jurisdiction or make discretionary decisions consistent

with the purpose of the scheme)?

Correctness on Non-Legal Issues

- court might (rarely) substitute own view on factual questions or on questions where the legal

and factual issues cannot be readily separated- court might substitute own view on discretionary/ policy questions, arguably displacing the

agencys regulatory role

o eg., ATCO

- look for questions of mixed law & fact that a court treats as a question of law in order to justify a

correctness standard

o eg (arguably) dissent in VI A Rail [2007] (undue obstacle)

- highly questionable in the face of a strong privative clause on legal or policy issues within the

mandate and expertise of the agency (eg AT C O [2006])

Summary of C ases Ado pting Deferential Standard

- CUPE [1979] patent unreasonableness: upholds Labour Boards interpretation of an

ambiguous statutory provision

- Southam [1997] reasonableness: upholds Competition Tribunals characterization of whether

daily and community newspapers were in the same market

o courts may not reweigh factors

- Baker [1999] reasonableness: overturns denial of application on humanitarian &

compassionate grounds

- Suresh [2002] patent unreasonableness: concerning Ministers opinion that individual posed

danger to security

- Ryan [2003] reasonableness: upholds decision of Discipline Committee to disbar lawyer

- Dr Q [2003] reasonableness: upholds Inquiry Committees decision based on its findings of

credibility

- AT C O minority [2006] patent unreasonableness: upholds Boards discretionary decision ondistribution of revenues from sale of assets by gas utility

Dunsmuir: Reasonableness

- [48] . What does deference mean in this context? Deference is both an attitude of the court

and a requirement of the law of judicial review. It does not mean that courts are subservient to

the determinations of decision makers, or that courts must show blind reverence to their

interpretations, or that they may be content to pay lip service to the concept of reasonableness

review while in fact imposing their own view.

- [48] . Rather, deference imports respect for the decision-making process of adjudicative

bodies with regard to both the facts and the law. We agree with David Dyzenhaus where he

states that the concept of deference as respect requires of the courts not submission but arespectful attention to the reasons offered or which could be offered in support of a

decision.

- [49] Deference in the context of the reasonableness standard therefore implies that courts will

give due consideration to the determinations of decision makers. In short, deference requires

respect for the legislative choices to leave some matters in the hands of administrative decision

makers, for the processes and determinations that draw on particular expertise and

experiences, and for the different roles of the courts and administrative bodies within the

Canadian constitutional system.



44

Canada (Cit. and Immig.) v. Khosa, 2009 SCC 12: reasonableness

- [59] Reasonableness i s a single standard that takes it s colour from the context . One of the

objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as

undue complexity and formalism. Where the reasonableness standard applies, it requires

deference. Reviewing courts cannot substitute their own appreciation of the appropriate

solution, but must rather determine if the outcome falls within a range of possible, acceptable

outcomes which are defensible in respect of the facts and law (Dunsmuir , at para. 47).- [59] . There might be more than one reasonable outcome. However, as long as the process

and the outcome fit comfortably with the principles of justification, transparency and

intelligibility, it is not open to a reviewing court to substitute its own view of a preferable

outcome.

o justification, transparency, intelligibility: reasons given by a decision maker or could be

given

Summary of Reasonableness

- a range of possible, acceptable outcomes

- reasonableness takes its colour from context

o (instructors view: i.e. it is a spectrum of practically infinite variations such that theres

really no point trying to figure out where on the spectrum you are)

- there may be more than one reasonable interpretation of a statute or decision in a case

- do not re-weigh the evidence or substitute own view

- ensure that the law and facts were appropriately considered by the decision-maker

- focus on whether the reasons of the decision-maker, and the information/ evidence, support

the decision

- justification, transparency and intelligibility

Practice Fact Scenario

- The pig farm and the wedding hall

o dispute between Harrison Ltd and the Municipality of Clean Rivers

o decision of the Normal Farm Practices Protection Board to excuse Harrison Ltd. frommunicipal by-law

o appeal from Boards decision by Municipality, arguing that Board had no jurisdiction to

overturn by-law or, in the alternative, that Board erred in its interpretation of the Act

What is the appropriate standard?

- no standard stated in the statute or in case law

- jurisdiction: the statute provides the board with the power to decide what is a normal farm

practice s 1 and s 6(1)

- look to the four factors

o nature of the question

question of mix law and fact

y applying the statute to a set of facts

o privative/right of appeal

strong right of appeal

o expertise

board is interpreting its own statute

o statutory purpose

Min of Agr directives, guidelines or policy s 9

- correctness standard: general importance to the legal system as a whole and outside the

specialized expertise



45

o not likely that these two requirements are met

- reasonableness based on the four factors

Apply the Standard

- unreasonable: board is directed under the statute to consider whether the bylaw reflects a

provincial interest

o not consideredo did not consider the MDS guidelines

o required to explain that the doubling factor should not interfere with the conclusion

that this was a normal farm factor

o should explain the MDS guidelines factors

- reasonable:

Scenario Court of Appeal decision

- Hill and Hill F ar ms Ltd . v. Bl uewater (Munici pality) (2006), 82 O.R. (3d) 505 (CA).

http://www.ontariocourts.on.ca/decisions/2006/september/C43637.pdf

- standard of review = reasonableness

o broad statutory right of appeal called for correctness

o nature of the question, expertise, and broad powers (to appoint experts, decide

informally, adopt flexible remedies) called for deference

Boards decision was unreasonable

o s. 9 of Act requires Boards decisions to be consistent with Ministry guidelines

o Board paid no heed to this and thus failed to consider a factor is was required to weigh

Rodrigues v . Ontario ( W SI A Tribunal) (Ont CA)

- appeal by WSIAT from Divisional Court decision

- majority of Division Court had overturned WSIAT conclusion that contributions to Rs benefits

plan were not pre-accident earnings under the W ork place Safety and Insurance Act

- WSIB Operational Policy did not include the relevant benefits contributions in a comprehensive

list of contributions that qualify as earnings- WSIAT was required by the Act to apply WSIB Policy

- Borins J.A. (majority, CA):

o emphasizes strong privative clause; expertise; binding nature of the Policy

uses the four factors in the application of the standard

reasonableness taking its colour from context

y context: four factors

o decided by a very experienced of WSIAT Vice-Chair

o decoded in a careful and comprehensive manner

o detailed reasons included a review of the Act and Policy plus five further rationales for

WSIATs interpretation (see para. 14)

o the reasons were not clearly irrational and the evidence of legislative history wasirrelevant

text of the statute clearly states that the policy is binding; policy is

comprehensive

y no ambiguity, therefore not necessary to consider legislative history

- Gillesse J.A. (dissent, CA):

o background shows that the benefits contributions were all part of the same wage

package, paid on an hourly basis

o evidence of the legislative history indicated that it had been a mistake to exclude the

relevant contributions from the Acts definition of earnings



46

o WSIAT counsel had submitted that the contributions should be treated as earning after

the first year of employment

o failure to consider this relevant evidence, put before the Tribunal, made its

interpretation unreasonable (see para 57)

text of the statute clearly states that the policy is binding; policy is comprehensive

- no ambiguity

statutory interpretation

- text

- context

- object and purpose

- legislative history

- other instruments

- textual vs teleological approach

o emphasis on text vs object/purpose

Dunsmuir : shift to a single deferential standard

- majority: [44] Though we are of the view that the three-standard model is too difficult to apply

to justify its retention, now, several years after Southam, we believe that it would be a step

backwards to simply remove the reasonableness si mpliciter standard and revert to pre-Southam

law. As we see it, the problems that Southam attempted to remedy with the introduction of the

intermediate standard are best addressed not by three standards of review, but by two

standards, defined appropriately.

Past Criticisms

- criticisms by Lebel J in Toronto v CUPE [2003] 3 SCR 77:

o why apply all factors of the pragmatic and functional approach where one or more

factors clearly indicates a correctness standard?

o how distinguish PU from correctness?

magnitude of the defect or obviousness of the defect?o how distinguish PU from reasonableness?

both recognize prospect of statutory ambiguity

can there be degrees of irrationality or degrees of obviousness?

- While a defect may be readily apparent because it is severe, a severe defect will not necessarily

be readily apparent; by the same token, a flaw in a decision may be immediately evident, or

obvious, but relatively inconsequential in nature (para 123)

calls for a single deferential standard

sets the stage for Dunsmuir s reform re: standard of review analysis and move from two deferential

standards to one (reasonableness)

Biosewage Example

Reasonable or Unreasonable?

Summary of Reasonableness

- a range of possible, acceptable outcomes

- reasonableness takes its colour from context

o (instructors view: i.e. it is a spectrum of practically infinite variations such that theres

really no point trying to figure out where on the spectrum you are)

- there may be more than one reasonable interpretation of a statute or decision in a case



47

- do not re-weigh the evidence or substitute own view

- ensure that the law and facts were appropriately considered by the decision-maker

- focus on whether the reasons of the decision-maker, and the information/ evidence, support

the decision

- justification, transparency and intelligibility

Application- reasonable

- unreasonable

Disaggregation

- question of jurisdiction, constitution, question of law which attracts a correctness standard

- Pushpanathan : disaggregation of a question of law structured in the Dunsmuir framework

Optometrist Example

What is the standard?

- precedent/statute: none

- no privative clause

- expertise: interpreting their own statute

- purpose: regulating the profession

o cite Ryan

- nature of the question

o mixed fact and law:

decision to order Dr J to apply for an initial license and attach conditions

interpret the statute and look at the particular facts

apply the law to the facts

o reasonableness

- authority: question of jurisdiction

o Dunsmuir; CUPE caution in classifying a question as jurisdictionalo 15(7) grants the authority

- reasonableness standard

Application of the standard?

- unreasonable

o ethics course

not required though for those obtaining an initial license

do not even offer one

o should have turned their mind to other factors listed in s 18

Jurisdiction and constitutional challenges- whether administrative bodies have the authority to decide constitutional questions

o what does the legislature intend in terms of giving a tribunal to interpret the Charter or

other related instruments

- can administrative decision-makers declare statutory provisions inapplicable on constitutional or

human rights grounds?

o C oo per [1996]

o Martin [2003]

o Tranchemontagne [2006]



48

A question for legislatures (and courts)

- should an agency be able to refuse to apply a provision in its statute on C harter or human rights

grounds?

o would allow individuals to make all available arguments in the first instance

o litigants may not realistically be able to go to court

o but, tribunal may lack the expertise to resolve (especially, to dismiss) Charter/ HR code

issueso if more time is required to resolve such cases, is access to the tribunal reduced for

everyone else?

C oo per [1996] 3 SCR 854 (Can) (additional reading)

- cautious approach to administrative boards and tribunals deciding Charter issues

- CHRC and tribunal lack authority to decide a Charter challenge

- challenge of mandatory retirement age for pilots

- CHRC denied the complaint

- did the commission have the authority to rule on the Charter aspect of the decision

- two-part test re: an administrative tribunals authority to determine constitutional challenges:

o does the statute give the tribunal, expressly or implicitly, the authority to decide

questions of law (assumed to include Charter challenges)?

o if so, does the statute remove, expressly or implicitly, the authority to decide

constitutional challenges?

- La Forest J (majority):

o Canadian Human Rights Commission (and by extension Canadian Human Rights

Tribunal) lacks the authority to determine the constitutionality of its enabling statute

o Commission is not an adjudicative body; practical considerations weigh against implying

such authority

limited expertise of the commission

commission role is to screen out human rights complaints

inefficiencies of these issues being dealt with by the commission

- Lamer CJ (concurring):o to preserve the supremacy of the legislature (and courts) over the executive, legislatures

cannot delegate such authority to administrative bodies

o domain of the courts, courts are independent

o parliamentary supremacy and ensuring that the executive does not erode that

supremacy by appointing administrative actors who may decide upon constitutional

issues

o Charter did not exist at the time the Canadian Human Rights Act was written

- McLachlin J (dissent): statutory powers & duties of the HR Commission, and nature of the

scheme, reveal an implicit legislative intent to delegate such authority

- 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 conformto it. Many more citizens have their rights determined by these tribunals than by the courts.

Martin [2003] 2 SCR 504 (NS)

- claim for compensation from two individuals who suffer from chronic pain syndrome

- in the Act, excludes compensation for chronic pain syndrome

- tribunal upheld a Charter challenge: discrimination on the basis of disability s 15

- does the NS Workers Compensation Appeals Tribunal have jurisdiction to hear a Charter

challenge?



49

- here, the Tribunal upheld a Charter challenge to a provision of the Workers Compensation Act

which denied benefits where the workers disability arose from chronic pain syndrome

- Gonthier J (unanimous judgment):

o the statute expressly gives the Tribunal the authority to decide questions of law relating

to the relevant provision; therefore, Tribunal is presumed to have the authority to apply

the C harter

may deter mine all questions of fact and law right of a ppeal on questions of law

o this authority allows a tribunal to decide that a provision is inapplicable, but not to

declare the statute invalid

o three reasons

constitution is the supreme law of the land

y determining questions of law includes supreme law

practical benefit for having the admin decision maker decide these questions

first

y field experience, relevant expertise in the specialized area

y may assist in determining constitutional questions; helps the courts

understand the context in which the constitutional challenge was

brought

subject to review on a correctness standard, no deference

limited remedy; decision has no binding force

- Gonthier J: here, the statute was explicit, but to determine whether there is an implied

authority to decide questions of law look to:

o statutory mandate of tribunal and whether deciding questions of law is necessary to

fulfill mandate effectively

mandate would be impeded otherwise

o interaction of tribunal with other aspects of scheme

o whether tribunal is adjudicative

o practical considerations, including capacity to consider questions of law

- Gonthier J. cont.:o nothing in the Act rebuts the presumption re: authority to hear C harter challenges,

arising from the Tribunals authority to decide questions of law

o courts should construe narrow implied presumption to remove authority to decide

constitutional challenges

o implicitly should be interpreted broadly in the first step of the Cooper test and narrowly

in the second part

Tranchemontagne [2006] 1 SCR 513 (Ont)

- Ontario Human Rights Act

o quasi-constitutional

o whether the authority has been rebutted based on express or implicit language in thestatute?

- challenge (as discriminatory) to statutory provision that denied disability benefits to those

whose disability was alcoholism

- does the Ontario Social Benefits Tribunal have the authority to apply the Ontario Human Rights

Act?

- SCC agreed that the Social Benefits Tribunal had the statutory authority to decide questions of

law, but split on whether legislature had removed authority to apply Human Rights Act

- Di sability Support P rogram Act , s 67(2):

67(2) The Tribunal shall not inquire into or make a decision concerning,



50

(a) the constitutional validity of a provision of an Act or a regulation; or

(b) the legislative authority for a regulation made under the Act.

- did the legislature intend to extend to quasi-constitutional

- Bastarache J (4-judge majority): this provision does not remove the SBTs authority to apply the

HR Act so as to find a statutory provision inapplicable

- Abella J (3-judge dissent):

o s 67(2) creates a category of questions of law that the legislature has explicitlyremoved from the SBTs jurisdiction: any legal question the answer to which might

result in the SBT finding a provision of its own legislation inoperative

o expresses concerns about the institutional capacity of the SBT to resolve human rights

challenges, and about possible encroachment on the human rights system

1. Initial claim before tribunal: a. claim rejected W ill individ ual go to court?

b. claim accepted W ill AG go to court?

2. Initial claim before court: a. claim rejected Revert to tribunal for remainder of

deci sion.

b. claim accepted W ill AG a ppeal?

Otherwi se, revert to tribunal.

Procedural fairness intro/ legal sources

- C harter

- especially s. 7

- statutory

o home statute or other statute

o Stat utory P ower s P roced ure Act , R.S.O. 1990, c. S-22

- common law:

o Nichol son [1979] (SCC)

o Homex Realty [1980] (SCC)

Procedural Fairness Intro

- you receive this letter from the Law School:o The School has reason to believe that you have acted improperly and against the

Schools interest. A decision has been taken after careful consideration to expel you

from the School. The decision is not subject to any appeal or other reconsideration. We

wish you the very best in all your future endeavours.

- why would this be unfair?

o traditional notice and reply not present

o no notice of the law schools concerns

o no information outlining the concerns

o no opportunity to reply to the concerns



51

o no reasons for the decision

o no opportunity to appeal

o possible bias

against the schools interest

common law duty to act fairly:

- audi alterem partem o the other side must be heard

o right to notice and to reply

- nemo i udex sua causa

o no one shall be judge in his or her own case

o independence/ rule against bias

- different levels of fairness depending on the context: criminal vs administrative

o oral hearing, internal appeal

o procedural fairness entitlements depending on the context

what i s the legal source of the d uty?

- Charter, statute, common law

threshold question: does the d uty ari se?

- whether the source is applicable

content question: what does the d uty require in a particular context?

- what level of fairness is required

- 5 factors from Baker

case studies in procedural fairness: dismissal of public officers, public inquiries, closed proceedings

independence and impartiality

Main sources of P roced ural Rules

- in general order of precedence:

o C harter of Right s and F reedoms (esp. s. 7 and 8-14)

o C anadian Bill of Right s (esp. s. 1(a) and 2(e)) decision-makers under federal statutesonly

o statutes

Stat utory P ower s P roced ure Act (Ontario)

parent statute of the decision-maker or other statutes

o common law

o rules/ procedures of the decision-maker

Charter of Rights and Freedoms

- 1. The [C harter ] guarantees the rights and freedoms set out in it subject only to such reasonable

limits prescribed by law as can be demonstrably justified in a free and democratic society.

