AdminLaw 301: Final Outline 2015

Natalie Pawson

Table of Contents

Administrative State and Rule of Law...........................................................................3Intro....................................................................................................................................3

Admin Law vs. Constitutional Law..........................................................................................3Administrative Decision Makers (ADM).................................................................................3Advantages of ADM...............................................................................................................3Non-Judicial Control Mechanisms of Government Power.....................................................4Judicial Control of Administrative Action...............................................................................4Grounds for Judicial Review...................................................................................................4Rule of Law vs. Functionalism: Theory...................................................................................4

Constitutional Basis for Judicial Review........................................................................5Inherent Jurisdiction............................................................................................................5

Test for s.96 Court..................................................................................................................5Remedies on Judicial Review...............................................................................................6

Administrative State and Rule of Law...........................................................................6Rule of Law..........................................................................................................................6

Theories.................................................................................................................................7Traditional Approach, Formalist View (Diceyan)..............................................................................7Substantive ROL (Roncarelli)............................................................................................................7New Minimalist ROL (Imperial Tobacco, Khadr) – CURRENT THEORY..............................................7Functionalist Critique of Diceyan ROL, Traditional Critique (Willis/Fuller).......................................7New Critique of New Minimalist Model (Roach, Imperial Tobacco)................................................8New Critique of ROL as Liberal Concept (Razack, et al)....................................................................8SCC on Rule of Law..........................................................................................................................8

Baker, 1999, SCC..................................................................................................................8

Procedural Fairness......................................................................................................9Sources of PF.......................................................................................................................9Historical Development.......................................................................................................9

Natural Justice........................................................................................................................9English Common Law.............................................................................................................9

Restrictive Approach........................................................................................................................9Development of Duty of Fairness...........................................................................................9Expansion of Procedural Obligations...................................................................................10Development of Modern Approach to PF............................................................................10

Determining PF Content.....................................................................................................10Limitations on PF..................................................................................................................11

Legitimate Expectations Doctrine (LED)..............................................................................12Constitutional and Quasi-Constitutional Procedural Protections........................................12

Oral Hearings and s.7...........................................................................................................13Duty to Disclose and Right to Reply, Duty to give Reasons..................................................14Right to Legal Counsel..........................................................................................................14Undue Delay.........................................................................................................................14

Procedural Issues...............................................................................................................15Specific Content Issues: Pre-Hearing....................................................................................15Specific Content Issues: Hearing..........................................................................................15

Oral or Written Hearings................................................................................................................15Right to Counsel.............................................................................................................................16Disclosure of “The Case Against” – Right to Decision “On the Record”.........................................16Evidence and Cross Examination...................................................................................................16

Specific Content Issues: Post-Hearing..................................................................................17Procedures and the Administrative Tribunals Act...............................................................17

Admin

Bias....................................................................................................................................17Legal Effect of Bias...............................................................................................................18Basic Test for RAOB..............................................................................................................18Pecuniary or Other Material Interest in Outcome...............................................................19Personal or Business RELATIONSHIP....................................................................................19Prior Knowledge or Involvement.........................................................................................19Attitudinal Predisposition and Contextual Standards...........................................................19Defences to Bias...................................................................................................................19Independence......................................................................................................................20

Substantive Review....................................................................................................21Introduction to SR..............................................................................................................21

Application of ATA...............................................................................................................21Development of the Law....................................................................................................21

Stage 1: Pre-CUPE (Correctness)..........................................................................................21Stage 2: CUPE (Correctness and Patent Unreasonableness)................................................22Stage 3: After CUPE..............................................................................................................22Stage 4: Increasing Complexity in Determining SOR............................................................23

Pragmatic and Functional Approach..............................................................................................23Stage 5: Pre-Dunsmuir Critiques of SOR...............................................................................24

Dunsmuir: Simplifying SOR.................................................................................................24Dunsmuir Framework..........................................................................................................25Impact on ATA......................................................................................................................25Post-Dunsmuir Developments.............................................................................................26Reasonableness Post-Dunsmuir...........................................................................................26

Judicial Review of Discretionary Decisions.........................................................................27Historically...........................................................................................................................27Traditional Approach: Abuse of Discretion Doctrine............................................................27Modern Approach................................................................................................................28

Further Constitutional Issues Related to SOR Analysis........................................................28SOR for Constitutional Determinations................................................................................28Jurisdiction: Ability to Consider Constitutional Issues..........................................................29

Admin

Administrative State and Rule of Law

Intro

See Introductory handout

Form of public law Purpose:

o To control exercise of governmental power (confine scope of power, curb potential abuses, ensure proper procedure are followed in exercise of powers, ensure performance of mandatory statutory duties)

o Foster accountability by the governmento Ensure admin branch of government effectively performs legislative tasks

ADMIN LAW VS. CONSTITUTIONAL LAW

Both are forms of public law – admin is subset of constitutional but not the same Admin is concerned with exercises of power by government officials and agencies rather than

legislative actions or validity of statutes with constitutional law (growing intersection)o Admin law attacks the application the legislation in form of decision by ADM

Rooted in constitutional principleso Rule of Lawo Legislative Supremacy and parliamentary sovereignty o Constitutionally protected and jurisdiction of s.96 courts (normal courts) and principles

of judicial independence

ADMINISTRATIVE DECISION MAKERS (ADM)

Includes numerous actors (listed in handout) Rise in the regulatory state and growth of admin bodies to delivery public programs under a

statutory authority Features of independent admin agencies:

o Independence: distance and freedom from direct control by the governmento Hearing process: engage in hearing process before making a decision or policyo Individualised decision making: make decisions in individual caseso Specialization: operate within a particular statutory scheme, usually only deal with one

statute or part of one (their home statute, or related statute)

ADVANTAGES OF ADM

Why ADM over government department?o Legitimacy: no politics involved in the decision as involved in governmentso Better decisions: decisions would be of better quality because they are able t draw upon

experience to make decisions and develop more open process o Expediency: don’t want political responsibility for decision making so send it to ADM

Why ADM over the courts?o Policy: nature of decisions may be inappropriate for adjudication, better to not be in an

adversarial systemo Quantity: number of cases would clog the courtso Procedural concerns: courts are slow, expensive and need lawyers, ADMs are more

informal, accessible, quicker and less expensiveo Ideology: thought to be impediment to legitimacy and effectiveness of statutory schemeo Public participation desired : may want input from broad section of public before making

a decision

Admin

NON-JUDICIAL CONTROL MECHANISMS OF GOVERNMENT POWER

Legislative oversight – scrutiny of legislation prior to enactment, review of regulations, scrutiny of appointments to agencies, annual reports by agencies

Ombudsman Informal internal controls – day-to-day management and account policies, internal reviews of

operations and policy, internal reviews and reconsiderations of decisions Formal non-judicial appeals – statutory right of appeal to other ADM or Minister or Cabinet

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

Appeals to court from ADM can be provided for by statute – must be provided for explicitly by statute, courts have no inherent right to review

Original jurisdiction of courts – if it is ordinary private law proceeding arising from admin decisions (tort, breach of contract)

Judicial review jurisdiction of courts – government cannot insulate ADM from review by courts using a privative clause

S.96 prevents provinces from setting up admin courts that usurp power of courts Process for JR set out in statutes (Judicial Review Procedures Act or Federal Court Act)

GROUNDS FOR JUDICIAL REVIEW

Procedural impropriety – manner in which decision was madeo Breach of PF, bias, lack of independence

Substantive illegality or irrationality – basis for decisionso Errors in scope of statutory power, errors of law, reviewable errors of fact, abuse of

discretionary power

RULE OF LAW VS. FUNCTIONALISM: THEORY

Legal Formalism ( Dicey ) – up to 1920’so Law is composed of scientific legal rules – discerned by close examination of previously

decided caseso Emphasis on plain meaningo Judges are not concerned with policy or equitable outcomeso Concerned about size of admin state – this has reduced primacy of courts and therefore

is less likely to be able to protect individual rightso Need to keep government minimal – allow individuals to govern themselves and if there

is dispute, they can go to judiciary Prefer CL as source of regulation over government legislation Trust in judges to create equitable laws – not influenced by politics like

politicians, more likely to be fair Functionalism ( Willis ) – 1920s – now

o Central concern of administrative law should be to promote effective functioning of the modern state

o CL is weak instrument for social governance – need legislative governing, experts to enforce those laws

o Delegation of power to ADM is necessary and inevitable for regulatory stateo Courts (wrongly) guard CL values against state encroachment – use their powers to

protect private property rights and freedom to contract in ways that inhibit regulatory state from achieving its purpose

o Courts sometimes impose adversarial model on ADM when not appropriate Interferes with efficiency of the system and favours people who can afford

litigationo Courts can fail to appreciate need to infuse policy in statutory interpretation – judges

don’t have monopoly on interpretation of statutes ADM can be better to interpret statute if they have more expertise

Admin

Constitutional Basis for Judicial Review

Only public bodies are subject to JR – consider if public

TEST: Is JR available?1. Is the tribunal a public body? – subject to public law and therefore JR, part of machinery of the

governmenta. Source of power and funding?b. Does government directly or indirectly control them?c. Would government fill their place if tribunal didn’t exist?

