NCA Administrative Law Notes

Administrative Law Notes http://www.scribd.com/doc/90025720/1/Administrative-Law-Summary http://www.scribd.com/doc/64348006/Administrative-Law-NCA-Summary STUDY TIPS Decisions of Legislative Nature – PER MICHELLE Krever Commission – PER MICHELLE Part of the problem is that a lot of you are overthinking Admin. If you look carefully at the sample exam, you'll notice something that is very apparent in the actual exams administered - that is, there are three fact patterns and one focuses on procedural administrative law, another on substantive administrative law, and a third that will likely include something about bias, charter challenge, or otherwise similar content. Once you are able to identify procedural vs. substantive problems, the rest is easy. When analyzing a procedural question, look at the Baker elements and carefully read the Judge's analysis. Most problems will result in the victim having right to some procedural fairness. When looking at the substantive elements, organize your thoughts carefully - does the person have any right to due process at all? If so, what level? And after determining what level, focus on how that person's rights should be applied to the fact pattern. There will always be a bit about bias or a charter argument. Find it and use the text book to find out what type of bias it was, speak clearly and concisely about whether an argument exists, and make a confident conclusion about it. There is a lot of fluff in the text books intended to take up your time. Once you learn what the examiners are looking for, you can focus on that and ignore the rest of the nonsense. You will realize that your exam will consist about 80% of the Baker and Dunsmuir elements, and the cases that led up to, or were decided, on the basis of this case law. Canadian law is somewhat archaic in that many of the textbooks and reading materials are published every few years, which is in contrast to American authorities which are published yearly or twice yearly. This means that a lot of things to do with two standards of reasonableness (hint -only 1 now exists) are still in the texts and this causes some confusion. Don't waste your time with trying to explain to the examiner the difference; rather, focus on the IRAC method religiously. I cannot stress organization and writing style. You could have a strong grasp on the case-law, but if you cannot argue your position with confidence, you'll fail. I would bet that writing style and organization are the deal breakers with NCA examiners, as your first impression is the only one you'll make. If your English is weak or you are unable to put your thoughts on paper properly, spend a lot of time taking the practice exams and reviewing the outlines so you know exactly how your answer will flow. Lastly, walk into the test knowing that there are only a few ways that a question can be asked when it comes to admin law. There will always be a person or entity who was denied a certain benefit or right. There will always be a question on procedural and a question on substantive law. The fact pattern will always be fashioned in a way that it is difficult to determine whether standard of review is correctness or reasonableness because it could go either way, so look closely for a statement or fact that sways you to the correct SoR (remember, choosing the wrong SoR can fail you). And also remember, there will be a question which asks you whether a person or entity has any rights in law to some type of bias/constitutional challenge. Learn the different types of bias and apply it correctly, and learn the jurisdictional limitations that tribunals must abide by when hearing constitutional challenges.

1

Hope that helps. Once you guys stop over-thinking admin law and start focusing on the actual elements of the subject, you'll realize that it's an area of Canadian law that is well developed and relatively easy to conquer. When I was studying for it, I was overwhelmed because I could not separate procedure and substantive law properly, but with some time and resources I was able to figure it out quite well. Steven: The syllabus is extremely frustrating because it does not provide students with any structure. My suggestion would be to break down your outlines into two major categories: Procedural and Substantive. For each category, ask yourselves (a) whether any procedural/substantive rights exist; (b) at what level? and (c) and whether the victim received enough process or whether more should have been given. Again, HEAVILY rely on the Baker analysis for matters of procedural fairness, even step-bystep as outlined by Justice L'Heureux-Dubé, whose analysis is extremely easy to follow. One easy way to identify procedural fairness problem is where there is no "finality" to the issue. Procedural questions mostly center around matters of how a certain thing was done, such as how someone was fired, how a benefit was revoked, or along those lines. Procedural questions usually look at whether a particular person received enough opportunity to challenge a decision or whether the decision was based on sufficient research and opportunity for the victim to be heard, etc. In contrast, substantive questions mainly involve a final decision by a tribunal, and the party involved is looking to have that overturned by a court. First, ask whether there is any basis for review at all: that is, are there any mistakes in fact or law that are egregious enough for court intervention? If so, what standard of review? Look to the Dunsmuir and supporting cases to determine this. Finally, will the court overturn the decision at all? Analyze the case-law and determine whether the error was big enough to warrant court intervention. Most substantive issues will be a standard of reasonableness, because most of them are typically errors of fact or mixed fact and law. You will know when a correctness standard applies when you see matters of law that are highly important to the legal system as a whole or involve a constitutional question (which is rare.) If anyone has any specific questions about admin, let me know. I'm no expert, but I did put a great deal of effort into learning it at the expense of my other exams, and I'm happy to share my experiences. Introduction Primary questions: (a) The circumstances under which governmental decision-makers are subject to an obligation of procedural fairness to those affected by their decisions, and, where applicable, the content of that obligation. (b) The extent to which the substantive decisions of assigned decision-makers are subject to merits scrutiny by the courts in the name of jurisdiction or other principles of substantive review such as error of law, error of fact, and abuse of discretion, and especially the standard of review that reviewing courts bring to bear in exercising that constitutionally guaranteed capacity. (c) The remedial framework within which the superior courts, both federally and provincially, exercise their review powers. (d) The bases upon which the courts will not only exercise direct powers of review but also provide monetary compensation for wrongful administrative action. Topics:

2

(a) A procedural fairness (or more generally, procedural expectations that administrative decisionmakers must meet); (b) substantive constraints (or more generally the sorts of substantive errors administrative decisionmakers must avoid); and (c) challenging administrative decisions and remedies on judicial review (or more generally, the relief available to a person who wishes to challenge an administrative decision and the procedure to be followed in seeking this relief). Procedural Fairness 2. Sources of Procedural Obligations (a) Enabling Legislation (i.e. statute sets out the procedural expectations). See Sngh (b) Sub-ordinate Legislation (i.e. regulations and rules) – note that there is a risk that persons making the rules and regulations don’t meet expectations or wishes of legislature. There are mechanisms of accountability and scrutiny to ensure this doesn’t happen: (i) (ii) (iii)

Legislative Scrutiny - - regulations must be approved by legislature once approved Public Consultation when drafting regs/rules Judicial review – e.g. compliance with Charter or other constitutional instruments, ultra vires, compliance with common law (in absence of express language to the contrary).

(c) Policies and Guidelines – “soft law” set out by the relevant administrative decisionmaker. (d) Procedural Statutes – set out coming procedural standards. E.g. Alberta Administrative Procedures and Jurisdiction Act or BC Administrative Tribunals Act (e) Common Law – a party affected by the administrative decisionmaker is entitled to be heard by that administrative decisionmaker in an impartial and independent hearing. Derived from rules of “natural justice” which imposed on tribunals exercising judicial or quasi-judicial functions, trial-type procedures. Concepts of audi alteram partem (the decision maker must “hear the other side”) and nemo judex in sua causa (decisionmaker must not be a “judge in his own cause”). Today, it applies to a much broader spectrum of decisions. (i)

Cooper vs Board of Works (1863) – Builder had to give 7 days notice of intention to build under the statute and if not, the Board of Works had the right to tear down his building. Court ruled that he needed opportunity to be heard – particularly as his right was property right.

(ii)

After this, English Courts willingness to impose hearing requirements on decisionmakers became contingent on the nature of decision making power – judicial or quasi-judicial vs administrative decisions. This became untenable and then in 1964-1970 courts started reviewing administrative decisions as well.

(iii)

Nicolson v. Haldimand-Norfolk Regional Police Commissioner (1979) SCC – Statute said that certain procedures must be followed before firing a constable of over 18 months. In this case the person had been constable for 15 months and was no procedures were followed – he was discharged without being given an opportunity to make submissions. Court ruled that just because he wasn’t entitled to the notice and hearing required under statute, that didn’t mean he had no protection at all. He must be treated fairly, not arbitrarily. He should have been told why his services weren’t

3

required and given an opportunity to respond. Then, after hearing his response, the Board can decide on what action to take (in good faith). Before this decision, the “duty to act judicially” was thought to apply only to tribunals rendering decisions of a judicial or quasi-judicial nature, to the exclusion of those of an administrative nature. Nicholson has made the distinction less important – since the duty to act fairly and duty to act judicially have their roots in the same principals of natural justice. (iv)

Expansion of the duty of fairness to areas of administrative decisionmaking (such as prisoners rights) that had previously escaped judicial scrutiny for compliance with rules of natural justice.

3. Procedural Obligation Triggers (Knight “Three-Prong” and the Concept of “Legitimate Expectation”) Where is a given procedural obligation triggered? If the procedural rule comes from legislation, the answer to the trigger question is in the legislation itself. If the procedural rule comes from “general statutes about procedure”, they contain their own triggers. So you need to be careful to read that legislation if it applies to your decisionmaker. (Make sure the statute does apply to your decision-maker. Also check if a provincial general procedural statute can ever apply to a federal administrative decision-maker.) Two triggers for common law procedural fairness: (a) what we can call the Knight v. Indian Head (three-prong) trigger; and (b) legitimate expectation. Where the requirements of these triggers are met, then procedural fairness is owed by the administrative decision-maker. What that means in practice is a more complex discussion involving consideration of the content of the procedural fairness. Pay attention to some of the exceptions and constraints on the triggers as well. So, for legitimate expectation, note the courts views on procedural versus substantive promises. For the Knight trigger, the readings talk about final versus preliminary decisions (and the related issue of investigations and recommendations). Note also exceptions to this exception – SEE Grange J application of test in Abel

Knight v. Indian Head School Division No. 19 (1990) A majority of the Supreme Court recognised that in dismissing its director (who held office at pleasure), a school board was bound by duty of fairness. Extended fairness beyond domain of office holders dismissible only for cause. Also set down lines of a new threshold for duty of fairness based on distinction between decisions of a legislative and general nature and acts of an administrative and specific nature. Concept of procedural fairness as a common law right introduced. FACTS – board of education dismissed a director when he refused to accept renewal of contract at a shorter term than the original. Director alleged wrongful dismissal. Court found that board did not need to show cause for dismissal under contract or Education Act. Director also argued he was entitled to procedural fairness. Majority of the Supreme Court agreed but found that the requirements

4

of procedural fairness were met. Minority said that no duty of fairness was owed to the director. Board of education’s appeal was allowed. THREE PRONG TEST per L’Heureaux-Gube J (for the majority of the Supreme Court): 1.

2.

Nature of the decision to be made by the administrative body: (a)

Administrative vs. Legislative use of power - Administrative powers attract procedural fairness while legislative powers do not

(b)

Final decision maker- Preliminary or interlocutory decisions don’t invoke procedural fairness

Relationship existing between that body and the individual: All we are concerned with, is whether the body is exercising a power stemming from a statute or prerogative power.

3.

Effect of that decision on the individual's rights (privileges / interests) Low threshold requiring only that applicant have an interest and that it be impacted

If all of these criteria are met then procedural fairness is triggered and the court will decide what procedures the applicant is due. But note that if the statute specifically excludes procedural fairness, then the court has no choice but to follow the legislature’s intent. Basic requirements of the duty to act fairly is to give reasons for dismissal and a hearing. Note that every administrative body is master of its own procedure and therefore you must allow administrative bodies to work out a system that is flexible, adapted to their needs and fair – NO need to make it a court process. Dissent (Sopinka for the minority of the Supreme Court): No duty of procedural fairness because the employer cam terminate employment without cause and without giving any reason. In his view, the correct approach is to examine the stature, regulations and contract to determine whether the respondent has brought themselves within the exception to the general rule that an office terminable at pleasure does not attract a duty of fairness – i.e. the governing instruments must specifically or by implication point to a duty of fairness. Note – Dunsmuir v New Brunswick changed the law re procedural fairness applicable to public office holders. Where a public office holder’s employment is governed by an employment contract, disputes re dismissal must be resolved according to terms of the contract and any applicable statutes and regulations. I.e. a public authority that dismisses an employee pursuant to an employment contract is not subject to an additional public law duty of fairness. Remedies of employee are only contractual. Reasons: 1. hard to determine in practice if a position had a strong enough “statutory” flavour 2. public law remedy of overturning the dismissal and reinstating employee (who is entitled to accrued salary and benefits from time of dismissal to courts order of judicial review) is less principled than private law remedy of proper notice and pay in lieu of notice because the amount of relief depends not on employee’s situation but length of time to resolve the judicial application. I.e. common law entitlements of notice period, salary in lieu and wrongful dismissal claim provide enough protection. Dunsmuir noted that the public law duty of fairness can still apply:

5

1. where the public employee is not protected by an employment contract 2. where the office-holder is expressly subject to summary dismissal 3. where the duty of fairness flows by necessary implication from the statutory power governing the employment relationship – e.g. statute provides for notice to be given to employee of a motion to dismiss. Martineau v Matsqui Inmate Disciplinary Board [1980] This case applied the principles set out in Nicholson in a prisoner rights context – inmate disciplinary board procedures. Re Webb and Ontario Housing Corporation [1978] Webb was a low income tenant in a building owned by Ontario Housing Corporation and managed by Meridian Property Management for OHC. After 3 years, Meridian recommended terminating the lease because of problems caused by Webbs kids. OHC officials and its board of directors agreed and an application for termination of her lease was brought under Landlord and Tenant Act. Webb applied for a review of the decision. Three Arguments (a) Statutory Powers Procedure Act 1971 applies to a meeting of the directors of OHC when considering terminating a lease, (b) if the Act doesn’t apply, rules of natural justice apply as they were conducting a judicial or quasi judicial hearing and (c) duty to act fairly as Webb had a “legitimate expectation” she would be treated fairly and this expectation was not met. Judge held directors were not a tribunal exercising a statutory power of decision under the Ontario Housing Corporation Act where it was required to give the parties an opportunity for a hearing. Determination to terminate tenancy does not fall within Statutory Powers Procedure Act 1971. He also dismissed argument (b). Re argument (c) – case is important because it distinguishes between an applicant for subsidized housing and someone already in subsidized housing. Decision by OHC to grant Webb subsidized housing was not one that could be subject to procedural fairness. Once Webb became a tenant, she qualified for and acquired a benefit. What is at issue in these cases is what it is appropriate to require of a particular authority in the way of procedures given the nature of the authority, the nature of its power and the consequences of the exercise of the power on the individual affected and the nature of the relationship between the authority and the individuals affected. Judge MacKinnon said that in his opinion OHC, in exercising power of termination and depriving Webb of benefit of lease was, in the circumstances, required to treat her fairly by telling her of case against her/complaints and giving her an opportunity to answer. Serious adverse effect/danger of losing an important benefit with no opportunity to answer the case against her would be unfair. ON FACTS SHE WAS TREATED FAIRLY – PLENTY OF WARNINGS. HOLDERS OF STATE ASSISTANCE ENTITLED TO PROCEDURAL FAIRNESS BEFORE IT IS CUT OFF. APPLICATION FOR LICENCE: Hutfield v Board of Fort Saskatchewan General Hospital District No. 98 [1986] Dr H applied to be appointed to medical staff of a hospital. Hospital board had statutory power to make bylaws and gave it responsibility for hospital’s affairs. By-laws said that applications for appointments had to be sent to the College of Physicians and Surgeons of Alberta for its recommendation and to the chief of the hospital’s medical staff and to its appointments committee. College approved Dr H but board rejected him. He applied again, college not consulted and appointments committee gave an adverse oral recommendation. DR H asked to appear before the board when it considered the application but board refused.

6

Judge McDonald noted that relief had been granted in past for zoning or development permits on basis that decisions impacted on common law right to own land. Also noted there was case law for judicial review where there is a “legitimate expectation” of obtaining permission sought rather than a mere hope of success or benefit unless certain adverse findings are made against him. This case makes the same distinction as Webb re procedural fairness on extinguishment of existing rights vs expected standards of procedural fairness in the case of an application for permission or consent not previously enjoyed. It is not a distinction founded in principle – at best the source is a mixture of historical accident and a misconception that the remedy of judicial review (certiorari) and stds of natural justice ought to apply only where the conduct of the authority exercising the public duty determines rights in the sense of a right to which there is a corresponding obligation. This notion NO LONGER governs in light of : 1. recognition that courts will protect interests as well as rights 2. recognition that certiorari is available where there is a duty to act fairly (and not just judicially) 3. where there is a duty to act fairly, the content of the duty varies from one situation to another 4. artificiality of the distinction drawn in the recent English cases that have pushed frontiers of judicial review and procedural fairness out but limited them on grounds (“legitimate expectation” and “Slur”) that do not reflect a principal that can withstand scrutiny. Board has no duty to grant hospital privileges to Dr H. He doesn’t have a “legitimate expectation” of being granted hospital privileges – at best he had a hope of benefitting from the boards decision. But his professional interests would be affected by the decision. Also, if the committee recommends that he be denied hospital privileges, it infers that it found that his credentials, ability, experience was not up to good enough – amounting to a “slur”. Also, he was a local Dr, practicing in the district – refusal limits his patients. So held Dr H’s interests were affected sufficiently directly and substantially that, if procedural fairness not complied with by hospital board, then certiorari is available. Board must give reasons for its decision and decision was invalid because the appointments committee didn’t give a written report. c.f. McInnes v Onslow-Fane – boxing manager denied licence even though he had held various other forms of licence from the British Boxing Board of Control. Note also in the context of licence renewals, the longer a licence held, the greater the interest in renewal and stronger the entitlement to procedural fairness. FAI Insurances v Winneke (1982). Therefore, a fisherman entitled to procedural fairness even though statute stated that licence renewal was in the absolute discretion of the minister Everett v Canada (Mister of Fisheries and Oceans) (1994) INVESTIGATIONS Traditionally the court would not apply procedural fairness – e.g. Guay v Lafleur (1965) – person appointed to make tax investigations refused a subject’s request to be present when the investigator examined witnesses. Court ruled it was purely investigative – no decision or adjudication so no procedural fairness. Doctrine changed in England in 1970s In re Permagon Press Lord Denning decided that the subjects of an investigation were entitled to see a copy of the report. Inspectors must act fairly. Re Abel and Advisory Review Board (1979)

7

The ARB conducts reviews of persons found not guilty of crimes b/c insane so they could make recommendations to the Lieutenant Governor. So no binding authority rests with ARB. Lawyers for patients requested copies of files and the chairman refused on the grounds that he didn’t have authority. Grange J said that the findings of the board were of utmost concern to patients – their only chance of release. Applied De Smith’s (an academic) test: (a) degree of proximity between investigation and decision (b) exposure of the person investigated to harm. He said that although Nicolson and Webb didn’t apply to non-binding reports, they reaffirmed and perhaps extended the duty of fairness required of persons or bodies exercising power even though the exercise of that power might be classed as administrative rather than judicial or quasi-judicial. Is a person’s entitlement to procedural fairness exhausted at the recommendatory level or can they make a further claim for procedural fairness from the executive official to whom the recommendation or report is made? Conway v Ontario (Attorney General) (1991) held there can be continuing obligations of procedural fairness on the lieutenant governor – not necessarily an in person hearing but access to relevant material and also make written submissions. Not all recommendatory or investigative functions will attract an obligation of procedural fairness L’Heureaux-Gube J in Knight v Indian Head confirmed this saying “decisions of a preliminary nature will not in general trigger the duty to act fairly”. Abel gives a useful test for discerning the exceptional cases in which the duty will be triggered. Dairy Producers’ Co-operative Ltd. v Saskatchewan (Human Rights Commission) [1994] Sexual harassment complaint. Commission appointed and officer to investigate and provide a report. Company informed of complaint but not provided details of the complaint. Investigator found there was probable cause to believe there was an infringement of the Act. Settlement attempts failed and a board of enquiry established. Company applied to court to quash the establishment of the board of enquiry and the report that there was probable cause – application based on breach of procedural fairness rules. Court held the investigating officer had no duty to act fairly – she had no power to affect rights of the company. Next step was settlement negotiations – these did not determine the rights of the company. Only after the settlement negotiations were unsuccessful did the Commission have the right to set up the board of inquiry. At this stage there was a duty to provide company with substance of the evidence against it. The fact that the company proceeded with settlement negotiations rather than bringing a complaint about the conduct of the Commission and investigator amounted to a waiver of its right to object (if it even had one). No breach of procedural fairness by Commission or investigator. Masters v Ontario (1994) Unfairness allegations against incvetigators appointed by premier of Ontario to report on allegations of sexual harassment made against the agent general of the government of Ontario in New Yorl. Court held that investigators owed Masters a duty of procedural fairness in the conduct of the inquiry though not one that amounted to a full trial type hearing. Duty fulfilled event though Masters wasn’t given access to questions asked of interviewees or names of those conducting interviews or

8

notes/transcripts of interviews. Enough to be given a summary of the allegations and opportunity to interview witnesses himself. Irvine v Canada (Restrictive Trade Practices Commission) [1987] Investigation did involve some participatory rights for those affected. Dairy Producers makes it clear that where stature only establishes an investigative capacity , there much more of a possiblity that the courts will see this as being the equiv of police investigative powers not giving any rise to hearing entitlements on the part of those under suspicion. EMERGENCIES Re Walpole Island First Nation PF won’t apply where it’s an emergency and decision-maker must act quickly and procedural standards will have to be set aside. R v Randolph [1966] Court held that an interim order withdrawing mail services to an individual could be made without hearing when the statutory basis for decision was belief that mail was used for criminal purpose. Impt that it was interim only – open to reassessment on a subsequent hearing. Court influenced by the explicit provision for an after the event hearing. Cardinal v Director of Kent Institution [1985] - Because of apparently urgent or emergency nature of the decision to impose a segregation (of prisoner) in the particular circs of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision. LEGITIMATE EXPECTATION Basically you can also get procedural fairness if there’s a legitimate expectation of being treated fairly (i.e. public official to keep their word). If you have a delegate make such a promise, can you make them fulfill it? Old St. Boniface Residents Assn. Inc. v Winnepeg (City) [1990] Court refers to Hong Kong v. Ng Yuen Shiu When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. Court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. Reference re Canada Assistance Plan [1991] Federal Assistance Plan – Federal Govt to enter into agmts with Provincial Govts to share costs of provincial welfare. Section 8 of Plan provided that the agmts would continue as long as the relevant provincial law was in operation by consent or unilaterally by a party on one years notice. Fed Govt introduced a bill to limit the increase to contribute to BC/Alberta/Ontario below the figure provided in the Plan and the agmts entered into. No prior notice given. \ Could Fed Govt be precluded from bringing bill by virtue of legitimate expectation that agmts would only be amended by consent. Sopinka held that there is no support in Canadian or English cases for the position that doctrine of legitimate expectations can create substantive rights. Also, rules governing procedural fairness do not apply to a body exercising purely legislative functions.

9

BC argued that nothing stops legislature from legislating but the Fed govt is constrained by legitimate expectation from introducing bill to parliament. Court said this ignores the role of executive in legislative process - - cabinet is the buckle that joins legislative part of state with executive part. Legitimate expectation cannot constrain executive. Sopinka rejects doctrine of legitimate expectation being anything other than a source of procedural claims – It never generates a claim to a substantive outcome – only hearing entitlements. Sunshine Coast Parents for French vs Sunshine Coast (School District no. 46) (1990) Elimination of French immersion programme. Court finds that the board is exercising a broad policy decision and thus it is legislative and legitimate expectation does not apply to legislative decisions. While the case would normally end there, the Court finds that because the board themselves imposed a constrained regulation on itself (mandatory consultations) they should be bound by that. In effect the board has constrained its own legislative power. So, legitimate expectation should attach. At the end of the day, the parents end up losing because they weren’t aware of the consultation guidelines and therefore there was no detrimental reliance and there could not have been legitimate expectation. Furey v Roman Catholic School Board for Conception Bay Centre (1991) A school was closed without any notice and parents go to court saying that guidelines were not followed, that they were not given public notice. Court said that, since the board in the past had used the guidelines for school closing decisions, they should apply. On appeal, decision was reversed since court found there was no reliance (affidavits reviewed by court did not show evidence that the parents believe that past practice would be followed in this instance). Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply: “legitimate expectation creates procedural, not substantive rights”. Attaran v University of British Columbia (1998) Failure by uni to follow its consultation policy as a prelude to increase student fees. legitimate expectation doctrine did not apply because the procedure was new and only used once previously, it was an instruction to staff not a representation to affected constituencies. Very few of the student body knew about it at the time. Mount Sinai Hospital v. Québec [2001] Minister promises to regularize license if the hospital relocates. The hospital relocates, but the new Minister refuses primarily on the basis that to issue the license would be to commit the govt to additional financial support, something that was not in govt’s priorities. Hospital seeking mandamus to compel the minister to issue the revised licence. SupCt refused to make the order bc doctrine of legitimate expectation couldn’t be used to achieve substantive outcomes. CA accepted this but ruled that hospital entitled to revised license on basis of public law estoppel. SCC (Bastarache) refused to deal with issue of public law estoppel and legitimate expectation, but case turned on fact that earlier ministers had made decision on basis of condition to relocate. This was decision that current minister did not have basis for overturning (no evidence supporting claim that grant of licence would involve any commitment of additional funds). SCC (Binnie and McLachlin, concurring) reached same solution, but on basis that minister’s decision was patently unreasonable and failed to act in procedurally fair manner. Binnie J on doctrine of legitimate expectation: • Hospital’s argument that LE can be used for both procedural and substantive protection is based mainly on English cases. The Canadian case law is against this position. 10

• Distinction that English law’s approach to doctrine of legitimate expectation does give substantive remedies, but that’s bc their doctrine of legitimate expectation performs functions that in Canada are kept distinct. There, policy is not ordinarily open to judicial review, but courts will ask whether the application of the policy to an individual who has been led to expect something different is a just exercise of power (ie if the frustration of the expectation is so unfair as to be a misuse of the authority’s power). • In Canada this level of judicial intervention in govt policy is inappropriate unless it’s a Charter claim. • Canadian cases differentiate for analytical purposes the related concepts of procedural fairness and the doctrine of legitimate expectations. 1) The availability and content of procedural fairness is driven by nature of the applicant’s interest and the nature of the power exercised by the public authority in relation to that interest. 2) Doctrine of legitimate expectations looks at the conduct of the public authority in the exercise of that power including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified. Expectations must not conflict with the authority’s statutory remit. • The focus is on promoting “regularity, predictability and certainty in govt’s dealing w/ the public.” • If the Court is to give substantive relief, more demanding conditions precedent must be fulfilled than are presently required by the doctrine of legitimate expectations. Two such limitations are : 1) Purely ministerial decisions on basis of public policy give no procedural protection, unless there is an abuse of discretion 2) Public bodies exercising legislative functions may not be amenable to judicial supervision. • Minister’s decision here set aside through ordinary rules of procedural fairness, and so there’s no need to resort to doctrine of legitimate expectations (which would only afford procedural, not substantive, relief anyway). Notes Binnie J concedes that there would be cases where it is difficult to distinguish procedural and substantive rights. We want to allow minister and their delegates to be able to establish policy of general nature and so policy decisions that when implemented will have certain outcomes will not be subject to JR. Whereas particular applications of the policy may be subject to review or in certain circumstance be categorized as procedural. Requirements for Legitimate Expectation: 1. A promise or representation from a delegate (an expectation of a hearing arising out of express representations or a practice of holding such hearings or a combination of the two) 2. To proceed in a certain fashion 3. (possibly) Resulting in detriment when promise is broken to a person who relied on the promise Does not apply to: 1. Legislative decision 2. Promises that conflict with statutory duties 4. Procedural Obligation Triggers (Legislative Decisions and Emergencies) Common law procedural fairness rules may also fail to be triggered where there are emergencies, and also where a decision is said to be of a “legislative” nature. Be wary of the latter; it is a very amibguous concept. In its clearest form, it means no procedural fairness where an administrative decision-maker is introducing, e.g., a regulation (that is, a form of delegated legislaton). But a “legislative decision” means more than this – boiled down to its essence, it can be a decision that is sufficiently general, and not particular to or focused on a reasonably narrow subset of persons. Exactly what this means you need to contemplate in looking at the readings. And you need to

11

appreciate that the general rule – no procedural fairness where decision is legislative in nature – is itself subject to exceptions. Asks the Who and the What… Who? Is decision maker is the Minister or a legislative body? What? Is the question posed legislative in nature or is it policy? • • • • •

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

Martineau v. Matsqui Inmate Disciplinary Board (1980) The Rule of Thumb comes from Dickson J in Martineau (followed by L’H-D in Knight): A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. CABINET DECISIONS: Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] • In 1976, Bell applied to increase their rates. Candaian Radio-Television and Telecommunications Commission (CRTC) has authority to approve rate increases and does so • Governor in Council has discretion to vary or rescind such orders by CRTC. • Inuit Tapirisat (IT) intervened to CRTC to oppose part of Bell’s application. When case went to Cabinet, IT not given opportunity to make submission on their own behalf. Minister dimissed appeal. Claims: • IT argue hearing should have been given, and had it been given it did not comply with principles of natural justice. • Crown argues that IT had already had opportunity to make submission to Bell and CRTC. Also, decision of Cabinet was of legislative nature, and statutory provisions did not provide procedural safeguards and so no protections were owed as a matter of law. Issue: • Does the Governor in Council have a duty to observe natural justice, or even a duty of fairness, when reviewing regulatory decisions? Holding: • NO (Canada/CRTC/Bell wins) Estey J for the SCC: • Court is to look at the statutory provisions for procedural requirements for Cabinet to provide notice to groups such as IT. • Statute delegates to CRTC the function of approving rate hikes with directives on standards to be applied. Secondary delegation of this function is to the Governor in Council, but without any

12

standards or guidelines. • Cabinet’s decision to give a hearing to IT is not an obligation, but a discretion that can be taken. This b/c Cabinet is at the high end of policy making spectrum. Also b/c this kind of decision is a political-policy one since it will potentially affect all inhabitants of Canada and must factor competing interests • To provide hearing to reps of Inuit T would mean potentially to provide hearing to anyone and everyone with complaint for the rate increase. • The duty to observe procedural fairness need not be express, but this doesn’t mean it will be implied in every case. • Statute gives Governor in Council complete discretion provided he observes its jurisdictional boundaries, this means there is no need to hold any kind of hearing or even acknowledge the receipt of a petition. Considerations would be different if the executive had been assigned a function performable in past by Parl. itself and the subject-matter is not an individual concern or a right unique to the petitioner. Where the executive has been delegated a legislative function, and it’s not aimed at particular cases, there is no ground on which the common law should supply procedural fairness. NB: - Rulemaking and discretionary powers are not subject to procedural fairness - Discretion exercised by Cabinet not subject to procedural fairness (NAPO) - Certain sort of broad, policy-based discretion are excluded from procedural fairness (NAPO) MUNICIPAL BY-LAW Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.) • Dispute between municipality and Homex about obligation to install services in subdivision owned by H and who would pay for the services. • The municipal authority passed a by-law that made it impossible for Homex to sell any of its parcels of land without the consent of the Municipal Council (Homex not allowed it to convey (ie alienate) property. The by-law was passed subject to Planning Act. • Important to note that this wasnt by-law that affected the entire municipality but exclusively the sub-division where Homex was devg lots for sale. Claims: • Homex sought judicial review the By-law. What they complained of, amongst other things, was that the effect of the By-law was tantamount to an expropriation (or quasi-expropriation) and the loss of an important entitlement of it. Homex compained that they were neither given notice nor opportunity to appear before council to dispute the by-law. • Municipality argued that had they given Homex notice, H would’ve built in checkerboarding manner. This would have precluded the municipality from in effect passing a by-law which would have affected Homex and the area it planned to develop. Issue: • Was Homex entitled to hearing given By-laws expropriating effect? Holding: • NO. (Municipality wins and By-law is upheld) EsteyJ for the majority (Laskin CJ, Martland, Beetz and Chouinard JJ): • Homex not entitled to relief bc of the inconsistent and evasive conduct of its principals. • However, under normal circumstance, the Council should provide prior notice. I.E. PASSAGE OF MUNICIPAL LAW IS SUBJECT TO A DUTY OF FAIRNESS

13

• While the passage of the by-law stripped Homex of its right of conveyance, it is also clear that the balance of the township may also be affected by the action of Homex if they are successful in avoiding the consequences of the by-law. So there are competing private and public interests at play. • Concludes that action taken by the council was not in substance legislative but rather quasi-judicial in character so as to attract the principle of notice and the consequential doctrine of audi alteram partem. • Agrees w/ Dickon that hearing requirement was not satisfied but argument about conduct was accepted Dissent of Dickson J (and Ritchie J): • Cml recognizes that before a public body can limit or abrogate the property right of citizens, it must give the individuals concerned the right to be heard. This is long-standing principle of PF. • Where statutory body seeks to limit property rights, Courts will imply the right to be heard unless there is an express declaration to the contrary. No such declaration here, Homex should have been heard. • The Municipality argues that it was exercising a ‘legislative function.’ Dickson J disagrees. The right to a hearing does not spring from there being competing groups, but from the fact that the bylaw interferes with the property rights of one owner. The presence of a compelling public interest doesn’t diminish the citizen’s right to procedural protection. If anything, public interest is best served by giving private interests full disclosure and fair opportunity to be heard. The act cannot be labeled ‘legislative’ for the purpose of dispensing with fairness and procedure. • It is unnecessary to classify a process as judicial or quasi-judicial to establish a right to procedural fairness (based on Martineau and Re Nicholson). Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard that must be met by the statutory body. This analysis requires flexibility (ie nature of the funcation and facts of each case). Homex entitled to some procedural safeguards – at a miniumum to be given notice of the proposed by-law and the opportunity to be heard. Comments: • Take from this case that By-law is legislative in nature (subset of law). Nevertheless, in this case, the court found that procedural fairness was owed. • The crucial point in the Homex decision is that the municipality had made a policy decision that had an immediate and specific target. This suggests that where a by-law or subordinate legislation of a more general character is being enacted, claims to procedural entitlements even by those affected immediately may be either diminished or eliminated. • Unlike Inuit, here we have something that looks like acts of retainder (where law is done to affect someone in particular). POLICY MAKING/PUBLIC INTEREST GROUPS Where does the exclusion of decisions of a “general” as well as a “legislative” nature have its bite? Serves to deny claims to procedural protections in relation to certain species of broad based policy decision. When the impact of the decision is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights are hard to justify, Sea Shepherd Conservation Authority v The Queen (1984) Court rejected a public interest group claim to a hearing for a decision to undertake a wolf kill program. Sierra Club of Western Canada v The Queen (1984)

14

Court rejected a public interest group claim to a hearing for the grant of permits to cut timber. - Interesting – public interest groups don’t have a right but the wolf hunters and timber merchants/lumberjacks do. Vanderkloet v Leeds & Grenville (1985) School board reorganized three elementary schools (older kids to 2 schools and younger to the other). Minster of Education had issued guidelines re closing of schools that required public consultation. Board had prepared policies and a policy statement that required board to make alternative options known to community before making decision. Group of ratepayers challenged decision to reorganise. Court of appeal said that reallocation was not a school closing. Re procedural fairness claim Court held that the board acting in good faith within its statutory authority has complete power over reallocation of students within district and is not affecting legal rights of any person. Court not satisfied that principles of procedural fairness apply to board of education, an elected public body, who in good faithand within jurisdiction assigned to it by legislature resolves to reallocate student body within its district. Bezair v. Windor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 (Div. Ct.) • School board closed 9 schools in face of financial crisis. • Contrary to ministerial guidelines and boards’ own policy on closings, parents and students given no opp to input into decision before it was made (some consultation after). • Court did hold that the ministerial guidelines were not technically subordinate legislation and thus not strictly binding on the board but then Court said there was a level of fairness that applied. • Since neither Minister’s nor board’s own procedural guideline followed there was a denial of procedural fairness • Public consultation is condition precedent to a valid decision. • Elliott v Burin Peninnsula School District (1988) Court of Appeal decided closing of school was an administrative function that attracted rules of procedural fairness. No ministerial policy or internal school district policy setting out procedures! REGULATED INDUSTRIES AND PRODUCERS Canadian Association of Regulated Importers v. Canada (AG) [1994] • ministerial decision changing quota distrivution system for importation of hatching eggs and chicks. Impacted significantly on the historic importers. • Lower court said Minister in deciding how to allocate import quota was exercising a staturoty power which had been delegated to him. Although decision was general, it was general only for a small segment of population and, in application, very particular. Cause a lot of economic harm to the applicants. Implied principle that legislature intended powers to be exercised in acc with admin law rules of fairness. Present jurisprudence says that it isn’t necessary to find a “right” that exists but sufficient if applicant demonstrates an “interest” which justifies him bringing a judicial review. Not convinces that classifying a decision as being of a “policy” nature necessarily immunizes it from judicial review. For same reason, classifying decision as “legislative” is not useful either. Saud historic importers not guiven sufficient procedural protections and ordered that they continue to get their old entitlements until matter was re-evaluated in light of their submissions. • HOLDING (CA)

15

• •

•

CA reversed decision and said it was policy making and was akin to legislation—no right to make submissions Held principles of procedural fairness are not applicable to quota policy although they may be to individual decisions respecting grants of quotas. “traditionally a decision has been classified as being of a legislative nature if it sets out general rules which apply to a large number of persons. This is counterpoised to a decision respecting one specific individual”. o Suggests that the broader the affected group, the more likely to be a legitimate policy decision. (from dissent in Homex) Statute did not indicate that procedural fairness was intended o No indication in statute that public consultation is required. o What applicant is seeking is a public consultation process – not contemplated by statute

5. Procedural Obligation Triggers (Charter & Bill of Rights) Now we turn to the triggers for another source of procedural obligations: Charter s.7 and Bill of Rights. A first observation on the Charter. This is administrative law, not constitutional or criminal law. It will almost always be wrong in an administrative law exam to discuss Charter rights other than section 7 – you are not being examined on s.11 rights or s.2 or s.15. (Section 11(d) for instance almost never applies to administrative bodies, unless the criteria for its application are met by, for example, the existence of contempt powers). But with section 7, the situation is different because this provision does impose the requirement to observe “fundamental justice” – a concept with procedural content – on at least some administrative decision-makers. Which ones? Well, those making decisions that go to life, liberty or security of the person. Do not make the mistake of assuming that all (or even much) administrative decision-making relates to these interests. But some of it does and you need to understand how and where this trigger works. The Canadian Bill of Rights is similar in many respects, but not all by any measure. Note carefully to whom it applies. Think about whether you ever want to say that a decision-maker exercising power under a provincial statute is subject to the Bill. Also look at the triggers for sections 1(a) and 2(e) and note the extent to which they are the same and differ from Charter s.7. Above all, recognize that these two provisions have their own triggers that have to be satisfied before they apply at all.

Canadian bill of rights applies to the “laws of Canada” – includes Acts of Parliament and any order, rule or regulation thereunder and any law n force in Canada – Section 5(2). Probably includes decisions and actions taken by those deriving their powers from federal law. Probably doesn’t extend to activities of bodies whose functioning is made possible under facilitative legislation such as the Canada Business Corporations Act. The Canadian Charter of Rights and Freedoms applies throughout Canada. But not coterminus with judicial review. Sec 32(1) means its application is restricted to Parliament and Government of Canada and the legislatures and government of provinces. Supreme Court holds this to be controlling provision and effect is to restrict Charter’s application in admin law arena to bodies or activities that can be brought within the concept of “government” McKinney v University of Guelph [1990] Notwithstanding statutory status, universities were not government and not generally amenable to the Charter, even with respect to actions and decisions that would expose them to judicial review.

16

Same holds true for BC Hospital Boards (Stoffman v Vancouver General Hospital) but not BC community colleges (FDouglass/Kwantlen Facility v Douglas College) so the dividing line between what is “government” is not clear. Section 7 of Charter: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 1(a) of Bill of Rights: It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, • (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; Section 2(e) of Bill of Rights: 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to •

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

Supreme Court has held that “life, liberty and security of the person” under Charter only applies to natural persons and not corporations Irwin Toy v Quebec. Not clear if that applies to Bill of Rights persons/individuals. S7 of Charter deliberately does not include protection for “property rights” but they are within Bill of Rights. Authorson v. Canada [2003] Question of procedural protections in ss 1(a) and 2(e) of Bill of Rights would only apply to legislative proceeding or whether they were subject to a threshold similar to that established for common law procedural fairness in Inuit Tapirisat Facts: • Authorson represents class of disabled vets who received pensions and other benefits from the Crown. • Dept of Veterans Affairs administered the funds but did not invest them or put them in interest accounts • Parliament passed the DVA Act s.5.1(4) which explicitly limited the Crown’s liability for past interests and stripped veterans of entitlement to claim damages for Crown’s failure to divest interests. Claims: • Crown breached fiduciary duty to vets by not placing the monies in interest-bearing accounts.

17

• s.5.1(4) bar was inoperative under the Canadian Bill of Rights Major J for the SCC: * What “due process” is guaranteed by s1(a) of Bill of Rights when property rights are extinguished? Veterans argued there were 3: • Procedural rights before parliamentry enactment of law • Procedural rights before application of a statute to his individual circs • Substantive protections against govt expropriation of his property Procedural rights before parliamentry enactment of law Only procedure due any citizen of Canada is that the proposed legislation receive 3 readings in Senate and House of Commons and that it receive Royal assent. Court cannot compel parliament to change its legislative procedures based on the Bill of Rights. Procedural rights before application of a statute to his individual circs Bill of rights guarantes notice and some opportunity to contest a govt deprivation of property rights only in the context of an adjudication of that persons rights and obligations before a court or tribunal. Where the law requires application of a discretion or judgement to specific factual situations, notice and an opportunity to contest may be required. However, notice and an opportunity to contest are not required where the govt legislates to completely eliminate such benefits. This situation is a nondiscretionary application of law to incontestable facts. Substantive protections against govt expropriation of his property Bill of Rights does not protect against expropriation of property by passage of unambiguous legislation. * s2(e) of the Bill of Rights S2(e) only applies to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations. This is more obvious when you examine the other guarantees of s 2. (e.g. protections against arbitrary detention, right against self incrimination, presumption of innocence, right to an impartial tribunal) – all of which are legal rights applicable in the context of, or prior to, a hearing before a court or tribunal. S2(e) does not impose a duty on parliament to provide a hearing before enactment of legislation. Singh v. Minister of Citizenship and Immigration, [1985] Impact of s7 of Charter on administrative processes Facts: • S was one of several convention refugee claimants. Following the procedure then in place, the minister had determined that they were not convention refugees. • They appealed the decision, but the Immigration Appeal Board didnt refer their cases to an oral hearing • Appealed again to FCA alleging the statutory scheme infringed on s.7 of the Charter. They failed. • At SCC made oral arguments on Charter case, and then asked to make written submissions on whether the statutory scheme was consistent with s.2(e) of the Bill of Rights.

18

Issue: • Was the statutory scheme consistent with s.7 of the Charter? NO. S entitled to s.7 fundamental justice. • Was the statutory scheme consistent with s.2(e) of the Canadian Bill of Rights? Wilson J (Charter): The Scheme of the Immigration Act, 1976 • The Act does provide Convention refugees with certain limited rights to enter and remain in Canada. • The problem passes on to the procedures for determining if someone is a Convention refugee. • s.45(4) of the Act does not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. The Committee that reviews and is the decision-maker is therefore isolated from the persons whose status it is adjudicating and it makes use of information and applies policies to which the claimant has no access. • Substance of appellants’ argument is that they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. But these are the procedures and they were followed correctly. • For appellants to succeed it must be on the basis that the Charter requires the Court to override Parl’s decision to exclude the kind of procedural fairness that they seek. Application of the Charter • s.7 applies to “everyone” – that is, every human being who is physically present in Canada. • Appellants have 3 rights under the Immigration Act, 1976 1) Right to a determination from the Minister on whether he can enter and remain in Canada 2) Right not to be returned to a country where his life or freedom would be threatened 3) Right to appeal a removal order or a deportation order made against him • Question then becomes whether the deprivation of one of these rights constitutes a violation of the s.7 right to “life, liberty and security of the person”. • Note that even if s.7 is a ‘single right’, a violation of any of the 3 components (life, liberty, security of the person) is a violation of s.7. • Wilson concludes that a denial of the rights possessed by a Convention refugee under the Act to not be removed from Canada to a country where his life or freedom would be threatened constitutes a deprivation of his security of the person. • But the appellants cannot access the rights of Convention refugees. Their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not. • Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a well-founded fear of prosecution, they are entitled to fundamental justice in the adjudication of their status. • Do the procedures for the determination of refugee status under the Act accord with fundamental justice? i..e do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet. • While procedural fairness may demand different things in different contexts, i.e. Judge is prepared to accept that written submissions may be adequate substitute for an oral hearing in appropriate circumstances.. However, where a serious issue of credibility in involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. • The procedural scheme does not provide adequate opportunity for refugee claimant to state his case and know the case he has to meet (“Applicant is entitled to submit whatever relevant material he wishes to the Board but still faces hurdle of having to establish to the Board that on the balance of probabilities the Minister is 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.”) This aspect of the procedures set out in the Act is impossible to reconcile with the requirements of “fundamental justice” as set out in s.7. • The breach is such that it cannot be saved under s.1 (“The Canadian Charter of Rights and

19

Freedoms 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.”). “The issue in the present case is not simply whether the procedures set out in the Immigration Act for the adjudication of refugee claims are reasonable, it is whether it is reasonable to deprive the appellants of the right to life liberty or security of the person by adopting a system for the adjuidication of refugee status that does not accord with the principles of fundamental justice.” Utilitarian considerations cannot constitute a justification for a limitation on the rights set out in the Charter. I.e. balance of administrative convenience doesn’t override the need to adhere to principles of fundamental justice. Beetz (concurring) (Bill of Rights): • Agrees with Wilson majority that appeals should be allowed. But on the basis of the Bill of Rights. • Appellants’ refugee claim involves the determination of rights and obligations for which they have, under s.2(e), the right to a fair hearing in accordance with the principles of fundamental justice • They were not afforded such a fair hearing. They were denied their claims without their having been afforded a full oral hearing at a single stage of the proceedings. This does not mean that the principles of fundamental justice will always require an oral hearing. But determining this requires looking at the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. • The most important factors in determining the procedural content of fundamental justice in a fiven case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. Reasoning in Singh has been extended to arena of extradition proceedings, including extradition of fugitive criminals who enter Canada illegally (Kindler v Canada 1991). Two qualifications to Singh have emerged: 1. s7 doesn’t always require an oral hearing 2. in addition to balancing of interests that must occur in making determinations as to the precise procedures that the “principles of fundamental justice” mandate, there is also room for s.1 to be invoked in justification of s.7 violations. Court held in Kindler that Minister hadn’t breached principles of fundamental justice in the procedures adopted in deciding whether to grant the extradition request from foreign govts. Arena for judicial type procedures is at the actual extradition hearing and no need to replicate at the surrender stage. Chiarelli v Canada [1992] Authorities moved to deport Chiarelli, a permanent resident, on grounds he had committed serious criminal offense rendering him inadmissible under Immigration Act. Security Intelligence Review Committee recd a report from Solicitor General and Minister for Immigration saying he would be involved in organized crime if he stayed. SIRC was required under the Act to investigate report and if SIRC upheld it, the governer in council had power to direct Minister for Immigration to issue a certificate precluding Chiarelli from appealing deportation order. Chiarelli challenged constitutionality of his deportation order. Said the rules of procedure adopted by SIRC allowed them to exclude him when govt witnesses giving evidence and limit his ability to cross examine. Sopinka held that if there was a deprivation of his liberty or security of the person, it was in acc with principles of fundamental justice. In assessing whether a procedure complied with principles of fundamental justice, necessary to balance competing interests of state and individual.

20

Chiarelli had been given docs summarizing information that SIRC received from ministers and thage gave him sufficient info to know the substance of the allegations against him and to allow him to be able to respond. Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 In 2003, Adil Charkaoui, a permanent resident in Canada, was arrested and imprisoned under a security certificate issued by the Solicitor General of Canada (then Wayne Easter) and the Minister of Immigration (then Denis Coderre) Hassan Almrei and Mohamed Harkat are foreign national who were granted refugee status in Canada. Both arrested on a security certificate. All three detained pending completion of proceedings for their removal. Immigration and Refugee Protection Act (IRPA) said first step on proceedings was for a federal judge to review the certificates to determine if reasonable. Review was conducted in camera (private) and ex parte (emergency hearing) as request of minister. Individuals had no right to see the materials on the basis of which the certificate was issued. Non-sensitive material could be disclosed but sensitive material could not if minister objected. Reviewing judge’s decision that a security cert was reasonable was final and could not be appealed. Constitutionality of certificate was challenged including on basis that the procedure to determine the reasonableness of certificates violated s7 rights. McLaughlin CJ: S7 requires not a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake. Procedures required to meet the demands of fundamental justice depend on the context. Societal interests may be taken into account. S7 not concerned with wither the limit on life, liberty or security of the person is justified but whether that limit has been imposed in a way that respects the principles of fundamental justice. So threat to national security vs the serious individual interests at stake. Principle of fundamental justice that applies here is that before the state can detain people for significant periods of time, it must afford them fair judicial process. A number of facets: 1. right to a hearing, 2. before an independent and impartial magistrate 3. decision by the magistrate on the facts and the law 4. right to know the case put against you 5. right to answer that case. IRPA meets the requirement of independence and impartiality but did not provide for the judge to make a judicial decision based on facts and law and did not afford individuals an opp to meet case put against them and question or counter it. Case to meet: Certificate scheme places great emphasis on confidentiality. So Judge may have to consider info that is not included in the summary of information provided to the individual. So the individual may know nothing of the case to meet, although technically afforded an opp to be heard, may be left in the position of having no idea of what needs to be said.

21

Right to know case to meet is not absolute. Statute sometimes provides for in camera (private) and ex parte (emergency) hearings. Also Court has recognised that national security considerations can limit the extent of disclosure of info to the affected individual see Charelli and Ruby. In some contexts, substitutes for full disclosure may permit compliance with s7, Rodgers Court upheld ex parte hearings for applications to take SNA samples from listed multiple offenders on grounds that the protections put in place by Parliament were sufficient. Chiarelli Court upheld lack of disclosure on the vais that the info disclosed by way of summary and the opp to call witnesses and cross examine police witnesses who testified in camera satisfied requirements of fundamental justice. Ruby court held that substute measures provided by Parliament satisfied the procedural requirements of fundamental justice. But the limited disclosure or ex parte hearings found to have satisfied requirements of fundamental justice have less intrusion on liberty and security of the person than IRPA. One thing to deny full information to take a fingerprint, another to do so when consequences are removal from country or indefinite detention. In this case, not given full info and there is no substantial substitute. Under IRPA only protection is review by a judge to determine if cert is reasonable. But contraints imposed on IRPA cannot fill vacuum left by removal of traditional guarantees of a fair hearing. Can only see what the ministers put before him – can’t id errors or omissions or assess credibility and truthfulness the way the individual could. Judge is prevented from asking questions of the individual if that might disclose the protected info. IRPA’s procedure fore determining if a certificate is reasonable does not conform to requirements of fundamental justice.

Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 Theme Facts

Reasoning

SC procedures, detention of PRs and FNs under the IRPA The IRPA allows for SCs to be issued declaring that a FN or PR is inadmissible to Canada on grounds of security, leading to that person’s detention. The certificate and detention can be reviewed in a process which may involve non-disclosure of some or all the “sensitive or confidential” information that forms the basis of the certificate (i.e. in camera and ex parte) and the judge may rely on it. Once a certificate is issued, a permanent resident may be detained, and the detention must be reviewed within 48 hours; in the case of a foreign national, the detention is automatic and that person cannot apply for review until 120 days after a judge determines the certificate to be reasonable (ss. 82 84). The judge’s determination on the reasonableness of the certificate cannot be appealed or judicially reviewed (s. 80(3)). If the judge finds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and which may be immediately enforced. Charkaoui is a permanent resident and Harkat and Almrei are refugees; at the time of the decisions on appeal, all had been detained for some time — since 2003, 2002 and 2001 respectively. H and A’s SC have been determined to be reasonable, not yet C’s. C and H were released conditionally in 2005 and 2006 respectively. A is still in detention and will be deported. In all cases, the detentions were based on allegations that the individuals constituted a threat to the security of Canada due to involvement in terrorist activities. • Summary: The IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. Also, some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 (“Everyone has the right not to be arbitrarily detained or imprisoned.”) and 10(c) because they are arbitrary (“Everyone has the right on arrest or detention... (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”). Section 12 (“Everyone has the right

22

not to be subjected to any cruel and unusual treatment or punishment.”) has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. There is no breach of the s. 15 equality right. Issue A. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter, and if so, is the infringement justified under s. 1 of the Charter? Yes. It is not justified. • Section 7 is clearly engaged because the person named in SC faces detention and possible deportation to a place where he might be tortured (not yet proven). Procedure for determining reasonableness of a certificate is not in accordance with PFJ as it does not assure a fair hearing, which is required to deprive someone of s.7 rights. • Security concerns cannot be used to excuse procedures that do not conform with the PFJ. That is the bottom line. The context in this case is the detention of PRs of FNs, incidental to their removal, in light of security concerns. However the context may have chilling consequences for the detainee so procedures must accord with PFJ. • The right to a fair judicial process involves 1) a hearing; 2) which takes place before an independent and impartial magistrate; 3) who must decide on the facts and the law, and 4) the right to know the case put against one, and 5) the right to answer that case. The secrecy of the IRPA does not allow for 3, 4, and 5. • The person named is unable to participate in proceedings that characterize the adversarial process and the judge may end up making the decision without all relevant evidence (i.e. the person’s response to government evidence). Furthermore, w/o knowledge of the information put against him, the person named in a certificate may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. • The infringement is not saved as the IRPA does not minimally impair the rights of the person named. Less intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential Issue B. Does the detention of permanent residents or foreign nationals under the IRPA infringe ss. 7, 9, 10(c) or 12 of the Charter, and if so, are the infringements justified under s. 1 of the Charter? Not the detention, but the lack of review for 120 days for foreign nationals infringes ss. 9 and 10(c), and is not justified. • The security grounds based on the danger posed by the person provides rational grounds for detention. • However, the lack of review of the detention of foreign nationals until 120 days after the reasonableness of the SC has been judicially confirmed (s. 84(2)) infringes the guarantee against arbitrary detention in s. 9 of the Charter, which encompasses the right to prompt review of detention under s. 10(c) of the Charter. While there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained, this cannot justify the complete denial of a timely detention review. • This is not justified under s.1. Permanent residents are provided review within 48 hours, so the 120 day delay does not minimally impair ss. 9 and 10(c) rights.