-

7. Everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.

s. 7 analysis involves four steps:

- is the life, l iberty, or security of the person (or a combination of these) engaged? not our focus

- what are the principles of fundamental justice in the relevant context? our focus (in admin law

contexts)

o included procedural fairness (natural justice)

- has there been a deprivation that failed to accord with these principles? our focus (in admin

law contexts)



52

- is the deprivation justified under s. 1? not our focus

Canadian Bill of Rights (1960)

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

exist without discrimination the following human rights and fundamental freedoms, namely:

o (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, abridgement or

infringement of any of the rights or freedoms herein recognized and declared, and in particular,

no law of Canada shall be construed and applied so as to .

o (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.

could only argue procedural fairness if your rights and obligations are in stake

not entitled to procedural fairness if dealing with a privilege

Stat utory P ower s P roced ure Act R.S.O. 1990, c. S.22

- general statute on requirements for tribunal hearings (oral, written, or electronic)

- enacted in 1971, following the Ontario Royal Commission Inquiry Into Civil Rights (the McCruer

Commission)

- similar statutes in Alberta (1966), Quebec (1996), and B.C. (2004)

- roots in the U.S. Ad mini strative P roced ure Act 1946

- SPPA applies to tribunals (s. 3(1)):

o that exercise a statutory power of decision

a power or right, conferred by or under a statute, to make a decision deciding

or prescribing: (a) the legal rights, powers, privileges, immunities, duties or

liabilities of any person or party, or (b) the eligibility of any person or party to

receive, or to the continuation of, a benefit or license, whether the person is

legally entitled thereto or not. (s. 1)y include rights and privileges

o and that are required by statute or otherwise by law to hold or to afford to the parties

to the proceeding an opportunity for a hearing before making a decision. (s. 3)

affects adjudicative tribunals

exemptions from SPPA (s. 3(2)):

- the legislature and its committees

o separation of powers

- courts that are subject to the Rules of Civil Procedure

- arbitrators ( Arbitrations Act ; Labour Relations Act )

o consensual arrangement- coroners inquests

- commissions of inquiry (P ublic Inquiries Act )

- persons exercising an investigatory function that does not lead to a final binding decision

o non-dispositive decisions

- tribunals empowered to make regulations, rules, or by-laws in so far as that power is concerned

key provisions:

s. 4: panels/ role of Chair



53

Panels, certain matters

4.2(1)A procedural or interlocutory matter in a proceeding may be heard and determined by a panel

consisting of one or more members of the tribunal, as assigned by the chair of the tribunal

s. 5: definition of a party

Parties

5.The parties to a proceeding shall be the persons specified as parties by or under the statute under

which the proceeding arises or, if not so specified, persons entitled by law to be parties to the

proceeding

s. 6: reasonable notice of hearings

Notice of hearing

6.(1)The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal

s. 8: circumstances where specific level of notice required

Where character, etc., of a party is in issue

8.Where the good character, propriety of conduct or competence of a party is an issue in a proceeding,

the party is entitled to be furnished prior to the hearing with reasonable information of any allegations

with respect thereto

key provisions:

s. 9(1): requirement for open proceedings (may be varied for reasons of public security or to protect

intimate private or personal information)

Hearings to be public, exceptions9.(1)An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of

such a nature, having regard to the circumstances, that the desirability of avoiding disclosure

thereof in the interests of any person affected or in the public interest outweighs the desirability

of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing in the absence of the public

s. 10: right to counsel and to call and cross-examine witnesses

Right to representation10. A party to a proceeding may be represented by a representative

Examination of witnesses

10.1A party to a proceeding may, at an oral or electronic hearing,

(a) call and examine witnesses and present evidence and submissions; and

(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair

disclosure of all matters relevant to the issues in the proceeding

s. 11: witness right to counsel



54

Rights of witnesses to representation

11. (1) A witness at an oral or electronic hearing is entitled to be advised by a representative as to his

or her rights, but such representative may take no other part in the hearing without leave of the

tribunal.

Idem(2) Where an oral hearing is closed to the public, the witnesss representative is not entitled to be

present except when that witness is giving evidence

s. 12: power to issue summonses

Summonses

12. (1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by

the tribunal,

relevant to the subject-matter of the proceeding and admissible at a hearing

s. 14: immunity for witnesses compelled to testify (use immunity in future civil or criminal proceedings

other than prosecution for perjury)

Protection for witnesses

14.(1)A witness at an oral or electronic hearing shall be deemed to have objected to answer any

question asked him or her upon the ground that the answer may tend to criminate him or her or may

tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person,

and no answer given by a witness at a hearing shall be used or be receivable in evidence against the

witness in any trial or other proceeding against him or her thereafter taking place, other than a

prosecution for perjury in giving such evidence.

s. 17(1): obligation to give written reasons for final decision, if requested by a party

Decision

17.(1)A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give

reasons in writing therefor if requested by a party

s. 20: obligation to keep record of proceeding

Record of proceeding

20.

A tribunal shall compile a record of any proceeding in which a hearing has been held which shallinclude,

(a) any application, complaint, reference or other document, if any, by which the proceeding

was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed

by any other Act on the extent to or the purposes for which any such documents may be used in

evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and



55

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

tribunal can only base its decision on what is before it since a party cannot challenge that material

s. 25.0.1 and 25.1: power to make orders/ rules governing the tribunals practice and procedure liberal

construction of the rules (s. 2)

Control of process

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that

purpose,

(a) make orders with respect to the procedures and practices that apply in any particular

proceeding; and

(b) establish rules under section 25.1.

Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it

Resolving conflicts between rules

- statute > common law (but common law may supply the omission of the legislature)

o if silent or ambiguous

- statute or common law > subordinate rules (i.e. regulations, bylaws, policies)

- statute or common law or subordinate rules passed under a statute > the tribunals own rules

(e.g. SPPA, s. 25.1(3) and (6))

- SPPA > other statutes (unless the other statute provides expressly to the contrary see SPPA, s.

32)

Prior to Nicholoson

- distinction between judicial and administrative proceedings

- if administrative, no procedural fairness

- similar to rights v privilege distinction

Nichol son [1979] 1 SCR 311 (Ont) common law

- police board had the power to dismiss an officer before the completion of 18 months service

(after which a statutory process for dismissal took effect)

- dismissed after 15 months of service without any process or reason

- Martland J (dissenting):

o officers status was probationary

o The only interest involved was that of the Board itself

privilege, not a right

o the decision was administrative, entailing no legal duty to explain the decision or given

the officer an opportunity to be heard

-

Laskin CJC:o police board was not required to act judicially, but had duty to act fairly (not arbitrarily)

in exercising the power

even though the statute did not require any process

o emphasizes the seriousness of the consequences for the individual

one of the five factors in Baker

as opposed to binary distinctions between administrative v judicial; rights v

privileges

y very difficult to parse out

y borderline cases might result in an injustice



56

move towards a factor based approach

o individual entitled to notice and an opportunity to make submissions, whether orally or

in writing

o The Board itself, I would think, would wish to be certain that it had not made a

mistake in some fact or circumstance which it deemed relevant to its determination

(instrumental value). Once it had the appellants response, it would be for the Board to

decide on what action to take, without its decision being reviewable elsewhere, alwayspresuming good faith. Such a course provides fairness to the appellant, and it is fair as

well to the Boards right, as a public authority Status in office deserves this minimal

protection, however brief the period for which the office is held. (EMP edited version, p

6)

- justification for procedural fairness

o enhances good decision making, increases accuracy

o intrinsic value

more willing to accept decision if they believe the decision was made fairly

- duty of fairness not observed

- level of fairness

o opportunity to reply should have been given

- remedy

o same decision maker, same result

Homex Realty [1980] 2 SCR 1011 (Ont) (additional reading)

- dispute between Homex and the Village of Wyoming over who should pay for the installation of

municipal services on a Homex subdivision development

- Village Council eventually passed a by-law, without advance notice to Homex, that withdrew the

lands designation as a subdivision

- the P lanning Act required a municipal council to give notice after passage of a by-law but was

silent on whether notice was required before passage

Estey J:

The courts long ago developed the general proposition that wherever a statute authorizes theinterference with property or other rights and is silent as to whether or not the agency in question is

required to give notice prior to the intervention in such rights, the courts will supply the omission of

the legislature and require the agency in question to afford the subject an opportunity of being heard

before it proceeds: C oo per v. W and sworth Board of W ork s [1863].

(EMP Edited Case p 3).

Estey J: circumstances of the Councils decision were sufficiently individualized to attract a duty of

fairness

the by-law had some characteristics of a community interest by-law but it also represented the

purported culmination of an inter partes dispute conducted on adversarial lines between Homex and the

Council.

I draw no inference from [the Munici pal Act ] provisions that no prior notice may be requiredwhere the action in question is essentially inter partes in nature.

(EMP Edited Case p 4)

Estey J: Homex was denied its right to be heard because it was not given an opportunity to assess its

final position after becoming fully aware of the Councils final position

however, the Court exercised its residual discretion to deny any remedy to Homex

suggests bad faith by Homex in its efforts to avoid costs of municipal services that were agreed to by the

original owner of the subdivision

Councils only motive was to protect its residents from the costs undertaken by original owner of the

subdivision



57

Procedural fairness

- common law threshold cont.

o C ardinal [1985] (SCC)

o Inuit Ta piri sat [1980] (SCC)

- legitimate expectations as an aspect of procedural fairness

o Mount Sinai Hospital [2001] (SCC) o additional readings: Reference re C AP [1991] (SCC); V ietnamese Assn of Toronto [2007]

(Ont Div Ct)

Threshold Question

- since 1979, SCC has moved away from the distinction between judicial functions (duty of

fairness applies) and administrative functions (duty of fairness does not apply)

- rather, the duty is presumed to apply where the decision affects an individuals rights, privileges

or interests (broadly defined)

- in many cases, the duty is found to apply at the threshold stage, but is then given a limited or

flexible procedural content (e.g. Nichol son, where the Court left it for the police commissioners

to decide whether to hold a hearing)

C ardinal [1985] 2 SCR 643 (BC)

- prison directors decision to disassociate (segregate) inmates for the maintenance of good

order and discipline

- decision maintained despite recommendation by Segregation Review Board that the prisoners

be released into general prisoner population

- director did not give reasons or an opportunity for the prisoners to be heard

- threshold question:

o Le Dain J:

there is, as a general common law principle, a duty of procedural fairness

lying on every public authority making an administrative decision which is not of

a legislative nature and which affects the rights, privileges or interests of anindividual (para 14)

y must not be a legislative decision

y the rights privileges interests of an individual

There can be no doubt.. that the Director was under a duty of procedural

fairness in exercising the authority with respect to administrative

disassociation (para 14)

- content question:

o The question [of] what the duty of procedural fairness may reasonably require of an

authority in the way of specific procedural rights in a particular legislative and

administrative context must be approached [with caution] in the context of prison

administration. (para 15) context will determine content

o there was no duty to give reasons, or an opportunity to be heard, when the original

segregation decision was made

o but such a duty arose when the Segregation Review Boards recommendation for

release was rejected

o what if this more elaborate process would lead simply to the same (substantive)

decision being taken?

- Le Dain J:



58

o The denial of a right to a fair hearing must always render a decision invalid, whether or

not it may appear to a reviewing court that the hearing would likely have resulted in a

different decision. The right to a fair hearing must be regarded as an independent,

unqualified right which finds its essential justification in the sense of procedural

justice.... It is not for the court to deny that right and sense of justice on the basis of

speculation as to what the result might have been had there been a hearing. (para 23)

- duty of procedural fairness entailedo to give reasons for rejecting the review board decision and to allow the prisoners to

respond

Threshold Question

- emphasis now is on exceptional categories where the duty will not apply:

(1) where the decision is non-dispositive

(2) where the decision is legislative/ general in nature

(3) in case of emergency

(4) where the duty is removed or restricted by statute

- note: as one expands the meaning of rights, privileges or interests, the more difficult it

becomes to distinguish general policy decisions (where the duty does not apply) from

individualized decisions (where the duty applies)

Non-Dispositive Decisions

- procedural fairness applies where a dispositive or final decision is made

- procedural fairness does not apply to preliminary stages that offer suggestive advice/

recommendations to the decision-maker

o e.g. a Minister may receive input from civil servants; a municipal council may consider

reports from outside experts; an adjudicative tribunal may hear evidence from an

independent investigator

- as always, there are exceptions

o when the ultimate decision maker will defer to the preliminary decision maker: de facto

decisionso investigative process which attracts publicity public inquiries

- when might a merely advisory/ recommendatory decision nevertheless attract a duty of

fairness?

o where the statute says so

o where the decision has significant consequences for an individual:

o e.g. arising from publicity impact of a public inquirys hearings/ findings for

reputations of individuals

o e.g. arising from the decision-making structure role of a Human Rights Commission

investigation in deciding whether a Tribunal will be established

o original decision is non-dispositive but the ultimate decision maker will just

defer/rubber stamp the findings of the original decision maker (Re Abel); whererecommendations are always followed

procedural fairness applies to the Advisory Review Board (Re Abel)

Legislative or General Decisions

- procedural fairness does not apply to decisions of a legislative or general nature

o C ardinal [1985] (Le Dain J):

there is, as a general common law principle, a duty of procedural fairness

lying on every public authority making an administrative decision which is not of



59

a legislative nature and which affects the rights, privileges or interests of an

individual (para 14)

- the exception may extend beyond legislatures per se to general policy-makers (e.g. Cabinet,

Ministers)

o Martineau [1980] 1 SCR 602 (Can) (Dickson J):

A purely ministerial decision, on broad grounds of public policy, will typically

afford the individual no procedural protection, and any attack upon such adecision will have to be founded upon abuse of discretion. Similarly, public

bodies exercising legislative functions may not be amenable to judicial

supervision.

any decision maker making a ministerial decision on broad grounds of public

policy

Inuit Ta piri sat [1980] 2 SCR 735 (Can) legislative or policy exception

- decision by federal Cabinet not to overrule a decision by the Canadian Radio-TV and Telecomm

Commission

- CRTC had allowed Bell Canada to raise telephone rates without attaching a proposed condition

that Bell improve service in northern communities

- National Transportation Act , s 64(1) then authorized the Governor-in-Council (i.e. Cabinet):

o in his discretion, either upon petition of any party or of his own motion to overrule a

CRTC order or decision whether such order or decision is made inter partes or

otherwise and whether such regulation is general or limited in its scope and application

- Estey J (unanimous):

o cabinet is a delegate of parliament and in effect legislative and thus subject to the

legislative exception

o cabinet does not make individualized decisions

o is the decision of a general policy nature

o when not parliament, is the minister/cabinet making a general policy decision

o C abinet owed no d uty of proced ural fairness

o C abinet could decide of it s own motion , indicating no need for it to involve other s in the process

stat ute overr ules need for proced ural fairness

o impracticality today of imposing a notice and hearing requirement on Cabinet (in spite

of past practice under the Railway Act )

take away from time and resources

o Cabinet retains discretion on whether/ how it hears submissions from the public

o IT argues that the content of the procedural fairness should be

should receive copies of the record before CRTC

right of reply to the submission given to the civil servants

o Cabinet privilege

civil servant submissions to cabinet are protected

o Where... the executive branch has been assigned a function performable in the past by

the Legislature itself and where the res or subject-matter is not an individual concern or

a right unique to the petitioner or appellant, different considerations may be thought to

arise. The fact that the function has been assigned as here to a tier of agencies (the

CRTC in the first instance and the Governor in Council in the second) does not, in my

view, alter the political science pathology of the case.

cabinet is not subject procedural fairness unless the subject matter is an

individual concern



60

Class Example

Whether common law procedural fairness requirement will apply to the decision

- is the decision legislative in nature

- does the decision affect the rights, interests and privileges of an individual

- do any of the exceptions apply

o where the decision is non-dispositiveo where the decision is legislative/ general in nature

o in case of emergency

o where the duty is removed or restricted by statute

- decision affects Jills interest

o livelihood, reputation

- do any of the exceptions apply to the commission/minister

o non-dispositive?

o legislative/general in nature

o emergency?

o duty not removed by statute

- would not apply to the inspector since his decisions were non-dispositive

Whether the SPPA will apply

o that exercise a statutory power of decision

a power or right, conferred by or under a statute, to make a decision deciding

or prescribing: (a) the legal rights, powers, privileges, immunities, duties or

liabilities of any person or party, or (b) the eligibility of any person or party to

receive, or to the continuation of, a benefit or license, whether the person is

legally entitled thereto or not. (s. 1)

y include rights and privileges

o and that are required by statute or otherwise by law to hold or to afford to the parties

to the proceeding an opportunity for a hearing before making a decision. (s. 3)

affects adjudicative tribunals- yes for commission; no for minister

o continuation of a benefit or license 3(1)b and opportunity for a hearing met

clearly applies to the commission

exceptions do not apply to the commission

SPPA applies to Ontario statute and the Bio Sewage statute is an Ontario statute

o however the SPPA does not apply to the Ministers decision

subject to the exception 3(2)

does not hold a hearing

Legitimate Expectations

-

equivalent to the civil law doctrine of estoppel- where an official makes a commitment/promise and then person discovers that the promise is

not kept/terms of the commitment have changed

- might have the effect of crippling government flexibility in policy vs fairness to individual to

whom a promise/commitment has been made

- situations where a person relies on official practices or representations that later change, to the

detriment of the person

o common in licensing context

- fairness to individual v. governmental flexibility to revisit decisions in the public interest



61

- in such circumstances, the doctrine of legitimate expectations may give rise to a higher

entitlement to procedural fairness than would otherwise be the case, but not to substantive

rights

- process, not outcome, can be varied based on this principle

o outcome can only be varied through substantive review analysis

Mount Sinai Hospital [2001] 2 SCR 281(Que)- hospital applying for licensing authorization to operate

o moving from St Agathe to Montreal

- long term care facility

- expanded services to short term and emergency services

- hospital wanted licensing authorization modified to reflect its expanded services

- government minister approved ; subsequent minister denied the modification after the

relocation

- basis for denying modification: discretion to deny modification if not in the public interest

o highly discretionary

o difficult to challenge on substantive review

o minister: modification requires additional services that involve additional funding that

the government is unable to provide budgetary consideration

- hospital argues legitimate expectation

o argues that it should also affect outcome not just process

- commitment by Minister to revise and renew hospital licence if the hospital relocated to

Montreal

- hospital fund-raised and relocated, but the licence was denied by a new Minister after a change

of government

majority

- not a case where the minister was modifying a license, therefore statute in question does not

apply

- new license being issue, different statutory provisions applies- when the minister was discussing with the hospital its relocation, the minister actually exercised

his discretion to grant the license

- I think an activity can be authorized without an implied or acquired permit per se. In other

words, there may be permission in the sense of what is authorized but not in the sense of a

permit as an object. In any event, I would prefer here to say that the activities were authorized

(i.e., permitted) but that the permit itself did not yet exist. The Center was therefore acting

under its long-term care permit with the government's acquiescence with respect to any issue

related to the legality or il legality of that activity. It was not acting under an acquired or implied

modified permit. It brought the request for modification at the time the parties agreed to, once

the move to Montreal was made. It did this because it did not yet have that permit. While that

request may well have been a request for something the Center saw itself as entitled to, it wasnot a purely empty or formal request for that which it already possessed.

- this discretion was exercised when the Minister promised the Center that it would receive the

modified permit, encouraged the move to Montreal, endorsed the financing campaign focussed

on the role of the Center as a long-term and short-term care hospital, and continued to fund the

short-term care services despite the mismatch between those services and the Center's permit

Bastarache J (majority):

- treats decisions of the Ministers as single decision and orders that the hospital is entitled to

licence based on the original commitment



62

- no need to apply doctrines of legitimate expectations or public law estoppel

Binnie J (concurring):

- patently unreasonable decision to deny the license

- deals with the decision as substantive review analysis, however comments on legitimate

expectations

- the new minister made a patently unreasonable decision to deny the licence- affir ms that the doctrine of legiti mate ex pectations does not create substantive right s

- rather, exi stence of a legiti mate ex pectation makes it more likely that proced ural fairness , or a

higher level of proced ural fairness , will be required

1. no procedural protection is available to individuals for a purely ministerial decision, on broad

grounds of public policy

a. only requirement to consult

2. public bodies exercising legi slative functions may not be amenable to judicial supervision

3. the line between substantive and procedural may be difficult to draw in some cases, but:

An undue focus on formal classification and categorization of powers at the expense of broad

principles flexibly applied may do a disservice here. The inquiry is better framed in terms of the

underlying principle mentioned earlier, namely that broad public policy is pre-eminently for the

Minister to determine, not the courts. (para 35)

distinction between public law estoppel vs legitimate expectation

- does the doctrine create substantive rights

o estoppel: yes

o LE: no

- knowledge of promise

o estoppel: required

o LE: not required

Public Law Estoppel

- doctrine of estoppel may be available against a public authority in narrow circumstances

- requirements of estoppel go beyond those of legitimate expectations and are more difficult to

establish

- doctrine of estoppel must be adapted from private law context in order to accommodate the

need for legislative supremacy and regulatory flexibility

- knowledge of promise is required for public law estoppel unlike LE

- PROMISE WAS MADE, BROKEN, DAMAGE SUFFERED BUT SUBJECT TO LEGISLATIVE INTENT

PRECLUDING PUBLIC LAW ESTOPPEL

o broad discretionary power allows the minister to override past promises

Binnie J (para 47-48):

Here the Minister is mandated in broad terms to act in the public interest, and if the public

interest as he defines it is opposed to the award of the modified permit, then I do not think a

court should estop the Minister from doing what he considers to be his duty. What is at issue is

not so much the Ministers ability to change policies but the fate of individuals caught in the

transition between successive and inconsistent ministerial decisions on the same subject. As a

matter of statutory interpretation, it seems clear that the legislature intended the Minister,

not the courts, to determine the appropriate transitional arrangements.



