NCA Administrative Law Outline

NCA Canadian Administrative Law Outline  January 29, 2015 - To Toronto Setting the Stage Sources of Procedural Obligations Fairness: Sources and Thresholds Procedural Obligation Triggers (Knight “Three-Prong” and the Concept of “Legitiate !"pectation”# The $odern Coon La% &octrine: &iensions and Liitations L iitations of Procedural Fairness !laborations of the $odern &octrine The Coon La% Threshold &ecisions 'ffecting 'ffecting ights) Pri*ileges) or +nterests +nspections and ecoendations Legitiate !"pectations Procedural Obligation Triggers (Legislati*e &ecisions , !ergencies# &ecisions of a Legislati*e and a eneral .ature Cabinet and Cabinet 'ppeals /0la%s and ulea1ing Polic0 $a1ing egulated +ndustries and Producers +ndi*iduali2ed &ecision $a1ing /ased on !"ercise of /road &iscretionar0 Po%ers !ergencies Procedural Obligation Triggers (Charter , /ill of ights# The Charter and the /ill of ights: +ssues of eneral 'pplicabilit0 The /ills of ights: Specific Procedural Thresholds Section 3 of the Charter: Specific Procedural Thresholds Section 3 of the Charter: “Life) Libert0) and Securit0 of the Person Content of Procedural Obligations (ight to be 4eard# The ole of 5udicial e*ie% The Le*el and Choice of Procedures Specific Content +ssues Pre-4earing +ssues .otice &isco*er0 &ela0 The 'ctual 4earing Oral 4earings Open 4earings ight to Counsel &isclosure and Official .otice  'ccess to +nforation Statutes Statutes Cro%n or !"ecuti*e Pri*ilege Other Coon La% !*identiar0 Pri*ileges  'ccess to 'genc0 'genc0 +nforation

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+dentities of Sources of +nforation Coerciall0 Sensiti*e +nforation Staff Studies  'dissibilit0 of !*idence Cross-!"aination Post-4earing +ssues The Content of the &ut0 to i*e easons !ffect of /reach of &ut0 To i*e easons Content of Procedural Obligations (7nbiased &ecision-$a1er# /ias: The eneral Test  'ntagonis &uring the 4earing  'ssociation bet%een Part0 and &ecision-$a1er  &ecision-$a1er  +n*ol*eent of &ecision-$a1er in !arlier Stage of Process Statutor0 'uthori2ation  'ttitudinal /ias Pecuniar0 and Other $aterial +nterests 8ariations 8a riations in Standards +ndependence Content of Procedural Obligations (+ssues arising fro institutional decision-a1ing# &elegation &eciding 9ithout 4earing &elegating the &ut0 to 4ear  Consultations 'ong 'genc0 $ebers  'genc0 Counsel  't the 4earing The Preparation of easons easons e*ie%  'genc0 uidelines /ac1drop to the Standard of e*ie% 'nal0sis 'nal0sis eneral +nforation Pri*ati*e Clauses Constitutional Liitation of Pri*ati*e Clauses Statutor0 eo*al of 5udicial e*ie% The “Preliinar0 uestion” &octrine 9rong uestions and +rrele*ant Considerations Origins of the Standard of e*ie% 'nal0sis 'nal0sis ; C7P! (6t reEuired and gi*en an opportunit0 to respondA Then) after hearing his response) the /oard can decide on %hat action to ta1e (in good faith#A ? /efore this decision) the “dut0 to act Dudiciall0” %as thought to appl0 onl0 to tribunals rendering decisions of a Dudicial or Euasi-Dudicial nature) to the e"clusion of those of an adinistrati*e natureA Nicholson has ade the distinction less iportant ; since the dut0 to act fairl0 and dut0 to act Dudiciall0 ha*e their roots in the sae principles of natural DusticeA ? !"pansion of the dut0 of fairness to areas of adinistrati*e decisiona1ing (such as prisoners rights# that had pre*iousl0 escaped Dudicial scrutin0 for copliance %ith rules of natural DusticeA ? Transferred fro coon la% s0ste of no procedural ipedient outside “Dudicial or Euasi-Dudicial decision” to reEuiring a general dut0 of “procedural fairness” to adinistrati*e decisionsA

". Procedural Obligation #riggers $%night &#hree'Prong( and the Conce)t o! &Legitimate *+)ectation(, CB 85-105; 109-113; 132-156; 157-176

The Modern Common Law Doctrine: Dimensions and Limitations of Procedural Fairness ?

Nicholson v. HaldimandNorfolk #!egional$ "olice Commissioners

Elaborations of the Modern Doctrine ?

9here is a gi*en procedural obligation triggered B +f the procedural rule coes fro legislation) the ans%er to the trigger Euestion is in the legislation itself A B +f the procedural rule coes fro “general statutes about procedure”) the0 contain their own triggers  - be careful to read that legislation if  it applies to 0our decisiona1erA ($a1e sure the statute does appl0 to 0our decision-a1erA 'lso chec1 if a pro*incial general procedural statute can e*er appl0 to a federal adinistrati*e decision-a1erA# ? T%o triggers for coon la% procedural fairness: B %night v. &ndian Head School Division  (three-prong# trigger and B Legitiate e"pectation ? 9here the reEuireents of these triggers are et) then procedural fairness is o%ed b0 the adinistrati*e decision-a1er  J

? Pa0 attention to soe of the e"ceptions and constraints on the triggers as %ellA So) for legitiate e"pectation) note the courts *ie%s on procedural *ersus substanti*e proisesA For the %night  trigger) the readings tal1 about Mnal *ersus preliinar0 decisions (and the related issue of in*estigations and recoendations#A .ote also e"ceptions to this e"ception ; See range 5 application of test in '(el  %night v. &ndian Head School Division No. )* #)**+$

? Leading decision of the Supree Court of Canada on procedural fairness in Canadian adinistrati*e la%A The Court created a threshold test to deterine %hether an adinistrati*e process in*o1ed a coon la% dut0 of fairness based on the nature of the decision) relationship bet%een the parties) and the effect on the indi*idual claiantA ? onald ar0 Knight %as disissed as superintendent of a school boardA 4is position %as held at pleasureA 4is disissal %as not for personal reasons) but he claied procedural fairness should appl0 and a hearing should ha*e been heldA ? THREE PRONG TEST per L>4eureau"-ube 5 (for the aDorit0 of the Supree Court#: 6A .ature of the decision to be ade b0 the adinistrati*e bod0: aA 'dinistrati*e *A Legislati*e use of po%er - 'dinistrati*e po%ers attract procedural fairness %hile legislati*e po%ers do not bA Final decision a1er - Preliinar0 or interlocutor0 decisions don>t in*o1e procedural fairness =A elationship e"isting bet%een that bod0 and the indi*idual: ? The bod0 is e"ercising a po%er steing fro a statute or prerogati*e po%erA @A !ffect of that decision on the indi*idualNs rights (pri*ileges  interests# ? Lo% threshold reEuiring onl0 that applicant ha*e an interest and that it be ipacted ? +f all of these criteria are et then procedural fairness is triggered and the court %ill decide %hat procedures the applicant is dueA /ut note that if the statute specificall0 e"cludes procedural fairness) then the court has no choice but to follo% the legislature>s intentA ? /asic reEuireents of the dut0 to act fairl0 is to gi*e reasons for disissal and a hearingA .ote that e*er0 adinistrati*e bod0 is aster of its o%n procedure and therefore 0ou ust allo% adinistrati*e bodies to %or1 out a s0ste that is fle"ible) adapted to their needs and fair ; .O need to a1e it a court processA ? .ote ; Dunsmuir v. New Brunswick  changed the la% re: procedural fairness applicable to public office holdersA 9here a public office holder>s eplo0ent is go*erned b0 an eplo0ent contract) disputes re: disissal ust be resol*ed according to ters of the contract and an0 applicable statutes and regulations iAeA) a public authorit0 that disisses an eplo0ee pursuant to an eplo0ent contract is not subDect to an additional public la% dut0 of fairnessA eedies of eplo0ee are onl0 contractualA