•

•

Re Extended periods of detention: Extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate ss. 7 and 12 (cruel and unusual punishment) of the Charter if accompanied by regular opportunities for review of detention, taking into account all of the relevant factors, including the reasons for detention, the length of the detention, the reasons for the delay in deportation, the anticipated future length of detention, if applicable, and the availability of alternatives to detention This does not preclude a judge finding that a particular detention constitutes cruel and unusual punishment.

Issue C. Do the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to s. 15 of the Charter, and if so, is the discrimination justified under s. 1 of the Charter? No.

23

•

Since s. 6 of the Charter specifically provides for differential treatment of citizens and non citizens in deportation matters, a deportation scheme that applies to non citizens, but not to citizens, does not for that reason alone infringe s. 15 of the Charter. Even though the detention of some of the appellants has been long, the record does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation.

Issue D. Is the rule of law infringed by (1) the unavailability of an appeal of the SC reasonableness decision; or (2) the provision for the issuance of an arrest warrant by the executive in the case of a permanent resident, or for mandatory arrest w/o a warrant following an executive decision in the case of a foreign national? No. • First, there is no constitutional right to an appeal, nor can such a right be said to flow from the rule of law in the present context. • Second, the rule of law does not categorically prohibit automatic detention, or detention on the basis of an executive decision, and the constitutional protections surrounding arrest and detention are set out in the Charter. Remedy • The IRPA’s procedure for the judicial approval of certificates is inconsistent with the Charter, and hence of no force or effect. This declaration is suspended for one year from the date of this judgment. A new process must be devised. • If the reasonableness of C’s SC is reviewed in this year, the old process will be used. After one year, H and A’s “reasonableness” status will be lost and they can apply for the certificates to be quashed. • Section 84(2), which imposes a 120 day embargo on review for foreign nationals, is struck, and s. 83 is modified so as to allow for review of the detention of a foreign national both before and after the certificate has been deemed reasonable. Comments

Is the limit justified by S1 of the Charter? Oakes test: (R v Oakes [1986]) requires a pressing and substantial objective and proportional means. A finding of proportionality requires: (a) means rationally connected to the objective (b) minimal impairment of rights (c) proportionality between the effects of the infringement and importance of objective. National security = pressing and substantial objective Non-disclosure of evidence at certificate hearings = rationally connected to the objective Noted there are alternatives to allow nation to protect sensitive info e.g. allow security cleared advocates to appear for individuals Therefore, IRPA procedures do not minimally impair rights – therefore unconstitutional. ECONOMIC WELLBEING/ MENTAL AND PHYSICAL WELLBEING S7 specifically excludes property rights but are there species of economic interest that transcend concepts of property and achieve protected status. To what extent is economic well being an aspect of “life” and “security of the person”. Extent to which s7 can be involed on relation to administrative regimes that have an impact on the mental and physical wellbeing of those involved as well as their reputations Wilson v. British Columbia (Medical Services Commission) (1988) Facts:

24

Drs bill govt for treatment given to patients. Commission developed scheme for limiting numbers of practising drs and restricting geographic area of their practice so they could control the total cost of health services and the ensure even spread of drs in BC. Re Mia scheme challenged and judge found that commission was not authorised by legislation re medical services. Some rights including right to work and practise a profession are so fundamental they must be protected event if they include an economic element. Govt enacted legislation under which regulations were passed implementing the previous scheme and there was another challenge. Issue: Whether “liberty” in s7 is broad enough to encompass the opp to be a qualified and licensed doctor to pratice medicine in BC without constraint as to place, time or purpose even though there is an incidental right being asserted. Court: Regulation of our activities is commonplace. Givt may impose an administrative structure which limits or even deprives one of liberty to further its perception of the needs of society “unless the use of such structure is in itself so manifestly unfair having regard to the decisions it is called upon to make, as to violate the principles of fundamental justice” Jones v The Queen [1986]. Liberty w/i meaning of S7 is not just freedom from bodily restraint, it may embrace individual freedom of movement, including right to chose one’s occupation and where to pursue it subject to right of state to impose, in acc with principles of fundamental justice, legitimate and reasonable restrictions on the activities of the individuals. Pure economic rights Said the trial judge has characterized the issue as a “right to work” – a purely economic question, when he should have directed his attention to a more impt aspect of liberty, the right to pursue a livelihood or profession [a matter concerning one’s dignity and self worth]. Drs argue scheme deprives them of opp to pursue their profession or has restricted their mobility in a way that deprives them of liberty in the broad sense. Denial of right to practice their chosen profession in BC. Plan does not guarantee income to Drs – only ensures a percentage of bills submitted for services performed for insured patients will be paid. Economic component of the freedom the drs want to assert is the right to be paid for services rendered. Problem with the legislation is that the opp to pursue profession and freedom of mobility of practice can be denied by refusing patients the right to have the dr reimbursed under the plan. Economic rights cases We do not quarrel with the conclusion reached in cases involving corporation business interests and pure economic right but we don’t think they detract from conclusion in Mia that denying drs the opp to pursue their professions falls within the rubric of “liberty” as used in s7. Regulatory cases We have no doubt that regulation of matters such as standards of admission, mandatory insurance for protection of public, stds of practice and behaviour will not constitute and infringement of s7. We do not think they detract from conclusion in Mia. Right to work cases

25

In our opinion these cases ought to be regarded as cases involving the regulation of business. Establish principle that “liberty” in s7 is not synonymous with unconstrained freedom and s7 doesn’t extend to an unconstrained right to transact business with whoever one wishes. But they do not stand for the proposition that govt may deprive an indicidual of the opp to pursue freely the practice of their profession. The “Right to work cases” describe the right not to be regulated – doen’t have anything to do with right to build a practice in their province and chosen community. Mobility is a component of liberty. The geographic restrictions imposed by govt on the right to practice medicine in BC constitute a violation of the right to liberty under s7 unless it has been revmoved in acc with the principles of fundamental justice or unless it can be justified under s1 of the Charter. In our opinion, scheme offends principles of fundamental justice. Based on the application of vague and uncertain criteria which combined with areas of uncontrolled discretion, leaves substantial scope for arbitrary conduct. Scheme is so procedurally flawed it cannot stand. Blencoe v. BC (HR Commission), 2000 Facts: B minister in BC government accused of sexual harassment. Accusation made publicly. Ended up before BC HR Commission. Government dismissed him from cabinet. Lots of media coverage. He resigned from his seat. From the time the complainants filed complaint until HR Commission scheduled a hearing, 30 months had passed. B’s reputation was destroyed by this time. There was no reason given for the delay. B applied for stay of proceedings until challenge to the proceedings could be heard. Issue: 1) Does the Charter apply to the Commission? 2) S. 7 interest (liberty and security of the person) infringed by the delay caused by the Commission? Pointed to the psych harm caused to him from media coverage, nature of accusations and stigma Reasoning: Charter Scrutiny: Counsel for the Commission said the Commission is not a “government organization” and does not exercise a governmental function as required by s. 32 of the Charter for it to apply. SCC lays out test for whether particular agency falls under Charter scrutiny: 1) Whether the agency exercises mandate independently of government – this agency is independent of government but that is required for the nature of human rights regulation. 2) Whether the challenge is to a statutory provision or some action by the agency – here, the challenge is to an administrative action. 3) Whether the agency is acting judicially – is what it is doing closer to adjudication than administration of policy program? Here, the Commission is acting judicially. To escape Charter scrutiny, must satisfy all three of these. But here, the court says the Commission is subject to Charter scrutiny even though it seems to pass these indicia. The basis of the Commission’s authority is statute. Its is inconsistent to think that a legislature which is bound to enact statutes consistent with the Charter, can delegate a power to an institution created by statute that could exercise powers that would not be subject to Charter scrutiny. Parliament cannot delegate more powers than it has. Since it must exercise its legislative making authority pursuant to Charter, anything born of this power must also be subject to public scrutiny. Also, this is a public program concerned with supporting human rights. Ratio (Charter scrutiny): Any admin agency with constitutive statute will be subject to Charter review. S. 7 Liberty Interest: This interest responds to “fundamental personal choices” that people can make with which we are very reluctant to see the state interfere (abortion, right to end your life) – control over one’s person – autonomy. This is an expansion of s. 7 application only to freedom from

26

detention (criminal context) which has been affirmed by Supreme court in New Brinswick v G(J) 1999. This issue does not fall under liberty – in this case the state has not prevented B from making any fundamental personal choices S. 7 Security of the Person Interest: Principle that the right to Security of the Person encompasses serious state imposed psychological stress has been reiterated by Supreme Court in New Brinswick v G(J) 1999 1) Psychological harm must be state-imposed 2) Psychological harm must be serious B has suffered great harm but the principle cause has not been the delay (even with the 5 month unexplainable lapse), it is the publicity associated with the claims. The harm was not serious because it is not interference with fundamental personal choices. Dignity: There is no autonomous, free-standing Charter right to dignity or reputation or freedom from stigma . Better understood as an underlying value. Note: Bastarache analyzes liberty and security of the person separately. But, what he looks at in security of the person is the same as what he looks at for liberty. In this kind of case, what’s the difference between security of the person and the interest protected by liberty? Note: Courts will be reluctant to scrutinize under the Charter where the courts feel there are adequate admin law principles. Stigma: In a criminal law context, person charged with an offence has the right to be tried within a reasonable time. Cf criminal case, the filing of a human rights complaint implies no suspicion of wrongdoing by the state. Commission investigation is to determine what took place and to settle matter in a non adversarial manner. In criminal proceedings, accusation alone may engage a security interest because of the grave socjal and personal consequences. But although there is some stress and anxiety in connection with a human rights/sex discrimination investigation, s7 scrutiny of the person does not cover such emotional effects. In this case, no stigmatising state pronouncement, Concluded that respondent is unable to cross first threshold of s7 Charter analysis in the circs of this case should not be construed that a holding that state-caused delays in human rights proceedings can never trigger an individuals s7 rights. In this case though, no deprivation of respondent’s right to liberty or security of the person so no need to go to go to second stage of analysis to see if the deprivation was in acc with principles of

fundamental justice. Administrative law principles: Is B entitled to remedy under principles of admin law? Can delay in this case amount to a denial of natural justice even where ability to have a fair hearing is not compromised? Delay: Common law tradition that unreasonable delay can lead to stay of proceedings if it has prejudicial results on the proceedings (e.g. witnesses die, etc.). Unreasonable delay is part of the content of duty of fairness that can act as a trump card—whatever the merits of the case to which one is subject, if a court determines that there has been a delay caused by the admin agency that is unreasonable and that prejudices the person subject to those proceedings, the proceedings can be stayed.

27

Here, the court says that there is no prejudice caused by the delay (this is delay going to evidentiary factors – hearing fairness). But, the court was asked to consider whether unreasonable delay in and of itself is sufficient ground to stay the proceeding. Could a delay itself constitute an abuse of process (this is about the delay itself)? In principle, delay by itself, if sufficient, could constitute an abuse of process (bring the human rights process into disrepute). There was a 5-month unreasonable period during which there was no communication. Court has to answer whether the public’s interest in avoiding the abuse of process would exceed the harm to the public’s interest if proceedings are stayed. On the basis of this balancing act, the court found that the delay was not so unreasonable as to merit a stay of proceedings. “The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the case and its complexity, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay. Here, although the Commission took longer than is desirable to process the complaints, the delay was not so inordinate as to amount to an abuse of process.” Balancing Test: Abuse of process from delay versus damage to the public’s interest in seeing the proceedings continue. I.e. the government had acted wrongly but not wrongly enough when balanced with the other public interest. Held: No stay but gives some relief – he gets costs for being dragged through this lengthy process. Ratio: In principle, delay by itself, if sufficient, could constitute an abuse of process (bring the human rights process into disrepute). Minority: Case should have been determined on admistrative law principles not Charter issues. If admin law remedy had been applied, the trial judge should have dound there had been an undue delay in the process of the Commission and that this was abusive and ssome form of remedy should have been granted to B. But LeBel agrees that a stay of proceedings not warranted in circs, Notes that Bastarache casts this as a dispute between the state and B. But, there are also the people who allege harassment. Also set out test for unreasonable delay: 1) Time taken compared to the inherent time required to prosecute the matter 2) Causes of the delay – e.g. B challenged many of the motions for disclosure another procedural matters. B was free to do so, he could not blame the commission for delay caused by him exercising his procedural rights. 3) Impact of the delay Abusive delay is wrong. The board was inept and incompetent. Note: Although the court recognizes that there is public interest in seeing the proceedings continue given the gravity of the charges, it awards costs as a message to the Commission. The decision seems strange because we let serious alleged criminals out of jail because of an illegal search by cops but here the court is letting the HR Commission proceedings continue even after wrongful government action. Maybe the Charter analysis focuses more on the individual and the judicial review stuff focuses more on the institutional side. Also, the victims of the alleged wrongdoing have to have their interests considered – this doesn’t happen under the Charter. Here, the victims’ interests are considered because not represented by the Crown. 6. Content of Procedural Obligations (Right to be Heard) We turn now to the question: if procedural obligations are triggered, what does the decision-maker have to do? Or more concretely, what is the content of these procedural obligations?

28

If your procedural obligation comes from a statute – the enabling act or one of the special legislated procedural codes discussed at CB 77-85, the answer to this question is: “whatever the statute says is the content is the content”. (However, there may be occasions in which you will have to determine whether the statute is a “complete code” or leaves room for common law supplementation.) Life is more complex if your trigger is the common law, Charter or Bill of Rights. While there are some differences, generally speaking, the content where these sources apply boils down to two broad classes of procedural rules: a right to be heard and a right to an unbiased decision-maker. Within these two classes, there are many details, and you still need to understand “what does it mean in practice to have a right to be heard and what does it mean in practice to have a right to an unbiased decisionmaker”. The basic issue is this: the precise content of procedural rules coming from the common law, Charter or Bill of Rights varies from case to case according to the circumstances. Certainly with respect to the right to be heard, you must start with the Baker considerations: Baker gives you a (non-exclusive) list of considerations that tell you at least something about content. Specifically, the Baker test suggests whether the content will be robust or not. (It actually tells you a little bit more if your trigger is legitimate expecations: with legitimate expectations, the content of the procedural obligation is generally what was promised in the procedural promise that gave rise to the legitimate expectation in the first place. If the promise was substantive, you will not be able to enforce it directly, but at the very least, it may lead to enhanced or more procedural fairness.) Of course, one can’t stop at an outcome that just says “robust or lots of procedural fairness, or not”. That!s not enough. One has to unpack that concept and focus on specific procedural entitlements: how much notice; what sort of hearing; how much disclosure, etc., etc.. So the readings review a series of procedural entitlements and propose some lessons on when these particular procedural entitlements might exist and to what degree. Be attentive to this jurisprudence. A word of warning: when it comes to an examination, you do need to explore which procedural entitlements are owed and whether they have been met, but if you pay no heed to the sorts of circumstances that give rise to these specific entitlements, you may end up with an implausible laundry list of procedural rules that you say should apply when they really don’t. An uncritical laundry list is not satisfactory analysis and does not generate more marks. Baker v Minister of Citizenship & Immigration (1999) Facts: • Ms Baker, a citizen of Jamaica, entered Canada on a visitor permit, but overstayed illegally for many years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered. • When discovered to be living in Canada illegally she is ordered to be deported under the Immigration Act. Her last resort under the Act is application to the Minister to be allowed to stay in Canada on “humanitarian and compassionate grounds”. Her written application includes medical evidence that if deported she will likely become ill again with no medication, and that she is sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if she is deported). • Application reviewed by junior Immigration Officer and recommends she not be allowed to stay on humanitarian and compassionate grounds. Recommendation sent to senior Immigration Officer who agrees, so application denied (with no oral hearing and initially no reasons given). • When Baker’s counsel asks for reasons, senior Immigration Officer sends notes from junior Immigration Officer. Notes appear inflammatory e.g. capitalized her total number of children (4

29

in Canada, plus 4 in Jamaica), says she will be a “tremendous strain on our social welfare system”, say that fact she is still in Canada is an “indictment of our system”, and “Canada can no longer afford this kind of generosity”, recommends refusal but warns of “potential for adverse publicity”. Baker challenges deportation in court, and deportation stayed until concluded. Note not a Charter s.7 case, rather dealt with on common law PF grounds. Claims: i) Some procedural fairness obligations were owed (court said yes). ii) Insufficient PFOs given: (1) There should have been an oral hearing (no). (2) There was a duty to give reasons (yes, but notes sufficient) (3) There was a reasonable apprehension of bias from notes (yes). iii) Substantively there was an abuse of discretion (yes). Decision: L’Heureux-Dube J: on threshold question, there is a duty of PF owed: It is clear that the duty of procedural fairness applies to H & C decisions as they affect “the rights, privileges or interests of an individual.” (Cardinal v. Dir of Kent Institution) “The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.” (L’H-D in Knight) 5 factors have been recognized as relevant criteria for the determination of the content of procedural fairness. “Underlying these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made an its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” “I should note that this list of factors is not exhaustive… Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.” a) Nature of the decision and the process followed in making it: “The closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making.” (Knight) i) Legislative & general / discretionary policy suggests less PFOs ii) Administrative & specific / resembles adversarial court-like process / fact-finding & credibility suggests more PFOs b) Nature of statutory scheme and the terms of the statute pursuant to which the decision maker operates: “Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.” Also consider if there is a general statute specifying procedures such as Ontario’s Statutory Powers Procedures Act (none in B.C.) i) Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh Wilson J. is statute intended by legislature to be exhaustive for PFOs) ii) How general scheme affect PF (e.g. multi-stage process and preliminary investigation v. final decision) iii) Is there an administrative appeal or redetermination (if not suggests more PF) iv) Is case arguing for ordinary scheme to be followed or looking for an exception (which might suggest less PF) c) Importance of decision to individual. “The more important the decision is to the lives of those affected and the greater its impact on theat person or those persons, the more stringent the procedural protections that will be mandated.” This idea comes from Dickson J. in Kane. d) The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness require in given circs. This doctrine is part of the doctrine of

30

fairness or natural justice and does not create substantive rights. (Old St. Boniface). 2 meanings: i) Promises / conduct / usual practices by officials that gives individual legitimate expectation that a certain procedure would be followed. (Qi and Bendahmane). ii) Where an individual has a legitimate expectation of a particular result (e.g. that license would be renewed) (Mullan)– can’t be used substantively to actually get that result, but can be used to argue for more PF before expected result denied. e) Take into account and respect the choices made by decision maker. These choices should be respected, particularly when the statute leaves to the agency the ability to choose its own procedures or when the agency has an expertise in determining what procedures are appropriate in the circumstances. Should consider why agency made choices of procedure that it did (but this can’t be determinative and so carries less weight since court reviewing if they are adequate): look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000’s of decisions), expediency, informality, etc., which can all be trade offs against requiring high PFOs Note – values underlying duty of PF relate to the principle that individual affected should have opp to present their case fully and fairly, have decisions affecting their rights, interests or privileges mad using fair, impartial and open process, appropriate to the statutory, insitutational and social context of the decision. 2) In this case looking at these 5 factors: a) Nature of decision has high level of discretion and must consider many factors, not very court-like (humanitarian and compassionate grounds different from a judicial decision.) suggests less PFOs b) Statutory scheme is that ordinarily people will apply for permanent residence from outside Canada, whereas here Baker applying for exception to this  suggests less PFOs BUT no administrative appeal  suggests more PFOs c) Impact here on both Baker and her children very significant,  suggests more PFOs d) No legitimate expectations (i.e. no promises / conduct by officials to Baker suggesting she would be given more PFOs, nor history of giving oral hearings)  neutral e) Statute gives Minister much flexibility to decide on proper procedure and in practice interviews are not conducted in all cases. Balancing these factors L H’D concludes circs require a full and fair consideration of the issues and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opp to present various types of evidence relevant to their case and have it fully and fairly considered. In this case though, no need for oral proceeding, rather written submissions sufficient to hear all relevant information. Re provision of reasons for decision – traditional position at common law has been that duty of fairness does not require, as a general rule that reasons be provided for administrative decisions but the courts have often emphasised the usefulness of reasons in ensuring fair and transparent decisionmaking. Others have said that having to give written reasons is too great a burden. L H’D said that it is now appropriate to recognize that, in certain circs, the duty of procedural fairness will also require provision of a written explanation for the decision. Cases where there is important significance for individual, when there is a statutory right of appeal or in other circs, some form of reason is required. In this case reasons should be given but the reasons requirement was fulfilled as Baker got notes of the case officer. Re bias – PF requires that decisions be made free from a reasonable apprehension of bias by an impartial decisionmaker. The duty to act fairly and in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of

31

the decisions – whether subordinate reviewing officers or those who make the final decision. Test for reasonable apprehension of bias is reasonableness – what would an informed person viewing the matter realistically and practically (and having thought the matter through) conclude? Standards for a reasonable apprehension of bias may vary depending on context and type of function performed by the administrative decision maker. In this case immigration decisions demand sensitivity and understanding by those making them – they are individualized decisions and have great importance to such individuals. The case officer demonstrated bias. Suresh v. Canada (Minister of Citizenship and Immigration) [2002] Imports the Baker principles to help determine the procedural protections to which an individual is entitled under s.7 of the Charter. Principles of fundamental justice as referred to in s7 are not identical to the duty of fairness set out in Baker but are the same principles underlying the duty. Facts: • Minister had decided to deport Suresh, an alleged member of the Sri Lankan Tamils (a terrorist group), on grounds that he was a danger to the security of Canada. • But Suresh alleged that there was a possibility that he’d be in serious jeopardy of torture if sent home. • Suresh had opp to make written submission and file material with minister, did not have copy of a copy of the immigration officers report based on which the cert was issued so did not have ability to respond orally or in writing. Decision: • To deport a refugee to face a substantial risk of torture would generally violate s.7 of the Charter. The Minister must exercise her discretion to deport accordingly – which she did. Constitutional Fundamental Justice = CML Duty of Fairness • “The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty.” Thus, “the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.” (Wilson in Singh) • Also, these requirements “should be applied in a manner sensitive to the context of specific factual situations.” (like fairness generally) The 5 Baker factors (1) Nature of the decision • While deportation decisions have some similarity to judicial processes, they are decisions to which discretion must attach in evaluating not only past actions and present dangers, but also the risks from future behaviour of an individual  neutral (2) Nature of the statutory scheme • There is a “disturbing lack of parity” in procedures for similar measures taken under different parts of the Immigration Act. • Here there are no procedures at all. Thus, no right of appeal or further submissions.  strong PF (3) Importance of the right affected • Suresh’s status as a convention refugee, the risk of torture, and the serious personal, financial and emotional consequences are all significant effects of this decision.  strong PF (4) Legitimate expectations • The Convention Against Torture (CAT) explicitly prohibits deportation where there are “substantial grounds” to believe in the risk of torture. This raises an expectation that participation will be allowed in demonstrating and defending those “substantial grounds.” “It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning.”  strong PF (5) Choice of procedures

32

• •

Minister has discretion to choose procedures in terms of statute. This follows from need for Ministerial discretion in evaluating future risk and security concerns. This signals deference that Parliament has given to Minister’s choice of procedures.  weak PF

 In this case, PFOs required by s. 7 do not extend to the level of requiring a full oral hearing or a complete judicial process. However, they require more than Suresh received. In particular, they are: (1) Must be informed of the case to be met – before consideration of opposing argument and after being provided with an opportunity to examine the material being used against (subject to reduced disclosure for privilege or security reasons) (2) Must be given an opportunity to challenge the information of the Minister where issues as to its validity arise – such as evidence of the risk of torture, association with a terrorist organization, and assurances by a foreign state. Assurances are particularly suspect in torture cases because past practice may indicate an impotence of the state in controlling the behaviour of its officers. Assurances no to apply the death penalty are generally easier to monitor and more reliable. (3) Must be provided written reasons – that “articulate and rationally sustain the finding”. They must also emanate from the decision-maker (i.e. the Minister) and not just be the advice or suggestion to the decision-maker (i.e. not just the “prosecutorial” brief/memorandum). “These procedural protections need not be invoked in every case. … The individual must make out a prima facie case that there may be a risk of torture upon deportation,” before these PFOs are engaged. Specific Content Issues 1. Pre hearing content issues – issues of notice, claims to pre-hearing disclosure or discovery of evidence to be relied on and delay in the processing of administrative proceedings 2. nature of the actual hearing – should it be written or oral or a mixture? Are parties entitled to representation by counsel, an agent, a friend? If oral hearing, right to cross examine witnesses? Types of evidence that a decisionmaker can rely on and obligation to reveal that evidence (confidentiality claims impt here). Duty to provide reasons. 1. Prehearing Notice Problems about notice: (a) form of notice – written or oral. usually written (b) manner of service – personal service is norm but if impacts a large and number – public notice is ok. Re Hardy and Minister of Education unreasonable to suggest every resident in district must be personally apprised of intention to close school. Must make proposed closure known throughout district generally. Re Central Ontario Coalition and Ontario Hydro notice of location of electric transmission lines. Proposed top create new lines and submitted proposals to a joint board of Ontario Municipal Board and the Environmental Assessment Board. Notice to affected public required but service to everyone who might be affected not required. Gave personal service to some municipalities and individuals and also published in newpapers. The notice gave details of the alternative route but described as being in SW Ontario and no maps included. Hearing held but few participants from alternative route. Group of of people from effected route sought review on grounds that they did not get proper notice

33

and won. Court said test was “Would a reasonable person have understood it in all the circs notwithstanding its inadequacy” Re Joint Board under Consolidated Hearings Act and Ontario Hydro notices for a similar undertaking – transmission lines in east. Used term “Eastern Ontario” in notices. Court distingused from Central Ontario as term Southwestern Ontario made the notice inadequate in that case – not clear that the area where lines would go was included in that term. In this case, the term “Eastern Ontario” plainly included he area where the lines were proposed to be built. Notice by mail causes problems with time of receipt. Re City of Winnipeg and Torchinskey Notice not received by T until actual date for her to submit her appeal and T actually gave notice a few days after that. City sought to prohibit the board from hearing T’s appeal on grounds that it was out of date. Court dismissed claim Re Rymal and Niagra Escarpment Committee Mail delays meand R submitted appeal a day late, Court rejected giving him relief. (c) timing (d) contents of notice R v Ontario Racing Commission Trainer’s horse raced with a banned substance. ORC gave him notice of a hearing to explain it and said he could attend and be represented by counsel and intro witnesses. Notice did not say what he was being charged with. Didn’t give him any notice of the possible results of the hearing – should have been clearly advised on the contents. NOTE – a dissenting judge in appeal court said Trainer was knowledgeable enough of the racing industry to know the impact of the ORC’s decision. R v Chester prisoner –officials considered moving him to a special unit because of his attitude and some incidents. Gave C notice that a transfer being considered and invited submissions – specified an assault on staff member on july 6. He made submissions about the july 6 incident but didn’t address the move to the unit. Court held notice to him was at least equivicol – a person reading articles could conclude that the reason behind the consideration about the July 6 incident. It was misleading. Canada (AG) v Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) Should different limitations apply to notices warning of potential findings of misconduct? 1000+ Canadians became infected with HIV from blood in early 1980. 12000 became infected with Hep C as well. Govt appointed Krever to review and report on blood system. Nov 3 1993, Announcement of his appointment and mandate published in Canadian newspapers. All those with interest were given an opp to apply for standing before Inquiry. 25 interested parties granted standing, including Red Cross and Bayer. Commissioner entitled to adopt rules of procedure and practice. Allowed parties with standing and witnesses the right to counsel. He said mandate was not concerned with liability – Inquiry is not a witch-hunt. But in Oct 1995, Commission counsel gave memo to all parties asking them to inform the Commission of the findings of misconduct they felt should be made by the Commission. Memo explained that under s 13 of Inquiries Act, Commissioner has to give notice to any person against whom he intends to make findings of misconduct. Dec 1995, notice given to persons advising that Commission might find conclude that their actions amounted to misconduct and the recipients had the right to respond.

34

Recipients of notices sought judicial review. Court noted that the principle of fairness must be extended to notices. Notices must be issued in confidence to allow them to prepare or respond to any possible findings of misconduct which may be made against them. The notices should be as detailed as possible. Did Commissioner exceed his jurisdiction in the notices delivered? No. Potential findings of misconduct cover areas that were within Commissioner’s responsibility to investigate. Content of the notices does not indicate that Commissioner investigated or contemplated reporting on areas outside his mandate. Appellants launched their challenge prematurely – Commissioner hasn’t issued his report. Challege should not be launched before the report is published unless there are reasonable grounds to believe that the Commissioner was likely to exceed his jurisdiction. In this instance, the notices were not obkectionable – Indicated that there was a possibility that the Commissioner would make certain findings of fact that might amount to misconduct. Some of the allegations in the notice contained references to “failure” to take appropriate actions. This does not necessarily mean that the person breached a criminal or civil std of conduct. Commissioner used no words that indicate a legal std was being applied. No error made by the Commissioner in sending out notices. Procedural protections: Appellants argued that they did not have sufficient procedural protections – therefore Commissioner lost authority to make the type of findings suggested by the notices. They interpreted comments made by the Commissioner as assurances that he had no intention of making the type of findings suggested by the notices. They would have insisted on tighter evidentiary procedures. Judge found the procedures were fair – adopted on a consensual basis after a meeting with all parties to determine which protections would be required. Timing of notices: Last day of hearings was when notices issued. So ability to x examine witnesses effectively and present evidence was compromised. Rejected - No statutory requirement to give notice as soon as aware of possibility of allegation of misconduct. Broad inquiries are not focused on individuals or whether they committed a crime, concerned with institutions and systems and how to improve them. Although notices must be given as a feasible, unreasonable to insist that they notice of misconduct must always be given early. In some inquiries, the Commissioner will not know what the findings may be until late in the process. As long as adequate time is given to recipients to allow them to call evidence and make submissions, later delivery will not constitute unfair procedure. Timing of notices depends on circs. Where evidence is extensive and complex, may be impossible to give notice until near the end. Timing of delivery of notices did not amount to a violation of procedural fairness.

[1997] SCC - Krever JA was appointed to conduct inquiries into the tainted blood case; - He said he was not going to turn it into the “witch hunt” – he wanted to find a constructive resolution - After 2 years of public hearings he came to the conclusion that there was a prima facie case of misconduct by certain bodies; - He issued notices to 95 organizations in December with 3 weeks for them to reply to him of whether they would be putting further evidence; - Notices were confidential;

35

-

-

-

-

A lot of organizations moved to judicially review the notices and challenge the judges authority to issue a notice; Argued: 1. the notices were delivered at the end of the public hearing stage and the respondents had no time to respond to the notice; 2. it was outside of his jurisdiction to find the misconduct (SCC confirmed that he had an authority to establish the misconduct as long as he did not prescribed the sanctions) the issue about the notice (346) the notice in general: 1. should be as detailed as possible 2. with respect to timing: notices were not objectionable (valid) so long as they give the recipients adequate opportunity to allow them to make submissions – they were valid (organizations were part of the procedure for 2 years; 3 weeks was sufficient notice) Timing of the Notice: 1. look at your documentary legal authority to prescribe the required timing (in this case no statutory duty prescribing time) 2. it is helpful to know in advance of the finding, but you have to look if it is practical to give more notice or impractical to give more notice (in this case they knew for 2 years about it) 3. adequate time: late delivery will not in itself constitute unfair delivery – if the parties have sufficient time to respond, technical delay is insufficient to make the notice inadequate; 4. the timing of notice will always depend on the circumstances. Conclusions: 1. 2. 3. 4.

Reasonable Notice: Timing and Contents: notice is required for any decision that affects the rights of the individual; must be reasonable, both in content and in timing; “adequate” depends on the circumstances has to be sufficient for the client to be able to understand the case and to prepare;

Discovery Do notice entitlements in the administrative process involve a claim to pre-hearing “discovery” of all relevant info in possession of the “other side”/”prosecution”? Do tribunals have an inherent/implied power to order discovery of complete disclosure where they deem it necessary in the interests of fairness? Canadian Pacific Airlines Ltd. v Canadian Air Line Pilots Association [1993] Involved an order for production of docs and other info made by Canada Labour Relations Board as the investigative, pre-hearing stage of an application by Canadian Air Line Pilots Association for a “single employer” declaration. When Canadian Pacific Airlines Ltd. didn’t produce info voluntarily, board relied on Canada Labour Code provisions to “compel witnesses to produce such docs and things as the board deems requisite to the full investigation… Majority held that board had no inherent or incidental powers, only those conferred by statute. Provisions relied on did not authorize compulsory discovery orders outside the context of a formal hearing. No room for pre-hearing discovery. Statute limited to orders for production of docs in context of witnesses being summoned to give evidence on oath.

36

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) –The target was to obtain prehearing disclosure of all relevant documents in the Board’s possession. The Federal Court sustained the Board’s refusal on the ruling by stating that there were no criminal proceedings, it would impact the efficiency of the business, and it would also lengthen the proceedings. Court refused to apply Stinchcombe. May v Ferndale Institution SCC upheld the contextual approach to the scope of disclosure in admin proceedings. Court refused to apply Stinchcombe because that was a criminal context (i.e. a trial and someone’s innocence is at stake) – such principles do not apply in the administrative context. But procedural fairness generally requires that the decisionmaker disclose the info they relied on and in this case, the relevant statute required Corrections Canada to give offenders “all the info to be considered in the taking of the decision or a summary of that info” – so disclosure of the specific scoring matrix (of risks) should have been disclosed. Delay Kodellas v. Saskatchewan Human Rights Commission (1989) It is my opinion that for the purposes of determining an "unreasonable delay" in the context of s.7 of the Charter in relation to a remedial proceeding under the Code, the factors to consider and weigh are: (1) Whether the delay complained of is prima facie unreasonable, having regard to the time requirements inherent in such a remedial proceeding; (2) the reason or responsibility for the delay, having regard to the conduct of the complainants (at whose instance the proceedings were initiated) the conduct of the Commission (who by the provisions of the Code has carriage of the proceedings), including the inadequacy of or limitation to its institutional resources, and the conduct of the alleged discriminator, including whether he failed to object or waive any time period; and (3) the prejudice or impairment caused to the alleged discriminator by the delay. In this case the delay was unreasonable and it appeared ascribable to the Commission. On (3) Kodellas alleged the delay meant he was unable to find potential witnesses and also fading recollection of potential witnesses. Judge agreed with this. 2. Actual Hearing Oral Hearings (face to face encounter with decisionmaker or delegate) As part of the audi alteram partem rule, traditionally the right to an oral hearing was usually required as an element of natural justice - As the duty of fairness emerged, the presumption in favour of an oral hearing (as opposed to written submissions) disappeared, and deference to procedural choices became the norm - Baker: as there is no more automatic right to an oral hearing, the question is whether the applicant received a "full and fair consideration" of their claim given the circumstances - Nicholson: written submissions sufficed (no oral hearing), as while a dismissed police officer should have been told why he was dismissed and should have been given the opportunity to respond, the Board had discretion as to whether it should be an oral or written hearing - Baker: written submissions sufficed (no oral hearing), as the lack of an oral hearing for a woman applying for an exemption to immigration requirements was not found to violate procedural fairness - Generally, oral hearings will be required (otherwise written submissions will suffice) if: a) Applicant is entitled to natural justice b) Baker: credibility is an issue

37

- Beetz J. in Singh: condemned lack of a "full oral hearing" in a situation where "life and liberty may depend on findings of fact and credibility" - Wilson J. in Singh: while an oral hearing may not be required in every case where s.7 Charter rights were at stake, "where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing" (reaffirmed in Suresh) c) Singh: life and death is at stake (ie: s.7 principle of fundamental justice argument…see Charter section) - According to audi alteram partem, an applicant must know the case he has to meet, which includes having access to the info before decision-makers and having a summary of the case…case law expands on this content: a) Singh: Minister submitted additional info to the appeal board which Singh didn't know about b) Chiarelli: with national security cases, applicant must have a summary of the case against him, but need not have every detail c) Suresh: Where an applicant establishes a prima facie case that he has a risk of facing torture, he must have notice of the full case against him and be given an opportunity to respond, which includes an opportunity to view the Minister's info before making submissions Masters v. Ontario (1994) an oral hearing was not deemed necessary when an investigation team ordered a high-level bureaucrat reassigned after an investigative team found he had sexually assaulted seven women. The court ruled that the duty of fairness was met even without the hearing because the party had an awareness of material allegations against him and adequate opportunity to be heard. Khan v. University of Ottawa (1997) Facts: • Khan wrote an evidence exam. She thought she had 2 hours and filled 3 booklets which she labeled “1 of 3, 2 of 3, 3 of 3”. She realized toward end that she had another half hour and took a 4th booklet which she labeled “insert”. She didn’t make it clear on the first three booklets that there is another booklet. She failed the exam and realized that the last booklet was not read – it had been lost. • She appealed to the Examinations Committee who took her submissions (did not allow an oral hearing) and decided not to let her re-write on basis that (1) no exam had been lost before, (2) invigilators take great care, and (3) very little was written in the third of three marked booklets. They didn’t believe her that there was a 4 th booklet. The Chair also admitted that, had they believed Khan that there actually was a 4th booklet and it had gone missing, she would have been entitled to re-write the exam. • She appealed to University Senate and was again not given opportunity to plead her case. They also rejected her appeal. • Because of failing this exam, she failed the year. Decision: Laskin JA • Threshold – “The effect of a failed year may be very serious for a university student.” • Khan’s credibility was the central issue before the committee: The only direct evidence that she did write a fourth booklet was her word. If the Committee believed her explanation, she was entitled to relief. If not, her appeal was properly dismissed. The 3 factors on which the Committee relied to justify their rejection were no more than circumstantial evidence that caused the Committee members to disbelieve Khan. • Thus, procedural fairness required (1) an oral hearing, (2) a reasonable inquiry into the exam procedures, their actual operation in this case, and their general propriety, (3) an opportunity to refute the factors the Committee relied on in its decision. • “In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would

38

ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan’s credibility.” • “Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her. (Kane)” The Committee’s denial of an oral hearing “fatally flawed the proceedings.” Dissent: Finalyson JA • The committee was to determine whether there was an “error or injustice”. The existence of the fourth booklet would not have been conclusive given that the professor said that “more of the same wouldn’t have been beneficial.” • We should not reverse the burden of proof: “ This is an attempt to place the burden on the two Committees to demonstrate affirmatively that a foruth booklet did not exist, and failing that responsibility, accept [Khan’s] bald assertion.” • Khan was given the opportunity to provide a full and detailed written account of why she deserved relief. She never suggested that it was important to appear in person or that the information she submitted was not complete. • The proceedings were not adversarial in nature. • The legal rights involved and the consequences to Khan do not merit the standard of procedural fairness she claims. Singh can therefore be distinguished because it was a s. 7 case. The rights to “life, liberty, and security of the person” were of great enough importance that an oral hearing was warranted. Courts have traditionally given administrative tribunals the discretion to determine their own procedures, including the means by which submission are entertained. An oral hearing in these circumstances would impose an unreasonable procedural burden on the university. Open Hearings Whether to hold oral hearings publicly was traditionally treated as within the discretion of tribunal; recent challenges by media have led to greater openness. The issue is whether a hearing should be open to the public or not. Competing interests are freedom of expression/freedom of the press vs. the security and privacy interests of the subject of the hearing. Also, protecting the victim and ensuring witnesses come forward are other rationales for having in camera proceedings. There’s also the concern of commercial competitiveness among media institutions. Right to Counsel There is no common law absolute right to counsel, and the right’s existence is fact-dependent. However, in many cases, the right to counsel is assumed and in many cases a statute provides for it. •

The more complex the inquiry and the more severe the repercussions on individuals involved the more likely the person has a right to counsel. Re: Parrish, [1993]; Re: Men’s Clothing Manufacturer’s Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Worker’s Union (1979); Howard v. Stony Mountain Institution (1985)

•

On the matter of entitlement to counsel in prison, several factors are considered including the seriousness of the charge and the potential penalty, points of law likely to arise, capacity of prisoner to make his or her case, procedural difficulties, and the need for speed and fairness between prisoners. (R. v. Secretary of State for the Home Department, ex. p. Tarrant, [1984]).

•

The principles of fundamental justice do not entitle someone to the right to counsel in cases of routine information gathering. In Dehghani v, Canada (Minister of Employment and Immigration), [1993] a refugee claimant alleged his s. 7 and s. 10(b) Charter rights were violated by the denial of access to counsel during an examination at a port of entry. Notes from the examination were used in a later stage of the refugee process. The appeal was denied.

39

•

In New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.], [1999] the court found a parent had a right to counsel in a custody hearing because the lack of counsel created “an unacceptable risk of error in determining the child’s best interests and thereby threatening to violate both the [mother]’s and her children’s s. 7 right to security of the person.” The right is not absolute, but depends on the parent’s abilities and the complexity of the hearing.

Re Men’s Clothing Manufacturer’s Association (1979) Facts: • Disputes in the men’s clothing industry in Toronto had been resolved in arbitration without lawyers for decades. • The union asked to have a lawyer present. Decision: (Arbitration) Arthurs • A labour arbitrator must accord to the parties before him all procedural rights which they have agreed and must observe natural justice in the absence of agreement. • Although the common law finds legal representation desirable and discretion should favour it, it is not regarded as indispensable and there may be some circumstances where the participation of counsel is inimical to the functioning of the tribunal. Indeed, the common law did not guarantee representation in arbitrations or proceedings before administrative tribunals. • The SPPA specifically excludes labour arbitrations from the application of the part of the statute dealing with rights to counsel • The special context of labour arbitration and particularly of men’s clothing arbitration militates against a right to counsel: 1) There is an impartial chairman who holds office for the duration of the collective agreement. 2) Arbitration arose in this industry arose by agreement of the parties. 3) Cases are presented informally. 4) No witnesses are called. 5) Agreement on the facts is not uncommon and agreement on the disposition also occurs. • The scope of disputes subject to arbitration and bases for deciding disputes is confined to areas where an informal process can be carried on. • There are also many informal understandings which are not incorporated in collective agreements that are fostered by this system. • “It is important to understand, therefore, that what the parties meant to convey by their mutual commitment to “arbitration” in the collective agreement was their devotion to a process which differed radically not only from that of the Courts but from that of other, less venerable, labour arbitration systems.”  default of not permitting counsel • One cannot imagine that the introduction of lawyers could be accomplished without paying a substantial price in terms of efficiency – and industrial relations effectiveness – of arbitration: 1) Hearings will be delayed by availability of counsel. 2) Rules of evidence will lengthen hearings. 3) Technical contractual claims will divert from the true industrial relations issues at play 4) Costs of arbitration will rise enough to deter its use for minor matters • Altering the process so fundamentally should be done openly and deliberately through collective bargaining. Decision: (Review) Southey J • The only way a corporation can be represented is through an agent. By ruling that the parties to arbitration could not be represented by counsel, they were being restricted in their choice of agents. This violates a common law right without a clear agreement or statutory restriction. • It is common in other industries to be represented by counsel, thus in those circumstances it should be taken as an implied term in the collective agreement, even for natural persons.

40

•

However, here there is a practice that would shift the balance against finding such an implied term. Thus, a natural person may not necessarily be entitled to counsel for the reasons given in the arbitration. Nonetheless, they would be entitled to counsel where another was so represented or where natural justice so demanded. Note: • Even in deciding how he did, the arbitrator gave leave for a very limited participation by counsel on a specific point of law (that challenged his legal authority). Thus, the judge’s ruling really only extended the participation of counsel because he accepted that many issues in the arbitration would be sufficiently complex as to warrant lawyers’ involvement. Adjudication is backward-looking and correcting a wrong. Administrative perspectives are forwardlooking – parties have to agree to terms which they will obey going forward Howard v. Stony Mountain Institution (1985) Question is whether s7 of Charter guaranteed H the right to counsel. H was in prison. Charges under regulations against him – indecent or disrespectful language, threatening to assault another person, disobeying orders of a penitentiary officer… S7 has not created an absolute right to counsel in all proceedings. In present case – all of H’s 267 days of earned remission – this alone suggests his need of counsel. New Brunswick v. G. (J. (1999 SCC): the court found a parent had a right to counsel in a custody hearing because the lack of counsel created “an unacceptable risk of error in determining the child’s best interests and thereby threatening to violate both the [mother]’s and her children’s s. 7 right to security of the person.” The right is not absolute, but depends on the parent’s abilities and the complexity of the hearing. where a decision impairs a s.7 interest, if government restriction of the "security of the person" right has a serious and profound effect on a person's psychological integrity, the principles of fundamental justice may require the Crown to provide legal aid (ie: here, circumstances were a gov't order suspending parents' custody of their children) Facts: • A mother was resisting an application by the Child Welfare authorities for renewal of an order placing her three children in the custody of the state. • She requested the aid of counsel and was refused according to a Legal Aid policy that prohibited giving legal aid certificates in custody-order renewal proceedings. • She invoked s. 7. Issues: Does section 7 of the Charter require that the mother be provided with counsel? Holding: Yes Decision: Lamer CJ The right to a fair hearing required that G be represented by counsel because of several factors: (1) The seriousness of the interests at stake • “Few state actions can have a more profound effect on the lives of both parent and child [than separation]. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.” • The seriousness varies according to the length of the proposed separation. This is an extension by six-months which is a significant period of time and may make the difference as to whether

41

•

• •

• •

•

custody will ever be regained. (2) the complexity of the proceedings “Although perhaps more administrative in nature than criminal proceedings, child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised. The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.” Here, all other parties were represented by counsel, the hearing was to last 3 days, and the Minister planned to present 15 affidavits, including two expert reports. (3) the capacities of the appellant “An unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case.” Lamer concludes that the potential restriction of the appellant’s right to security of the person is not in accordance with the PFJ had the custody hearing proceeded with the appellant unrepresented by counsel He notes that the right to a fair hearing will not always require an individual to be represented by counsel when s.7 is engaged, and not every custody hearing will require representation by counsel. The seriousness, complexity of a hearing and capacities of the parent will vary from case to case. E.g. permanent guardianship apps more likely to require counsel than custody apps. This woman – who does not have higher education and was not familiar with these proceedings – would not be able to participate meaningfully in them and defend her interests

Section 1: - “... rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society.” - Assuming that the policy of not providing state-funded counsel to respondents in custody applications was a limit prescribed by law, that the objective of this policy (controlling legal aid expenditures) is pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal impairment of s.7, I find that the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings. - BC Motor Vehicles: s. 1 may for reasons of administrative expediency, successfully come to the rescue of a s.7 violation, but only in cases arising out of exceptional circumstances i.e. natural disasters , epidemics, war etc. Limiting legal aid expenses is not of sufficient importance here. - Government not under an obligation to provide legal aid to every parent – has very limited application; only arises when s.7 interest at stake and is necessary to ensure a fair hearing (limited by three factors). This is an exceptional remedy! Note that the concurring minority would have found that counsel was needed more often than the majority would have found, b/c they saw the proceedings as being always complex. Comments: The characterization of the children’s interests and the parent-child bond raises the question as to whether Baker could have been decided as a section 7 case. This case shows how an individual vs. government situation or other imbalance of power is a key determinant of the right. How would you expect someone who might not even have a high school education to adequately defend her complicated legal interests in a trial-like setting? Disclosure and Official Notice Disclosure is the disclosure to the parties of information that the agency has about the decision to be made. Official notice is the extent and manner in which an agency may, in making its decisions, use material

42

that is not introduced in evidence Access to Information Statutes These are useful in discovery, but exemption from these regimes does not mean that natural justice will not supplement its disclosure requirements. Crown or Executive Privilege Provisions of the Canada Evidence Act allow the government to withhold information from the courts, subject to a court determination of whether the “public interest in disclosure outweighs the specified public interest.” S. 39 thereof allows withholding without a court determination. Attacks on its constitutionality have failed, however (e.g. see Babcock v Canada (AG) 2002). Other Common Law Evidential Privileges Solicitor-client privilege and the presumption of deliberative secrecy among other doctrines can also affect disclosure. The competing interests for disclosure can generally be categorized into four situations: (1) information collected by the agency directly; (2) identities of persons from which an agency has received information; (3) business information collected; (4) material created by the agency itself. Three major arguments can be made for disclosure: (1) individuals should have the right to know what government knows about them, (2) disclosure would increase the effectiveness of participation of claimants in the decision-making process, (3) disclosure would tend to improve the quality of reports by exposing carelessness and vagueness. Reasons for refusing disclosure are generally weak, but there are some legitimate concerns: (1) disclosure may cause harm in certain cases; (2) it may raise the prospect of litigation and liability; (3) it would reduce the frankness and detail of the reports. Disclosure as a deterrent to frankness and thoroughness in reporting may be a serious problem when information is needed after a long delay (e.g. looking at a patient report after many years). Access to Agency Information Re Napoli and Workers’ Compensation Board (1981 BCCA) Facts: the worker was appealing an issue of benefit through the worker’s compensation regime; he had asked for disclosure of the file; was denied access to his workers compensation file; instead of giving him documents in the case (including about 30 doctors’ reports), he was given 16 page summary of the file; He appeals on the issue of disclosure; Court: - given the seriousness of the issues, there was a high standard of fairness required; and therefore the rules of natural justice apply to the workers compensation cases; - the serious issues; 1. livelihood, 2. compensation 3. benefit insurance scheme; 4. we are talking about somebody’s future earnings -

so we know from Nicholson to Knight, when we are talking about somebody’s livelihood, you are likely to find a high level of procedural fairness attached to it; given that the rules of pf are applied here, the court looks at whether the claimant is given the

43

-

information he needs to know; the effected individual has to know the case he/she has to meet court finds that 16 pages of summary is not sufficient to enable the individual to meet the case; they have to provide the medical reports, there are clearly credibility issues when you are talking about workers comp; given all these issues (higher level of pf and credibility issues), the pf requires disclosure Workers comp. Board argued that he should not be entitled to records of doctors and nurses because they will not be candid the court rejected the argument, saying that knowing that the content of the report will be under scrutiny in the litigation, makes it more likely that the author of the report will be more careful and diligent in the preparing the report (Mulan’s third argument)

In workers comp cases now you get a full disclosure. Re Egglestone rights of psychiatric patient to access their hospital file. Board allowed his counsel to review in presence of a board member on condition it not be disclosed to the patient that counsel represented and this was held to be acceptable by court. Identities of sources of information Charkaoui v. Canada (Minister of Citizenship and Immigration), 2008 Court noted that in Blencoe and May they distinguished between criminal proceedings and administrative proceedings. But noted here that application of s7 of Charter does not turn on distinction between diff areas of law – depends on the severity of consequences of state’s actions for individual’s fundamental interests of liberty, security and right to life. By its nature, the security cert procedure can place these rights in serious jeopardy. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s 7. In Charkaoui II, meanwhile, the Court held that section 7 imposes upon CSIS a duty to retain and disclose notes from interviews conducted with the claimant, in the course of proceedings relating to the security certificate issued against him under section 77(1) of the Immigration and Refugee Protection Act In Charkaoui II, the SCC further enhanced levels of disclosure and adversarial challenge by requiring intelligence agencies and the Ministers to retain and disclose to reviewing judges and SAs all information in their possession relevant to a named person. The SCC further instructed reviewing judges to draft and then forward to named persons accurate summaries of this information in the event that such information could not be fully disclosed for reasons of national security or the safety of any person. Court set out disclosure process – procedural fairness requirement includes disclosure of evidence to the named person in a manner and within limits that are consistent with public safety interests. To respect these limits, the Designated judge has access to all evidence and then must exclude evidence that might pose a threat to national security and summarise remaining evidence (that they check for accuracy and reliability) for names person. I.e. Designated judge filters evidence and determines limits of access of named person at each step of the process. Designated judge after reviewing some of the files decided that some should be disclosed, Rather than disclose notes, the ministers elected to withdraw the evidence and on that basis concluded that the material was not sufficient to meet their burden of proving the security cert’s reasonableness. They requested that the Designated judge rule on reasonableness of cert so they could then appeal to CofA. Designated judge rejected the request – if they withdrew supporting evidence, then certificate was not meeting requirements for its referral to court and was void. Pg. 379 of text book examines situations where govt has invoked national security as a way of

44

covering up embarrassing info. Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989) G, a prisoner, notified that warden intended to transfer him to max-security facility as he was suspected of involvement in extortion and drugs. The formal notice said info had been recieved but was general in nature and did not disclose specific info on the ground that it would jeapordise safety of victims. He appealed decision of T (deputy governer) to transfer Certiorari granted – notice was insufficient to satisfy pf requirements. T appealed. •

•

•

HOLDING(majority) o Reqs of pf, like those of natural justice, vary with the circs. T is normally obliged to give a fair opp to be heard. T relieved of that obligation if it must be made in an emergency. In this case the warden was concerned the 6 informants might be hurt and the judge doesn’t have any reason to querythis. No need to be bound by pf if the application of rules endangers lives of other inmates. Decision to transfer should not have been quashed on grounds that it was made in breach of pf. o The principles of fundamental justice (s.7) do not have the same flexibility as the rules of natural justice and of fairness. In particular, rules of natural justice and of fairness cannot frustrate the intention of parliament. Charter can though.  Thus, the decision to transfer the respondent to Saskatchewan Penitentiary was not made in accordance with the principles of fundamental justice since the respondent was not given a real opportunity to answer the allegation made against him. o Section 1 Analysis: obvious that in a free and democratic society, it is reasonable, perhaps even necessary, to confer such a wide discretion on penitentiary authorities. He allowed the appeal and set aside the oder of lower court for certiorari. MARCEAU JA (concurring in the result): o In light of the importance of the consequences,  The inmate is not entitled (by the audi alteram partem principle) to more information before asking for his representations • This is due to the nature of the problem and his responsibility toward those entrusted to his care. o On the one hand, the information given is definitely more substantial including the inmate's Progress Summary Report in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars. DESJARDINS JA (dissenting): o Reliability may be demonstrated in a number of ways, as for instance, by an independent investigation or by corroborating information from independent sources — i.e. measures should be taken to minimize error and ensure that the truth of the allegations is verified (particularly where cross examination and disclosure are not available) - not done here

Gough v. Canada (National Parole Board) (1990) G, was on parole for 5.5 yrs and subject to lease restrictive type. Allegations of sexual assault, other coercion and drug use made to Correctional Service Office. Parole suspended and revoked. Parole board relied on regulatory power (reg 17(5)- non-disclosure power if there was security concern: issues that the informant would be in danger or the criminal investigation would be in jeopardy) not to disclose info – he never hears details of the dates and places of alleged assaults or names of alleged victims. G applied to have revocation quashed on basis of s7 rights violation and was allowed in court – board had option of quashing decision or in camara hearing agreed where G’s counsel could argue that non-disclosure was not justified. Board chose latter and appealed..