63

Procedural Fairness

- What is the Source?

- Is the threshold satisfied for the source?

- what is the content of procedural fairness

o general level of fairness

o specific content

Content of procedural fairness

- relevant factors to determine the content of the duty

o Baker [1999] (SCC)

- e.g. right to notice/ disclosure based on a municipal by-law

o P leasures Gentlemens C l ub [2008] (Ont CA)

Content of Procedural Fairness

- where the duty of fairness applies, the next question is what the duty requires in a particular

context

- this content of the duty will vary widely

- one arrives at the general level of content by assessing and applying the five factors inBaker

- e.g. fairness options in different contexts:

o notice of the decision (after-the-fact or in advance)

o an opportunity to make written submissions

o an opportunity to comment on the draft decision

o access to written reasons from the decision-maker

o disclosure of relevant information held by the decision-maker (or, rarely, by other

parties)

o an oral hearing (usually with representation by counsel)

o an opportunity to call/ cross-examine witnesses

o a right of appeal (narrow or broad)

Baker [1999] 2 SCR 817 (Can)

o seminal case on how one arrives at the content of procedural fairness

o order to deport Ms Baker from Canada after 11 years in the country (illegally)

o discretionary decision by immigration officials whether to allow Ms Baker to remain on

humanitarian and compassionate grounds

o Ms Baker suffered from mental illness and had had four children in Canada

o her application was denied by officer Caden on advice from (junior) officer Lorenz

Ms Baker argued that procedural fairness required:

- an oral interview before the decision-maker

-

notice to her children and the other parent of the interview- a right for the children and the other parent to make submissions at the interview

- notice to the other parent of the interview and of that parents right to have counsel present

- reasons for the decision

- she also argued that notes taken by officer Lorenz showed unacceptable bias

LHeureux-Dubé J: five factors are relevant to the determination of the content of procedural fairness:

1. nature of the decision and the process

2. nature of the statutory scheme/ terms of the statute

3. importance of the decision to the individual or individuals affected



64

4. legitimate expectations of the individual

5. procedural choices of the agency itself

The nature of the decision being made and the process followed in making it (para 23)

- The more the process provided for, the function of the tribunal, the nature of the decision-

making body, and the determinations that must be made to reach a decision resemble judicial

decision making, the more likely it is that procedural protections closer to the trial model will berequired.

- note: this incorporates the old judicial-administrative distinction as one factor in the analysis

- process, function, nature of the decision making body, and determinations

The nature of the statutory scheme and the terms of the statute pursuant to which the body operates

(para 24)

- The role of the particular decision within the statutory scheme and other surrounding

indications in the statute help determine the content of the duty. 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 issues and further requests cannot be

submitted.

- where there is finality in the decision

- dispositive vs non-dispositive decisions

The importance of the decision to the individual or individuals affected (para 25)

- The more important the decision is to the lives of those affected and the greater its impact on

that person or those persons, the more stringent the procedural protections that will be

mandated

- note: in many cases, the content question boils down to a conflict between this factor and the

states interest in effective and expeditious decision-making

The legitimate expectations of the person challenging the decision (para 26)

- If the claimant has a legitimate expectation that a certain procedure will be followed, thisprocedure will be required by the duty of fairness. Similarly, if the claimant has a legitimate

expectation that a certain result will be reached in his or her case, fairness may require more

extensive procedural rights than would otherwise be accorded.

- i.e. in Canada legitimate expectations is part of the doctrine of procedural fairness and does not

create substantive rights Mount Sinai Hospital

The choices of procedure made by the agency itself (para 27)

- issue of deference

- particularly when the stat ute leaves to the deci sion-maker the ability to choose its own

procedures, or when the agency has an ex perti se in determining what procedures are

appropriate in the circumstances- eg., SPPA gives those tribunals the power to govern their own rules and procedures

o respect for their choice of procedural rules

o still subject to the common law requirement of procedural fairness

o one factor to look at in determining the level of fairness required

- [although not determinative] important weight must be given to the choice of procedures made

by the agency itself and its institutional constraints

- note: here we see deference to the agency itself rather than the legislature (contrast 2. above,

especially)



65

the list of five factors is not exhaustive (para 28):

- The values underlying the duty of procedural fairness relate to the principle that the individual

or individuals affected should have the opportunity to present their case fully and fairly, and

have decisions affecting their rights, interests, or privileges made using a fair, impartial, and

open process, appropriate to the statutory, institutional, and social context of the decision.

- note: like other questions, the question of procedural content is contextual and variable; more

about building persuasive arguments than getting the right answer

application of the factors in this case:

1. the decision was different from a judicial decision because it involved considerable

discretion and the consideration of multiple factors

a. not adjudicative, public officials with discretion making the decision

2. within the statutory scheme, the decision was an exception to the general principles of

immigration law; however, there was no appeal procedure (although judicial review was

available with leave)

3. the decision has exceptional importance to the lives of those with an interest in its result

the claimant and his or her close family members

4. no legitimate expectation to special procedures was created by the C onvention on the Right s

of the C hild

5. the Minister has considerable flexibility under the statute to decide on the proper procedure;

immigration officers do not, in practice, conduct oral interviews in all cases

- LHeureux-Dubé J disagrees with the earlier holding of the Federal Court of Appeal that the duty

of fairness owed in this context is minimal

- Rather, the circumstances require a f ull and fair consideration of the i ssues , and the clai mant

and other s whose i mportant interest s are affected by the deci sion in a f undamental way must

have a meaningf ul o pport unity to present the various ty pes of evidence relevant to their case

and have it f ully and fairly considered ( para 32)

o minimal, meaningful, high level of fairness

o general content of fairness which will guide the specific content

specific content of procedural fairness in this case:

- must allow the applicant to make written submissions, but..

o no requirement for an oral hearing or interview (particularly given the fact that several

of the factors point toward a more relaxed standard (para 34))

- duty to give reasons for the decision (satisfied by the provision of officer Lorenz notes)

- also, the officers notes displayed a reasonable apprehension of bias

Procedural fairness specific content

- e.g. right to notice/ disclosure based on a municipal by-law

o Pleasures Gentlemens Club [

2

008] (Ont CA)- do requirements of notice/ reply require an oral hearing?

o Singh [1985] (SCC)

o Khan [1997] (Ont CA)

o Suresh [2002] (SCC) (additional reading)

Analytical Framework Procedural Fairness

- what are the relevant sources of procedural rights or requirements?

- is the threshold test satisfied for the source in question?

- what general level of fairness is required based on the five Baker factors?



66

- what is the specific content of the procedural rights or requirements in the particular case (see

next slide)?

Content of Procedural Fairness

- e.g. fairness options in different contexts:

- notice of the decision (after-the-fact or in advance)

- an opportunity to make written submissions- an opportunity to comment on the draft decision

- access to written reasons from the decision-maker

- disclosure of relevant information held by the decision-maker (or, rarely, by other parties)

- an oral hearing (usually with representation by counsel)

- an opportunity to call/ cross-examine witnesses

- a right of appeal (narrow or broad)

P leasures Gentlemens C l ub [2008] (Ont CA)

- example of a requirement for greater disclosure of the grounds for revocation of a license, as a

component of a By-law requirement for prior notice of a hearing

- the source of the procedural requirement: municipal bylaw entitled to a hearing before your

license and notice

- decision by Hamilton City Council, on recommendation of licensing committee, to revoke licence

to operate adult entertainment parlour

- Club sought judicial review, arguing that City breached its right to a fair hearing

- City By-law regulates adult entertainment parlours; proposes reduction from four to two via

expiry or revocation of existing licences

- Citys Issuer of Licences may recommend revocation of licence to licensing committee where

licensee has not carried on business within a reasonable period of time

- licensees have procedural rights under By-law, including right to a hearing prior to revocation

plus written notice of hearing (including grounds for revocation)

the notice of hearing stated here:The grounds for the hearing are:

(a) The following documents:

(i) Certified copy of expired liquor licence.

(ii) Certified copy of cancellation notice of liquor licence application.

(iii) Inspection reports of Standards & Licensing Inspectors.

(iv) City of Hamilton Adult Entertainment Parlour Licence.

(v) City of Hamilton Sale of Lands for Tax Arrears notice.

(b) By-law 01-156.

- this is a list of documents but not reasons/grounds; very little content to the notice

- counsel to Club requested particulars of evidence to be introduced at hearing from City

- City responded with general outline of evidence (see para. 11)

- at the hearing, counsel objected to lack of notice of evidence, but hearing proceeded

- at the hearing, it emerged that information provided by the City was false or misleading (see

para. 14)

- city had not communicated to her that there was concern she had the license but was not

operating

- at the hearing, owner of Club indicated intention to open the club immediately, even without

liquor licence



67

- City licensing committee voted unanimously to revoke licence to operate for failure to carry on

business within reasonable time

- Divisional Court dismissed application for JR on basis that adequate particulars of evidence had

been given and no bias or bad faith was established

Rouleau J.A.:

- no need to consider the standard of review re: procedural fairness (para. 23)- lists Baker factors however does not offer detailed application

o would be expected to provide analysis on exam however

- Citys failure to provide proper disclosure violated the right to a fair hearing and tainted hearing

from outset

- By-law requires that basis for proposed revocation be provided prior to the hearing

- Citys notice of the hearing did not refer to the grounds for revocation, but to a series of largely

irrelevant documents and sections of the By-law (para 30)

- The subsequent letter from the city came two days before the hearing and served only to

further mislead the appellant about the nature of the evidence. [I]t failed to clear define the

issue to be determined (para 31)

o should have stated what the grounds for revocation were in the notice

- If proper disclosure had been made, the appellant would have known well before the hearing

date that the failure to open was the basis of the recommendation. It is not for this court to

speculate as to whether the result would have been the same had there been timely and

adequate disclosure: C ardinal v . Kent Instit ution.

- remedy: decisions of licensing committee and City Council are set aside; effect is to reinstate

licence to operate

In Class Example

Five Baker Factors

nat ure of the deci sion and the process - process, function, nature of the decision making body, and determinations

- by the Minister

o administrative, policy-laden, highly individualized

- by the Commission

o adjudicative

nat ure of the stat utory scheme/ ter ms of the stat ute

- for the minister: appeal is available to the commission

- for the commission: appeal is available on questions of law to divisional court

o decision is determinative

i mportance of the deci sion to the individ ual or individ ual s affected

- livelihood, economic, business interest

- similar to Pleasures gentleman club

legiti mate ex pectations of the individ ual

- no official promise arising from what was said (the following is a trap:o Jill contacted the Ministry of Environment and was encouraged to plead her case before the

Good Rural Living Commission which, Jill was told, would almost certainly reimburse her for lost

revenue so long as she presented a compelling case



68

- no prejudgment of the issue present

procedural choices of the agency itself

- broad discretion to control its hearings

- mention SPPA s 25

General Level of Fairness- adjudicative, limited appeal, important decision, no legitimate expectation, choice of procedure

- moderate; moderate to high

- not one factor is determinative

Singh [1985] 1 SCR 177 (Can)

- oral hearings

o concerns of credibility

o argument for oral advocacy

- example of a procedural requirement for an oral hearing what source of procedural rights and

requirements?

o Charter, Bill of Rights

- appeals by refugee claimants to Immigration Appeal Board from Ministers decision denying

claims based on advice of the Refugee Status Advisory Committee

- follows earlier examination of claimants under oath by senior immigration officer

- immigration officer interviews person under oath, transcript given to minister/committee;

committee makes recommendation to minister

- no oral hearing for claimants where IAB decides there are no reasonable grounds to believe a

claim could be established

o only face to face contact was at the initial interview stage

SCC:

- Wilson J (for 3 judges) finds violation of s. 7 of C harter

- Beetz J (for 3 judges) finds violation of s 2(e) of Bill of Rights, expresses no opinion on C harter o refer s specifically to a right to a fair hearing where an interest i s at stake

o a pplies to federal stat utes

Wilson J:

- Minister and IAB had followed the statutory procedures

- where the statute is sufficiently clear, cannot resort to common law therefore can only look to

Bill of Rights or Charter

- statute did not allow additional procedural requirements to be read in under the common law

- thus: is there a violation of s 7?

- focus on the refugee claimants rights under the statute as basis for engaging s. 7:

o In my view, to deprive him of the avenues open to him under the Act to escape fromthat fear of persecution must, at the least, impair his right to life, liberty and security of

the person in the narrow sense advanced by counsel for the Minister. (para 44)

- content of the duty of procedural fairness (pursuant to the principles of fundamental justice

PFJ)?

- written submissions may, in appropriate circumstances, be an adequate substitute for an oral

hearing, but not in all

o In particular, I am of the view that where a serious issue of credibility is involved,

fundamental justice requires that credibility be determined on the basis of an oral

hearing (para 59)



69

Are s 7 rights at stake, then ask is credibility an issue

- primary concern is the inadequacy of the claimants opportunity to be heard

- Wilson J -- content of the duty cont:

o . The applicant is entitled to submit whatever relevant material he wishes to the

Board but he still faces the hurdle of having to establish to the Board that on thebalance of probabilities the Minister was wrong. Moreover, he must do this without any

knowledge of the Ministers case beyond the rudimentary reasons which the Minister

has decided to give him in rejecting his claim. It is this aspect of the procedures set out

in the Act which I find impossible to reconcile with the requirements of fundamental

justice as set out in s. 7 of the C harter . (para 61)

- thus, the scheme violates s 7; not saved by s 1

Beetz J:

- allows appeal based on Bill of Rights, s. 2(e):

o no law of Canada shall be construed and applied so as to 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.

- no dispute that the process involves determination of the claimants rights and obligations

- rejects AGs argument that claimants were afforded a fair hearing

- without an oral hearing, claimants not heard by the Advisory Committee, by the Minister, or by

the IAB

summary:

- using s 7 for the establishing the right to an oral hearing as a requirement of pfj since life,

liberty, security of the person is at stake and where credibility issues arise

Khan (1997), 34 OR (3d) 535 (CA)

- K failed a law school exam, but claimed that a fourth booklet had been lost

- failure of the exam contributed to Ks failure of second year, which required her to complete anadditional semester before graduating

- appeal to the Faculty Exam Committee was rejected without an oral hearing, for these reasons:

o exams are subject to strict procedures

o exam booklets had not been lost in past

o K had indicated there were only three booklets

o little was written in the third booklet

- appeal to the University Senate was also rejected

Laskin J.A. (majority):

- procedural fairness required:

o an oral hearing to evaluate Ks credibility

o an opportunity for K to correct or contradict the factors relied on by the Committee

o consideration by the Committee of whether the procedures followed in this exam were

proper

Finlayson J (dissent):

- concern about administrative burden

- Committee members were aware of the quality of Ks work in the first three booklets

- consequence for the individual was merely to prolong her studies by a semester



70

- Ministerial security certificate/ order to deport permanent resident on grounds of danger to the

security of Canada

decision made based on report by immigration officer, informed by CSIS information

S was allowed to make written submissions and file material, but not given access to the report or the

CSIS information

SCC:s. 7 interest was engaged: Suresh had established pri ma facie case that, if deported, he would likely be

tortured

principles of fundamental justice: at the least, these require compliance with the common law

requirements of procedural fairness

Baker factors applied to arrive at content of PFJ in this context:

decision/ process resembled judicial decision-making, but was also highly discretionary

statutory scheme re: danger opinion (s. 53(1)(b)) did not lay out any procedural rights

consequences of deportation are serious; add to this refugee status of S plus likelihood of torture

Governments ratification of Convention Against Tortures, which prohibits deportation to torture,

indicates a commitment to procedural safeguards

procedural choices of the Minister (highly discretionary under the Act) do not outweigh the need for

procedural protection given the serious situation of refugees who face torture if deported

Governments ratification of Convention Against Tortures, which prohibits deportation to torture,

indicates a commitment to procedural safeguards

procedural choices of the Minister (highly discretionary under the Act) do not outweigh the need for

procedural protection given the serious situation of refugees who face torture if deported

Procedural fairness

Dismissal of public officers

- Dunsmuir [1990] (SCC)

- Keen v . C anada [2009] (FC)

Ridge v Baldwin

- three categories of public officer appointments

o master and servant rules (private law of employment)

o officer employed at pleasure

o officer can be dismissed for cause

- duty of procedural fairness and requirement for a hearing for the third category i.e. for cause

o hearing prior dismissal

o oral hearing

o remedy available: reinstatement

- intended to protect independence of the public officers: ensure separation of powers

Background: Knight [1990] 1 SCR 653 (Sask)

- power of school board to dismiss director of education without cause/ appointed by statute at

at pleasure

- requirement of procedural fairness extended to category 2: i.e., employed at pleasure of the

Crown

o oral hearing required for dismissal public officers employed at pleasure

- SCC: duty to act fairly applies because (1) the decision is final and specific, (2) the position has a

statutory flavour and goes beyond a private employment relationship, and (3) there is a

significant impact on the individual



71

LHeureux-Dubé J:

- The justification for granting to the holder of an office at pleasure the right to procedural

fairness is that, whether or not just cause is necessary to terminate the employment, fairness

dictates that the administrative body making the decision be cognizant of all relevant

circumstances.... One person capable of providing the administrative body with important

insights into the situation is the office holder himself....- recall also Nichol son [1979] (SCC)

Collective Agreements

- provide elaborate processes involving dismissal including a grievance procedure

Dunsmuir v NB [2008] 2008 SCC 9

- not subject to a collective agreement

- if you are a public officer the primary basis for protection is the contract/collective agreement

o Knight reversed: no hearing required for public officers employed at pleasure

o not clear whether Ridge v Baldwin reversed ie dismissable for clause

- D was a public servant and statutory office holder with the NB Department of Justice

- D was dismissed by NB without cause being alleged and without a hearing

- on dismissal, D was given 4.5 months salary in lieu of notice

- NB relied on s. 20 of C ivil Services Act : Subject to the provisions of this Act and any other Act

[termination] shall be governed by the ordinary rules of contract.