2. Does the party have standing to challenge the decision? – parties, collateral interest or public interest

3. What is the proper court for JR? - provincial courts or federal courts4. Has the application for JR been filed within the necessary time limits? – BC is 60 days

a. Courts have ability to extend it5. Has party exhausted all other means of recourse to challenge the tribunals decision?

a. No inadequacy of other means based only on unproven allegation that the tribunal would suffer the same error or bias as the original

Inherent Jurisdiction

Courts power to review ADM Original Jurisdiction – challenging ADM decisions on basis of private law (tort, contract), grounds

that ADM infringed individuals private right Statutory Right of Appeal – not automatic, must be provided for in statute

Inherent JR Jurisdiction (s.96) – superior courts have inherent jurisdiction to hear a matter on review UNLESS there is specific statute that says otherwise or grans exclusive jurisdiction to another court/tribunal (privative clause)

o Definition: power to determine the limits of its own jurisdictiono Not a general appeal – court cannot substitute its own decision for ADMso ONLY FEDERAL government may create s.96 court and appoint judges – NOT provinceo S.96 courts are immune from JRo Provinces may create inferior courts and tribunals - these are statutory courts with no

inherent jurisdiction (to give inherent jurisdiction would be to create superior court)

Statute and privative clauses CANNOT oust courts on questions of jurisdiction (Crevier)o Privative Clause: clause in statute stating that ADM decisions cannot be reviewed by the

courts (trying to insulate decisions)o Neither federal OR provincial can oust court with privative clause (MacMillan Bloedel)o Can oust courts on matters or lawo Question: what is a question of jurisdiction? – unclear

Above and are difference from errors of law (Crevier)

TEST FOR S.96 COURT

To determine if ADM is acting like a s.96 court and is therefore unconstitutional: (Re Residential Tenancies Act, Crevier)

1. Historical Inquiry: is ADM exercising power that is analogous to power exercised by courts at time of confederation?

a. If NOT analogous, then it is within its authority – if it is, then next…2. Judicial Inquiry: are they serving a judicial junction?

a. Look at nature of what they are deciding – private litigation = judicial functionb. If NOT judicial, then it is within its authority – if it is, then next…

3. Contemporary Character: does ADM incorporate other non-judiciary elements? – if so, valida. What is the sole and central function ? – if it is judicial, then it is invalid (Crevier)

Admin

Remedies on Judicial Review

Historically Writs: (now abolished by JRPA) – had to use exactly the right words and writ or your application would be thrown out on a technicality

o Certiorari – cause to be certified: courts get ADM to provide record of proceedings for review of excess jurisdiction

o Prohibition: court prevents ADM from exceeding jurisdiction, essentially injunctiono Mandamus – we command: court compels ADM to perform duty it is mandated to

perform (usually combined with Certiorari), used to order reconsideration by ADMo Declaration: court determines and states legal position of parties, or law that applieso Habeas Corpus – produce the body: bring a person before the court to make sure there

isn’t illegal imprisonment (rare in Canada)o Quo Warranto – by what warrant/authority: inquire what authority exists to justify acts

by ADM (rare)

Judicial Review Procedures Act – simplifiedo S.2(1) – bring petition for JR

S.2(2) – don’t have to use language of writs Can just bring an application rather than before, try to get it all right

o S.14 – application for JR must state grounds for relief and nature of relief soughto S.18 – quo warranto is abolished

Administrative State and Rule of Law

Rule of Law

Cases: Roncarelli, Re Manitoba Language Rights, Reference re Secession of Quebec, Imperial Tobacco, Khadr, Regie des Rentes du Quebec

Definition: part of constitutional law (written and unwritten), meta-principleo Implicitly recognized in preamble of Constitution Act, 1867 and in preamble of Chartero One of 4 underlying principles of Constitution (Reference Re: Quebec Secession)

Foundational constitutional principle (Re Manitoba Language Rights)o Principle of legality (Re Manitoba Language Rights)

Underlies much of admin law – important rationale for courts

Characterized by: o Legality – all legal action must originate form legal source of authority, no arbitrary or

unauthorized government action (Re Manitoba Language Rights, Imperia Tobacco)o Order – law needs to be written, clear and accessible

“law and order are indispensible elements of civilized life” (Re Manitoba Language Rights)

o Supremacy – everyone, including the government, is bound by law (Imperia Tobacco) Need practices of imposing effective legal restraints on exercise of public power

within the 3 branches of government

Purpose of the Non-Arbitrary Rule: o Normative standard by which public power can be evaluated and challengedo If ROL governs legal system: all persons will have formal equality, officials of the

government will be held legally accountable like any other person Prevent arbitrary exercise of public power by officials regarding process, jurisdiction, substance

o Arbitrariness often indicates indifference about procedures chosen to reach outcomeo Decision may be found arbitrary in substance because it is biased, illogical,

unreasonable or capricious – offends standards of reasonableness, rationality, moralityo Act arbitrarily when there is lack of respect, ignore dignity of individualo Often unilateral decisions with no participation

Admin

Arbitrary: untrammelled exercise of will or the uncontrolled power of public DM

THEORIES

Traditional Approach, Formalist View (Diceyan)

Legality: there must be lawful authority for any state actions that interfere with rights and liberty of its citizens

o For every government action, there should be a source of law to authorize it (which should come from written rules)

o Should be written down and clear – distrust of discretion and fear of arbitrary use of power and having laws in writing would reduce this

Formal Legal Equality: everyone, including the government is subject to laws administered by ordinary courts and courts are the final arbiters of law

o No one is above the law Judges as Guardians: guard against arbitrary government action, especially by executive and

administrative brancheso Protect citizen’s rights against the stateo Legislature is important but they cannot be trusted to police themselves – need the

courts to police themo Government should be able to restraint/restrict rights without some sort of restraint o Courts should have the final say

Implicit belief: law is not politics – separate thingso No policy making

Substantive ROL (Roncarelli)

Must read values into legislation – take larger social values and purpose into considerationo No discretion is absolute – No such this as absolute untrammelled discretion (Roncarelli)

Even if there is discretion given to DM, there are limitso No arbitrary or unauthorized government action allowed (Re Manitoba Language Rights,

Imperial Tobacco)o Decisions must be made in good faith and based on reasons from legislation

Concern about context of legislation Judicial scrutiny extends beyond whether the government acted within its limits strictly defined

through legislation – consider purpose, values and unwritten legal normso How SCC makes decisions

New Minimalist ROL (Imperial Tobacco, Khadr) – CURRENT THEORY

More deference to ADM, less willing to read in valueso Affirms non-arbitrariness, need for positivist laws and judicial independence (pg.58)o ROL is not way to trivialize constitutions written terms or avoid legislation initiatives

(Imperial Tobacco)o Won’t read in values and purpose in legislative action in name of ROL

ROL cannot invalidate legislation based on content that is otherwise constitutional, even if it is perceived as arbitrary – must be directed at executive/administrative action (Imperial Tobacco)

Functionalist Critique of Diceyan ROL, Traditional Critique (Willis/Fuller)

Primary function of admin law is to promote effective functioning of the modern state – do this through policy and discretion as well as rules