45

Reed J.: o o

o

-

It is clear that the requirements of fundamental justice operate on a spectrum. The content of such requirements vary with the circumstances of the case. Section 7 Requirements in the Parole Penitentiary Context  There is no doubt that the applicant, in the present case, is entitled to sufficient detail respecting the allegations being made against him to enable him to respond intelligently thereto unless the respondent can demonstrate otherwise. Section 1  The issue is whether the National Parole Board is required to either release information to the applicant (when disclosure will necessarily reveal the source of that information) or forego reliance on that information in making a decision on the applicant's parole.  administrative convenience does not justify a denial of fundamental justice— Singh v. Minister of Employment & Immigration [1985] 1 SCR 177  the panel concluded there is no convincing evidence that disclosure would threaten the safety of the informants

s. 7 entitles a person to know what are the allegations against him; there is a loss of liberty issue at stake; the public interest in non-disclosure has to still be weighted against the individual liberty issues; balancing public interest in protecting informants v. personal liberty issues and the fact that he is on full parole: there is also a public interest in promoting fair procedures; there is a public interest in ensuring that officials do not act in an arbitrary manner; when she weighed these issues, the came to the conclusion that the public interest of fair interest tipped the scale towards disclosure; p. 428: she concludes: he was entitled to sufficient details regarding the allegations against him, to enable him to respond intelligently; there was insufficient evidence to support the collaborative arguments that disclosure would be harmful; the decision to revoke parole was quashed and it was ordered to disclose evidence to his lawyers only

How to reconcile the cases: - although they seem to come to different conclusions, there are some uniform principles in two decisions: 1. common law duty of procedural fairness found involved; 2. an obligation under s. 7 right to hearing to include sufficient particulars – both decisions mirrored that line of reasoning 3. both conclude that s. 7 rights of liberty can be trampled on lightly 4. both find s. 7 violations, but for the first case it was saved by s. 1 of Charter. Commercially sensitive information Magnasonic Canada v. Anti-Dumping Tribunal [1972] Jackett CJ.: s. 29 of Anti-Dumping Act requires that when information of a confidential character is tendered at a hearing, it is done soin camera . Further steps to protect the confidentiality of the information depends on the circumstances. These could, at most extreme, include exclusion of all competitors/rivals while evidence is taken, and then provide these parties with a report on evidence taken with reference to confidential evidence under s. 28. Now have Canadian International Trade Tribunal Act which has more detailed provisions on disclosure. E.g. disclosure to an external expert employed by tribunal for an assessment

46

Staff Studies i.e. material gathered by staff of a tribunal/agency CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) [1994] Tribunals exercising economic regulatory function in public interest that do not affect human rights in a way akin to criminal proceedings are entitled to benefit of confidential communication with staff. Toshiba Corporation v. Anti-Dumping Tribunal (1984) and Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984) Both cases dismissed applications for disclosure of staff papers prepared for the board/tribunal prior to hearing. However, if information in staff papers (made prior to a hearing) is available to decision makers and is not brought forward in another form at tribunal, principles of procedural fairness are breached. Re League for Human Rights of B’Nai Brith and Commission of Inquiry on War Criminals (1986), Allowed disclosure of a report of a ‘working group’ of specialists established by the Commission, on the basis that such a report would clearly be relied upon and given significant weight by the Commission in determining whether there were legal means to bring suspected war criminals to justice in Canada. Admissibility of Evidence Part of an important general procedural issue – what procedures should agencies use for fact finding, especially for facts that are different from the kinds of facts that usually govern courts. Miller (T.A.) v Minister of Housing and Local Govt Per Lord Denning – A tribunal of this kind is master of its own procedure provided the rules of natural justice are applied. Hearsay can be admitted. Tribunals are entitled to act on any material that is logically probative. Quebec Univeristy v Larocque SCC 1993 SCC sustained quashing of arbitration by reason of wrongful refusal to admit evidence. His ruling of inadmissibility led to a denial of natural justice. Evidence in question held to be relevant and crucial to defence that the university was advancing in context of a grievance against dismissal. Rule: Party must have the opportunity to make the case Khan v. College of Physicians and Surgeons of Ontario (1992) The Ontario Court of Appeal sustained the admission of hearsay evidence (hearsay about sexual assault of an infant by a doctor was admitted). The hearsay evidence was not only necessary but there were sufficient indicia of its reliability. However, exclusive reliance on hearsay and opinion evidence may have the consequence of leading to a denial of natural justice: See Bond v New Brunswick 1992 – Court set aside an arbitrator’s sustaining of dismissal for sexual assault – victim didn’t testify – arbitrator relied evidence of what victim told other. Given sanction and seriousness of allegations, not sufficient to meet reqs of natural justice.

47

Re: Clarke and Superintendent of Brokers Insurance and Real Estate 1985 Hearsay admitted (transcript evidence from C’s criminal trial) but given little weight in trib dec to deny renewal of a real estate license OEX Electromagnetic INC and BC Securities Commission 1990 Evidence before the US Securities Exchange Commission was allowed in BC Securities Commission Hearing Timpauer v Air Canada FCA 1986 Rule: Cannot omit evidence that adds a dimension of critical importance. Labour Relations B refused to hear medical experts testify on effects of tobacco smoke on complainant’s health. This was denial of natural justice despite strong privative clause (a provision in a statute that tries to remove a court's ability to review decisions of a tribunal )/ Cross-Examination Re Toronto Newspaper Guild and Globe Printing, [1951] Ex. Refusal to allow a newspaper company to cross-examine a union applying to become a bargaining agent was denial of basic justice cuz cross was most effective way to test the merits of the union’s application (context was contention by union that it represented a majority of employees). Principle enshrined in 10.1(b) of the SPPA but conditioned on the x-exam being “reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding”. Innisfil (Township) v. Vespra (Township) [1981] Application by the City of Barrie to annex parts of the Townships of Innisfil, Oro and Vespra. At a hearing of the Ontario Municipal Board, the projected population of Barrie in 2011 assumed importance. While evidence was being led by Innisfil on the issue, the Minister forwarded a letter, through a departmental representative, to the Board advising it of the population allocations in a planning study prepared for the region. The Board ruled that it was bound by government policy as communicated in the letter and would not permit cross-examination on the letter. Were Innisfil and Vespra entitled to x-exam the official who presented the letter? SCC held: - the right to cross-examine is that of the holder and he or she does it at her own peril (the common law rule); - s. 10 of the SPPA applies (the right to cross-examine); - since there is a common law rule of right to cross-examine and the statutory right to crossexamine, municipality had a right to cross-examine - right to cross-examine was upheld •

-

Adjudicative v. Policy [less cross-examination due when it is policy] o Where the Board determines the rights of the contending parties with the onus falling upon the contender to introduce the facts and submissions, the Board technique will take on something of the appearance of a traditional Court. o Where, on the other hand is more concerned with community interests at large, and with technical policy aspects of a specialized subject, one cannot expect the tribunal to function in the manner of the traditional Court.

cross-examination is part of the adversarial process before the administrative board; the court recognizes it as an integral feature of the adversarial process; the court will not curtail the cross-examination without a clear statutory direction;

48

Re: County of Strathcona 1971 If there is another equivocally fair method of answering the case, it may meet the requirements of natural justice. In this case, the Board invited written answers to the matters contained in the report. Critiques by other parties of the report means it is ompossible to say respondents have not taken full advantage of opp to correct or contradict any statement prejudicial to their review. - the case stands for the proposition that cross-examination is not an absolute right; what is the fundamental component of the procedural fairness is the ability to test the evidence; so to have a live cross-examination may not always be an absolute right; if that ability to test the evidence can be satisfied in a different way (exchange of questions of answers, examinations out of proceedings, written reports, etc.) it will satisfying the objective of testing the evidence. Re: B and Catholic Children’s Aid Society of Metro Toronto 1987 Cases that rely almost entirely on hearsay: Denial of right to cross alleged victim was denial of natural justice Facts: the appellant is seeking for his name to be removed from the child-abusers register; he made an application for the Minister of Community and Social Services to have his name expunged. A hearing was held and his application was denied. He judicially reviewed the decision because he did not have an opportunity to cross-examine one of the accusers witnesses with respect to the child abuse. Court: - the denial of cross-examination in this case was a breach of natural justice - in this case the absence of cross-examination was compounded by the fact that they were relying on a hearsay evidence; - these two things had an accumulative effect of denying the appellant procedural fairness; This case and the previous one can be reconciled: - they can be reconciled on the issue of what is the objective of cross-examination: if the objective of cross-examination is to test the evidence, both these cases stand for the importance to test the evidence; - in the Strathocona case the parties were able to test the evidence in the written format; - in the Re B case there was no ability to test the evidence; - where there is a possibility to do cross-examination in a different format, you are likely to be upheld because of the important rights and interests at stake; and one of the important rights is to be able to answer the case; Recap: - According to principles of procedural fairness in relation to disclosure, a tribunal cannot rely on evidence disclosed by one party alone (Kane); - The absence of disclosure or not giving the party an opportunity to respond, constitutes a fundamental error xxx Post Hearing Issues Reasons Until recently, common law was reluctant to impose on decisionmakers an obligation to give reasons for decisions. Baker changed this. Under Baker -

disadvantages to give reasons: 1. adjudicators felt it was a waste of time; 2. it would make things more litigious, more expensive; 3. will cause a delay in decision-making; 4. will be burdensome for informal administrative proceedings; 5. will make it too complicated; 6. adjudicators will not be candid about the reasons

49

-

-

advantages to give reasons: 1. You would get better decision making because adjudicator will be under an obligation to consider all factors and produce the better reasoning; parties will feel more confident in decision making 2. It was useful for the purposes of appeal; you will have tribunal’s rationale spelled out, therefore you can take up the errors to a higher level court 3. Increased transparency for the parties; 4. allows the court of appeal to make sure that the law has been applied correctly; 5. More confidence for the parties When is the duty triggered? Three grounds when the duty of fairness triggers the requirement to provide reasons: 1. when the decision has significant importance to those affected; 2. when there is a statutory right of appeal 3. other circumstances (very vague, are not flashed out as yet – if there is a paramount interest at stake)

What are “adequate” reasons? Lake v Canada 2008 Purpose of providing reasons is two-fold – to allow individual to understand why decicion was made and to allow reviewing court to assess validity of decision. Minister is not required to provide a detailed analysis for every factor. Explanation based on what minister considers the most persuasive factors will be sufficient for a reviewing court to determine whether his conclusion was reasonable. Therefore, not fully canvassing the many relevant faction outlined in a leading extradition case didn’t mean adequate reasons weren’t given. IF decision involved exercise of discretion, the reasons should recognize that it had power to choose and factors that in considered in exercising it. If application of a statutory std depends on existence of certain facts, the reasons should include the findings of fact made by tribunal and indicate the evidence on which it based its findings. Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada (2006) – not sufficient to to justify quatification by merely referring to evidence taken as a whole. Not enough to say “weare the experts, this is the figure, trust us” Clifford v Ontario Municpal Employees Retirement System 2009 Reasons need not refer to every piece of evidence to be sufficient, but must simply provide an adequate explanation of the basis on which decision is made. In Hilo v Minister of Employment and Immigration (1991), the reasons stated that “the panel was not fully satisfied of [Hilo’s] credibility.” The court allowed an appeal on the basis that his testimony was uncontradicted and the only evaluation of his credibility is in the reasons. The court said that the ambiguity in the reasons (it was not an outright rejection of his testimony, but it did cast doubt) was troublesome and if the panel wished to come to a conclusion based on his lack of credibility, they should provide particulars of lack of detail, inconsistencies, or inability to answer questions. Sossin writes that the danger in requiring reasons too often is that it will dilute the requirements as to the adequacy of reasons. The “flexibility” that Baker speaks to may be interpreted such that the reasons requirement may be satisfied in an informal and even ad hoc fashion. This might lead to standards such as Liang, where ticking a “denied” box on a form will be considered sufficient reasons. Lower courts, unfortunately, seem to be adopting this approach.

50

Sossin “If the requirement to provide written reasons is to be a meaningful component of the duty of fairness, those reasons must, at a minimum, shed some light on the actual reasoning of the decisionmaker. Elevating form letters and tick boxes to the status of reasons, even if appropriate in some specific institutional and factual contexts, may seriously erode the fairness of the administrative process.” A 2001 survey of lower court decisions has shown that Sossin’s fear may not be wholly justified and that the reasons requirement is being interpreted in a substantive manner. Although context (and its differential application) was hard to sort out from the outcomes, the decisions where no reasons were required seemed to treat Baker inappropriately (e.g. only applies to H & C decision or reasons section was all obiter). On the other hand, situations of an adversarial nature seemed to require more formal reasons (e.g. declaring applicants a “danger to the public” for deportation purposes). However, these cases seemed to blur the line between reasons and disclosure. Suresh seemed to further clarify this area – “[The Minister’s] reasons must articulate and sustain a finding that there are no substantial grounds to believe that the individual who is subject to the [ministerial] declaration will be subject to torture, execution, or other cruel and unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining the position of Citizenship and Immigration Canada is more like a prosecutor’s brief than a statement of reasons for a decision.” VIA Rail Canada Inc. v. National Transportation Agency [2001] Facts: • Appeal from National Transportation Agency (NTA) decision that held provision of Via’s tariff system posed undue burden on disabled persons. A wheelchair basketball team had traveled with Via, had trouble and launched complaint. • Via provides that if a person is disabled, they can purchase one ticket but have accompanying attendant ride for free to provide assistance – the attendant must be capable of assisting in boarding and de-boarding the train. The issue was whether the requirement re boarding and de-boarding placed undue obstacle on mobility of disabled people. • NTA considered the matter and said that this requirement in Via’s tariff was undue obstacle and asked Via to show cause as to why this was necessary and why NTA should not require Via to strike this aspect of the tariff and require Via to assist in boarding and de-boarding. Via could provide the assistance with little effort and does provide it to people without attendants – given this and other considerations, people with attendants are put at relative disadvantage. Therefore, this provision of the tariff was undue obstacle on the mobility of disabled persons and it must be stricken from tariff structure. • Note: S. 39 of the NTA General Rules requires reasons. So we are not talking about common law duty. Decision: Sexton JA • “The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed.” • “The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors.”

51

•

Here, the adequacy of the NTA’s reasons must be measured in terms of whether they give VIA sufficient guidance to formulate policy without running afoul of the Agency. Thus, the NTA’s reasons would have to set out the basis upon which the existence of the tariff constituted an obstacle, the reasoning that determined that the obstacle was undue, and the main factors relevant to that determination. • The NTA’s reasons do not define what constitutes an “obstacle” – why does an obligation of the attendant to the personal needs of the disabled person on board not constitute an obstacle while the obligation to help with boarding does? Why is a requirement of the capability to help in boarding equated with a requirement to help in boarding? The evidence showed that VIA does not regularly ask the attendants to help in boarding, just that they be able to, if necessary. • The NTA’s reasons do not indicate how an obstacle is found to be “undue” – “undue” has been extensively interpreted by the courts. The Act also qualifies the section on undue obstacles with the words “so far as practicable.” This along with the general scheme of the Act suggests a balancing of interests rather than absolute requirements. There are lots of factors at play in this balancing, none of which were treated by more than reciting the submissions of VIA and the previous statements of the NTA. Notes: To what extent is this assessment of the adequacy of reasons a disguise for substantive appellate review? •

•

RATIO o "standard of adequacy for duty to give reasons must ultimately reflect the purposes served by a duty to give reasons.”—look at overall function of the tribunal. o Reasons must contain  the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based.  The reasons must address the major points in issue.  The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors. APPLICATION: o In this case, adequacy of the Agency's reasons measured with reference to the extent to which they provide VIA with sufficient guidance to formulate their tariff without running afoul of the Agency and to the extent to which they give effect to VIA's right of appeal by providing sufficient insight into the Agency's reasoning process and the factors that it considered. o In summary, the Agency failed to provide sufficient insight into the reasoning process that it followed or the factors that it considered in determining that any obstacle provided by the tariff was undue. In so doing, it erred in law.

Via Rail [2001] FCA The leading case in prescription or framework for the content of duty to give reasons. The duty of fairness triggered the duty to give reasons. What constitutes an “adequate reasons”: - it stands for the principle that reasons must be adequate but adequacy is not established through the mere recitation of facts, submissions and evidence; the duty to give reasons requires more than that. Facts: an appeal by Via Rail before the national transportation agency re: tariff of via rail. Application of the specific tariff provision. Team of the wheelchaired basketball players were attended by attendants who assisted in their basic needs and were allowed to travel for free. The fact that attendants travelled for free was appealed. Was there a different standard for athletes?

52

Tribunal: - this tariff that stipulated that the attendant be required to assist the disabled passenger to get on and off the train was an undue obstacle (the language of the statute); - the assisting persons to board and unboard was via’s responsibility and it should be in this case as well; - to interpret this tariff as allowing attendants to assist athletes in this case was an undue obstacle; Via appealed the tribunal’s decision on the basis that it failed to provide adequate reasons for its decision; The FCA held that the reasons were inadequate and allowed the appeal; - the tribunal’s decision was inadequate because it failed to indicate with sufficient clarity the basis that the tribunal held that the tariff was an undue obstacle; how to interpret that; - what the tribunal had given in the way of reasons, was simply a recitation of facts, submissions and evidence; - the tribunal had not explained its reasoning process for the interpretation of “undue obstacle” - FCA outlined the following principles: 1. the duty to provide reasons is a contextual exercise; it depends on the nature of the administrative agency and the decision under deliberation; 1. The duty to give reasons depends on the context 2. when there is an obligation to provide reasons they must set out: 1. the factual findings 2. the evidence on which the factual findings are based 3. address the major points in issue 4. set out the reasoning in the process followed by the decision maker 5. reflect considerations of the main relevant factors - in order to have adequate reasons, the statement of reasons must provide sufficient insight into decision-maker’s reasoning process and the factors that are considered and applied - here the standard set by the statute was “undue obstacle”; there was no way to understand how the undue obstacle was interpreted; - there was no assessment of the legal standard or what factors were relevant - there was a balancing mandated by the statute: the balancing between the private/public interest that was required when assessing undue obstacle – and the reasons of the tribunal did not reflect that; - so if your statute has a standard that must be satisfied, or balancing of factors, the reasons must demonstrate this - So: there was a failure to provide adequate reasons and it constituted an error of law; the new inquiry was ordered Summary: 1. If the decision involves the exercise of discretion, reasons must demonstrate that the tribunal recognized that it had discretion and what factors it employed in exercising the discretion; 2. If the statutory standard (“undue obstacle”, five penalties, six demerit points, etc.) is stipulated in the statute, the tribunal should also show that it turned their mind to the statutory standard and what factors it considered satisfying or not satisfying; 3. If the decision is based on findings of credibility, courts require some explanation of unsworn evidence and an explanation of why such evidence was excepted or rejected, especially if it is uncontradicted evidence. Effect of breach of duty to give reasons •

If it is apparent from the reasons for a decision, whether given voluntarily or under legal obligation, that the decision maker misinterpreted the legislation or committed some other error of law, the decision may be set aside. 53

• •

However, if the tribunal's reasons, read in a realistic manner, indicate that it applied its mind to the most important issues, a court will not necessarily infer from its silence about others that it ignored them altogether: Kindler v. Attorney General of Canada, [1987]. It is more usual, though, for a court to decline to speculate whether the tribunal would have decided the dispute in the same way if it had realized that it could not in law rely upon the reasons given

6. Content of Procedural Obligations (Unbiased Decision-maker) The second broad class of procedural obligations associated with the common law, Charter s.7 and the Bill of Rights is the right to an unbiased decision maker. Here the material deals with bias stemming from individual conduct (attitudinal bias or prejudgment; pecuniary interests; past conduct etc.). Here too there are tests for exactly what rule barring bias applies to a given administrative decision-maker. There is not just one universal standard, especially when it comes to alleged prejudgment or attitudinal bias. These readings will help you understand what the tests are and where they apply. The materials also deal with “independence” or institutional bias. A word of warning: do not rush to the assumption that independence rules flow from all instances where procedural entitlements might be owed. It would be wrong, for example, to urge that where a statute creates an administrative regime that you think is insufficiently independent, common law procedural fairness can be used to attack this arrangement. Be attentive to the discussion at 547 and 548. The common law cannot prevail over a statute. And so, your independence argument would have to be based on a s.7 Charter or Bill of Rights source, assuming these are even triggered. • • •

• •

•

•

Everyone has some biases, so this principle cannot be absolute. Indeed, certain decision-makers are chosen based on biases – e.g. SCC judges chosen for their “commitment to Charter values.” The principle comes from the latin nemo judex in causa propria sua debet esse – “no one ought to be a judge in his or her own cause.” The inquiry then becomes what levels of advocacy or adherence to particular causes or points of view should be seen as disqualifying. But, it is also concerned with associations that are likely to produce predispositions – professional, familial, or other personal links with the persons/groups (and their advocates) who are parties to the proceedings or who stand to benefit or suffer from the result. There is also the possibility that the biased, but altruistic, decision-maker will err against the predisposition in an attempt to be impartial. How does one know that actual bias exists? This would be an inquiry into the “state of mind” of the decision-maker. This is not only next to impossible, but to evaluate it (by testimony and crossexamination of the adjudicator) would violate many principles of decision-making. As a result, the court tries to objectively assess whether the particular situation is such as to give rise to a sufficient risk that an impermissible degree of bias will in fact exist. In fact, in the case of a direct stake in the outcome, that has always been enough to disqualify a decision-maker regardless of mitigating circumstances. The objective approach also reflects the policy that the public should have confidence in the process: “It is of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done.” (Lord Hewart CJ in R v. Sussex Justices, ex parte McCarthy, [1924]) Sliding scale – The courts tolerance will also vary with the statutory context. What may seem dictated in the case of a generalist superior court operating within a system of a strict separation of functions and presiding over and deciding cases in solitary splendour in the context of the adversary system may not be appropriate for all the great variety of administrative agencies that are subject to the dictates of procedural fairness. Adjudication may only be a small part of the range of functions performed. The members may be appointed from and continues to operate in a

54

•

small community of experts or peers and may be expected to engage in collegial or collective decision making. Their processes may be far less adversarial and more inquisitorial and activist. Their decision making may have an explicit and high policy content. For example, municipal politicians may deserve more latitude than human rights adjudicators. On the other hand, previous involvement may not disqualify someone from sitting on a disciplinary board of a profession or on a peer tenure committee. The issue of bias has been largely left to the common law, except in cases where the statute specifically mentions qualifications or disqualifications. However, constitutional norms have arisen that may supersede the common law or statute in either direction.

Committee for Justice and Liberty v. National Energy Board (1978 SCC): The general test for bias is spelled out by de Grandpre J.: "The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining therefrom the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.'" Metropolitan Properties v. Lannon, [1969] Lord Denning : “The court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if a right-minded person would think that, in the circumstances, there was a real likelihood of bias on his part, the he should not sit. And if he does sit, his decision cannot stand.” Subsequent House of Lords judgments have characterized the standard as a “real danger rather than a real likelihood” which means “more than a minimal risk, less than a probability.” R v Gough [1993] Std of scrutiny is the same whether the target be justices, tribunal members, arbitrators or jurors. Not necessary for the test to require that the court look through the eyes of a reasonable man – the court personifies the reasonable man. Per Lord Goff - Test is a real danger rather than a real likelihood to ensure that court is thinking of possibility rather than probability of bias. Lord Woolf – court does not inquire in a majority of cases into whether actual bias exists but that the maxim that justice must not only be done but be seen to be done applies. R v Inner West London Coroner Ex Parte Dallaglio [1994] LJ Brown summarises Gough propositions: (1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts. (2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of justice `not manifestly and undoubtedly being seen to be done', may, following the court's investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger. (3) In reaching its conclusion the court `personifies the reasonable man'.

55

(4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By 'real' is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility. (5) Injustice will have occurred as a result of bias `if the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take `unfairly regarded with disfavour' to mean `was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'. (6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased. (7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias. (8) It is not necessary to demonstrate real possibility of bias, whiat must be established is a real danger of bias having affected the decision in the sense of having caused the decisionmaker, albeit unconsciously, to weigh the competing considerations, and so decide the merits, unfairly. Antagonism during the hearing Most common manifestations are unreasonably aggressive questioning or comments about testimony. Yusuf v Canada (Minister for Employment and Immigration)(1991) Members of a panel on Board engaged in injudicious x-exam (involving harassing and unfair comments) of a Convention refugee claimant as well as directed gratuitous and irrelevant sexist comments at her. Behaviour could be seen as coming as much from attitude to claim as personal dislike for claimant. Particularly significant where panel’s role was confined to determining whether there was a “credible basis” for claim being advanced and where claimant was the only withness. Sparvier v Cowessess Indian Band No. 73 (1993) antagonism directed by member of the tribunal towards person whose election was being challenged arose from prior dealing between member and winner of the ekection. Indicated a predisposition toward the outcome of the appeal. Baker v Canada – antagonism may also be in writing – antagonism toward a party or lack of sympathy for legislative objectives. . Brett v Ontario (Board of Directors of Physiotherapy) requirement of balanced and proper behaviour not confined to designated decisionmakers but also reaches lawyers who are employed to assist a tribunal at a hearing. Conduct of lawyer led to quashing of the decision (counsel had advised lawyer presenting case against the member when to object to questions and when to put forward arguments in favour of the “prosecution”). Cromex Nickel Mines v British Columbia (Securities Commission) (1992) Allegation of bias was resisted successfully – Chair had admonished counsel for making mean comments about commission and superintendent of brokers. Court will not inhibit tribunesl from controlling own proceedings to ensure they are not too long and to ensure participants conduct themselves appropriately – this may need firmness and sometimes expressions of disapproval or anger. Association between Party and Decisionmaker - there may be a category of association between the decision-maker and one of the interested parties, interested persons. E.g. Convent of the Sacred Heart v Armstrong’s Point Association and

56

-

Bulgin – co-owner of a residence was the member’s wife who was a member of the executive of a ratepayers group that opposed the modification – decision quashed. The rule against bias would generally prohibit the decision-maker from hearing a case involving a friend, a business colleague, a family member, close professional associate, even a rival -- all of the kinship type of relationships but there are other types of relationships happening in administrative law context due to unique nature (often highly specialized) of tribunals in admin law we need some flexibility with respect to bias, because of this unique structuring of admin tribunals: the Dylex case:

Marques v. Dylex Ltd. (1977) Ont. Div. Ct. - the guy worked at the law firm and had represented a Union in the proceeding; now he was a member of the board certifying that Union. - Court: it is not a sufficient ground to disqualify the board member; - You look at the unique nature of administrative tribunal; the government looks to people with such a background in making appointments. Most if not all of those appointed, are bound to have some prior association with parties coming before the Board; So if you have a category of association between the decision-maker and a party, it is not sufficient to have some degree of professional relationship; a stronger degree of connection, relationship or emotional attachment is required to establish bias due to the unique nature of admin tribunals Ontario Hydro v Ontario (Ontario Energy Board) (1994) court held that board could not employ as a counsel at a Ontario Hydro rate hearing, the lawyer who acted for Ontario Hydro from 1976-86 in such rate hearings. Note – application made by Ontario Hydro on basis that it was a conflict of interest not bias. CNG Transmission Corporation v Canada (National Energy Board) 1992 representative of CNG at a meeting was also former chair of the board. He had not gone thru board’s secretary to request meeting but contacted the present chair personally. Court held that if anyone else had approached, the present chair would have refused the approach. Involvement of Decision Maker in Earlier State of Process Committee for Justice and Liberty v. National Energy Board (1978 SCC): the concern is whether the decision-maker has prior involvement in the proceeding with the issues of the parties; also test for the reasonable apprehension of bias Facts: involves the committee for justice seeking to disqualify the chairman of the national energy board from presiding over a hearing; the national energy board was considering an application for permission to build the pipe-line; Marshall Crowe was a chairman. The committee for justice alleged that he was biased and he should be disqualified because he was involved in the development of the very proposal that was under consideration; before becoming a board member he had supported the pipe-line project; he helped to draft some of the terms of the application and was involved in the issues like the routing of the pipeline. - Supreme Court: Laskin CJ agreed that Crowe’s commitment to building a pipeline gave rise to reasonable apprehension of bias regardless of whether these decisions were taken before his involvement: “The vice of reasonable apprehension of bias lies not in finding correspondence between the decisions in which Mr. Crowe participated and all the statutory prescriptions under [the Act]… but rather in the fact that he participated in working out some at least of the terms on which the application was later made and supported the decision to make it.” reconcile with the Dylex decision where the court said that that was a specific reason why we appoint specialists on boards – so that they could use their expertise, knowledge, etc.:

57

1. in this case the guy was very much implicated in the proposed decision (he has already made a decision by drafting the planning documents, etc.) that he had to approve of 2. in the Dylex case he was just a member of the firm which was prounion; 3. Issue: both operate as a tri-part tribunals so should not it be the same decision? More usual situations of prior involvement is where decisionmaker has in same or another capacity already heard the matter before the tribunal or been involved with the investigation and decision to proceed with the matter being held. Township of Vespra v. Ontario (Municipal Board)(1983) Follow up from Innisfil SCC decision meant application still pending. Application to annex land in Vespra still outstanding. Hearing began again in 1986 and same members of board that had made the previous decision in 1976. Board refused to accept any new evidence because of a deadline imposed by Statute. Vespra objected because of reasonable apprehension of bias. Court agreed. “can the decision maker draw back from the positions expressed in that fashion and to bring in an impartial mind to bear on the issues to be determined” Court found no. Law Society of Upper Canada v French [1975] Governing body is Convocation (the benchers) and allegations of misconduct heard by disciplines committee. Discipline committed heard misconduct allegations against F and found him guilty of 7, recommended suspension. Convocation met to consider recommendation and 2 disciplines committee members present. F objected to their participation. F argued that proceeding in Convocation was essentially an appeal from disciplines committee. So the 2 disciplines committee members on Convocation created an apprehension of bias. Spence J concluded that Convocation was not considering an appeal. It was a single proceeding in 2 stages – first – inquiry and investigation by disciplines committee (results of which are in the report to Convocation) and second, consideration and disposition of the report by Convocation. So no basis for members of the disciplines committee to be excluded. Laskin J disagreed – the 2 members of the disciplines committee should have abstained from participation in proceedings – to preserve the principle of impartiality. In dissent, Laskin said that it should not matter whether it was technically an appeal or not given that it was a separate proceeding to consider and allow French to challenge the previous findings of guilt. Later, in Emerson v Law Society of Upper Canada [1984], the finding that it was one single proceeding meant that the rules of natural justice must be followed to a judicial extent even at the committee level. disbarment which Convocation imposed Statutory Authorisation Common response to allegation of bias by prior involvement is statutory authorization defence. When you have the governing statute create a scheme that provides for the possibility of bias. Happens when a regime is set up where administrative agency has a dual or a number of competing functions. Brosseau v. Alberta (Securities Commission)[1989] Facts: the lawyer is being investigated for securities crimes; he alleged that the commissioner was biased and should be removed; he alleged that the chairman participated in the investigatory stage and therefore should be removed from the adjudication stage

58

SCC L’Heureux-Dube J.: - relied heavily on the fact that the enabling legislation confirmed the overlapping roles on the ASC; - ASC was established by the Parliament to act in different function: investigation, constitution and adjudication; - Constitutionality of the statute was not an issue; - “in assessing the activities of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of “reasonable apprehension of bias” per se”. - she relies heavily on justifying this through the enabling statute creation of conflicting further interests; - so the mere fact that the commissioner was involved at the investigatory stage, and later at the adjudicative stage, does not automatically disqualify him when those were his statutory duties; - the allegations has to go beyond acting with his statutory duties; - when the person is mandated by the statute to do his statutory duties, you will need to have something more than what the statute has purported as the official capacity; - emphasised the practical reality that such commission have repeated dealing with certain companies, such entities and parties, so that time and again such entities will be before the tribunal – so by its very nature the admin agencies can have an overlapping functions; - In Re W.D. Latimer Dubin JA found that the structure of the Act whereby commissioners could be involved in both the investigatory and adjudicatory functions did not, by itself, give rise to a reasonable apprehension of bias. - In this case Judge agrees – so long as chairman didn’t act outside his statutory authority and as long as no evidence to show involvement above and beyond mere fact of fulfilling Chariman’s statutory duties, no reasonable apprehension of bias exists. E.A. Manning Ltd. v. Ontario Securities Commission (1994) Facts: OSC drafts staff report which discusses complaints against penny stock dealers. OSC issues Policy Statements which says that penny dealers are bad & names Manning & Ainsley. Policy Statement later struck down by Ainsley decision as OSC had no statutory authority to make binding Policy Statements. Manning claims PF violation b/c of bias due to earlier policy statement - argues that no hearing can ever be held. OntDivCt Holding: OSC prejudged case before Notices of Hearing. Any pre-Dec93 Commissioner had reasonable app of bias & could not sit on panel. Okay for staff to investigate & decide penny stock dealing was bad - not okay for staff to issue binding Policy Statements. Brousseau distinguished as OSC never had statutory authority to issue biased binding Policy Statement. OntCA Holding: Affirms most of OntDivCt holding. • No Corporate Taint: any pre-Dec93 Commissioner tainted by RAB, but anyone appointed after Dec93 was okay. • Presumption of Impartiality and Fairness: New commissioners allowed to sit on panel. No corporate taint - bias is attitude of mind unique to individual (note later cases which sort of overturn this). • MONTGOMERY J (Dunnet and Howden JJ concurring)—trial. o Even if OSC staff tried to separate their investigative role from the Commissioners' role as adjudicators, the roles have become so interwoven that there is a reasonable apprehension of bias against all Commissioners because  the creation and adoption of Policy 1.10  mass of complaints specifically regarding Manning Limited and others in the staff report  the material led by the OSC in Ainsley

59

In a press interview, the Chair of the OSC, Mr. Waitzer, stated that their job is to get rid or regulate penny stock dealers –Mr. Waitzer cannot sit on either hearing because of a reasonable apprehension of bias. o The OSC (both staff and Commissioners) were acting within the ambit of their statutory duties in assembling and considering information in respect of a certain segment of the securities market. But in using that information to conclude that the securities dealers (including Manning Limited) were in fact engaging in the practices alleged in Policy 1.10, and now in the notices of hearing, the Commissioners prejudged the case. DUBIN CJO (Labrosse and Doherty JJA concurring): o Disqualification by Reason of Corporate Taint o There was no evidence of prejudgment on the part of the new Commissioners since they were not involved in the consideration and adoption of the Policy Statement o Mr. Waitzer's comment about getting the penny stock dealers into the self-regulating system is clearly a reflection of his ideal solution, which is a solution he advocates for all players in the market.  In making the comments complained of here, Mr. Waitzer was fulfilling his mandate as Chair of the Commission  Therefore, no bias—Waitzer and other commissioners can sit on the hearing o Bias Resulting from Commission's Defence in the Ainsley Action o It was the Commission staff, along with counsel, who were responsible for assembling the materials that formed the basis of the Commission's response to the plaintiffs' allegations in the Ainsley actionso no bias for commissioners o Even though the tribunal believed that the assertions in the defences were true, it is not reasonable to fear that the members of the tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s. 17c inquiry. NOTES o Caccamo v. Canada (Minister of Manpower & Immigration) [1978] 1 FC 366 (CA) at 373:  if all eligible adjudicating officers are subject to the same potential disqualification based on financial bias, the law must be carried out notwithstanding that potential disqualification o

•

•

Quebec Inc. v. Quebec (Regie des permis d'alcool) [1996] Facts: Regie revokes company's liquor permits. Company argues that Regie's multiple functions violates Quebec Charter, s.23 req't that tribunal be both "independent & impartial". Rule: Institutional Bias test looks at "substantial number of cases". Where statute does not explicitly prohibit or allow the same lawyer/Director to investigate, prosecute & draft reasons, the tribunal must put in place procedural safeguards to ensure that the same person does not wear multiple hats prevents RAB. Holding: Regie must change internal operations to ensure that same person doesn't wear multiple, conflicting hats. Statute lives on, as it doesn't inherently violate Quebec Charter. MacBain v. Canada (Human Rights Commission) (1985) FCA Issue: Can statutory authorization of bias be abrogated by the Bill of Rights if your "obligations" are being determined? Facts: P complained that McBain discriminated against her on basis of her sex during employment. Commission appted staff member to investigate, after report, the Humarn Rights Commission decided the complaint was substantiated and appointed a tribunal from a list (established by s.39 of Act). McBain claims PF violation due to bias in HRC statutory structure - Commission investigates, prosecutes complaint for hearing & appoints Tribunal to hear complaint. Holding: Bias found as prosecutor responsible for appointing decisionmaker & investigating complaint. Commission determines whether complaint is “substantiated” and then the Tribunal must 60

make the same determination. Problem is statutory under CHRA. Bill of Rights used to challenge CHRA b/c (1) federal statute and (2) case about "obligations". Rule: Statutory authorization of bias permitted, unless constitutional or quasi-constitutional challenge can be made. Cf Idziak v Canada where minister of justice could decide to approve an extradition request and appoint an agent to prosecute at extradition hearing and, if the extradition judge decided to issue a warrant, for the minister to decide whether to surrender that person over. Held this wasn’t contrary to s7 of Charter and principles of fundamental justice. Noted the buffer provided by extradition hearing and political nature of minister’s discretion not to issue warrant. No basis for claims that dual roles unconstitutional. Attitudinal Bias Paine v. University of Toronto (1980) An example of attitude towards the outcome as well as antagonism towards the party and decision maker being involved in an earlier stage. Facts: prof. Paine was denied tenure and in the review process the faculty sent written reviews. One of the reviews was very negative. After these written reviews were called, the panel was put together to consider the application. The author of the negative review was invited to join the tenure penal. Paine reviews the decision after going through 2 internal appeal processes. Divisional Court: - there was a breach of procedural fairness due to the fact that the author of the negative assessment was given a role on the penal, and when he took that role on the penal, he already formed his opinion; - so there was a reasonable apprehension of bias due to his earlier involvement and attitude towards the outcome; Court of Appeal allowed UoT’s appeal: - they looked at the very specific context of this administrative tribunal; look at the contextual factors: 1. you have to get assessment of piers; 2. the presence of the member with negative assessment does not violate the procedural fairness 3. members who form the tenure penal use their knowledge to the assessment process (unlike a tribunal which only acts on evidence placed before it) 4. Only 5 of the 7 members need to recommend tenure – not one member approved his application. - court also looks at the internal structure of the process: there was no finality at the penal; two more appeals were available and he was rejected at both; - the presence of the negative assessment does not amount to the breach of the procedural fairness because there is another level of appeal; - also noted that the parties in this case had contractually agreed to have their dispute resolved in a certain way. - The Baker case established that the rule against bias applies to all officials who play a significant role in the decision making process; Note – Court of Appeal seems to be requiring “manifest unfairness” or flagrant violation of PF here – high threshold. Deferring to uni processes here? Great Atlantic & Pacific Co. Of Canada v. Ontario (HRC) (1993) (the "you were a prior activist on sex discrimination, so you can't be appointed as a Human Rights Commissioner and adjudicate this case on systemic sex discrimination" case)

61

Facts: a systemic gender discrimination case launched by the female employees of A&P. The cashiers had a pay equity type of complaint going before the HRC in late 80s early 90s. Commission did an extensive investigation, and referred it to the board of enquiry for hearing. The Board of Enquiry was chaired by Constance Backhouse. C. Backhouse (CB) is a prominent law professor and written extensively in the area of gender discrimination. At the same time in her personal capacity prof. CB was also a party to a systemic gender human rights complaint. She was an executive member of the complaint (against Osgoode for not appointing Prof. Mossman a dean). CB set on the executive committee of the class action (Osgoode) committee. In 91-92 she is appointed to the Board of Enquiry on A&P case. We have A&P challenging her sitting on the BoE saying that she is biased on two grounds: - she is a feminist advocate; she’s written extensively in the area – she is biased; - she is in a personal capacity a complainant in the systemic gender discrimination case and is sitting on the executive committee; Divisional Court: - An individual that has a prior history of activism in a certain area does not automatically exclude them for bias - But she was biased because she could define the A&P case to create a precedent for the case she was involved herself; - it is uncharted territory; - the reasonable apprehension of bias was operating in this case because of her affiliation with the existing systemic gender discrimination case; - they found that she was disqualified from hearing the A&P complaint because her own complaint existed at the same time; Reconcile the case: - she was a party under the Human Rights commission at the time when she was hearing the complaint herself Large v. Stratford (City)(1992) Facts: also a human rights situation where a human rights adjudicator was sitting on a mandatory retirement case; an employer moved to disqualify him because he, after dealing with the merits and before dealing with the damages, he gave a public speech in his personal capacity against the mandatory requirement; the employer judicially reviewed on the basis that he was biased and should be disqualified. Divisional Court: - the court commented that HR is a sensitive area of public policy therefore we need adjudicators who are knowledgeable and experienced in human rights; - his comments did not violate the standards of administrative neutrality; - human rights tribunal was drawn from those who had experience and understanding of human rights issues - yo exclude everyone who ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy; - in this case he did not need to decide on general desirability of a mandatory retirement age – he had to decide whether the evidence established that retirement at 60 was a bona fide occupational requirement of the Stratford Police Force. - Not like Committee for Justice and Liberty where adjudicator involved in the corporate pipeline study whose conclusions were in issue before the tribunal. Not like Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) where adjudicator demonstrated he had a closed mind on the subject in issue. Pecuniary and other material interests

62

Energy Probe v. Canada (Atomic Energy Control Bd.) (1984) FCA Facts: - AECB was considering application by Ontario Hydro to renew the operating licence for a nuclear generating station operated by Ontario Hydro; Energy Probe objected to the participation of one board member, Olsen - they alleged he was a president of the company that supplied cables to the nuclear power plant; he was also a member of the several organization that supported the use of nuclear power; - Energy Probe alleges that because of this bias, he does not fit on this case; - The Energy Board rejected the bias objections and renewed the licence. Reed J. (trial decision) - the board in dealing with exercising of a licensing decision should act in a manner that upholds the duty of fairness; - only a direct pecuniary interest will constitute bias - she recognizes that the duty of fairness includes the rule against bias; so that there is no doubt that there is a requirement that the Energy Board provide an impartial decision making; - is Mr. O an impartial decision-maker because of his interest in supplying the cables to the plants? If the decision is for renewal of the licence, will he benefit from the decision? - The rule is that the direct pecuniary interest, no matter how trivial, constitutes bias; - She concludes, though, that there was no clear likelihood that with issuing of the renewal license he will benefit by selling cables; there is a bid process, before they purchase cables; even if they are able to renew the licence, there is no direct link between this and Olson selling cables - Such a contingent expectation does not constitute direct pecuniary bias - there is a need to find a direct nexus in accordance with this decision - There should be a direct link between the decision making and pecuniary interest FCA approved this decision; - A contingent interest of potential and uncertain pecuniary gain does not constitute bias - However, we have Marceau J. who concurs on the basis of different reasons: - his reasoning is later applied by SCC jurisprudence: - The trial judge seems to rely on drawing a straight opposition between “pecuniary bias” and “reasonable apprehension of bias” and on the idea that only a “direct” or “certain” interest will constitute “pecuniary bias”. On this basis she technically ruled against the claimant that (1) the pecuniary interest was too remote and (2) she could not consider “reasonable apprehension of bias” because it had not been pleaded. - he does not agree with what “direct” means; he says it is too narrow - The idea of “directness” should not be given such a strict and narrow interpretation that any indirect or uncertain advantage can be ignored. It is more like remoteness. - even an indirect benefit should give rise to bias; - analysis: you should look at the interest that flows from the decision, be it direct or indirect, at the degree of relationship: how remote, how contingent, how effective is the interest; - the only requirement should be that the benefit that comes from the decision would have enough of an effect to colour the case in the decision-maker’s eyes; - If one believed the statement that Olsen had a “reasonable expectation of pecuniary gain” as the trial judge said, then there would be pecuniary bias. However, the evidence does not support that finding. - but he agrees with the outcome: in this case expectation of the pecuniary gain was too remote and too contingent from the removal of licensing decision (licences at issue were only operating licences and Mr. O’s company could expect no extra business as a result of their approval. Mere possibility that a profit could be realised in future out of other contracts awarded in course of construction of other units was too aleient contingent and remote to constitute pecuniary bias.

63

Pecuniary bias and reasonable apprehension of bias are not separate categories, “apprehension” is simply the language used with regards to non-pecuniary interests. However, no other interest than a pecuniary one was alleged here. Also noted that although law of bias was developed with regard to exercise of judicial or quasijudicial functions so that it was easily extended from courts to tribunals and other bodies called upon to determine questions relating to civil rights. No authority that it has to be applied to a purely administrative forum like the board – which doesn’t deal with private rights and has no adjudicative powers and no resemblance to a court. – SCC agreed later that judicial or quasi-judicial functions not a prerequisite for challenge on basis of bias. Burnbrae Farms v. Canadian Egg Marketing Agency [1976] (FCA) – The CEMA withdrew Burnbrae’s license, but some of the members of the board were egg producers from other provinces and their interests conflicted under the marketing scheme with Burnbrae’s. However, the legislation required at least 7 out of 12 members to be producers in other provinces. Jackett CJ: “In such a statutory scheme, it does not appear to me that an apprehension of bias that is based only on the fact that some of the members have, by virtue of the part of the country from which they come, a business background with economic interests that conflict with those of a particular licensee whose licence is in jeopardy can be regarded as a disqualification.” Moskalyk-Walter v. Ontario (College of Pharmacy) (1975) (Ont Div Ct) – The College imposed a suspension on MW in Fort Erie, a town of about 7,500. One of the members who participated in the hearing owned one store in Fort Erie and operated another. MW successfully appealed on bias. Pearlman v. Manitoba Law Society [1991] 2 SCR 869 - The SCC summarily rejected that a professional discipline committee composed of fellow members was structurally biased because of self-interest of the members in reducing competition by way of suspending or expelling others. Variations in Standards -

How rigorously or stringently the rule of bias will be applied depends very much on the nature of the tribunal. The rule against bias is applied more leniently in cases of elected administrative bodies or admin bodies that deal primarily with socio-economic policy matters. The members of regulatory board and municipal counsellors are not disqualified simply because they have strong public views about political issues that are being investigated by adjudicators; We should distinguish between pre-commitment to policy issues versus a conclusive prejudgment about issues; historically the rule about bias did not apply to the admin entities; but with the development of the doctrine of natural justice and the principles of procedural fairness, the attitude and actions of admin decision makers became subject to scrutiny for bias under the duty of fairness; why are there variations in the bias rule? when tribunal is performing adjudicative role, disposing of dispute, the full force rule about bias will apply; when we explore the lower, more lenient standard that applies to admin tribunals, that are functioning in more of a policy or regulatory capacity; we see this variance emerging in the following two cases: Old St. Boniface Residents Ass. Inc. v. Winnipeg (City) and Save Richmond Farmland Society v. Richmond (Township) both cases involve municipal councillors participating in re-zoning proceedings, where each councillor had publicly supported one side before the municipal hearing; The question that SCC had to address was whether the councillors’ public support gave rise to the reasonable apprehension of bias;

64

-

In each case the majority of the SCC refused to apply the conventional RAB test; The majority held that the standard rule against bias should be varied depending on the nature and the circumstances under which the decision making was occurring

Old St. Boniface Residents Ass. Inc. v. Winnipeg (City) [1990] SCC - The variance in standard is emerging: - is the councillor biased? Sopinka J. for majority - duty of fairness is a flexible standard - rule against bias is a component of the duty of fairness, so it is too a flexible standard - the factors that one considers in assessing what level of duty of fairness accrues and what standard about bias should apply: 1. the terms of the statute; 2. the nature of the decision maker’s function; 3. type of the decision being made - analysis of what type of rule should apply to the municipal councillor: 1. given that municipal councillors are elected on the basis of their position and they must give effect to campaign promises, they are political beings and legislature could not have intended to apply strict rule of impartiality on decisions made by municipal councillors; 2. he distinguishes between partiality on basis of pre-judgement and on basis of personal interest. He suggests that for the municipal councillors some degree of pre-judgment is inherent in the nature of their municipal duty; (municipal officials having been elected, having campaign promises, formulated opinions about policy, etc., and particularly in issues that are controversial, the public should know that the councillor will have a strong opinion, that’s why they were elected, issues that they used in their campaigns) - since we anticipate some level of pre-judgement, the standard that should be applied to municipal councillors and other officials on that line, between the legislator, policy maker and adjudicator, the standard should be flexible - He articulates a “pre-judgment” standard: 1. For disqualifying someone who is between legislator, policy maker and adjudicator, you have to establish that the pre-judgment he/she holds in the matter is so firm or fixed that submissions or representations to the contrary will be futile; that the decision maker formed such a strong views that that view cannot be dislodged - We are adapting the rule about bias test to allow for the strong opinion on public policy issues; and you will not be disqualified for having expressed such opinion, unless you form a final opinion that cannot be influenced or persuaded. - the conventional rule against material bias still applies to municipal councillors; if municipal councillor has a conflict of interest, (pecuniary interest, etc) then definitely conventional rule will apply. - In this case – no evidence to suggest any relationship with developer – he had previously supported the development on merits. Lower court found that there was no personal interest. Therefore this is a prejudgement case – and councillor has not prejudged the case to the extend that he was disqualified. Save Richmond Farmland Society v. Richmond (Township) [1990], SCC - a very similar case; the rule against bias continues to evolve; - Councillor expressing strong opinion about the zoning issue; - The interest wrinkle in this case is that he says he will listen carefully at the hearings but likely will not change his mind - Majority applied the “pre-judgement” standard and dismissed the appeal -

65

Minority judgment (La Forest J.) in response to the judgment of the C of A (one of the judges expressed the view that the bias test for public officials is whether those individuals are amenable to persuasion – whether they still have an open mind) - if we use open mindedness or open to persuasion test, he would have passed this test - he says this approach is unrealistic – a lot of politicians are posturing about their openmindedness - he fears that if we use the amenable to persuasion test, we will have politicians saying that they all are open-minded; - he prefers close minded test – it is more realistic to expect decision makers in the policy arena to come to the decision with some level of pre-judgment, some level of firm opinion; - the theory behind the rule for officials in public arena: if we elect or appoint officials because we believe in their policies, because we believe their opinions are firmly taken, we do not expect them to leave them at the door and check them before they go into a hearing process. - When you have people like municipal councillors who are elected as a political entity, function like a legislator by enacting by-laws, and a policy reformer, and while holding an adjudicator capacity, what level of bias or impartiality do we expect? - "Closed, But Not Corrupt" Test: Closed mind is okay so long as closed mind is not the result of corruption, but of honest opinions strongly held (and best interests of community are at heart). - Note: you should be guided by the “pre-judgment” test - When you are faced with a hybrid type situation, like a municipal councillor, it is acceptable that there is some degree of pre-judgment on policy and planning issue, that is permissible; - Both minority and majority are prepared to accept a variance in the bias standard; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)[1972] SCC - same dilemma of a public official in the policy regulatory field with a very strong opinion; - classic public utility body (sets rates, tariffs, has lay people on the board, has technical people as commissioners and board members and wants a diverse range of representative on the penal or board commission, that fuels the policy directions) - here SCC was faced with the same question about what standard of bias you should apply to the member of a regulatory board that has before the hearing expressed very strong opinion about how the issue should be decided - you have to recognize a unique nature of the administrative body: 1. appointed officials because of their technical experience or knowledge or technical and economic or financing background and knowledge; 2. they are usually appointed because they are recommended by prominent members of a particular spectre of the industry or community; 3. in this case there is also a lay person, representing the effected community; who is there to represent the average person’s interest; - the person that was being challenged for bias was on the board as a long time advocate of consumer rights - he spoke publicly about his support for consumer rights in telephone rates area, he had a strong opinion about salaries, pensions and benefits of executives of the telephone company; - pensions and salaries were exact issues that the board had to consider (cutting back in the context of rate setting) - He is one of 5 on the board when he made these public comments (before the hearing, in the media); - He continues to make such types of public comments after the hearing began; - At the hearing the telephone companies object against him being a member of the board, claiming that his comments constitute a reasonable apprehension of bias; - SCC, Corry J. (for unanimous court): - A member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. But this

66

doesn’t mean there are no limits to the conduct of board members. In the end, they must base decision on the evidence before them. They may draw upon relevant expertise and background of knowledge and understanding but must be applied to the evidence before the board. - He sets out a spectrum of different evolutions of bias (variation of bias depending on entity): 1. what type of bias would apply to adjudicative, court-like entity – very high bias standard; there must be absolutely no bias; when you are dealing with the adjudicative entity, you expect them to comply with the full bias rules; 2. administrative, dealing with matters of policy – more like legislative entity -- if you apply the strict RAB test to these entities, you may undermine the purpose of its very being; you need more lenient bias standard (reflects back to Old St. B case – where you have board members who are elected officials -- pre-judgment standard – you would need to show that the person had prejudged the matter to the extent that any representations to the contrary would be futile); decision makers at this setting are not barred from expressing strong opinions; they are entitled to rely on their experiences and expertise; and we expect such people to base their decisions on their knowledge and the evidence and that is the very reason we are voted for them and supported them; 3. no matter what the entity, we have to be guided by the statutory context: 1. in this case the board is a regulatory board made up of diverse members, representing a wide range of community interests and industry experiences as well; 2. he looks at the opinions prior to the hearing: comments did not indicate a closed mind; for the pre-hearing stage the test he applied was whether the closed mind was still amenable to persuasion; and he concluded that Wells did not exhibit a reasonable apprehension of bias at that stage; 3. however for the hearing stage, when Mr. Well continues to make comments that indicate he has already made up mind, the court finds that he crossed the line as the result of these statements; it would have been prudent for him to stop making public statements once the hearing commenced; the traditional reasonable apprehension of bias test applies; - the consequences of finding the bias: 1. void the decision and nullified the hearing process – creates so much damage to the duty of fairness that we have to start from scratch; 2. “if there has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision” – even if you were to conclude that the decision of the board was correct, the existence of the bias notwithstanding the correct decision, nullifies the process. Lessons: - there is no formula of bias to be applied to all decision makers; - there are variances in the standard of the rule of bias and the test is depending on the function being performed; - and the function being performed always takes you back to the statute; In this line of jurisprudence a court is prepared to apply a lower standard for elected officials or members of policy-oriented tribunals; -