- D grieved the dismissal under the NB P ublic Service Labour Relations Act

- s. 97(2.1) of that Act stated:

o Where an adjudicator determines that an employee has been discharged or otherwise

disciplined for cause and the collective agreement or arbitral award does not contain a

specific penalty for the infraction that resulted in the employee being discharged or

otherwise disciplined, the adjudicator may substitute such other penalty for the

discharge or the discipline as to the adjudicator seems just and reasonable in all the

circumstances.- D asserted that the government had in reality dismissed him for cause and that he was entitled

to seek reinstatement

- adjudicator ordered that D be reinstated because he was dismissed without a hearing (citing

Knight )

- SCC : Knight i s overt urned for it s establi shment of a common law d uty of fairness where a public

employer di smi sses a public officer who i s subject to a contract of employ ment

- D was appointed at pleasure as a public officer under statute and his dismissal as an employee

was governed by the ordinary rules of contract

- no independent right to a hearing based on common law rules of procedural fairness

majority:- [104] while public law is rightly concerned with preventing the arbitrary exercise of delegated

powers, the good faith exercise of the contractual rights of an employer, such as the right to end

the employment relationship on reasonable notice, cannot be qualified as arbitrary. Where the

terms of the employment contract were explicitly agreed to, it will be assumed that proced ural

fairness was dealt with by the parties.

- [105] . the good faith exercise of a common law contractual right to dismiss with(*out?) notice

does not give ri se to concerns about the illegiti mate exerci se of public power . Moreover, as will

be discussed below, where public employers do act in bad faith or engage in unfair dealing, the



72

private law provides a more appropriate form of relief and there is no reason that they should

be treated differently than private sector employer s who engage in similar conduct.

- no public law duty of procedural fairness where the public officer is employed at pleasure

sources of procedural fairness

- statute

- contract- common law

o any public officer is entitled to the procedural fairness protections as long as there is a

sufficient statutory flavor (Knight)

- if the statute/contract does not provide for the requirement for the hearing, there is no further

right found in the common law (Dunsmuir)

- Ridge v Baldwin is preserved: procedural requirement for dismissable for cause

SCC (para 113 and 115-16):

- assume that public employment relationships are contractual

- exception: judges, ministers, and others who fulfill constitutionally defined roles

- exception: duty of fairness may flow by necessary implication for a statutory power re: the

employment relationship

- for public officers appointed at pleasure, procedural fairness is required to ensure that

public power is not exercised capriciously

o still a duty of procedural fairness however it is more limited than that which was

required by Knight

The Isoto pe C ri si s

- reactor operating since 1957

- produces a significant portion of the worlds medical isotopes used for the treatment of cancer

patients

- CNSC issues the license for Chalk River and concludes that Chalk River is not complying with

safety requirements - government upset over this decision: ordered the commission to allow the reactor to resume

operationcommission refuses

- under statute, minister has the authority to issue a binding directive

- parliament pass legislation specifically ordering the reopening of the reactor

Keen v C anada (AG) 2009 FC 353

- by an Order-in-Council, K was dismissed as President of the Canadian Nuclear Safety

Commission

o Order in Council: courts are loathe to look behind the processes of cabinet

- dismissed as president, maintains membership in the commission however resigns

-

K subsequently resigned as a member of the CNSC and sought judicial review of her dismissal asPresident

- Members of the CNSC are appointed by the Governor in Council and hold office for 5-year terms

during good behaviour.

- President of the CNSC is designated by the Governor in Council; no statutory indication of a term

limit or conditions.

(see Nuclear Safety and C ontrol Act , S.C. 1997, s. 10 and 12)

o statutory silence regarding appointment of president



73

- prior to Ks dismissal, Minister of Natural Resources sent letter to K seeking her submissions

prior to his possible recommendation to the Governor in Council that K be terminated as

President, but allowed to keep her position as a member of the CNSC

- K sought specific allegations of any personal misconduct or poor performance on her part

Hughes J (FC):

- all federal public officers are deemed to hold office during pleasure unless otherwiseexpressed by statute or other instrument (Interpretation Act, R.S.C. 1985, c. I-25, s. 23)

o silence deemed to mean she holds her office during pleasure

- appointment during good behaviour refers to the test for judicial incapacity so as to

undermine public confidence in the judicial office

- as President of the CNSC, K served at pleasure and her right to procedural fairness was

satisfied by the Ministers letter prior to issuance of the Order-in-Council

- K was not dismissed as a member of the CNSC and so was not entitled to procedural fairness in

relation to her resignation as a member of the CNSC

- appointment at pleasure is intrinsically precarious (citing P elletier , [2008] 3 F.C.R. 40 (FCA))

- in the face of statutory silence such persons have a right to notice of an intention to dismiss and

to make representations prior to a final decision to dismiss (citing Dunsmuir , para. 115-16)

o not cons defined role

o not by statutory implication

o statute is silent: deemed to be appointed at pleasure

procedural fairness applies but not at the level of a hearing


- right to notice and reply at the investigatory stage

o Tanaka [1996] (NWT Supreme Court)

- disclosure (of in-house legal advice)

o P ritchard [2004] (SCC)

o e.g. from Walkerton Inquiry

- right to counselo Irvine [1987] (SCC)

Tanaka v . C ertified General Accountant s Assn ( NW T) [1996] NWT Supreme Court.

- no duty of fairness in non-dispositive decision

o investigatory decision

- complaint of professional incompetence against T, an accountant

- judicial review by T of decision by Vice-Chair of the Assns disciplinary committee to establish a

committee of inquiry into the complaint

o sufficient basis in the complaint to warrant an investigation

- decision was based on information provided by the complainant against T and an investigation

by the Vice-Chair- T was informed by the Assn of the complaint and its substance only after the decision to

establish a committee of inquiry

Donihee J:

- unfair to make decision without input from Tanaka threshold met

- limited duty to obtain Ts reply during the Vice-Chairs initial investigation

- significant impact on professional reputation of decision to establish committee of inquiry



74

- It is misleading to simply state that either there is or is not a duty of fairness in the

investigatory stage, since the wide divergence of the type of powers being utilized by

investigating bodies may lead to different results. (para. 35, citing Casey)

- those [cases] which have found there to be a duty of fairness [in an investigation] have

tended to be those where a conclusion or a finding as to the rights of the individual would

ensue. (para 35)

- notice should have been given to T, seeking Ts response to the complaint- purpose is simply to assist the investigator to come to a reasoned decision and to avoid errors

- remedy: direct a fresh investigation by someone other than the Vice-Chair

In Class Example

Five Baker Factors

nat ure of the deci sion and the process

- process, function, nature of the decision making body, and determinations

- by the Minister

o administrative, policy-laden, highly individualized

- by the Commission

o adjudicative

nat ure of the stat utory scheme/ ter ms of the stat ute

- for the minister: appeal is available to the commission

- for the commission: appeal is available on questions of law to divisional court

o decision is determinative

i mportance of the deci sion to the individ ual or individ ual s affected

- livelihood, economic, business interest

- similar to Pleasures gentleman club

legiti mate ex pectations of the individ ual

- no official promise arising from what was said (the following is a trap:o Jill contacted the Ministry of Environment and was encouraged to plead her case before the

Good Rural Living Commission which, Jill was told, would almost certainly reimburse her for lost

revenue so long as she presented a compelling case

- no prejudgment of the issue present

procedural choices of the agency itself

- broad discretion to control its hearings

- mention SPPA s 25

General Level of Fairness

- adjudicative, limited appeal, important decision, no legitimate expectation, choice of procedure

- moderate; moderate to high

- not one factor is determinative

Content of Fairness

Notice

- no notice given that there were complaints and that an investigation had begun



75

- common source of fairness

- non-dispositive decision

o could argue Tanaka that there should be a limited duty of fairness

- investigator: non-dispositive and insufficiently effecting the rights of the individual to warrant a

higher duty of fairness

o timing/content: did it allow an effective reply

- ministers decision: investigators report used as noticeo no notice prior to suspension

- commission decision

o was reasonable notice given s6 SPPA

investigator report

statements of anticipated evidence

o where the good character is question s8 of SPPA

reasonable information of any allegation

s 8Where the good character, propriety of conduct or competence of a party is an issue in a proceeding,

the party is entitled to be furnished prior to the hearing with reasonable information of any allegations

with respect thereto

Notice of hearing

6.(1)The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.

Hearings to be public, exceptions

9.(1)An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of

such a nature, having regard to the circumstances, that the desirability of avoiding disclosure

thereof in the interests of any person affected or in the public interest outweighs the desirability

of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing in the absence of the public

Oral Hearing

- are there credibility issues at stake

not informed of the substance of Waynes complaint

- issue of disclosure: provision of info to the affected individual that is information used in

decision concerning the individual

- Disclosure in administrative law

- in judicial review, an individual is typically entitled to disclosure of information relied on by the

decision-maker (especially adjudicative decision-makers)

-

unlike in civil or criminal proceedings, an individual is typically not entitled to information heldby third parties that was not otherwise considered by the decision-maker (i.e. there is no

discovery)

- in-house legal advice offers an interesting problem re: disclosure of information relied on by the

decision-maker

Disclosure of in-house legal advice: P ritchard [2004] 1 SCR 809

- P complained of sexual harassment by her former employer

- Ontario HR Commission declined to deal with the complaint



76

- on judicial review, P sought disclosure of an in-house legal opinion to the Ontario HR

Commission

- not supplied with in house legal opinion given to the decision maker

Judicial Review P roced ure Act , s. 10:

- When notice of an application for judicial review of a decision made in the exercise or

purported exercise of a statutory power of decision has been served on the person making thedecision, such person shall forthwith file in the court for use on the application the record of the

proceedings in which the decision was made.

o record

documentation lead to the decision

submission

witness statement

transcripts

reasons

SCC:

- in-house legal advice to an administrative board is protected by solicitor-client privilege

- cannot be overridden by mere inference in a statute

- however, policy advice given in an executive or non-legal capacity is not protected

- here, the advice was legal and thus protected

- Owing to the nature of the work of in-house counsel, often having both legal and non-legal

responsibilities, each situation must be assessed on a case-by-case basis to determine if the

circumstances were such that the privilege arose. Whether or not the privilege will attach

depends on the nature of the relationship, the subject matter of the advice, and the

circumstances in which it is sought and rendered. (para 20)

e.g. from Walkerton Inquiry evidence

- email in 1997 from John Tooley (supervisor, MOE Belleville office) in which Tooley indicated

there was no requirement for private labs to notify the local MOE office of adverse results at

water systems:o . In fact, I can almost guarantee that the laboratory does not notify the [MOE] District

Manager in the vast majority of cases. The number of deteriorating, poor and unsafe

results [that the MOE learns about] have dropped dramatically since our labs do not do

the analyses.

- email was sent in advance of a meeting on notification requirements for drinking water testing

- email reply from Stella Couban (lawyer, MOE Legal Services Branch) after consulting with

superiors at the LSB and presenting three options, of which the third was to enact a mandatory

notification regulation:

. I am not sure whether the concept of a regulation imposing a new requirement is

even a starter with the current regime and its interest in lessening or reducing theamount of regulatory control.

policy or legal advice?

in her testimony to the Inquiry, Ms. Couban cited three problems with the option of a notification

regulation:

1. it involved suggesting a new regulation in the current government climate

2. it would have resource implications for front-line MOE staff at a time when their resources

had been cut fairly significantly



77

3. it would impose a new requirement on the private sector a move that would probably not

have been a starter with the government at the time

- in-house legal advice protected by solicitor-client privilege?

Right to counsel in administrative law

- individuals are typically entitled to be represented by an agent, which may include a lawyer orpara-legal, in administrative decision-making

- scope of the right to counsel (e.g. rights to call evidence or cross-examine witnesses) is often

restricted to facilitate or expedite the process

- in rare circumstances, lawyers may be precluded entirely (e.g. Quebec Small Claims Court)

Irvine [1987] 1 SCR 181 (Can)

- exemplifies a process with restricted procedural rights due to a special context:

o People of the same trade seldom meet together, even for merriment and diversion,

but the conversation ends in a conspiracy against the public, or in some contrivance to

raise prices. It is impossible indeed to prevent such meetings, by any law which either

could be executed, or would be consistent with liberty and justice.

Adam Smith

The W ealth of Nations (Book I, Chapter X)

competition regulation: interest of the government to ensure competition in the

market so the consumers benefit from the competition so that prices are

reduced

Three stages of decision making

- Investigation by the director of the commi ssion

- f ull inquiry by a tribunal of the commi ssion

- deci sion by the mini ster s on whether to act on the re port of the commi ssion

Irvine is primarily concerned with the first stage, the investigation by the director- could argue that it was non-dispositive, not the final decision made

- director held hearings in private and could interview individuals in private

- counsel for the director would examine witnesses in these private hearings

- witnesses were not allowed to be present when other witnesses were being questioned

- each witness is allowed to have a lawyer; lawyer can be present throughout the investigation

- lawyer can only ask questions of their own client, cannot ask questions of any other person who

testifies or cross-examine

- argue that this process was procedurally unfair

Irvine [1987] 1 SCR 181 (Can)

-

inquiry by Restrictive Trade Practices Commission (now Competition Commissioner/ Tribunal)into alleged price-fixing

- investigation by Director of the Commission could occur in private and witnesses could be

denied access to each others testimony

- right in the statute to be represented by counsel

- hearing was held following compelled interviews of 29 persons and notices to their corporate

employers

- counsel for the persons/ companies under investigation could be present during the hearing

- role of counsel was to conduct re-examination for clarification or explanation only; no cross-

examination of other witnesses



78

- Directors counsel carried out examination-in-chief of each witness

- Directors report supplied to the Commission which then decided whether to hold a full public

inquiry

- following an inquiry, the Director could make recommendations to Ministers re possible criminal

offences or other remedies

Estey J- stage 1 findings are not given to the public or minister limited distribution

o Baker -seriousness of the consequences to the individual is limited

- overall decision-making structure is not unfair; rationales:

(1) special difficulties of trying to uncover market conspiracies where a small number of

sophisticated players interest of the state in effective investigations

(2) the Directors findings are given only to (a) those against whom allegations are made and (b)

Commission; they are not given to the Ministers or the public

(3) the Directors role is purely investigatory; he or she does not make dispositive decisions

based on the information that is acquired in private hearings

o the report to the Ministers is made by the Commission as a whole after a full public

inquiry

o any decision to prosecute is left to the Attorney General of Canada

- There is a very limited duty of fairness at stage 1

- purely investigatory stage which requires limited level of fairness

- role of the lawyers was sufficient to satisfy statutory and common law requirement of

procedural fairness to have counsel

- might have a right to counsel but there are degrees of representation

o cross examination

o speak on ones behalf

- example of decision making context where the unique interest of the state justify limited

procedural fairness rights

- example of right to counsel might be satisfied by limiting the role of counsel


- giving of reasons

o VI A Rail [2001]

o Lafontaine [2004]

- was there a duty to give reasons

o if yes, were reasons given and were they adequate to satisfy the requirement

Baker [1999] 2 SCR 817 (Can)

Duty to give reasons:- In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of

procedural fairness will require the provision of a written explanation for a decision. The strong

arguments demonstrating the advantages of written reasons suggest that, in cases such as this

where the decision has important significance for the individual, when there is a statutory right

of appeal, or in other circumstances, some form of reasons should be required. (para 43)

o duty was satisfied by the provision of Lorenz notes

o reasons may be limited to accommodate the demands of expeditiousness in the

decision making process



79

Content of the duty to give reasons:

- In my view, however, the reasons requirement was fulfilled in this case. The notes were given

to Ms. Baker when her counsel asked for reasons. Accepting documents such as these notes as

sufficient reasons is part of the flexibility that is necessary when courts evaluate the

requirements of the duty of fairness with recognition of the day-to-day realities of

administrative agencies and the many ways in which the values underlying the principles of

procedural fairness can be assured. (para 44)

Rationale to Give Reasons

- facilitate review by the courts

o courts can consider reasons and see whether anything was missed, or if there was any

error in the interpretation of the statute

o give indication to others how the regulatory requirements are being interpreted and

applied

o self-disciplining mechanism for the decision maker

o person affected gets an explanation

- four parties considered

o individual affected

o decision maker itself

o court reviewing

o others who may be subject to the same regulation

VI A Rail [2000] FCA

- group of athletes, 8 of which were disabled travelled on via rail

- complained that via had not provided sufficient access

- NTA has raised a new issue, not raised by the athletes regarding the passenger tariff

- regulation of VIA rail by National Transportation Agency

- VIA Rail Passenger Tariff:

o requirement that a personal attendant who traveled on same ticket as person with a

disability had to be capable of (a) assisting the person with boarding and de-boardingand (b) attending to the persons personal needs during the trip

- NTA concern that it amounted to an undue obstacle to access to require personal attendant to

assist in boarding and de-boarding

o Via rail should assist in boarding

- National Transportation Agency concluded that the requirement was an undue obstacle to the

mobility of persons with disabilities

- NTA ordered VIA to remove the requirement and assume responsibility for the boarding/ de-

boarding of passengers with disabilities

W hat does the d uty to give reason entail?