Policy is vital in statutory interpretation – misguided to see law and policy as separateo Law is policy – judges reasoning is political, judges are elitist and not to be trusted

Discretion and policy are good, necessary tools for decision making – must trust experts with DM Should foster:

o Regulation of private power in public interest

Admin

o Promotion of social and economic equality through redistribution of income and benefits – not use ROL to justify status quo

o Protection of public laws Government as guardians – judges don’t have monopoly on how to interpret statutes

o Judges need to reign themselves in so that government can run properly – need humility of judges, don’t know everything

New Critique of New Minimalist Model (Roach, Imperial Tobacco)

Anti-terror legislation – 9/11 resulted in laws that defy ROL, rapid legislative action that restricted civil liberties

o Need to curtail rights using ROL to maintain ROLo Laws were passed to protect ROL but actually hurt it

Legislation violates ROL – government acting without any review, should read in human rights values in the legislation

Should be more scrutiny so make sure anti-Charter laws are not passed – violations of liberty

New Critique of ROL as Liberal Concept (Razack, et al)

Vacating/evacuation of law from certain spaces (“states of exception”, area of lawlessness) – detention centres, Guantanamo Bay, migrant workers, refugees, detainees

o No legal protection for people in these states in anti-terror context – exclusion from law is eviction from personhood and human community

o States of exception are portrayed as necessary to preserve ROL and “civilization” After 9/11 these types of states have accelerated – justified through law and excluded from JR

o Set up in the name of ROL but principles are being violatedo How can it be justified?

West -> “Civilized” -> Law or Reason -> Modern -> Rule of LawNon-West “primitive” or “barbaric” Culture or religion Pre-modern State of Exception

SCC on Rule of Law

Hasn’t fully articulated but current statement in Roncarellio No official is above the lawo No such thing as untrammelled discretiono Decisions must be justified by law

Baker, 1999, SCC

Modern Admin Law: courts tend to be more deferential to ADM JR is supposed to examine how and why courts decided to intervene:

o Procedural Fairness – is it an issue the courts should review? If yes, did ADM use proper procedures?

o Substantive Review – regarding the decision itself, did ADM make an error of the kind and magnitude that the courts are willing to get involved in?

o Remedies – if there are procedural/substantive defects in the decision, should the court intervene and how?

Case synthesized law in SR and PF , removed dichotomy between discretionary and non-discretionary decisions

o Affirmed pragmatic, functional approach for SOR test (changed by Dunsmuir)o Created list of factors for PF and test for bias – relevant to oral hearings and duty to give

reasons, sufficiency of reasons Reflection of functionalist AND substantive theories of ROL

Admin

Procedural Fairness

2 Branches: o Bias – (impartiality and independence) – was the decision coloured by bias?o Actual Procedures – did the person get procedures that make the process fair and ones

they were entitled to?

Content of duty is flexible and context-specific – minimum duty, low threshold Some ADM’s have statutes governing content of PF

CL considerations: scope and content of duty determined from 5 factors in Baker:o If individual’s rights, privileges or interests are at stake, duty of fairness applies and then

the question is one of degree

Sources of PF

Common Law – key sourceo Baker established modern CL approach to duty of fairnesso Clear legislative restrictions would limit protections at CL – only Charter would override

Statute – may speak to procedureo Consider ADM home/governing statute!o If statute says no hearing, then regardless of CL, there will be no hearing BUT subject to

the Charter, courts would narrowly interpret rights-limiting provisions Regulations – detail the specifics outlined in the statute Government Policies and Promises – not force of law

o LE can apply – what was done in the past can raise level of PFo Expect certain things based on what government said and general policies

Bill of Rights Charter – consider any constitutional rights

o Jurisdiction to consider constitutional issues? Agency practices and policies

Historical Development

NATURAL JUSTICE

2 primary principles: o Hear the other side (audi alteram partem) - right to notice and right to be heardo No one should judge their own case (nemo judex in sua causa) – rule against bias

ENGLISH COMMON LAW

If important rights of individual were affected, hearing rights would be inferred Restrictions arose and required classification between judicial or quasi-judicial decisions and

administrative, executive or ministerial decisionso Judicial/quasi-judicial: natural justice applied, accorded hearing rightso Admin/executive: natural justice didn’t apply, no hearing rights

Restrictive Approach

DEVELOPMENT OF DUTY OF FAIRNESS

Lord Atkin (Electric Commissioners): “legal authority to determine questions affecting the rights of subjects and having the duty to act judicially”

Admin

o Interpreted by Lord Hewart (Church Assembly): for natural justice to apply, the decision had to determine rights and involve duty to act judicially in making the decision

o NJ didn’t apply if: Decision wasn’t final – not determinative Decision involved privileges, rather than rights No duty to act judicially in statute

Problems: all or nothing approach that depended on uncertain classifications

Move towards recognizing duty of fairness in 1964 (Ridge v Baldwin) – no requirement to have a duty to act judicially for NJ to apply

o Looked to the nature of the power exercised – if judicial type decision, NJ applied

EXPANSION OF PROCEDURAL OBLIGATIONS

Adoption of duty of fairness in Nicholson, 1979 – duty implied it was a halfway houseo Less than NJ – NJ would apply in certain situations and duty in otherso PF applied to ADM decisionso Quasi-judicial = NJ, ADM = duty of fairness (Bates)

Issues:o What is threshold? Will all ADM decisions pass? What is content of PF? Distinction

between judicial and admin still? Deference to ADM on procedures?

DEVELOPMENT OF MODERN APPROACH TO PF

No need to distinguish between duty and NJ (Matsqui) Basic elements of Modern Duty (Knight)

o Not all ADM under duty to act fairlyo Legislative and general decisions vs. admin and specific decisions (no duty)o Preliminary decision will not trigger duty but final one would

Determining PF Content

Test to determine PF Threshold: for PF to apply, there must be: (Cardinal)

o A public authority (police broad, director of prison, school board, hearing officer)o Has made a decisiono Not of a legislative natureo It affects the rights, privileges or interests of an individualo It is not an emergency or urgent situation

Apply Baker Factors to determine the rights required: criteria are non-exhaustive (Mavi)1. Nature of Decision being made

a. The more it resembles judicial decision making, the more likely PF protections will be required – more PF in adjudicative context than regulatory

2. Nature of Statutory schemea. More PF if no appeal provided for in statute OR if decision is determinative of the

issue and no more requests are allowedb. More determinative decision = more PF

i. Investigatory steps normally not subject to PFii. Final decision will require a high degree of PF

c. Determine if there is an appeal option, useful in determining scope of PFd. The more final the decision, the greater the claim for PF, even if preliminary e. Preliminary will require:

i. Important issue at stake (loss of reputation, adverse affect on right, interest or privilege)

ii. Proximity between decision and final decision (if preliminary effectively determines the final)

Admin

3. Importance of Decision to individuala. The more important to the lives of the people affected and greater the impact,

the more PF will be requiredb. If EM at stake, higher standard required (Kane)

4. Legitimate Expectations of the person (see section)a. Does NOT create substantive rights, only procedural protectionb. If they have LE that a certain procedure will be followed, that procedure will be

required by PFi. Government practice of notice and consultation could give rise to

argument that procedures must be followed based on LEc. If LE that a certain outcome will result, might require more procedural rightsd. Regular practices or promises by ADM to individual – would be unfair for ADM to

act in contravention of these representations or to backtrack on promise5. Choices of procedure by Agency

a. Respect choices of procedure by agency especially if statute gives leave for ADM to choose its own procedures or if they have expertise in determining which procedures are appropriate

b. Not determinative

LIMITATIONS ON PF

PP Feb.26 Non-final decisions: if not final, may not attract PF – see where decision fits within scheme

o Duty only applies where decisions are being madeo Steps along the way, not conclusive decisions, fact-finding efforts that don’t determine

liability, inspections or investigations – may not attract PFo May be required at investigatory stage if:

Reputation at stake (Blencoe) Preliminary stage has finality

o Re Dairy Producers: investigative effort was preliminary so no NJ requirements

Legislative and General Decisions (Inuit) – no PF, no good description of the concepto All primary legislation passed by parliament, including subordinate legislation by