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Reasons:

B 4ard to deterine in practice if a position had a strong enough “statutor0” fla*our  B Public la% reed0 of o*erturning the disissal and re-instating eplo0ee (%ho is entitled to accrued salar0 and benefits fro tie of disissal to courts order of Dudicial re*ie%# is less principled than pri*ate la% reed0 of proper notice and pa0 in lieu of notice because the aount of relief depends not on eplo0ee>s situation but length of tie to resol*e the Dudicial application iAeA) coon la% entitleents of notice period) salar0 in lieu and %rongful disissal clai pro*ide enough protectionA Dunsmuir  noted that the public la% dut0 of fairness can still appl0: B 9here the public eplo0ee is not protected b0 an eplo0ent contract B 9here the office-holder is e"pressl0 subDect to suar0 disissal B 9here the dut0 of fairness flo%s b0 necessar0 iplication fro the statutor0 po%er go*erning the eplo0ent relationship ; eAgA statute pro*ides for  notice to be gi*en to eplo0ee of a otion to disissA

The Common Law Threshold ? The Euestion) %hether there %as an0 significance distinctions bet%een the concepts of Dudicial and adinistrati*e functions) %as one that cae to be e"plored b0 the Supree Court shortl0 after Nicholson A ,artineau v. ,ats-ui &nmate Disciplinar Board  ; e"pansion of certiorari to all procedural

reEuireents ? $artineau and /utters) inates) %ere disciplined) and alleged that the0 %ere not gi*en a hearingA The0 ade an application for re*ie% in the Federal Court of 'ppeal) %hich %as disissed because the court did not ha*e DurisdictionA The0 also ade an application for certiorari in the Federal Court ; Trial &i*ision) %hich has Durisdiction to grant the usual reedies for re*ie%A Their application %as based on the fairness reEuireentA ? The respondents argued that certiorari can be used to re*ie% onl0 Dudicial or Euasi-Dudicial functionsA ? The respondent>s arguent %as reDected b0 the Supree Court) %hich appeared to e"pand the liits of certiorari to include enforceent of procedural reEuireents generall0A &ic1son ga*e the opinion of the courtA ? &ic1son held that the fact that a decision-a1er does not ha*e a dut0 to act  Dudiciall0) %ith obser*ance of foral procedure %hich that characteri2ation entails) does not ean that there a0 not be a dut0 to act fairl0 %hich in*ol*es iporting soething less than the full panopl0 of con*entional natural Dustice rulesA ? 'n inate disciplinar0 board is not a courtA +t is a tribunal %hich has to decide rights after hearing e*idenceA +t is) nonetheless) subDect to a dut0 of fairness and a person aggrie*ed is entitled to see1 relief on an application for certiorariA 4o%e*er) not e*er0 breach of prison rules of procedure %ill bring inter*ention b0 the courtsA Therefore, the question is not whether there has been a breach of prison rules, but

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whether there has been a breach of the ut! to act fairl! in all the circu"stances# The rules are of so"e i"portance in eter"ining this latter question#

? &ic1son argued that it is %rong to regard natural Dustice and fairness as distinct and separate standards and to see1 to define the procedural content of eachA Fairness in*ol*es copliance %ith onl0 soe of the principles of natural DusticeA 9hat the content of the principles of natural Dustice and fairness is) and their application to the indi*idual case) %ill *ar0 according to the circustances of eachA Cardinal v. Director of %ent &nstitution  ; adoption of ne% categories ; legislation , rights-

pri*ileges ? +t %as held b0 the Supree Court that a hearing %as reEuired for a decision b0 prison officials to 1eep a prisoner “dissociated” for securit0 reasonsA ? +n so holding) 5ustice Le &ain stressed the “serious effect” on the prisoner and stated that: B “The court has affired that there is) as a general coon la% principle) a ut! of proceural fairness l!ing in e$er! public authorit! "a%ing an a"inistrati$e ecision which is not of a legislati$e nature an which affects the rights, pri$ileges or interests of an ini$iual&  The denial of a right to a fair hearing ust al%a0s render a decision in*alid) %hether or not it a0 appear to a re*ie%ing court that the hearing %ould li1el0 ha*e resulted in a different decision +t is not for the court to den0 that right and sense of Dustice on the basis of speculation as to %hat the result ight ha*e been had there been a hearingA” ? 'nal0sis: Le &ain>s forulation of the circustances in %hich the dut0 of procedural fairness arises does contain the genesis of a ne% threshold) one in %hich the di*iding lines are e"pressed in ters of “legislati*e” and all other functions are predicated also on %hether the decision is one that affects “rights) pri*ileges or interests”A

Decisions Affecting Rights Pri!ileges or "nterests ? 9hen 5ustice Le &ain spo1e in Cardinal  about the e"istence of a dut0 of fairness %hene*er “rights) pri*ileges or interests %ere at sta1e) it is Euite possible that he %as doing so not for the purposes of setting up a test in %hich “rights) pri*ileges or interests” stood in contrast to soe less for of claiA ather) that it %as no longer necessar! to establish that a 'right( was affecte but that "ere pri$ileges an interests qualifie as well  pro*ided the decision in Euestion %as not a general or legislati*e oneA ? !e We(( and /ntario Housing Corporation  is an iportant Dudgent for a nuber of reasons) including its treatent of the intersection bet%een procedural fairness clais and the sliding scale in procedural fairness clais depending on the nature of the interest at sta1eA ● E$en if the threshol no longer epens on a istinction between rights on the one han an pri$ileges an "ere interests on the other, the e)tent of the proceures to be accore clearl! can#

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$ore particularl0) ho%e*er) We(( is included at this Duncture for a point about the distinctions bet%een an applicant for accoodation in go*ernent-subsidi2ed housing and an e"isting resident in such housingA This suggests a continuing rele*ance for threshold purposes bet%een benefit holders and those see1ing such benefitsA ●

!e We(( and /ntario Housing Corporation  6ord Hailsham of ,arle(one A ? Prior to %night ) ho%e*er) in the case of ,artineau ) &ic1son said: B “' purel0 inisterial decision) on broad grounds of public polic0) %ill t0picall0 afford the indi*idual no procedural protection) and an0 attac1 upon such a decision %ill ha*e to be founded upon abuse of discretionA Siilarl0) public bodies e"ercising legislati*e functions a0 not be aenable to Dudicial super*isionA” ? 9hat counts as a “legislati*e” function for these purposes 9hat are the badges of a “purel0 inisterial decision) on broad grounds of public polic0”

Cabinet and Cabinet A##eals Canada #'ttorne 1eneral$ v. &nuit 9apirisat of Canada 6s not aied at particular cases) there is no ground on %hich the coon la% should suppl0 procedural fairnessA ? ./:

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B ulea1ing and discretionar0 po%ers are not subDect to procedural fairness B &iscretion e"ercised b0 Cabinet not subDect to procedural fairness (.'PO# B Certain sort of broad) polic0-based discretion are e"cluded fro procedural fairness (.'PO#

'(laws and Rulema)ing Homex !ealt and Development Co. >td. v. Woming #?illage$  6 o%n polic0 on closings) parents and students gi*en no opportunit0 to input into decision before it %as ade (soe consultation after#A ? Court did hold that the inisterial guidelines %ere not technicall0 subordinate legislation and thus not strictl0 binding on the board but the Court said there %as a le*el of fairness that appliedA ? Since neither $inisters nor board>s o%n procedural guideline follo%ed there %as a denial of procedural fairness ? Public consultation is condition precedent to a *alid decisionA

Regulated "ndustries and Producers

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Canadian 'ssociation of !egulated &mporters v. Canada #'1$  6s application in the adinistrati*e la% arena to bodies or at least acti*ities that can be brought %ithin the concept of “go*ernent”A ? ,c%inne v. niversit of 1uelph