Federal Court of Appeal:

- The duty to give reasons is only fulfilled if the reasons provided are adequate. as a general

rule, adequate reasons are those that serve the functions for which the duty to provide them

was imposed. (para 21)

o were the reasons adequate

look to the purpose of giving reasons (4 rationales)

- here, the functions include: focusing the decision-maker; assuring the parties; effectuating any

right of appeal or judicial review; and guiding others (para 17-20)



80

- for this Court to hold that the Agencys reasons are adequate, we must find that those

reasons set out the basis upon which the Agency found that the existence of the tariff

constituted an obstacle, that they reflect the reasoning process by which the Agency

determined that the obstacle was undue and include a consideration of the main factors

relevant to such a determination. (para 24; emphasis added)

o basis for the conclusion that the tariff was an obstacle

definition of obstacle; undue obstacley taken from statute, case law

why the particular requirement in the tariff constituted an obstacle

o reasoning process

competing consideration in favour or against Via Rail

o consideration of the main factors

why one preferred one submission over another

- here, the reasons do not define the concepts of obstacle and undue and do not sufficiently

indicate the reasoning process followed

o no definition of obstacle or undue

o relevant factors are not considered by the NTA in explaining why the obstacle is undue

- relevant factors

o require staff, new training, collective agreements

o effect of requirement on scheduling and effect on other passengers

o insurance

o additional personnel at small stations

- factors relevant that this was an undue obstacle

o difficult to get a personal attendant and thus limiting mobility

o dignity of the individual

o should be able to travel with as much independence as possible

- for the reasons to be adequate these factors had to have been canvassed

- NTA should have considered relevant aims of the Act, and should have considered other

relevant factors including VIAs operational & economic objectives and the needs of different

groups of passengers see para 41-42

C ongrégations des témoins de Jéhovahv Lafontaine [2004] 2 SCR 650 (Can)

- municipal planning decisions duty to give reasons

- refuses on planning grounds to allow a Kingdom Hall to be built

- SCC overturn the decision on the basis of failure to give reasons

- three decisions by Lafontaine Municipal Council denying a re-zoning application by the

Congregations of Jehovahs Witnesses to build a place of worship

o first decision: rejected proposal to build in residential zone; Council cited burden on

residential taxpayers following a study

only one site zoned for this use and this site was not adequate, request a

different site commission conducted a study on the impact on rate payers

public committee held which gave reasons

o second decision: rejected proposal to build in commercial zone; Council says that lots

are still available in a P-3 community zone

applied to have kingdom hall built on a commercial zone rejected with reasons

o third decision: indicated that no lots were available and stated that approval fall within

the municipalitys discretion; The municipal council of Lafontaine is not required to

provide you with a justification and we therefore have no intention of giving reasons for

the councils decision. (para 91)



81

o detailed reasons given at first decision

- SCC majority: municipality owed duty of fairness; content based on Baker factors:

o nature of the decision: both administrative and political; delegated discretion of elected

officials to decide in the public interest; but may not act arbitrarily (cites Roncarelli )

calls for a lower level of fairness

not a judicial decision making process

but rather administrative and politicalo statutory scheme and its provisions: no appeal mechanism

calls for a higher level of fairness because of the finality

o importance to the Congregation: practice of religion

calls for a higher level of fairness on the basis of freedom of religion

content cont.:

- legitimate expectations: Here, the municipality followed an involved process in responding to

the Congregations first rezoning application, in so doing giving rise to the Congregations

legitimate expectation that future applications would be thoroughly vetted and carefully

considered. (para 10)

o since there was an elaborate process in the first stage, this gave rise to a LE that reasons

would be given

- procedural choices of the decision-maker: in rezoning, municipalities have greater expertise

than the judiciary; but less weight given here because no record indicating that village engaged

its expertise

- municipality was required to carefully evaluate the application for a zoning variance and to give

reasons for refusing them. (para 12)

o Giving reasons for refusing to rezone in a case such as this serves the values of fair and

transparent decision making, reduces the chance of arbitrary or capricious decisions,

and cultivates the confidence of citizens in public officials.... This duty applied to the first

application, and was complied with. If anything, the duty was stronger on the

Congregations second and third applications, where legitimate expectations of fairprocess had been established by the Municipality itself. (para 13)

municipality acted unlawfully:

- In refusing to justify its decision to deny the second and third applications for zoning variances,

the Municipality breached the duty of procedural fairness it owed to the Congregation. The

Municipality acted in a manner that was arbitrary and straddled the boundary separating good

from bad faith. (para 30)

- second and third refusals set aside; remitted to municipality for reconsideration

Summary of duty to give reasons

-

is there a duty to give reasons based on the common law (B

aker ) or some other source (e.g.SPPA)?

- if so, what is the general level of the duty (Baker factors) e.g. adequate reasons that indicate

the basis for the decision, its reasoning, and consideration of relevant factors? (VI A Rail )

- did the form and content of the reasons that were given satisfy this duty in the specific context?

Case study on procedural fairness: public inquiries

- overview/ Arar Inquiry terms of reference

- notice: Blood Inquiry [1997]



82

- compelled testimony: rights (in criminal context) to fair trial and against self-incrimination:

P hilli ps [1995]

- additional reading: Dixon [1997] (FCA)

Overview public inquiries

- engage in a process o hearings with elaborate representation and participatory rights to

determine findings of fact which may have significance for the reputation of individuals/organization

o findings of fact in an investigatory setting

- can also serve public policy purposes ie Royal Commission

- special mechanism of investigation into tragic or scandalous events associated with government

- findings of fact and recommendations

- not established by legislature or courts; established by the executive (usually by Cabinet)

pursuant to dedicated general legislation

o P ublic Inquiries Act , R.S.O. 1990, c. P-41

o Inquiries Act , R.S.C. 1985, c. I-11

Bill 212: an act to promote good government

o Public Inquiries Act of Ontario being revised

o powers of government over the budgetary and timeline decisions

- conducted by a commissioner who is usually a sitting judge (independence)

o sitting judge has the maximum status of independence

o will the highly publicized inquiry call into question the independence of the judge

o will the findings of the judge later be punished (OConnor not promoted to Chief Justice

of Ontario after the government was not pleased with his handling of the Walkerton

Inquiry)

- exercises coercive powers re: witnesses and documents (thoroughness; independence)

o power to compel a person to testify in public

o compel production of documents

- elaborate procedural rights; no findings of criminal or civil responsibility (fairness)

o can make factual findings, findings of misconduct- held in public (openness; independence)

What principles should a public inquiry operate under?

- accountability/public interest

o Cabinet is accountable for establishing an inquiry and setting out the parameters of the

investigation

- openness

- independence

- capacity (including coercive powers)

- fairness to the persons investigated

Walkerton Inquiry Principles

- Independence

- Thoroughness

- Openness

o who should decide what is made public

o UK 2005 amendment: government can determine what evidence be made public

- Fairness

- Expeditiousness



83

Thoroughness, Openness, Expeditiousness may be in conflict with Fairness at times

Alternative Investigative Models

- parliamentary committee

o open, highly politicized (problem of independence)

- auditor general

- ombudsperson- judicial review

- media

- criminal prosecution

- civil suit

- employee discipline

- internal investigation

- outside consulting firm

o issues of independence

e.g. Arar Inquiry terms of reference

- a) to investigate and report on the actions of Canadian officials in relation to Maher Arar,

including with regard to

(i) the detention of Mr. Arar in the United States,

(ii) the deportation of Mr. Arar to Syria via Jordan,

(iii) the imprisonment and treatment of Mr. Arar in Syria,

(iv) the return of Mr. Arar to Canada, and

(v) any other circumstance directly related to Mr. Arar that the Commissioner considers

relevant to fulfilling this mandate,

- in this Order referred to as the factual inquiry, and

Arar Inquiry terms of reference

(b) to make any recommendations that he considers advisable on an independent, arms length

review mechanism for the activities of the Royal Canadian Mounted Police with respect tonational security based on

(i) an examination of models, both domestic and international, for that review

mechanism, and

(ii) an assessment of how the review mechanism would interact with existing review

mechanisms,

in this Order referred to as the policy review.


(c) pursuant to section 56 of the Judges Act, the Honourable Dennis R. OConnor be authorized

to act as a Commissioner on the inquiry;

. (e) the Commissioner be authorized to adopt any procedures and methods that he may consider

expedient for the proper conduct of the inquiry, and to sit at any times and in any places in

Canada that he may decide;


(f) the Commissioner be authorized to grant to any per son who sati s fies hi m that he or she has a

substantial and direct interest in the subject-matter of the fact ual inquiry an opportunity during

that inquiry to give evidence and to examine or cross-examine witnesses personally or by

counsel on evidence relevant to the persons interest;

- standing



84

- direct: must be affected in a unique way individually


(o) the Commissioner be directed to perform his duties without expressing any conclusion or

recommendation regarding the civil or criminal liability of any person or organization and to

ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or

criminal proceedings;- no conclusion regarding criminal/civil liability

- fairness of the criminal/civil trial is not encroached upon

Blood Inquiry [1997] 3 SCR 440 (Can)

- timing of notice

- investigation into the tainted blood scandal

- public inquiries carry potentially serious consequences for those against whom allegations are

made

- thus, there is a statutory notice and hearing requirement for those who may be the subject of

findings of misconduct; e.g.:

- No report shall be made against any person until reasonable notice has been given to the

person of the charge of misconduct alleged against him and the person has been allowed full

opportunity to be heard in person or by counsel (Inquiries Act , R.S.C. 1985, c. I-11, s. 13)

Blood Inquiry cont.

- here, the Commissioner (Horace Krever) issued 45 notices of potential findings of misconduct,

involving 95 individuals, corporations and governments

- the notices were delivered confidentially at the conclusion of the Inquirys scheduled hearings

Blood Inquiry cont.

Cory J:

- procedurally fair

- all of the parties either (1) had standing before the inquiry or (2) had opted not to apply forstanding but were otherwise very aware of the Inquirys progress and had participated as

witnesses

- those with standing at the inquiry were given extensive procedural rights

Blood Inquiry cont.

Cory J:

- the language in the notices did not convey findings of criminal or civil liability but rather possible

findings of misconduct (using terms like failure, responsible)

- the notices were given in confidence

o protects reputation

o no detriment until final report- could make closing submissions, submit new evidence

- thus, the challenge was premature pending the prospect of further hearings and pending

release of the Commissioners report

- judicial review should only come at the conclusion of the report

P hilli ps [1995] (SCC)

- provincial inquiry into Westray mine disaster two mine managers faced criminal charges

- public inquiry called at the same time they faced criminal charges



85

- mine managers applied to quash subpoenas from Inquiry or delay their testimony until after the

criminal process was complete

- rights to a fair trial and against self-incrimination

o conduct of the public inquiry put these rights in jeopardy

o right to a trial by judge and jury: difficult to get an untainted pool to make up the jury

o right against self-incrimination: testimony is compelled at the inquiry

- Inquiry proceedings had been stayed pending judicial review

Sopinka J:

- by the time of SCC hearing, mine managers had opted for trial by judge alone and the trial was

underway

- on this basis, the stay on Inquiry proceedings should be lifted

- but what about the right against self-incrimination?

Cory J:

- public inquiries can be carried out prior to a criminal charge being resolved only under certain

conditions

- witnesses may be compelled at public inquiry regardless of whether they may be prosecuted for

conduct under investigation before the inquiry

- public inquiry must serve legitimate purpose (i.e. must not be a surrogate for criminal

investigation)

- derivative use immunity for witnesses at public inquiry

o to allow PI to occur on an immediate basis

o content of testimony cannot be used against them in future proceedings

o Crown cannot introduce evidence that would not be available but for the PI

o parties to a civil lawsuit can rely on the documents produced at a Public Inquiry however

not the compelled testimony

- government runs risk of jeopardizing a subsequent criminal prosecution

Standing- entitled to be present during hearings

- notice of the evidence being produced

o who the witness is; will say statements

- entitled to counsel

- may propose witnesses for the counsel to call

- notice of any findings of misconduct

- entitled to make closing submissions

Cory J (para 97):

- the government must, and undoubtedly has, carefully considered the choices open to it. If it

chooses to proceed with the Westray Inquiry and to endow the Commissioner with anunlimited power to subpoena, then it runs the risk that the criminal trials of the accused

managers may possibly be irreparably compromised. On the other hand, if the government

wishes to take every possible precaution to ensure that there is no risk to the criminal trials,

then it could choose to halt, delay, or limit the powers of the Inquiry. To follow this latter

course, however, involves the inevitable risk that the public will lose faith both in the

government's ability and willingness to get at the truth and in the political system as a whole.

Additional reading: Dixon [1997] (FCA)

Governor in Council established commission of inquiry in March 1995 to inquire into the conduct of

Canadian Forces in Somalia



86

Governor in Council later declined to extend deadline for commissions report until September 1997, as

requested by the commissioners

Federal Court judge declared the Governor in Councils Order-in-Council (declining to extend the

deadline) ultra vires

Dixon cont.

Marceau J.A.:

. a commission of inquiry issued pursuant to the Inquiries Act depends for its existenceentirely on the Governor in Council. How then can the Trial judge arrive at the conclusion that, once

created, the Commission somehow acquired independent statute, not only with respect to the manner

in which it exercised its powers within its terms of reference, but also with respect to its very existence

and its institutional structures ? (para 12)

as a creature of the executive, Commission must abide by the Governor in Councils deadlines

postscript

Jean Chrétien, My Year s as P M (2007):

- For the opposition parties, calling for a public inquiry is usually an easy way to dig up dirt or

keep a hot issue on the front burner. For the government, giving in to the calls is often a

mechanism to do nothing, to dodge responsibility, or to postpone a controversial decision.

Very few of these inquiries in my experience have ever been of much use, and those few were

valuable only because they didnt turn into television soap operas.. But it is the nature of

public inquiries to get turned into show trials, kangaroo courts and political entertainment..

Theres not the same right of due process. Scores of reputations are shattered for no good

cause. (p 187-188)

What is the appropriate role of public inquiries and what should be their limits?

Closed proceedings

- not open to the person whos rights are being affected

- overview: secrecy and unfairness

- flexible approach to closed deportation proceedings: C hiarelli [1992] (SCC) - (modestly) constrained approach to closed security certificate proceedings: C harkaoui No. 1

[2007] (SCC)

How to know you are being smeared

- you are accused without warning

- you are accused of conduct that is sufficiently vague to make it difficult or impossible to

disprove

- Jack is untrustworthy Jill is a threat

- the accusation is dribbled out over time

- you are forced by the accusation to reveal information or commit to positions on the record

-

you are accused anonymously sources say

The rendition and torture of Maher Arar

- findings and conclusions of the Arar Inquiry, based on a review of all secret material and

testimony by CSIS/ RCMP witnesses in closed proceedings:

o 26 Sept 2002: while passing through JFK airport in New York, A was arrested and

detained by American officials for 12 days

o 8 October 2002: A was removed against his will to Syria where he was imprisoned for

nearly one year



87

o 2002-03: while in Syrian detention, A was interrogated, tortured and held in degrading

and inhumane conditions

o 5 Oct 2003: A returned to Canada after his release from Syria


- A has never been charged with any offence in Canada, the US, or Syria

- based on evidence on all information collected about A in Canadian investigations, there isnothing to indicate that A committed an offence or that his activities constitute a security threat

- although RCMP officers were interested in interviewing A in 2001-02, they did not consider him

a suspect or a target of investigation; however, the RCMP provided US authorities with

information about A that was inaccurate, portrayed him in an unfairly negative fashion and

overstated his importance in the RCMP investigation


- e.g. the RCMP requested in Oct 2001 that US authorities place customs lookouts on A and his

wife, describing them as Islamic Extremist individuals suspected of being linked to the Al Qaeda

terrorist movement

- the RCMP had no basis for this description, which had the potential to create serious

consequences for A in light of US attitudes and practices at the time

- it is very likely that, in making the decisions to detain and remove A, US authorities relied on

information about A provided by RCMP

followed by the smearing of Maher Arar

- Arar Inquiry re port : This case is an example of how some government officials, over an

extended period of time, used the media to put a spin on an affair and unfairly damage a

persons reputation. Given the content of the released information, only individuals with access

to classified information could have been responsible for the leaks. The obvious inference is that

this was done to paint a picture they considered favourable either to the Canadian government

or to themselves. (p 257)

- Summer 2003: Arar is a very bad guy who received military training at an al-Qaeda base (RFife, Ottawa C itizen, citing an unidentified official)

- 10 Oct 2003: Arar was roughed up but not tortured while detained in Syria (J Sallot, Globe and

Mail , citing unnamed Canadian government sources)


- 23 Oct 2003: Arar provided info to the Syrians about al-Qaeda, the Muslim Brotherhood, and

cells in Canada, and implicated other Canadians in extremist activities (C T V New s, quoting

senior government officials in various departments)

- 4 Nov 2003: Arar holds a press conference, tells his story, and describes torture he suffered in

Syria while denying allegations that he was implicated in terrorism or associated with terrorists

-

8 Nov2

003

: front-page story entitled Canadas dossier on Maher Arar: The existence of a groupof Ottawa men with alleged ties to al-Qaeda is at the root of why the government opposes an

inquiry into this case (J ONeill, Ottawa C itizen, citing classified documents); reports in detail

what A allegedly told Syrian Military Intelligence while in detention; cites a security source as

saying a suspected al-Qaeda cell in Ottawa explained Canadian government opposition to a

public inquiry into As case.


- 30 Dec 2003: regarding A, this guy is not a virgin.There is more than meets the eye here.

Regarding U.S. dossier on A: if the Americans were ever to declassify the stuff, there would be



88

some hair standing on end. (R Fife,Ottawa C itizen, quoting a senior Canadian intelligence

source)

- 28 Jan 2004: public inquiry announced.

- Arar Inquiry re port : During the Inquiry, witnesses involved in the Arar file and who had access

to classified information were asked if they knew of anyone responsible for any of the leaks. All

those asked responded, under oath, that they knew nothing and could not shed any light on

who might have been involved. The sources of the leaks are a complete mystery to everyone.(p 261)

Overview closed proceedings

- closed proceeding: an adjudicative process to which the individual whose rights or interests are

affected (and the public) is denied access

- closed proceedings entail secret evidence

- in some contexts, closed proceedings are used to provide special methods of accountability for

the use of the states secrecy powers

- the implications of the decision making are not as serious as a criminal process

- serious questions of fairness (and accuracy)!

Three rationales for invoking national security confidentiality

- protect the identity of sources (informers, CSIS employees)

- protect ongoing investigations, techniques, technologies relied upon by CSIS

- foreign caveats: undertakings attached to international information sharing

o cannot disclose information to any third party as a condition of information sharing

Administrative Decision Making: rationales for secrecy

- immigration context: where the state is relying on secret evidence for deportation

- civil lawsuit: where one sues the government, government does not have to disclose

confidential documents

- security clearance denial

- access to information proceedings

e.g. C anada E vidence Act , s. 38

- context: put in place after 9/11

- in any proceedings if anyone believes that sensitive info to be disclosed, have a legal duty to

inform AG of Canada

- duty to inform Attorney General of Canada of any expected disclosure of sensitive information

in any proceeding (s. 38.01)

- power of AG to give notice that disclosure would be injurious to national security, national

defence, or international relations, or to authorize disclosure (s. 38.03 and 38.04)

- AG or an individual may apply to Federal Court re: whether disclosure would be injurious and

whether any injury from disclosure is outweighed by the public interest in disclosure; appeal toFederal Court of Appeal (s. 38.06 and 38.09)

o adopted from doctrine of public interest immunity

- Federal Court determines application in closed proceedings where government lawyers and

witnesses are heard (s. 38.11)

- prohibition on disclosure of such information, fact that notice has been given, or fact that

application to Federal Court has been made (s. 38.02)

- AG may personally issue certificate prohibiting disclosure even after a Court has ordered

disclosure (s. 38.13)



89

- CEA s. 38 has been invoked in criminal, civil, and administrative (immigration, security

classification, access to information) proceedings most recently at the MPCC inquiry into the

treatment of Canadian-held detainees in Afghanistan


(k) the Commissioner be directed, in conducting the inquiry, to take all steps necessary toprevent disclosure of information that, if it were disclosed to the public, would, in the opinion of

the Commissioner, be injurious to international relations, national defence or national security

and, where applicable, to conduct the proceedings in accordance with the following procedures,

namely,

(i) on the request of the Attorney General of Canada, the Commissioner shall receive

information in camera and in the absence of any party and their counsel if, in the opinion of the

Commissioner, the disclosure of that information would be injurious to international relations,

national defence or national security,

(ii) in order to maximize disclosure to the public of relevant information, the Commissioner may

release a part or a summary of the information received in camera and shall provide the

Attorney General of Canada with an opportunity to comment prior to its release, and

(iii) if the Commissioner is of the opinion that the release of a part or a summary of the

information received in camera would provide insufficient disclosure to the public, he may

advise the Attorney General of Canada, which advice shall constitute notice under section 38.01

of the C anada E vidence Act ;


(l) the Commissioner be directed, with respect to the preparation of any report intended for

release to the public, to take all steps necessary to prevent the disclosure of information that, if

it were disclosed to the public, would, in the opinion of the Commissioner, be injurious to

international relations, national defence or national security;

(m) nothing in this Order shall be construed as limiting the application of the provisions of the

C anada E vidence Act ;


- why may closed proceedings be unfair?