Cabinet, are not subject to PF (Inuit, Re Canada Assistance Plan) Only procedure due to citizen by Parliament is the law making process through

Senate and House of Commons (Authorson) Cabinet decisions are extension of Parliamentary decisions, may not always be

covered (Inuit) Unclear if legislative = general

o Rationale: parliament shouldn’t be impeached by the court and no subject to duty of fairness, only subject to constitutional requirements and electorate (Inuit)

Separation of legislature and court demand no PF hereo Ministerial decision based on public policy grounds affords no PF (Martineau)o Consider nature of decision – affect everyone, large group of people or an individual

If individual only affected, PF required (or targeted)o Municipal governments – difference between PF threshold and PF content, fairness

applies in making bylaws Homex: court will focus on substance, not fact muni is using power

Just because small group is affected by broad, policy-based decision doesn’t make it targeted

Catalyst Paper: muni’s make quasi-judicial and legislative decisions, different considerations for different decisions

CPR and Lafontaine: duty of fairness owed in bylaw-making function If broad decision overwhelmingly affects 1 person, PF may attach

o General Decision – no clear definition but would be broad policy decision that are “inherently political”

Admin

Imperial Oil: minister exercising political role in deciding options, not subject to duty of fairness

Emergency Doctrine – duty may be suspended or abridged in event of an emergency, or if nature of the decision is urgent

o Not possible to fulfil duty without risking harm so ok to suspend it (Cardinal)o No requirement of prior notice or opportunity to be hear before the decisiono Eg. Prison administration and segregation orders

Policy Making and Broad Discretionary powers – no duty of fairnesso Impact is broad and diffuseo Eg. Environmental decisions (Sea Shepherd – wolf kill, Sierra Club – timber cutting)o Eg. Marketing board decisions (Canada Association of Regulated Importers)

Legitimate Expectations Doctrine (LED)

PP Mar.3 Duty of PF may be present if there is legitimate expectations that a certain procedure will be

followed – expands amount of PF owed at CL in circumstances where there would otherwise be no such opportunity (Old St. Boniface)

o Rule: If it applies, may provide procedures where none were owed at CL, or provide better procedures

o Factor from Baker – take into account when determining content of PF Similar to promissory estoppel – relief from reliance on promises Only used for procedural rights, NOT substantive! (Re CAP, Baker, Mavi, Mount Sinai)

o Policy reasons not to allow it to create substantive rights

Can affect procedures required in 2 different ways: (Baker)o Person may have LE of particular substantive result – can apply to entitle person to

more extensive procedures that would have otherwise been accorded before they can be denied of the result

o Person may have LE of particular procedure – can apply to entitle person to have benefit of procedure before decision is made

Circumstances affecting PF must take into account the promises and regular practice of ADMo Would be unfair to act in contravention of representations as to procedure or to

backtrack on substantive promises without affording procedural rights (Baker)

Can arise based on past conduct (regular practices) or promises by officialso Conduct relied on to establish LE must be “clear, unambiguous and unqualified”o Cannot be contrary to statute (Mount Sinai, Mavi)

Not necessary to show they were aware of conduct giving rise to LE (Mount Sinai)o Proof of reliance is not required (Mount Sinai)

Cannot attach to creation of statutes (directly of indirectly)o Would fetter parliament, interfere with legislative supremacy (Re CAP)

Unclear if it attaches to legislative and general decisions OTHER THAN creation of statueso Comment by Sopinka… - created uncertainty

Constitutional and Quasi-Constitutional Procedural Protections

PP Mar.10 Constitutional = Charter Quasi-Constitutional = Bill of Rights

o Earliest expression of HR law, not constitutional document (federal statute)o Similar to rights in Chartero Passage of legislation is not protected by CBR, no right to be heard (Authorson)

Admin

o Only recognizes rights of a kind that existed in 1960, when CBR was enacted (Authorson)o No right to be heard prior to the passage of a statute based on CBR

ORAL HEARINGS AND S.7

Principles of Fundamental Justice includes PF but doesn’t constitutionalise it – if there are serious issues of credibility involved, PFJ will require credibility to be determine on the basis of an oral hearing (Singh)

o Procedures required to meet demands depend on the context (Charkaoui)

o PFJ ≠ PF – same principles underlie PFJ includes PF (Singh) Must have opportunity to adequately state their case AND know the case

they must meet Requirements will vary with context – PF will not always require an oral

hearing, but may be required if credibility is at stakeo Fair hearing may include right to effectively present case, may require legal counsel (NB

v JG)o The greater the effect on liberty, the greater the need for procedural protections to

meet the duty of fairness and requirements of PFJ (Charkaoui)

Take national security context into account when deciding if process is unfair or flawed

In certain situations, s.7 can override the statute where it excludes the possibility of an oral hearing – especially in refugee determination, serious interests at stake

o If credibility at stake, oral hearing may be required (Singh)o Security of person must be certain

Framework for s.7 challenge (Singh) – consider context of the case and if the statutory scheme excludes the possibility of an oral hearing

o Consider the context and specific factual situation (Suresh)o At minimum, PFJ requires compliance with Baker factors (Singh)o To pass threshold of test in Singh, must show prima facie that there is a real risk of

torture before being entitled to requirements under s.7 (Suresh)

1. Is s.7 engaged? – does the decision deprive, or threaten to deprive an individual in interests in life, liberty or security of person?

a. Everyone = persons physically present in Canada b. Security of person = freedom from state imposed threats of physical punishment

2. If yes, is the deprivation in accordance with the principles of fundamental justice?

a. Procedurally? – are procedures by which deprivation can occur in accordance with procedures required by PFJ and PF?

i. Must have a fair opportunity to refute case against them and must know the case against them

ii. Assess using the Baker factors

b. Substantively? – is the deprivation itself consistent with PF?

3. If s.7 rights are at stake and it is not in accordance with PFJ, is the denial justified by s.1?a. Consider the context of the case

Note: Charter challenge is only for cases where ordinary statutes don’t provide a sufficient remedy, don’t automatically get an oral hearing

Recall Baker factors to incorporation the common law framework under s.7 (affirmed in Suresh)

Admin

DUTY TO DISCLOSE AND RIGHT TO REPLY, DUTY TO GIVE REASONS

S.7 grants procedural and substantive rights (Suresh) If there is risk of deportation to torture, entitled to oral hearing and know the case against

them and be able to respond (Suresh)o To pass threshold of test in Singh, must show prima facie that there is a real risk of

torture before being entitled to requirements under s.7 (Suresh) Consider the context and specific factual situation (Suresh)

Minimum content of the duty of fairness to meet PFJ: (Suresh)o Access to all relevant information ADM intends to rely ono At minimum, a written submission with regard to danger to Canada and risk of

torture and reasons for decision

S.7 does NOT mandate a full oral hearing

RIGHT TO LEGAL COUNSEL

PF and ROL do NOT require state to fund legal representation in admin settings (NB v JG)o In certain circumstances, where the decision impairs s.7 interests, state must provide

the individual with legal counsel to satisfy requirements of PFJ

Consider test from Singh o Is s.7 engaged? – state action must have a serious and profound effect on psychological

integrity (greater than ordinary stress)o Deprivation in accordance with PFJ? – must be a fair procedure

Whether a fair hearing includes a right to state funded counsel depends on: (NB v JG)

Seriousness of the interests at stake Complexity of the proceedings Capacities of the individual to represent themselves

o Saved by s.1?