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B The aDorit0 of the Supree Court held that) not%ithstanding their  statutor0 status) uni*ersities %ere not go*ernent and) therefore) not generall0 aenable to the Charter %ith respect to actions and decisions that %ould e"pose the to Dudicial re*ie% B The sae held true for /ACA hospital boards) but not that pro*ince>s counit0 colleges) a differentiation that indicates that the di*iding line bet%een that is “go*ernent” for these purposes and %hat is not is certainl0 not a bright-line distinctionA ? Harve v. >aw Societ #Newfoundland$  ; contrast %ith ,c%inne  B The .e%foundland Superior Court held that the Charter reached the disciplinar0 functions of the La% Societ0A B i*en the self-regulating status of the legal profession) %h0 is that so 9hat sorts the La% Societ0 out fro the uni*ersit0) gi*en that each no% operate under a statutor0 ubrella ? ldridge v. B.C.  ; Eualification on “non-go*ernental entities” iunit0 fro Charter  B The Supree Court held that decisions of /ACA hospital boards on %hether to pro*ide translation facilities for hearing ipaired patients %ere subDect to the Charter since) in the deli*er0 of healthcare ser*ices) hospitals %ere ipleenting a specific go*ernent polic0A B Thus) a statutor0 authorit0 that is not in general go*ernent becoes subDect to the Charter %hen charged %ith responsibilit0 for the effectuation of go*ernent prograsA ? 'lso) bodies that are not generall0 directl0 subDect to the Charter a0) ne*ertheless) be affected b0 itA To the e"tent that the respondent uni*ersities in ,c%inne %ere subDect to the Ontario 4uan ights Code prohibitions against age discriination and Dustified their andator0 retireent pro*isions on the e"eptions fro those prohibitions) their policies stood to be affected b0 a conclusion that the Ontario legislature (to %hich the Charter clearl0 applies# had transgressed sA6J(6# in pro*iding for such e"eptions ; recall that the huan rights code is an ordinar0 statute (not%ithstanding its supreac0 clause# and as such ust be interpreted in conforit0 %ith the CharterA

The 'ills of Rights: S#ecific Procedural Thresholds For the purposes of adinistrati*e la%) the principal procedural protections of the / ill are to be found in sA6(a# and sA=(e#A ? SecA 6(a# pro*ides as follo%s: B “+t is hereb0 recogni2ed and declared that in Canada there ha*e e"isted and shall continue to e"ist %ithout discriination b0 reason of race) national origin) colour) religion or se") the follo%ing huan rights and fundaental freedos) nael0 (a# the right of the indi*idual to life) libert0) securit0 of the person and enDo0ent of propert0) and the right not to be depri*ed thereof e"cept b0 due process of la%” ? SecA =(e# pro*ides as follo%s:

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B “!*er0 la% of Canada shall) unless it is e"pressl0 declared b0 an  'ct of the Parliaent of Canada that it shall operate not%ithstanding the Canadian /ill of ights) be so construed and applied as not to derogate) abridge or infringe or to authori2e the abrogation) abridgent or infringeent of an0 of the rights or freedos herein recogni2ed and declared) and in particular) no la% of Canada shall be construed and applied so as to (e# depri*e a person of the right to a fair hearing in accordance %ith the principles of fundaental Dustice for the deterination of his rights and obligationsA” B Thus) the sections are *ie%ed as a *ehicle for rendering inoperati*e federal statutes that do not pro*ide the protections of “due process of la%” and “fundaental Dustice” respecti*el0A ? There are three threshold diensions of the /ill that proise a ore e"tensi*e reach in ters of procedural protections than pro*ided b0 the 1e0 Charter pro*ision) secA 3: B First) the use of the ter “indi*idual” and “person” in the /ill as opposed to “e*er0one” in the CharterA +n &rwin 9o v. 6ue(ec ) the Supree Court held that “life) libert0 and securit0 of the person” in secA 3 of the Charter are attributes possessed onl0 b0 natural persons and) hence) “e*er0one” does not include corporationsA 9hether the sae holds for secA 6(a# and secA =(e# has not been resol*ed definiti*el0 b0 the Supree CourtA 9hile there is lo%er court authorit0 to the effect that corporations are e"cluded fro the benefit of secA 6(a#) there is no reason %h0 the sae should be so for secA =(e#A +n fact) secA =(e#>s application to corporations %as assued b0 the Federal Court of 'ppeal in Central CartageA +t should be noted) ho%e*er) that in ! v. Wholesale 9ravel 1roup) the Supree Court held that a corporation (at least in the conte"t of a defense to a criinal charge or in ans%er to a ci*il clai or regulator0 proceedings# can argue that a legislati*e pro*ision is in*alid because it %ould *iolate secA 3 in its application to an indi*idualA B Second) the inclusion of “enDo0ent of propert0” in secA 6(a#A uite deliberatel0) secA 3 did not include protection for “propert0” rightsA 4o%e*er) there is considerable roo for debate about the nature of the “propert0 rights” that are included %ithin secA 6(a#A .onetheless) this represents the ost significant difference in ters of co*erageA  +n 3JI3= /ntario &nc. v. Canada #,inister of National !evenue$ ) %hich had to do %ith the confiscation under the !"cise 'ct of a rental *ehicle in %hich suggled alcohol had been foundA 7nder the rele*ant legislation) there %as no guarantee that the o%ner of the *ehicle) in this case a copan0 that had leased the car to another copan0 for rental purposes) %ould recei*e notice of the situation before the *ehicle becae forfeited to the Cro%nA 9hile dealing %ith the issue of  notice b0 reference to coon la% and statutor0 interpretation principles) 5udge othstein also suggested that) in the e*ent that that conclusion could not be Dustified on a proper reading of the statute) the legislation itself ight be contrar0 to the /illA The forfeiture of the *ehicle to the Cro%n affected the o%nership “rights” of the leasing copan0 and the fact

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that this could occur %ithout notice to it of either the sei2ure or the confiscation seeed to constitute a denial of the benefit of the “principles of fundaental Dustice”A B Third) the attachent in secA =(e# of procedural guarantees to the “deterination of rights and obligations”A +nitiall0) the ter “rights and obligations” %as interpreted narro%l0 b0 the courts and restricted to the ta1ing a%a0 of “strict) legal rights”A 4o%e*er) in Singh v. Canada #,inister of mploment and &mmigration$) three ebers of the Supree Court held that the iigration authorities cae %ithin secA =(e# %hen deciding upon a con*ention refugee claiA This in*ol*ed “deterining” %hether the claiant had a statutor0 “right” to reain in CanadaA 'lthough the precise diensions of secA =(e# still reain ur10) at the *er0 least) this ode of reasoning ensures that it %ill be deterined b0 reference to Euite different and uch ore e"pansi*e criteria than is the case %ith “life) libert0 and securit0 of the person”A B Four) %hile the /ill does not contain an eEui*alent to secA 6 of the Charter) the uebec Court of 'ppeal in  'ir Canada v. Canada #"rocureure generale$  held that) in deterining the deands of the principles of fundaental  Dustice for the purposes of secA =(e#) the court should engage in a secA 6-st0le balancing process a1in to that set out in ! v. /akesA

Section + of the Charter: S#ecific Procedural Thresholds Singh v. Canada #,inister of mploment and &mmigration$  6s also the concern of coercial copetiti*eness aong edia institutionsA 2ight to Counsel

There is no coon la% absolute right to counsel) and the right>s e"istence is fact-dependentA 4o%e*er) in an0 cases) the right to counsel is assued and in an0 cases a statute pro*ides for itA ? The ore cople" the inEuir0 and the ore se*ere the repercussions on indi*iduals in*ol*ed the ore li1el0 the person has a right to counselA ? On the atter of entitleent to counsel in prison) se*eral factors are considered including the seriousness of the charge and the potential penalt0) points of la% li1el0 to arise) capacit0 of prisoner to a1e his or her case) procedural difficulties) and the need for speed and fairness bet%een prisonersA ? The principles of fundaental Dustice do not entitle soeone to the right to counsel in cases of routine inforation gatheringA +n Dehghani v. Canada #,inister of mploment and &mmigration$ ) 6ondon Coroner x "arte Dallaglio  6s secretar0 as reEuired b0 the rele*ant protocol) but had contacted the present chair personall0A