The first step in the test is to look at the nature of the power and decision making; Then look at the pre-judgment standard, the opinion to see if there is a degree of finality in that opinion; does it evince a close-mindedness, so that submissions or representations to the contrary would be futile;

67

Claim of apprehended bias by a former prime minister (Chretien) and his chief of staff (Pelletier) against retired supreme court judge (Gomery) heading an inquiry into alleged mismanagement of govt funds. The extensive media coverage of the commission of inquiry helped in the minority govts electoral defeat in Jan 2006. Pelletier v Canada (Attorney General) (2008) Facts: Gomery granted media interviews during course of inquiry. Chretian asked Gormery to recuse himself based on certain comments made in media. G dismissed motion and issued report setting out commissions findings. C and P sought judical review to set aside commissioner’s findings on basis of reasonable apprehension of bias. Court held that C and P entitled to high degree of fairness due to potential damage of findings to their reps. Court applied the reasonable apprehension of bias test and dound that there is sufficient evidence to find that an informed person, biring the matter realistically and practically and having thought the matter through would find a reasonable apprehension of bias on the part of the Commissioner. G’s comments indicate that he prejudged issues and was not impartial towards C and P. The media is not an appropriate forum in which a decision-maker is to become engaged while presiding over a commission of inquiry, a trial or any other type of hearing or proceeding. Indeed the only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or she is presiding. Comments revealing impressions or conclusions related to the proceedings should not be made extraneous to the proceedings, either prior, concurrently or even after the proceedings have concluded. I stress that even in public inquiries where the purpose of the proceedings is to educate and inform the public, it is not the role of decisionmakers to become active participants in the media. Report is set aside. Independence Independence is different from Bias, when applied to tribunals and decisionmakers. Ask whether decisionmakers are independent enough so that they can make decision w/o fear of retribution. Sethi v. Canada (Minister of Employment and Immigration)[1988] FC Facts: the immigration regime was under revision and the government promulgated the bill to revamp the whole system; and the bill that was considered by Parliament would have effectively fired or terminated all the immigration appeal board members; they would have lost their appointments and they would all have to be re-appointed; Mr. Sethi argued that this situation of first and then second reading was going to create a bias on the part of the tribunal bias; he suggested that the board members would want to favour the political masters if decisions that would make the government happy, keep down the number of refugees; the case was appealed up to the FC; one of the parties to the process was the government itself; Federal Court Trial Division: - found that the proposed legislation would undercut the financial security of the tribunal members – and that created a reasonable apprehension of bias; Federal Court of Appeal: - Reversed the decision of a trial level; - applied a reasonable apprehension of bias test and found that no right-minded person viewing proposed legislation going through parliament would think that the tribunal members would be impartial or loose their independence as a result of it;

68

Alex Couture Inc. v. Canada (Attorney General) (1991) Que. CA - Facts: Alex Couture was merging with another business; they allege lack of independence; they applied the Valente criteria - In order to decide whether the guarantee of judicial independence has been respected, three essential conditions must be analysed: 1. security of tenure - Decisionmakers can only be fired for cause and with certain procedural safeguards. 2. financial security - Decisionmakers who are full-time board members must be paid sufficient wage, so that they are not destitute & open to bribes. Salaries must also be secure & cannot be arbitrarily reduced; 3. Institutional Independence - Structure must be independent - decisionmakers cannot sit on two separate boards in front of which the same individual appears. Judicial independence in its individual aspect is closely related to the guarantee of impartiality: • Impartiality refers to a state of mind or attitude of the tribunal in relation to issues and the parties in a particular case; the tribunal member’s state of mind in a particular case; it connotes the absence of bias; • The concept of independence refers not to a state of mind, but the state of affairs; if it is dependant or independent; is the tribunal independent from the executive? Look at the tribunal structure in practice to determine independence, rather than simply examining the statute - a tribunal may lack independence in theory, but not in practice (CP v. Matsqui; similar to 2747 Quebec?). Where appeal process has never been tested, courts should be reluctant to label it as lacking independence w/o first seeing how it works in action. - all three criteria are assessed against a reasonable apprehension of bias test - the court applies all those criteria and finds that the competition bureau did have sufficient security of tenure, sufficient financial security and enjoyed sufficient independence; Canadian PacificLtd. v. Matsqui Indian Band [1995] SCC Facts: the band has a taxation power; assessed tax against the entity; if entity wants to appeal – has to go through the appeal tribunal, the member of the band sits on the appeal tribunal; the CP claim lack of independence of the tribunal; SCC Lamer C.J.C.: - the Valente criteria applies to admin tribunals when an admin tribunal is acting in adjudicative capacity, settling disputes and determining rights of the parties; - The test for institutional independence must be applied in light of the functions being performed by the tribunal. The requisite level of institutional independence (i.e. security of tenure, financial security and administrative control) will depend on the nature of the tribunal, interests at stake and other indices of independence such as oaths of office. In some instances, a high level of independence is required – eg. Those tribs whose decisions effect security of the person. More flexible approach is warranted on this occ as it deals with assessment of property taxes. - In this case: 1. security of tenure: 1. it was an ad hoc appointment; 2. financial security: 1. members are not paid - so the first two criteria show unavailability of the security of tenure as well as financial security; 3. institutional independence: 1. the tribunal members take oath and it should be sufficient – but the court rejected this argument on basis that tribunal members are

69

-

appointed by the Band Chief and Councils and are being asked to adjudicate a dispute setting interests of the Bands against outside interests. shows vulnerability; no due process re: appointments and remuneration; the third criteria, even though is satisfied, is insufficient to make the tribunal independent;

CJC Lamer disagrees with Spopinka who argues that institutional independence should be assessed in the context of an actual tribunal hearing – thaking he position that institutional independence could arise in the circs of the apopointment of the tribunal members or in the manner in which they conduct their hearings. No – function of institutional independence is to ensure that a tribunal is legally structured such that members are reasonably independent from those that appoint them. Inconsistent to say institutional independence applied in this case but go on to conclude that the lack of institutional independence may be addressed via the exercise of discretionary powers of the Band Chiefs and Councils. 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996]– RE IMPARTIALITY Facts: • After the regie revoked its permit, the company sought a declaration that various provisions of the liquor licensing statute were contrary to the Quebec Charter which provides for an “independent and impartial” tribunal when it acts in a judicial or quasi-judicial function. Decision: Gonthier J • “Impartiality, like independence, has an institutional aspect… ‘therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.’” • The test for institutional bias is, “that a well-informed person, viewing the matter realistically and practically—and having thought the matter through—would have a reasonable apprehension of bias in a substantial number of cases.” This will necessarily be a contextual process having regard for o the circumstances. o the nature of the dispute to be decided, o the other duties of the administrative agency and o how the operational context as a whole will of course affect the assessment • “A plurality of functions in a single administrative agency is not necessarily problematic…[but] it must not result in excessively close relations among employees involved in different stages of the process.” • Role of the Regie lawyers – The Act and regulations do not define their functions, but annual reports and job descriptions show that they review files in order to advise on the action to be taken, prepare files, draft summons, present arguments to the directors and draft opinions. These documents leave open the possibility that the same lawyer could be involved in performing various functions in the same matter. There are no measures to separate the lawyers involved at different stages of the process. The prospect that the same lawyer could make submissions to the directors and then advise them on the same matter is “disturbing, especially since some of the directors have no legal training.”  Without a clear separation of the lawyers’ functions, there would be a reasonable apprehension of bias in a substantial number of cases. • Role of the Regie directors – Similarly, the Act and regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so desires. The annual report also indicates that the involvement of a director in the decision to hold a hearing does not disqualify them from forming part of the subsequent panel.  Without a clear separation of the directors’ functions, there would be a reasonable apprehension of bias in a substantial number of cases. • The problem is not that the Regie, as an institution, is involved in various stages of the proceedings, but that the same persons within it could be. 70

•

This problem of institutional bias did not require amending the statute. It could be dealt with by changing internal rules of the agency. Notes: Note that the relevant act could leave open possibility of operating in an institutionally biased fashion as long as the actual practice can be shown not to be flawed. 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996]– RE INDEPENDENCE Facts: • After the regie revoked its permit, the company sought a declaration that various provisions of the liquor licensing statute were contrary to the Quebec Charter which provides for an “independent and impartial” tribunal when it acts in a judicial or quasi-judicial function. • The directors have only renewable, fixed-term appointments. Decision: Gonthier J • Security of Tenure - Once appointed the directors can only be removed for specific reasons during the term of their appointment. Their appointments need not be for life (like a court of law).  satisfies the minimum conditions of independence. • Contact with the Minister – There are numerous contact points with the Minister, but it is not unusual for an agency to be subject to supervision by a member of the executive.  satisfies the minimum conditions of independence. • The essential elements of institutional independence are summed up as “judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.” Notes: The court seemed to be satisfied that as long as the directors did not serve merely at pleasure, they had enough independence. Compare this to Katz where the fact that members of the board did not depend on that work for their livelihood contributed to their independence. The practice was also to serve until voluntary resignation or death.

8. Content of Procedural Obligations (Issues arising from institutional decision-making) In this part, we deal with an area that has elements of both the right to be heard and the right to an unbiased decision-maker: institutional decisionmaking. You need to understand the concept of subdelegation. The delegatus non potest delegare ('one to whom power is delegated cannot himself further delegate that power') concept sounds like a pretty potent bar on an administrative decisionmaker sub-delegating powers to another actor, but there are so many circumstances where subdelegation is permissible that, really, sub-delegation tends to be important only when certain functions are sub-delegated that offend procedural rules. The concept of “he or she who hears” is an example, tied to the right to be heard. This is an issue that becomes complicated when large, multi-member boards are asked to make decisions that are consistent while at the same time they sit to hear similar cases, but in panels with less than full membership. Another issue for these big boards, when they try to make consistent decisions, is when and where bias concepts are offended. Yet another issue raised by these materials is if these big board can use guidelines to try to standardize decisions. If they do, do they wrongly “fetter their discretion”? (But note that fettering of discretion is a substantive review issue, and so is really governed by the sorts of considerations discussed in the next section.)

71

- Strengths of institutional decisions are ability to make large volumes of decisions and opps to establish internal checks and balances; specialization amoung staff and a sharing of expertise, opinions and perspective. - Weaknesses of institutional decisions are general weaknesses of bureaucracy, esp the large possiblities for anonymity, loss of authority by the senior levels and impersonal treatment of those effected by decision. Objective is to design procedures to combine the strengths of both individual and institutional decisionmaking. Consider the 4 scenarios on page 558 and 559 of text Delegation Delegatus non potest delegare ('one to whom power is delegated cannot himself further delegate that power'). Extent to which an authority may permit another to execise a discretion entrusted by statute to itself. When is delegation permissible? Depends on interpretation of the relevant statute. Prima facie, a discretion conferred by statute is intended to be exercised by the relevant authority and no-one else. I.e. “power delegated to you personally”. But is there other language that means it is “power delegated to you personally or any person authorized by you”. Vine v. National Dock Labour Board [1957]AC488(Eng.HL) Facts: Board allocated dock workers to stevedoring companies. V assigned but didn’t show up. Stevedoring company complained and discipline committee of the board ordered V discharged. He said wrongful dismissal and discipline committee action was void as Board could not delegate its disciplinary powers. • LORD SOMERVELL o Disciplinary powers, whether "judicial" or not, cannot be delegated • VISCOUNT KILMUIR LC: I o It is necessary to consider the importance of the duty which is delegated and the people who delegate. • this duty in this scheme is too important [outlawed from profession for life] to delegate unless there is an express power. • it was permissible if it had stated so in the statute, but that is absent here. • to have authority to appoint someone, it needs to be explicitly provided Morgan v. Acadia University (1985) (NS SC) (p.491) (see text for details) Board of governers has power to effect by-laws resolutions etc re discipline of students. Delegated to Dean. Morgan appealed The nature of the duty required by the scope and objects of the legislation is such that a delegation be envisioned in interpreting the section. Delegation is only fair and practical. King v. Institute of Chartered Accountants (Nova Scotia) (1993) Quasi-judicial functions can only be delegated by express authority. Quashed the discipline committees decision finding K guilty of prof miscond.

72

The principle of non-delegation also requires that all members of the tribunal hearing a dispute participate in a substantive sense in the making of the decision. IBM Canada v. Deputy Minister of National Revenue, Customs and Excise, [1992] 1 FC 663 (FCA), What must be done, however, is that at some point in time, the panel must reach a decision collectively and each member must "participate" individually in that collective decision in agreeing with it or dissenting from it. There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues. In this case – decision not signed by third member. But applicant failed to prove that member hadn’t participated in the deliberations. Power exercisable by chair of the agency. Unless clear statutory language to contraty, the chair cannot be authorized to exercise the agency’s quasi-judicial functions in the sense they entail exercise of sig discretionary and judgemental powers re vital interests of other persons (Volk v Saskatchewan Public Service Commission). But if chair makes a ruling on q of law and other members present at meeting and noone in meeting objects, they may have adopted rulings as their own. (Re Schabas) Deciding without hearing Duty of fairness – general principle that only those members of an agency who hear a particular case may decide it. A person is denied an adeq opp to influence the decision if unable to address directly those who participate in making it. Delegating duty to hear Local Government Board v. Arlidge [1915]AC120 (Eng.HL) Bourough councils had power to make orders to close dwelling houses unfit for human habitation and to revoke if corrective measures taken. Owners have right to appeal to local govt board. This board had power to determine own procedure for appeals, provided it could not dismiss an appeal without holding a public local inquiry. Closing order against A who appealed to board. Board appted an inspector who held public enquiry and made a report. A asked to present case to the actual decisionmaker in board but refused and confirmed order. •

• •

VISCOUNT HALDANE: o Minister at the head of the board is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To do everything personally would be to impair his efficiency. LORD SHAW: o Ministerial is responsible to parliament, but the minister must be able to delegate NOTE o In Canada, some decisions exceptionally require the minister's personal decision

Jeffs v. New Zealand Dairy Production and Marketing Board [1967] l'AC551(NZPC) Board had power to define zones from which factories could get milk. Board set up committee set up to look into supply to two dairy companies. Committee had a hearing and wrote a report with recommendations and the board accepted them without alterations. Farmers argued this was an improper delegation.

73

Court - Clear that board did not delegate to committee the duty of deciding on zoning applications. Committee appted to investigate and report – not charged with duty of collecting evidence for consideration by board. Only material the board heard was report. It had a duty to hear interested parties (this can be by written statement as well) but did not do so. Whether the board heard the interested parties orally or by receiving written statements from them is a matter of procedure. Whether the board appointed a person or persons to hear and receive evidence and submissions from interested parties for the purpose informing the board of the evidence and submissions is also a matter of procedure. But not permissible if credibility of witnesses is involved. In this case, they did not adopt this procedure. Committee not appointed by board or asked by board to receive evidence for transmission to the board. Committee’s report did not state what evidence was and board reached decision without consideration of and in ignorance of the evidence. Board failed to hear interested parties as it was under an obligation to do to discharge oblication to act judicially in determination of zoning applications. Implied that it is permissible to delegate the evidence-acquiring process if credibility is not an issue. Summary is of the relevant evidence and submissions is acceptable if it adequately discloses the evidence and submissions to the board. If there had been a clear delegation of authority and appropriate directions to the committee, it would have been more likely that the process would have been upheld Consultations among Agency Members Whether, and if so, to what extent the duty of fairness precludes members of an agency panel who heard case from discussing it with other members after hearing has ended, but before rendering decision. International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd. (1983), Application by union to board re failure of employer to negotiate in good faith – extent to which employer had a duty to disclose business affairs in course of negotiations for agmt. Previously board had developed a test that imposed a duty of disclosure when employer had made a decision to close a plant prior to or during collective bargaining. 3 members of board held heading and union and employer argued the test should change. Then after hearing, the 3 members discussed with other members at a full board meeting. They upheld existing test and held in favour of union on facts. Employer asked board to reconsider and argued that if any evidence was given at the hearing was discussed with other members or if any opinions of other members considered the decision had been improperly made. DECISION OF THE BOARD: Court noted that the meeting impugned by the employer must be seen as only part of the internal admin arrangements of the Board which have evolved to achieve a maximum regulatory effectiveness in a labour relations setting. Board usually holds that division or panel that hears a case is ultimately solely responsible for deciding it. But, after deliberating over a draft decision, any panel contemplating a major policy issue may call a full board meeting to acquaint them with the issue and the decision they propose to make. Decision still rests with panel and full board discussion is limited to policy implications of a draft decision. Facts set out in the draft decision are not subject of discussion.

74

In defending this consultation process they argue that meetings were important because they were promoting inherent coherency of the decision making. Coherency of the decision making is critical for the labour board with respect to policy matters; “the act the board is operating under, confers a broad discretion to apply a broad rage of principles and a variety of factual situations”. The Board notes that within its area of discretion, this area turns to a significant extent on policy considerations. At this level of admin law, law and policy are to a large degree inseparable. In effect, law and policy come to be promulgated through the form of case by case decisions rendered by panels. It is one of the larges admin bodies and is in business of making law and policy. – these are the policy reasons why you may give deference to the admin agency; SOPINKA J (dissenting) (Lamer CJC concurring): Clear that no evidence introduced to full board meeting but it is not clear what was discussed. Meeting took several hours and no minutes produced and no record of who attended. Have these rules of natural justice been violated: (a) he who decides must hear; and (b) right to know case to be met. Held that given no of board members present and the fact that some impt people participated – the views expressed were potentially very influential. Full board meeting might have affected outcome. The full board hearing violates the principles of natural justice in two respects: • first, that members of the Board who did not preside at the hearing participated in the decision —no opportunity for party to persuade them • Second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there was no opportunity to make submissions Must consider the role of policy in the decision-making processes of administrative tribunals. It has been held in Innisfil that a party may challenge policy by leading evidence and by cross-examination (the traditional methods for contesting fact). Right to challenge policy by evidence has been affirmed by SCC. So if a party has right to attack policy, then to deprive them of opp to present evidence is unfair. This is what happened in the full board meeting. When the rules of natural justice collide with a practice of the Board, the latter must give way. GONTHIER J (Wilson, La Forest, L'Heureux-Dube, and McLachlin JJ concurring): -

in deciding whether or not the consultation process has breached the procedural fairness, the court considered three issues: 1. What was the content of pf owed in the situation? 2. Does the formalized consultation process violates pf by infringing the panel’s independence? 3. Does the consultation process violate parties procedural rights (the right to notice and the opportunity to be heard)?

Agrees that rules of natural justice must take into account institutional constraints faced by an administrative tribunal. Cannot expect them to abide by rules applicable to courts of law. Main issue is whether, given imptce of policy issue at state in this case and the necessity of maintaining a high degree of quality and coherence in board decisions, the rules of natural justice

75

allow a full board meeting to take place and if not whether a procedure which allows the parties to be present, such as a full board hearing is the only acceptable alternative. Rationale to hold full board meetings on impt policy issues: 1. importance of benefitting from acquired experience of all members and promoting exchange of opinions between management and union reps given the tri-partite nature of the board. Rules of NJ should not discourage administrative bodies from taking advantage of accumulated experience of members. 2. large numbers who participate in board decisions create possibility that different panels will decide similar issues in a different manner. Coherence in administrative decisionmaking must be fostered. Full board meetings do entail some imperfections, esp with respect to opp to be heard and judicial independence of decisionmaker. Question is whether the disadvantages involved are important enough to warrant a holding that they breach NJ or whether full board meetings are consistant with these ruiles provided certain safeguards are observed. Agrees that members of panel who make the decision must have heard all evidence and arguments presented by parties. Doesn’t agree with proposition that any discussion with a person who has not heard the evidence necessarily vitiates the resulting decision because this discussion might “influence” the decisionmaker. Employer argues the danger that full board meetings may fetter the judicial independence of panel members. Decisionmakers may discuss with collieagues and that, in and of itself, won’t be an infringement of their capacity to decide issues at stake independently. Decisionmakers may change their minds – whether this comes from discussions with colleagues or their own reflections on the matter. Decisionmaker can be swayed by the opinion o fa majority of his colleagues in the interests of adjudicative coherence since it is a relevant criterion to be taken into consideration. Full board meeting does not create a reasonable apprehension of bias or lack of independence. -

-

-

The fact with respect to independence is not whether or not the panel was influenced by the colleague, but whether there is an ability of adjudicators to decide according to their own opinion; “Independence does not mean an absence of the influence, but rather a freedom to decide”; criteria that would safeguard the independence of decision making: 1. there was no consensus required; it was strictly a discussion of policy issues; 2. there is no mandatory attendance; no attendance was taken, no minutes were taken; 3. there was no voting; there is no pressure happening through the voting; 4. the discussion was strictly related to policy, the specific facts of the case were not discussed; no new grounds were laid; given those safeguards, court concludes, that the penal members continue to have a capacity to decide independently, so the reasonable person would not view the situation as unfair or causing a loss of independence; “even the audi alteram partem rule should be flexible enough to take into account the institutional pressures of the modern administrative tribunal”; so one of the pressures of the modern administrative tribunals are huge policy issues in such a way to have coherency and efficiency of decision making; and here even the audi alteram partem rule has to bend;

76

Differs from Sopinka – “Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Sinch these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent of immediate interests of the parties, even tho it has an impact on the outcome of the complaint.” -

-

If the meetings respect parameters of not discussing facts and restricted only to policy, the court is prepared to find that there is no breach of pf; There are two threads that come out of this: 1. That the consultation process can operate in a mandatory or compelling fashion so that the board members feel pressure; you have to have ability for board members to decide according to their own conscience; 2. the consultation process has to be limited to policy issues; the majority concluded that the practice of calling consultation meetings on draft reasons with respect to particular policy issues did not violate rules of pf;

Tremblay v. Quebec (Commission des affairs sociales) [1992] SCC Application of I.W.A. principles Facts: the commission had a policy of reimbursing clients with respect to medical equipment. But did not include bandages and dressings as medical equipment. T applied to have costs of bandages and dressings covered through social assistance funding. The matter was adjudicated through a twomember panel to define favourably for T that bandages and dressings came within the definition of medical equipment. A draft decision was prepared. It was sent to the commission but the counsel is away. The chair wrote up his concerns and requested a “consensus table” meeting. A meeting discussed a policy implications of finding bandages to be medical equipment. As a result of the meeting, one of the panel members decided to go against the draft decision, which was originally a unanimous decision. She decided to write her own decision, supporting what the chair concluded, that it was not a med equipment. That resulted in a deadlocked quorum so it went to the chair to decide – he decided along the lines of what he had previously outlined. Issue of whether this consultation process breached procedural fairness. SCC finds: − pf was breached: − the safeguards did not exist in this case; − it is a consensus table called by the chair, in theory it was optional but there is evidence that in practice attendance was compulsory when legal counsel determines the proposed decision is contrary to previous decisions; − even though it is discussing strictly the policy issue – minutes are taken, attendance is taken – a pressure to bring around a consensus – you are not deciding in accordance with your conscience; − the court describe this process as a form of systemic pressure which impeded the ability of decision makers to decide freely; − also, mere fact that president/chair can of his own motion refer a matter for plenary discussion may itself be a constraint on the decisionmakers (cf I.W.A. where decisionmakers requested meeting). Per I.W.A plenary meetings may be a consultation tool which is entirely keeping with rules of natural justice – H/W they should not be imposed on decisionmakers and should be held in a way that leaves decisionmakers free to decide according to their conscience and opinion. − Note – fact that the president had overlapping duties - expressed opinion to panel and invited them to reconsider decision and then became a decisionmaker – also raised a reasonable apprehension of bias as he committed himself to a particular outcome. − a new wrinkle: the issue of confidentiality of the decision making process; the commission claimed a deliberative secrecy as a defence

77

−

SCC: since it is a judicial review of the decision making process itself, the court was not prepared to uphold the deliberative secrecy; it should be pierced in order to give the propriety to the decision making process;

Ellis-Don Ltd. v. Ontario [2001] SCC To what extent would court protect the deliberative secrecy? Facts: The labour board tries to shield its consultation process on the basis of deliberative secrecy. The issue is to what extend does deliberative secrecy protect the consultation discussion? We have a tripartite board looking at the case where the employer alleges the union has abandoned its bargaining rights. A question of abandoning bargaining rights is a question of fact. A tri-partite panel deciding the matter that is very chronologically based on history and facts about what had happened at the place of employment. After the full board meeting (the issue goes to the consultation at the board meeting) the panel changes the mind and writes the second decision (first favoured the employer, the second – the union). E-D alleges breach of procedural fairness and tries to subpoena the board members re: why did they change their mind. Traditionally abandonment of rights related to facts, and they found in the first case in favour of employer, based on facts. They claim facts were discussed at the consultation meeting, if their mind has changed. At this point the board claims deliberative secrecy. Issue: Were the discussions around factual changes (violation) or policy changes (permissible) SCC (Lebel J. for majority): - This case presents a tension between deliberative secrecy and procedural fairness; - not prepared to assume that the board consultation process looked at facts - presumption of regularity; - the change from decision #1 to decision #2 has to be on the issue of policy -- they decided that the board re-considered application of the legal standard; - Prof. The SCC seems be skirting the criteria; she is not sure that that was the policy issue; the SCC seems to be more protective of the deliberative secrecy: - the court applies a presumption of regularity of admin proceedings: unless you, the party alleging impropriety or irregularity, can actually demonstrate that , we are going to stand by the presumption of the regularity of the proceeding and uphold the deliberative secrecy; - in this case the decision has been changed because the different legal standard was applied; Dissent (Binnie J): - focuses on rules of procedural fairness, transparency of the process, the right to be heard and opportunity to address issues; - to change from decision 1 to decision 2, there had to be discussion about the facts; - as a result of that, dissent finds that there was a breach of procedural fairness; Note: - Deliberative secrecy is a principle that the decision speaks for itself; - That the decision making process, the deliberations of decision makers are protected, that they are secret, - If you want to impugn, you impugn the reasons for the decision, not how the decision maker achieved it in his or her mind; Conclusion: - in the above case the majority is skirting about what is policy and what is fact; - they are rooting themselves in the presumption of regularity: that admin tribunals will conduct their meeting in a regular and proper fashion; - they are protective of deliberative secrecy;

78

Agency Counsel Lawyers or staff involved in investigations and prosecutions should not also be engaged in assisting those who adjudicate, particularly in the instance of files with which they have had prior involvement (see 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools)) At the Hearing Tribunals (particularly ones without a member with a legal background) often have counsel to advise on admissibility of evidence, procedure or other qs of law. Problem is that counsel may overstep role of adviser to assume functions more appropriate for the chair or other members of the tribunal e.g. making rulings, intervening to raise issues or question witnesses. Could create impression that a reasonable observer might conclude that someone other than the person authorized by statute is the decisionmaker i.e. can challenge for bias (e.g. Venczel v Association of Architects). Degree of intervention permitted may depend on the nature of the proceeding – adversarial proceeding, less active intervention on part of tribunal counsel likely to be allowed by duty of fairness than in a proceeding that is more inquisitorial e.g. Convention refugee determination hearing where hearing officer questions claimant to ensure panel has the full story. Also, counsel’s interventions might be seen to favour one side over another (Brett v Ontario (Board of Directors of Physiotherapy) - counsel had advised lawyer presenting case against the member when to object to questions and when to put forward arguments in favour of the “prosecution”). Note – need to make objection known at the time otherwise, if you get to judicial review the court might hold acquiescence. The preparation of reasons Writing reasons for a decision can be onerous and daunting for members of many administrative tribunals. How far may tribunals take advantage of expertise of their staff (incl counsel) in the preparation of reasons for the decision without breaching some aspect of d of f – delegation doctrine and apprehended bias in particular? To what extent is giving of reasons a function that must be performed personally by decisionmakers rather than bureaucratically via use of counsel? Black letter law: First, decision must be that of the tribunal members themselves. Therefore if counsel retires with tribunal while it deliberates w/o consent of parties may create reasonable apprehension of bias. Second, reasons for decision must be ins substance those of the tribunal members, not clerk’s or counsel’s. Problems with tribunal members writing own reasons: Re Del Core and Ontario College of Pharmacists “courts should not be overly critical of language employed by bodies and seize on a few words as being destructive of entire disciplinary process”. I.e. tribunal members won’t draft in legalese. Couts have permitted tribunal to seek assistance of counsel (or other staff members) in the prep of the statement of their reasons for decision Armstrong v Canada (Commissioner of RCMP) Note – even though law clerk drafted reasons, they were reviewed in draft by committee member who made changes and did some drafting of the penalty. Final draft approved by all members. Khan v. College of Physicians and Surgeons of Ontario (1992), Ont. CA

79

Facts: Dr. Khan found guilty in molesting a child; he was also charged with professional misconduct and this case involves a discipline committee hearing, where the discipline board decided to revoke his license to practice medicine. K appealed on basis that discipline committee breached duty of pf by letting counsel pay so significant a part in preparation of its reasons that it created a reasonable apprehension of bias. -

The divisional court held that as a lawyer as a counsel is giving a legal advise, not simply admin support; ordered a re-hearing for Dr. Khan; College of Physicians appealed that to the Ont. CA;

Doherty JA: - conduct of counsel at hearing was not improper and not suggested that counsel played any role in deliberations or decisions of discipline committee. - No reasons given at time of decision but 3 months later reasons were released. - hearing concluded that discipline committee used counsel in preparing the draft of the decision - a unique feature in this case was that the statute both contemplated and restricted the role of the counsel: it contemplated that the tribunal may have a counsel at the hearing, and it limited the counsel’s advice to the hearing stage; the statute further required the full disclosure of the counsel’s involvement; - Spring principle allows admin tribunal to receive clerical and administrative assistance in drafting reasons; the issue is if that’s include legal assistance; - The line between permissible assistance and that which is forbidden must be drawn by regard to the effect of counsel’s involvement in the drafting process, on the fairness of the proceedings and the integrity of the overall discipline process. - Where counsel is connected with one of the parties to the hearing an appearance of bias will result if that counsel participates in the drafting process. Re Sawyer and Ontario Racing Commission and Re Emerson and Law Society of Upper Canada - Nothing in the record suggests that counsel’s involvement in writing of reasons compromised the independence or impartiality of discipline committee. In my opinion, no legitimate concerns as to the fairness of the proceedings arise from the counsel’s very limited involvement in the reasonwriting process. Counsel did not co-opt or have delegated to him the reason-writing function. - the discipline committee undertakes a three-step process in drafting decisions: the original draft is prepared by the committee, and then the draft is revised by the in-house counsel in consultation with the chair of the committee, and then it goes back to the committee for the final revisions; OntSummary: - Pritchard: legal counsel can give advice at the decision making stage; - Khan: counsel can participate in revising draft reasons; - Payne: a huge dissent on the scope of agency staff role at the decision making stage; - Ultimately: all of these together come to one scheme: is there a freedom of decision making? Who is the decision maker? If you can preserve that your decision makers were adjudicators, you likely can preserve the pf (rationale behind bias, rationale behind notice, opportunity to be heard, independence and integrity); Reasons Review Some agencies employ lawyers to assist agency in its corporate capacity to develop policy and oversee implementation by panels of the agency. Bovbel v. Canada (Minister of Employment and Immigration) [1994] 2 FC 563(CA) Immigration and Refugee Board failed to find that Bovbel was a Convention refugee. B argued that by referring a draft decision to counsel who was not a member of the board and who hadn’t participated in or attended hearing was contrary to natural justice.

80

Motion Judge found that the Reasons Review policy of the Board (requiring them to submit a draft of reasons for decision to legal advisers before issuing them to parties) was enough to taint the decisions of the board as it created a reasonable apprehension of lack of independence of board. Internal documents make it clear that while lawyers may give advice, the panel members must decide the case. Also, Boards lawyers may suggest that a case might be better decided on different grounds but panel should not decide the case on those different grounds if they weren’t raised at the hearing or unless parties given an additional opp to comment. e HOLDING • A fair reading of the documents on the record shows, in our view that the legal advisors were not to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. • True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the board. However, as mentioned by Manoney JA in Weerasinge, any policy is susceptible to abuse. • Fact that there was a high volume of claim and a clear protocol for reasons was sufficient for court to be satisfied that reasons after written by a tribunal could be reviewed Agency Guidelines -

-

a trend in the last 20 years about a high volume of decision making and how to allocate resources and responsibilities to be able to handle a high volume of cases or complex cases; agency guidelines are typically promulgated by the tribunals with high volumes of cases or complex cases; some agencies have very extensive guidelines and some have none at all; guidelines usually set out the overarching principles that should be considered when applying or interpreting legislation. Usually they are very general policy criteria, never an exhaustive statement of the law. Legal force of guidelines is always different and should be decided on a case by case basis; you have to look at the documentary legal authority behind the guidelines: are the guidelines issued by the tribunal as a result of a power stated in the a statute or regulation, or are the guidelines issued simply as a result of the exercise of discretion, etc.). There is no rule if guidelines have legal force, you have to asses that on a case by case basis; It is individual to the tribunal and sometimes to the guideline. It will depend on where it flows from: statute, regulations, etc., sometimes legitimate expectations. Eg school board closure cases – the guidelines gave rise to the legitimate expectations; The leading case on agency guidelines is Bell; it is unusual in that the court gives guidelines a significant weight, it states that guidelines are akin to regulations, they are indistinguishable from other types of law; So when analysing the cases and seeing what is the documentary legal authority, you have to also consider guidelines; as we seeing in the school board closure cases it gave rise to legitimate expectations; in Baker they had significant weight in assessing procedural fairness; in Bell they were given same force as regulations;

Pros and Cons of Institutional Decision Making through Guidelines: 1. Pros: - consistency in decision-making; - efficiency; - complexity - to shed light on complex systemic issues (Bell case); provide the framework for the analysis or criteria of how to work through the policy issues of systemic implications of employment equity;

81

-

2. Cons: the lack of personal attention to the clients; very impersonal; the anonymity of the decisionmaker; concern that guidelines, or institutional decision making guidelines are really disguising law in policy (eg. new immigration act is much smaller than the former one – we are regulating through guidelines); leave a lot of discretion to the unofficial decision makers; the disadvantage alleged by the employer in the Bell case: the guidelines were binding or fettering the decision-maker’s independence – if the guidelines are so detailed, that they really can tie the division maker to a particular outcome, then the concern is that the decision maker is being fettered.

Thamotharem v. Canada (Minister of Citizenship and Immigration) [2008] The Immigration and Refugee Board issued Guideline no 7 in accordance with the legislative authority conferred to the Chairperson of the IRB by section 159 of the Immigration and Refugee Protection Act. This set out how the Refugee Protection Division member, Refugee Protection officer, Refugee claimant and counsel were expected to act to ensure a fair and efficient refugee status determination. Traditionally, the claimains would be examined by their counsel first and then Refugee Protection Division member or Refugee Protection officer would question. Guideline 7 reversed this and said standard procedure would be for Refugee Protection Division member or Refugee Protection officer would start questioning, although the member could vary this order in exceptional circs4. In this case Guideline 7 was challenged as a breach of procedural fairness and on the grounds that it fettered the discretion of Board members to decide the order of questioning appropriate to a particular claim. It was raised in the context of a refugee application involving a Tamil student claiming persecution if returned to Sri Lanka. The Federal Court held that Guideline 7 does not violate the Board’s duty of fairness but is an unlawful fetter on the exercise of discretion because Board members often operate as if they are bound by it. The denial of Mr. Thamotharem’s refugee status was quashed on this basis. The Federal Court of Appeal looked at para 19. which says that it “will be” std practice for the RPO to question claimant first. It is less obligatory than must – discretionary element. A member may vary the order of questioning in exceptional circs. Claimants who think that the exceptional circs exist in their case must apply to RPD before the start of hearing to change order of questions. Para 19. is more than a recommended but optional process. The fact a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibluity that the decisionmaker may deviate from normal practice in light of particular facts. There is evidence that, when requested by counsel, members of RPD did exercise their discretion and change order of qs in cases they regarded as exceptional. Just because IRB monitors members deviations from std order of questioning does not create coercive environment which would make Guideline 7 san improper fetter on member’s exercise of their decisionmaking powers. No infringement on members independence that they are expected to explain reasons why a case is exceptional and warrants a departure from std order of qs. Serves interest of coherence and consistency in boards decisionmaking. Court dismissed Thamotharem’s application for judicial review on the basis that Guideline 7 expressly directs members to consider the facts of the particular case before them in order to

82

determine whether there are circumstances warranting a deviation from the standard order of questioning. Also, it was not evident that Board members generally disregarded this aspect of Guideline 7 and unthinkingly adhered to the standard order of questioning. Thus, while transparency calls for tribunals to develop and publicize guidelines on which parties before a tribunal may rely, the principles of administrative law limit the effectiveness of that reliance by requiring that a tribunal not treat its own guidelines as binding. 9. Backdrop to the Standard of Review Analysis We shift to the second major issue area in administrative law: review on “substantive” grounds. Basically, substantive errors are errors of fact, law or discretion, although these are sometimes labelled in different ways. (You will also see reference to errors of jurisdiction, although this has meant different things at different times. Now, a “true error of jurisdiction” is something you need to consider post-Dunsmuir. Dunsmuir is discussed below.) In this part, you’ll soon learn that simply looking at a decision and saying that it reflects an error of fact (a misapprehension of the facts), of discretion (a wrong choice or outcome) or of law (a misconstrual of the law) is not enough. That is because substantive errors are all subject to what is known as the “standard of review”, a very difficult and complex area of administrative law. Notice that we do not mention standard of review in our discussion of procedural entitlements. That is because you do not do a standard of review analysis for procedural entitlements. It is wrong to say you do – with procedural fairness, you apply the rules discussed above. In these background readings, you are introduced to the concept of a privative clause. Once you understand it – and the courts’ efforts to get around such clauses – you’ll understand at least part of the initial impetus for standard of review analyses. Then, there is some history looking at failed precursors to the standard of review analysis. General Introduction Substantive review is much harder to get than procedural review - the courts are generally hesitant to overturn a tribunal's substantive decision unless there was bad faith or they exceeded their jurisdiction. Was a period of battle between legislature and Courts – very narrow interpretation of privative clauses by courts. This has eased recently. “Modern” approach of SSC is to be more respectful of the comparative strengths of tribunals and other non judicial actors and of legislative intentions regarding their expanded role. New era that persists today was one where reviewing courts instructed by SCC to assess the extent of their engagement with the administrative process from a “pragmatic and functional” perspective. Respect for legislature’s choice as to the decision-maker that was designated as the primary vehicle for carrying out the statutory mandate. Also called for greater attention for legislative signposts indicating restraint on the part of the reviewing courts, awareness of expertise of may statutory regimes and the court’s lack of working familiarity with detailed working of those regimes. In the actual assessment of decision taken in the particular case, a far more purposive or contextual approach to statutory interpretation. Privative Clauses Statutory provisions by which legislature purports to limit scope or intensity of judicial review. Of a statutory decision-maker.

83

“full” or “strong” privative clauses – use broad language to preclude any form of review by a court while also establishing that decisions of the relevant actor are final and conclusive. ‘’weak” privative clauses typically state that decisions of the relevant actor are final and conclusive or that he has “sole” or “exclusive” jurisdiction in certain matters but don’t expressly preclude courts from any review of the decision-maker. Interpretation of a privative clause may also depend on whether other provisions of the statute provide for an appeal to the court from the decision-maker on questions of fact, law, mixed fact and law, or another category of decisions. A privative clause cannot oust the authority of the superior courts to carry out a judicial review on constitutional issues or its authority to ensure that an administrator has not acted ultra vires. Need to closely look at statute under which decision has been taken to determine the appropriate route for any statutory appeal and to assess the likelihood that a court will show deference to the decisionmaker. Based on Dunsmuir one must review past cases in which comparible decisions have been reviewed by a court in order to locate existing jurisprudence on the standard of review. Constitutional Limitation of Privative Clauses Doctrine of decision in Crevier v. Quebec (1981) that the Constitution implicitly guarantees the authority of the courts to review the decisions of administrative agencies for errors of law or jurisdiction and for procedural unfairness. Public statutory authorities have only those powers conferred on them by legislation and these powers are legally limited. Ultimately role of courts to determine what those limits are, esp when they affect rights of individuals. Legislature cannot oust the court’s power to review the decision of an administrative agency, or its enabling statute, on the ground that either is beyond the constitutional capacity of that legislature. Legislation that confers power on public authorities (and the public authorities in the exercise of that power) are always subject to challenge on basis that there has been a disregard of the division of powers between Parliament and the provincial legislatures provided for in s 91 and 92 of the Constitution Act 1867. Legislature also can’t remove right to launch a constitutional challenge on grounds such as violation of Charter or failure to observe other limits on legislative capacity in the Constitution Acts 18671982, in other constitutional instruments and also in unwritten principles of the Canadian constitution as recognised in Reference re Secession of Quebec [1998] No express provision in Constitution Acts 1867-1982 that deals with power of courts to review decisions of administrative agencies. Westminster style parliamentary democracy so no Constitutional outline of separation of powers doctrine. Claimed that a right to judicial review of administrative action should be implied in constitution based on ss96-101 of Constitution Act 1867: 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of

84

those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons. (2) A judge of a superior court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age. 100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. Courts and Tribunals: Constitutional Background Why has legislature entrusted new schemes of regulation to tribunals rather than courts? 1. Desire for specialist body 2. Desire for innovation – tribunal can be given broad discretion to develop policies and remedies to implement the new scheme of regulation (e.g. foreign investment review or pay tv regulation) 3. Desire for initiative - tribunal can be given power to initiate proceedings, undertake investigations, do research, play an educative and policy-formulating role as well as adjudicative (e.g. securities commissions and human rights commission). 4. problem of volume (eg. Worker compensation, unemployment insurance, immigration, income tax objections) 5. economy - tribunal can be structured and mandated to be less formal, speedier and less expensive than courts. Reference re Residential Tenancies Act, [1981] is a leading Supreme Court of Canada decision on the jurisdiction of superior courts provided by section 96 of the Constitution Act, 1867. The Court formulated a three step test for determining whether an administrative body was encroaching upon the jurisdiction of the superior courts. First step, Historical enquiry - it must be determined whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation. Second step, inquiry into whether the impugned power is a “judicial power” Third step, whether the power, in its institutional setting has changed its character sufficiently to negate the broad conformity with superior, district or county court jurisdiction.

85

First step – for a tribunal’s power to be held to be a s96 power at confederation, it is clear that the impugned power must have been within the exclusive jurisdiction of s.96 courts at confederation. If there was even concurrent jurisdiction in inferior courts or tribunals, the answer to the enquiry will be no. Sobeys Stores v. Yeomans 1989 Wilson J suggests that the Court should lean in the direction of an affirmative answer to the historical test i.e. finding that a tribunal’s power was within the exclusive powers of a superior, district or county court at confederation to protect the jurisdiction of the s 96 courts. I.e. a low threshold. Second step – elusive task of characterizing the impugned power as a “judicial power”. Reference re Residential Tenancies Act, [1981] Dickson J suggested power was judicial if it involved: 1. private dispute between parties 2. that must be adjudicated through the application of a recognised body of rules 3. that must be adjudicated in a manner consistent with fairness and impartiality Third step –examination of the power in its institutional setting to see whether it still broadly conforms to a s96 power. Tomko v. Labour Relations Board (Nova Scotia) [1977] upholding labour relations board’s power to issue a cease and desist order, Laskin LJ said that the superficially close analogy with superior court injunctions was decisive because it was not necessary to consider not the “detached jurisdiction or power alone” but rather “its setting in the institutional arrangements in which it appears.” Labour Relations Board of Sask. v John East Iron Works Ltd. [1949] AC 134, [1948] 4 DLR 673 (PC) Cb 511 Issue Did the Labour Relations Board exercise a judicial power; was it that of a s 96 court? Reasons • The Board was “a new conception of industrial relations” that did not exist 1867. • Jurisdiction was not necessarily the same as a s 96 court in 1867 Holding Board is intra vires. Novel jurisdiction from that envisaged for s 96 Courts at Confederation. i.e. the institutional setting of a labour relations regime transformed a power to enforce contracts into a non s. 96 function. Both Tomko and John East, the court-like adjudicative function of the labour relations board was ancillary to a broader administrative and policy making role as administrator of the labour relations legislation. Sobeys Stores v Yeomans and Labour Standards Tribunal (NS) [1989] 1 SCR 238, 57 DLR (4th) 1 CB 516 Facts Tribunal orders Sobeys to rehire Yeomans after firing him. Tribunal adjudicates disputes between employers and employees, and can order specific performance. Also exists to inform about standards, etc. Reasons (Wilson J) Court applies the Residential Tenancies Test 1. The search is for “broad conformity” of jurisdiction with s 96 Courts at Confederation. The jurisdiction is that in a majority of the original four provinces. In case of tie, refer to the UK 1867. a. Yes, the Tribunal does 2. It does perform a judicial function. 3. The judicial function is a “necessarily incidental aspect of the broader social policy goal of providing minimum standards of protection for non-unionized employees.”

86

Holding Tribunal does not contravene s 96. The standard for step 1 is that of a majority of the 4 provinces at Confederation. Passes step 3 if the judicial function is incidental to the broader policy objective. The institutional setting will not save an adjudicative function which, having held to be a s 96 function at confederation (step 1) and having been characterized as judicial (step 2) is the “sole or central function” of the tribunal. That was case in Reference re Residential Tenancies Act where SCC held that although rent tribunal did perform other functions in the admin of the Ontario residential tenancies legislation, the other functions were ancilliary to the central function of adjudication of dispuites between landlords and tenants. A.-G. Que. v. Farrah [1978] – sole function of Quebec Transport Tribunal was to sit on appeal from a tribunal of first instance and decide any qs of law – held to be an unconstitutional s.96 function. Crevier v Quebec (A-G)[1981] - sole function of Quebec Professions Tribunal was to sit on appeal from several tribunals of first instance. Professions Tribunal also had power to decide questions of law. In both Farrah and Crevier a privative clause purported to exclude superior court review of appellate tribunal’s decision. 3 concurring opinions in Farrah emphasized the exclusion of superior court review as if it was the unreviewable character of the relevant tribunal that was impt. In Crevier, Laskin CJ, held the privative clause unconstitutional and also seemed to hold that the fact that the sole function of the Professions Tribunal was that of a “general tribunal of appeal” was a fatal flaw by itself. Three steps test is vague and disputable in many situations. Small diffs in provinces between their history and institutional arrangements can spell diff b/t validity and invalidity of apparently similar admin tribunals. SCCs holdings in Residential Tenancies, Farrah and Crevier have cast doubt on constitutionality of many provincial admin tribunals and encouraged a spate of litigation. Pressure from provinces to amend s.96 as well. Statutory removal of Judicial Review Crevier v Quebec (A-G)[1981] Facts: (1) The Professional Code (Qc) set up a discipline committee for each of the 38 professions that fell under it; these cmtees had jurisdiction over every complainant of an offence under the Code. The Code also created a Professions Tribunal (PT) to which decisions of the cmtees could be appealed. Appointments to the cmtees were made and consisted of 1 lawyer and 2 members of the profession, those to the PT were prov court judges appointed by the Chief Judge (i.e. note s. 96 appts by GG). (2) S. 175 of Professional Code: “The tribunal may confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in the first place. … The tribunal’s decision shall be final.” This was supported by other s. 195 of Code. (I.e. sounds pretty judicial.) S 193. – immunity clause – members of tribunal hearing appeal shall not be prosecuted for acts done in good faith in performance of duties. S 194. – Privative clause – no extraordinary recourse contemplated in ss 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in s. 193. acting in official categories. Also 195 – Article 33 of Code of Civil Procedure shall not apply (right of parties to appeal to Superior Court). (3) 2 optometrists were convicted by their cmtee and appealed to PT, which decided that cmtee had acted beyond its authority in deciding that offence had been committed. Issue: Do powers of the PT violate s. 96 of the Constitution Act, 1867? Held: Yes. Appeal allowed.

87

Laskin CJ (Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer JJ concur) Three issues to consider: 1. sole function of Quebec Professions Tribunal was to sit on appeal from several tribunals of first instance. Not integrated into any scheme but sitting on top of various schemes. 2. effect of s.96 on privative clause. Noted Executors of Woodward Estate the provincial statutory provision purported to make certain determinations of the Minister final and not open to appeal or review in Court and court held that it does not preclude a review by court if the tribunal acted outside its defined jurisdiction. Ie. Provincially constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. A provincial statutory tribunal cannot, in face of s96, be left to determine the limits of its own jurisdiction without appeal or review. 3. Look at Farrah which decided that to give a provincially constituted statutory tribunal a jurisdiction in appeal on qs of law w/o limitation and to reinforce this appellate authority by excluding any supervisory recourse to Quebec superior court was to create a s.96 court. No distinction with this case. In giving a provincially-constituted statutory tribunal a jurisdiction in appeal on Qs of law w/out limitation, and to reinforce this appellate authority by excluding any supervisory recourse to a superior court is to create a s. 96 court – and is unconstitutional. Comments: A provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. Privative clauses purporting to oust jud review are inconsistent with s.96.: invalid. Crevier decision has received much criticism in scholarly circles. It relates to professional tribunals and how it can be appealed to. (A ‘professional tribunal’ set up in Quebec operated as an appellate tribunal for professionals who were appealing decisions made by the tribunals of their professional associations) The decisions of the professional tribunal were protected by a privative clause (also referred to as preclusive clauses, or as ouster clauses). Its decisions would not be reviewable by courts of inherent jurisdiction. The importance of the privative clause is that it was understood to imply that the Qc legislature had intended to protect the PT even wrt determinations concerning its jurisdiction as well as the remedies it applies. Laskin J: Privative clauses that attempt to isolate tribunals like the professionals tribunal from judicial review are unconstitutional. •

•

•

Judicial review is implicit in s.96 of the BNA Act of 1967. The federal power to appoint judges to superior courts would be made a mockery if the powers that these tribunals enjoyed would be subverted by the establishment of parallel tribunals such as the Professionals Tribunal. Crevier says a tribunal such as PT will not be allowed to be a watch dog of its own jurisdiction. Next step should be to a court of inherent jur’n (rather than the PT); the PT cannot be the ‘last stop’. o Consider Tribunal Administratif du Québec (TAQ : The TAQ is general tribunal that has authority to review the decision of any provincial administrative tribunal in Qc. Once all avenues within the admin tribunal have been exhausted, you can appeal to the TAQ. The SCC has yet to hear an appeal with respect to the jur’n of the TAQ Courts have been criticized for reviewing the decisions of administrative tribunals that they have reached on the merits.

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

88

•

There is now considerable support for the proposition that Parliament is subject to precisely the same limitations as provincial legislatures may not create tribunals with traditional superior court jurisdiction, unless they conform to ss. 96-99.

Harry Arthurs, “Protection against Judicial Review” •

Notes that lawyers, judges, and academics are deeply implicated in the JR industry as producers, consumers or spectators • For 200 years, parliaments of Canada and UK have been crying to find language which courts will accept at face value and restrain their irresistible impulse towards JR • Privative clauses have been interpreted through a “dubious” process of reasoning as protecting admin decisions as long as they’re made in accordance with procedural fairness and within jurisdiction • SCC has dallied with various tests for determining “jurisdiction” – the expansion and contraction of the meaning of jurisdiction reflects the court’s determination to retain some control over admin decisions. • In Crevier, the Court found that where any provincial legislature purports to insulate a tribunal from any curial review, and that insulation includes from jurisdiction, such provincial legislation must be be struck down as unconstitutional as having the effect of constituting the tribunal a s.96 court. • Crevier makes overt the subordination of elected legislature the “hegemony” asserted by judges and lawyers over the law, its interpretation and its administration. • Why we should favour limitations and restraints upon JR: → The present vocabulary and conceptual structure of JR is incoherent – simple conceptions like “fairness and “reasonableness” don’t do much to mask the chaos except allow a reviewing judge to state his conclusion w/o disclosing the reasoning, and what is reasonable to one judge is not to another → Diligent scholarship is unable to resolve this incoherence b/c what judges’ decisions are not determined by text-book maxims but by their conviction that the interest of justice will or will not be served by a particular result. → But judges’ views of justice may not be the same as the legislature’s or tribunal’s. Their universes of discourse are totally different and in fact a legislature may have assigned a tribunal certain tasks to try to replace the worldview enshrined in the CML or CVL. → Plus judges see admin systems for the single cases of misfiring while admin people see it in terms of its normal, satisfactory functioning → Judges make decisions in a black box and have cut themselves off from learning more about the policy judgments and practical constraints which produce admin decisions → Disparities between litigants with different amounts of resources are felt with particular severity in JR proceedings. The interests of aggrieved welfare claimants, jail inmates or immigrants or consumers are characterized as “privileges” – dependent upon policy, discretion, non-justiciable claims → Most regulatory legislation tries to redress the balance of power b/w organized and corporate interests and unorganized ordinary citizens. On the other hand, JR does little to rectify disparities and occasionally magnifies them. → By deciding when something is “legal” or interpret statutory language or decide “reasonableness”, aren’t they making legislative decisions? Why should a judge who reads a statute once in his life can read it with greater fidelity to legislative purpose than an administrator sworn to that purpose who does so daily? Copy 716-719 of Textbook for study The “Preliminary Question” Doctrine

89

Pre CUPE 1979, the courts allocated decision-making power between courts and administrative agencies (that were protected by a privative clause) by attempting to distinguish between those questions of law that were within the area of decision-making authority (jurisdiction) of the agency, and those that were either preliminary to the exercise of the agency’s jurisdiction, or collateral to the merits of the decision. Despite privative clause, the court could intervene in administrative process if it found that some condition precedent to the agency’s exercise of its jurisdiction was not satisfied. Ie. Determination of prelimary questions by admin agency were subject to review by court for correctness BUT qs of law w/in agency’s jurisciction were immune from judicial review. This is no longer used as deemed unsatisfactory in both theory and practice: 1. No test ever devised to id which questions of law were preliminary and which were part of merits – any question of statutory interpretation could be styled as preliminary. 2. search for preliminary qs distracted attention from substantive issues at stake (matching institutional strengths of reviewing court and specialist agency on the question in dispute and then weigh public interest of effective administration and protection of constitutional values). 3.doctrine lacked logical and policy coherence – modest level of judicial craft required to present an issue of statutory interpretation as preliminary. The theoretical idea at the core of the doctrine has not been abandoned – ie. that jur’n, or decisionmaking power, of administrative agencies do not exceed the limits imposed by the legislature on their authority to decide. Now you need to apply the std of review analysis rather than preliminary question doctrine. Wrong Questions and Irrelevant Considerations Decision of an admin tribunal can be set aside as being outside its jur’n if, in the course of making the decision, the tribunal had asked itself the ‘wrong question,’ taken into consideration legally irrelevant factors or ignored factors that it was legally required to consider. Amisminic Ltd. v Foreign Compensation Commission [1969] House of Lords in Eng. This has never been fully embraced in Canada and this approach now only of historical interest Origins of the Standard of Review Analysis – CUPE (1979 This is the starting point on the standard of review of administrative agencies’ interpretation of their legislation, when the legislature has expressly precluded the courts from reviewing their proceedings or decisions. The courts began to pay much more attention to statutory purposes and structures and the sense they conveyed of the relevant tribunal’s expected areas of competence or expertise. The question of what is or is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. (Dickson J. in CUPE v NB Liquor at 233.) In the adoption of the pragmatic and functional approach, these are the leading cases : CUPE v. New Brunswick (1979)  largely responsible for subsequent devt of pragmatic and functional approach Bibeault (1988)  goes over 2 standards of review: patent unreasonableness and correctness Southam (1997)  To the 2 standards, the third one (reasonableness simpliciter) is introduced. Pushpanathan (1998)  fullest explanation of history of Pragmatic approach as well as of the standards of review.