Remedy: if absence of counsel would result in an unfair hearing and a breach of s.7, can order 2 remedies under s.24(1)

o An order that the government provide SRL with state-funded counsel; ORo A stay of proceedings

UNDUE DELAY

In criminal context, s.10 and 11 give rise to rights “without undue delay”o S.10 – right to retain and instruct counselo S.11 – right to be informed of the specific offenceo S.11 – right to be tried within a reasonable time

Undue delay in resolution of HR complaint COULD infringe security interest under s.7 but it will be rare (Blencoe) – threshold will be VERY HIGH

o Unlikely that undue delay would actually be an infringement of s.7

If significant prejudice resulting from unreasonable delay, can warrant a stay of proceedings:o Actual prejudice to a fair hearing in evidentiary sense

Actual Prejudice: ability to answer case against them or have adequate opportunity to present their case is impaired by delay – form of denial of PF

o Delay amounting to an abuse of process Abuse of process: delay where it is inordinate or unreasonable, causes serious

stress or psychological harm and stigma to reputation, brings HR system into disrepute

Admin

To determine if a delay is “inordinate” or “unreasonable”, consider overall context: (Blencoe)o Nature of the case and various rights at stakeo Level of complexity of facts and issueso Purpose and nature of the proceedingso Whether the applicant contributed to the delay or waived it

Procedural Issues

Denial of a aright to a fair hearing must always render a decision invalid, regardless of whether a hearing would have resulted in a different decision (Cardinal)

SPECIFIC CONTENT ISSUES: PRE-HEARING

Notice: starting point for any ADM processo Rule: Notice must be adequate in order to afford those concerned with a reasonable

opportunity to present proof and arguments and to respond to those in opposition 4 main issues with notice:

Form – written, electronic or oral Manner of service – personally is best if serious interests at stake Time – give long enough in advance to decide if they will participate,

depends on nature of case and interests at stake Content – variable, depends on circumstances, must give enough

information to enable the party to respond effectively o ONGOING DUTY – arises prior to making of a decision and continues throughout the

course of a decision making process – must be kept appraised of any issueso Must comply with Tribunals home statute and with CL requirement to provide sufficient

detail to enable the party to know what is at stake in the hearing Sources of Notice: home statute of ADM, ATA if applicable, CL

Disclosure/discovery of evidence to be relied on by ADM o Stinchcombe principles of disclosure do NOT apply in admin law context (May v

Ferndale) – duty of PF required ADM to disclose info they relied on Party must know the case to meet

o Extent is governed by CL – degree required depends on nature of the tribunal and nature of the interests at stake (May v Ferndale)

o Duty is satisfied if the party has sufficient info to make informed submissions

SPECIFIC CONTENT ISSUES: HEARING

Oral or Written Hearings

Factors to be considered in deciding what type of hearing may or may not be listed or just generally expressed

Whether oral hearing is required at CL depends on : (Khan)o Seriousness of the interests at stakeo Whether there is significant credibility issue

When a really important decision turns on credibility, ADM should NOT make an adverse finding of credibility without affording the affected person an oral hearing (Khan)

o Includes opportunity to appear, make oral representations, correct or contradict evidence on which the decision might be based

Not typically required to reach informed decision on admin law matter WILL BE REQUIRED where decision depends on findings of witness credibility (Singh)

Balance fairness vs. efficiency

Admin

o Can’t give oral hearing to everyone or it will clog the system – why ADM deals with this, not the courts, so it can be faster and more efficient

Right to Counsel

NO constitutional right to counsel (BC v Christie)o If NO oral hearing – MAY be representedo If oral hearing – right to be represented is assumed and sometimes statute expressly

requires it S.32 ATA (if applicable) – party may be represented by counsel or agent

When is counsel necessary to give party adequate opportunity to be heard, make their case?o If deprivation of s.7 rights are at stake, PFJ may require provision of counsel

3 factors to consider if state funded counsel is a matter of fundamental justice (NB, Minister of Health)1. Seriousness of the issues and impact of the decision – what is at stake?2. Complexity in terms of process and the law – will questions of law arise?3. Capacity of the person affected to understand the process and participate without

assistance of counsel

Factors against providing counsel: would involvement of lawyer impair those goals?o Need for speedo Informalityo Economy in decision making

Disclosure of “The Case Against” – Right to Decision “On the Record”

Party MUST know the case which is made against them (Kane)o Unless expressly or by necessary implication empowered to act ex parte, ADM must not

hold private interviews with witnesses or hear evidence in absence of the party affected Disclosure of all the information on which the ADM will actually decide Applies primarily at the high end of the PF spectrum where interests are at stake, wrong doing is

alleged, process is adversarial

Official Notice – at high end of PF spectrum, ADM must disclose all information on which it will based its decisions and give party an opportunity to address the information

o Similar to Judicial Notice – what can ADM take “official notice” ofo Problem: ADM’s often appointed for expertise so should be room for them to rely on

expertise without disclosing it to the parties

Evidence and Cross Examination

ADM can act on any logically probative material – not bound by rules of evidence unless the state says so

Denial or limitation of ability to present evidence or cross examine witnesses could amount to a breach of PF if it prevents the party from being heard

o Depends on where on the PF spectrum the case is – low end, with minimal fairness obligations, court is less likely to require cross as part of PF

Rule: party should have ability to present and test evidence that is adequate and reasonable in the circumstances

o What is required varies in relation to the level of PF required and nature of proceedingso Not absolute – ADM controls own process and may limit the exercise of the right

Right cannot be withheld on basis that it is of limited utility (Innisfil)

Admin

SPECIFIC CONTENT ISSUES: POST-HEARING

Duty to give reasons is required in 2 circumstances and in “other circumstances” (Baker)o If decision has important significance for the individualo If the statutory appeal process exists to facilitate the working of the process – can’t

determine if an appeal is required or justified if no explanation was given for the first decision provided

o Other: residual discretion for courts to provide reasons, flexibility to comply with duty to give reasons

PF ONLY asks if reasons have been given! (NFLD and Labrador Nurses Union) – if there are reasons given, there is no breach

o Adequacy or quality of reasons is a question of SR

Reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (NFLD and Labrador Nurses Union)

Reviewing court should be attention to the reasons which could be offered in support of a decision (Alberta Teachers Association)

o If there is no duty to give reasons or when there are only limited reasons required, court can consider reasons that could be offered for decision when doing reasonableness review

o Must give ADM opportunity to provide reasonable basis for decision before a finding of no reasonable basis

Procedures and the Administrative Tribunals Act

Only applies to ADM if the home statute establishes it and only to the extent that the home statute does so – can apply piecemeal or not at all

o Consult home statute to determine if ATA applieso 31 ADM’s in BC and some or all of the provisions of ATA have been applicable to 26 of

them at this point

2 main sections of ATA o Provisions relating to appointment of Chairs and Members (s.2-10)

S.2-3 – merit based process for appointments of Chairs and memberso Provisions relating to ADM powers (s.11-61)

Pg. 105 of John’s outline for details

Bias

Impartiality and independence – was the ADM coloured by bias?o Impartiality: neutral position, fair chance to present caseo Independence: unrelated to political actors, like judges

Reasonable Apprehension of Biaso Perceived bias either on the part of the individual ADM or at institutional level

Rule against Bias – Nemo judexo Aim to foster public confidence in process and substance of administrative justice and to

foster the legitimacy and acceptability of decisions To promote substantive fairness – better decisions To support participatory procedural rights Impartiality principle is linke to ROL and pursuit of equality

Must be governed by known laws and applied even-handedly so like cases are treated similar, without favouritism

Demands non-discriminationo Justice required decision be made by an impartial, unbiased decision maker

Admin

o Will vary based on context of ADM’s activities, nature of functions (Imperial Oil)

Justice must not only be done but must also be seen to be done (Sussex)o Public perception is very important – confidence in ADM will not be achieved unless the

appearance of bias is avoided, as well as actual bias

Allegations of bias must be brought to ADM by party alleging it on the first available opportunity o If successful, decision will be quashed and have proceedings reheard by a new panel

Note: doesn’t require an “opinion free zone” and no need to prove actual biaso Does NOT encompass any and all pre-disposition or attitudes ADM may have – will bring

own values and beliefs to the table, must take this into account in a reasonable wayo Not required to discount life experiences, attitudes or sympathieso Recognize that ADM’s are appointed because of experience and ability to represent

certain interests – must be accommodated in the law of bias

Attitudinal and behavioural componento Beliefs must actually cloud judgment to amount to biaso True impartiality requires an open mind

To be impermissible bias, must be a disqualifying bias – differs in different contexts (Imperial Oil)

LEGAL EFFECT OF BIAS

If bias is found, it disqualifies ADM from making a valid decision and causes loss of jurisdiction Potential remedies:

o If complaint before decision is made - Basis for order of prohibition BUT court often refuses until ADM has made final decision (premature application)

o If complaint after decision is made- quashing decision or setting it aside as invalid