"n!ol!ement of Decision.Ma)er in Earlier Stage of Process Committee for Austice and >i(ert v. National nerg Board  ; degree of in*ol*eent of the

decision-a1er is directl0 proportional to a reasonable apprehension of biasA ? 'n application %as ade under the .ational !nerg0 /oard 'ct to the .ational !nerg0 /oard b0 Canadian 'rctic as Pipeline for construction of a national gas pipelineA ? The Chairan of the /oard at the tie of the application %as $arshall Cro%e) %ho had been president of Canada &e*elopent Corporation before his appointentA ? The application) the 'rctic as Pipeline Copan0) %as fored in .o*eber 6s clai %as that the proceeding in Con*ocation %as essentiall0 consideration of an appeal fro the &iscipline Coittee) and therefore) the participation of the t%o ebers created an apprehension of biasA ? One arguent for the Societ0 %as e*en if the proceedings %ere an appeal) the a"i expression unius est exclusion alterius  peritted the ebers to participateA SecA @< prohibited coittee ebers fro participating in one 1ind of appeal) therefore) iplicitl0 peritting the to participate in othersA ? 5ustice Spence) %riting for the aDorit0) accepted this arguentA Considering the Euestion of the nature of the proceeding) Spence concluded that Con*ocation %as not considering an appealA 4e said that the discipline process %as “a single proceeding in %hich there are t%o stages: First) the inEuir0 and the in*estigation into the coplaint b0 the &iscipline Coittee) the results of %hich are ebodied in a report to the benchers

H@

and secondl0) the consideration and disposition of the report b0 the /encher s in Con*ocationA ? That being so) he stated: “+ can see no basis for the subission that the /enchers %ho %ere ebers of the &iscipline Coittee %ould be precluded fro participating in the deliberations of the /enchers in Con*ocationA”

Statutor( Authori*ation Coon response to allegation of bias b0 prior in*ol*eent is statutor0 authori2ation defenseA 9hen 0ou ha*e the go*erning statute create a schee that pro*ides for the possibilit0 of biasA 4appens %hen a regie is set up %here adinistrati*e agenc0 has a dual or a nuber of copeting functionsA Brosseau v. 'l(erta #Securities Commission$ 6td. v. /ntario Securities Commission 6oca(ail #%$ >td v. Bafield "roperties >td. nerg "ro(e v. Canada #'tomic nerg Control Board$

? '!C/ %as considering application b0 Ontario 40dro to rene% the operating licence for a nuclear generating station operated b0 Ontario 40dro !nerg0 Probe obDected to the participation of one board eber) Olsen) alleging he %as a president of the copan0 that supplied cables to the nuclear po%er plant he %as also a eber of the se*eral organi2ation that supported the use of nuclear po%er the !nerg0 /oard reDected the bias obDections and rene%ed the licenceA ? ' contingent interest of potential and uncertain pecuniar0 gain does not constitute bias ? 'nal0sis: 0ou should loo1 at the interest that flo%s fro the decision) be it direct or indirect) at the degree of relationship: ho% reote) ho% contingent) ho% effecti*e is the interest ? The onl0 reEuireent should be that the benefit that coes fro the decision %ould ha*e enough of an effect to colour the case in the decision-a1er>s e0es

1ariations in Standards ? The standard of %hat constitutes disEualif0ing bias a0 *ar0 draaticall0 %ith conte"tA This is particularl0 so in the arena of prior in*ol*eent %ith and attitudes to%ard a atter to be decidedA /ld St. Boniface !esidents 'ssociation &nc v. Winnipeg #cit$  6td. v. ,ats-ui &ndian Band  6s decision can be Euashed (sA =@ of the Charter is applicable if the Ygie is e"ercising Dudicial or Euasi-Dudicial functions# ? atio: Soe adinistrati*e tribunals a0 ta1e on a Euasi-Dudicial roleA 's such) those tribunals a0 be reEuired to copl0 %ith the principles of Dustice under general la% rulesA ? .otes: The court seeed to be satisfied that as long as the directors did not ser*e erel0 at pleasure) the0 had enough independenceA Copare this to Kat2 %here the fact that ebers of the board did not depend on that %or1 for their li*elihood contributed to their independenceA The practice %as also to ser*e until *oluntar0 resignation or deathA

;. Content o! Procedural Obligations $5ssues arising !rom institutional decision'ma:ing, CB 557-603; 607-610; 617-6%3 +n this part) %e deal %ith an area that has eleents of both the right to be heard and the right to an unbiased decision-a1er: institutional decisiona1ingA Rou need to understand the concept of subdelegationA The delegatus non potest delegare  (None to %ho po%er is delegated cannot hiself further delegate that po%erN# concept sounds li1e a prett0 potent bar on an adinistrati*e decision-a1er sub-delegating po%ers to another actor) but there are so an0 circustances %here sub-delegation is perissible that) reall0) sub-delegation tends to be iportant onl0 %hen certain functions are sub-delegated that offend procedural rulesA The concept of “he or she %ho hears” is an e"aple) tied to the right to be heardA This is an issue that becoes coplicated %hen large) ulti-eber boards are as1ed to a1e decisions that are consistent %hile at the sae tie the0 sit to hear siilar cases) but in panels %ith less than full ebershipA  'nother issue for these big boards) %hen the0 tr0 to a1e consistent decisions) is %hen and %here bias concepts are offendedA Ret another issue raised b0 these aterials is if these big board can use guidelines to tr0 to standardi2e decisionsA +f the0 do) do the0 %rongl0 “fetter their discretion” (/ut note that fettering of discretion is a substanti*e re*ie% issue) and so is reall0 go*erned b0 the sorts of considerations discussed in the ne"t sectionA# ? Strengths of institutional decisions are abilit0 to a1e large *olues of decisions and operations to establish internal chec1s and balances speciali2ation aong staff and a sharing of e"pertise) opinions and perspecti*eA ? 9ea1nesses of institutional decisions are general %ea1nesses of bureaucrac0) especiall0 the large possibilities for anon0it0) loss of authorit0 b0 the senior le*els and ipersonal treatent of those affected b0 decisionA

JI

? ObDecti*e is to design procedures to cobine the strengths of both indi*idual and institutional decisiona1ingA 4onsier the 5 scenarios on page 667 an 668 of te)t

Delegation Delegatus non potest delegare  (None to %ho po%er is delegated cannot hiself further

delegate that po%erN#A !"tent to %hich an authorit0 a0 perit another to e"ercise a discretion entrusted b0 statute to itselfA 9hen is delegation perissible &epends on interpretation of the rele*ant statuteA Pria facie) a discretion conferred b0 statute is intended to be e"ercised b0 the rele*ant authorit0 and noone elseA +AeA “po%er delegated to 0ou personall0”A /ut is there other language that eans it is “po%er delegated to 0ou personall0 or an0 person authori2ed b0 0ou”A ?ine v. National Dock >a(our Board  6t sho% upA Ste*edoring copan0 coplained and discipline coittee of the board ordered 8ine dischargedA 4e said %rongful disissal and discipline coittee action %as *oid as /oard could not delegate its disciplinar0 po%ersA ? LO& SO$!8!LL: &isciplinar0 po%ers) %hether Dudicial or not) cannot be delegated ? 8+SCO7.T K+L$7+ LC: +t is necessar0 to consider the iportance of the dut0 %hich is delegated and the people %ho delegate: B This dut0 in this schee is too iportant outla%ed fro profession for lifeQ to delegate unless there is an e"press po%erA B +t %as perissible if it had stated so in the statute) but that is absent hereA B To ha*e authorit0 to appoint soeone) it needs to be e"plicitl0 pro*ided

Deciding 2ithout /earing &ut0 of fairness ; general principle that onl0 those ebers of an agenc0 %ho hear a particular case a0 decide itA ' person is denied an adeE opportunit0 to influence the decision if unable to address directl0 those %ho participate in a1ing itA