90

CUPE v. New Brunswick Liquor Corp, [1979] 2 SCR 227 (CBp.714) Facts: • Background: Public servants are not allowed to picket their workplace. There is a tradeoff in the legislation that prevents replacement workers being hired by employers. However, the legislation is poorly written: says they cannot be replaced by employees, but elsewhere it excludes management from definition of employee. • Union complained that the NBLC was replacing striking employees with management personnel contrary to the Public Service Labour Act. Issue as to the meaning of an “employee” under the Act (i.e. does it include management?). Board ordered employer to refrain from using management. • Judge in CA said that provision was ambiguous. Employee is a defined term in the statute. But management could argue that on a plain reading of the statute, they were excluded from the ambit of employee as used in the particular statute. • In 1st instance and on appeal, they upheld management position and overturned labour relations board. The definition excludes management personnel, so that management can rely on its personnel in the case of a strike. Issues: 1) Is deference owed to the tribunal? 2) Is its determination reasonable? Holding: Yes and Yes Reasoning: [Dickson J] - Little doubt that the provision is very badly drafted. It bristles with ambiguities. - There are good reasons for both interpretations. Section 102 of Act contained within it a trade-off. On one hand, striking workers were not allowed to picket in front of places of employment and mgmt were not allowed to replace them with replacement workers. However, the legislative definitions and statutory interpretation imply another interptn. Two questions raised by complaint (as per Justice Limerick at CA who used the preliminary question doctrine): Board is empowered to enquire into a complaint that the employer has failed to observe a prohibition in the Act and not to determine what is prohibited by the Act or to interpret it except to determine its jurisdiction. Two questions raised: 1. Does the Act prohibit management personnel replacing striking employees? 2. did management personnel replace striking employees? First question is the condition precedent to and collateral to determining the second. Dickson did not think the preliminary question doctrine helped the inquiry into the Board’s jurisdiction. Quoted Wade on Administrative Law: Q’s of act regarded as the primary and central questions for decision and the prescribed statutory ingredients will be more readily found to be collateral. Dickson said preferable approach is that jurisdiction should be determined at the outset of the inquiry. This question of what is and what is not jurisdictional is very difficult to determine. In this case, the parties were entitled to initial enquiry under the statute and the general subject matter also fits within confines of the Act. Union took no jurisdictional objection to the ban on picketing. Employer said that it did not in any way violate s102(3)(a) (because of exclusion of management from defn of employees). One cannot suggest therefore that the Board did not have jurisdiction in the narrow sense of authority to enter upon an inquiry.

91

Important to look at privative clause at s101 of the Act. Clear statutory direction that public sector labour mattes be promptly and finally decided by the Board. Board is a specialised tribunal that administers a comprehensive statute regulating labour relations. Board not only finds facts and decides qs of law, it also exercises its understanding of the body of jurisprudence that has developed around the collective bargaining system. Usual reasons for judicial restraint on review of labour board decisions apply here. Not only has ;egislature has confided decisions to an administrative board, it has done so to a separate and distinct Public Service Labour Relations Board. The Board has broad powers to supervise and administer a novel system of collective bargaining created by the Act. The Act calls for a delicate balance between need to maintain public services and the need to maintain collective bargaining. This means considerable sensitivity and unique expertise required by Board. The Board took a decision which was plainly confided to it, for it alone to decide within its jurisdiction. Interrpretation of s 102 would seem to lie logically at heart of the specialised jurisdiction afforded to the board. In that case not only would the board not be required to be correct in its interpretations, but one would think the Board was entitled to err and any such error would be protected from review by the privative clause. Employer says the interpretation of a102(3)(a) was so patently unreasonable, that Board did something that takes the exercise of its powers outside the protection of the privative clause. NO. The ambiguity of s.102(3) is undoubted – there is no one interpretation which can be said to be “right”. The CA judge’s interpretation seems reasonable, but no more or less reasonable than the Board’s. Board’s interpretation was not so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by Court? . Comments: → Prior to this case, privative clauses interpreted as not excluding judicial review. → This case shifted the focus from jurisdictional review to the rationality of the agency’s decision-making. → Crevier came along two years later!  Note: This is a ground-breaking case: 1) Courts should be alert not to brand too quickly as jurisdictional questions that may be doubtfully so (i.e. not all questions of law are jurisdictional). Interpretations of provisions in enabling statutes may not be jurisdictional. 2) Reasons behind privative clauses – courts have to pay attention to the expertise of the tribunal deciding the matter. 3) Once we determine that the matter is within the jurisdiction of the board, it can lose jurisdiction by deciding a question not remitted to it. I.e. call for deference with attachment to the language of jurisdiction 3 Propositions coming out of the PRE?-CUPE jurisprudence: 1) Despite the presence of a strong privative clause, an agency’s decision may be set aside as in excess of its jurisdiction if it is based on an incorrect interpretation of the general law or of a provision of its enabling statute, which, on a pragmatic and functional analysis, the legislature should be held not to have left to the conclusive determination of the agency. 2) An agency exceeds its jurisdiction by placing a patently unreasonable interpretation on those provisions of its enabling statute which, on a pragmatic and functional approach to the statutory scheme, the legislature should be regarded as having entrusted conclusively to the agency to interpret. 3) Privative clauses that fall short of outright prohibitions of judicial review do not provide much protection from judicial review.

92

See page 814 for analysis of CUPE and Nicholson After CUPE: Evoluition of the Pragmatic and Functional Approach Not all qs of law arising from the interpretation of a decision-maker’s enabling statute are said to warrant deference. That is so, per Dunsmuir, where the q of law is considered to be of central imptce to the legal system as a whole and outside the specialized expertise of the decision-maker. So question of Jurisdiction is understood simply to be a question of law which, based on a pragmatic and functional approach, attracts a correctness standard. U.E.S. v. Bibeault [1988] SCC first named the modern approach to the standard of review as the pragmatic and functional approach while also rejecting the preliminary question doctrine. “The formalistic analysis of the preliminary or collateral question theory is giving way to a pragmatic and functional analysis, hitherto associated with the concept of the patently unreasonable error” Patently unreasonable error results in an excess of jurisdiction when the q at issue is within the tribunal’s jurisdiction In the case of a legislative provision limiting the tribunal’s jurisdiction, a simple error will result in loss of jurisdiction -

-

-

The first step of the test is to assess the scope of the tribunal’s jurisdiction: 1. examine the language of the statute; 2. the powers the statute confers; 3. the expertise of the members and 4. the nature of the problem; These factors eventually evolve to become a formal four prone pragmatic and functional test; This approach speaks for more nuanced analysis for determining standard of review; We now reject the preliminary and collateral approach and look at the variety of factors, including the language of the statute, the purpose of the power and the expertise of the members and the nature of the problem – the factors that we look at for indicia as to what level of deference should be afforded; how did the court apply the factors: the tribunal did not have jurisdiction to decide because it was other types of common law interpretations including the definition that tribunal had to apply; level of deference was eventually overruled.

Summary: - even though the court does not afford deference, ultimately what the court has done is provided a more nuanced approach to assessing deference, giving a range of factors for determining the standard of review. Therefore, post-Bibeault, there were two ways that a tribunal could "lose" their jurisdiction: a) Tribunal makes an error interpreting their enabling statute in deciding whether they have jurisdiction b) Tribunal makes a patently unreasonable error - Essentially, a tribunal never has the jurisdiction to act patently unreasonably - ie: tribunal has jurisdiction to answer Q  they answer Q  patently unreasonable answer  therefore the decision is overturned  and they lose their jurisdiction

93

10. Evolution of the Standard of Review Analysis In this section, we build on the history lesson and have you read some more history, examining some of the key cases developing some of the concepts that still remain important in modern law – not least the application of the “pragmatic and functional” test to errors of law and ultimately discretion. But this is still history. You’re not at the current law yet. Pezim v. British Columbia [1994] SCC Facts: Pezim and other respondents were taking charges before BCSC for violating the timely disclosure provisions and insider trading. The BCSC found that Pezim and other respondents failed to disclose material info but it did not find them guilty of insider trading. The statute provided a right of appeal on questions of law with leave of the court. The Court of Appeal looked at what BCSC has done in its decision and decided that it was wrong in its conclusion in finding that the respondent was guilty in failing to disclose the material information. Issue: when a statutory right of appeal exists (but no privative clause), what standard of review applies? SCC (Iacobucci J. on behalf of unanimous court): - notes the primary goal of the Securities Act is to protect investor but also other goals – capital market efficiency and ensuring public confidence in system. - Central question in determining standard of review is to determine the legislative intent in conferring jurisdiction to the admin tribunal. To answer look factors such as : 1. the role and the function of the tribunal; 2. existence of privative clause; 3. does the question go to the jurisdiction of the tribunal involved. - Courts have developed a spectrum that ranges from the std of reasonableness to correctness. - Reasonableness end of spectrum (where deference by court is highest) – cases where tribunal is protected by a full privative clause - Correctness end of spectrum (where deference by court is lowest) – cases where issues concern interpretation of a provision limiting tribunal’s jurisdiction. - In this case bar is between the two – on one hand dealing with a statutory right of appeal but it is from a highly specialised tribunal on an issue that arguably goes to core of its regulatory mandate and expertise. - even with statutory appeals and lack of privative clause there is some degree of deference with respect to issues which fall squarely within the tribunal’s area of expertise; - notwithstanding the typical approach to right of appeal case (standard of correctness), he says there should be some degree of deference to tribunal when it operates within its area of expertise; - in this case: 1. the securities commission has an extensive experience in matters in issue; breadth of specialization; broad powers of investigation – he looks at these factors under the heading of “expertise” of the tribunal and concludes that these factors constitute a basis for deference; he concludes that in this case the issues were definitely within the expertise of the securities commission; 2. the most important factor in addition to finding the specialized knowledge, is the commission’s role in policy development; 1. “It is clear that it was the legislature’s intention to give the Commission a very broad discretion to determine what is in the public’s interest. To me, this is an additional basis for judicial deference.” - Finding – having regard to the nature of the securities industry, the Commission’s specialisation of duties and policy devpt roleas well as nature of problem before court, considerable deference is warranted in the present case notwithstanding fact that there is a statutory right of appeal and there is no privative clause - Finding – the majority of the C of A erred in failing to appreciate the commissions role in an area requiring special knowledge and sophistication. NOTE:

94

Pezim – stands for the proposition that where the admin agency is dealing with policy development or public policy issues – that demands a higher degree of deference; In the next case we see the development of the “reasonableness simpliciter” standard of review Canada v. Southam Inc. [1997] SCC – Until Southam we had only two standards of review: patently unreasonable and correctness. This case introduced the third level of review: reasonableness simpliciter; Facts: Federal competition agency investigates S; they allege that S acquired a number of regional newspapers and their acquisitions of community papers damages competition in newspaper advertising, particularly in BC; the fed comp agency is trying to make S to divest some of its newspapers; The hearing before the comp tribunal finds that S’s acquisition of these community newspapers did decrease a level of competition, but only in particular geographical area; the tribunal decided that the best thing for S to do is to divest itself of one paper; but it leaves it up to S to decide which one; the comp agency appeals – the competition act provided a right to appeal with leave to the federal court; S. cross-appeals on order to divest itself of one newspaper; Issue: whether the federal court of appeal erred in finding that it owed no deference to the tribunal’s finding about the relevant geographical area; what standard of review applies to the tribunal’s decision? SCC (Iacobucci J.): - to determine the standard of review the court for the first time calls together all of the previous factors; - he applies “reasonableness simpliciter” standard of review i.e. was the tribunal’s decision reasonable – if it was, it should stand and if not, it falls; - in this case there is a statutory right of appeal so no question arises about the extent of the tribunal’s jurisdiction (no need to see if tribunal has exceeded jurisdiction by breaching rules of natural justice or rendering a patently unreasonable decsion). - he articulates four factors: 1. Assessing the nature of the problem before the Tribunal : 1. he looks at what is the issue before the tribunal: was it the question of law, the question of fact or the question of mixed law and fact; 1. Question of law – the legal test of statutory interpretation and has potential to apply widely to other cases; 2. Question of fact – looks at what actually happened between parties; it is particular and unique to the parties and unique to the circumstances of the case, and therefore does not have broader possibilities; 3. Questions of mixed fact and law – whether the facts satisfy the legal test; 1. So the general rule of thumb – higher deference for questions of fact, lower deference for questions of law, however it is unclear whether the question of law are within the jurisdiction or not within the jurisdiction; some deference is afforded when we deal with mixed questions of law and fact; 2. courts should be reluctant to venture into re-examining mixed questions of law and fact; 2. The words of the Tribunal’s Constating Statute: 1. does the statute has a right of appeal provision 1. for the right of appeal – lower level of deference 2. but even a right of appeal does not settle the question – if it is in the tribunal’s expertise some deference may be afforded (Pezim) 2. does it have a privative clause 1. depends on how strict the privative clause is

95

3.

-

The purpose of the statute that the Tribunal administers: 1. where the statutory scheme is complex with significant economic or policy concerns, then the purpose of the statute is better served by deference 4. Tribunal’s expertise: 1. the most important factor, because it overlaps with statutory purpose; the courts expertise overlaps with all of the other factors: it is reflected in the privative clause and the issue of the problem; if the issue of the problem is a question of fact, then the court will assess tribunal’s expertise to deal with it; in this case the court was convinced that the competition bureau was a specialized tribunal on commercial matters and it dealt with issues of protecting public interest and had a complex economic regulatory mandate; with all the factors coming together and despite the right of appeal that the tribunal should be afforded a deferential standard;

-

traditionally it should be afforded the correctness standard in the right of appeal case, but the court is not comfortable with the patently unreasonable standard in these circumstances because of the right to appeal;

-

in S we see the birth of the spectrums of standards of review; and the reasonable simpliciter standard is born; Iacobucci J. stated the difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect: 1. Patently Unreasonable: 1. he defect is apparent on the face of the tribunal's reasons (most deference, as court will only overturn decision if no one in their right mind would've done it) 2. Reasonableness Simipliciter: 1. the defect is apparent only after some significant searching or testing (middle ground, most frequent, as court will only overturn if the decision was unreasonable) 3. Correctness: 1. the decision is appropriate and proper in the circumstances (least amount of deference, as court will only overturn the decision if it is clearly "wrong") The “reasonableness simpliciter” standard rests between correctness and patently unreasonableness. A decision which satisfies the reasonableness standard is a decision that, although defective, can stand up to a somewhat probing examination.

-

-

NOTE: - these are the four factors to decide which standard of review is applicable and what deference is owed - none of the factors is conclusive; you have to do balancing and explain why you would afford deference one way or the other; Note- deferential position towards professional disciplinary committees adopted historically: Re Shulman and College of Physicians (1980) – held that court should not intervene unless the disciplinary committee’s decision was unreasonable Re Feingold (1981) – Court rejected the above approach and because of broad right of appeal, court should not be deferential and is obliged to apply a correctness standard Law Society of New Brunswick v Ryan [2003] – Court said deference due to determination of law society of appropriate penalty for serious prof misconduct. Bishop v Alberta College of Optometrists [2009] – Std of review is reasonableness. A decision is reasonable if it is justifiable, transparent and intelligible and “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” per Dunsmuir. Upheld the decision of the council re unprofessional conduct.

96

Pushpanathan v. Canada [1998] SCC – An authoritative annunciation of the pragmatic and functional analysis Facts: Involves Immigration and Refugee Board, where it had to consider an interpretation of international convention; P has made a refugee claim, but his refugee application has never been processed; after residing for couple of years charged with criminal offences and was found guilty for conspiracy in trafficking narcotics and immigration moved to deport him; since his original refugee status was never resolved, he claimed a conventional refugee status; this involves interpreting of a number of international covenants, including the UN convention relating to the status of refugee; the board applies the convention all the time but rarely in connection with assessment of whether or not the refugee status is negated by the conviction; Issues: what standard of review should be applied to the board’s decision? Also, meaning of the exclusion from refugee status of those who are “guilty of acts contrary to the purposes and principles of the United Nations” (Article 1F(c) of the UN Convention Relating to the Status of Refugees) SCC (Bastarache J.): - Lower ct decisions and submissions to SCC did not cover the proper std of review of the decision of the Board. At trial level, the judge found that the Board “reasonably concluded” that there were serious reasons for considering that P was excluded by Article 1F(c) – implies a reasonable std. But in giving leave to appear, he asked whether Board’s determination was an “error of law” – implying a correctness std. - Central inquiry in determining the std of review is the legislative intent of the statute creating the tribunal. Specifically, court must ask “was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board”? - the standard of review assessment is always provision specific; you can have different standards of review within the same statute; General Overview of Pragmatic & Functional Analysis: - Based on an evaluation of the foregoing four multi-faceted factors, a court will determine what degree of deference is owed and upon what standard of review an administrative decision should be assessed. - These factors must be considered collectively, often overlap, and no particular factor is determinative: 1. Privative Clauses and Statutory Rights of Appeal - Privative clause is a provision of a statute which seeks to limit, restrict or entirely eliminate the possibility of judicial review; - Privative clauses were understood as the legislative way to try and shield the tribunal from the review; - degree of deference depends on stringency of privative clause, thus the presence of a “full” privative clause is considered to be compelling evidence that a court ought to show deference to the tribunal’s decision 1. when you have a strong privative clause present, that typically means that the court affords high deference and reaches for the patently unreasonable standard; 2. the full privative clause is typically worded as “the decision is final and conclusive”, or “final and binding”; - conversely, a statutory right of appeal is suggestive of a lower standard of deference, such as correctness, but not always conclusive - the presence of either a privative or appeal clause is never determinative; lower or higher deference will be shown where other factors strongly warrant 2. Expertise of the tribunal (you have to consider all three): - is made up of three dimensions: 1. expertise of the tribunal generally: 1. the court looks at the statute to see if it provides any special procedures that speak of expertise or specialized knowledge: eg broad investigation power – suggests higher level of deference; 2. court’s expertise relative to the tribunal

97

-

-

-

1. you look at the tribunal’s make-up: is it a tri-partite panel, is it a lay-person panel; 2. the knowledge of the admin decision makers relative to the court itself 3. the nature of the specific issue relative to the tribunal’s expertise 1. does the tribunal have the expertise with regard to the specific issue? 3. The purpose of the Act as a Whole and the Provision in Particular where legislation conceives a scheme, not primarily in terms of right between parties or entitlement,s but involving a specialized tribunal that has multi-factoral balancing duties, including protecting public interest and policy development, then generally greater deference is owed 1. this factor has a life of its own, has its own terminology 2. we are looking at: 1. whether the legislature created a scheme involving a specialized tribunal and 2. whether this specialized tribunal is contemplating or undertaking a multi-factoral balancing of interests and duties; and 3. whether that multi-functional balancing involves policy development and public interest – these are indicia of greater deference 3. a very famous quotation: “where an admin agency is involved in the multi-factoral balancing of interest and duty, what is happening is a polycentric decision making. And where there is a polycentric decision making, there is a greater need for judicial deference” 4. a “polycentric issue is one which involves a large number of interlocking and interacting interests and considerations” 5. so, where the tribunal is involved in the polycentric decision making, then the court expertise is relatively less significant, courts will exercise restraint; 4. The Nature of the Problem. Q of Law or Fact? even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention. But where other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law. questions of law (low deference), fact (highest deference) or mixed law and fact (higher) = all rebuttable 1. the court is looking at the specific nature of the issue that is subject to the judicial review; 2. if the tribunal’s functioning is primarily fact finding, then we have a higher standard of deference; 3. similarlily there is a presumption that questions of law are subject to less deference because courts are more experienced in dealing with questions of law; 4. both of these presumptions can be rebutted by weighing all four factors;

Judge notes that this is the first time the SCC has had the opp to consider the std of review over decisions of the Immigration and Refugee Board. In most cases a patent unreasonableness or “perverse and capricious” std is applied. Those cases involved review of findings on credibility of witnesses provided by Board. He notes the decision of Sivasamboo v. Canada by a lower court that found that the patent unreasonableness standard of review should apply to decisions of the Immigration and Refugee Board. He disagrees and says the better standard of review is correctness. Key to the legislative intention as to the std of review is the use of the words “a serious question of general importance”. General importance, ie its applicability to future cases, warrants review by a court of justice. Would legislature hve provided for an exceptional appeal to coart of appeal on questions of “general importance” but then required that despite the “general importance” of the question, the court accepts the decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? Only way s83(1) can be given its explicitly argued scope is for the Court of Appeal to be able to substitute its decision in for the Board.

98

Moreover, Board appears to enjoy no relative expertise in the matter of law which is subject of judicial review here. SCC has ruled no deference should be shown in human rights tribunals on general questions of law. Board’s expertise in matters relating to human rights is less developed than that of human rights tribunals. Board’s expertise is evaluating whether criteria for refugee status have been met and assessing risk of persecution faced by applicant if returned to country of origin. Relationship of Board’s expertise and provision is question is remote - not experts with respect to the international law and international conventions. Only 10% of Board needs to be lawyers under statute and no req that there be a lawyer on every panel. Board is not characterised as performing a managing or supervisory function as was found in Southam. Not resp for policy evolution. Article 1F’s purpose is not management of flows of people but human rights protection. Deals with one case, one person; it is not hearing evidence or undertaking an adjudicating function for a polycentric assessment; Also noted absence of privative clause. Held that correctness is std of review. Application of the correctness standard: Held that Board erred in dismissing the objects and purposes of the UN Convention Relating to the Status of Refugees and in according no weight to the indications provided in the travaux préparatoires (submissions of individual delegations when negotiating a treaty). Starting point of interpretation exercise is to define the purpose of the Convention as a whole and second, the purpose and place of Article 1F(c) within that scheme. Crucial is the manner in which the logic of the exclusion in Article 1F generally and IF(c) in particular is related to the purpose of the Convention as a whole. Rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of the Convention designed to protect these refugees. With this in mind he considers what acts are contrary to the purposes and principles of the United Nations. He says drug trafficking is not considered contrary to the purposes and principles of the United Nations. Abuse of discretion as a ground of Judicial Review Baker v Minister of Citizenship & Immigration (1999) This is looking at the issue of abuse of discretion (focus on procedural fairness is set out earlier). Facts: • Ms Baker, a citizen of Jamaica, entered Canada on a visitor permit, but overstayed illegally for many years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered. • When discovered to be living in Canada illegally she is ordered to be deported under the Immigration Act. Her last resort under the Act is application to the Minister to be allowed to stay in Canada on “humanitarian and compassionate grounds”. Her written application includes medical evidence that if deported she will likely become ill again with no medication, and that she is sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if

99

•

•

she is deported). Application reviewed by junior Immigration Officer and recommends she not be allowed to stay on humanitarian and compassionate grounds. Recommendation sent to senior Immigration Officer who agrees, so application denied (with no oral hearing and initially no reasons given). When Baker’s counsel asks for reasons, senior Immigration Officer sends notes from junior Immigration Officer. Notes appear inflammatory e.g. capitalized her total number of children (4 in Canada, plus 4 in Jamaica), says she will be a “tremendous strain on our social welfare system”, say that fact she is still in Canada is an “indictment of our system”, and “Canada can no longer afford this kind of generosity”, recommends refusal but warns of “potential for adverse publicity”.

Baker challenges deportation in court, and deportation stayed until concluded. Note not a Charter s.7 case, rather dealt with on common law PF grounds. Baker argued that: 1. the standard of review to be applied to the decision should be correctness; 2. the principles of administrative law require the discretion to be exercised in accordance with the Convention ; 3. the Minister should apply best interests of the child as a primary consideration in humanitarian and compassionate decisions. Court noted that legislation and regulations delegate considerable discretion to the Minster in deciding whether an exemption should be granted on humanitarian and compassionate considerations. What approach to judicial review of administrative discretion should be applied taking into account the pragmatic and functional approach articulated in the courts? Rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations. A general doctrine of “unreasonableness” has sometimes been applied to discretionary decisions. These doctrines incorporate two central ideas: 1. discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, 2. but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms. Applied the pragmatic and functional test. Factors to consider include Expertise of tribunal, Nature of decision being made, Language of provision and surrounding legislation, Polycentric nature?, Amount of choice left by legislature to administrative decisionmaker. Application of the factors: 1. Presence or absence of privative clause

100

No privative clause but judicial review cant commence without leave of Federal Court.. Certification of “a serious question of general importance” required pursuant to s83(1). Existence of this provision means lower level of deference on issues related to the certified question (Pushpanathan) 2. Expertise of decisionmaker In this case it is the Minister – that is a factor in favour of deference. 3. Purpose of the provision and Act This decision involves considerable choice on part of minister in determining whether H&C considerations warrant exemption from reqs of the Act. Decsion involves applying relatively “open textured” legal principles - that is a factor in favour of deference. Also, the purpose of the provision in question is to exempt people from reqs of Act or Regs- that is a factor in favour of deference. But on the other hand, this relates directly to rights and interests of an individual in relation to the govt rather than balancing interests of diff constituencies or mediating between them. 4. Nature of the problem in question (law/fact/mixture)? Decision to grant an H&C exemption involves a considerable appreciation of the facts of an individuals case. Highly discretionary and fact based nature - that is a factor in favour of deference. Conclusion – considerable deference must be given to immigration officers exercising the powers conferred by the legislation, given fact-specific nature of the inquiry, its role in the statutory scheme as an exception, the fact the decision maker is the Minister and the considerable discretion evidenced by the statutory language. BUT absence of privative clause, explicit contemplation of judicial review in certain circs and the individual rather than polycentric nature of the decision also suggest the std should not be as low as “patent unreasonableness”. Finds the appropriate std of review is reasonableness simpliciter. Is the decision unreasonable? An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly a court reviewing a conclusion of the reasonableness std must look to see whether any reasons support it. (Iacobucci in Southam) Notes of Officer Lorenz – who put the fact of FOUR CHILDREN IN JAMAICA and ANOTHER FOUR BORN HERE in caps. These show that the approach taken to the childrens’ interests was unreasonable. He was dismissive of their interests. Failure to give serious weight and consideration to interest of the children constitutes and unreasonable exercise of the discretion. She looked at International Law as part of reaching this conclusion. Iacobucci disagreed with looking at International Law as it is of no effect until incorporated into domestic law. NOTES -

Baker defined the concept of discretion and meaning: refers to the decisions where the law does not dictate the specific outcome or where decision makers are given a choice of options, which are usually within the statutory imposed boundaries; The court in Baker confirmed that judicial review of the discretionary decision making should follow the pragmatic and functional approach; and while recognizing that the minister of immigration was given wide latitude under the statute with regard to humanitarian and compassionate cases, L’H-D J. nevertheless held that discretion must be exercised in a manner

101

that is within the reasonable interpretation of the margin of manoeuvre contemplated by the legislature; discretion must be exercised in accordance with the principles of the rule of law and in line with general principles of the admin law governing the exercise of discretion and in accordance with Constitution and the Charter; Implications: - 1. Spectrum of standards on judicial review now being applied to abuse of discretion - 2. Seems to extend judicial review to the substance of a discretionary decision a. Standard of Correctness  What is an incorrect discretionary decision? A decision that does not have objective criteria (a decision of choice). This doesn’t really work. Courts do not rely on the correctness standard on review of discretionary decisions – will only review on reasonable simpliciter or patently unreasonable standard. b. Suresh.  SCC found that the presence of a Ministerial decision-maker leads to extreme deference (because of expertise and polycentric considerations, discretion) and standard is patently unreasonable • Patently reasonable defined as: a decision made arbitrarily, or in bad faith that cannot be supported by the evidence or where the Minister did not consider the appropriate facts  Side-note: • Suresh won because of the lack of info he was given Court found that the fact that the information was sensitive (he was an accused terrorist) is a consideration but does not mean Suresh is not entitled to know the case before him ************************* Roncarelli v. Duplessis, [1959] Set out principle that it is for the courts to ensure that the agency does not use its power for some purpose not authorized by the legislature or base its decision on a range of factors that are wider or narrower than those intended by the legislature to inform the exercise of the discretion. In this case the Premier D ordered liquor licensing commission to revoke R’s licence because he posted bail bonds for Jehovah’s Witnesses. “In public regulation of this sort there is no such thing as absolute and untrammeled discretion… Discretion necessarily implies good faith in discharging public duty…” ************************* Courts typically assumed that it was their function on an application for review to determine independently the scope of the agency’s statutory discretion – whether a factor considered by the agency was relevant or a purpose pursued was authorized is reviewable by a std of correctness not reasonableness. But after Baker – in the realm of failing to take account of relevant factors, taking account of irrelevant factors even acting for improper purposes, one must now ask whether the std of review is that of correctness or reasonableness. Baker and Dunsmuir recognize at least the occasional need for deference to discretionary procedural choices. ************************* Suresh v. Canada [2002] SCC

102

Facts: • Minister had exercised ministerial discretion and decided to deport Suresh, an alleged member of the Sri Lankan Tamils (a terrorist group), on grounds that he was a danger to the security of Canada. • But Suresh alleged that there was a possibility that he’d be in serious jeopardy of torture if sent home. Decision • To deport a refugee to face a substantial risk of torture would generally violate s.7 of the Charter. The Minister must exercise her discretion to deport accordingly – which she did. Court noted there were four types of issues: (1) constitutional review of the provisions of Immigration Act (2) whether Suresh’s presence in Canada constitutes a danger to national security (3) whether Suresh faces substantial risk of torture if returned to Sri Lanka (4) whether procedures used by Minister under the Act were adequate to protect Suresh’s constitutional rights (1) Constitutional issue is whether it would shock the Canadian conscience to deport Suresh once a substantial risk of torture has been established. This is where s7 of Charter is engaged. Since ordering a new hearing, not required to review Minister’s decisions on whether Suresh’s presence in Canada constitutes a danger to national security or whether Suresh faces substantial risk of torture if returned to Sri Lanka, but offer comments to assist courts in future ministerial review. (2) Did Suresh’s presence in Canada constitute a danger to national security? • Deference should be accorded, so review of decision on standard of patent unreasonableness (i.e. arbitrary or bad faith, can’t be supported on the evidence or failed to consider relevant factors) • The court should not re-weigh the factors or interfere merely bc it would have come to a different conclusion. • This standard of deference stems from language of the Immigration Act. • All 4 factors point to deference 1) Parl intended limited right of appeal (no privative clause, but need leave to appeal to FCA) 2) Expertise of Minister and access to special information on natl security – favours deference. 3) Purpose of legislation to permit a humanitarian balance of various interests – favours deference 4) Nature of the case: inquiry is highly fact-based and contextual – favours deference. • Question relates to human rights and engages fundamental interests, but Court finds that deferential standard of ministerial review does not prevent human rights. issues from being fully addressed – as long as proper procedural safeguards are in place and provided decisions meet the constitutional req’s of Charter. • It is the Minister who was obliged to give proper weight to relevant factors. Baker does not allow review of weighing process, only review of whether all patently relevant factors were considered. • If Minister has considered the appropriate factors, the court must uphold her decision. It cannot set it aside even if it would have weighed them differently or reached another conclusion. (3) Did Suresh face substantial risk of torture if returned to Sri Lanka? • Question is in large part a fact-driven inquiry. It considers a number of issues that are largely outside the realm of expertise of reviewing courts (human rights record in home state, personal risk faced by claimant, any assurances that claimant wont be tortured and their worth, ability of state to control military) and possess negligible legal dimension. They are owed deference. • Court may not reweigh factors considered by Minister, but may intervene if decision is not supported by evidence or fails to consider the appropriate factors (patent unreasonableness). • Decision not patently unreasonable, so upheld. 103

Notes • Court held that ordering deportation despite serious possibility of torture did not violate principles of fundamental justice. It was justifiable as an exceptional measure. • But since Suresh had raised a prima facie risk of torture, he was entitled to higher level of procedural fairness than he received. So the matter was remitted. Why the court is distinguishing its analysis in Suresh from Baker: - in Baker used the lower standard of review, but that does not mean we authorised all judicial reviews of ministerial decisions to be on a reasonable standard, nor do we authorize a new way of the process; - “the Baker does not stand for re-weighting of the factors, the courts do not have to re-weight factors or interfere merely because they would have come to a different conclusion”; - the minister in Baker had delegated his decision making to the immigration officer; - the minister in Baker had failed to apply the guidelines properly; - the decision was not in accordance with the objectives of the legislation as well as inconsistent with international treaties; Conclusion - The task of judicial review is to determine whether the minister exercise of a discretionary decision making is within the constraints imposed by the legislation and constitution; - The court cannot set aside the ministers decision even if it would have weighted the factors differently and came to a different decision; - We award strong precedential value to these obiter comments. - We have here a minister reaching a conclusion of whether an individual will risk torture; and in the face of the decision our court was prepared to afford the highest degree of deference; - A discretionary decision will only be patently unreasonable if (a court will only intervene if) 1. the decision is not supported by the evidence, 2. is unreasonable decision on its face, 3. there was a failure to uphold procedural fairness; or 4. a failure to comply with the legislation; Range of the immigration decisions that would adopt the polycentric criteria: - Pushpanathan where the court applied the correctness standard, acknowledging that that was a polycentric decision; - Baker, where the court applied reasonableness standard (again a polycentric decision); - Suresh, where the court applied patently unreasonable standard Why do we trigger different standards of review? - now we have a very specialized legislation and tribunals; - it depends on what type of question the courts are dealing with: are we dealing with questions of law or fact, or mixed fact and law; - what is the nature of the entity, the decision maker? *************************************** Shell Canada Products Ltd v. Vancouver (City) [1994] 1 SCR 231 (BC) Facts: • City passes resolution to not do business w/ Shell bc it deals w/ apartheid South Africa. • Shell contests this and alleges the council exercised its statutory discretion for an improper purpose. Issue • Does this constitute improper use of discretion? YES (Shell wins) (5-4) McLaughlin notes there are two approaches that can be adopted – Sopika took a narrow, confining view of municipal powers and McLaughlin advocates a more generous view, more deferential.

104

Holding McLachlin dissent • It is for elected city council to decide what the interests of City inhabitants are. People can certainly have interests that go beyond the simply material – ie the moral ones. And this can include not doing business with apartheid. • Courts are to be very cautious when stepping in to review the decision of elected bodies. They can review the process of the decision-making and here the council heard both sides of the issue before passing its resolutions. • Advocates a more generous view of municipal powers and a more deferential approach to judicial review. Are the Resolutions subject to Judicial Review? • There are arguments both for and against allowing judicial review of the procurement or purchasing powers of govts (ie entering into Ks). The most important difference to draw when comparing to the private sphere is that municipalities undertake their commercial and contractual activities with the use of public funds. As such, they are held to higher standards of scrutiny. • As statutory creations, municipalities must always act within the legal bounds of the powers confered to them. So, doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality’s power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review. The Proper Scope of Judicial Review • Judicial review of municipal decisions is necessary, but must be balanced with the courts not unduly confining municipalities in the responsible exercise of the powers which the legislature has conferred to them. • 2 approaches: (1) narrow construction – pro-interventionist approach; and (2) more liberal approach • There is an emerging concensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what’s best for citizens for those of municipal councils. Court only to step in when municipal decision was beyond its powers. • Why this liberal (generous) approach? 1) Democratic values: Idea that courts must accord proper respect to the democratic responsibilities of elected officials and the rights of those who elect them. 2) Autonomy: Generous approach to municipal powers will aid the efficient functioning of municipal bodies and avoid the costs and uncertainty that come with excessive litigation. 3) Nature of modern municipalities: excessive judicial interference may have effect of confining modern municipalities in the straightjackets of tradition. 4) Deference and stare decisis: more in keeping with Court’s recent decisions. There can be little justification for holding decisions on the welfare of the citizens by elected councillors to a higher standard of review than decisions of non-elected statutory boards and agencies. • Standard of review must be the most deferential (patently unreasonable). Judicial intervention is warranted only where a municipality’s exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power. Were the Resolutions beyond the City’s powers? • Must look at legal principles relevant to review of municipal decisions on the basis of motive. Actions of a municipality can be said to be beyond its powers in two ways: 1) If the action itself is beyond authority’s powers 2) If within its powers, if the purpose for which action is taken is outside municipality’s powers • Canadian courts have rejected the notion that municipal legislation, short of bad faith, should be invalidated on the ground that it was passed for improper purposes, particularly in cases where the municipality can be seen as expressing the moral views of its citizens. • The motives here did not exceed the powers which the legislature has conferred on the city. Amongst the powers is seeing to the “welfare of its citizens” – and this is to include psychological 105

welfare including civic pride/spirit. Courts should not be quick to substitute their views for those of elected officials for what constitutes the welfarfe of the city’s citizens – unless the city has clearly gone beyond its powers. • Material interests of the city should not be seen territorially, in same way moral interests should not be read restrictively. • If the court interprets the general powers narrowly, as Sopinka suggests, they will defeat the very purpose for which these provisions were enacted. • the resolution was not outside of the powers; was not beyond of what could be captured under the “good government”; Sopinka J • What’s being challenged by Shell is not the action of the City council, but their motives. Motives are attached on the ground that they relate to the conduct of Shell outside the city of Vancouver and hence to matters that are irrelevant to municipal concerns. • The motives of public authority must coincide with the authority given to them by Statute. • City had no material interests in whether Shell was conducting business with South Africa or not. Reviewability • Powers of municipality are classified for some purposes – which include legislative, quasi-judicial and business functions. Since they are creatures of statute, municipalities must stay within these conferred powers. • None of these powers are immune from review. There is no good policy ground for providing immunity. Rather, there’s good reason to encourage municipalities to act within their statutory powers • City contends that it could have simply refused to deal w/ Shell, without passing the Resolutions. Sopinka does not appreciate this argument since it implies that they could have acted in a manner that would have been immune from judicial review. Instead, he finds that any policy or plan not to deal with Shell would require a decision of Council. Any such decision must be grounded in statutory power and, whatever its form, would be reviewable. Impermissible Purpose • In most cases, as here, the problem arises w/ respect to the exercise of power that is not expressly conferred but is sought to be implied on the basis of a general grant of power. So q’n becomes whether the Resolutions were passed for a municipal purpose. • Sopinka limits municipal purpose to “good govt, health or welfare” of the City or its citizens and finds that no implicit purpose can be read into the Resolution. Instead, he finds that City was seeking to use its powers to do business to affect matters in other parts of the world, outside its territorial limits. • Council can have regard for matters beyond its boundaries, but in so doing the action must have as its purpose benefit to the citizens of the City. • The clauses that give municipalities vague powers are “general sections” to be found in most Municipal acts and “must be construed subject to the limitations imposed by the purpose of the statute as a whole.” Any power implied for their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality. Notes Both judges agree that considerable deference was due to city councils and municipalities bc of elected nature. But Sopinka felt the decision here went beyond the scope of what interests the municipality. Failure to consider relevant factors Previous case was a challenge on basis that the administrative body took into account a factor that was pursuing an improper purpose. Failure to take into consideration a relevant factor can alsoe be a basis for impugning the vires of an agency’s exercise of discretion. 106

One view is that decisionmakers must assemble all factos they may lawfully take into account when exercising discretion – unwieldly – very onerous. Other version is that while an agency may consider a large number of factors in the exercise of a discretionary power (permissive relevant considerations), it is required to consider only some of them (mandatory relevant considerations). An exercise of discretion will therefore be ultra vires only of the agency overlooked a factor that the enabling statute (expressly or impliedly) obliged it to consider. ]Whether a particular factor was one that the agency had to take into account in exercising discretion should be determined by reference to the importance of that factor to the discharge of its statutory mandate (per Cook in Tavita v. Minister of Immigration – NZ case). Baker makes it clear that international law (including unincorporated ratified treaties) must be taken into account. Reference re Secession of Quebec will require taking into account one or more of the four underlying principles of Canadian Constitutional law. If an agency it does overlook a factor, it doesnt mean that it has misinterpreted its statute, but that it has overlooked evidence that would establish whether a legally relevant fact existed. Oakwood Developments a municipality refused a developer permission to subdivide land for residential development b/c of flood risk. Municipality didn’t read an engineer report that set out measures to avoid the problem. Court held ultra vires because they failed to consider evidence highly material to its legitimate concerns. Note – court didn’t rule on this but could also have been breach of duty of pf b/c developer denied opp to tender evidence in support of claim. Multiple purposes and considerations What if agency exercised a stat discretion to achieve several purposes, only one of which is improper. What if the irrelevant factor taken into account is only one of several relevant considerations that shaped decision? Court will only hold such decisions to be ultra vires if the unlawful purpose or consideration played a dominant or material role in the exercise of the discretion. Canadian Assn of Regulated Importers v. Canada (Attorney General) Professional licensing and the Relevancy Principle Requirements for “good character” for licencing. Disciplinary proceedings for “conduct unbecoming” a professional. Responsibility for elaborating on these open ended stds is normally left to the governing body of the profession. Recognition that these powers are conferred in order to protect the public rather than to boost image of profession, doesn’t eliminate potential difficulties in deciding whether a particular factor is legally relevant to power to exclude from registration or to discipline Discretion and the Charter, Underlying Principles of the Constitution and International Law Page 984 of text Delegated Legislation It can be subject to judicial review – even on grounds of ultra vires. Courts historically willing to review legislation passed by municipalities. Unreviewable Discretionary Powers?

107

Prerogative Powers and Non-Justiciability Royal prerogative – issue and refusal to issue passports, awards of honors, signing of treaties, conduct of foreign affairs and disposition of armed forces. Prerogative powers not usually subject to normal range of judicial review because: 1. role of courts in admin law has traditionally been said to ensure govt agencies comply with the duly expressed instructions of legislature and the principles of admin law are essentially rules of statutory interpretation. 2. exercise of most of the prerogative powers that have survived until today do not impinge directly on legal rights of individuals. i.e. grant of privileges or actions that effect public in much the same way. Clear now that courts, in determining whether a discretionary power is exempt from review, will be influenced more by the nature of the power in question and less by its legal source. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Commonly known as the GCHQ case, was an English administrative law case which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join any trade union for national security reasons. This was enforced through an Order in Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order in Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety. From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source Diplock held that any prerogative power which impacted on the "private rights or legitimate expectations" of people was subject to review. Despite this attitude, the appeal failed due to the national security grounds. Lords Fraser, Scarman and Diplock all believed that the issue of national security was outside the remit of the courts, Scarman writing that "It is par excellence a non-justiciable question. The judicial process is totally inept [sic] to deal with the sort of problems which it [national security] involves. Black v. Canada (Prime Minister) (2001) Whether prerogative power exercised by PM to advise Queen on conferral of honours was reviewable in courts. Court held the source of power – statute or prerogative – should not determine whether the action complained of is reviewable. Mr. Blacks rights were not affected and no Canadian citizen has a right to an honour – PMs exercise of honours prerogative is not judicially reviewable.

108

11. The Current Test These are the readings on substantive review that bring you up to speed. Dunsmuir is your focus. Understand it. Understand how it creates two standards of review, and what each means. Understand how it changes the test used to decide which of these two standards of review should be applied. Consider how Dunsmuir has been interpreted by other courts and in other cases. No, it hasn’t been construed perfectly consistently and there are elements of post-Dunsmuir cases (like Khosa) that seem to go back to a “pragmatic and functional” test. But consider also the recent case of Smith and what it seems to suggest about Dunsmuir’s meaning. It proposes a pretty simple standard of review test. Dunsmuir lays out the current framework - “Standard of Review Analysis” although it encompasses the factors that previously applied under the “Pragmatic and Functional”. Factors are: 1. presence and terms of privative clause or right of appeal under statute 2. nature of the question that is under review 3. expertise of decisionmaker 4. statutory purpose and context in which the decisionmaking took place. Dunsmuir did not radically alter the court’s commitment to judicial deference for administrative decisionmaking but it made significant changes to the method of implementation of that commitment: 1. reduced the number of standards of review from three to two. Highly deferential “patent unreasonableness” standard doesn’t disappear entirely – seems to continue where its usage is dictated by a past decision or by an express statutory provision 2. new std of reasonableness is not necessarily the same as the old reasonableness simpliciter and appears to convey an adaptable approach to deference in different circs, shifting many questions in the standard of review analysis to the stage at which the standard of reasonableness, once arrived at, is applied. 3. std of correctness has more or less the same meaning. The first stage of the Standard of Review Analysis is to determine the appropriate std of review. Must an administrative decision be unreasonable or simply incorrect, in the court’s view, for the court to set it aside. Second stage is to appy that standard on the merits of the case at hand in order to decide the outcome of judicial review. Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 Facts Dunsmuir was court official with New Brunswick Dept of Justice. Provincial public servant and a statutory office holders at pleasure. Dismissed after being reprimanded on 3 occassions and given 4.5 months salary in lieu of notice (instead of for cause). NB govt relied on s20 of the Civil Service Act which said “subject to provisions of this Act and any other Act, termination shall be governed by the ordinary rules of contract”. S100.1 of Public Service Labour Relations Act extended grievance rights to non-unionised employees like D and incorporates s97(2.1) of Public Service Labour Relations Act which provided that where an adjudicator determines that the employee has been discharged or otherwise disciplined for cause

109

the adjudicator may substitute such other penalty for the discharge or discipline as to the adjudicator seems just and reasonable in all the circumstances. Apparently to avoid the effect of this provision, the official reason of the govt was that he was not suitable for the position he was occupying, not that there was cause for the dismissal. D argued that in reality he was fired for cause and that, if he established this was the case and that the govt did not actually have cause, he was entitled to seek reinstatement based on the common law of dismissal of public officers. A mutually agreed PSLRA adjudicator heard the case and concluded that an employer could not avoid an inquiry into real reasons for dismissal by stating cause was not alleged. Rather, emoployee entitled to an adjudication on whether a discharge purportedly with notice or pay in lieu thereof was in fact for cause. Then held that the termination was not disciplinary but based on employers concerns about D’s performance and suitability for positions D held. Based on law of dismissal of public officers (pursuant to Knight v Indian Head), adjudicator held that D should have been informed of reasons for dissatisfaction and given opp to respond. He declared termination void and ordered D reinstated as of the date of dinmissal. He also ordered that if the reinstatement order was quashed on judicial review, the appropriate notice period is 8 months. On judicial review Rideout J of NB Court of Queens Benc applied the pragmatic and functional approach and concluded that appropriate std of review was correctness and court need not show deference to adjudicator’s interpretation of Civil Service Act and PSLRA (in spite of presence of a full privative clause in PSLRA and relative expertise of adjudicators appted under PSLRA). Rideout J concluded that adjudicator wrongly interpreted the relevant statutes and he lacked jurisdiction to review circs of D’s dismissal under PSLRA. The NB Court of Appeal, held that the appropriate std of review was reasonableness simpliciter but that it was unreasonable, based on relevant statutes, for the adjudicator not to accept the employer’s portrayal of the dismissal as not for cause. Only right of D in the circs was to challenge the length of the notice period. II Issues 1. – Approach to be take in JR of a decision of a particular adjudicative tribunal. Allows SCC to reexamine foundations of JR and the standards of review applicable in various situations. 2. – Examine whether D who held an office “at pleasure” in NB civil services, had the right to procedural fairness in the employer’s decision to terminate him. SCC will reassess the rule in Knight This means two type of JR – on the merits and on the process. Will be a comprehensive review as a holistic approach is needed when considering fundamental principles. III. Issue 1 – Review of the Adjudicator’s Statutory Interpretation Determination A. Judicial Review Courts when exercising constitutional functions of JR, must still be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of admin functions in respect of matters delegated to administrative bodies by legislature. All decision-making powers have legal limits from enabling statute, common or civil law or the Constitution. JR is means by which courts ensure that those who exercise statutory powers do not overstep their legal authority. Function of JR is to ensure legality, reasonableness and fairness of administrative process.

110

Decision-maker may not exercise legal authority not specifically assigned to them. By acting in absence of legal authority, the decision-maker transgresses the principle of rule of law. The standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. JR also (in addition to upholding rule of law) performs impt constitutional function in maintaining legislative supremacy. Per Cromwell – “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law. The rule of law is maintained b/c the courts have the last word in jurisdiction and legislative supremacy is assured b/c determining the applicable std of review is accomplished by establishing legislative intent. Legislature cannot remove courts’ power to review actions and decisions of administrative bodies for compliance with the constitution. Even a privative clause cannot be determinative in this respect. The courts power to review administrative action and ensure it does not exceed jurisdiction comes from 296-101 of Constitution Act 1867 – it is consitutioanlly guarantee. Time to examine JR and develop a principled framework that is more coherent and workable. B. Reconsidering the Standards of Judicial Review Current approach is 3 standards – correctness (no deference), reasonableness simpliciter (middle), patent unreasonableness (most deference). Time to reconsider the number and definitions of the various standards of review and the analytical process employed to determine which standard applies in a given situation. There should be two standards – Correctness and reasonableness. C. Two Standards of Review Court has moved from a highly formalistic, artificial “jurisdiction” test [preliminary question], that could be easily manipulated to a highly contextual “functional” test [pragmatic and functional] that provides great flexibility but little real on-the-ground guidance and offers too many standards of review. Need a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. (1) Defining the Concepts of Reasonableness and Correctness [NOTE THIS IS WHERE THE TWO STDS OF REVIEW ARE DISCUSSED] (2) Determining the Appropriate Standard of Review Method for selecting the appropriate standard in individual cases. Questions of fact, discretion and policy and questions where legal issues cannot easily be separated from fact generally attract a standard of reasonableness. Legal issues generally attract a standard of correctness. Some legal issues attract the more deferential standard of reasonableness. Existence of privative clause give rise to a strong indication of review pursuant to reasonableness standard. This conclusion is appropriate because the clause is evidence of legislative intent that the administrative decision be given greater deference and that interference by reviewing courts be minimised. Doesn’t mean that a privative clause is determinative. Rule of law requires that

111

constitutional role of superior courts be preserved and legislature cannot completely remove the courts power to review actions and decisions of administrative bodies. JR needed to ensure privative clause is read in approprioate statutory context and that administrative bodies don’t exceed their jurisdiction. Questions of fact, discretion and policy – deference will usually automatically apply. Same std applied where legal and factual issues are intertwined and cannot be readily separated Guidance re questions that will be reviewed in a reasonableness std can be found in existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have a particular familiarity. Deference will also be warranted where an admin tribunal has developed particular expertise in the application of a general common law rule or civil law rule in relation to a specific statutory context (e.g. adjudication in labour law). Consideration of these factors will lead to the conclusion that the decisionmaker should be given deference and a reasonableness test applied: • • •

A privative clause (statutory direction from legislature indicating need for deference) A discrete and special admin regime in which the decisionmaker has special expertise (e.g. labour relations) The nature of the question of law. A question of law that is of “central importance to the legal system and outside the specialised area of expertise” of the decisionmaker will always attract a correctness standard. A question of law that doesn’t rise to this level may be conmpatible with reasonableness standard where the above two factors so indicate.

It these factors, considered together, point to a standard of reasonableness, the decisionmaker’s decision should be approached with deference. An exhaustive review is not required in every case to determine proper standard. Existing jurisprudence may be helpful some of the questions that generally fall to be determined according to the correctness std. Analysis required is deemed to have been performed already. E.g. correctness standard found to apply to constitutional questions regarding division of powers between Parliament and provinces in Constitution Act 1867. Such q’s as well as other constitutional issues must be subject to correctness standard because of s.96 courts as interpreters of the Constitution. Administrative bodies must also be correct in determination of true questions of jurisdiction or vires. True questions of vires does not include the extended definitions adopted pre-CUPE under the preliminary question doctrine. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the enquiry. A true question of jurisdiction arises where tribunal must determine whether its statutory grant of power gives it the authority to decide a particular matter. Tribunal must It must interpret the grant of power correctly or its action will be ultra vires (or wrongful decline of jurisdiction). Courts must continue to substitute their own view of correct answer where the question is one of general law that is of both “central importance to the legal system as a whole and outside the adjudicator’s specialised area of expertise”. Because of their impact on the justice system as a whole, such questions require uniform and consistent answers. Questions of jurisdictional lines between two or more competing tribunals have been subject to review on correctness standard. JR involves 2 steps: 1. courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question

112

2. if not, then courts must proceed to an analysis of the factors making it possible to identify the proper std of review. Existing approach to determining appropriate std of review is “pragmatic and functional”. Name is unimportant – don’t get fixated on the label at the expense of proper understanding of what the inquiry actually entails. Should use “standard of review analysis” from now on. Analysis is contextual and dependent on the application of a number of relevant factors including: 1. 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; 4. the expertise of the tribunal. In many cases, not necessary to consider all the factors as some may be determinative. D. Application What is the std of review applicable to the adjudicator’s decision? (1) Proper Standard of Review on the Statutory Interpretation Issue Whether combined effect of s97(2.1) and s100.1 of PSLRA permits the adjudicator to inquire into the employer’s reason for dismissing an employee with notice of pay in lieu of notice. Question of law. In light of privative clause, the regime under which adjudicator acted, and nature of question of law involved, should the standard of correctness apply? Clear privative clause here - favours reasonableness Nature of regime favours reasonableness SCC has often recognised the relative expertise of labour arbitrators in the interpretation of collective agreements and counselled that reviews of their decisions should be approached with deference. In this case adjudicator interpreted own statute – suggests reasonableness. Also, he was appointed by mutual agreement of parties (even though it was ad hoc). Legislative purpose confirms this view of the regime – PSLRA establishes a time and cost effective method of resolving employment disputes. Provides an alternative to judicial determination. S,100.1 of PSLRA defines adjudicator’s powers in deciding a dispute and also provides remedial protection for non-unionised employees. Remedial nature of s.100.1 and provision for timely and binding settlements of disputes also imply that reasonableness standard of review is appropriate. Nature of legal question at issue is not of central imptce to the legal system as a whole and outside the specialized expertise of the decision-maker – suggests that reasonableness standard of review is appropriate Appropriate std is reasonableness Deschamps J in his concurring judgement suggests a very different methodology – seeks to recharacterise issue of judicial deference based on the method used by appellate courts to scrutinize lower court decisions. He focuses on the nature of the question more than Dunsmuir majority, alternative approach says that courts- absent statutory direction to contrary – should defer to admin tribunals on qs of fact, and usually on qs of mixed fact and law or of discretion, but presumptively not on qs of law. On q’s of law, deference is only warranted where there is a privative clause and specifically not where there is a statutory right of appeal on such questions. Deference is also precluded where issue falls outside the regular activities of the decsionmaker and its expertise.