BASIC TEST FOR RAOB

No need to prove ACTUAL bias in ADM – enough to prove a Reasonable Apprehension of biaso Actual bias would be difficult, would have to know inner state of mind – concerns about

practicality Context specific and will be applied flexibly – apply on spectrum to account for different context

o Different level of tolerance for pre-existing attitudes depending on nature of decision, nature of ADM and statutes

o More court like = ROAB strictero Discretionary, policy based = flexible ROABo Spectrum for ROAB (NFLD Tel)

Test for Reasonable Apprehension of Bias (National Energy Board)o Ask: what would an informed person, viewing the matter realistically and practically,

having thought the matter through, conclude? ROAB = If reasonable person would conclude ADM may be influenced to favour

or disfavour a side because of some kind of interest of prejudice the ADM has in the outcome

Reasonable person must be informed of all relevant circumstances and not have a very sensitive or scrupulous conscience (R v S(RD))

o Objective Element (R v S(RD)) Person considering the alleged bias must be reasonable; AND The apprehension of bias must also be reasonable in circumstances

o Grounds for ROAB must be substantial (R v S(RD)) Do not need to show the bias affected the decision – enough that it might

reasonable be perceived to have done so (National Energy Board)

Admin

o Allegations should be made lightly – mere suspicion isn’t enough

Relaxed test: in cases of pre-judging a matter (with municipal councillors), policy-oriented boards for comments made prior to the hearing (subject to normal ROAB when hearing commences)

o Test: have they kept an open mind and remained amenable to persuasiono If closed mind = bias

PECUNIARY OR OTHER MATERIAL INTEREST IN OUTCOME

Definition: has pecuniary, economic interest in outcome of decision, stands to benefit or lose from decision in a material sense that will have impact on finances

Stricter test – any direct personal pecuniary interest is enough to disqualify (Energy Probe)o In this case, bias is presumed and disqualification is automatic, no test

Direct pecuniary interest = sufficiently certain, not too remote and not contingent (Energy Probe)

If indirect financial interests, ROAB test applies flexibly (Pearlman)

PERSONAL OR BUSINESS RELATIONSHIP

Definition: ADM has past OR present relationship with either parties directly involved in decision as parties or counsel OR with those who have an interest in the outcome in the sense that they may either gain a benefit or suffer a loss as a result

o Family, business, professional, associational, friendship (Bennett and Doman)

PRIOR KNOWLEDGE OR INVOLVEMENT

Definition: some kind of pre-existing relationship between ADM and general subject-matter at issue in decision

o Prior involvement with specific case or issue OR where ADM has previously expressed strong views and opinions on matters at issue

ROAB must be reasonable, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information (minority of Committee for Liberty and Justice)

ATTITUDINAL PREDISPOSITION AND CONTEXTUAL STANDARDS

Attitudes or comments of ADM that suggest they are predisposed to certain outcomeo Concern about stereotyping (R v RDS)o As long as statements do not indicate a mind so closed that any submissions would be

futile, they should not be subject to an attack on basis of bias (NFLD Tel)

DEFENCES TO BIAS

Statutory authority – expressly or by necessary implication authorizes ADM to decide matter despite there being an otherwise disqualifying bias

Necessity – if ADM with bias is ONLY POSSIBLE ADM authorized to make the decision, it must be accepted despite ROAB

Waiver – if party knows of bias, can waive it expressly or impliedlyo Implied – knew about the bias and knew they could object, but elected to proceed

without making objection

INDEPENDENCE

Admin

Subsumed under Bias but now treated as separate issueo Can refer to specific ADM or institution/tribunal as a whole

Individual – inappropriately dependent on someone else in DM processo Higher end – required to make up their own mind

Institutional – agency must be free from interference or control, especially executive or political branch of government

o Similar to judicial independenceo Use Valente criteria: security of tenure, remuneration and security/independence in

administration of caseso Still uncertainty here

Admin

Substantive Review

Standard of Review – legal issue, level of scrutiny of decision by courts Ability of ADM to consider constitutional questions – danger of getting it wrong

Introduction to SR

Initially a threat to parliamentary sovereignty and ROL because powers were delegated by executive branch and operated outside legislative scrutiny

o As it expanded, approach by court was more deferential Characterized now by point effort in governance – reoccurring problems from privative clauses,

broad discretion and choice of SOR

APPLICATION OF ATA

S.58 – SOR if tribunals home statute has privative clauseo (1) – relative to the courts, the tribunal must be considered to be an expert in relation

to all matter over which it has exclusive jurisdictiono (2)(a) – a finding of fact or law or discretion by tribunal in respect of matter it have

exclusive justification over under PC must not be interfered with unless PUo (2)(b) – questions about CL rules of NJ and PF must be decided, in regard to all

circumstances, if the tribunal acted fairlyo (2)(c) – for all other matters other than those in (a) and (b), SOR is Co (3) – discretionary decision is PU IF the discretion:

(a) – is exercised arbitrarily or in bad faith (b) – is exercised for an improper purpose (c) – based entirely or predominantly on irrelevant factors (d) – fails to take statutory requirements into account

S.59 – SOR if tribunals home statute has NO privative clauseo (1) – in JR, SOR is C for all questions regarding exercise of discretion, findings of fact and

application of CL rules of NJ and PFo (2) – court cannot set aside finding of fact UNLESS there is not evidence to support it or

if the finding is otherwise unreasonableo (3) – a court must not set aside a discretionary decision unless it is PUo (4) – discretionary decision is PU if discretion:

(a) – is exercised arbitrarily or in bad faith (b) – is exercised for an improper purpose (c) – based entirely or predominantly on irrelevant factors (d) – fails to take statutory requirements into account

o (5) – questions about application of CL rules of NJ and PF must be decided by having regard to whether the tribunal acted fairly

First determine if ATA applies to tribunal, under its home statuteo If s.58 or s.59 apply, it represents a complete code of possible SOR

Then ID the type of question in issueo Once ID’d, reviewing judge must apply the mandated SOR

Development of the Law

STAGE 1: PRE-CUPE (CORRECTNESS)

Used “preliminary questions doctrine” to determine “jurisdictional questions” that could be reviewed:

o If jurisdictional question, the standard is C

Admin

Have to get these questions right in the eyes of the court or the court would overrule them

o If NOT jurisdictional, decision is NOT REVIEWABLE Problem: turns into an all or nothing approach, too formalistic and not contextual

o Devices used by the courts to meddle in ADM area where they had been explicitly excluded from

o Could frame ANY question as jurisdictional and review on C

PC cannot oust JR of jurisdictional problems because of s.96 , courts can review these decisions (Crevier), BUT could oust court’s JR on other questions

What are jurisdictional questions that can be reviewed?o Preliminary question doctrine = jurisdictional question was one that was preliminary or

collateral to the main issue that ADM had jurisdiction to address

STAGE 2: CUPE (CORRECTNESS AND PATENT UNREASONABLENESS)

Expansion of judicial deference in ADM decisions (CUPE) – CUPE put courts on path to deference and end of ROL approach

o MAJOR TURNING POINT – called for restraint by courts when dealing with ADM

Addition of new SOR – Patently Unreasonable (CUPE)o Correctness: used for jurisdictional questions, questions of law

Correct in the eyes of the court (CUPE)o Patently Unreasonable: matters within core jurisdiction (heart of the case) are not

entirely immune from review – expanding reviewing role of court, in line with ROL “Patently” signals high deference

Rejection of preliminary question doctrine (CUPE) – defines “jurisdictional” questions very narrowly, to give deference

More deference based on PC (CUPE) – clear signal from legislature that they wanted ADM decision shielded from JR on C standard so deference was needed

o Recognition that ADM’s are specialized bodies that have mandate to apply their expertise and experience to matters they may be better suited to address

o Must respect the specialized jurisdiction of ADM

STAGE 3: AFTER CUPE

Continuing trend towards more deference and more SORs – chipping away Dicyan theoryo Still back and fortho No clearly articulated conception of what ROL is, different conceptions