Delegating the Dut( to /ear >ocal 1overnment Board v. 'rlidge  6s inter*entions ight be seen to fa*or one side o*er another (Brett v. /ntario #Board of Directors of "hsiotherap$ # - counsel had ad*ised la%0er presenting case against the eber %hen to obDect to Euestions and %hen to put for%ard arguents in fa*our of the “prosecution”#A

JH

? .ote ; need to a1e obDection 1no%n at the tie other%ise) if 0ou get to Dudicial re*ie% the court ight hold acEuiescenceA

The Pre#aration of Reasons ? 9riting reasons for a decision can be onerous and daunting for ebers of an0 adinistrati*e tribunalsA 4o% far a0 tribunals ta1e ad*antage of e"pertise of their staff (incl counsel# in the preparation of reasons for the decision %ithout breaching soe aspect of d of f ; delegation doctrine and apprehended bias in particular ? To %hat e"tent is gi*ing of reasons a function that ust be perfored personall0 b0 decision a1ers rather than bureaucraticall0 *ia use of counsel ? /lac1 letter la%: First) decision ust be that of the tribunal ebers thesel*esA Therefore if counsel retires %ith tribunal %hile it deliberates %o consent of parties a0 create reasonable apprehension of biasA Second) reasons for decision ust be ins substance those of the tribunal ebers) not cler1>s or counsel>sA ?

Probles %ith tribunal ebers %riting o%n reasons: B !e Del Core and /ntario College of "harmacists : “courts should not be o*erl0 critical of language eplo0ed b0 bodies and sei2e on a fe% %ords as being destructi*e of entire disciplinar0 processA” iAeA) tribunal ebers %on>t draft in legaleseA B Courts ha*e peritted tribunal to see1 assistance of counsel (or other staff ebers# in the prep of the stateent of their reasons for decisionA  'rmstrong v. Canada #Commissioner of !C,"$  .ote ; e*en though la% cler1 drafted reasons) the0 %ere re*ie%ed in draft b0 coittee eber %ho ade changes and did soe drafting of the penalt0A Final draft appro*ed b0 all ebersA

%han v. College of "hsicians and Surgeons of /ntario  6%ea1” pri*ati*e clauses t0picall0 state that decisions of the rele*ant actor are final and conclusi*e or that he has “sole” or “e"clusi*e” Durisdiction in certain atters but don>t e"pressl0 preclude courts fro an0 re*ie% of the decision-a1erA +nterpretation of a pri*ati*e clause a0 also depend on %hether other pro*isions of the statute pro*ide for an appeal to the court fro the decision-a1er on Euestions of fact) la%) i"ed fact and la%) or another categor0 of decisionsA ' pri*ati*e clause cannot oust the authorit0 of the superior courts to carr0 out a Dudicial re*ie% on constitutional issues or its authorit0 to ensure that an adinistrator has not acted ultra *iresA .eed to closel0 loo1 at statute under %hich decision has been ta1en to deterine the appropriate route for an0 statutor0 appeal and to assess the li1elihood that a court %ill sho% deference to the decision-a1erA /ased on Dunsmuir  one ust re*ie% past cases in %hich coparable decisions ha*e been re*ie%ed b0 a court in order to locate e"isting Durisprudence on the standard of re*ie%A

Constitutional Limitation of Pri!ati!e Clauses &octrine of decision in Crevier v. 6ue(ec  6s po%er to re*ie% the decision of an adinistrati*e agenc0) or its enabling statute) on the ground that either is be0ond the constitutional capacit0 of that legislatureA Legislation that confers po%er on public authorities (and the public authorities in the e"ercise of that po%er# are al%a0s subDect to challenge on basis that there has been a disregard of the di*ision of po%ers bet%een Parliaent and the pro*incial legislatures pro*ided for in ss re not at the current la% 0etA

The Decisions in Pezim and Southam

GJ

"e@im v. British Colum(ia #Superintendent of Brokers$ 6s area of e"pertise B .ot%ithstanding the t0pical approach to right of appeal case (standard of correctness#) he sa0s there should be soe degree of deference to tribunal %hen it operates %ithin its area of e"pertise B Finding ; ha*ing regard to the nature of the securities industr0) the Coission>s specialisation of duties and polic0 de*pt role as %ell as nature of proble before court) considerable deference is %arranted in the present case not%ithstanding fact that there is a statutor0 right of appeal and there is no pri*ati*e clause ? Finding ; the aDorit0 of the C of ' erred in failing to appreciate the coissionNs role in an area reEuiring special 1no%ledge and sophisticationA

GG

? Pe2i ; stands for the proposition that %here the adinistrati*e agenc0 is dealing %ith polic0 de*elopent or public polic0 issues ; that deands a higher degree of deference B +n the ne"t case %e see the de*elopent of the “reasonableness sipliciter” standard of re*ie% Canada #Director of &nvestigation and !esearch$ v. Southam &nc. ) 6s reasoning process it %ill rather underta1e its o%n anal0sis of the EuestionA The anal0sis %ill bring the court to decide %hether it agrees %ith the deterination of the decision a1er if not) the court %ill substitute its o%n *ie% and pro*ide the

36

correct ans%erA Fro the outset) the court ust as1 %hether the tribunal>s decision %as correctA” B “J6Q 4a*ing dealt %ith the nature of the standards of re*ie%) %e no% turn our attention to the ethod for selecting the appropriate standard in indi*idual casesA 's %e %ill no% deonstrate) Euestions of fact) discretion and polic0 as %ell as Euestions %here the legal issues cannot be easil0 separated fro the factual issues generall0 attract a standard of reasonableness %hile an0 legal issues attract a standard of correctnessA Soe legal issues) ho%e*er) attract the ore deferential standard of reasonablenessA” B “JJQ ' consideration of the follo%ing factors %ill lead to the conclusion that the decision a1er should be gi*en deference and a reasonableness test applied:  ' pri*ati*e clause: this is a statutor0 direction fro Parliaent or a legislature indicating the need for deferenceA  ' discrete and special adinistrati*e regie in %hich the decision a1er has special e"pertise (labour relations for instance#A  The nature of the Euestion of la%A ' Euestion of la% that is of “central iportance to the legal s0ste A A A and outside the A A A speciali2ed area of e"pertise” of the adinistrati*e decision a1er %ill al%a0s attract a correctness standard (Toronto (Cit0# *A CA7APA!A) at paraA G=#A On the other hand) a Euestion of la% that does not rise to this le*el a0 be copatible %ith a reasonableness standard %here the t%o abo*e factors so indicateA” B “JGQ +f these factors) considered together) point to a standard of reasonableness) the decision a1er>s decision ust be approached %ith deference in the sense of respect discussed earlier in these reasonsA There is nothing unprincipled in the fact that soe Euestions of la% %ill be decided on the basis of reasonablenessA +t sipl0 eans gi*ing the adDudicator>s decision appropriate deference in deciding %hether a decision should be upheld) bearing in ind the factors indicatedA” B The follo%ing atters %ere identified as being subDect to the correctness standard:  Constitutional Euestions regarding the di*ision of po%ers bet%een Parliaent and the pro*inces  &eterinations of true Euestions of Durisdiction or *ires  The Euestion at issue is one of general la% “that is both of central iportance to the legal s0ste as a %hole and outside the adDudicator>s speciali2ed area of e"pertise” and  uestions regarding the Durisdictional lines bet%een t%o or ore copeting speciali2ed tribunalsA ? 'pplication to the Facts: 9hen this ne% anal0tical frae%or1 %as applied to the facts of the &unsuir case) the court deterined that the reasonableness standard %as the correct approach on %hich to Dudge the adinistrati*e decision in EuestionA +n that