113

She came to adopt a correctness standard (because, as D was non-unionised, common law rather than statutory rules applied and adjudicator doesn’t have specific expertise in reviewing common law) and to overturn the decision – despite strong privative clause and longstanding role of labour adjudicators in resolving workplace dismissal grievances Another summary of Deschamps Analysis is: “Justice Deschamps proposed a simplified standard of review analysis focused primarily on the nature of the question. Deference was owed to administrative bodies in their determinations of questions of fact or mixed fact and law, their interpretation and application of laws in respect of which they have expertise, and where their decisions are protected by a privative clause. Deference was not owed on the interpretation of laws falling outside their expertise, including laws of general application. In a clear break from prior doctrine, Justice Deschamps decided that deference was not owed on questions of law for which there was a statutory right of appeal. Since the adjudicator lacked specific expertise regarding the common law rules applicable to Dunsmuir’s termination, she reviewed this decision on the preliminary issue on a correctness standard and quashed it because it “did not even consider” the employer’s common law right to dismiss Dunsmuir without cause.” CF with Binnie J – where applicant for JR challenges substantive outcome of an administrative action, judge is invited to cross the line into second guessing matters that lie within function of administrator. Controversial because it isn’t obvious why judges view of the reasonableness of an admin policy or exercise of admin discretion should be preferred to that of the administrator to whom legislature has allocated the decision, unless there is full right of appeal to courts or the conferring legislation indicates a correctness standard is intended Another summary of Binnie’s Analysis is: “Justice Binnie’s judgment pays close attention to the role of context in substantive review, particularly in defining the content of the new reasonableness standard. He alone notes that the preDunsmuir existence of both a highly deferential and an intermediate standard of review attempted to recognize that administrative decision makers making certain decisions should be entitled to more deference than other administrative decision makers making different decisions: The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate. “Contextualizing” a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represents a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. A single reasonableness standard would require judges to apply the standard “more deferentially and sometimes less deferentially depending on the circumstances,” an approach the Court had expressly rejected in the context of the framework with three standards of review. The degree of deference measured by the contextual factors, including the four factors from the pragmatic and functional approach, would determine the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” In Justice Binnie’s view, “[r]easonableness is a big tent that will have to accommodate a lot of variables that inform and limit a court’s review of the outcome of administrative decision making.” The nature of the question in particular “helps to define the range of reasonable outcomes within which the administrator is authorized to choose.” This range will be broader for a decision premised on the exercise of a broad, policy-infused discretion than for one hinging on the interpretation of a relatively static legal standard.”

114

Rothstein JJ in Khosa agrees with Deschamps in attempts to revise the decsions that prioritise deference where an administrative actor is found to have greater expertise than courts: Discordance between imputed vs actual expertise is one manifestation of larger conceptual unhinging of tribunal expertise from the privative clause. Legislatures that create administrative decision-makers are better able to consider relative qualifications, specialisation and day to day workings of admin bodies that they have constituted. If the legislatures believe that administrative decision-makers have superior expertise on question that traditionally within bailiwick of courts, then it should express it by enacting a privative clause. Dunsmuir majority and Dechamps/Rothstein differ on what to presume in the fact of silence or ambiguity in statute on specific issue of appropriate standard of review. Binnie for majority on Khosa disagrees with Rothstein – in this view the court must apply a std of correctness unless otherwise directed by the legislature. Rejects Rothstein’s effort to roll back the Dunsmuir clock LINGERING QUESTIONS AFTER DUNSMUIR In Dunsmuir Binnie J said the “pragmatic and functional” approach was unduly subtle, unproductive and esoteric and contributed to lengthy and arcane discussions in both factums and on the hearing of applications and appeals, undue cost and delay. Does Dunsmuir solve this? Alice Wolley (law professor) – it may be that a radical change in direction in this area is impossible and the major flaw of Dunsmuir is the judgement’s illusion that it can fix the problem. No generic formula can decide when a specific q is better answered by the admin decision-maker or by court. No test can tell one how to be deferential since deference is neither capitulation nor substitution of judgement, it necessarily requires the drawing of fine lines in particular cases. First Q – Precedent – std of review should follow existing jurisprudence where it has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. How can you tell when a past decision is sufficiently like the case at hand? Lets review post Dunsmuir cases to see. Clear that you should avoid follwing the std of review if there is a sufficiently clear record of past decisions that govern the issue. Second Q – cases where statute or existing jurisprudence dictate a standard of review no longer available after Dunsmuir – BC Administrative Tribunals Act sets out specific standards including patent unreasonableness. In Khosa, the majority held that if statute refers to it, then it continues. BC Administrative Tribunals Act refers to patent unreasonableness so it lives on in BC but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law . What about patent unreasonableness std in existing jurisprudence? Dunsmuir doesn’t really leave that open for a lower court but lower court could adopt reasonableness as the standard and then apply it in a manner like to old patent unreasonableness std. Third Q – proper scope of JR on questions of law – Deference will be shown where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have a

115

particular familiarity or where an admin tribunal has developed particular expertise in the application of a general common law rule or civil law rule in relation to a specific statutory context. But where the q of law is considered to be of central imptce to the legal system as a whole and outside the specialized expertise of the decision-maker. Binnie J says this reference to a new category of qs of law will cause unnecessary confusion: It is a distraction to unleash a debate in the reviewing courtroom about whether the question of law is of central importance to the legal system as a whole. It would be sufficient to exempt from the correctness standard determinations on home statutes or statutes closely related to the administrative decision makers’ expertise. Other than that, the last word on general questions of law should be left to judges. Fourth Q – role of factors in general in the standard of review analysis. Majority said “In many cases, not necessary to consider all the factors as some may be determinative.” Is this correct? To what extent is it necessary for court to refer to several or all of the factors when explaining its reasoning? Difficult to understand the standard of review analysis without appreciating the role that is played by the various factors. Even where a court doesn’t explicitly refer to the underlying factors in the standard of review analysis, therefore, one should appreciate that those factors should always play some role in a court’s decision on whether to defer. Fifth Q – will majority approach provide a coherent and workable framework for the system of JR as a whole? Possible where the majority have focussed on review of admin tribunals? Per Binnie J – yes it is applicable to all frameworks: Parliament or a provincial legislature is often well advised to allocate an administrative decision to someone other than a judge. The judge is on the outside of the administration looking in. The legislators are entitled to put their trust in the viewpoint of the designated decision maker (particularly as to what constitutes a reasonable outcome), not only in the case of the administrative tribunals of principal concern to my colleagues but (taking a “holistic approach”) also in the case of a minister, a board, a public servant, a commission, an elected council or other administrative bodies and statutory decision makers. 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. Sixth Q – interaction between different factors in standard of review analysis, in particular the role of privative clauses. Funny that Dunsmuir emphasised deference and then went on to overturn the adjudicator’s decision, even with a privative clause and interpretation of own statute. le? Possible where the majority have focussed on review of admin tribunals? Per Binnie J REASONABLENESS REVIEW Dunsmuir majority on the reasonableness standard: Reasonableness is a deferential standard animated by the principle that underlines the development of the two previous standards of reasonableness. 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. The court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcome. 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 falls within a range of possible acceptable outcomes which are dispensable in respect of the facts and law.

116

This does not mean that courts can conduct a more intrusive review. Deference imports respect for the decisionmaking process of adjudicative bodies with regard to both the facts and the law. Deference in the context of reasonableness means courts should give due consideration to the determinations of decision-makers. 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. Re standard of correctness - when applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and 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. From the outset, the court must ask whether the tribunal’s decision was correct. Canada (Citizenship and Immigration) v Khosa 2009 SCC Facts: K was citizen of India and landed immigrant to Canada. Took part in street racing in Canada. K was prepared to plead guilty to dangerous driving but not to criminal negligence causing death (he was eventually convicted of this). K applied unsucessfully to Immigration Appeal Division of the Board to remain in Canada notwithstanding conviction. Majority of IAD didn’t accept there were sufficient H&C considerations to warrant special relief against removal order w/i meaning of the statute. Applying patent unreasonableness, the reviewing judge dismissed K’s challenge. Majority CofA applied reasonableness simpliciter std to set aside the IAD decision. Both decisions made before Dunsmuir. Binnie J – Dunsmuir teaches that JR should be less concerned with formulation of different standards of review and more focused on substance, particularly on nature of the issue before the admin tribunal under review. Concludes the applications judge was right to give a higher degree of deference to IAD decision than seemed appropriate to CofA majority. Decision of IAD restored. Analysis: Good illustration of why Dunsmuir adjustment was timely. CofA switched patent unreasonableness std to reasonableness simpliciter std to retry the case. CofA majority felt decision was unjust to Khosa but Parliament saw fit to confide that particular decision to IAD not to judges. BC Administrative Tribunals Act sets out specific standards including patent unreasonableness. In Khosa, the majority held that if statute refers to it, then it continues. BC Administrative Tribunals Act refers to patent unreasonableness so it lives on in BC but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. Notes Dunsmuir two steps 1. An exhaustive review is not required in every case to determine proper standard. Existing jurisprudence may be helpful. Dunmuir renders patent unreasonableness std vs reasonableness simpliciter std moot. None of prior jurisprudence points to correctness so existing jurisprudence points to reasonableness. 2. when existing jurisprudence is not conclusive, move on to factors:

117

• • • •

Privative clause Purpose of IAD as determined by enabling legislation Nature of question at issue before IAD Expertise of the IAD in dealing with imnmigration policy

Consider them as a whole bearing in mind not all will be relevant for every single case. • • •

•

Yes – there was a privative clause in the statute. Purpose of IAD – determines a wide range of appeals under Act In recognition of the hardship of removal from Canada, Act provided for a power to grant exceptional relief. Nature of question –sufficient H&C grounds to warrant special relief? Respondent accepted removal order was valid, he was purely challenging the refusal of IAD to grant him a “discretionary privilege”. Decision to withhold relief was based on facts of file. Noted that IAD members have considerable expertise in determining appeals under the Act.

Decided reasonableness standard applied. Signals a reluctacnce to interfere with the discretionary choices of an admin tribunal. Art Hauser Centre Board Inc (City of Prince Albert) v. CUPE Local 882 2008 SKCA Sports complex known as Art Hauser Centre, formerly operated by the City of Prince Albert. Canadian Union of Public Employees represents City employees pursuant to terms of a collective agreement. The City created a separate company to operate the sports complex, Art Hauser Centre Board Inc. with its own board of directors. Centre was still bound by terms of the collective agreement. Centre decided to contract out the concession services. CUPE grieved this decision on basis that collective agreement prohibits contracting out except in certain circs and if it is possible, consultation must take place before decision to contract out takes place. Majority of arbitral board (the “Board”) agreed. Judicial review – the QB judge found the standard of review to be reasonableness but found the Board’s interpretation of the contracting out clause unreasonable. CofA agrees standard of review to be reasonableness but the Chamber judge erred in concluding that the interpretation of the contracting out clause was unreasonable. Also found that Board’s opinion that a prior letter of understanding can be considered in interpreting the collective agmt is reasonable. Restores Board decision. Factual context laid out. Then looked at clause to be interpreted – Article 12.07 of the collective agmt. “Having regard to the desirability of maintaining stable work and having regard to periodic peaks in workload dictating the necessity of contracting work out, the City agrees to notify and consult with the Union prior to making any final decision to contract work out.” What was intended by italicised words? Board heard testimony from reps of CUPE and Centre and City. Board summarized evidence in 100 paras. Analysis: there are two alternative interpretations of Article 12.07:

118

Boards int: Employer is prohibited from contracting work out unless “periodic peaks in workload dictating the necessity of contracting the work out” exist. Where such circs exist, the City will notify and consult with the Union prior to making any final decision. Chambers Judge int: Only restriction in City’s right to contract work out is that it must notify and consult. CofA found there was not sufficient deference by Chambers Judge to Board’s interpretation. Dunsmuir demonstrates need for greater deference to a consensual labour board’s decision than was demonstrated. Notes that the review of an admin tribunal decision, the context in which the decision arises and the nature of the question to be decided must be considered. Decsion reviewed is that of a labour arbitrator chosen by parties pursuant to a process established by a collective agmt. A lot of cases support proposition that consensual labour arbitrators should be accorded a high degree of deference – Toronto (City) v. CUPE. Important aspect is a privative clause which the Sask. Legislature added recently. This doesn’t completely insulate a decision from JR but presence is a factor in considering the context of the decision under review. Nature of question also plays a role in determining need for deference. Board was not considering a principle of general law or one of significant impact for labour relations as a whole for which one might expect there to be one answer only. Rather Board called on to interpret a clause in a collective agmt and the interpretation of this clause was the very issue referred to the Board. There is more than one interpretation of the clause. Board considered and rejected the interpretation that the Chambers judge accepted. Also, Chambers judge decision did not take into account the Board’s interpretation and reliance on the specific body of jurisprudence pertaining to contracting out clauses. Based onthis – Board held that City and CUPE are presumed to know that emplouyer is free to contract out bargaining unit work in the absence of contractual language to the contrary. By agreeing the words contained in first 2 lines of Article, the City agreed to a limitation on its management rights. Not unreasonable to assume (as Board did) that the parties contemplated consultations would be required in the only circumstance where the employer had authority to contract out. Held that Board’s decision fell within a range of reasonable outcomes (doesn’t really matter if one is “more” reasonable that the other and court can’t fall into this trap of perceived improved reasonableness) per Binnie J – the (rule of) law sets the boundaries of potential administrative action. Sometimes the administrator has the right to be wrong. This reflects an unduly court centered view of the universe. A disagreement between the court and the administrator doesn‘t necessarily mean the administrator is wrong. Board also found its interpretation was supported by a letter of understanding. It is allowed to do this – words under consideration should be read in the context of the sentence, section and agmt as a whole. NOTE – sometimes courts apply reasonableness but then show very little deference to decision maker. Is it engaging in correctness review in disguise? The Reasonableness of Giving Reasons

119

Per Baker – giving of reasons is an important requirement of procedural fairness. Giving of reasons also important for the reasonableness review of substantive decisions. Per Dunsmuir majority – the qualities that make a decision reasonable entails reference to “both the process of articulating the reasons and to outcomes” – implies that giving of reasons may be an impt pre-req for a court to conclude that a substantive decision of administrator was reasonable. BUT Dunsmuir majority also said that an admin decision could be found reasonable based on reasons which could be offered in support of a decision. So, what does this mean? Indication is that court may require decision maker to give express reasons, beyond content of the record that was before the decision maker. Also suggest there is room for court to supplement or event substitute the reasons of the decision maker. But court should look first to the reasons given by decision maker and should not seek to spice them up, Court should rarely disregard decision makers rationale in favour of courts as the core purpose of the reasonableness review is to defer to the decision maker’s choices. What if decision maker didn’t give reasons? Macdonald v. Mineral Springs Hospital, 2008 ABCA The issue under appeal was a decision by the Hospital Privileges Appeal Board that it had no jurisdiction to hear an appeal from an Operating Room Committee decision that it would not increase a physician’s operating room time. 3 grounds for Board’s decision: 1. Committee’s decision not appealable under s 21 of the Act. 2. If appealable, it did not related to “privileges” under s21 of the Act 3. If q of “privileges” under s21 of the Act, it did not concern the termination, suspension or variation of a physician’s privileges. On 2. the majority of the Board said the decision made not to vary Mac’s OR time is not a question of privilege within meaning of s21 of Hospitals Act – but did not find any facts or refer to any and added it did not need to rule on the third ground. The minority of the Board said operating room time is a matter of allocation of hospital privileges – definition is given. Their opinion was that because OR time is a matter of allocation of resources, it comes within hospital’s definition of privileges. The minority held that its opinion was that Board had jurisdiction to hear – not that the appeal should be dismissed or allowed. Clear that minority considered both the Act and bylaws in coming to its decision. Chambers judge focussed on defn of privileges in bylaws. Concluded that denial of Macs request clearly affects his privileges and that the Board’s decision fell within defn of varying his privileges under s21 of the Act. Std of review is correctness because issue of statutory interpretation. Held that Board erred in law in concluding it had no jurisdiction. Set aside decision and ordere Board to hear the merits of Macs appeal. CofA decided std of review was reasonableness. Was Board’s decision reasonable? Reasonableness applies not only to the outcome of a tribunal’s decision but also its process of articulating reasons and the existence of justification, transparency and intelligibility within the

120

decionmaking process. Dunsmuir says deference requires a respectful attention to the reasons officered. Board gave no reasons here. Not required to by Act and there is no common law duty either. Baker said that there were some circs which required provision of a written explanation for a decision. SCC has applied a functional test in civil cases “q is whether the reasons are sufficient to allow for a meaningful appellate review and whether parties functional need to know why the trial judges decision has been made has been met”. Each party offered arguments in favour and against Boards conclusion based on analysis of Act and bylaw. Ex post facto reasoning might support view that decision was reasonable. Doing so, would undermine a fundamental reason why courts must defer to admins in cases like this – they have expertise about how hospitals function. Accepting the reasonableness of their decision absent a hint as to how they reached them would also encourage tribunals not to explain themselves. It would also engage courts in the work the legislature intended the tribunals to do. This outcome works against basic purpose of JR. Can’t glean anything from examining reasonableness of the outcome here – only two possibilities – Board had jurisdiction or it didn’t. Therefore, In applying reasonableness std, necessary to focus on matters such as justification, transparency and intelligibility, Without Board’s reasoning about how it employed its expertise to interpret its home statute, impossible to determine if decn was reasonable. Held that Board must explain its decision not to vary Macs OR time. Given this conclusion, Not appropriate to opine on whether this involved a variation of Macs privileges, a point that the Board declined to rule on . Dissent: Majority concedes that the q before tribunal does not lend itself to one particular result. The conclusion reached by the Board is one of a number of possible reasonable conclusions. Board is entitled to a margin of appreciation within range of acceptable and rational conclusions. Board’s decision was not unreasonable. He also emphasised that Board heard viva voce evidence and competing arguments and neither party argued that failure of Board to give reasons amounted to a breach of natural justice or procedural unfairness. Also, QB judge’s review was not frustrated by absence of reasons. Note: Majority did not note Dunsmuir majority also said that an admin decision could be found reasonable based on reasons which could be offered in support of a decision. Concept of Jurisdictional Error A technical explanation for courts restrictive int. of privative clauses is that the statutory ref to a decision means a valid decision. Outside its jurisdiction, the agency has no legal power to make a decision at all. Dickson J – legislature wouldn’t create a tribunal with limited jurisdiction and bestow an unlimited power to determine the extent of its jurisdiction. Argument is Need to keep an eye on them or they will keep encroaching. Counter is that the courts and common law are no more neutral than the admin agencies. Also, as interpreters of public policy statutes, courts are at a disadvantage to the specialist agency created by legislature to administer that legislation. Public Service Alliance of Canada v. Canadian Federal Pilots Association, 2009 FCA 223 Application for judicial review of a decision of the Public Service Labour Relations Board allocating, on an application under section 58 of the Public Service Labour Relations Act (PSLRA) by the Canadian Federal Pilots Association (CFPA), three positions in the federal public service to the bargaining unit comprising the Aircraft Operations (AO) occupational group. The applicants alleged that the Board exceeded its jurisdiction because the definition of the AO group and its bargaining unit expressly excludes positions that do not require a pilot’s licence and experience as a pilot.

121

The applicants argued that the Board had committed a jurisdictional error in failing to regard the elimination of piloting qualifications from the descriptions of the re-classified positions as automatically excluding them from the AO group because of the specific exclusion from that group, and therefore from its bargaining unit, of positions for which piloting qualifications are not mandatory. The applicants also alleged that the Board erred by amending the bargaining units rather than simply deciding in which of the existing units the three positions were included. The main issue was whether the Board exceeded its jurisdiction by allocating the positions to the AO bargaining units. Also, an analysis of the standard of review applicable to decisions of adjudicative administrative tribunals was conducted. Held, the applications should be dismissed. Per Evans J.A. (Layden-Stevenson J.A. concurring): Jurisdictional error under paragraph 18.1(4)(a) of the Federal Courts Act was the only ground of review available to the applicants on the facts of this case given the preclusive clause in section 51 of the PSLRA. A tribunal may exceed jurisdiction in once of two ways: 1. A tribunal will have “acted beyond its jurisdiction” if it decided incorrectly a legal question for which correctness is the applicable standard of review. These have the label “jurisdictional” questions. 2. even if q decided by tribunal is not “jurisdictional” in this sense but a “mere” q of law, the court may intervent if its decision on the question of law is unreasonable. Like other administrative tribunals, the Board is not authorized by Parliament to make a decision that is based on an unreasonable interpretation of any provision of its enabling legislation. Such decisions are not protected by even the strongest preclusive clause. Recent decisions of the Supreme Court of Canada, state that the interpretation tribunals make of their enabling legislation is normally reviewable on a standard of unreasonableness. However, the Court in Dunsmuir retained a category of “questions of jurisdiction or vires” reviewable on a standard of correctness. While correctness is the appropriate standard of review for the interpretation of a statutory provision which demarcates the authority of competing different administrative regimes, there is no justification in contemporary approaches to the roles of specialist tribunals and generalist courts in administrative law for characterizing as a “jurisdictional issue” (reviewable on a standard of correctness) the interpretations of other provisions in a tribunal’s enabling statute that do not raise a question of law that is of central importance to the legal system and outside the area of expertise of the administrative decision maker. To the extent that Dunsmuir retained the concept of a jurisdictional question to identify the provisions of an enabling statute which the administrative decision maker must decide correctly, it has done so in a very limited way: 1. It is clear that Dunsmuir is not a step back to the preliminary question analysis 2. Court has limited range of issues in mind as it stated that jurisdictional questions are to be limited to “true” qs of jurisdiction or vires 3. Only example court gave in Dunsmuir of “true” q of jurisdiction or vires was United Taxi Drivers v Alberta and the question was whether a resolution by Calgary was within the legal authority delegated to it.

122

A standard of review analysis is required when an adjudicative administrative tribunal has exceeded its jurisdiction because it has misinterpreted a provision of its enabling statute. In order to establish that the Board exceeded its jurisdiction by misinterpreting a provision in its enabling statute (which neither raises a q. of law of central importance to legal system nor demarcates its authority vis a vis another tribunal, an applicant must demonstrate that the Board’s interpretation was unreasonable. In his view, makes no sense to apply a correctness std when the tribunal has the authority to interoret and apply the provision the facts and a std of review analysis indicates that the legislature intended the tribunals interpretation to be reviewed only for unreasonableness. Justice John Evans, writing for the court on the question of standard of review, rejected PSAC’s characterization of the question as “jurisdictional” and automatically deserving of correctness review. Noting that Dunsmuir enunciated a strong presumption of reasonableness review for tribunals’ interpretation of their enabling statute, he remarked that its retention of the category of jurisdictional questions reviewable on a correctness standard was “apt to cause confusion if such questions are to be identified independently of a standard of rereview analysis.” Justice Evans’s approach, in addition to dovetailing with the thrust of the Supreme Court’s decision in Kerry, would do much to clarify this area of the law and reduce the risk that the label of jurisdictional question could be successfully invoked by parties seeking inappropriately intrusive review by courts of decisions that raise questions of statutory interpretation best answered by expert administrative decision makers. Stewart v. New Brunswick (Workplace Health, Safety & Compensation Commission) (2008), Extent to which defn of the word “accident” in the provincial Workers Compensation Act determines the interpretation of “accident” in the federal Government Employees’ Compensation Act, (“GECA”). The tribunal concluded the term “accident” under GECA does not include the gradual onset of stress as a compensatable injury b/c pursuant to s4(2) of GECA, a claimant can only expect to be eligible for the same benefits as provided for under the provincial Workers Compensation Act. NB CofA disagrees and sets aside Appeals tribunal’s decision and remit the matter back to them. S left work because of stress – a lot of medical experts testified that work was the cause of the stress. She claimed compensation from the Workplace Health, Safety and Compensation Commission. Commission rejected as it wasn’t an accident within meaning of GECA. On appeal, tribunal said she could only be eligible for same benefits as were available pursuant to the provincial compensation scheme –because GEC provides in part that federal employees are “entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed”. But unlike Workers Compensation Act, GECA doesn’t exclude gradual onset of stress. Std of review: Dunsmuir std of review analysis applies. Courts view is that this is a q of law. Refers to fact that appeal heard through statutory right of appeal and fact that there is no privative clause to find that the appropriate std of review is correctness. Interpretation of accident in GECA : In my view rthe only purpose of s4(2) OF geca is to ensure the rates and conditions of compensation payable to injured federal employees mirror the other rates and conditions for other injured workers in NB once the threshold of entitlement has been determined. Parliament has not, in his view delegated to the legislature of NB the right to amend federal legislation by redefining “accident” in GECA in the

123

province’s own image, nor did Parliament intend to create a patchwork across Canada whereby federal employees in diff provinces are faced with diff thresholds for proving a compensable injury. Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719 Case is of interest because of concise discussion of std of review and for its reasoning on why the MGB’s review of its home statute should be upheld as reasonable. Q involves MGB interpreting its own statute – Dunsmuir says deference applies. While appeal involves a q of law, it also requires consideration of policy issues, since a proper interpretation of Act requires understanding as to the effective functioning of the complaint process… MGB is familiar with these issues and well suited to address these considerations. Q is not one of the e.gs given in Dunsmuir, not jurisdictional in narrow sense and not of general import to the legal system as a whole. Privative clause is strong indication of legislatures intent to give deference to admin decisionmaker. In this case it is a weak privative clause – it still signals some deference should be given to MGB’s decsions. Reasonableness will apply. Reasonablness analysis continued Some debate after Dunsmuir about whether the reasonableness std reflected a spectrum, such that the court, having decided to defer, would then need to determine more precisely how much deference was required in the case before it. Binnie J read the majorities reasons as indicating that reasonableness was a spectrum based concept “that covers… the reviewing court’s evaluation, in the light of the appropriate degree of deference, of whether the decision falls within a range of reasonable admin choices”. Ontario Cof A rejects this in Mills v Ontario (Workplace Safety) – Per Rouleau “In my view, by collapsing the patently unreasonable std and the reasonable std, the majority has not set aside the court’s earlier decision in Ryan, nor has it signaled that courts must now puzzle over the degree of deference to give a tribunal within the reasonableness std. The existence of varying degrees of deference within the single reasonableness standard suggests that a decision made by a tribunal will be found to be unreasonable if the court accords the tribunal a low degree of deference but that same decision will be found to be reasonable if the court decides to accord the tribunal a high degree of deference. I do not read the decision of the majority of Dunsmuir as encompassing that approach The “revised system” established in Dunsmuir was designed in part to make the approach to judicial review of administrative decisions “simpler and more workable”. An analysis of the varying degrees of deference to be accorded to the tribunal within the reasonableness standard, as submitted by the appellant, fails to comply with this objective. My conclusion does not signal that factors such as the nature and mandate of the decisionmaker and the nature of the question being decided are to be ignored. Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.

124

My interpretation on this issue is strengthened by the majority description of “reasonableness”. The description provided by the majority did not articulate varying degrees of deference, but instead referred simply to a deferential standard that mandates respect for the “decision-making process of adjudicative bodies with regard to both the facts and the law.” Dunsmuir at para. 48. The concept of reasonableness does not turn on a detailed analysis of whether the tribunal’s decision is subject to a high or low degree of deference. In defining the concept of reasonableness, the majority in Dunsmuir instead emphasized the following at para. 47: 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 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. In the present case, the issues raised on appeal relate to findings of fact made by the Tribunal. These findings fall squarely within the Tribunal’s area of experience and expertise and the basis for the findings is articulated in the Tribunal’s reasons. It is in this context that the guiding principles from Dunsmuir are to be applied to review the reasonableness of the Tribunal’s decision. Per Binnie in Khosa Applying the “Reasonableness” Standard Reasonableness is a single standard that takes its 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). 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. I do not believe that it is the function of the reviewing court to reweigh the evidence. It is apparent that Fish J. takes a different view than I do of the range of outcomes reasonably open to the IAD in the circumstances of this case. My view is predicated on what I have already said about the role and function of the IAD as well as the fact that Khosa does not contest the validity of the removal order made against him. He seeks exceptional and discretionary relief that is available only if the IAD itself is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief”. The IAD majority was not so satisfied. Whether we agree with a particular IAD decision or not is beside the point. The decision was entrusted by Parliament to the IAD, not to the judges. Dunsmuir reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court. In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to

125

outcome. At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J. It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts. As mentioned, the courts below recognized some merit in Khosa’s complaint. Lutfy C.J. recognized that the majority “chose to place greater weight on his denial that he participated in a race than others might have” (para. 36). Décary J.A. described the majority’s preoccupation with street racing as “some kind of fixation” (para. 18). My colleague Fish J. also decries the weight put on this factor by the majority (para. 141). However, as emphasized in Dunsmuir, “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” (para. 47). In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA, I cannot, with respect, agree with my colleague Fish J. that the decision reached by the majority in this case to deny special discretionary relief against a valid removal order fell outside the range of reasonable outcomes. Comment: What is diff b/t reasonableness as a spectrum and reasonableness as a single std that is contextual in its application? Answer may be practical – • •

spectrum approach invites a distracting discussion of all cases regarding where on the spectrum a particular case should be positioned. Contextual approach directs court more to the specific circs (such as to the merits) of the case without requiring any particular outcome to the application of the std beyond the outcome of the substantive review itself.

A court applying reasonableness std has determined that it should show deference athouth the manner in which it defers will depend on the circs.

Smith v. Alliance Pipeline Ltd., 2011 SCC A dispute arose within the court as to the deference due to a tribunal that was interpreting its “home” statute, where its members did not necessarily have expertise, in Smith. This case involved an award of costs by an Arbitration Committee convened pursuant to the National Energy Board Act, R.S.C. 1970, c. N-6, s. 75. A company entered into an expropriation agreement with a farmer. The company received an easement over the farmer’s land to construct a pipeline, but had to reclaim the land disturbed in a timely manner. The company did not comply with this obligation. The farmer sought arbitration as mandated by the Act, but this process was delayed when the company brought a claim against the farmer in an Alberta court. The action was ultimately abandoned, but during the delay, a member of the Arbitration Committee became a judge, so that the first Arbitration Committee lost quorum. A second Arbitration Committee was convened, and found in favour of the farmer. That second committee granted the farmer an award of costs that included part of the costs of the proceedings before the first Arbitration Committee, and the balance of the costs incurred by the farmer in the court proceeding. For a majority, Justice Fish held that the Committee was applying its home statute, which will “normally” result in deference, “except where the question raised is constitutional, of central importance to the legal system, or where it demarcates the tribunal’s authority from that of another

126

specialized tribunal”. This led the majority to conclude the decision should be reviewed on a standard of reasonableness. The majority concluded that Committee’s decision to compensate the farmer for the cost of defending the court action was reasonable. In a separate concurring opinion, Justice Deschamps agreed the Committee was entitled to exercise discretion in its award of costs, and that reasonableness was therefore the appropriate standard to apply in this case. But the Justice took issue with the majority’s suggestion that a tribunal interpreting its home statute will normally be entitled to deference. While some tribunals are made up of permanent members with expertise in the relevant areas of law and/or science, the Arbitration Committee in this case was made up of ad hoc members who did not necessarily have specialized experience with this kind of dispute. Deschamps J. took the position that the degree of deference owed should be determined in accordance with these and other relevant considerations, rather than granting deference as a matter of course where the interpretation of an enabling statute is involved. Summary of judgment: Under Dunsmuir that approach, the first step will suffice to ascertain the standard of review applicable in this case. Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity”; (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues. Applying this analytical framework here, I am satisfied that the governing standard of review is reasonableness. In this case, the Committee was interpreting its home statute. Under Dunsmuir, this will usually attract a reasonableness standard of review. Any doubt whether reasonableness is the applicable standard here can be comfortably resolved by other considerations. First, the Committee was interpreting s. 99(1) of the NEBA, a provision of its home statute regarding awards for costs. Awards for costs are invariably fact-sensitive and generally discretionary. Second, and more specifically, in fixing the costs that must be paid by expropriating parties, the Committee has been expressly endowed by Parliament with a wide “margin of appreciation within the range of acceptable and rational solutions” (Dunsmuir, at para. 47): the only costs that must be awarded under s. 99(1) are those “determined by the Committee to have been reasonably incurred”. This statutory language reflects a legislative intention to vest in Arbitration Committees sole responsibility for determining the nature and the amount of the costs to be awarded in the disputes they are bound under the NEBA to resolve. Third, in discharging that responsibility, Committees must interpret s. 99(1) in order to apply it in accordance with their statutory mandate, a process that will frequently raise “questions where the legal issues cannot be easily separated from the factual issues” (Dunsmuir, at para. 51).

127

These considerations all fall within categories which according to Dunsmuir generally attract the standard of reasonableness. Cumulatively considered, they point unmistakably to that standard. Conversely, it is clear that this case does not fall within any of the categories which, under Dunsmuir, attract a standard of correctness. The Committee’s decision involved no constitutional matter or issue of general law “of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (para. 60, citing Toronto (City) v. C.U.P.E., at para. 62), nor did it purport to draw jurisdictional lines between two or more competing specialized tribunals (Dunsmuir, at para. 61). Alliance nonetheless submits that the decision of the Arbitration Committee is subject to review for correctness on two grounds: first, because it involves a true question of jurisdiction; second, because it raises an issue of law to which deference does not apply. The jurisdictional ground is without merit. NEBA Arbitration Committees doubtless have “the authority to make the inquiry” whether “costs” under s. 99(1) refer solely to costs incurred in the proceedings before them, a determination that plainly falls within their “statutory grant of power” (Dunsmuir, at para. 59). I reiterate in this context the caution that courts should not “brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (Dickson J. in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 233, cited in Dunsmuir, at para. 35). Characterizing the issue before the reviewing judge as a question of law is of no greater assistance to Alliance, since a tribunal’s interpretation of its home statute, the issue here, normally attracts the standard of reasonableness (Dunsmuir, at para. 54), except where the question raised is constitutional, of central importance to the legal system, or where it demarcates the tribunal’s authority from that of another specialized tribunal ― which in this instance was clearly not the case. Finally, on this branch of the matter, Alliance argues that adoption of the reasonableness standard would offend the rule of law by insulating from review contradictory decisions by Arbitration Committees as to the proper interpretation of s. 99(1) of the NEBA. I am unable to share the respondent’s concern. In Dunsmuir, the Court stated that questions of law that are not of central importance to the legal system “may be compatible with a reasonableness standard” (para. 55), and added that “[t]here is nothing unprincipled in the fact that some questions of law will be decided on [this] basis” (para. 56; see also Toronto (City) v. C.U.P.E., at para. 71). For the reasons explained, the governing standard in this case was reasonableness, not correctness. And I turn now to consider in this light whether the impugned decision of the Second Committee satisfies that standard. As mentioned at the outset, the decisive issue on this appeal is whether the Second Committee could reasonably find that it was entitled under s. 99(1) of the NEBA to make the impugned awards on costs. Section 99(1) reads: 99. (1) [Costs] Where the amount of compensation awarded to a person by an Arbitration Committee exceeds eighty-five per cent of the amount of compensation offered by the company, the company shall pay all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation. The reasonableness of the Second Committee’s conclusion that s. 99(1) of the NEBA merits a broad reading accords, in my view, with the plain words of the provision, its legislative history, its evident purpose, and its statutory context. Moreover, it rests comfortably on the foundational principle of full compensation that animates both the NEBA and expropriation law generally.

128

The relevant words of s. 99(1) make it plain that the Committee was thus entitled ― indeed bound ― to order Alliance to pay Mr. Smith “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by [Mr. Smith] in asserting [his] claim for compensation”. Today, the principle of full indemnification appears explicitly in s. 75 of the NEBA, which provides, as I noted earlier, that a company “shall make full compensation . . . for all damage sustained” by the expropriated owner. Parliament adopted this more comprehensive approach to indemnification by broadening the language of s. 99(1) from “costs of the arbitration” to “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation”. This amendment must be presumed to signify a clear and considered decision by Parliament to allow Arbitration Committees to exercise their full discretion in seeking to make expropriated owners whole (Sullivan, at pp. 579-82), and the historical context validates this presumption. Like various provincial expropriation statutes, the NEBA is remedial and warrants an equally broad and liberal interpretation. To interpret it narrowly, as the respondent in this case suggests, would in practice transform its purpose of full compensation into an unkept legislative promise. By interpreting s. 99(1) as it did, the Second Committee can hardly be said to have exercised its statutory mandate unreasonably.

129

12. Venue and Basic Procedure for Judicial Review Now that you understand the law, it is time to understand how one goes about challenging an administrative decision. In some cases, there may be what is known as a “statutory right of appeal” or “administrative appeal” – there may be a statute out there (often the enabling statute) that allows someone to appeal the decision of the decision-maker, sometimes to a court and sometimes to another administrative decision-maker. If there is such a statutory right to appeal, one generally must “exhaust” it before turning to judicial review, for reasons that are part of readings later on. The rules governing these statutory appeals will be governed by the statute itself. Judicial review is different – do not confuse the two. Judicial review is part of the inherent powers of superior courts to review the exercise of powers by executive branch officials. Today, this form of relief is generally codified or provided for in primary legislation or Rules of Court. This section concentrates on one of the issues associated with judicial review: standing, or the question of who gets to bring a judicial review application. It also deals with venue: which court one goes to. Expansion of JR from original premise of protecting the individual from illegal government action – partly because of recognition that unlawful exercises of govt power can affect large numbers of people, greater role of lobby and interest groups, introduction of Charter and Bill of Rights. This expansion of access to the courts has caused some criticism. First, it draws too much on an already overtaxed court system. Also, is litigation the best mechanism –only those with a real stake in the outcome of the litigation have an incentive to provide the court with the best outcomes and the courts generally see the real issues in disputes most clearly when it is in the contect of a claim by someone who is directly affected. Courts may be at a disadvantage having to deal with questions in an abstract setting when argumensts are brought by those who claim to represent “general public interest” and not have a concrete stake in outcome. Second, concern about politicisation of the courts – i.e. trespassing into domain of party politics and also certain questions should not be brought before courts as they are not justiciable. No guarantee that liberalising access to courts of public interest groups will enhance democratic and participatory values. High costs of litigation and unequal access to legal services might mean a “liberal” standing law will confer more advantages on the privileged. The foregong explains the ambivalent attitude of some courts/lawyers/commentators to an expanded law of standing. Also, hard to disentangle the issue of standing from the merits of the claim advanced. A person’s or group’s claim to be an appropriate plaintiff or applicant will often only be appreciated based on an awareness of the claim itself and is factual and legal underpinnings. Always the dilemma of whether to treat an issue of standing as a threshold matter or as integrally related to the merits of the claim. Issues to consider: When will public interest standing be granted? To what extent do current principles of standing allow for private law enforcement by way of an administrative law remedy? Role of attorney general in environment where that office is no longer the exclusive vindicator of public interest in judicial review? Whether and to what extent tribunals and agencies should have standing to participate in legal proceedings in which their decisions are under scrutiny? Sometimes they have limited standing to participate in judicial review of their decision and others they may be granted “intervenor” status.

130

What about standing to participate in administrative tribunal hearings as a party or intervenor? STANDING IN JUDICIAL REVIEW PROCEEDINGS General Who is entitled to bring JR proceedings? Mere strangers could seek certiorari and prohibition but court possessed an overriding discretion to refuse relief at the suit of such a person. Where a person was directly affected and the error was patent ranther than latent in the case of prohibition, the remedy was available as of right, For manadamus, the person seeking the remedy has to be the person to whom the performance of the duty was owed, or (based on recent authority) a person sufficiently interested in its performance. Where declaratory and injunctive relief sought, the plaintiffs must show interference with a private right of theirs or, if public right, they would suffer loss over and above other members of community, otherwise only appropriate plaintiff is AG. (note court will always recognize AG’s ability to seek any remedy – stems from historic role of guardian of public interest). Exception - Ratepayers are able to challenge validity of municipal bylaws regarding expendidure of public funds. What are obligations on AG if they are asked to lend name to relator proceedings? What if AG refuses? Two extremes from a policy perspective: 1. General public interest in legality of admin action and anyone should be able to bring that illegality to the attention of courts; and 2, litigation only available to those who are direct targets of individualized admin decisionmaking and whose financial or property interests are affected in a substantial way (on this view –AG is onkly one who can bring public interest proceedings). Canada has adopted middle path (although until recently, closer to 2. than 1.) Note most cases do involve individuals who are affected directly by decisionmaker. The difficulties arise when you move out of those cases. Eg. Interests of neighbouring property owners when property is rezoned – what type of interest is enough to give them standing? Lord Nelson Hotel Ltd v. City of Halifac (1972) Court held that the hotel company had standing to challenge a zoning decision. Owned a hotel and residential property on two corners – rezoning would have let another hotel be built on third corner. Company had exercised right of appeal to Planning Appeal Board and this meant itsintersests were held to be affected materially. How much less would have sufficed? Insurance company owning building 2 blocks away? Which factor identified by the court (if any) was crucial or was it a combination of all of them? Young v. AG of Manitoba (1961) Coroner held that a child died from excessive dose of morphine and no treatment. “Treating” doctor sought to quash inquest on procedural grounds. Once majority judge said only those named as criminally responsible for death or personal rep of deceased have standing to challenge a coroner’s verdict. Why is their claim better than the docs in this case?

131

Proliferation of public interest groups has led to demand that they be recognised as not only having the right to participate in regulatory processes but also to challenge the outcome of those processes in the courts, whether by statutory appeal or JR. Attempts by such groups to secure recognition took one of two forms – commence proceedings and assert itself as rep of the collective interest (e.g. ratepayers assn) or sponsor an individual with recognised interest to bring proceedings. Initially the first method was risky and second one much safer but then attitude changed. Thorson v AG of Canada, Nova Scotia Board of Censors v. McNeill and Minister of Justice v. Borowski - each involved attempts to challenge constitutionality of legislation by private individuals with no stake other than citizens and taxpayers, In each case, SCC upheld status to apply to commence a declaratory proceeding – generally, SCC held that judges had broad discretion in constitutional matters to allow proceedings by private individuals with no direct stake in the dispute. Finlay v. Canada (1986) SCC Facts: R receives social allowance. Alleged transfer payments made by federal govt to Manitoba under Canada Assistance Plan were illegal. Relevant Manitoba social welfare legislation didn’t comply with Plan’s requirements for transfer payments to Provinces. Alleged compliance would have resulted in higher assistance. Trial judge said that he lacked standing because he did not disclose reasonable cause of action, FCA overturned. Issue: Is a recipient of provincial assistance who claims prejudice recognized as having standing? Held:

SCC - appeal dismissed. He has standing.

Analysis: • Three questions to ask about standing: i. Does the claimant have a sufficient personal interest in the legality of the payments to challenge the exercise of statutory authority? ii. If not, does the Court have discretion to recognize public interest standing in the circumstances? iii. If the court does have such a discretion, should it be exercised in favour of claimant? • The questions involve a consideration of the discretionary control over standing to assert a purely public right or interest by an action for a declaration or an injunction that has traditionally vested in the AG and the extent to which that control has been displaced or qualified by Thorson, McNeill and Borowski • More specifically, qs involve a consideration of whether the approach to public interest standing in those cases, which involved a challenge to constitutionality or operative effect of legislation, applied to a non-constittional challenge to the statutory authority for administrative action. • Held the nature of claimants interests in the substantive issues raised by his action is sufficiently clearly established by allegations and contentions in his statement of claim neab don’t need evidence or full argument on the merits. • The general rule in cases involving public right or interest is most commonly cited in Boyce v. Paddington: P can sue without permission of AG in two cases: o Where the interference with the public right is such that a private right is simultaneously interfered with o Where no private right is interfered with but P in respect of his public right suffers special damage to himself from the interference with the public right • Nature of respondents interest in the legality of the federal cost sharing payments is not easy to characterise in terms of the general rule. He alleges the prejudice is caused by deduction from his monthly allowance of an amount to repay overpayment of allowance, which he alleges is caused by admin error. • Judge said a requirement of directless or causal relationship between alleged prejudice or grievance and the challenged action is implicit in the notions of interference with private right and special damage. 132

• •

•

•

•

• • •

• • •

Here there is no doubt that R has a direct personal interest in the provincial non-compliance with the conditions and undertakings imposed by the plan However, although judge experienced difficulty on this question, he said b/c the relationship between the prejudice to him and the illegality of the plan is too indirect, remote or speculative for standing under the general rule, claimant must rely on public interest standing. i.e. could not show special damage to himself. Why? Should principle in Thorson, McNeill and Borowski be extended to public interest cases? Yes – refusal of AG to bring an action should not bar a court from recognition, as a matter of discretion in acc with the criteria affirmed in Borowski, of public interest standing in a private individual to institute proceedings. Traditional judicial concerns about expansion of public interest standing are: • Allocation of scarce judicial resources and need to screen out mere busybody • Concern that in determination of issued the court should have benefit of contending points of view of those most directly affected by them • Concern about proper role of courts and their constitutional relationship with other branches of govt. Concern re proper role of courts is addressed by requirement of justiciabilty. Notes that case law indicates that where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination of legislature or executive. On this basis, he holds public standing should not be refused on the ground of justiciabilty. Scarce judicial resources/screen busybodies - Borowski affirmed the requirements that there be a serious issue raised and the citizen has a genuine interest in the issue. Claimant meets both these requirements. Issues of law raised are not frivolous and merit consideration by a court. The claimant has a genuine interest in the issues as a beneficiary and is not a mere busybody. Court needs benefit of contending points of view of those most directly affected by them – Borowski affirmed the requirements that there be no other reasonable and effective manner in which the issue may be brought before the court. This is the case here. Claimant should be recognised as having standing to bring his action for a declaration to challenge legality of the federal cost sharing payments. In summary, It has been seen that when public interest standing is sought, consideration must be given to three aspects. • First, is there a serious issue raised as to the invalidity of legislation in question? • Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? • Third, is there another reasonable and effective way to bring the issue before the court? Public interest standing should be applicable to injunctive relief as well as declaratory relief. Injunction refused in trial court because of lack of urgency

challenge legality of the federal cost sharing payments. Ratio: courts have discretion to award public interest standing to challenge exercise of admin authority, not just legal Canadian Council of Churches v. Canada (1992) SCC p. 367 Facts: Multidenominational organization that represents Christian churches; has long-standing involvement with refugees; They try to challenge sweeping changes to immigration act; before they launched the legal action they were lobbying against changes. Council challenged the validity of the amended Immigration Act (violation of the Charter) when it changed the procedures for determining

133

whether applicants come within definition of Convention Refugee. AG brought a motion to strike out the claim on basis that Council did not have standing to bring the action. Issue: Should the Council be denied standing to challenge provisions of Immigration Act? Held:

appeal dismissed, they do not have standing and Court not willing to expand Finlay test.

Analysis: Borokowski set out conditions that a plaintiff must establish to be granted standing to seek declaration that legislation is invalid: 1. serious issue as to its invalidity 2. show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and 3. no other reasonable and effective manner in which the issue may be brought before the Court. Noted that this was pre-Charter and Charter indicates that a generous and liberal approach should be taken to the issue of standing. Parliament and legislatures are required to act within bounds of the constitution and in acc with the Charter. Courts are the final arbitors as towhen that duty has been breached. As a result, courts will seek to ensure that their discretion is exercised so that standing is granted in those situations where it is necessary to ensure that legislation conforms to the Constitution and the Charter. Always consider overextension of judicial resources when considering an extension to standing. However validity of government intervention must be reviewable by courts Charter does not affect discretion Courts possess to grant standing to public litigants. It entrenches fundamental right of public to govt in accordance with law. Should Finlay test for public interest standing be extended: • Essential that balance be struck between ensuring access to courts and preserving judicial resources • The whole purpose of granting standing is to prevent immunization of legislation from any challenge. The granting of public interest standing is not required when, on balance of probabilities, it can be shown that the measure will be subkect to attack by a private litigant. • The principles for granting public interest standing should not be extended - decision is discretionary. When exercising the discretion, the applicable principles should be interpreted in a liberal and generous manner. Application of the Principles for public interest standing in this case When public interest standing is sought, 3 factors to be considered: (from Berowski) 1. Is there a serious issue of invalidity? Finlay noted that the issues of standing and of whether there is a reasonable cause of action are closely related and tend to merge. a. Here claim is wide sweeping and disjointed attack on the amendments to Immigration Act a. Some allegations are hypothetical and would be impossible for court to make determination – more like submissions to a parliamentary committee considering legislation rather than an attach on the validity of the provisions. a. Prepared to accept that some aspects of statement of claim raise serious issue as to validity of the legislation

134

1. Has P demonstrated a genuine interest? a. Yes - Council enjoys high reputation and has demonstrated real interest in problems of refugees 1. Is there another reasonable and effective way to bring issue before court? This is the real difficulty

•

a. Challenged legislation is regulatory in nature and directly affects all regugee claimants- all refugees have standing to initiate constitutional challenge under the Chartert, despite Council's argument that they have disadvantage in access to court a. FCA took judicial notice that refugees were bringing forth similar claims as Council on daily basis - SCC agrees a. Therefore there are other reasonable methods to bring claim The proper balance can be maintained by granting public interest groups intervener status although can't extend it to policy basis

Ratio: need for public-interest standing in principle, to ensure that government is not immunized from constitutional challenges to legislation. However, the Court also stressed the need to strike a balance between ensuring access to the courts and preserving judicial resources, citing the concern of an "unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important Vriend v. Alberta, [1998] 1 S.C.R. 493 Facts: V employed with the college for 3 years when the director of the Christian college found out he was gay; reason for the dismissal – sexual orientation; V attempted to file a complaint with Alberta HRC; Alberta Individual Rights Protection Act did not include sexual orientation and they refused to include the sex orientation into legislation; V challenges the Act for violating his Charter rights; there were three gay and lesbian organizations; at trial level he was successful; the Govt appeals to the Court of Appeal: V, three organizations and 6 interveners; with SCC 17 interveners; V did not confine his challenge to the employment provisions of the Act; he launches a full attack against all provisions in Act spelling out proscribed species of discrimination; Gov of Canada challenged their right to make such a broad challenge and narrow it down to employment and say they do not have standing on all the other fields of protection; SCC (Cory J): - both V and organization had a standing - V is denied access from admin entity that protects his rights; - V has standing under 3 criteria: 1. Serioius issue raised as to invalidity of legislation in question? Yes - serious issue of constitutional validity and in this case it is a constitutional validity of the entire act; 2. directly affected by legislation or have a genuine interest in its validity? • V has a genuine interest in all of the provsions they seek to challenge. There is a direct interest in exclusion of sexual orientation from all forms of discrimination. Also, denial of access to the procedures of the Alberta HRC; 3. Another reasonable and effective way to bring issue before court? • only other way the issue could be brought before court re other section is to wait until someone is discriminated against and challenge the validity of the provision in each appropriate case. You will be left to do patch work protection – it is not effective, not efficient; wasteful of judicial resources expensive – - for all three criteria – they have standing on the issue;

135

Harris v. Canada [2000] 4 FC 37 (CA) Harris, sought a declaration that the minister of national revenue has acted illegally in providing another tax payer with a favourable advance private ruling while maintaining a different position publicly on the taxability of the funds in question. Alleged ministerhad ulterior motives for providing this preferential treatment. Minister sought to have proceedins struck out on the grounds that the statement of claim failed to disclose a reasonable cause of action and that the plaintiff lacked standing to bring the action. Sexton JA: Where strong public interest issues arise, a court may exercise its discretion to recognize public interest standing. Public interest standing may exist where "the matter raised . . . is one of strong public interest and there may be no other way such an issue could be brought to the attention of the Court, were it not for the efforts of the [public interest litigant]. Four criteria established in Finlay to determine whether this Court should exercise its discretion to recognize Mr. Harris' public interest standing. A court "should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government. Harris' statement of claim raises a justiciable issue. His claim that the Minister of National Revenue acted illegally or improperly or for ulterior motives, by way of a covert deal when he interpreted the provisions of the Act in favour of a specific trust, raises a question of a potential violation of the Act The second criterion established by Le Dain J. in Finlay was that a public interest litigant must raise a serious issue. Issues raised are "far from frivolous." Alleges that the Minister acted for ulterior motives with a view to favouring particular taxpayers The third criterion is that the public interest litigant must have a genuine interest in the issue. On appeal, the Attorney General did not seriously contest that Mr. Harris did have a genuine interest in the issues he raises. Mr. Harris is a taxpayer. He is a member of an organization that seeks to ensure the fair administration of the taxation system. Accordingly, I conclude that Mr. Harris has a genuine interest in the issues he raises. Finally, in exercising its discretion to recognize public interest standing, a court must be satisfied that there is no other reasonable and effective manner in which the issue may be brought before a court. Here too, the Attorney General did not seriously contend that there was another reasonable or effective manner in which the issue could be brought before a court. Mr. Harris requested the Attorney General to do so twice, but to this date, the Attorney General has not yet complied. It cannot be seriously contended that the taxpayers who were provided with the 1991 ruling favourable to them would raise the issues brought by Mr. Harris. Therefore, I conclude that there is no other reasonable and effective manner in which the issue could be brought before a court. Conclusion on standing ]Public interest standing has been granted in analogous cases. For example, in Greater Victoria Concerned Citizens Assn. v. Provincial Capital Commission,90 a citizens group successfully obtained standing to seek to obtain a declaration that an agreement to lease certain heritage property as a tourist attraction was beyond the Provincial Capital Commission's jurisdiction. In Union of Nor. Wkrs. v. N.W.T. (Min. of Safety & Pub. Services),91 a union was granted public interest standing to seek to compel a government minister to hold occupational health and safety board meetings. In Sierra Club of Canada v. Canada (Minister of Finance),92 an organization promoting protection of the environment was granted standing to seek to compel several government ministers to subject the sale of nuclear reactors to a full environmental assessment under the Canadian Environmental Assessment Act,93 the absence of which was said to be unlawful.