Bibeault: started backtracking from CUPE because Beetz introduced the “pragmatic and functional approach” to decide legislative intention, then decided Q of statutory interpretation on C standard

o More conservative o Predecessor to PFA from Pushpanathan, post Dunsmuir

National Corn Growers: wouldn’t interfere with specialized ADM decision regarding their areas of expertize if decision wasn’t PU, shift away from Dicey rules and ROL

o If decision of ADM was within expertise and not PU, court will NOT interfere

Mossop: noted other reasons for deference other than existence of PC

Pezim and Southam: deference can apply in situations where court exercised appeal jurisdiction and grounds for appeal included an error of law

Admin

o Both had NO PC in economic sector, had broad appeal provisions but court extended deference anyways – idea of expertise of the ADM, moving towards functionalist approach to ADM’s

o Created Reasonableness Simpliciter

STAGE 4: INCREASING COMPLEXITY IN DETERMINING SOR

PFA from Bibeault is reinstated in Pushpanathan and exemplified in Ryano All approaches unified in Pushpanathan – trying to determine which standard should be

applied when deference is called for: PU or RS

Must always determine appropriate SOR (Pushpanathan) – must always go through PFA factorso Problem: adds complexity and time to cases – gives rise to calls for simplification

Now SOR determined backwards – If SOR is C, then necessarily it will be a jurisdictional questiono “Jurisdictional” is emptied of all meaning (Pushpanathan) – not relevant in analysis

RS is a range on the spectrum – issue of whether it floats or not (Ryan) – Ryan states RS does NOT float

o 3 standards for JR: C, RS and PU – PFA will determine which is appropriateo Decision is only unreasonable if there is no line of analysis within the reasons that could

reasonable have led the ADM from the evidence to its decision (Ryan) If any reasons are sufficient to support conclusion, that can stand up to a

somewhat probing examination, decision will NOT be unreasonable

Pragmatic and Functional Approach

Inquiry: did legislator intend that the courts defer to ADM with respect to the issue? o Pragmatic and Functional Approach – consider 4 factors: (Pushpanathan)

1. Privative Clause or Appeal Provision a. Not as important as it used to be – existence/non-existence is only 1 factorb. Strong PC = deferential – shows direct intention of parliamentc. Weak PC is neutral

2. Expertise a. Relative expertise compared to court based on specific questionb. MOST IMPORTANT FACTORc. Look at ADM – appointed for expertise? Bring something different like non-

legal perspective?i. Follow a different process than a court?

d. Unwilling to defer on HR matters – courts feel they have expertise in these matters (Pushpanathan)

3. Purpose of the Act a. Polycentricity principle – look at purpose of act as a whole and provision in

particularb. Is activity similar to what a court does? – adjudication between 2 parties

solving dispute on basis of law = less deferencei. If Polycentric model that is about interest balancing, policy and

protecting public interest = more deference

4. Nature of the problem a. Questions of law = points to C

i. If pure Q of law, strong presumption in favour of Cb. Questions of fact = points to deferencec. Questions of mixed law and fact = points to deference

Admin

i. Level of deference depends on how many facts are at issueii. If Q of law can be separated, points to less deference

After going through analysis, if the SOR is C, then you can say it is jurisdictional question

STAGE 5: PRE-DUNSMUIR CRITIQUES OF SOR

LeBel commented on problems with current approach to SOR in “Cri de Coeur” in Toronto v CUPE 2003 – in favour of 2 standard system of review (C and R)

o Framework was too complex and length, difficult for lower courts to followo Confusion between PU and RS

BC legislated SOR for tribunals with s.58 and 59 of ATA – preserve pre-Dunsmuir concepts, in particular PU is SOR in certain circumstances

o If s.58/59 apply to the tribunal through the enabling statute, PU can applyo BC’s process diverges from the national norm established by SCC in Dunsmuiro This approach was found to be constitutional – PU lived on post-Dunsmuir and

legislature can legislate how courts carry out JR (Manz) Tell courts how to review certain ADMs PU takes meaning from CL pre-Dunsmuir (Manz)

o Low Threshold: It there is ANY evidence to base its reasons on, the decision will NOT be PU (Manz)

Dunsmuir: Simplifying SOR

Defines Reasonableness: “due consideration” to determinations of ADMso Concerned about justification, transparency, intelligibility with DM process o Concerned with whether decision falls within range of possible outcomes

SOR has 2 standards – C and Ro No spectrum of R – it is concept and there is no sliding scale (Modernising JR)o Intended to create more coherent framework (Modernising JR)

Introduces categorical analysis – presumption of R can be defeated/rebutted through categories

Defeasible rule methodology/categorical analysis – consider all factors together:o PC – indicates need for deferenceo Discrete and special admin regime in which ADM has special expertiseo Nature of the question of law – Q of central importance to legal system, outside

specialized area of expertise of ADM will always attract a C standard (Toronto v CUPE) Court will substitute their view in this case

Review is not required in every case – consider case law to determine

Makes PC essentially useless – default position is deference, only single standard of R and PC doesn’t trump the exceptions to the presumption of deference

o Minority , Binnie: PC shows that a level of respect must be shown, essentially PC used to calibrate sliding scale of R

o Majority : rejects the sliding scale, standard of R will not slide, didn’t deal with how to assign weight to PC

Khosa, Majority: PC is important indicator of legislative intent, but don’t deter judicial intervention, didn’t want to rollback

o Adds uncertainty about weight that statutory right of appeal/PC has as compared to deference

Admin

o Minority, Rothstein: PC shows legislative intent, importance of its absence – wants to roll back to when judge knew best about Q of law and discretion unless PC was used (Diceyan attitude)

R is SOR BUT, basis for deference is in statutory provisions dealing with errors, not in broader deferential stance

Problems: can PFA balancing approach co-exist with Dunsmuir’s methodology and categorical approach? – difficult to reconcile

o Binnie: making 2 standards instead of 3 just shifts the congestion of analysis from one spot to another

Issue is now deference to be accorded within R standard – before issue was which standard to apply

Issue of degree of deference remains Now R will incorporate degree of deference (reflected in difference between

PU and RS) AND assessment of range of options open to ADM in circumstances If dealing with home statute and PC = reasonableness

o

DUNSMUIR FRAMEWORK

TEST: - SOR analysiso contextual analysis, depending on factors (not necessary to consider all factors)1. Has jurisprudence already determined in a satisfactory manner the degree of deference

to be accorded?2. Consider if the issue fits into any of the categories of presumptions (Alliance Pipeline)3. If not, consider the factors to ID the proper SOR:

a. Presence of PCb. Purpose of ADM as determined by enabling legislationc. Nature of questiond. Expertise of tribunal

Legislature does have power to specify SOR if it manifests a clear intention to do so – Federal Courts Act sets grounds (Khosa)

Presumptions

Correctness: (Alliance Pipeline)o Constitutional issues (Alberta’s Teacher’s Association)o Question of general law that is of central importance to the law in general and outside

specific area of expertise (Alberta’s Teacher’s Association)o Where 2 tribunals claim jurisdictiono A true question of jurisdiction – exceptional area, not seen since Dunsmuir

Reasonableness: (Alliance Pipeline)o Interpretation of ADM’s home statute or statutes closely related to its function

Deference in this case (McLean) – defer to any reasonable interpretation adopted by ADM, even if other interpretations may exist

o Questions of fact, discretion or policyo Mixed fact and lawo Arbitral case law (Irving Pulp and Paper) – reasonable application of the law will require

deference and R

IMPACT ON ATA

1. FIRST STEP: LOOK AT HOME LEGISLATION – ATA only applies to the extent the enabling statute provides (Lavender Co-Op)

2. If s.58/59 apply , that section represents the complete code of possible SORso If they apply, ID type of question at issueo Reviewing judge must apply mandated SOR

Admin

o Extent of exclusive jurisdiction under s.58 where there is PC, is determined by wording of PC and is a matter of statutory interpretation (Jestadt)

3. If neither is applicable , court must apply common law from Dunsmuir framework

May be able to separate out questions of mixed fact and law but subsequent cases haven’t adopted this (Coquitlam School District)