3=

regard) the court ruled that the decision failed to eet this standard) and %as therefore unreasonableA ? +pact: The ruling has consolidated the la% relating to standards of Dudicial re*ie% in Canada) and has effecti*el0 reEuired a full standard of re*ie% anal0sis to be perfored in all current disputes arising fro adinistrati*e decisionsA &unsuir does not stand for the proposition that the “adeEuac0” of reasons is a stand-alone basis for Euashing a decision) or as ad*ocating that a re*ie%ing court underta1e t%o discrete anal0ses Z one for the reasons and a separate one for the resultA +t is a ore organic e"ercise Z the reasons ust be read together %ith the outcoe) and ser*e the purpose of sho%ing %hether the result falls %ithin a range of possible outcoesA B The &unsuir principles %ere subseEuentl0 clarified in Canada #Citi@enship and &mmigration$ v. %hosa ) %here /innie 5A coented: “&unsuir teaches that Dudicial re*ie% should be less concerned %ith the forulation of different standards of re*ie% and ore focussed on substance) particularl0 on the nature of the issue that %as before the adinistrati*e tribunal under re*ie%A” B 4o%e*er) &unsuir %ill not o*errule specific reEuireents that are gi*en in a statutor0 frae%or1 - therefore) the dut0 of procedural fairness %ill continue to appl0 in such casesA B +n addition) the ruling has effecti*el0 ensured that ost fors of public eplo0ent are best *ie%ed through the lens of pri*ate eplo0ent la% principles) irrespecti*e of %hether the affected person a0 be categori2ed as a public office holderA Therefore) appeals on grounds of procedural fairness %ill be a*ailable onl0 to a fe% categories of public eplo0ent) and reinstateent procedures %ill occur e*en less freEuentl0A

Lingering 3uestions After Dunsmuir +n Dunsmuir /innie 5 said the “pragatic and functional” approach %as undul0 subtle) unproducti*e and esoteric and contributed to length0 and arcane discussions in both factus and on the hearing of applications and appeals) undue cost and dela0A &oes Dunsmuir sol*e this  'lice 9olle0 (la% professor# ; it a0 be that a radical change in direction in this area is ipossible and the aDor fla% of Dunsmuir is the Dudgeent>s illusion that it can fi" the probleA .o generic forula can decide %hen a specific Euestion is better ans%ered b0 the adinistrati*e decision-a1er or b0 courtA .o test can tell one ho% to be deferential since deference is neither capitulation nor substitution of Dudgeent) it necessaril0 reEuires the dra%ing of fine lines in particular casesA ? First uestion ; Precedent ; standard of re*ie% should follo% e"isting  Durisprudence %here it has alread0 deterined in a satisfactor0 anner the degree of deference to be accorded %ith regard to a particular categor0 of EuestionA 4o% can 0ou tell %hen a past decision is sufficientl0 li1e the case at hand Lets re*ie% post Dunsmuir  cases to seeA

3@

B Clear that 0ou should a*oid follo%ing the standard of re*ie% if there is a sufficientl0 clear record of past decisions that go*ern the issueA ? Second uestion ; cases %here statute or e"isting Durisprudence dictate a standard of re*ie% no longer a*ailable after Dunsmuir ; B /C 'dinistrati*e Tribunals 'ct sets out specific standards including patent unreasonablenessA +n %hosa) the aDorit0 held that if statute refers to it) then it continuesA /C 'dinistrati*e Tribunals 'ct refers to patent unreasonableness so it li*es on in /C but the content of the e"pression) and the precise degree of deference it coands in the di*erse circustances of a large pro*incial adinistration) %ill necessaril0 continue to be calibrated according to general principles of adinistrati*e la%A B 9hat about patent unreasonableness standard in e"isting  Durisprudence Dunsmuir doesn>t reall0 lea*e that open for a lo%er court but lo%er court could adopt reasonableness as the standard and then appl0 it in a anner li1e to old patent unreasonableness standardA ? Third uestion ; proper scope of 5 on Euestions of la% ; &eference %ill be sho%n %here a tribunal is interpreting its o%n statute or statutes closel0 connected to its function) %ith %hich it %ill ha*e a particular failiarit0 or %here an adin tribunal has de*eloped particular e"pertise in the application of a general coon la% rule or ci*il la% rule in relation to a specific statutor0 conte"tA B /ut %here the Euestion of la% is considered to be of central iportance to the legal s0ste as a %hole and outside the speciali2ed e"pertise of the decision-a1erA /innie 5 sa0s this reference to a ne% categor0 of Es of la% %ill cause unnecessar0 confusion: B +t is a distraction to unleash a debate in the re*ie%ing courtroo about %hether the Euestion of la% is of central iportance to the legal s0ste as a %holeA +t %ould be sufficient to e"ept fro the correctness standard deterinations on hoe statutes or statutes closel0 related to the adinistrati*e decision a1ers> e"pertiseA Other than that) the last %ord on gen eral Euestions of  la% should be left to DudgesA ? Fourth uestion ; role of factors in general in the standard of re*ie% anal0sisA $aDorit0 said “+n an0 cases) not necessar0 to consider all the factors as soe a0 be deterinati*eA” +s this correct B To %hat e"tent is it necessar0 for court to refer to se*eral or all of the factors %hen e"plaining its reasoning &ifficult to understand the standard of re*ie% anal0sis %ithout appreciating the role that is pla0ed b0 the *arious factorsA !*en %here a court doesn>t e"plicitl0 refer to the underl0ing factors in the standard of re*ie% anal0sis) therefore) one should appreciate that those factors should al%a0s pla0 soe role in a court>s decision on %hether to deferA ? Fifth uestion ; %ill aDorit0 approach pro*ide a coherent and %or1able frae%or1 for the s0ste of 5 as a %hole Possible %here the aDorit0 ha*e focussed on re*ie% of adin tribunals Per /innie 5 ; 0es it is applicable to all frae%or1s: B Parliaent or a pro*incial legislature is often %ell ad*ised to allocate an adinistrati*e decision to soeone other than a DudgeA The Dudge is on the outside of the adinistration loo1ing inA The legislators are entitled to put their trust in the *ie%point of the designated decision a1er (particularl0 as to 3H

%hat constitutes a reasonable outcoe#) not onl0 in the case of the adinistrati*e tribunals of principal concern to 0 colleagues but (ta1ing a “holistic approach”# also in the case of a inister) a board) a public ser*ant) a coission) an elected council or other adinistrati*e bodies and statutor0 decision a1ersA +n the absence of a full statutor0 right of appeal) the court ought generall0 to respect the e"ercise of the adinistrati*e discretion) particularl0 in the face of a pri*ati*e clauseA ? Si"th uestion ; interaction bet%een different factors in standard of re*ie% anal0sis) in particular the role of pri*ati*e clausesA Funn0 that &unsuir ephasised deference and then %ent on to o*erturn the adDudicator>s decision) e*en %ith a pri*ati*e clause and interpretation of o%n statuteA le Possible %here the aDorit0 ha*e focussed on re*ie% of adin tribunals Per /innie 5

Reasonableness Re!iew Dunsmuir aDorit0 on the reasonableness standard:

? easonableness is a deferential standard aniated b0 the principle that underlines the de*elopent of the t%o pre*ious standards of reasonablenessA Certain Euestions that coe before adinistrati*e tribunals do not lend thesel*es to one specific particular resultA +nstead) the0 a0 gi*e rise to a nuber of possible reasonable conclusionsA Tribunals ha*e a argin of appreciation %ithin the range of acceptable and rational solutionsA The court conducting a re*ie% for reasonableness inEuiries into the Eualities that a1e a decision reasonable) referring both to the process of articulating the reasons and to outcoeA +n Dudicial re*ie%) reasonableness is concerned ostl0 %ith the e"istence of Dustification) transparenc0 and intelligibilit0 %ithin the decision-a1ing process but it is also concerned %ith %hether the decision falls %ithin a range of possible acceptable outcoes %hich are dispensable in respect of the facts and la%A This does not ean that courts can conduct a ore intrusi*e re*ie%A &eference iports respect for the decisiona1ing process of adDudicati*e bodies %ith regard to both the facts and the la%A &eference in the conte"t of reasonableness eans courts should gi*e due consideration to the deterinations of decision-a1ersA &eference reEuires respect for the legislati*e choices to lea*e soe atters in the hands of adinistrati*e decision a1ers) for the processes and deterinations that dra% on particular e"pertise and e"periences) and for the different roles of the courts and adinistrati*e bodies %ithin the Canadian constitutional s0steA e: standard of correctness - %hen appl0ing the correctness standard in respect of Durisdictional and soe other Euestions of la%) a re*ie%ing court %ill not sho% deference to the decision a1er>s reasoning process it %ill rather underta1e its o%n anal0sis of the Euestion and decide %hether it agrees %ith the deterination of the decision a1er if not) the court %ill substitute its o%n *ie% and pro*ide the correct ans%erA Fro the outset) the court ust as1 %hether the tribunal>s decision %as correctA