136

I do not think that there is a principled basis for concluding that the Minister of National Revenue is somehow protected from a similar action by a public interest litigant to compel the Minister to perform his or her statutory duties. Accordingly, I conclude that Mr. Harris could be granted public interest standing and set aside Crown's motion to strike. Emphasizes the narrow cause of action for which public interest standing has been granted. Mr. Harris does not merely seek to obtain the interpretation of a particular provision of the Act, akin to requesting a court to provide a legal opinion. A mere bona fide change of position on interpretation of a statute, without more, would be insufficient to constitute a cause of action and would have been insufficient to persuade this Court to exercise its discretion to recognize public interest standing. Ministers alleged bad faith is key here and what made this a serious issue – mere error of law might not count for as much as abuse of discretion. . THE ROLE OF THE ATTORNEY GENERAL Harris suggests there are a range of situations where citizens will have status to assume a law enforcement role Energy Probe v. Canada (Atomic Energy Control Board) [1984] AECB approved an operating license for a nuclear power station for Ont. Hydro. Energy Probe objected b/c one AEC Board members was president of a company that supplied cables to nuclear power plants. Board challenged Energy Probe’s standing but court accorded them standing in the public interest. Energy Probe challenged AG’s right to be a party . Reed J: I have no doubt this is an appropriate case in which the AG should be given permission to be added as a party. AG has direct interest in outcome of case. - Why granted status? 1. allegation that a member of Board has pecuniary bias. If this is the case it raises issue of the process of how people are appointed to the Board by the Governer-incouncil and AG is directly and genuinely concerned witjh this; 2. on grounds that a “question of general importance is raised” in these proceedings on which the court should have his arguments – involve questions of general public confidence in boards of this nature (it is not merely confined to one members alleged bias) 3. counsel for Energy Probe had argued that the Board could only be amicus curae, then AG should play that role – Judge disagrees – not the AG being attacked for bias. None of reasons for exclusion of board apply to AG 4. the only way the Crown has a voice in this proceeding is through AG – he is there to protect a crown interest; THE STATUS OF THE AUTHORITY UNDER ATTACK Northwestern Utilities v. City of Edmonton [1973] This case gives Reed J a good reason to allow the AG’s application in Energy Board namely the inability of the board to appeal a judgment quashing its decision for breach of procedural fairness. Estey J on role of a statutory authority under challenge: Clearly on appeal from the Board, counsel may appear on behalf of the Board and may present argument to the appellant tribunal. But such argument should be addressed not to merits of the case

137

between the parties appearing before the Board but rather to the jurisdiction or lack of jurisdiction of the Board - per Aylesworth JA in Int’l; Ass’n of Machinists v Genaire Ltd. (1925) Where the parent or authorizing statute is silent on role or status of the tribunal in appeal or review proceedings, the court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question. Note: is this right - if there is greater deference to tribunal’s expertise per standard of review, why not allow the tribunal to justify its procedures and decisions. CAIMAW v. Paccar of Canada Ltd. [1989] Should a tribunal be able to be a party and defend itself in proceedings where the allegation was one of patent unreasonableness? La Forest J – “In my view the Industrial Relations Council has standing before this court to make submissions not only explaining the record before the court but also to show that it had jurisdiction to embark upon the inquiry and that it had not lost the jurisdiction through a patently unreasonable interpretation of its powers.” When the issue becomes whether the decision was unreasonable, there is a powerful policy in favour of permitting the tribunal to make submissions. There have been statutory provisions that allow an admin decsionmaker to participate in JR proceedings. Ontario – Judicial Review Procedure Act RSO 1990 Children’s Lawyer for Ontario v. Goodis (2005) In its April 18, 2005 , decision, the Court agreed with the Divisional Court ’s dismissal of the Children’s Lawyer’s application for judicial review of a decision by the Information and Privacy Commissioner. The Commissioner`s decision had ordered her to disclose documents to a party she had previously represented. In opposing the application for judicial review, the Commissioner relied on a ground that was not expressly set out in his original decision. The Children’s Lawyer countered that the Commissioner should not have standing to defend his decision on a ground that he did not rely on in making the decision in the first place. This, the Children’s Lawyer said, amounted to “bootstrapping” and undermined the Commissioner’s integrity and the appearance of impartiality. Further, the Children’s Lawyer argued that the importance of reasoned decision making could be undermined “if, when attacked in court, a tribunal could simply offer different, better, or even contrary reasons to support its decision”. Two-step test to determine scope of standing: After examining the “clouded jurisprudential backdrop” to the question of the scope of standing, the court developed a two-step analytical framework. 1. The first step is to see whether the tribunal’s governing legislation articulates the tribunal’s role in any judicial review. The Judicial Review Procedure Act , which applies to virtually all administrative decision-makers in Ontario , including the Information and Privacy Commissioner, simply says that an administrative tribunal can be a party to any application for judicial review of its decision. Because it does not clearly articulate the tribunal’s role, it is left to the court’s discretion to define that role.

138

2. The second step is to find a “context specific solution to the scope of standing”. There are no categorical rules. Two major policy considerations guide this exercise: • •

The importance of fully informed adjudication (this underlies the reasoning in Paccar); and The importance of maintaining tribunal impartiality (this underlies the reasoning in Northwestern).

Participation by the tribunal will be important to ensure fully informed adjudication where: • The case arises in a specialized and complex legislative or administrative context; • the tribunal has specialized expertise that would not otherwise be available to the court • there is otherwise no party to defend the tribunal’s decision But participation by the tribunal in a judicial review of its own decision risks undermining the impartiality of that tribunal. The risk is greater – and the court will constrain the scope of standing – where: • the case is likely to be referred back to the tribunal; • future cases are likely to involve similar interests; • the tribunal serves a defined and specialized community; • the tribunal resolves private disputes between litigants ; or • the issue is whether the applicant has been treated fairly by the tribunal. Information and Privacy Commissioner granted full standing: The court granted the Commissioner full standing. The court’s main consideration seems to have been that if the tribunal could not participate fully, the appeal would be unopposed. As well, the Commissioner administers a specialized statutory scheme; his expertise in privacy legislation would provide an important assurance of a fully informed appeal process. The impartiality consideration was muted by the fact that the Commissioner was not defending his own interest, but a decision interpreting and applying privacy legislation. The tribunal sought to rely on a new ground in defending its decision was a valid consideration, the court noted. But the new ground was not inconsistent with the Commissioner’s decision and was, arguably, implicit in it. The court concluded by advising administrative tribunals to pay careful attention to the tone in which they deliver submissions on judicial review of their decisions: “A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary”. ALLOCATION OF REVIEW AUTHORITY: FEDERAL COURT AND PROVINCIAL SUPERIOR COURTS Judicial review jurisdiction is divided between superior courts of the provinces and the Federal Court. In most instances, choice of whether to proceed in a Federal Court or provincial superior court will depend whether the source of the power/authority is federal or provincial in nature. Note that provincial superior courts continue to have jurisdiction over aspects of federal statutory regimes though. Need to examine way in which JR occurs in Federal Court. Despite some statutory reforms, there remain aspects of the Fed Court’s JR powers that distinguish it from the provincial superior courts Ferderal Court and Ferderal Court of Appeal are statutory courts – their JR jurisdiction derives from an Act of Parliament.

139

See page 1040 for provisions of FCA Note: Exclusive jurisdiction means that court is the only court with jurisdiction. Concurrent jurisdiction means two courts have jurisdiction. History Federal Court of Canada established in 1971. Before then Exchequer Court – federal court created by s101 of Constitution Act 1867- had jurisdiction over several areas of federal law, Exchequer also served as an appellate court from decisions of certain federal statutory authorities. Didn’t have any general JR jurisdiction. Federal Court Act restructured jurisdiction of Exchequer Court – renamed Federal Court of Canada (two divisions, Trial Division and Court of Appeal – in turn renamed Federal Court and Federal Court of Appeal in 2003) - assigned virtually exclusive jurisdiction over JR authority of over affairs of federal statutory bodies. Previously, general jurisdiction over JR of these federal statutory bodies was with provincial superior courts. Makes sense – 10 superior courts across country could lead to conflicting jurisprudence. Some said that FCA was unconstitutional – infringed ss96- 100 of Constitution Act 1867. Pringle v Fraser [1972] SCC ruled that the prerogative writs had no constitutionally guaranteed existence and that JR jurisdiction over federal statutory authorities could constitutionally taken from provincial superior courts and conferred on a federal court like the FCC. S101 of Constitution Act 1867 entitled Parliament to create courts in addition to the SCC for better administration of laws of Canada. Crevier – SCC held that a provincial legislature could immunize an administrative regime from JR for jurisdictional error. Macmillan Bloedel v Simpson, Dunsmuir Do provincial superior courts maintain any authority over a constitutional challenge involving a federal statutory regime? SCC held that s96 of Constitution Act 1867 was triggered and FCA could not could not remove the superior courts’ jurisdiction over constitutional challenges to the jurisdiction of federal statutory regimes (Jabours Case) or to action taken or proposed to be taken under a federal statute (Paul L’Anglaise). What is a constitutional challenge? First arose in context of challenges to validity of subordinate legislation promulgated under federal leglilsation. Also, came up in Charter cases (was it a constitutional challenge w/i Jabours and Paul L’Anglaise rules?) Are challenges to federal subordinate legislation an issue of constitutional law that justified the assertion of jurisdiction by a provincial superior court? There was a significant amount of conflict between provincial superior courts and Federal Court. Le Groupe des Eleveurs de Volailles et al. v. Canadian Chicken Marketing Agency (1984) FCTD Strayer J held that the only authority of provincial superior courts to rule on validity of federal subordinate legislation, other than on Constitution Act grounds, was where that issue arose collaterally in proceedings otherwise within the jurisdiction of a provincial superior court. Subsequently, there was provincial Court of Appeal support for this position: Saskatchewan Wheat Pool v. Canada (AG) (1993)

140

AG moved to strike out action by Wheat Board (which claimed order in counsel ways ultra vires) on the basis that such a challenge was in exclusive jurisdiction of Federal Court. Wakeling J: “In this action, we are not asked to rule on the constitutional validity of the Act not has any Charter issue been raised. Issue here is purely a request for declaration that Governer in Council has acted in excess of authority that was granted by a federal statute. In our view, this case comes as close as it can to being a situation which was intended to be within the exclusive jurisdiction of the Federal Court. Does a Charter challenge involve constitutional issues? Reza SCC assumed where Charter issues are involved in an attach on federal legislative regime, there is concurrent jurisdiction between the Federal Court and the provincial superior courts. Per Sopinka in Kourtessis v. Canada (Minister of National Review), [1993]: The jurisdiction of the provincial superior courts to issue declaratory judgements on the constitutional validity of provincial and federal legislation (whether as to vires or consistency with Charter) is fundamental to Canada’s federal system … this plenary jurisdiction is necessary to enable provincial courts to discriminagte between valid and invalid federal laws… and to ensure that the subject always has access to a remedy for violation of their Charter rights and freedoms. Reza v. Canada, [1994] 2 S.C.R. 394 Facts: R made a Convention refugee claim. Tribunal decided that he didn’t have credible basis for claim. As a result, not considered by the Immigration and Refugee Board and deportation ordered. Federal Court of Appeal denied R leave to apply to have order set aside. R had no success on H&C review. Federal Court Trial division refused him leave to seek JR of this denial. R then applied to Ontario Court (General Division) for declaratory and associated interlocutory relief. Claimed provs of Immigration Act contrary to Charter and Bill of Rights. Among provisions challenged was the req. that leave be obtained to seek JR of a deportation order by Federal Court, a decision from which there was no appeal. Ontario Court (General Division) allowed a motion by Canada to stay R’s application. Reversed by Ontario Court of Appeal. Ontario Court (General Division) Ferrier J said: Both Jurisprudence and logic would support that this Court should leave the review of immigration matters with the Federal Court. But the relief sought, by way of declaratory and interlocutory relief is also discretionary to this Court. The circs described by Campbell J in Bembenek which influenced the Court to take jurisdiction are not present here. Ontario Court of Appeal Arbour JA said: Assuming that both Federal Court and Ontario Court had jurisdiction, the prima facie choice of jurisdiction should have been that of the respondent. No reason why Ontario Court should defer to Federal Court since this was not an immigration case but a constitutional one. No principal of curial deference in constitutional adjudication could be relied upon by a provincial superior court to defer to

141

expertise of the Federal Court merely because the constitutional violation is said to have occurred in the context of an immigration matter. No principal which justifies a provincial superior court declining jurisdiction because the identical remedy could be pursued in the Federal Court, when a constitutional remedy is sought in good faith before a court fully competent to grant it. Abella JA (dissenting) – emphasized the breadth of a motions court judge’s discretion to grant a stay but held that the discretion should not be exercised in a patently unreasonable manner. Said R never raised Charter arguments in the immigration or JR proceedings and noted the proposition that parties are not permitted to bring fresh litigation because of new views they may entertain of the law of the case. A categorical denial of a superior court judge’s discretion to decline to exercise jurisdiction in favour of a tribunal of concurrent jurisdiction was not warranted. SCC held that appeal should be allowed and in agreement with Abella JA. No basis for interfering with Ferrier J’s decision to stay proceedings commenced by R. Ontario Court (General Division) and Federal Court had concurrent jurisdiction to hear Rs application but under S106 of Courts of Justice Act any judge of the General Division had discretion to stay the proceedings. Ferrier J properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters and Federal Court was an effective and appropriate forum. The Federal Courts Act’s Allocation of Jurisdiction as Between the Federal Court and Provincial Courts FCA – defn’ of “federal board, commission or other tribunal” is defined expansively to also include those exercising executive power (such as the governor in council) but does not reach all bodies that owe existence to federal statutes or regulations. Companies incorporated under Canada Business Corporations Act are excluded. Also likely that other bodies incorporated under federal statute to conduct business on behalf of the govt (eg. Canada Broadcasting Corporation). Also is an explicit exclusion of bodies or persons exercising powers under a federal statute but appointed by or under the law of a province (e.g. powers exercised by provincial highway transport boards over interprovincial trucking operations) as well as persons appointed under s96 of Constitution Act 1867 (i.e. superior court judges). Authority of s96 judges who exercise special (federal) statutory powers. Are they acting as s.96 judges or under authority of statute and subject to JR in Federal Court? Re Herman and Ranville, SCC held that unless the statute expressly stated otherwise, s.96 judges exercised all powers conferred on them by statute in their capacity as superior court judges. As such, decisions not reviewable. In some domains, provincial superior courts continue to possess JR jurisdiction over federal decision making. S18 of FCA never provided for the issue by Federal Court of the prerogative writ of habeus corpus (writ which requires a person under arrest to be brought before a judge or into court.) in relation to detentions by federal statutory authorities. Miller and May v Ferndale: Provincial superior courts have jurisdiction to issue certiorari in aid of habeus corpus in respect of dentention in federal penitentiaries in order to protect residual liberty interests. In prison context, the applicant is entitled to chose the forum in which to challenge an allegedly unlawful restriction of liberty. Also, provincial superior court should decline to exercise its habeus corpus jurisdiction only in limited circs and not because antoher alternative remedy exists and appears more convernient in eyes of court.

142

These include where statute confers jurisdiction of Cof A to correct errors of lower court and release applicant if need be and also where there is in place a complete, comprehensive and expert procedure for review of an admin decision. Within their inherent jurisdiction, provincial superior courts can issue interlocutory injunctions in aid of admin processes created by federal legislation. Provincial superior court’s can also be involved in the review of admin action where there are claims in damages against the federal Crown. See Telezone As Between the Federal Court and Federal Court of Appeal Heavy caseload in immigration and refugee matters is now carried out by the Federal Court. List in s.28 eliminates wasteful litigation on whether a proceeding should be commenced in Federal Court or FCofA. Concern – Allocation of jurisdiction only affects judicial review jurisdiction. Two consequences 1. to extent that a claim for damages is made on basis of the conduct of any of the bodies listed in s.28, the proceedings come within the original jurisdiction of either the Federal Court or the appropriate provincial court, not the FCofA (s.17) 2. Ss18(5) and 28(2), the JR jurisdiction of the FC and FCofA is conditioned on the extent to which the decision under review is subject to a statutory appeal. Where a statutory appeal right exists, it must be exercised, this excluding the possibility of JR under the FC Act. Claims for damages in the Federal Court JR applications in Federal Court are commenced by way of application (s18). H/e, Claims for damages against Crown and federal statutory authorities are commenced by way of an action under s.17. Causes difficulties – seems to preclude joining of proceedings for JR and damages in relation to an exercise of federal statutory powers. H/e, pursuant to s. 18.4(2) wrt bodies that are subject to the original review jurisdiction of Federal Court, the Federal Court, may if it considers it appropriate, direct that an application for JR be treated and proceeded with as an action.

143

13. Remedies This last part looks at the relief that can be provided on judicial review and through separate and different legal proceedings. It focuses on: the sorts of remedies available on judicial review; the fact that the award of remedies on judicial review is discretionary and may be denied on some of the grounds discussed in the materials; and, the fact that there are civil remedies that may overlap with the sorts of errors that give rise to judicial review, but that these are governed by their own rules and procedures. FORMS OF PERMANENT RELIEF - Remedies available on judicial review have their roots in ancient prerogative writs, such as: a) Certiorari ("cause to be certified") - Special proceeding by which a superior court requires some inferior tribunal to provide it with the record of its proceedings for review to see if it exceeded its jurisdiction - A successful certiorari application results in "quashing" the tribunal's order or decision b) Prohibition - Issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial court from exercising a power (negative remedy) - Unlike certiorari, which provides ex post facto relief, this provides pre-emptive relief like a CL injunction to prevent an unlawful assumption of jurisdiction c) Mandamus ("we command") - Writ issued by a superior court to compel a lower court or government agency to perform a duty it is mandated to perform - In practice, often combined with an application for certiorari - ie: certiorari used to quash decision (ie: for lack of procedural fairness) while mandamus used to force the tribunal to reconsider the matter in a procedurally fair manner d) Declaration - Judgment of the court that determines the legal positions of the parties - Public law ones used to declare gov't action ultra vires; private law ones declare statutory rights - Declarations are not enforceable, and can't require anyone to take/refrain from action e) Habeas Corpus ("produce the body") - Writ to bring a person before a court…used to ensure imprisonment/detention is not illegal - Like certiorari, it is alive and well in the USA (ie: death penalty reviews to federal courts) - Over time, prerogative writs came to be archaic because small technicalities or wrong choice of writ would bar potentially meritorious applications…as a result, many provinces and feds made reforms (ie: Federal Courts Act and BC ATA) - However, the underlying writs are still important to know what remedies you get with judicial review Statutory Appeals It should be recognized that the most common way of challenging administrative action is by the huge variety of statutory appeals that exist in individual statutes creating specific tribunals, agencies, and statutory powers. Not only may a statute provide for a more extensive mode of relief than allowed for under the principles of judicial review but also you may be expected to use that avenue of recourse even where its reach is the same as, or in some cases even narrower than, that of judicial review.

144

Judicial Review Collateral Attack Defined as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Cooper v Board of Works for Wandsworth District. Validity of Board of Works’ argued that its demolition of the stricture was justified by a valid order and was not actionable trespass. Validity of the order was not the direct target of the proceedings – it was raised indirectly as part of the board’s defence of the tort of trespass. Also see this in prosection for violation of a bylaw or regulation when D challenges validity of the statutory instrument e.g. R. v Sharma. SCC has made it clear that collateral attack is not a matter of right but should be carefully circumscribed by the use of judicial discretion (Consolidated Mayburn) Direct Attack Until recently, substantive scope of judicial review or administrative action was dictated by rules on the availability of the various public law remedies – many of which were arcane, complex and had no policy basis. Steps were taken to simplify judicial review and the avaiablity of public law remedies. -Sec.2 of the Federal Court Act creates a single application for judicial review encompassing the existing remedies of judicial review anda pparently serving as a replacement for those remedies. In large measure the species of relief specified in this modern legislation do no more than codify the successful outcomes of a successful application for the former remedies: Certiorari would quash or nullify a position; prohibition and the injunction would prohibit or enjoin action; mandamus would direct the performance of duties; declarations would declare rights as between the parties. Putting all these modes or relief under one judicial review remedy meant that difficulties of chosing the correct remedy was removed/minimized, provided the relevant Act’s thresholds were crossed. Statute also allows Court to refer matter back for reconsideration in accordance with specific findings or directions. This is a significant remedial addition to judicial review powers of the court. General availibility of interim relief is also an improvement – previously it was unavailable in support of a prerogative remedy or by way of declaration. Such statutory reforms or codes have not meant the disappearance of all remedial problems and uncertainties. Can court engage in partial quashing or setting aside of decision? Can it vary a decision or order rather than quash it? Courts have worked to find creative and sensitive solutions to remedial dilemmas. Used Charter as the basis sometimes. Dagenais v. Canadian Broadcasting Corp the court held that certiorari was available not only to quash but also to vary a publication ban issued by a county court judge. Based decision on s 24(1) of Charter – those with a Charter claim may “obtain such remedy as the court considers appropriate and just in the circumstances”.

145

Dagenais is significant as it affirms principle that Charter challenges can be raised in regular judicial review proceedings and also should be raised within that framework, where feasible, rather than by reference to an independent species of relief created by s24(1). But do the statutory regimes of judicial review allow a person to seek a bare declaration that an administrative regime breaches the Charter. CofA in Ontario held in Re Service Employees International Union, Local 204 that there was no room for a bare declaration under the Ontario Judicial Review Procedure Act that provisions in a regulatory statute infringed the Charter. This means bare declarations must be sough under those statutory provisions or rules of court that establish the general jurisdiction of the court to grant declaratory relief. Effect of Certiorari Relief -In some instances the award of relief in the nature of certiorari or prohibition (or a declaration or an injunction for that matter) will have the effect of leaving the authority under attack with no residual jurisdiction in the matter. Eg. If a provincial labour relations board is prohibited from proceeding in a matter because the employment relationship comes within federal jurisdiction, the board has been excluded completely from that matter. However, judicial review does not always undermine the whole authority of the decision maker under attack. Thus, the quashing of a certification on the basis of the impropriety of a pre-hearing vote in Re Little Narrows GypsumCo. Ltd did not bring into question the general jurisdiction of the board to consider the application of the bargaining unit for certification. Appeal division held that the effect of certiorari was to wipe out the certification order and the pre-hearing vote but the application for certification still not dealt with. Board had a duty to proceed – mandamus type relief only necessary if board refused to act. Board did not have to start over, rather resume at the point the error was made – sensible approach. In Gill v. Canada (Minister of Employment and Immigration), an Immigration Appeal Board decision was set aside and the matter referred back to board. Board decided that it did not have authority to reopen a Convention refugee hearing that had been tainted by breaches of the rules of natural justice of sec. 2(e) of the Bill and sec. 7 of the Charter. The Federal Court of Appeal held that even absent a specific statutory authority to reopen or rehear a case, a tribunal in such circumstances had the implied authority to do so and rectify such wrongs. Cf 841638 NWT Ltd. v Labour Standards Officer where NW Territories Supreme Court relied on the absence of a power to rehear in refusing to order the rehearing of a labour standards board decision that had been tainted by breaches of the rules of natural justice. Effect was to preclude the adjudication of the employees’ claim for wages where the initial failure to afford natural justice to their employer was not their fault. Limits on Mandamus Relief Karavos v. City of Toronto Laidlaw JA cited High’s Extraordinary remedies: “Mandamus is appropriate to overcome the inaction or misconduct of persons charged with the performance of duties of a public nature. Before the remedy can be given, the applicant for it must show: 1)“A clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced.” 2)“The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform.”

146

3)That duty must be purely ministerial in nature, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers. 4)There must be a demand and refusal to perform the act, which it is sought to coerce by legal remedy. Definitions of above categories -Ministerial – if he meant that mandamus was only available with respect to administrative rather than judicial and quasi- judicial functions, then his view is not in line with present authority. -Public – not all powers created by statute can be considered “public” for the purposes of judicial review – note the Halifax-Dartmouth Real Estate Board case - it may be that there are “public” duties that exist other than by virtue of statute or royal prerogative – e.g. Re Morris and Morris Judge issued mandamus to compel the defendant to commence proceedings before a Jewish religious court for the recognition of his civil divorce. -Clear Legal Right to Perform the Duty. This is an overstatement in currant practice in that it emphasizes duty owed to an applicant personally rather than as a member of a wider class -Duties – it should be noted that not all statutory provisions stated in terms of “duties” will give rise to a claim of enforcement by the public. Sometimes they will be stated at such a level of generality as to make it clear that the provision is for the guidance of the statutory authority, and is not intended to confer rights on members of the public. e.g Victoria University of Wellington Students Association Inc. v Shearer (Government Printer) – Association attempted through mandamus to compel S to print a consolidated version of Code of Civil Procedure. Statutory provision stated that all Acts required to “be procurable by purchase at the officers of the Govt Printer”. Held that this was duty of the crown and not compellable by mandamus. – i.e. general organizational duty of the printer and not intended to confer rights on the public. Cf Union of Northern Workers v. Jewell – Application for mandamus order compelling minister to appoint members of an occupational health and safety board – with statutory resp to advise minister on safery in mines. Court held that applicant had standing to seek such relief and that appointment of members was statutorily mandated even though Act required a process to be set up for appointment of certain members. Although the process hadn’t been set up, the court held that mandamus relief was available. Distinguished Karavos on basis that a valid formal demand was not a necessary prelude to granting of relief in a situation that was apparent for a number of years and where it was clear to minister that the appointment of the board was sought. Mandamus is sometimes sought in conjunction with certiorari: Certiorari to quash a decision already taken, and mandamus to compel its retaking in accordance with the law. Unless case involves non-jurisdictional error of law or breach of procedural fairness, use of certiorari is probably redundant in such cases. Mandamus is theoretically available alone as person who brings complaint alleges that the administrative body has a duty to take a decision according to the law and this duty remains unfulfilled, notwithstanding an unlawful attempt by the body to take the decision.

INTERIM AND INTERLOCUTORY RELIEF AND STAYS OF PROCEEDINGS Introduction In judicial revire proceedings, an application for judicial review generally does not have the effect of staying proceedings in the underlying decision making process. Re Cedarvale Tree Services Ltd. and

147

Labourers’ International Union, the Ontario CofA held that a tribunal was not obliged to halt its proceedings after being served with an application for certiorari and prohibition – halting the proceedings was a matter of courtesy and common sense for the statutory authority rather than a legal obligation. Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, Ontario Labour Relations Board determined for itself whether to suspend its proceedings while a JR was pending. Statute – PEI Judicial Review Act expressly provides that the launching of an application for JR under the Act does not automatically stay further proceedings or acts whose validity depends on the decision being challenged. Can imply this in other statutes as well. But consequences of the court being unable to make an order to prevent deportation of a Convention refugee claimant during a Charter claim are disasterous. The modern JR regimes have express provision for the award of interim relief to halt the administrative process – stay of proceedings, interlocutory injunction, order under relevant legislation or rules on JR procedure. These provisions overcome an apparent limitation of the prerogative remedies – interim relief was not available as an adjunct to the seeking of such relief (obliges those needing interim relief to proceed by way of an action for an injunction). In general, the availability of interim relief to halt the administrative process, whether in the form of a stay or interlocutory injunction or under the relevant judicial review procedure legislation or rules, tends to be subject to the same general principles that govern the availability of interim injunctions in the private domain. However, the public interest in the efficient and timely exercise of statutory power looms as an explicit consideration in the balancing of the various interests involved and serves to differentiate these kinds of cases from most situations in which interlocutory relief is sought in private litigation. Moreover, in many cases, there is also the added dimension of Charter interests being at stake, which serves to add a countervailing consideration in the exercise of the court’s discretion over the availability of such relief. Another potential use of interlocutory relief has emerged; namely, the seeking of interlocutory relief to prevent actions being taken by those subject to that process pending the conclusion of a hearing or investigation. STAYD OF THE ADMINISTRATIVE PROCESS Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. The Manitoba Labour Board was empowered by The Labour Relations Act to impose a first collective agreement. When the union applied to have the Board impose a first contract, the employer commenced proceedings in the Manitoba Court of Queen's Bench to have that power declared invalid as contravening the Canadian Charter of Rights and Freedoms. Within the framework of this action, the employer applied by way of motion in the Court of Queen's Bench for an order to stay The Manitoba Labour Board until the issue of the legislation's validity had been heard. The motion was denied. The Board, unfettered by a stay order, indicated that a collective agreement would be imposed if the parties failed to reach an agreement by a certain date. The Manitoba Court of Appeal allowed the employer's appeal from the decision denying the stay order and granted a stay. At issue here are: What principles govern the exercise of a Superior Court Judge's discretionary power to order a stay of proceedings until the constitutionality of impugned legislation has been determined. (1) The Usual Conditions for the Granting of a Stay

148

-A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules. -I propose to give an outline of the three main tests currently applied: The first test is a preliminary and tentative assessment of the merits of the case. The House of Lords, in American Cyanamid Co. v. Ethicon Ltd ., held that all that was necessary to meet this test was to satisfy the Court that there was a serious question to be tried as opposed to a frivolous or vexatious claim. This is sufficient in a constitutional case where the public interest is taken into consideration in the balance of convenience. .-The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. -The third test, called the balance of convenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits . (2) The Balance of Convenience and the Public Interest -A review of the case law indicates that, when constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be restricted to the application of traditional criteria which govern the granting or refusal of interlocutory injunctive relief in ordinary private or civil law cases. Unless the public interest is also taken into consideration in evaluating the balance of convenience, they very often express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the merits. The following are reasons why: (i) Difficulty or Impossibility to Decide the Merits at the Interlocutory Stage First, the extent and exact meaning of the rights guaranteed by the Charter are often far from clear and the interlocutory procedure rarely enables a motion judge to ascertain these crucial questions.Second, in Charter cases, the factual situation as well as the law may be so uncertain at the interlocutory stage as to prevent the court from forming even a tentative opinion on the case of the plaintiff. Third, in many Charter cases such as the case at bar, some party may find it necessary or prudent to adduce evidence tending to establish that the impugned provision, although prima facie in violation of a guaranteed right or freedom, can be saved under sec. 1 of the Charter. But evidence adduced pursuant to sec. 1 of the Charter essentially addresses the merits of the case –which should not be addressed in a hearing of this kind.However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate sec. 2(a) of the Charter, could not possibly be saved under sec. 1 of the Charter and might perhaps be struck down right away. (ii) The Consequences of Granting a Stay in Constitutional Cases Although constitutional cases are often the result of a lis between private litigants, they sometimes involve some public authority interposed between the litigants, such as the Board in the case at bar. In

149

other constitutional cases, the controversy or the lis, if it can be called a lis, will arise directly between a private litigant and the State represented by some public authority In both sorts of cases, the granting of a stay requested by the private litigants or by one of them is usually aimed at the public authority, law enforcement agency, administrative board, public official or minister responsible for the implementation or administration of the impugned legislation and generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant or litigants who request the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can perhaps be referred to as suspension cases. In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others. Instances of this other type, I will call exemption cases. Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted are generally passed for the common good. The question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves. NO, it isn’t equitable and just therefore the courts will usually look to the public interest. (iii) Conclusion -Suspension cases and exemption cases are governed by the same basic rule according to which, in constitutional litigation, an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in the balance of convenience and weighted together with the interest of private litigants.The reason why exemption cases are assimilated to suspension cases is the precedential value, in that to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case. I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. That is also the rule even where there is a prima facie case against the enforcement agency, such as one which would require the coming into play of sec. 1 of the Charter . .-I should point out that I would have reached the same conclusion had sec. 24 of the Charter been relied upon by counsel – assuming for the purpose of thed iscussion that this provision applies to interlocutory relief. Application to the Case

150

It is now appropriate to review the judgments of the courts below in light of the principles set out above. The main legislative provision under attack is s. 75.1 of The Labour Relations Act of Manitoba, enacted in S.M. 1984-85, c. 21, s. 37, which enables the Board to settle the provisions of a first collective agreement. It is alleged by the employer that these provisions in question violate ss. 2(b), (d) and 7 of the Canadian Charter of Rights and Freedoms relating respectively to freedom of expression, freedom of association, liberty and security of the person. All the parties have conceded that the constitutional challenge is indeed a serious one and the test of a "serious question" has been met. The "irreparable harm" test also clearly appears to have been satisfied. He agreed with the trial judge and her application of the principles: “It would seem to me that the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements or applications involving the mandatory inclusion of sections within negotiated agreements. In effect, for a two or three year period, prior to any finding of invalidity of those sections, their operation would be suspended, suspended in circumstances where the status quo cannot, practically speaking, be maintained. In my opinion, in both the circumstances of this particular case and more generally, the balance of convenience favours proceeding as though the sections were valid unless and until the contrary is found.” While this is an exemption case, not a suspension case, and each case, including a fortiori an exemption case, turns on its own particular facts, yet, the inconvenience suffered by the parties is likely to be quite similar in most cases involving the imposition of a first collective agreement. Accordingly, the motion judge was not only entitled to but required to weigh the precedential value and exemplary effect of granting a stay of proceedings before the Board. I have not been persuaded that she committed reversible error in concluding that "the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements". RJR-MacDonald Ltd v. A.G. of Canada -The Supreme Court made clear that American Cyanamid provided the general test for the availability of interlocutory relief in Canada, be it in the private or the public law domain. -Also refined what “irreparable harm” meant in the public law setting: The assessment of irreparable harm in interlocutory applications involving Charter rights is a task which will often be more difficult than a comparable assessment in a private law application. One reason for this is that the notion of irreparable harm is closely tied to the remedy of damages, but damages are not the primary remedy in Charter cases. Until the law in this area has developed further, it is appropriate to assume that the financial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutes irreparable harm. - “public interest” It is open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. "Public interest" includes both the concerns of society generally and the

151

particular interests of identifiable groups. We reject an approach which excludes consideration of any harm not directly suffered by a party to the application. When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. Consideration of the public interest may also be influenced by other factors. In Metropolitan Stores, it was observed that public interest considerations will weigh more heavily in a "suspension" case than in an "exemption" case. The reason for this is that the public interest is much less likely to be detrimentally affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when* the application of the law is suspended entirely. Similarly, even in suspension cases, a court may be able to provide some relief if it can sufficiently limit the scope of the applicant's request for relief so that the general public interest in the continued application of the law is not affected. Thus in Ontario Jockey Club v. Smith (1922), 22 O.W.N. 373 (H.C.), the court restrained the enforcement of an impugned taxation statute against the applicant but ordered him to pay an amount equivalent to the tax into court pending the disposition of the main action. - the “Status Quo” In the course of discussing the balance of convenience in American Cyanamid, Lord Diplock stated at p. 408 that when everything else is equal, "it is a counsel of prudence to ... preserve the status quo." This approach, as a general rule, no merit as such in the face of the alleged violation of fundamental rights. One of the functions of the Charter is to provide individuals with a tool to challenge the existing order of things or status quo. The issues have to be balanced in the manner described in these reasons. Note: this was in a charter context – what about other challenges – ultra vires or patently unreasonable decision? Sobeys Inc. – held that as opposed to Charter cases (where std of review is correctness) the applicant for a stay of proceedings in relation to decisions protected by a privative clause (unreasonableness std), had to establish a strong prima facie case on the merit, not just a serious issue to be tried. Not followed in other courts though. THE DISCRETION OF THE COURT The courts retain an overriding discretion to deny relief. Common grounds for refusal include existence of alternative avenues of recourse (statutory right of appeal or more convenient court remedy) prematurity and its opposites, delay and mootness, lack of practical utility, misconduct of applicant, waiver and sometimes, balance of convenience or public interest. Bases for denial that are rooted in concerns for the integrity and functioning of the administrative process raises issues dealt with throughout the course, in particular the extent to which the claim that the administrative process has for deference and institutional respect from the courts

152

Some of the discretionary grounds for relief (misconduct, waiver and delay) involve judicial assessment of the action of the applicant. Links to law of standing. Generally - only those who have suffered specified harm/damage may seek JR even if Canadian law recognises categories of public interest standing. The discretionary grounds for the refusal for relief have the potential to legitimise unlawful administrative action and part of the objective in this chapter is to raise questions as to when it is appropriate for the courts to take that risk of allowing an unlawful decision or course of action to achieve de facto legal status. Concepts of “voidness” and “nullity” are generally relative rather than absolute. e.g. in Manitoba Language Rights Case – court did not void all laws that were not drafted bi lingual – allowed them to be deemed valid until Manitoba re-legislated bilingually. Sparvier v. Cowessess Indian Band No. 73 Election of chief of band. Appeal tribunal ordered new election on the basis of irregularities in voting process. Different chief elected but also successful challenge to order of appeal tribunal. To minimize disruption to Judge left the second election undisturbed until the new appeal had been heard. Did this by postponing the quashing order until either the original election was upheld or the day after the election should the appeal tribunal order another election. Need remedial flexibility to diminish disruptive effects of JR. Sometimes courts have eschewed use of discretion at the remedial stage. Cardinal v Director of Kent Institution – SCC rejected arguments for refusing relief for breach of rules on natural justice based on proposition that the outcome would have been the same even if rules on natural justice were compled with. Pragmatic approach – breach of rules on natural justice might not render a decision void. Note: commentators have highlighted a problem of reigning in judicial remedial discretion and subject it to appropriate ordering principles while at the same time ensuring that the judges have sufficient remedial flexibility and room for creatively dealing with the complexities of regulatory structures and specific fact situations. Is the law well-served by current principles governing appeal court intervention in the exercise of remedial discretions by first instance judges? In Canadian Pacific Ltd. v. Matsqui Indian Band, SCC stated: this discretionary determination should not be taken lightly by reviewing courts. It was Joyal J.'s discretion to exercise, and unless he considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion, then his decision should be respected. To quote Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046, an appellate court "must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently". ALTERNATIVE REMEDIES Courts will sometimes regard the existence of a specific remedy in the empowering statute as excluding the availability of common law judicial review as a matter of jurisdiction. More frequently, the question of alternative remedies is dealt with by reference to the courts’ overriding discretion to refuse relief even where the substance of the applicants or plaintiff’s case may have been made out. In

153

such instances, the questions asked tend to be about the relative or comparative convenience of judicial review as opposed to the alternative forms of relief that are also available. Statutory Appeals Harelkin v. University of Regina [1979] 2 SCR 561 (Sask.)-Student applied for ceritorari and mandamus, rather than pursuing the available right of appeal to a committee of the university senate The student’s contentions: (1) failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae (as of right); Judge noted mandamus and certiorari are discretionary remedies. Courts have developed criteria as to how the discretion should be exercised. Confusing therefore to say these remedies should be issued ex debito justitiae (as of right) – they are not. … (3) even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; -The court held that the appellant was not entitled to assume that the senate committee would have denied him a hearing. Nor should he have assumed that since one governing body of the school denied him natural justice, another body of superior jurisdiction would of the same. He should have assumed the opposite. In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous finding, expeditiousness and costs. A consideration of all the factors led to the conclusion that appellant's right of appeal to the senate committee did provide him with an adequate alternative remedy. In addition this remedy was a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness. Also, the council committee's refusal to grant a rehearing to appellant was not a sufficient reason for issuing certiorari and mandamus. .-Dickson J (Dissenting): Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding a right of appeal to an administrative or domestic body, where that body exercises purely appellate functions. This point raised the general issue of the discretionary nature of certiorari. In this context the authorities draw a distinction between jurisdictional and non-jurisdictional error and between a right of appeal to an administrative or domestic tribunal and a right of appeal to the courts. Generally speaking, the rule is that, if the error is jurisdictional, certiorari will issue ex debito justitiae, but if the error is error in law, then in the absence of a privative clause, certiorari may issue. The discretion is broad when the error is nonjurisdictional and there is an appeal to the courts, but virtually disappears when the error is jurisdictional and the right of appeal, if any, is to an administrative or domestic tribunal sitting in a purely appellate role. In all the circumstances, and on the footing (i) that the council of the university had no jurisdiction to deny the appellant a hearing, and (ii) that the appeal given to the appellant was administrative and not

154

to the courts, there was simply no authority for the decision of the Court below. An appeal was simply not a sufficient remedy for the failure to do justice in the first place. The appellant should be able to look to the courts for relief if he is treated unfairly by the council, regardless of what might have occurred before the senate, had he pursued that route. At the time he was faced with the choice of senate appeal or certiorari he had no assurance that he would be heard by the senate appeals committee. The council committee, whose statutory duty to "hear and decide" was framed in the same terms as senate, had preferred an in camera session from which he was excluded. There was nothing, at the time, to say that senate would not adopt the same attitude. The strong dissent led to debate. SCC reconfirmed Harelkin in this case: Canadian Pacific Ltd. v. Matsqui Indian Band Whether applicants, contesting property tax, could proceed directly to Federal Court by application for JR an bypass appeals tribunals established by the taxing Indian bands by way of bylaw. -The question was whether the trial judge exercised proper discretion in refusing to entertain the respondents’ application for judicial review, which then forced them to pursuer their judicial challenge by means of appeal procedures established by the Indian Act -The presiding judge held that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an application to proceed through a statutory appeal procedure. (The court must always bear in mind Parliament’s objective in creating the Indian taxation powers as well) -These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). - Must consider the adequacy of the statutory appeal procedures established by the bands and not simply the adequacy of the appeal tribunals – noted that bands provided for appeals from the tribunals to the Federal Court. - The judge held that the original judge’s findings were not unreasonable. All he had to decide was whether it was an adequate forum, not if it was a better forum than the courts. -However, the trial judge failed to take into account the lack of the Indian tribunal’s lack of independence. Note: page 1161 – Other cases (prior to Matsqui) where courts did not require that the appeals process be exhausted first. Statutory Appeal to the Courts Generally, Canadian Courts takte the position that if the grounds on which the applicant for JR is relying could have been raised in the context of a statutory appeal, the application will be dismissed – Milner Power Inv. V Alberta Energy and Utilities Board Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and Orders A different aspect of the issue of alternative remedies is raised when an attempt is made to use the couirts to vindicate rights created by/arising under a statute or to enforce statutory or administrative prohibitions. There may be other methods established to resolve such matters – eg. Administrative (not judicial) determination or enforcement; prosecution rather than declaratory or injunctive relief Shore Disposal Ltd. v. Ed de Wolfe Trucking Ltd. (1976), 72 DLR (3d) 219 (NS SCAD)

155

-The trial judge held that the appellant was a carrier of freight for gain, that it had no license from the Public Utilities Board and it was therefore violating the Act. He granted a declaratory judgment. -The judge declined to grant an injunction to restrain the appellant from engaging in the business of collecting and disposing of garbage until such time it was licensed under the Act. -The judge based his refusal on the fact that the Act “contains sufficient remedies to ensure due compliance with its provisions, without the necessity in this instance of a Court injunction.” This appeal court stated that the principle that a declaration should not be granted merely to enforce a criminal or penal offence is in my view a branch of a wider principle that the SC should not usually interfere by declaration where the matter in issue is placed within the jurisdiction of another tribunal (in this case, the Public Utilities Board who were already taking enforcement action. -The respondents are merely special prosecutors seeking condemnation of past crimes by declaration alone without due process of criminal law; they have no special rights, which might have warranted granting them an injunction to ensure their future protection. Note: in Lambair Ltd v Aero Trades the Court allowed an action for damages brought by a competitor against another airline for failure to assess proper charges for its services as required by a CTC order. Is the distinguishing factor monetary relief being sought rather than a declaration? Prematurity Prematurity involves an assertion by the court that, while the applicant may potentially have good cause of action, the matter is inappropriate for judicial intervention at present. There are a number of reasons why this might be so. First, there is the possibility that the matter may be resolved internally or without the need for court intervention. Also, an advantage of allowing the tribunal to proceed to a conclusion on the issue in question is that it will be building an evidential record that will facilitiate subsequent JR. The following case brings together the issues of prematurity and availability of an adequate right of appeal in that the applicant for relief was confronted by the dual argument that the tribunal itself had not finally ruled on the issue that there was a right of appeal from the ultimate decision of the tribunal anyway. Howe v. Institute of Charter Accountants of Ontario (1994), 19 OR (3d) 483 (CA) Howe was charged with professional misconduct. Prior to hearing of disciplinary committee, H provided with materials but not a report of the investigator – investigating committee said it was confidential. H applied for JR on the basis that he was entitled to see the report. Divisional Court dismissed his claim and he appealed to O CofA. Per Finlayson (Brooke JA concurring) – We are being asked to rule on the adequacy of the disclosure made to date by the prosecution when we do not have the means of gauging the significance of what has been disclosed against what is contained in the investigators report. Agreed with the Divisional Court that this application was premature. The courts should only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it. We should not encourage applications like this which have the effect of fragmenting and protracting the proceedings except in the clearest cases.

156

Per Laskin JA (dissenting): There are two branches to the argument that this application is premature. The first is that the court should not encourage applications for judicial review of preliminary rulings or interlocutory orders of an administrative tribunal, especially where the aggrieved party has an adequate right of appeal. The second is that the appellant is entitled to renew his motion for disclosure before the panel that will hear the charges of professional misconduct and that that panel should be given the opportunity to rule on the motion -Although an application for judicial review does not require an administrative tribunal to bring its proceedings to a halt, an aggrieved party should not be encouraged to rush off to Divisional Court’s every time it is dissatisfied with a ruling made by a tribunal BUT, where the ruling amounts to a breach of the duty of fairness or a breach of natural justice, different considerations apply. Breach of natural justice amounts to jurisdictional error and court can intervene. If we assume that adequate alternative remedy by appeal is a sound basis to refuse JR, q still remains whether the right of appeal is and adequate alternative remedy for the breach complained of. In my vie it is not. It would be more efficient and less costly to determine the disclosure issue now. The hearing has not started so there is no fragmenting and protracting of the process. In what circumstances should a challenge based on reasonable apprehension of bias or a lack of independence be held to be premature? Should the court at least wait until the tribunal itself has had an opp to deal with the challenge? Are there sits where the affected party should postpone any judicial review application on the basis of bias or lack of independence until the end of the hearing? Air Canada v. Lorenz [2000] 1 FC 494 (TD) L made an unjust dismissal case against Air Canada. 5 days into hearing, Air Canada learned that adjudicator was acting for a client in an unjust dismissal case against an employer. Adjudicator refused to provide the parties with any further details of the case or other unjust dismissal cases on which he was working. Air Canada asked that he recuse himself on basis of reasonable apprehension of bias. He refused and Air Canada applied for JR of his ruling. -The judge held that it would be inappropriate for the Court to make a ruling before the adjudicator has rendered a final decision on the unjust dismissal complaint. -Air Canada put fourth an argument that there was a sense of bias and if the judge rules against it, they can simply put fourth an application for judicial review at that stage. The exercise of the Court's discretion here turns principally on a weighing of two competing considerations. On the one hand are the possible hardships caused to Air Canada, and the time and resources that will have been wasted, if the bias question is not determined prior to the completion of the proceeding before the adjudicator. On the other hand, there are the adverse consequences of delaying the administrative process and of countenancing a multiplicity of litigation. Factors considered: (a) hardship to the applicant This factor cannot be determinative - This that a court would have no discretion to dismiss for prematurity when bias is alleged (b) waste If Air Canada is required to postpone its challenge until the end of that hearing, and its application is then successful, the resources devoted to the last 18 days of the hearing will have been wasted.

157

]This is only relevant if Air Canada is found to have dismissed Mr. Lorenz unjustly, something that is still in the realm of the unknown. (c) delay Completion of the hearing before the adjudicator has been delayed by JR application (nearly two years). Also, if the Court were to decide Air Canada's allegation of bias prior to the completion of the administrative process it is all too likely that participants in other administrative proceedings may resort to judicial review for the purpose of delaying the proceedings, or forcing the more vulnerable party to surrender or settle. (d) fragmentation A determination of Air Canada's bias allegation at this time may also proliferate litigation. Fragmentation of the issues raised by an administrative proceeding is wasteful of court resources and unduly burdens the administration of public programs. (e) strength of the case Air Canada did not satisfy me that this is a clear and obvious case of bias. On the other hand, it clearly cannot be characterized as frivolous either. Air Canada's allegation of bias is by no means fanciful. (f) statutory context The avoidance of delay and fragmentation of the issues are factors that should be regarded in the context of this statutory scheme as carrying considerable weight. Even when an adjudicator is impugned for bias, it will be the rare case indeed when the Court should determine the merits of the claim prior to the release of the adjudicator's ultimate decision, such as when the allegation reveals a very clear case of bias and the issue arises at the outset of a hearing that is scheduled to last for a significant length of time. The jurisprudence A court should only intervene before the tribunal has rendered its final decision in "exceptional circumstances" ]Nonetheless, I find no authority for the proposition that an allegation of bias ipso facto constitutes "exceptional circumstances" justifying judicial review before the tribunal has rendered its final decision. Mootness By the time an application for judicial review comes on for a hearing or by the time it reaches the appropriate Court of Appeal or SCC, the dispute will ceased to have practical significance for the applicant. E.g. Cardinal – the inmate’s challenge about the way they were treated will only have been resolved by courts after they are released. Should the Court even proceed to deal with the matter? If the decision of the court will have no practical effect on the rights of the parties affected, the court will decline to decide the case. Borowski v AG Delay Delay in commencing proceedings may go either to the jurisdiction or the discretion of the reviewing court. Failure to adhere to mandatory limitation statutes or provisions will prevent the court from even considering the case. However, if there is no limitation period, or even within a limitation

158

period, the courts will on occasion deny relief to the applicant on the ground of undue delay, the doctrine of laches. Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR3 - The last substantive issue raised in this appeal is whether the Federal Court of Appeal erred in interfering with the motions judge’s discretion not to grant the remedies sought, namely orders in the nature of certiorari and mandamus on the grounds of unreasonable delay and futility. Per Majority: The Federal Court of Appeal did not err in interfering with the motions judge's discretion not to grant the remedies sought on the grounds of unreasonable delay and futility. Respondent made a sustained effort, through legal proceedings in the Alberta courts and through correspondence with federal departments, to challenge the legality of the process followed by the province to build the dam and the acquiescence of the appellant Ministers, and there is no evidence that Alberta has suffered any prejudice from any delay in taking the present action. Despite ongoing legal proceedings, the construction of the dam continued. The province was not prepared to accede to an environmental impact assessment under the Order until it had exhausted all legal avenues. The motions judge did not weigh these considerations adequately, giving the Court of Appeal no choice but to intervene. Futility was also not a proper ground to refuse a remedy in the present circumstances. Prerogative relief should only be refused on that ground in those few instances where the issuance of a prerogative writ would be effectively nugatory. It is not obvious in this case that the implementation of the Order even at this late stage will not have some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact from the dam on an area of federal jurisdiction. Per Stevenson J. (dissenting): The Federal Court of Appeal erred in interfering with the motions judge's discretion to refuse the prerogative remedy. The court was clearly wrong in overruling his conclusion on the question of delay. The common law has always imposed a duty on an applicant to act promptly in seeking prerogative relief. Given the enormity of the project and the interests at stake, it was unreasonable for the respondent Society to wait 14 months (not 2 months as Society claims) before challenging the Minister of Transport's approval. It is impossible to conclude that Alberta was not prejudiced by the delay. The legal proceedings in the Alberta courts brought by the respondent and others need not have been taken into account by the motions judge. These proceedings were separate and distinct from the relief sought in this case and were irrelevant to the issues at hand. The present action centres on the constitutionality and applicability of the Guidelines Order. It raises new and different issues. In determining whether he should exercise his discretion against the respondent, the motions judge was obliged to look only at those factors which he considered were directly connected to the application before him. Interference with his exercise of discretion is not warranted unless it can be said with certainty that he was wrong in doing what he did. The test has not been met in this case. R v. Consolidated Mayburn Mines Ltd. [1998] 1 SCR 706 (Ont.) Appellant company operated a gold and copper mine. Ontario Ministry of the Environment concluded that it was abandoned and that transformers containing PCBs presented a risk of environmental contamination. Despite numerous efforts to have the company take corrective action, the condition of the site did not change. Ministry issued an order and required the appellants to address contamination issues. The appellants did not appeal to the Environmental Appeal Board and basically elected to disregard the order. When charged by the Ministry with failing to comply with the order, the appellants submitted by way of defence that the order was invalid. The trial judge concluded that only the order to drum and store the contaminated material was valid and ordered the appellants to pay a fine. The Ontario Court (General Division) allowed the respondent's appeal with respect to the counts relating to the failure to construct a storage area and to clean, and dismissed the appellants' appeal of the conviction. The court held that by reviewing the

159

validity of the order, the trial judge had exceeded his jurisdiction under the Environmental Protection Act and encroached on the Environmental Appeal Board's functions. The Court of Appeal affirmed that judgment. The Court addressed the issue of whether, and in what circumstances, a party subject to an administrative decision or order can, without having appealed the decision or order, attack that decision or order in a subsequent judicial proceeding. When it is necessary for an aggrieved party to exhaust all administrative remedies prior to seeking a remedy in a judicial forum. Five factors should be considered in determining whether a collateral attack is permissible: (1) the wording of the statute; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of the collateral attack in light of the appeal tribunal’s expertise and raison d’etre (where an attack on an order requires the consideration of factors that fall within the specific expertise of an administrative appeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penal jurisdiction. Conversely, where an attack on an order is based on considerations which are foreign to an administrative appeal tribunal’s expertise or raison d’être, this suggests, although it is not conclusive in itself, that the legislature did not intend to reserve the exclusive authority to rule on the validity of the order to that tribunal); and (5) the penalty on a conviction for failing to comply with the order. This reflects the general approach aimed at determining the legislature’s intention as to the appropriate forum. Application: The purpose of the Act is primarily to prevent contamination of the province's environment. This purpose is reflected both in the scope of the powers conferred on the Director (which are preventative in nature) and in the establishment of an appeal board designed to counterbalance those powers by affording affected individuals an opportunity to present their points of view and to assert their rights as quickly as possible. Legislature clearly intended to set up a complete procedure, independent of any right to appy to a superior court for review. In this case, the appellants elected to disregard not only the order, but also the appeal mechanism, preferring to wait until the charges had been laid before asserting their position. The appellants, by systematically refusing to co-operate with the Ministry of the Environment and to participate in any dialogue, have shown an inflexible attitude for which they must now bear the consequences. Such an attitude serves neither the interests of society in environmental protection nor the interests of those who are subject to administrative orders. While penal sanctions will, perhaps, always be a necessary component of any regulatory scheme, they must not become the principal or a customary instrument for relations between the government and its citizens. Misconduct of Applicant On occasion, the courts will deny a remedy because of the way in which the person seeking relief has behaved. This follows the old maxim of equity that whoever comes to equity must come with clean hands. Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011(Ont.) -Homex’s illicit dealings with the Atkinson village forced the court to deny the issuance of the order of judicial review, notwithstanding the fact that Homes had a right to be heard but did not receive that opportunity.