Meaning of PU post-Dunsmuir and ATA – high end of deferential spectrum, retains pre-Dunsmuir character = considerable deference (Khosa)

o “Considerable deference” was first used in Pezim, talking about RS, not PU – may have been conflating the 2, which was concern pre-Dunsmuir

SOR analysis is not applicable to matters of PF (Seaspan Ferries)

POST-DUNSMUIR DEVELOPMENTS

What happened to Jurisdiction?o Currently unclear whether jurisdictional question will die or just lay dormant until SCC

decides to resurrect it (Alberta Teacher’s Association)o Initially wasn’t a decision that was insulated form JR, even in presence of PCo Later serious attention to jurisdiction disappeared after Southam – could justify

deference in absence of PC and justify C in presence of PC Became a label to attach to outcome reached by balancing of PFA factors

o Dunsmuir: revived idea of jurisdiction as concept capable of rebutting presumption of deference – does NOT frame questions in this way though (“does statute authorize the ADM…”)

o Restraint in labelling an issue jurisdictional – are exceptional, none before the court since Dunsmuir (Alberta Teacher’s Association)

Unable to give definition of true question of jurisdiction (Alberta Teacher’s Association)

o Alberta Teacher’s Association: Cromwell – warns that position on jurisdiction could undermine JR, but this ignores other basis for application of C, apart from jurisdiction

Binnie – agrees that jurisdiction is fundamental BUT endorses the euthanizing of the issue because of practical issues – wants R as spectrum and enlarge Q of central importance to legal system

o Questions which may have previously been considered jurisdictional should now be dealt with under SOR analysis from Dunsmuir (Mowat)

Narrowly interpreted

What happened to Patent Unreasonableness?o Dunsmuir got rid of it BUT it will live on in BC because of ATAo Not required to interpret PUT because it is defined under the ATA according to pre-

Dunsmuir (Figliola)o Highest level of deference available under admin law principles is R – respect questions

within specialized expertise of ADM UNLESS not rationally supported/unreasonable (Shaw v Philips)

What is a question of Central Importance to the legal system as a whole and outside of ADM’s area of expertise?

o Expertise is not focus of evaluation (Dunsmuir)o These are assigned a C standard ONLY if there are outside specialized area of expertise

of the ADM (Dunsmuir)o HR ADM typically attracts little deference – central importance!o Post Dunsmuir SOR analysis ≠ pre-Dunsmuir PFA factors

Admin

REASONABLENESS POST-DUNSMUIR

Builds on reasonableness from Southam, Ryan and CUPE – tries to offer clearer guidanceo Decisions should stand unless it cannot be rationally supported by relevant legislation of

evidence

Does Dunsmuir help?o Instability of case law in applying deferential standard between:

Judicial supremacy – setting strict limits within with ADM reasoning must be closely hedged

Judicial abdication – refuse to look too deeply into reasoning or evidence or revisit ADM assessments of weight of factors

o Step in the right direction after Dunsmuir

Deference as respect – attention to reasons offered or which could be offered in support of the decision, respect for ADM process

o Respect for government decision to create ADM with delegated powerso Questions before ADM give rise to a number of possible outcomes and reasonable

conclusions, not just one result

Reasonableness is concerned with justification, transparency, intelligibility within process and if decision falls within range of possible, acceptable outcomes that are defensible in respect of facts and law

o Reasons must be read together with outcome to see if it falls within acceptable range of possible outcomes (NFLD Nurses Union)

o Common sense inquiry Replaces depth of probing and magnitude of error: justification, transparency, intelligibility

Developments

1. Distinction: review to determine if duty to give reasons is met vs. review for substantive reasonableness

2. Idea that reasonableness takes colour from contexta. No reasons vs. substantive unreasonableness – low threshold should apply in

determining if reasons have been provided as matter of PF (NFLD Nurses Union)i. Questions about the quality of reasons is matter of SR

ii. Shifts question of whether the reasons adequately support or justify a decision to substantive review

b. Contextual dimension of R – once it is determined that review is on R, there is no second assessment of how intensely the review will be (Alberta, Privacy Commissioner)

i. Each instance of R is governed by context – it will be informed by contextual factors such as the nature of the question

Judicial Review of Discretionary Decisions

HISTORICALLY

Discretionary decisions (ie. admin decisions) were seen as political decisions and thus not subject to ROL – outside legal sphere

Quasi-judicial and judicial questions were subject to ROL – applied rules, led evidence and were determined by precedent

o NO discretion Discretion was considered to be untrammelled and unfettered

TRADITIONAL APPROACH: ABUSE OF DISCRETION DOCTRINE

Admin

Discretionary decisions are subject to ROL – no separate legal and political spheres (Roncarelli)o All decisions must be made within parameters of statuteo No such thing as absolute and untrammelled discretion

Discretion implies good faith in discharging public duty – must take into account relevant considerations and ignore irrelevant considerations (Roncarelli)

MODERN APPROACH

Rejection of binary of discretionary and non-discretionary decisions (Baker)o Decisions are composed of a mixture of the 2o Exercise of discretion and interpretation of rules involve making choices between

various options – both subject to form of control

Reviewed under PFA – if highly discretionary, this will be factored under statutory purposes and nature of the problem factors (Baker)

o Must be given leeway but must be exercised within boundaries of statute

Not allowed to re-weigh factors or interfere with discretionary decision on basis that court would have come to different decisions (Suresh)

o Ensure that the relevant considerations were taken into account by ADM but CANNOT re-weigh them

SOR is R when fugitive’s Charter interests are engaged, re: extradition (Lake)o If proper test used and reasons provided a sufficient basis for decisions, should not

interfere or re-weigh

For discretionary decisions, 2 step Test to ID SOR: (Agraira)1. Consider whether the level of deference to be accorded with regard to type of question has been

dealt with in jurisprudence2. If not dealt with or relevant precedent is inconsistent with recent developments in CL principles

of JR, court performs full analysis to determine applicable standard

Further Constitutional Issues Related to SOR Analysis

SOR FOR CONSTITUTIONAL DETERMINATIONS

Old Framework (Slaight Communications)o Determine if order was made pursuant to legislation that confers power to infringe a

protected right If yes, legislation itself must satisfy s.1 test If authority to infringe is not express and provides broad discretion, then the

order itself must satisfy s.1 testo If it cannot be justified under s.1, ADM has exceeded jurisdiction

New Approach (Dore v Barreau du Quebec)o Oakes test does NOT apply in admin law – question is whether the decision reflects a

proportional balancing of Charter rights and valueso If legislation confers authority to infringe protected right and the authority is justified

under s.1 – determine if particular exercise of authority is reasonable in admin law context

Whether it is reasonable = reflects balancing, captures s.1 considerationso Reasonable when an appropriate balance is struck between ADM mandate and Charter

rights at issue – weighing of factorso If authority to infringe is explicit = SOR of Co If authority to infringe is discretionary = SOR of R

Admin

o If discretionary and deals with Charter values, doesn’t necessarily have to be Co Rationale of deference – acknowledge ADM expertise in adapting Charter values to

matters within ADM’s expertiseo Major step forward but still questions:

Remedies be informed by Charter values? Who has onus of determining the breach is reasonable?

JURISDICTION: ABILITY TO CONSIDER CONSTITUTIONAL ISSUES

Authority to interpret law must be conferred by home statute since ADM has no inherent authority to decide Q’s of law (Cooper)

o Dissent: all law and law-makers that touch people must conform to Charter

If legislation doesn’t expressly grant jurisdiction to consider QoL, jurisdiction may be implicit and inferred from factors: (NS v Martin)

o Statutory mandate and whether considering QoL is necessary to fulfill mandateo Interaction of tribunal with other elements of admin systemo Whether ADM is adjudicative in natureo Practical considerations – capacity to consider QoL

Guiding principle: whether legislature intended ADM to have jurisdiction to consider QoLo Presence of intent isn’t the end but establishes rebuttable presumption that ADM has

jurisdiction to apply the Charter Presumption that if ADM has ability to consider QoL, it has ability to consider constitutional

questions – consider evidence to rebut (Paul)

Charter Remedies: consider test from NS v Martin and unless there is clear demonstration to withdraw Charter from ADM authority, it will be a court of competent jurisdiction to deal with Charter remedy (Conway)

Admin