- absence of the individual

o individual cannot share information that may be relevant

o no notice, no right of reply; adversarial principle is gutted

o adjudicator is denied access to relevant facts/ argument

o counsel/ special advocate cannot receive instructions- absence of the public

o adjudicator is denied access to relevant facts/ argument

o participants aware that there will be no public scrutiny

- note that degree of absence depends on degree of disclosure


- unique dependence of adjudicator on the executive

o control over underlying record

o potential for deceit/ error



90

o monopoly over dedicated expertise

o lack of authority over foreign sources

- dynamic/ atmosphere of closed proceedings

o courts lack of expertise

o lopsided executive presence in hearing room

o war of attrition in disclosure


- in some contexts, especially criminal trials, secret evidence is considered irreparably unfair and

is barred outright

- in administrative law, closed proceedings may be permitted in highly exceptional

circumstances, presumably because the impact on individual rights or interests is less serious

- various procedural adaptation may be adopted in an effort to ameliorate the resulting

unfairness

e.g. contexts where closed proceedings are permitted for exceptional reasons:

- applications for security warrants

- access to information requests

- government security clearances

- seizure of assets of organized crime

- listing of organizations as terrorist

- security-based immigration decisions

what about decisions that lead to deportation or to lengthy detention pending deportation?

C hiarelli [1992] 1 SCR 711 (Can)

- compliance with principles of fundamental justice

- C was a permanent resident of Canada

- based on RCMP information, a joint ministerial report was issued that C, if allowed to remain in

Canada, will be involved in serious crime and should be deported

- Immigration Act provides for review of the ministerial decision to deport by the SecurityIntelligence Review Committee (SIRC)

o SIRC: adjudicative body that reviews CSIS conduct

- SIRC may deny access by C to the evidence introduced against him

- a summary of the evidence is provided to C, but excludes references to RCMP sources of

information

- FCC: the SIRC review process violates C harter s. 7and is not saved by s. 1

SCC (Sopinka J):

- no violation of s. 7: the C SIS Act (establishing SIRC) and the SIRC Rules reach a reasonable

balance between the individual and state interests

-

principles of fundamental justice were not offended by the use of this process- C had adequate notice and opportunity to reply:

o C received a Statement of Circumstances giving rise to the joint ministerial report

o before the hearing, C received an extensive summary of surveillance of his activities

o after the hearing, C received a summary of the evidence

notes:

- Cs lawyer not permitted in closed proceedings

- SIRC role to balance disclosure vs non-disclosure

- SIRC counsel reports to presiding commissioner of SIRC and makes submissions and cross

examines witnesses of the government



91

- SIRC counsel allowed to speak to C and his lawyer however could not disclose sensitive

information

- role of SIRC was removed for deportation orders of foreign nationals and deportation of

permanent residents

- responsibility shifts to Federal Court

C harkaoui No. 1 [2007] 1 SCR 350 (Can)- security certificates, issued by ministers, declaring a permanent resident or foreign national to

be inadmissible to Canada on security grounds

- individuals who pose a threat to the security of Canada

- may lead to removal from Canada or to indefinite detention (or other restrictions on liberty)

pending removal

- certificates are reviewed for reasonableness by a Federal Court judge in closed proceedings

o deferential standard of review

- our focus:

o are closed proceedings ever justified where s. 7 is engaged?

o if so, in what circumstances?

SCC:

- life, liberty, security of the person engaged

- the prospect of deportation/ detention engages interests protected by s. 7

- national security considerations may necessitate closed proceedings

- adequate substitutes to the procedures of open proceedings must be employed in order to

accord with the principles of fundamental justice

- the substitute procedure must provide meaningful and substantial protection of due process in

order to satisfy s. 7

o Baker analysis leading to a general level of fairness (note)

- here, the procedure for judicial review of security certificates did not conform with the

principles of FJ because it failed to ensure a fair hearing, for three reasons

(1) the procedure precludes a judicial decision based on all relevant facts and law

a. right to reply is compromised because of the secret nature of the evidence(2) the procedure deprives the individual of the right to know the case to meet and to

reply

(3) the judge is not in a position to compensate for the lack of informed scrutiny,

challenge and counter-evidence that a person familiar with the case could bring (para

64)

- FCJ judge in not a position to compensate for the absence of the individual as

opposed to the process involving SIRC counsel in Chiarelli

Chiarelli and Charkoui are not in conflict because they involve different models of decision making and

the degree to which they offer substitutes for the absence of the individual

SCC

- the violation of s. 7 is not justified under s. 1:

- alternatives exist to review of security certificates in closed proceedings by a judge alone, e.g.:

o previous role of counsel to the Security Intelligence Review Committee (SIRC)

o role of amicus curiae/ commission counsel at the Arar Inquiry

amicus does not report to commissioner who advises him of the national

security confidentiality issues and an expert views of the

o role of special advocates in the United Kingdom

protects the individuals interest



92

- in response to C harkaoui , a system of special advocates was established for the security

certificate review process (Bill C-3)

- we will discuss this alternative next class

Administrative Law

Case study in procedural fairness:

closed proceedings & special advocates C harkaoui No. 2 [2008] (SCC): disclosure of notes of CSIS interviews

Bill C-3 (2008): role of special advocates


why may closed proceedings be unfair?

absence of the individual

no notice, no right of reply; adversarial principle is gutted

adjudicator is denied access to relevant facts/ argument

counsel/ special advocate cannot receive instructions

absence of the public

adjudicator is denied access to relevant facts/ argument

participants aware that there will be no public scrutiny

note that degree of absence depends on degree of disclosure


unique dependence of adjudicator on the executive

control over underlying record

potential for deceit/ error

monopoly over dedicated expertise

lack of authority over foreign sources

dynamic/ atmosphere of closed proceedings

courts lack of expertise

lopsided executive presence in hearing room

war of attrition in disclosure

C harkaoui No. 2 [2008] 2 SCR 326 (Can)

- demonstrates judicial dependency on executive in closed proceedings

- C detained from May 2003 to Feb 2005 when Federal Court judge authorized his conditional

release after fourth review of detention

- prior to fourth review, government counsel revealed to judge that a document that should have

been disclosed to C in May 2003 was not disclosed due to an oversight

- document was a summary of CSIS interviews with C in 2002


- C requested disclosure of complete notes and recordings of the CSIS interviews

- there were no recordings in the file and CSIS policy is to destroy notes of CSIS interviews once

CSIS officers complete their reportso could not verify whether notes accurately reflect the report

o report is then relied on by Ministers, and court in the issuance of a security certificate

- C applied for stay of proceedings and requested that certificate be quashed

- if you are investigating a specific person for a criminal investigation, police must disclose

everything including exculpatory information

- however investigative work by CSIS will not lead to the criminal prosecution of the individual

- distinction between security intelligence and law enforcement

- CSIS does not exercise the same coercive powers as police however they can get search

warrants, surveillance and wire taping



93

- blurred distinction in the context of the security certificate

SCC:

- CSIS breached its procedural fairness duty under the CSIS Act to retain and disclose information

- existing C harter s. 7 case law on disclosure and retention of information required CSIS to retain

all infor mation relating to security certificate investigations and to di sclose it to relevant

mini ster s and F ederal C ourt j udge- require independent review of information

LeBel and Fish JJ.:

- notes are a better source of information, and of evidence; retention would make it easier to

verify the disclosed summaries and information based on those notes (para 39)

- earlier decision of SIRC cited report to SIRC by Foreign Affairs that was found to be inaccurate

and misleading because CSIS information had been inaccurate and incomplete


- although CSIS is not a police agency, it has a duty of disclosure going beyond mere summaries

o duty of disclosure arising from principles of fundamental justice because of the severity

of the consequences for the individual

- CSIS had misinterpreted their own statute to destroy their records on the basis of protecting the

privacy rights of the individual

- security certificate proceedings are not criminal trials but procedural fairness under C harter s. 7

required a procedure for verifying the evidence adduced against [the individual] centring on

review by the designated judge (para 56)


- ... If the original evidence was destroyed, the designated judge has access only to summaries

prepared by the state, which means that it will be difficult, if not impossible to verify the

allegations....

o dependence on the executive- As things stand, the destruction by CSIS officers of their operational notes compromises the very

function of judicial review. To uphold the right to procedural fairness of people in Mr.

Charkaouis position, CSIS should be required to retain all the information in its possession and

to disclose it to the ministers and the designated judge. The ministers and the designated judge

will in turn be responsible for verifying the information they are given. (para 61-62)

o foreign source information; caveats attached to information given

o to what extent does a threat justify the denial of procedural fairness and the detention

of an individual

o s 7 requires that if CSIS or any executive is collecting information that may lead to the

detention of the individual they must retain that information and produce it to the

ministers and court for review so they are properly informed

Bill C-3 & special advocates

- responds to decision in Charkaoui 1

o provisions of the IRPA that allow for security cert to lead to the detention based on

closed proceeding before a judge alone is procedurally unfair, violates s 7 and not saved

by section 1

- amendment to Immigration and Refugee Protection Act (security certificate provisions) adopted

after C harkaoui No. 1 [2007]

- royal assent 14 Feb 2008



94

- security certificate is issued by two Ministers (Public Safety and Emergency Prep; Cit and

Immigration)

- certificate declares a foreign national or permanent resident to be inadmissible to Canada on

grounds of security, violating human or international rights, serious criminality, or organized

crime (s. 77(1))

- introduces special advocates who will protect the interest of the individual in the closed

proceedings, full access to the confidential information and the ability to cross examinewitnesses


- certificate is referred to Federal Court judge for determination of whether the certificate is

reasonable (s. 77(1))

- Minister files with Federal Court information on which certificate is based and summary of that

information

- summary must enable the person to be reasonably informed of Ministers, but must exclude

anything the disclosure of which would be injurious to national security (s. 77(2))


- during process of review of certificate, Ministers may issue a warrant for the arrest and

detention of a person if they have reasonable grounds to believe the person is a danger to

national security (s. 81)

- Federal Court judge reviews the Ministers reasons for detention within 48 hours and at least

once every six months until reasonableness of certificate is determined (s. 82(1) and (2))


- judge shall order detention if satisfied that release under conditions would be injurious to

national security (s. 82(5)(a))

- otherwise, judge shall order release and set any conditions considered appropriate (s. 82(5)(b))

- Minister may order release from detention to permit departure from Canada (s. 82.4)


- s. 83(1) proceedings to review certificates/ warrants:

o judge may hear information in closed proceeding if of the opinion that disclosure would

be injurious to natl security

o judge shall ensure person receives summary of the information

o judge shall provide person with opportunity to be heard

o judge may base decision on information not in summary

o judge shall not base decision on information that is not relevant or that is withdrawn by

the Minister

executive has the option of withdrawing information in order to protect

confidentiality interest weighs interests of maintaining caveats vs the prosecution


- judge may not hear information believed on reasonable grounds to have been obtained via

torture or cruel treatment (s. 83(1.1))

- judge may refuse to appoint special advocate who is requested by the person only in case of:

o unreasonable delay

o conflict of interest

o risk of inadvertent disclosure that would be injurious



95

cannot appoint SA to multiple cases where there is overlap


- s. 85, 85.1, and 85.2 special advocates:

o Minister of Justice establishes a list of lawyers who may act as a special advocate

o Minister of Justice shall ensure adequate administrative support and resources

o role of special advocate is to protect the interests of the [person] in a closedproceeding on a certificate or warrant


- special advocate may challenge Minister re:

o claim that disclosure would be injurious

o relevance, reliability and sufficiency of information

- special advocate may:

o make oral and written submissions

o participate in closed proceedings; cross-examine witnesses

o exercise, with the judges authorization, any other powers necessary to protect the

interest of the [person]

eg., authority to call a witness, interview a CSIS officer, access and review of

information that was not disclosed


- special advocate may not communicate with another person about the closed proceeding unless

authorized by judge

24 special advocates as of 6 October 2009):

- Ron Atkey, Jean-Paul Aubry, Colin Baxter, Donald Bayne, Norman Boxall, Gordon Cameron, Paul

Cavalluzzo, Paul Copeland, Denis Couture, François Dadour, James Duggan, Jonathan Faulds,

Brian Gover, Bernard Grenier, Anil Kapoor, Sylvain Lussier, Patrick McCann, Barbara McIsaac,

John Norris, Murray Rankin, Leonard Shore, David Stratas, Lorne Waldman, Ivan Whitehall

Canadian Bar Association submissions

- allow special advocates to request that SIRC certify that full disclosure to the judge and special

advocate has occurred

- give special advocates the power to call witnesses

- allow special advocates continuing access to the person

- require an express balancing by the judge of interests in disclosure versus non-disclosure

Recent revelation: Harkat security certificate case

- detention and heavy conditions on release since 2002 based on information from secret source;

source failed polygraph test in2

002

and2

008 (G&M 5 June2

009)- polygraph results not revealed to Federal Court and special advocates until summer of 2009

- CSIS senior counsel: The failure to include relevant information in the source matrix was

inexcusable and is a matter of profound concern to the Service


- Harkats counsel: The polygraph results arent just something that was sitting in a corner. They

buried them both. From what has been supplied to us, its hard to imagine that there is anything

other than a deliberate choice to be less than full and frank with the court



96

- Most of the evidence in this case has been destroyed, including all of the original notes and - -

sources My concern isnt limited to this one source. How do we know about the other

sources? How can we trust the summaries prepared by CSIS?


- Noel J. re-calls three CSIS witnesses to testify in closed proceeding:

- Noel J. concludes that the exceptional circumstances of the case require CSIS to reveal a sourcefile: It is necessary to repair the damage done to the administrative of justice and to re-

establish the necessary climate of trust and confidence which must be present in such an

exceptional legal procedure.

The Ricin Plot

- police had raid an apartment and found evidence showing that ricin was being made and that

there was a plan for destructive uses

- PM Blair: Ricin Plot raid underscores dangers of WMDs, a danger that is present and real and

with us now and its potential is huge (7 Jan 2003).

- US Sec of State Colin Powell statement to UN Sec Council (5 Feb 2003): refers to UK poison cell

as part of a terrorist network aided by Saddam Hussein; informs House Ctee on Intl Relations

The ricin that is bouncing around Europe now originated in Iraq (12 Feb 2003).

- following invasion of Iraq, US commanders report having destroyed a poison factory, and that

it was from this site that people were trained and poisons were developed which migrated to

Europe. We think thats probably where the ricin found in London came from. (31 March 2003).

The Ricin Plot

- initial positive test for ricin was, within days, confirmed as a false positive by Porton Downs

laboratory

- no trace of ricin or any other poison found on any materials seized from flat

- materials seized included handwritten recipes for ricin; modest amounts of castor oil, cherry

stones and apple seeds

- equivalent poisons can be bought as rat poison or weed killer- false positive not disclosed publicly until two years after original arrests

- scale of the threat was seriously exaggerated

The Shooting of Jean Charles de Menezes

- inaccurate information reported on the shooting:

o he was wearing an unseasonably warm overcoat

o he was wearing a padded belt with wires protruding from it

o he looked Asian or Pakistani

o he was aware he was being followed

o twenty officers chased him into the station

o he jumped over the ticket barrier and ran down an escalator

o police challenged him but he refused to obey instructions

o he looked like a cornered fox as he was hotly pursued

o he half tripped and was then pushed to the floor of the train carriage by plain clothes

officers

The Shooting of Jean Charles de Menezes

- information leaked from IPCC, 3.5 weeks after shooting:

o he was not aware he was being followed, he was not wearing a padded jacket, he

passed through the ticket barrier normally, and he did nothing to arouse suspicion



97

o there was no police chase, he was restrained by an unarmed officer after taking a seat

on train, just before he was shot

o police officers who first identified him followed him, while awaiting armed officers, as

he traveled through London and entered the tube

o he was identified as suspect based on visual observation only without additional

verification against photos of suspects; an officer who might have videotaped him could

not switch on the camera because he was relieving himself at the time- all of the video surveillance were not functioning at the time Menezes was shot

Independence & impartiality

- overview

o component of procedural fairness

- cases on institutional aspects:

o Régie des per mi s d alcool [1996]

o Ocean P ort Hotel [2001]

o Bell C anada [2003]

Independence & freedom from bias

- second element of procedural fairness:

o nemo j udex in causa pro pria sua one should not be judge in ones own cause

- both institutional and individual aspects of independence/ impartiality:

o institutional: focus on structure of decision-making process

o individual: focus on person(s) making the decision


- general test = reasonable apprehension of bias [RAB Test]

o The apprehension of bias must be a reasonable one, held by reasonable and right-

minded people, applying themselves to the question and obtaining thereon the required

information. (National E nergy Board [1978]; cited in e.g. Baker [1999] at para 46).

- re: institutional aspects of independence/ impartiality, the reasonable apprehension of biasmust exist also in a substantial number of cases


- content of the RAB standard will vary widely in different circumstances of administrative

decision-making

- also, the standard does not rise to the constitutionalized level of independence that is required

for judges (e.g. security of tenure until a set retirement age, guaranteed salary, bars on outside

remuneration)

o security of tenure

o financial security: state guarantees salary

o institutional independence: court has to have control over institutional decision making,case management,


- for both institutional and individual aspects, the concern is not simply with actual bias, but also

with perceived bias

- RAB test captures perceived bias

- thus a court examines whether there is reason for the reasonable and right-minded person to

apprehend bias on the part of the decision-maker or decision-making process



98


- for actual bias, the decision-maker would have to admit it in a reliable statement difficult to

prove

- possible sources of perceived bias:

o direct or indirect connections between the adjudicator and a party or issue (e.g. a

financial interest)

o statements reflecting an attitude or predisposition on the part of the decision-maker(e.g. Baker )

o involvement in an earlier stage of the decision-making process

NRB case: Marshall Crowe chair of the NRB was hearing a dispute to build a

pipeline; had been on a committee to establish a pipeline


- however, these possible sources of bias unlawful under the common law (on procedural fairness

grounds) only if they violate the reasonable apprehension of bias standard

- thus, one must construct a detailed argument, using the available facts, for why the RAB

standard has or has not been satisfied


- because we are speaking of the common law standard of independence/ impartiality,

Parliament or a provincial legislature may overrule the requirement by statute, either explicitly

or implicitly

= a key difference between the independence of decision-makers in administrative law

and that of judges in constitutional law

- much greater flexibility in the administrative context

Régie des per mi s d alcool [1996] 3 SCR 919 (Que)

- adjudicative body to review decisions to suspend liquor licenses

- source: common law and Quebec Charter which require right to be adjudicated before an

independent and impartial tribunal- challenge to independence of an investigative and adjudicative body in administrative law:

o members appointed for two, three or five years

o maximum term of five years

o members may be dismissed for cause

- do these institutional aspects reveal a reasonable apprehension of bias?