160

Homex sought throughout proceedings to avoid the burden associated with the subdivision of the lands. In preliminary stages of application for JR, it took inconsistent and contradictory positions. Sought to put its land beyond reach of municipal regs by checkerboarding. Dissent of Dickson J – respondent did not take point that the conduct of the appellant was such as to disentitle the appellant to relief by way of certiorari. Waiver On occasion relief may be denied to an applicant on the basis of waiver or acquiescence (knowing your rights but not enforcing them). Most commonly occurs where defect complained of is breach of rules of natural justice or bias. Halifax-Dartmouth Real Estate Board one of grounds for denial of relief was failure of applicants to object at the hearing to the lack of notice on one of the charges, this being the basis of the application for certiorari. Dangerous to participate in a hearing without at least objecting when you believe the decision-maker is transgressing the rules of justice in some way. Breach of rules of natural justice is regarded as a category of jurisdictional error and raises some theoretical problems with using waiver or acquiescence as a basis for denial of relief. As with the ordinary courts, jurisdiction cannot be conferred on statutory authorities be consent or acquiescence. How can you ever justify allowing waiver or acquiescence to defeat allegation of breach of rules of natural justice? Balance of Convenience Essentially, the refusal of relief because the applicant had other avenues of recourse available or on the basis that there was a chance that the completion of the proceedings by the tribunal would eliminate the applicant’s concerns is based on the premise that it is more convenient to use alternative means of solving the problem before, or as a substitute for, seeking judicial review. Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board [1994] – Denial of fair hearing by the board to companies that requested a “significant discovery declaration” re an offshore well. Chair of board refused to put matter before board. SCC held that board had not delegated authority to chair to make such decisions and this was a failure of board to give procedural fairness. Relief refused b.c SCC had, on cross-appeal by board, held that board would as a matter of law have had to refuse the application anyway. Cf Cardinal - it cannot be argued that relief should be denied on the basis that no hearing could affect the outcome MiningWatch Canada v. Canada (Fisheries and Oceans) 2010 SCC Favourable environmental assessment of mining operation by BC authorities, Federal Dept of Fisheries and Oceans determined that a comprehensive federal environmental assessment wasn’t necessary. Required assessment by way of screening instead. Additional public comment was not sought and the screening instead relied on information collected through the cooperative federal/provincial environmental assessment process. MiningWatch filed an application for judicial review of the decision to conduct a screening rather than a comprehensive study. SCC found the Dept had acted without statutory authority. What relief should be awarded? In exercising his discretion to grant broad relief, the trial judge did not take account of a number of relevant and significant considerations. Because of this, he granted broader relief than was appropriate (ordered the parties to substantially redo the environmental assessment). I do not think such relief is warranted.

161

The trial judge does not appear to have considered that, although it is Red Chris that will be prejudiced by incurring further delay and costs as a result of his order, Red Chris did nothing wrong. The approach to the environmental assessment was determined by the government. According to the evidence, Red Chris cooperated fully with the environmental assessment conducted by the BCEAO. Red Chris sought public comment on the project through several open house meetings. Once Red Chris submitted its application for a provincial environmental assessment certificate, the BCEAO posted the application online for public comment, and members of the public submitted several comments in response to the Red Chris application. These facts do not appear to have been considered by the trial judge in exercising his discretion to grant relief. MiningWatch stated that it “brought this application as a test case of the federal government’s obligations under section 21”. It would be incorrect to say that the parties in test cases may not still be interested in preserving their claims that gave rise to the litigation in the first place. However, this is not such a case. MiningWatch says it has no proprietary or pecuniary interest in the outcome of the proceedings. MiningWatch did not participate in the environmental assessment conducted by the BCEAO. Its first involvement was in commencing judicial review in the Federal Court. It has not brought forward any evidence of dissatisfaction with the environmental assessments conducted by the BCEAO or the RAs; nor is there evidence of dissatisfaction with the assessment process from anyone else. MiningWatch says it has brought this judicial review as a test case of the federal government’s obligations under s. 21. Indeed, they made a strategic decision not to challenge the substantive scoping decision. This is an appropriate case in which to take the position expressed by MiningWatch at face value. A declaration as to the proper interpretation of s. 21 and the obligations of the federal government achieves MiningWatch’s stated objective and grants a substantial portion of the relief it requested. In my opinion, the appropriate relief in this case would be to allow the application for judicial review and declare that the RAs erred in failing to conduct a comprehensive study. Pursuant to s. 18.1(3) of the Federal Courts Act, I would decline to grant any further relief. I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the CEAA to stand in this case. But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought. In the exercise of that discretion to deny a portion of the relief sought, balance of convenience considerations are involved. Such considerations will include any disproportionate impact on the parties or the interests of third parties. In my respectful opinion, that is the situation here. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond. On the other hand, I can see no justification in requiring Red Chris to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the RAs. Didn’t take into account wider public interests here. Instead he focused on litigation strategy of MiningWatch. MONEY REMEDIES It is possible for government to pay compensation for wrongful action/inaction by statutory authorities. There is a debate about where to draw the line. Hogg and Dicey think that the occasions for special treatment of govt in litigation should be few. Arguments in favour of Govt liability:

162

Issue of resource allocation and ability to pay. British Railways v. Herrington – Lord Reid said that Board had greater ability than private individuals to avoid dangers to trespassers. Seems to imply that Govts and their agencies, because of their deep pockets, capacity as loss spreaders/reallocators, ability to exercise control via creation and exercise of statutory powers should be more readily liable than private individuals for certain kinds of harm. Also, some activities by Govt in support of public good are dangerous – e.g. nuclear materials. Those who happen to be chance victims of mishaps from such activities should perhaps be compensated irrespective of fault. Finally Govt’s wield power by virtue of public trust so should be held to high moral and legal responsibility for lawful and prudent exercise of that authority. These arguments are controversial as a matter of principle and difficult to sustain in real world. Args based on deep pockets have no relevance when it comes to personal liability of officials (unless govt has responsibility to indemnify them). Municipalities and other govts are not that rich either – particularly after financial crisis. Also, too much liability might stop govt from undertaking programs that are in the public interest for fear of being sued. Lapierre v AG of Quebec. Parents of baby allergic to measles vaccine – wanted to hold govt liable even though it wasn’t at fault. Chouinard decided the case by reference to whether a private individual could be held liable for such losses under the Quebec Civil Code – barely an ackn that non-private law considerations might apply. Note that could be argued that this is a good approach – normal rule is that statutory authorities are less readily found to be liable than private individuals, then the matter is clinched if there is no private liability. In this case judge had a very positivist approach – this is not the law. The Public and Private Dimensions of the Uffi Problem – David Cohen The issue of judicial review of bureaucratic incompetence in the performance of mandatory statutory duties or in the exercise of statutory discretion will, it seems, be considered in the context of a negligence action. At one time it was thought that breach of a statutory duty would develop as a conceptually distinct private law action. Recent cases suggest however, that traditional negligence concepts will be applied both to activities rendered pursuant to mandatory statutory duties and to discretionary statutory directives. In the former case, the action may be framed as a "breach of statutory duty" while in the latter case it will be framed in common law negligence terms. In both cases, the court must determine whether a bureaucrat (or a group of bureaucrats) in carrying out statutory responsibilities, owed a legal duty of care to the person who alleges that he was injured as a result of the negligent performance of those statutory responsibilities. The decision to impose a private legal duty on bureaucratic activity has been said to depend on the nature of the activity under review. Where the bureaucratic decision takes place within the operational sphere of government, the court will hold that the bureaucrat owes the individual a private, legal duty of care. Conversely, policy or planning decisions of bureaucrats are beyond judicial review. This categorical distinction has been adverted to with increasing frequency since the House of Lords' decision in Anns v. London Borough of Merton. The categorisation of govt functions into policy and operational spheres, even if we could agree on the criteria to use in determining into which camp one should put a particular decision, is entirely artificial. The categorization demanded by Anns will certainly breed apparently inconsistent decisions, and produce simplistic definitions of policy decisions contrasted with operational decisions.

163

What we must keep in mind is that we do not have policy and operational decisions in government. We have decisions, some of which are appropriate for judicial review, and some of which are not. What we need are the tools to assist us in making the distinction. For the time being we are working within a conceptual framework which, at the very least, should require the courts to formulate their reasons for deciding that a particular act is appropriate for review. I have identified several interdependent variables which I consider to be relevant to this determination. No doubt there are many others. 1. "standards of conduct". To a very large degree, the reticence of the courts to review bureaucratic behaviour is due to their inability to identify an independent, external, pre-existing objective standard against which to assess the executive decision. Where the court is able to identify a superior bureaucratic standard pursuant to which the decision under review ought to have been exercised, it is able to assert that the fault of the latter consists of a departure from a standard. 2. "programmed decisions". This second variable acknowledges that the bureaucratic process may be described as a series of discretionary decisions with varying degrees of uniqueness. As decisions become routine, and must be made more frequently, it is less likely that discretion can be exercised, and the "correctness" of a particular programmed decision can be evaluated through a comparison with other decisions of the same class. These programmed decisions may provide an objective basis upon which to determine the "reasonableness" of the state conduct. 3. degree of discretion exercised by the bureaucrat whose conduct is under inquiry. Even where a superior standard of conduct can be identified, it may be that the inferior bureaucratic conduct is characterized by substantial discretionary elements which point away from judicial review. 4. the nature of the private interest affected by the bureaucratic activity. Judicial values demand a greater degree of bureaucratic circumspection where land ownership or occupation, or individual freedom, are at stake. 5. unintentional nature of the government activity. Where a bureaucrat makes a deliberate choice to injure a particular class of individuals, or to expose that class to the risk of injury, the question as to whether the losers should be compensated has not been perceived as a question for the judiciary. In such cases, the decision will most likely have been authorized, and where the injury is deliberate, the combination of lawfulness and intentional infliction of injury suggests that political review will be the appropriate mechanism for redress. It is difficult to picture deliberate, lawful activity as wrongful in the context of the corrective justice model of law making. 6. the nature of the government activity which is alleged to have been negligent. It seems that the courts will be much more willing to exercise a supervisory jurisdiction where the state is engaged in an activity which can be identified as "commercial” in nature, as opposed to activities which are characterized as "governmental". The distinction, which admittedly is not an easy one, is based on a number of factors. First, the court, in assessing a commercial activity carried out by government will be able to turn to the behaviour and practice of private enterprise as an independent, objective standard against which to gauge the reasonableness of the government behaviour. Secondly, where the state is engaged in commercial activities in competition with private enterprise, the court may be concerned that the state not be given competitive advantages, and thus will subject the public enterprise to the same constraints as its private counterparts. Where, on the other hand, the state is engaged in providing a service which would not, for a variety of reasons, be produced through the market, the court may consider it inappropriate to impose market constraints. In the latter case, the traditional test of negligence which looks to the cost of injury prevention in light of the probability, nature and extent of the injury, gives rise to serious inconsistencies. The public, non-commercial enterprise does not necessarily operate subject to the pricing and budgetary constraints imposed by the costs of labour, capital and other inputs, and by market competition. Where the activity is commercial in nature, however, it may be subject to

164

constraints analogous to those operating in private enterprises. In addition, the state, where it is engaged in a commercial activity, may be able to pass on the costs of the negligence liability to the users of the government service or product. This loss allocation mechanism may not be as easy to implement in the case of non-commercial, governmental activities, where access to the service cannot be controlled to the same degree. In the case of commercial activities the loss will be borne, to some degree, by the users of the service or good. The beneficiaries of the government programme and policy decisions will, in the commercial context, be compensating the losers. This transfer from winners to losers may take place in "governmental" activities as well, but the redistribution is more likely to take place through pricing decisions in the provision of commercial services. In governmental activities the bureaucratic and political embarrassment accompanied by public, forced compensation may point away from a decision to allocate the costs of regulation to the beneficiaries of government decisions. Finally, the willingness of the court to review commercial governmental activities may be justified on the basis of protecting expectations of individuals who may find it difficult to distinguish between private and public enterprises when the latter are carrying on commercial activities. 7. the status or identity of the government actor. At the ultimate level of governmental decisionmaking, the court will be asked to assess the negligence of legislative acts - a responsibility which they deny absolutely. In most cases, however, the determination of bureaucratic status will require an assessment of the bureaucratic infra-structure in which the decision was made, in an effort to determine the responsibility and authority of this bureaucrat and his relationship with other political actors. The requirement that the court investigate the actual bureaucratic decision-making process and the actual nature and extent of scrutiny of the decision by specific bureaucratic and political actors is important for a number of reasons. As the behaviour of more senior bureaucrats is scrutinized, it becomes increasingly likely that political and broad discretionary decision-making will be involved. Further, where the court attempts to review the activities of more senior bureaucrats it may risk political retaliation, and thus it is not at all surprising to discover that the majority of cases involving judicial review of governmental activity have involved municipal governments - the one tier of government which cannot retaliate directly by withdrawing its operations from judicial review. Finally, by demanding that the government identify the bureaucrat or group of bureaucrats who participated in the decision under review, the court will encourage political accountability where appropriate. The government can identify a lower level bureaucrat where it wants to minimize direct political responsibility, but when it does so, it risks legal liability. At the same time, where the state points to bureaucratic seniority to avoid legal responsibility, it increases the likelihood of political responsibility. 7. The availability of alternative sources of accountability - whether through political action or through the doctrines of ministerial and bureaucratic responsibility - has been noted by the courts as a relevant factor in deciding whether to create a private right of action. 8. requirement of an individualized wrong. The nature of corrective justice is that it is designed to redress a perceived wrong which one party has committed against another. This suggests that the alleged wrong must be individualized in nature -there must be an "individualization of responsibility" for the alleged negligence founded on a direct relation between the state employee and an individual member of the public. In fact, in almost all cases in which the state has been found liable for the acts of its employees the alleged negligent behaviour occurred in this "one-on-one" bilateral relationship. This requirement of individualization of harm can be justified on a number of grounds. First, the courts ameliorate the interjurisdictional tension between the judiciary and executive when they restrict themselves to compensating individual wrongs. Second, the requirement of an individual nexus reduces the potential impact of the decision on the exercise of broadly described bureaucratic discretion. Third, by requiring an individualistic aspect, the courts avoid the substantial administrative costs of determining the identity of numerous claimants, and the nature and extent of their alleged losses. As well, the existing procedural rules and administrative structure of the court system are singularly ill-suited to the resolution of

165

group wrongs Fourth, the courts recognize the potential instrumental effect of damage awards which, where they involve increasing numbers of plaintiffs, may have a significant prospective, instrumental influence on bureaucratic behaviour. In addition, the courts are aware that as the number of losers increases, the prospect of political or parliamentary accountability increases. Finally, where a large number of potential losers exists, the ability of the court to entertain a range of interests in its decision-making process may be limited. The "losers" are not a homogeneous and the technical and quite artificial rules of evidence and procedure may distort the adequate representation of these disparate interests. 10. The decision of the state to engage in certain activities will often involve an allocation of public resources, and the decision will be made in the context of competing claims for government largesse and programmes, both from within and from without the bureaucracy. If the alleged negligent decision involved the allocation of resources among competing claims for social resources, or if the impact of the decision will influence future resource allocation decisions, the decision is less likely to be reviewed. Once the resource allocation decision has taken place, then the inferior decision as to how the activity should be carried out may be reviewed. I have no difficulty accepting the general proposition that resource allocation is a function which almost by definition will require that particular interests be sacrificed. It is also difficult to see how the reasonableness of a particular resource allocation decision could be objectively assessed by a court. At the same time, the court should appreciate that resource allocation is a question of degree; and that the state can obtain insurance to spread the costs of its activities. The courts have also turned to the misfeasance/nonfeasance distinction as a relevant variable in determining whether to impose a private duty of care on bureaucratic actors, although it is unclear whether the distinction is still doctrinally correct after the decision of the House of Lords in Anns v. Merton London Borough Council. At best it may have been a categorical relative of the policy/operational distinction. The distinction between nonfeasance and misfeasance is a difficult one to draw at best, and adds little to the analysis of the propriety of judicial review of state behaviour . None the less, judicial deference to bureaucratic "nonfeasance" may be understood as a reflection of several concerns. First, where a bureaucrat has acted, it may be possible to use his own intended behaviour as an objective standard against which to assess the reasonableness of his actual behaviour. Second, where an alleged loss is incurred as a result of governmental inactivity, the injury may be a foregone opportunity which may be viewed as a less substantial injury than an actual incurred loss. Finally, a concern with "pure" inaction will often result in an inquiry as to whether the defendant's conduct created or increased the risk of This risk creation concept brings us to the final variable which I have identified in the judicial decision to impose a legal duty of care on a state employee -the concept of reliance. The courts appear to react to two categories of reliance. The first is direct reliance, common in the "individualized wrong" discussed earlier, where a member of the public relies upon acts or representations of a particular bureaucrat. The second is what may be called institutional reliance - the creation of an environment by the state in which members of the public assume that the state will be taking adequate precautions to ensure that their interests will be safeguarded. Thus in cases of pure omission the court may be willing to impose liability where the state has established an institutional framework upon which the public relies and where an individual refrains from adopting alternate measures to reduce the risk of injury, or from insuring against the risk The reliance issue is, I think, a central concept in the decision to impose a legal duty on the bureaucrat. It reflects the overriding corrective justice philosophy which operates in this area, in that it demands a bilateral relationship. The bureaucrat or bureaucracy assumes responsibility for a certain activity which creates a reciprocal sense of trust and dependence.More generally, we may be able to see a more general interest in compensating disappointed individuals whose expectations were created by a governmental, institutional arrangement, and who relied on that arrangement to protect their interests.

166

MONEYS MISTAKENLY PAID TO AND BENEFITS MISTAKENLY CONFERRED ON STATUTORY AUTHORITIES Traditionally, SCC accepted that subject to very limited exceptions (compulsion) moneys paid under mistake of law (rather than mistake of fact) were not recoverable, irrespective of whether context was public or private. Confusion as to when there was a claim for monies paid under an unconstitutional statute, an ultra vires bylaw/reg, an unlawful agency decision or order. SCC has now repudiated this position. Kingstreet Investments Ltd. v New Brunswick (Department of Finance.) [2007] Case involved a claim for repayment of taxes that were held to be unconstitutional. SCC: When the government collects and retains taxes pursuant to ultra vires legislation, it undermines the rule of law. To permit the Crown to retain an ultra vires tax would thus condone a breach of this most fundamental constitutional principle. Noted that the general availability of restitution for ultra vires taxes not clearly established. In Air Canada v. British Columbia, La Forest J. was of the opinion that policy considerations operated to take claims for taxes paid pursuant to unlawful legislation outside of the restitutionary context. If the constitutional rule requiring the Crown to only spend public funds under legislative authority has sufficient weight to compel recovery of an unauthorized expenditure by the Crown, notwithstanding the principles of unjust enrichment, then it is difficult to understand a common law bar to the recovery of unconstitutionally imposed taxes. In Air Canada, La Forest J. said another policy reason for the immunity rule was a concern for fiscal inefficiency and fiscal chaos. Concerns regarding potential fiscal chaos are best left to Parliament and the legislatures to address. Also, agrees with Wilson J. in Air Canada: Why should the individual taxpayer, as opposed to taxpayers as a whole, bear the burden of government’s mistake? For these reasons, I would not adopt the general immunity rule proposed by La Forest J. Failure to adopt the immunity rule articulated by La Forest J. does not suggest that within the law of unjust enrichment policy considerations might not apply to limit the liability of public bodies in certain contexts. But La Forest J.’s immunity rule was formulated outside of the law of unjust enrichment. Basis for the Constitutional Remedy: Why an Unjust Enrichment Framework Is Inappropriate Restitution is a tool of corrective justice. When a transfer of value between two parties is normatively defective, restitution functions to correct that transfer by restoring parties to their pre-transfer positions. There are at least two distinct categories of restitution: (1) restitution for wrongdoing; and (2) restitution for unjust enrichment. The first category is not readily applicable here since, in the case of ultra vires taxes enacted in good faith. The choice, then, is between restitution for unjust enrichment or (a new category) restitution based on constitutional grounds. The ordinary principles of unjust enrichment should not be applied to claims for the recovery of monies paid pursuant to a statute held to be unconstitutional. Restitution for ultra vires taxes does not fit squarely within either of the established categories of restitution. The better view is that it comprises a third category distinct from unjust enrichment.

167

Actions for recovery of taxes collected without legal authority and actions of unjust enrichment both address concerns of restitutionary justice, but these remedies developed in our legal system along separate paths for distinct purposes. The action for recovery of taxes is firmly grounded, as a public law remedy in a constitutional principle stemming from democracy’s earliest attempts to circumscribe government’s power within the rule of law. Unjust enrichment, on the other hand, originally evolved from the common law action of indebitatus assumpsit as a means of granting plaintiffs relief for quasi-contractual damages. Passing-On Defence Robertson J.A. found that the only possible defence the Province could raise in the present case was that the appellants had passed on the cost of the charge. The basic premise of the passing-on defence is that if the taxpayer has passed on the burden of the tax payments to others, usually via price increases charged to its customers, the taxpayer has not suffered a deprivation, the taxing authority’s enrichment was not at its expense, and it would receive a windfall if it were awarded recovery. La Forest J. would have applied the defence, if necessary, so as to deny recovery in Air Canada. He found that the evidence supports that the airlines had passed on to their customers the burden of the tax imposed upon them. The law of restitution is not intended to provide windfalls to plaintiffs who have suffered no loss. Its function is to ensure that where a plaintiff has been deprived of wealth that is either in his possession or would have accrued for his benefit, it is restored to him. The measure of restitutionary recovery is the gain the province made at the airlines’ expense. If the airlines have not shown that they bore the burden of the tax, then they have not made out their claim. What the province received is relevant only in so far as it was received at the airlines’ expense. [pp. 1202-3] I would reject the passing-on defence in its entirety. There are three major criticisms of the passingon defence: first, that it is inconsistent with the basic premise of restitution law - La Forest J. suggests in Air Canada, “[t]he law of restitution is not intended to provide windfalls to plaintiffs who have suffered no loss”. Restitutionary principles provide for restoration of “what has been taken or received from the plaintiff without justification” (Royal Insurance, at p. 71). Restitution law is not concerned by the possibility of the plaintiff obtaining a windfall precisely because it is not founded on the concept of compensation for loss. second, that it is economically misconceived; LeBel J. noted that every commercial entity could be accused of passing on all or part of any damages suffered by it, by its own rates or charges to its customer. This is because it is difficult to determine what effect a change in a company’s prices will have on its total sales. third, that the task of determining the ultimate location of the burden of a tax is exceedingly difficult and constitutes an inappropriate basis for denying relief. Application of the Doctrine of Protest and Compulsion As he rejected the passing-on defence as generally inapplicable in the context of ultra vires taxes, it is not necessary to deal with the doctrine of protest and compulsion but he commented that, as a general rule, this doctrine should be discarded insofar as it applies to payments made to public authorities, whether pursuant to unconstitutional legislation or as the result of a misapplication of otherwise valid legislation. Note: other relevant cases:

168

Peel (Regional Municipality) v. Canada [1992] – Cited in Kingstreet- Court held on restitutionary principles that municipality had no claim against federal and provincial govts for cost of housing juvenile offenders imposed under unconstitutional statute. No incontrovertible benefit for federal and provincial govts proved by municipality. Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co-operative Ltd. Court rejected claim by Commission for recovery of undercharge for 7 years worth of electricity (clerical error). Estopped on basis of dairy’s reliance and hardship that would result for dairy. BUT is this really any different from Kingstreet? The court held in this case that over the years the financial consequences of the mistake were spread among Commission’s other customers. MONEY REMEDIES THROUGH JUDICIAL REVIEW If a public official is in breach of a legal duty to remit a specific sum from an already allocated budget, this may be enforced by way of relief in the nature of mandamus. But it doesn’t mean courts can force govts to appropriate funds for particular projects. Hamilton Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) 1991 Court held it had no authority to require the Ontario Govt to appropriate money for a highway project that it was alleged had been halted unlawfully. Too great an interference on Crown/govt prerogative. Different to a situation where court requires govt to carry out mandates according to law and which require the expenditure of money. In this case, it represents an exercise of a govt’s right to allocate funds as it sees proper. This basic position is not to be affected by arguments of estoppel, reliance or legitimate expectation. But prior to Dunsmuir, loss of statutory office or position was the area that gave rise to the possibility of financial compensation via judicial review. Pre-Dunsmuir, if judgement quashes decision to dismiss, then what are financial consequences of the judgement? In Nicholson, the officer was entitled to be paid during the whole intervening period as the decision was void. However, there were deductions from money earnt from his new job. Irrelevant after Dunsmuir – held that private contracts govern… TORT LIABILITY FOR UNLAWFUL ADMINISTRATIVE ACTION OR INACTION In contract historically Crown had a special position (to be able to breach contracts and not be held liabile for the financial consequences). It causes political controversy though e.g. Pearson Airport privatisation process. New govt cancelled the privatisation contract and passed legislation to nullify deal and deny access to JR. Consortium actually got declaration that govt acted in breach of contract. In tort, there is judicial acceptance of the need to apply different or modified standards to the liability of govts. For there to be tort liability on the part of a statutory authority, the plaintiffs must be able to fit their case within a known head of tort liability. In Cooper v. Board of Works for Wandsworth District the plaintiff recovered tort damages as the unlawful administrative action gave rise to tort of trespass. Administrative action or inaction can also lead to negligent misrepresentation. More significant is the following problem: The extent to which ultra vires action or abuse of statutory authority per se constitutes an independent tort.

169

In fixing liability in general tort law, courts seldom refer explicitly to the issues of resource allocation and ability of litigants to act as loss bearers. But, as noted earlier British Railways v. Herrington – Lord Reid said that Board had greater ability than private individuals to avoid dangers to trespassers. Should be expect higher standards of risk avoidance from public bodies as opposed to private individuals or corporations (however large)? Relevance of fact that public bodies operate or regulate enterprises with the potential for horrendous or unmanageable disaster such as nuclear power plants, defence facilities? Is public purse bottomless? Abuse of Power by Statutory Authorities Ultra vires exercise of power generally does not in itself attract civil liability (see rejection of tort of breach of statutory duty in Canada v Saskatchewan Wheat Pool) BUT, there are occasions where the circs in which ultra vires conduct occurs will give rise to a claim. Tort arising out of misconduct by public officials – misfeasance in public office or bad faith in the exercise of public power. McGillivray v. Kimber, [1915] S.C.R. 146 Appellant’s pilot licence was suspended by resolution of the pilotage authority for “neglect and incapacity”. Statutory requirements for suspension not followed; no formal complaint, notice or investigation. Sought damages for wrongful revocation of licence. Sir Charles Fitzpatrick CJ (Dissenting) - In discharging the pilot the respondents were acting in a quasi-judicial capacity, and it is settled law that those acting in a judicial or quasi-judicial capacity incur no liability for acts performed within their jurisdiction unless actuated by malice. The proceedings by the Pilotage Authority were clearly irregular and the mandamus would have directed them to hear and determine the matter in a proper manner. Freedom from liability for the consequences of such acts is, however, precisely the protection which the law gives to those discharging such duties. Were it otherwise no one could venture to undertake the discharge of the duties of many public positions. Duff J - As to the law, assuming there had been an intention to exercise authority under by-law 9 since there was no hearing, no evidence on oath, no judicial determination, it follows that no “forfeiture,” to use the language of the by-law, took place and consequently there is nothing amounting to a justification of the so called dismissal; which is, therefore, an actionable wrong under the principle of the Mogul Steamship Company’s Case. Moreover, the rule is sufficiently established that persons in the position of the respondents exercising quasi-judicial powers are only protected from civil liability if they observe the statutory rules conditioning their powers as well as the rules of natural justice. Generally, in the absence of bad faith such officers are not responsible for harm caused by acts otherwise wrongful when such acts are judicial acts done in the course of some judicial proceeding in which the officer has jurisdiction as regards the persons affected, and the matter before him is some matter with which he has authority judicially to deal. No authority has been cited, however, for the extension of this principle to protect administrative officers such as the respondents from the consequences of injurious acts for which authority is wanting owing to the omission of the essential statutory prerequisites. On damages, Duff said: The appellant’s licence held by him in June, 1912, did not expire until August, 1913, and the position taken by the respondents in their statement of defence and sustained by the full court that the appellant ceased in law to be a licensed pilot after June, 1912, necessarily fails.

170

Assuming that the proper course is to treat the appellant’s licence as a licence limited as to duration, and that the discretion of the Pilotage Authority to renew is an absolute and not a judicial discretion; it would still be wrong to deal with the question of damages on the footing of the consequences of the proceedings in 1912 having ceased to operate with the expiry of the licence in August, 1913. In August, October and November of 1913, the majority of the Board insisted at that time on treating the appellant as compulsorily retired from the service and disqualified from holding a licence. This loss of status and the prejudice thereby occasioned him in his character of applicant for a licence in August, 1913, is one of the consequences natural and intended of the respondents’ conduct in respect of which the appellant is entitled to reparation. On this footing the appellant would not be entitled to recover compensation nominatim for the loss of prospective earnings in the season of 1913-14. But without deciding whether or not the appellant’s position was that of a licensee with a licence limited as to time under section 454, I still think the damages found by the learned trial judge are not excessive. Apart altogether from the right to reparation just mentioned this is emphatically not a case for measuring damages with nicety. There was some suggestion, (not seriously pressed), that substantial damages ought not to be awarded on the ground that the evidence the appellant was a drunk if there had been an investigation conducted as the law required. The learned judge held that the appellant successfully repelled the attack upon his character. Roncarelli v. Duplessis, [1959] The Premier D ordered liquor licensing commission to revoke R’s licence because he posted bail bonds for Jehovah’s Witnesses. Per Rand J: To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province. Whatever may be the immunity of the Commission or its member from an action for damages, there is none in the respondent. Here the act done was in relation to a public administration affecting the rights of a citizen to enjoy a public privilege, and a duty implied by the statute toward the victim was violated. The existing permit was an interest for which the appellant was entitled to protection against any unauthorized interference, and the illegal destruction of which gave rise to a remedy for the damages suffered. As against the respondent, the appellant was entitled to treat the breach of duty as effecting a revocation and to elect for damages. Per Martland: On the issue of liability, I have, for the foregoing reasons, reached the conclusion that the respondent, by acts not justifiable in law, wrongfully caused the cancellation of the appellant's permit and thus cause damage to the appellant. The respondent intentionally inflicted damage upon the appellant and, therefore, in the absence of lawful justification, he is liable to the appellant for the commission of a fault under art. 1053 of the Civil Code.

171

I now turn to the matter of damages. The trial judge awarded damages to the appellant in the sum of $8,123.53, made up of $1,123.53 for loss of value of liquor seized by the Commission, $6,000 for loss of profits from the restaurant from December 4, 1946, the date of the cancellation of the permit, to May 1, 1947, the date when the permit would normally have expired, and $1,000 for damages to his personal reputation. Appellant also asks for awards in respect of damage to the good will and reputation of his business, loss of property rights in his permit and loss of future profits for a period of at least one year from May 1, 1947. Damages in respect of these items were not allowed by the learned trial judge because of the fact that the appellant's permit was "only a temporary asset." The appellant contends that, although his permit was not permanent, yet, in the light of the long history of his restaurant and the continuous renewals of the permit previously, he had a reasonable expectation of renewal in the future, had not the cancellation been effected in December 1946. He contends that the value of the good will of his business was substantially damaged by that cancellation. His position on this point is supported by the reasoning of Duff J. (as he then was) in McGillivray v. Kimber: 1 The statement of defence seems to proceed upon the theory that for the purpose of measuring legal responsibility the consequences of this dismissal came to an end with the expiry of the term and that I shall discuss; but for the present it is sufficient to repeat that the dismissal was an act which being not only calculated, but intended to prevent the appellant continuing the exercise of his calling had in fact this intended effect; and the respondents are consequently answerable in damages unless there was in law justification or excuse for what they did. Per Bowen L.J., Mogul S.S. Co. v. McGregor, 23 Q.B.D. 598. The statement by Bowen L.J is as follows: 2 Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's properly or trade, is actionable if done without just cause or excuse. I consider that $25,000 should be allowed as damages for the diminution of the value of the good will and for the loss of future profits. ***** Immuntiy issues – In Nelles v Ontario 1989 – issue was whether the province, AG and Crown attorneys had immunity from liability for malicious prosecution and claims based on Charter violations. SCC held province could not be sued by reason of an immunity provided by statute, the action could proceed against AG and Crown attorneys: A review of the authorities on the issue of prosecutorial immunity reveals that the matter ultimately boils down to a question of policy. For the reasons I have stated above I am of the view that absolute immunity for the Attorney General and his agents, the Crown Attorneys, is not justified in the interests of public policy. We must be mindful that an absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Charter. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. We are not dealing with errors in judgment or discretion or even professional negligence. By contrast the tort of malicious prosecution requires proof of an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys.

172

There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties. The Attorney General and Crown Attorneys do not enjoy an absolute immunity in respect of suits for malicious prosecution. Note – there can be limitation of liability of public officers and members of tribunals by statute. Immunity if functions performed in good faith or in good faith without malice. Note: there is a paucity of cases in which plaintiff has successfully sued for the tort of abuse of power or misfeasance in public office. Evidential burdens are considerable and maybe the Canadian public officials are more honest now. Should bases for this kind of liability be expanded? Alberta (Minister of Public Works, Supply and Services) v. Nilsson (1999) Court held that the minister was liable for abuse of office in a case involving a land freeze and subsequent acquisition. Tort should not be restricted to targeted malice but extended to: 1. an intentional illegal act which is either: (a) an intentional use of a statutory authority for an improper purpose; (b) actual knowledge that the act or omission is beyond statutory authority; or (c) reckless indifference, or willful blindness to the lack of statutory authority for the act 2. intent to harm an individual or class of individuals which is satisfied by either: (a) an actual intention to harm; (b) actual knowledge that harm will result; or (c) reckless indifference or willful blindness to the harm that can be forseen to result Endorsed in: Odhavji Estate v. Woodhouse, [2003] Facts: Odhavji was fatally shot by police. Police did not cooperate with the investigation. Police were statutorily obligated to cooperate with the Special Investigations Unit. Officers are cleared of any wrongdoing. Odhavji’s family sues for misfeasance (for not cooperating) and negligence. Police argued that there is no reasonable cause of action. SCC found that there is a tort of abuse of power or misfeasance in public office. Not cooperating with a statutory requirement constitutes this type of misfeasance. Plaintiff must show that the illegal conduct was the cause of the injuries and that those injuries are compensable by monetary compensation Per Iacobucci: The Actions for Misfeasance in a Public Office The essence of the Court of Appeal’s decision was that the “radical defect” from which the actions for misfeasance in a public office suffer is their failure to plead the constituent elements of the tort. The Court of Appeal held that the defining element of the tort is the unlawful exercise of the statutory or prerogative powers that adhere to the defendant’s office. Because the alleged misconduct involved the breach of a statutory duty rather than the improper or unlawful exercise of a statutory or prerogative power, on this view, that the actions for misfeasance in a public office cannot succeed.

173

The class of conduct at which the tort is targeted is not as narrow as the unlawful exercise of a particular statutory or prerogative power, but more broadly based on unlawful conduct in the exercise of public functions generally. (1) The Defining Elements of the Tort In Roncarelli v. Duplessis, [1959] S.C.R. 121, this Court found the defendant Premier of Quebec liable for directing the manager of the Quebec Liquor Commission to revoke the plaintiff’s liquor licence. Although Roncarelli was decided at least in part on the basis of the Quebec civil law of delictual responsibility, it is widely regarded as having established that misfeasance in a public office is a recognized tort in Canada. Mr. Duplessis’ conduct involved “the exercise of powers which, in law, he did not possess at all”. From this, it is clear that the tort is not restricted to the abuse of a statutory or prerogative power actually held. If that were the case, there would have been no grounds on which to find Mr. Duplessis liable. The tort is not limited to an abuse of office by exercise of a statutory power. Henly v. Mayor of Lyme [(1828), 5 Bing. 91, 130 E.R. 995] was not a case arising from an impugned exercise of a statutory power. It arose from an alleged failure to maintain a sea wall or bank, the maintenance of which was a condition of the grant to the corporation of Lyme of the sea wall or bank and the appurtenant right to tolls. Any act or omission done or made by a public official in the purported performance of the functions of the office can found an action for misfeasance in public office. What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. Elements that are common to each form of the tort.: First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. Insofar as the nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful.

174

The tort is not directed at a public officer who is unable to discharge his or her obligations because of factors beyond his or her control but, rather, at a public officer who could have discharged his or her public obligations, yet wilfully chose to do otherwise. Another factor that may remove an official’s conduct from the scope of the tort of misfeasance in a public office is a conflict with the officer’s statutory obligations and his or her constitutionally protected rights, such as the right against self-incrimination. Should such circumstances arise, a public officer’s decision not to comply with his or her statutory obligation may not amount to misfeasance in a public office. The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff further restricts the ambit of the tort. Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question. This requirement establishes the required nexus between the parties. Unlawful conduct in the exercise of public functions is a public wrong, but absent some awareness of harm there is no basis on which to conclude that the defendant has breached an obligation that she or he owes to the plaintiff, as an individual. And absent the breach of an obligation that the defendant owes to the plaintiff, there can be no liability in tort. I wish to stress that this conclusion is not inconsistent with R. v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, in which the Court established that the nominate tort of statutory breach does not exist. Saskatchewan Wheat Pool states only that it is insufficient that the defendant has breached the statute. It does not, however, establish that the breach of a statute cannot give rise to liability if the constituent elements of tortious responsibility have been satisfied. Put a different way, the mere fact that the alleged misconduct also constitutes a breach of statute is insufficient to exempt the officer from civil liability. Just as a public officer who breaches a statute might be liable for negligence, so too might a public officer who breaches a statute be liable for misfeasance in a public office. Saskatchewan Wheat Pool would only be relevant to this motion if the appellants had pleaded no more than a failure to discharge a statutory obligation. This, however, is not the case. The principle established in Saskatchewan Wheat Pool has no bearing on the outcome of the motion on this appeal. To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law. (2) Application to the Case at Hand In respect of the first constituent element, namely, unlawful conduct in the exercise of public functions, the statement of claim alleges that the defendant officers did not cooperate with the SIU investigation, but, rather, took positive steps to frustrate the investigation. As described above, police officers are under a statutory obligation to cooperate fully with members of the SIU in the conduct of investigations. On the face of it, the decision not to cooperate with an investigation constitutes an unlawful breach of statutory duty. Insofar as the second requirement is concerned, the statement of claim alleges that the acts and omissions of the defendant officers “represented intentional breaches of their legal duties as police officers”. This plainly satisfies the requirement that the officers were aware that the alleged failure to

175

cooperate with the investigation was unlawful. The allegation is not simply that the officers failed to comply with s. 113(9) of the Police Services Act, but that the failure to comply was intentional and deliberate. Although the allegation that the Chief deliberately failed to segregate the officers satisfies the requirement that the Chief intentionally breached his legal obligation to ensure compliance with the Police Services Act, the same cannot be said of his alleged failure to ensure that the defendant officers produced timely and complete notes, attended for interviews in a timely manner, and provided accurate and complete accounts of the incident. As above, inadvertence or negligence will not suffice; a mere failure to discharge the obligations of the office cannot constitute misfeasance in a public office. The statement of claim also alleges that the defendant officers and the Chief “knew or ought to have known” that the alleged misconduct would cause the plaintiffs to suffer physically, psychologically and emotionally. Although the allegation that the defendants knew that a failure to cooperate with the investigation would injure the plaintiffs satisfies the requirement that the alleged misconduct was likely to injure the plaintiffs, misfeasance in a public office is an intentional tort that requires subjective awareness that harm to the plaintiff is a likely consequence of the alleged misconduct. At the very least, according to a number of cases, the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct. The phrase “or ought to have known” must be struck from the statement of claim. The final factor to be considered is whether the damages that the plaintiffs claim to have suffered as a consequence of the aforementioned misconduct are compensable. The plaintiffs allege that they have suffered physically, psychologically and emotionally, in the form of mental distress, anger, depression and anxiety as a direct result of the defendant officers’ failure to cooperate with the SIU. Although courts have been cautious in protecting an individual’s right to psychiatric well-being, compensation for damages of this kind is not foreign to tort law. As the law currently stands, that the appellant has suffered grief or emotional distress is insufficient. Nevertheless, it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a “visible and provable illness” or “recognizable physical or psychopathological harm”: Consequently, even if the plaintiffs could prove that they had suffered psychiatric damage, in the form of anxiety or depression, they still would have to prove both that it was caused by the alleged misconduct and that it was of sufficient magnitude to warrant compensation. But the causation and magnitude of psychiatric damage are matters to be determined at trial. At the pleadings stage, it is sufficient that the statement of claim alleges that the plaintiffs have suffered mental distress, anger, depression and anxiety as a consequence of the alleged misconduct. In the final analysis, I would allow the appeal in respect of the actions for misfeasance in a public office. If the facts are taken as pleaded, it is not plain and obvious that the actions for misfeasance in a public office against the defendant officers and the Chief must fail. The plaintiffs may well face an uphill battle, but they should not be deprived of the opportunity to prove each of the constituent elements of the tort. Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62; When a party subject to federal regulatory oversight believes it has been wronged by a governmental authority’s action—for example failure to grant a licence or certification—what are its remedies? Until December 23, 2010, it was widely believed that the aggrieved party was obliged to apply to the Federal Court of Canada for an order quashing the governmental decision. Such an application would be by way of judicial review and no damages could be claimed or awarded. In a case which arose in the telecommunications sector, the Supreme Court of Canada has laid to rest that restrictive view and affirmed that the claimant should have a right to try its luck in a damages action before a provincial superior court.

176

The case arose out of an unsuccessful response to a call by Industry Canada for applications for personal communication services licences. TeleZone responded, hoping to be one of the recipients of a licence to establish a mobile phone network. In pursuing the application it expended, according to allegations in the Claim, some $20 million. When it was not awarded a licence it sued the federal government, alleging negligence, breach of contract and unjust enrichment, and seeking damages of $250 million. In defence, the government maintained that the civil action was a collateral attack on the decision of the Minister of Industry. The only proper venue and form for such an attack would be a request for judicial review in the Federal Court, the government’s counsel argued. Only in this way could TeleZone seek to expunge the decision and any other form of complaint should be disallowed as a collateral attack on the decision itself. There was some authority for this proposition, generally referred to as “the Grenier principle” from an earlier case, Canada v. Grenier which arose from a quite different context. In the present case the Supreme Court of Canada was called upon to decide whether the Grenier principle should be extended or curtailed. The result is clearly curtailment. The reception this principle would meet in the Supreme Court was clear from early words in the unanimous decision. For example: “Grenier would deny the provincial superior courts the jurisdiction to deal with that central issue in a damages claim pending before them”. The result, exposing the federal government to damages claims in the provincial courts, is supported by at least two strands of argument. In the first place, to argue that Grenier requires such a result is to extend the case beyond what it requires. Grenier does stand for the proposition that one who seeks to quash a governmental decision must proceed by way of judicial review in the Federal Court. However, it says nothing about a party who is content that the decision should stand while claiming damages from losses resulting from the decision. In the second place, if Grenier, buttressed by the judicially created concept of an impermissible collateral attack, did suggest that a damages action in the provincial courts should fail on jurisdictional grounds, then this suggestion would be overridden by the entire statutory context which strongly supports the existence of concurrent jurisdiction to hear damages actions against the federal government. At one time the Federal Court did have exclusive jurisdiction in this regard, but that was changed in 1992 when this jurisdiction also granted to the provincial superior courts on a concurrent basis. The court also noted that any derogation from the jurisdiction of the Superior Courts requires clear and explicit language. The court held that the Superior Court's jurisdiction has not been ousted by statute, and found that the Superior Court's jurisdiction was in fact affirmed by s. 17 of the Federal Courts Act, which provides for the concurrent jurisdiction of the Superior Courts and the Federal Court for claims against the Crown. The court emphasized that the statutory scheme as a whole, and particularly the brief 30-day limitation period for seeking judicial review in the Federal Court, underscored that judicial review was not meant to be a gate keeping mechanism for civil claims against the Crown. As a result of the TeleZone case any business subject to federal regulation, should consider its options if faced by a government decision it considers to be objectionable on legal grounds. If, after careful analysis, it appears that overturning the decision itself is essential to its best interest, it must indeed proceed in the Federal Court with an application for judicial review. However, if it concludes that a damages award to compensate for loss of expenses and legitimate expectations would serve, it may proceed in a provincial superior court without the need of first seeking to overturn the decision. The decision of the Supreme Court of Canada goes to the question of jurisdiction only. The provincial courts clearly have jurisdiction to entertain actions for damages arising out of governmental decisions,

177

but the federal government has a number of potential defences; most prominently, the defence of statutory authority. Furthermore, if the damages claim is seen to be a thinly disguised attack on the correctness of the decision, it may be stayed as a discretionary matter. All these considerations need to be weighed before launching a civil suit, but the option is now clearly open. The court also noted that if there are genuine concerns regarding collateral attack, the doctrine can be raised as a defence (as could the defence of statutory authority), but it held the existence of such concerns do not deprive the Superior Court of jurisdiction. The court, furthermore, suggested a claim like that of Telezone's would be unlikely to be found to be a collateral attack given the nature of the claim and given the statutory context. The court also rejected the argument that concerns about "artful pleading" warranted limiting the jurisdiction of the Superior Court over such claims. Vancouver (City) v. Ward, 2010 SCC 27. Facts In 2002 the claimant, Mr Ward, attended a ceremony at which the Canadian Prime Minister was present to mark the opening of a gate to the entrance of Vancouver’s Chinatown. The police received a tip that an unknown individual would attempt to assault the Prime Minister by throwing a pie at him. Police were provided a description of the general appearance and attire of a man aged in his 30s. The police identified Mr Ward as the would-be culprit, even though he did not match the suspect’s profile. He was chased and arrested for breach of the peace. Mr Ward strongly protested his innocence but was nonetheless taken to the police station, where he was strip searched and detained for four and a half hours in a small cell. The police also impounded his car which they intended to search once a warrant had been obtained. During the course of Mr Ward’s detention, however, police realised they did not have evidence to support a charge of attempted assault, or to obtain a search warrant. Mr Ward was not the would-be culprit. Mr Ward was subsequently released without charge. The claimant brought an action in tort and for the breach of his human rights. At first instance, Tyson J of the Supreme Court of British Columbia found that the State had acted in violation of Mr Ward’s Charter rights by conducting the strip search and seizing the vehicle (2007 BCSC 3). This was contrary to the right to be free from unreasonable search and seizure under s 8 of the Canadian Charter. His imprisonment also amounted to a breach of Mr Ward’s right under s 9 not to be arbitrarily detained or imprisoned and resulted in the State’s commission of the tort of wrongful imprisonment. Justice Tyson awarded damages in the amount of $5000 for the strip search and $100 for the seizure of the vehicle pursuant to s 24(1) of the Canadian Charter. This decision was affirmed on appeal before the British Columbia Court of Appeal (2009 BCCA 23). The City of Vancouver appealed to the Supreme Court of Canada. Decision Section 24(1) of the Canadian Charter provides: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Canadian courts have variably used this provision to issue a broad range of remedies, including declarations, injunctions and damages. However, as McLachlin CJ stated in the introductory remarks of the Supreme Court of Canada’s ruling in this case:

178

Although the Charter is 28 years old, authority on this question [of awarding damages] is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award. The Court undertook a comprehensive analysis of the appropriateness of damages in cases of human rights breaches. The scope of section 24(1) was found to grant courts a wide discretion, which should not be placed in a ‘strait-jacket of judicially prescribed conditions’. Rather, the courts’ discretion is fettered only by the limitation that the remedy must be ‘appropriate and just’, which will be determined by the facts and circumstances of each case. The Court affirmed that damages could be an appropriate remedy in human rights cases, in the sense that damages could satisfy the general considerations for appropriateness and justness as previously stated by the courts: [A]n appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made. The four-step test In determining whether damages were an appropriate and just measure to recompense Mr Ward, the Court affirmed the decision of the lower courts with respect to the strip search, but not for the vehicle seizure. A four step analytical process was followed: 1. 2. 3. 4.

Has a Charter breach been established? Will damages serve a useful function or purpose? Are there countervailing considerations that would render damages inappropriate or unjust? What quantum of damages would be appropriate and just?

With respect to step 1, there was no question that s 8 of the Canadian Charter had been breached by the conduct of the police in arresting and detaining Mr Ward. With respect to step 2, damages should achieve compensation, vindication and deterrence. The objectives of the Charter necessarily required this; these functions also reflected the legal principles underlying public law damages for constitutional breaches. Compensation recognised and addressed any loss to the claimant caused by a human rights contravention, including physical, psychological and pecuniary losses. This might also include ‘intangible losses’ such as distress, humiliation, embarrassment and anxiety. The purpose of vindication, however, was not to remedy the loss of the individual, but rather to recognise that a Charter breach caused harm to society as a whole. Finally, deterrence invoked the task of influencing government behaviour to foster greater compliance with Charter rights and responsibilities in the future. With respect to step 3, the Court stated: [E]ven if the claimant establishes that damages are functionally justified, the state may establish that other considerations render s 24(1) damages inappropriate or unjust. A complete catalogue of countervailing considerations remains to be developed as the law in this area matures. At this point, however, two considerations are apparent: the existence of alternative remedies and concerns for good governance. Alternative remedies could include other Charter remedies such as declarations, private law remedies for actions for personal injury, and remedies for actions covered by legislation permitting proceedings against the state. Declaratory relief has been seen to be sufficient in cases where a claimant has not

179

suffered personal damage. The existence of a potential private law action (such as a tort) does not bar a claimant from seeking Charter remedies, except where it would result in double compensation. On the issue of good governance, it was open to the state to advance that a monetary award could have an adverse impact by deterring active governance, but this was not a matter of course since damages could equally promote good governance by encouraging Charter compliance. Also, the public law context provides that the state cannot be held liable for damages arising from actions undertaken pursuant to a valid statute that is subsequently declared invalid as this would inhibit effective decision-making. ‘Practical wisdom’ and procedural requirements may also be relevant considerations. With respect to step 4, the quantum of damages must also be ‘appropriate and just’ in the circumstances. The Court referred to existing jurisprudence which provided that the seriousness of the breach is the principal determinant of quantum. Seriousness relates to the impact on the claimant and the nature of the state’s conduct. The quantum must also be fair to both the claimant and the state. Relevant factors include public interest in good governance and not diverting (substantial) state resources away from public programs. Application to Mr Ward’s claim The Court found that the strip search was a serious breach of the right to be protected against unreasonable searches. Strip searches were ‘inherently humiliating and degrading’ and led to ‘significant injury to an individual’s intangible interests’. In Mr Ward’s case, the strip search was ‘unnecessary and violative’ in all the circumstances, in particular in the context of the minor nature of the alleged offence and the minimal risk of harm Mr Ward posed. This displayed the police’s insensitivity to Charter concerns. Thus an award of damages (in the amount determined at first instance) was appropriate because the strip search caused significant injury to Mr Ward, and arose from significantly inappropriate police conduct. The state was not able to convince the Court that alternative remedies were appropriate. However, in the case of the vehicle seizure, the Court held that a declaration of Charter breach was sufficient. Important factors were that Mr Ward had suffered no loss (thus compensation was not necessary), and whist wrong, the seizure was not sufficiently serious to warrant an award of damages to vindicate the breach or to deter future breaches. Comment: This decision is a landmark ruling on the availability and appropriateness of monetary compensation in instances of human rights breaches. It confirms the need to give human rights law the ‘teeth’ it requires to bring attention to the real and serious nature of rights violations. While other remedies, such as declarations and injunctions, are and remain important powers available to the courts, financial penalties can have a much greater impact on the ‘bottom line’ by putting a price on belligerence.

180

181

How to Tackle an Administrative Law Problem Question LCC Note: I would look to Baker as it is pretty comprehensive – see what order the majority approached the issues to make sure this matches. The first step is to ask: Is there discretionary reasons why the case should not be allowed to proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether it is Federal or Provincial. Overall, courts will deny an application for judicial review when alternative procedures are available. However, S. 2(5) of the Judicial Review Procedure Act a court can still grant relief. The second step is to ask: What standards of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v New Brunswick Liquor Corporation which introduced the 'Pragmatic and Functional approach' which consisted of three standards of correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v Canada (Minister of Citizenship and Immigration) which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v New Brunswick where the Supreme Court eliminated 'patent unreasonableness' consequently leaving only correctness and reasonableness. The standard of review analysis must be analysed before judicial review. To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as awhole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review Correctness (which there is no deference) or Unreasonableness (possibly patent unreasonableness). The third step is to ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere. Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated legislation and whether it is an unreviewable discretionary power (eg privileges - not reviewable; prerogative powers - reviewable) Step four concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias. Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2) relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise

182

by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan) where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker ). Is the right to counsel in question? Is there a requirement for reasons to be provided? Protection against bias - This is the second fundamental principle of procedural fairness - the affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.

183