3J

Canada #Citi@enship and &mmigration$ v. %hosa  =IIt raised hereA The0 do ha*e that po%er) and the onl0 Euestion is as to the ans%er ; can the0 hear the appeal or not That Euestion is a straightfor%ard atter of statutor0 interpretation) and is re*ie%ed on a reasonableness standardA This is a tric10 point) and it is nice to see the Court addressing it properl0A

Conce#t of -urisdictional Error  ' technical technical e"planation for courts restricti*e restricti*e intA of pri*ati*e pri*ati*e clauses is that the statutor0 statutor0 ref to a decision eans a *alid decisionA Outside its Durisdiction) the agenc0 has no legal po%er to a1e a decision at allA &ic1son 5 ; legislature %ouldn>t %ouldn>t create a tribunal %ith liited Durisdiction and besto% an unliited po%er to deterine deterine the e"tent of its DurisdictionA DurisdictionA 'rguent is .eed to 1eep an e0e on the or the0 %ill %ill 1eep encroachingA Counter is that the courts and coon la% are no ore neutral than the adin agenciesA agenciesA 'lso) as interpreters interpreters of public polic0 statutes) statutes) courts are at a disad*antage to the specialist agenc0 created b0 legislature to adinister that legislationA "u(lic Service Servi ce 'lliance of Canada v. Canadian 0ederal "ilots 'ssociation 'ssociatio n =IIs abilit0 to see1 an0 reed0 ; stes fro historic role of guardian of public interest#A !"ception - atepa0ers are able to to challenge *alidit0 of unicipal b0la%s regarding e"penditure of public fundsA 9hat are obligations on ' if the0 are as1ed to lend nae to relator proceedings 9hat if ' ' refuses

3<

T%o e"trees fro a polic0 perspecti*e: 6A eneral public interest in legalit0 of adin action and an0one should be able to bring that illegalit0 to the attention of courts and =A Litigation onl0 a*ailable to those %ho are direct targets of indi*iduali2ed adin decisiona1ing and %hose financial or propert0 interests are affected in a substantial %a0 (on this *ie% ;' is onl0 one %ho can bring public interest proceedings#A Canada has adopted iddle path (although until recentl0) closer to =A than 6A# .ote ost cases do in*ol*e indi*iduals %ho are affected directl0 b0 decisiona1erA The difficulties arise %hen 0ou o*e out of those casesA !gA +nterests of neighbouring propert0 o%ners %hen propert0 is re2oned ; %hat t0pe of interest is enough to gi*e the standing 0inla v. Canada #,inister of 0inance$  6 argued that its deolition of the stricture %as Dustified b0 a *alid order and %as not actionable trespassA 8alidit0 of the order %as not the direct target of the proceedings ; it %as raised indirectl0 as part of the board>s defence of the tort of trespassA ? 'lso see this in prosecution for *iolation of a b0la% or regulation %hen & challenges *alidit0 of the statutor0 instruent) eAgA !. v. SharmaA SCC has ade it clear  that collateral attac1 is not a atter of right but should be carefull0 circuscribed b0 the use of Dudicial discretion (Consolidated $a0burn#

H

irect Attac:

7ntil recentl0) substanti*e scope of Dudicial re*ie% or adinistrati*e action %as dictated b0 rules on the a*ailabilit0 of the *arious public la% reedies ; an0 of %hich %ere arcane) cople" and had no polic0 basisA Steps %ere ta1en to siplif0 Dudicial re*ie% and the a*ailabilit0 of public la% reediesA SecA= of the Federal Court 'ct creates a single application for Dudicial re*ie% encopassing the e"isting reedies of Dudicial re*ie% and apparentl0 ser*ing as a replaceent for those reediesA +n large easure the species of relief specified in this odern legislation do no ore than codif0 the successful outcoes of a successful application for the forer r eedies: ? Certiorari %ould Euash or nullif0 a position ? Prohibition and the inDunction %ould prohibit or enDoin action ? $andaus %ould direct the perforance of duties ? &eclarations %ould declare rights as bet%een the partiesA Putting all these odes or relief under one Dudicial re*ie% reed0 eant that difficulties of choosing the correct reed0 %as reo*edinii2ed) pro*ided the rele*ant 'ct>s thresholds %ere crossedA Statute also allo%s Court to refer atter bac1 for reconsideration in accordance %ith specific findings or directionsA This is a significant reedial addition to Dudicial re*ie% po%ers of the courtA eneral a*ailabilit0 of interi relief is also an ipro*eent ; pre*iousl0 it %as una*ailable in support of a prerogati*e reed0 or b0 %a0 of declarationA Such statutor0 refors or codes ha*e not eant the disappearance of all reedial probles and uncertaintiesA Can court engage in partial Euashing or setting aside of decision Can it *ar0 a decision or order rather than Euash it Courts ha*e %or1ed to find creati*e and sensiti*e solutions to reedial dileasA 7sed Charter as the basis soetiesA Dagenais v. Canadian Broadcasting Corp.  the court held that certiorari %as a*ailable not onl0 to Euash but also to *ar0 a publication ban issued b0 a count0 court DudgeA /ased decision on s =H(6# of Charter ; those %ith a Charter clai a0 “obtain such reed0 as the court considers appropriate and Dust in the circustances”A Dagenais  is significant as it affirs principle that Charter challenges can be raised in regular

 Dudicial re*ie% proceedings and also should be raised %ithin that frae%or1) %here feasible) rather than b0 reference to an independent species of relief created b0 s=H(6#A /ut do the statutor0 regies of Dudicial re*ie% allo% a person to see1 a bare declaration that an adinistrati*e regie breaches the CharterA Cof' in Ontario held in !e Service mploees

J

&nternational nion: >ocal J+5 that there %as no roo for a bare declaration under the Ontario

5udicial e*ie% Procedure 'ct that pro*isions in a regulator0 statute infringed the CharterA This eans bare declarations ust be sought under those statutor0 pro*isions or rules of court that establish the general Durisdiction of the court to grant declarator0 reliefA *!!ect o! Certiorari 2elie!

+n soe instances the a%ard of relief in the nature of certiorari or prohibition (or a declaration or an inDunction for that atter# %ill ha*e the effect of lea*ing the authorit0 under attac1 %ith no residual Durisdiction in the atterA !gA +f a pro*incial labour relations board is prohibited fro proceeding in a atter because the eplo0ent relationship coes %ithin federal Durisdiction) the board has been e"cluded copletel0 fro that atterA 4o%e*er) Dudicial re*ie% does not al%a0s underine the %hole authorit0 of the decision a1er under attac1A Thus) the Euashing of a certification on the basis of the ipropriet0 of a prehearing *ote in !e >ittle Narrows 1psumCo. >td  did not bring into Euestion the general  Durisdiction of the board to consider the application of the bargaining unit for certificationA 'ppeal di*ision held that the effect of certiorari %as to %ipe out the certification order and the prehearing *ote but the application for certification still not dealt %ithA /oard had a dut0 to proceed  ; andaus t0pe relief onl0 necessar0 if board refused to actA /oard did not ha*e to start o*er) rather resue at the point the error %as ade ; sensible approachA +n 1ill v. Canada #,inister of mploment and &mmigration$ ) an +igration 'ppeal /oard decision %as set aside and the atter referred bac1 to boardA /oard decided that it did not ha*e authorit0 to reopen a Con*ention refugee hearing that had been tainted b0 breaches of the rules of natural Dustice of secA =(e# of the /ill and secA 3 of the CharterA The Federal Court of  'ppeal held that e*en absent a specific statutor0 authorit0 to reopen or rehear a case) a tribunal in such circustances had the iplied authorit0 to do so and rectif0 such %rongsA Cf 25)IM2 NW9 >td. v >a(our Standards /fficer  %here .9 Territories Supree Court relied on

the absence of a po%er to rehear in refusing to order the rehearing of a labour standards board decision that had been tainted b0 breaches of the rules of natural DusticeA !ffect %as to preclude the adDudication of the eplo0ees> clai for %ages %here the initial failure to afford natural  Dustice to their eplo0er %as not their faultA Limits on Mandamus 2elie!  %aravos v. Cit of 9oronto