SCC:

- fixed term appointments are acceptable for adjudicative tribunals

- however, removal of tribunal members must not be merely at pleasure of the executive

- here, members could be dismissed only for cause and could challenge their dismissal in court

-

this satisfies the (common law) requirements of independence

Régie des per mi s d alcool cont.

on the other hand, the SCC finds a reasonable apprehension of bias in this case for other institutional

reasons:

- lawyers conducted investigation, made recommendations, took part in the adjudicative process

and the final decision making process

-



99

1. overlapping role of the Régie lawyers (involvement both in prosecution and adjudication of

cases)

2. overlapping role of the Régie directors (involvement both in setting and deciding cases)

( refer to para 57-60)

Ocean P ort Hotel [2001] 2 SCR 781

- Regie used to argue that the alcohol license review body was not independent and impartial- decision of provincial Liquor Control and Licensing Branch to suspend liquor licence of Ocean

Port Hotel in Squamish, BC

- decision to suspend was taken, following a hearing, by a Senior Inspector of the Branch

following an investigation by another Senior Inspector

- appeal to Liquor Appeal Board led to a de novo (entirely new) hearing; decision was upheld

Ocean P ort Hotel cont.

- decision of Liquor Appeal Board challenged on grounds that structure of Board did not satisfy

common law requirement of independence

- focus on lack of secure tenure for Board members:

o appointed at pleasure

as opposed to dismissal for cause (Regie)

o serve on a part-time basis

o assigned to cases at the discretion of the Chair of the Board

SCC:

- appointments structure and operation of the Board is authorized by statute

o overrides common law requirements

o under the common law, the structure would have been procedural unfair

o statute was sufficiently clear and express to override the common law

- if statute were silent or ambiguous, the court would infer that Parliament intended to comply

with the common law requirements of procedural fairness

- but here the statute is explicit: BC legislature clearly intended, by use of the term at pleasure,that Board members would not have tenure; this ousts the common law (para 25 and 27)

- courts will fill the omission of the legislature by reading in common law requirements of

procedural fairness where the statute is vague or silent

SCC (para 27):

It is easy to imagine more exacting safeguards of independence longer, fixed-term

appointments; full-time appointments; a panel selection process for appointing members to

panels instead of the Chairs discretion. However, in each case one must face the question: Is

this what the legislature intended?

o i.e. constitutional guarantees of independence apply to superior and provincial court

judges but not to administrative tribunals

Bell C anada v. C T E A [2003] 1 SCR 884 (Can)

- challenge by Bell Canada to the independence and impartiality of the Canadian Human Rights

Commission and Tribunal based on:

1. power of HR Commission to issue guidelines that bind a HR Tribunal

2. power of HR Tribunal Chair to extend Tribunal members terms in ongoing inquiries

SCC:



100

- para 25: would a well-informed person, viewing the matter realistically and practically, have a

reasonable apprehension of bias in a substantial number of cases? NO on both issues

o first, the power of the HR Commission to issue binding guidelines is limited to a class of

cases

guidelines are not on how to decide on case by case basis

issue is consistency

o Parliament may choose to give overlapping functions to the HR Commission policy, investigative and adjudicative decision making functions

Bell C anada cont.

- a HR Tribunal also has the power to find that guidelines issued by Commission are ultra vires the

Commission

- . Given the many constraints on the Commissions guidelines power, and the many ways in

which the Tribunal is empowered to question or set aside guidelines that are in violation of the

law, it does not seem likely that the Commissions guidelines could improperly influence the

Tribunal.

- Parliaments choice was obviously that the Commission should exercise a delegated legislative

function. (para 49-50)

what sources was the court relying on for the procedural requirement of fairness?

- Canadian Bill of Rights 2e

- common law requirement satisfied: allows for overlapping functions

- institutional structure was not procedurally unfair

- overlapping role of the commission is permissible both under the Canadian Bill of Rights and the

common law

Bell C anada cont.

- second, the power of the Tribunal Chair to extend appointments of Tribunal members meets the

need for flexibility in ongoing cases

- Tribunal Chair is best positioned to know that need and is somewhat distant from theCommission (para 52)

- given that members whose appointments have expired will not sit on another panel again, it

is difficult to see what power the Chairperson could ultimately have over them, once their

appointments have been extended. (para 54)

Arbitration

- consensual dispute resolution

- use of arbitration in consumer agreements

- arbitration body may be too close to the industry in question

-

structure itself favours one party over the other- not suitable for public law disputes

Independence & impartiality

- cases on individual aspects:

o Baker [1999] (SCR)

o C hrétien v . Gomery [2008] (Fed Ct)

o Sternberg [2009] (Ont Div Ct)




101

- general test = reasonable apprehension of bias

o The apprehension of bias must be a reasonable one, held by reasonable and right-

minded people, applying themselves to the question and obtaining thereon the required

information. (National E nergy Board [1978]; cited in e.g. Baker [1999] at para 46)

Baker [1999] 2 SCR 817 (Can)

- B applied to remain in Canada on humanitarian and compassionate grounds- application was denied by officer Caden on advice from (junior) officer Lorenz

- SCC: Officer Lorenzs notes displayed a reasonable apprehension of bias on the part of the

decision-maker

Baker : notes of officer Lorenz

- PC is unemployed on Welfare. No income shown no assets. Has four Cdn.-born children

four other children in Jamaica HAS A TOTAL OF EIGHT CHILDREN

- Says only two children are in her direct custody. (No info on who has the other two).

- There is nothing for her in Jamaica hasnt been there in a long time no longer close to her

children there no jobs there she has no skills other than as a domestic children would

suffer cant take them with her and cant leave them with anyone here. Says has suffered from

a mental disorder since 81 is now an outpatient and is improving. If sent back will have a

relapse.

Baker : notes of officer Lorenz cont.

- Letter from Childrens Aid they say PC has been diagnosed as a paranoid schizophrenic

children would suffer it returned

- Letter of Aug. 93 from phychiatrist from Ont. Govmt.

- Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when was 25 yrs.

old. Is now an out-patient and is doing relatively well deportation would be an extremely

stressful experience.

- Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PCs mental

condition would suffer a setback if she is deported etc.

Baker : notes of officer Lorenz cont.

- This case is a catastrophy. It is also an indictment of our system that the client came as a

visitor in Aug. 81, was not ordered deported until Dec. 92 and in APRIL 94 IS STILL HERE!

- The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a

domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of

course, be a tremendous strain on our social welfare systems for (probably) the rest of her life.

There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay

because of that? I am of the opinion that Canada can no longer afford this type of generosity.

However, because of the circumstances involved, there is a potential for adverse publicity. I

recommend refusal but you may wish to clear this with someone at Region.- There is also a potential for violence see charge of assault with a weapon.

notes

- notes filled with emotion, personal opinion, irrelevant factors

- prejudgment of an issue before you have heard relevant information that will arise from the

process

- the process should be an opportunity to inform the decision maker

- considering things that inappropriately lead to the prejudgment of the matter

- inappropriate prejudgment: view on policy matters influenced how he resolved this case



102

o should evaluate case on the instructions and guidelines provided

o irrelevant whether the system can afford to be generous

- whatever your personal, political views are need to be set aside in order to make a fair decision

with the information before you

- children, mental illness, welfare

- Hi s notes , and the manner in which they are written, do not di sclose the exi stence of an o pen

mind or a weighing of the particular circumstances of the case free from stereoty pes. Most unfort unate i s the fact that they seem to make a link between Ms. Baker s mental illness , her

training as a domestic worker, the fact that she has several children, and the concl usion that she

would therefore be a strain on our social welfare sy stem for the rest of her life.

C hrétien v . Gomery [2008] 2008 FC 802

- Sponsorship scandal:

o statements made to the media that should not have been made by the commissioner of

the inquiry

- common law standard of impartiality and reasonable apprehension of bias

- challenge by former PM, on grounds of bias, to commissioners findings and conclusions in the

Sponsorship Inquiry

- argument primarily that commissioners public statements during and after the Inquiry

established a reasonable apprehension of bias (para 78)

- decided by Federal Court judge based on common law standard of impartiality/ independence

as applied to a commission of inquiry

Teitelbaum J (Federal Court):

- based on Baker factors, the required level of procedural fairness for an individual affected by a

commission of inquiry is high:

o Although the nature of the proceedings do not provide for the same level of procedural

fairness required in a trial, the potential damage that the findings of the Commission

could have on the reputations of the parties involved in the investigation was of such

serious consequence that a high degree of fairness was required. (para 61)

Teitelbaum J cont:

- reasonable apprehension of bias is a flexible standard when applied to administrative decision-

makers (see esp. para 73)

- here, a reasonable apprehension of bias was established based on statements made by the

Commissioner (para 80-7)

RAB Test

- did the decision maker have a closed mind

- policy vs adjudicative spectrum

C hrétien v . Gomery cont.

- Gomery during inquiry: Im coming to the same conclusion as (Aud. Gen.) Sheila Fraser that

this was a government program which was run in a catastrophically bad way. I havent been

astonished with what Im hearing, but its dismaying. (para 82)

o indicative of inappropriate prejudgment where not all the evidence has been heard on

the issue

- Teitelbaum J: the Commissioner was not in a position to conclude that the program was

mismanaged before having heard from government officials of all levels who were set to testify.

This is especially so given that the Commissioner ultimately concluded that the Sponsorship



103

Program was run out of the Prime Ministers Office under the direct supervision of Mr. Pelletier

(a senior official who had yet to testify) (para 84)


- Gomery after Cs testimony: the very answer he gave me was the only answer that counted

as far as I was concerned. So, with this answer, I had everything that I needed.

- Teitelbaum J: Again, this comment was made before all the evidence had been heard. Areasonable, well-informed person, viewing this statement, would conclude that, instead of

sitting as a dispassionate decision-maker presiding over the hearings with no pre-established

ideas regarding the conclusions he would eventually reach after hearing all the evidence, the

Commissioner had a plan or checklist of the evidence that was expected and which was required

in order to support pre-determined conclusions. (para 86)


- Gomery on upcoming evidence: the juicy stuff is yet to come. (para 87)

- Teitelbaum J.: This comment trivialized the proceedings, which had enormous stakes for the

witnesses involved in the proceedings, especially those who had yet to testify. It telegraphed to

the public a prediction that evidence of wrongdoing was forthcoming. Whatever

interpretation is given to this comment, the comment bears a pejorative connotation to which

no witness ought to have been subjected. (para 88)


- Gomerys media spokesperson Perreault after Cs counsel sought an explanation for the

commissioners comments: People are saying in the e-mails, Whats Chrétien got to hide?

o Particular events sometimes boosted [the number of hits on the Commissions

website], bringing a bonus flurry of e-mails. Each time we received a barrage of

messages criticizing the reasons behind a motion or the attitude of a witness, or

commenting on a shocking admission of guilt, media coverage reflected that reaction.

o If I had to say what the gist [of the emails] was, Id sayWhat is Jean Chrétien trying to

do? - That remark won me a headline, an angry response from Jean Chrétienslawyers, and a new wave of support. (para 90)


- Teitelbaum J:

o none of the e-mails ask Whats Chrétien got to hide? or What is Jean Chrétien trying

to do? and do not otherwise supports Mr. Perreaults statement.

o Perreaults statement sent a message to the public that [C] was indeed trying to

conceal something and that his motivation for bringing the Motion for Recusal (which

he was legally permitted to do) was questionable. It damaged [Cs] reputation by

fostering suspicion of [C] and essentially raised doubts about his integrity. Again, I note

that [C] had yet to appear before the Commission.


- Gomery about C: Its such a disappointment that the Prime Minister would put his name on

golf balls. Thats really small-town cheap, you know, free golf balls.

- Teitelbaum J: Not only was this remark a personal insult directed at [C] and his background, but

it suggests that the Commissioner had come to the conclusion that the Applicant had acted

improperly even before the Applicant appeared before the Commission to give his evidence.

(para 93)



104


Gomery during inquiry (para 95):

I dont think I am in danger of having prejudged an issue that I shouldnt have prejudged.

I havent made any judgments or prejudged any issue. I just made a comment on the

personality of one of the witnesses.Its impossible not to like Chuck Guité. Lets face it, hes a charming scamp and he had his

department mesmerized. He got himself promoted just before his retirement and thereby built up his

pension. Im going to hear more about Mr. Guité. He will probably have to testify again.


Gomery during inquiry (para 96):

We have also seen over the last decades an increasing pressure for judges to come out of their

ivory towers to establish some sort of a relationship with the media and to permit the media to have a

better understanding of what it is that is taking place in the courtrooms or before commissions of

inquiry of this kind.

It was on the understanding of this evolution that led me to make -- to grant certain interviews

at the end of the year. I was told by representatives of the media that there was a desire to know a little

bit better what was going on and what could be expected. It was in that context that these press

interviews were granted.


Gomerys dismissal of Cs Motion for Recusal against him:

- In the representations made before me, Mr. Scott declared: You have closed your mind.

That statement was factually incorrect. I am the only person in the world who could know if I

had closed my mind, and I said then, to reassure Mr. Scott and others, that my mind remained

open. It is still open today and I repeat that I have not yet reached any final conclusion on any of the questions which the Inquiry calls upon me to decide.

o actual vs perceived bias

- . my description of Mr. Guité and the characterization of him as a charming scamp, which is

admittedly the kind of colourful language that judges should avoid using, does not in any way

betray how I feel about his credibility. Sometimes charming people are credible and sometimes

not. It is too soon to decide what weight I will give to Mr. Guités testimony. [].


Teitelbaum J:

- I do not read that it is a function of a Commissioner to grant press interviews nor to express,

during such an interview, an opinion as to what the evidence showed, and more particularly, toexpress that opinion before all of the evidence had been heard The Applicant was put in a

position in which he was caused to appear before a Commission that had publicly questioned his

conduct and integrity before he had even appeared before the Commission. (para 103)

Sternberg v . Ontario Racing C ommi ssion [2008] Ont. Div. Ct.

- decision of Ontario Racing Commission (ORC) to prohibit S from appearing as counsel before the

ORC unless he apologized unconditionally to the ORC

- S had verbally attacked the Chair of an ORC panel during a hearing

- S claimed reasonable apprehension of bias on the part of the Commission



105

Sternberg cont.

- S represented two licensees at the original ORC hearing; exchange with Chair Rod Seiling took

place during Ss cross-examination of a witness (see para. 5)

- after the hearing, S received notice that the ORC would hold a hearing to review his conduct,

indicating three potential responses....

o referral to Divisional Court for consideration for contempto referral to Law Society for disciplinary action

o disposition by ORC under its jurisdiction to control its own process under s. 23 of the

SPPA

- Ss request to delay the hearing (to accommodate his schedule) was denied without reasons; S

was able to attend

Sternberg cont.

- panel of six commissioners, not including Mr. Seiling, conducted the hearing

- at the hearing, S apologized three times for his conduct

- after the hearing, the panel rose for 8 minutes and then returned to read a 15-page pre-

prepared set of reasons for its decision to prohibit S appearing as counsel, pending an apology

Sternberg cont.

- the reasons did not reflect Ss remorse during the hearing

- the reasons engaged in (silly) rhetorical flourish:

o A cross-examination mired in repetition and degenerating into argument could

precipitate inadequacy and frustration culminating in a certain petulance

o No expression of apology made this day would serve to atone. The taint of expediency

would be ingrained a facile response to circumstances of the moment

Sternberg cont.

- Div Court: panel pre-judged the issues arising at the hearing

o the reasons were pre-prepared and detailedo two members of the panel had sat on the original panel chaired by Mr. Seiling

o S was not allowed to make submissions on the penalty

- as a result bias was displayed

- already had decided the issue before they heard from S

Sternberg cont.

- ORC lacked jurisdiction under the SPPA to conduct the hearing and make the order against S; in

effect, it was a contempt hearing reserved for Div Ct (SPPA, s. 13(1))

- no useful purpose in referring the matter back to the ORC

- Ss conduct now appropriately before the Law Society, having been referred by ORC counsel

after the original hearing

In class fact scenario

Are there any issues of independence and impartiality?

the Ministers staff had received a complaint about Jill from Wayne, the owner of a large

chemical sewage plant north of Oakville

Frank is an outspoken proponent of suburban development in Oakville



106

suburban development priorities of Ontario outweigh the commercial interests in this case

- not a factor however

Frank is a former real estate partner of Wayne

- Wayne: owner of a large biosewage plant in Oakville

- association between decision making and whether the permit should be suspended

- if suspended, former partner would benefit

- association not disclosed

RAB Test

Institutional

Standing

- which person has a legal right to seek judicial review of a decision

- consider the relevant statute: Judicial Review Procedure Act; Federal Court Act; Public Inquiries

Act

- s (5) 1 of Public Inquiries Acto substantial and direct interest in the subject matter of its inquiry

o opportunity to give evidence call and cross examine witnesses personally or by counsel

on evidence relevant to the persons interest

- could seek judicial review if standing is refused

- where an individual or organization does not have a personal and direct interest, are there cases

where a court should grant public interest standing ?

- F inlay [1986]

- C anadian C ouncil of C hurches [1992]

Standing

- traditionally, the common law limited standing in judicial review to individuals whose private

rights (i.e. contract, tort, property) were directly affected by a government action or decision

o direct interest: financial, property, eligibility for benefits or permit, reputational

- no standing was afforded where the public interest alone was at stake (e.g. re: legality of

administrative action) discretion of Attorney General alone whether to seek judicial review

- if there was a public interest and the person seeking standing does not have a direct interest,

that person could go to the AG to request standing

Standing

- government accountability mechanisms other than Attorney General/ judicial review?

o legislative oversight: questions in the House, legislative committees that can compel

witnesses to testify in public under oath, investigations by MPs or MPPs

o external executive oversight: police investigation/ prosecution, independent audits,review by the ombudsman, public inquiries

Standing

- internal executive oversight: investigations by an investigator authorized by the minister or

other senior officials, employment disciplines, cultural checks in the workplace/ profession

- extra-governmental oversight: media, lobby organizations, civil society

- i.e. courts are not the only places where government decisions can be reviewed in the public

interest



107

Standing

- expansion of participatory rights in public law begins in the US in the 1940s; later it expands in

Canada, especially post-C harter

- why allow broader participatory rights in judicial review? why limit such rights?

- debate over standing is a debate over the appropriate role of courts in decision-making

- should trees have standing? (C. Stone, 1973)

Standing

- in favour of broad standing rules: judicial review is a unique means of accountability

- against: ?

- courts often express these concerns:

(1) floodgates and the impact on an overburdened court system; busybody claimants;

(2) impact on conventional framework of adversarial litigation;

- public interest standing does not have a self-interest

- more focused discussion of the issues in dispute

(3) politicization of courts and danger that only those already well-positioned to defend their interests

in the public realm will benefit from wider legal access to the courts

F inlay [1986] 2 SCR 607 (Can)

- trilogy of cases that extend public interest standing in the context of a constitutional challenge

o principles from these decisions are carried into the context of administrative law

- F challenged the legality of federal transfer payments to Manitoba under the Canada Assistance

Plan

- F alleged that compliance by Manitoba with its CAP obligations would have produced a higher

level of social assistance for F

- Manitoba CA granted standing to F to seek declaratory relief

F inlay cont.

- SCC (Le Dain J): does F have a sufficient personal interest to be granted standing to bring a judicial review against the federal government?

o F alleged that Canadas failure to require Manitoba to meet its CAP obligations reduced

Fs monthly payment

o government of Canadas response: insufficient nexus between harm suffered by F and

the government decision which is under challenge

whether the inaction in enforcing the CAP caused the harm suffered by F

SCC (Le Dain J) cont.:

- F has a direct, personal interest in the alleged provincial non-compliance, but I am on balance

of the view that the relationship between the prejudice allegedly caused to the respondent by

the provincial non-compliance with the conditions and undertakings imposed by the Plan andthe alleged illegality of the federal payments is too indirect, remote or speculative to be a

sufficient causative relationship for standing under the general rule. (Edited case p 6)

F inlay cont.

- does the Court have the discretion to recognize public interest standing re: challenge to the

legality of the federal transfer program?

o yes: the policy considerations underlying judicial attitudes to public interest standing

and values assigned to the public interest in the maintenance of respect for the limits

of administrative authority call for public interest standing as in constitutional cases



108

o AG should not have exclusive authority to grant standing in the public interest

o transfers the authority to grant public interest standing from the AG to the courts

F inlay cont.

- three requirements for public interest standing:

o must be a serious issue raised here, yes

addresses busybody concern; court resources should be allocated to seriousissues

o must be a genuine interest on the part of the citizen here, yes

o must be no other reasonable and effective manner to bring the issue before a court

Here is it quite clear from the nature of the legislation in issue that there could be no

one with a more direct interest than the plaintiff who would be likely to challenge the

legislation. (Edited case p 10)

C anadian C ouncil of C hurches v. C anada [1992] 1 SCR 236 (Can)

- federal corporation/Council coordinated churches refugee work/ advocacy

- Council challenged newly amended Immigration Act , claiming violation of Charter and Bill of

Rights

- argument that it should be given public interest standing fails on the third step of the test ie.,

other reasonable alternative to bring the issue before the court

C ouncil of C hurches cont.

- Fed Court judge granted standing on basis that there was no reasonable, effective or practical

manner for the class of persons more directly affected by the legislation, that is refugees, to

bring before the court the constitutional issues raised.

- wouldnt have time to bring forth a Charter challenge because of the time sensitive nature of

the refugee context

- Fed CA limited standing to four provisions involving short time limits for detention/ removal

C ouncil of C hurches cont.- SCC widens its approach to granting standing in administrative proceedings

Cory J: The whole purpose of granting status is to prevent the i mmunization of legi slation or public act s

from any challenge. The granting of public interest standing is not required when, on a balance of

probabilities, it can be shown that the measure will be subject to attack by a private litigant. (p 21)

- as opposed to the purpose of protecting private interests

Cory J considers three issues:

- some aspects could be said to raise a serious issue of validity

-

there is no doubt that the Council has a genuine interest- third requirement: however, the legislation directly affects all refugees (each one of could

challenge its constitutionality) and the disadvantages of refugees as a group do not preclude

effective access to the courts

o where a refugee has a decision for deportation, could challenge the decision by judicial

review

- so, the Council not entitled to public interest standing

Remedies

- McKinnon [2002] (Ont HR Board of Inquiry)



109

Availability of judicial review

- Harelkin [1979] (SCC)

Remedies

- recall the primary remedies: certiorari; prohibition; mandamus (discussed in first week)

o these originate in the common law prerogative writso habeus corpus: show me the body

o quo warranto: demand that the decision maker has the authority to decide on

something

- certiorari: power of the court to request the file of the decision maker to review and to decide

whether the file is unlawful and the power to quash the decision

- mandamus: order the decision maker to do something

- other public law remedies e.g. declaratory relief and injunctions against the Crown originate

in the law of equity

- injunctions

o similar to prohibition and mandamus

o must show that you have a private interest at stake

- declaration

o temporary short term measure in the course of a long dispute

- today, all are judicial review remedies generally available to the courts, whether based on the

courts inherent jurisdiction or its governing statute

Remedies

- at common law, the courts have a wide discretion whether to award and how craft an

appropriate remedy

- common outcomes on judicial review:

o uphold or restore the decision (e.g. Southam; Ryan)

o quash the decision (Gomery ; Sternberg)

o refer the decision back to the decision-maker for reconsideration (e.g. Nichol son; Baker )o substitute courts view (Dunsmuir ; Mount Sinai )

Statutory remedies

- judicial remedies (where inherent under the common law) are subject to statute

- judicial remedies may also be authorized/ codified/ limited by general statute:

o Judicial Review P roced ure Act , R.S.O. 1990, c. J-1

o F ederal C ourt s Act , R.S.C. 1985, c. F-7

- tribunal remedies are authorized by and subject to the parent statute (never by the common law)

- no common law statute to award remedies; remedy must be derived from statute

- what authority does a statute give a tribunal to order a remedy

e.g. Judicial Review P roced ure Act , R.S.O. 1990, c. J-1

2. (1) On an application by way of originating notice the court may, despite any right of appeal, by

order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or

certiorari. codification of the common law writs



110

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to

the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

- equitable remedies codified

e.g. F ederal C ourt s Act , R.S.C. 1985, c. F-7

18.1 (3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully

failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination

in accordance with such directions as it considers to be appropriate, prohibit or restrain, a

decision, order, act or proceeding of a federal board, commission or other tribunal.

McKinnon [2002] (Ont HR Board of Inquiry)

- e.g. of tribunal remedy (pursuant to statute) in an ongoing/ systemic dispute

- HR adjudicator attempting to craft a remedy that addresses entrenched racism in a work

environment

- M was an employee of the Ontario Ministry of Correctional Services

- M brought human rights complaints against the Ministry for racist behaviour at the Toronto East

Detention Centre

McKinnon cont.

- Board adjudicator upheld original complaint by M

- ordered, among other things, that the Ministry address its poisoned atmosphere via anti-racism

training

- three years later, the Board adjudicator revisited the order and found the Ministry had not

complied fully: the atmosphere remained substantially unchanged throughout the Ministry

and racist behaviour had simply gone underground

McKinnon cont.

45.2 (1) the Tribunal may make one or more of the following orders if the Tribunal determines that a

party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the

party for loss arising out of the infringement, including compensation for injury to dignity,

feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party for loss

arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the

Tribunal, the party ought to do to promote compliance with this Act.

McKinnon cont. current statutory provisions

45.2 (2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and



111

(b) may be made even if no order under that paragraph was requested.

45.3 (1) If the Tribunal determines that any one or more of the parties to the application have

infringed a right under Part I, the Tribunal may make an order directing any party to the application to

do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this

Act.

McKinnon cont.

- adjudicator revised the original order by ordering the Ministry to comply with a series of

recommendations made by an outside expert (the Devlin Report)

- i.e. the adjudicative remedy was constructed from wide-ranging recommendations to change

Ministry management and staffing, training programs, and investigate and monitor

discriminatory/ harassing behaviour

- is this appropriate or feasible?

Harelkin v. U of Regina [1979] 2 SCR 561 (Sask)

- H, a student, was forced to withdraw from faculty of social work

- Hs appeal to university committee was dismissed without any hearing (i.e. denying him

procedural fairness)

- H applied to court for certiorari and mandamus, rather than pursuing appeal to university

senate committee

- was H required to exhaust the universitys internal remedies before seeking judicial review?

SCC majority (Beetz J):

- certiorari and mandamus are discretionary remedies; need to evaluate whether the alternative

remedies were adequate:

o procedure on appeal to University Senate: H should have assumed the integrity of the

process

o powers and composition of appeal committee more likely to be a re-hearing than a

limited appeal= an adequate remedy

Harelkin cont.

- moreover, the alternative remedy is more convenient:

o time and money needlessly lost on external review re: the procedural adequacy of the

internal process

o The courts should not use their discretion to promote delay and expenditure unless

there is no other way to protect a right (text p 1264)

Harelkin cont.

-

legislative intent- the statute gives preference to a universitys internal process to correct its own errors,

consonantly with the traditional autonomy of universities, as well as with expeditiousness and

low cost for the public and the members of the university (text p 1265)

- so, if internal remedies are reasonably available, they should be pursued prior to seeking judicial

review

SCC minority (Dickson J): the universitys alternative remedy was inadequate:

- nature of the error denial of procedural fairness

o taints the decision as a whole



112

- nature of the alternative remedy a simple appeal (rather than a re-hearing) is inadequate to

rectify the denial of procedural fairness since there was no decision making record, would not

hear from witnesses again de novo hearing not held

- blame the legislation [not the court!] for the inconvenience caused by requiring two separate

internal hearings

Question 1: Standard of Review

issues

- strong full privative clause: not reviewable in any court, final and conclusive

- commission: complaint was well found and set up a tribunal

- tribunal: upheld the complaint of serious harassment

o mixed fact and law

factual issue are intertwined within the legal test

reasonableness

o was there harassment, was it serious

o Discretionary: did the legislature convey that this was a discretionary decision of the

tribunal

in the opinion of

y high discretion

deemed by the Tribunal to be sufficiently serious

y whether the harassment is sufficiently serious

y discretion which goes to the remedial aspect of the decision

y should be discussed in nature of the question

y if discretionary reasonableness

Question 2: Procedural Fairness

issues

- RAB: head of tribunal is a vocal advocate for victims of harassment- Tribunal must hold a hearing (SPPA), however Commission does not have to hold a hearing

- general or non-dispositive decision

o threshold issue

o common law source

o whether there is a duty of fairness under the common law for the Commission

- what was the decision that effected Rick

- what were his individual interests

- Which arguments are likely to be successful

Substantive Decision

- what was the decision? Decision of the Commission that complaint was well founded and shouldbe referred to Tribunal s 11; Decision of the Tribunal to uphold complaint s 13

- nature of the question: not simply factual or legal; not constitutional or jurisdictional

- not of central importance of the legal system and outside of the decision makers specialized

area of expertise

o definition of harassment may be important

o human rights issue which may be of central importance

o however this is application of harassment to Eric

- mixed fact and law: cannot be easily separated (Dunmuir)

- element of discretion s 13



113

- presumptively reasonableness

Do any of the factors weight against this

- privative clause deference s 14

- expertise lies in specialized areas of law

o labour, constitutional and administrative law

o majority of tribunal comes from workplace environment s 11o can be assumed to have experience in adjudication of complaints based on legal

expertise s 13

- terms and purpose of statute: mixed educational, policy-making and adjudicative role of

Commission s 10-11; requirement for legal experience and experience of Commission roster

members indicates purpose; aim to eliminate harassment by adjudication before the Tribunal,

not the courts

- other factors reinforce presumption of deference

- = reasonableness (assuming no persuasive earlier decision re: appropriate standard)

Application of the Standard

- does the decision fall within a range of possible acceptable outcomes which are defensible in

respect of the facts and law

- intelligibility, transparency, justification

- focus on rationale/evidence before the Tribunal; court will not substitute its own view

- Tribunal does not appear to refer to a definition of harassment or analyze past decisions or

indicate the basis for propriety of Jo-Anns request for a security assessment

- decision was heavily fact laden inquiry into the rationale for Jo-Anns decision making and into

Jo-Ann and Ricks conduct in the workplace

- Tribunal better able to assess credibility of Ricks evidence, having heard all the oral evidence

- assuming there was an evidentiary basis for the Tribunals factual findings, decision very likely to

be found reasonable (as in Dr Q)

Procedural Fairness

Threshold

- distinguish Commission from Tribunal

- Sources: Charter, Statute (Parent Statute, SPPA), Common Law, Secondary Legislation, Rules of

Procedure

o s 7 not at issue

- re Commission: SPPA does not apply because parent statute locates hearing requirement with

Tribunal

- statute indicates legislative intent to ensure fairness via a fair hearing before Tribunal s 13;

Commissions role is to determine whether complaint is well-founded s 11

-

there is a discretionary power of the Commission to hold a hearingo deference to common law rule

o in some case fairness may be required

- Commissions decision to refer complaint to Tribunal affected Rick because his conduct would

likely be subject to adjudicative review, with possible implications for his

reputation/employment interests

- Commission also has discretion to hold a hearing for non-dispositive decisions s 15, indicating

some concern by legislative that fairness is relevant at the Commission state

- on this basis, the commission owes Rick a duty of the fairness under the common law however

the content of the duty will be much lower than that of the Tribunal



114

- eg, Commission may be required to give notice of investigation, meet with Rick, provide written

explanation for decision (Baker; Nicholson)

- but would not require an oral hearing or even a fair hearing in all cases

SPPA applies to Tribunal:

- Tribunal is exercising a statutory power of decision that affects Ricks legal interests

(employment; reputation) SPPA s 1- the parent statute requires a fair hearing s 13; sppa 3(1)

- the decision maker is not exempt (sppa 3(2)

under the common law, the Tribunal owed a duty of procedural fairness:

- stat requirement for a fair hearing; requirement for legal expertise of presiding member s12

- clear implications for Ricks reputation and employment interest

- not a decision of a legislative or general nature (Inuit Tapirisat); decision is limited to one person

or a small group of persons

General Content

- procedural fairness entails the right to notice and reply (Nicholson, Cardinal, Baker)

- Baker factors re: general level of fairness:

o first, the Tribunals decision affects Ricks interest, the statute calls for a fair hearing,

tribunal role to adjudicate complaints (judicial end of the spectrum), presiding member

must have legal expertise but the tribunal may not make findings of criminal or civil

liability

o second, there is no appeal beyond the tribunal even on questions of law finality calls

for a high level of scrutiny (Baker)

o third, reputation and employment interest is important to Rick (Nicholson, Blood

Inquiry, Dunsmuir) but does not engage a higher interest such as life, liberty, SOTP; must

be balanced against the wider interest in ensuring a harassment-free workplace

if s 7 interest, adjust principle of fundamental justice accordingly and balance

interest in s 1 analysiso fourth, legitimate expectations

no express promise at any time by Commission or Tribunal

at best, may argue that terms of the statute (requirement of fair hearing),

supplemented by rules of procedures of Tribunal may create an expectation of

greater notice and reply for Rick, but not a strong argument re: legitimate

expectations

legitimate expectation may lead to higher duty of procedural fairness however

not affect substantial outcomes (Mount Sinai)

o fifth, presiding member of Tribunal with legal expertise may be entitled to procedural

deference, supplemented by s 25.1 of SPPA

Tribunal can pass its own rules of procedure

o Thus, general level of fairness at the Tribunal is moderate to high (balancing the anti-

harrassment objectives and procedural deference against Rs interest as an individual,

the finality of the adjudicative process and the requirement for a fair hearing (summary

based on discussion of 5 factors)

- could mention if there would be any difference for the commission

Procedural Fairness Specific Content

- source: SPPA, cases (VIA rail, Blood Inquiry)

o notice and reply



115

o duty to give reasons

o participatory rights of counsel

- notice and reply (commission)

o as a coworker of Eric, Rick was interviewed by the investigator and received a copy of

the investigators report

o Rick opted to testify without counsel

o on this basis, Rick likely received sufficient notice and an opportunity to reply to thedecision to refer to a Tribunal

- notice and reply (tribunal):

o Rick received investigators report which presumably indicated underlying basis for

hearing

o but Rick was not a subject of Erics complaint and was only notified of allegations

against him after the oral hearing

o in absence of reasonable information of any allegations (s 8 SPPA), Rick may have

properly assumed he was simply a witness, with the corresponding limits on his level of

participation and jeopardy (s 11(1) SPPA)

- Ricks decision not to be represented by counsel was made prior to the written notice to him

from the Tribunal

- SPPA provides a more elaborate right to counsel for a party (s 10) than a witness s 11

- opportunity to respond in writing unlikely to cure harm caused by earlier testimony without

advice from counsel

- Rick was denied opportunity to make informed comment on Tribunals decision not to hear

confidential evidence on secure software (and to make arguments under SPPA 9(1)) and where s

9 of the Security Act); concerns about Eric were specifically software security concerns

- no evidence that Tribunal considered the option of partial disclosure or other procedural

adaptation (Chiarelli; Charkaoui 1)

o confidential information can be heard by a Tribunal; alternate options available

- but not Ricks strongest argument assume Tribunal has wide discretion regarding evidence it

hears and how

- non-disclosure of in house legal opinion may be based on solicitor-client privilege (Pritchard); noelaboration on basis for privilege claim by Tribunal, but Rick did have opportunity to request in

writing that non-privileged information be disclosed

- two-day generally sufficient to allow reasonable opportunity to be heard (ie where Ricks

credibility is at stake as in Khan), but Rick should be able to testify and to suggest evidence

based on knowledge of the allegations against him (s 6 of SPPA)

- duty to give reasons (on request) appears to have been met (s 17(1) SPPA

- Ricks strongest argument is that the statute requires a fair hearing and that hearing him

without prior notice of allegations against him precluded him from replying effectively and

violated s 8 SPPA

- how can Rick reply in writing, after the oral hearing, on issues of credibility raised in testimony

without prior notice of allegations gotcha by the Tribunal

Procedural Fairness Bias

- renewable appointments to commission roster, removable only for cause, is consistent with

common law requirements (Regie, Bell Canada) and statutorily authorized (Ocean Port); case by

case appointments of non-presiding members is statutorily authorized in clear and express

terms (Ocean Port) institutional

- impartiality and independence are flexible concepts for administration tribunals; provision here

for presiding member to have legal expertise weighs against concerns

- thus, no basis to argue RAB (in a substantial number of cases) on institutional grounds



116

- fact that presiding Tribunal member is advocate for victims of harassments and presumably

against closed proceedings suggests a RAB on individual grounds

- perception may arise that Tribunal member has pre-judged issues in favour of complainants

where it may contradict complaints

- requirement for legal expertise indicates legislative intent that Tribunal decide neutrally and

objectively based on the evidence

- key that statements made after appointment, when commission roster member is advised notto speak on matters over which he or she may have to adjudicate in individual cases (Gomery)

- troubling that this was presiding member of Tribunal (although decision was unanimous)

- Rick ahs a reasonably strong argument that there was an RAB on individual grounds

Procedural fairness likely to succeed

- best argument is that lack of notice of allegations against Rick precluded an effective reply,

especially in terms of his decision whether to seek counsel before testifying

- Rick (and possibly other witnesses) should have been recalled by Tribunal

- RAB argument is also strong

- other arguments (notice from Commission, decision not to hear confidential evidence, non-

disclosure of legal opinion, and reasons are unlikely to succeed

- court would likely refer back for re-determination by a separately constituted Tribunal

Canadian Bill of Rights

- 1a, 2e

Knight

- little applicability

Polycentric/discretion

- discussed in nature of the question

Martin

- whether a tribunal has the authority to decide on the Chartero if it has the authority to decide on questions of law yes

o has it been expressly been removed by statute

Admin Summary

Documents

Transcript of Admin Summary