Laidla% 5' cited 4igh>s !"traordinar0 reedies: “$andaus is appropriate to o*ercoe the inaction or isconduct of persons charged %ith the perforance of duties of a public natureA /efore the reed0 can be gi*en) the applicant for it ust sho%: 6A “' clear) legal right to ha*e the thing sought b0 it done) and done in the anner and b0 the person sought to be coercedA”

G

=A “The dut0 %hose perforance it is sought to coerce b0 andaus ust be actuall0 due and incubent upon the officer at the tie see1ing the relief) and the %rit %ill not lie to copel the doing of an act %hich he is not 0et under obligation to perforA” @A That dut0 ust be purel0 inisterial in nature) “plainl0 incubent upon an officer b0 operation of la% or b0 *irtue of his office) and concerning %hich he possesses no discretionar0 po%ersA HA There ust be a deand and refusal to perfor the act) %hich it is sought to coerce b0 legal reed0A &efinitions of abo*e categories ? $inisterial ; if he eant that andaus %as onl0 a*ailable %ith respect to adinistrati*e rather than Dudicial and Euasi- Dudicial functions) then his *ie% is not in line %ith present authorit0A ? Public ; not all po%ers created b0 statute can be considered “public” for the purposes of Dudicial re*ie% ; note the 4alifa"-&artouth eal !state /oard case - it a0 be that there are “public” duties that e"ist other than b0 *irtue of statute or ro0al prerogati*e ; eAgA e $orris and $orris 5udge issued andaus to copel the defendant to coence proceedings before a 5e%ish religious court for the recognition of his ci*il di*orceA ? Clear Legal ight to Perfor the &ut0A This is an o*erstateent in current practice in that it ephasi2es dut0 o%ed to an applicant personall0 rather than as a eber of a %ider classA ? &uties ; it should be noted that not all statutor0 pro*isions stated in ters of “duties” %ill gi*e rise to a clai of enforceent b0 the publicA Soeties the0 %ill be stated at such a le*el of generalit0 as to a1e it clear that the pro*ision is for the guidance of the statutor0 authorit0) and is not intended to confer rights on ebers of the publicA eAgA) ?ictoria niversit of Wellington Students 'ssociation &nc. v. Shearer #1overnment "rinter$  ; 'ssociation attepted through andaus to copel S to print a consolidated *ersion of Code of Ci*il ProcedureA Statutor0 pro*ision stated that all 'cts reEuired to “be procurable b0 purchase at the officers of the o*t Printer”A 4eld that this %as dut0 of the cro%n and not copellable b0 andausA ; iAeA general organi2ational dut0 of the printer and not intended to confer rights on the publicA Cf nion of Northern Workers v. Aewell  ; 'pplication for andaus order copelling inister to

appoint ebers of an occupational health and safet0 board ; %ith statutor0 resp to ad*ise inister on safet0 in inesA Court held that applicant had standing to see1 such relief and that appointent of ebers %as statutoril0 andated e*en though 'ct reEuired a process to be set up for appointent of certain ebersA 'lthough the process hadn>t been set up) the court held that andaus relief %as a*ailableA &istinguished Kara*os on basis that a *alid foral deand %as not a necessar0 prelude to granting of relief in a situation that %as apparent for a nuber of  0ears and %here it %as clear to inister that the appointent of the board %as soughtA

3

$andaus is soeties sought in conDunction %ith certiorari: ? Certiorari to Euash a decision alread0 ta1en) and andaus to copel its reta1ing in accordance %ith the la%A 7nless case in*ol*es non-Durisdictional error of la% or breach of procedural fairness) use of certiorari is probabl0 redundant in such casesA $andaus is theoreticall0 a*ailable alone as person %ho brings coplaint alleges that the adinistrati*e bod0 has a dut0 to ta1e a decision according to the la% and this dut0 reains unfulfilled) not%ithstanding an unla%ful attept b0 the bod0 to ta1e the decisionA

"nterim and "nterlocutor( Relief and Sta(s of Proceedings +n Dudicial re*ie% proceedings) an application for Dudicial re*ie% generall0 does not ha*e the effect of sta0ing proceedings in the underl0ing decision a1ing processA e Cedar*ale Tree Ser*ices LtdA and Labourers> +nternational 7nion) the Ontario Cof' held that a tribunal %as not obliged to halt its proceedings after being ser*ed %ith an application for certiorari and prohibition  ; halting the proceedings %as a atter of courtes0 and coon sense for the statutor0 authorit0 rather than a legal obligationA Counications) !nerg0 and Paper%or1ers 7nion of Canada *A .ati*e Child and Fail0 Ser*ices of Toronto) Ontario Labour elations /oard deterined for itself %hether to suspend its proceedings %hile a 5 %as pendingA Statute ; P!+ 5udicial e*ie% 'ct e"pressl0 pro*ides that the launching of an application for 5 under the 'ct does not autoaticall0 sta0 further proceedings or acts %hose *alidit0 depends on the decision being challengedA Can ipl0 this in other statutes as %ellA /ut conseEuences of the court being unable to a1e an order to pre*ent deportation of a Con*ention refugee claiant during a Charter clai are disastrousA The odern 5 regies ha*e e"press pro*ision for the a%ard of interi relief to halt the adinistrati*e process ; sta0 of proceedings) interlocutor0 inDunction) order under rele*ant legislation or rules on 5 procedureA These pro*isions o*ercoe an apparent liitation of the prerogati*e reedies ; interi relief %as not a*ailable as an adDunct to the see1ing of such relief (obliges those needing interi relief  to proceed b0 %a0 of an action for an inDunction#A +n general) the a*ailabilit0 of interi relief to halt the adinistrati*e process) %hether in the for of a sta0 or interlocutor0 inDunction or under the rele*ant Dudicial re*ie% procedure legislation or rules) tends to be subDect to the sae general principles that go*ern the a*ailabilit0 of interi inDunctions in the pri*ate doainA 4o%e*er) the public interest in the efficient and tiel0 e"ercise of statutor0 po%er loos as an e"plicit consideration in the balancing of the *arious interests in*ol*ed and ser*es to differentiate these 1inds of cases fro ost situations in %hich interlocutor0 relief is sought in pri*ate litigationA



$oreo*er) in an0 cases) there is also the added diension of Charter interests being at sta1e) %hich ser*es to add a counter*ailing consideration in the e"ercise of the court>s discretion o*er the a*ailabilit0 of such reliefA  'nother potential use of interlocutor0 relief has eerged nael0) the see1ing of interlocutor0 relief to pre*ent actions being ta1en b0 those subDect to that process pending the conclusion of a hearing or in*estigationA

Sta(s of the Administrati!e Process ,anito(a #'ttorne 1eneral$ v. ,etropolitan Stores #,9S$ >td.

The Discretion of the Court The courts retain an o*erriding discretion to den0 reliefA Coon grounds for refusal include e"istence of alternati*e a*enues of recourse (statutor0 right of appea l or ore con*enient court reed0# preaturit0 and its opposites) dela0 and ootness) lac1 of practical utilit0) isconduct of applicant) %ai*er and soeties) balance of con*enience or public interestA /ases for denial that are rooted in concerns for the integrit0 and functioning of the adinistrati*e process raises issues dealt %ith throughout the course) in particular the e"tent to %hich the clai that the adinistrati*e process has for deference and institutional respect fro the courts Soe of the discretionar0 grounds for relief (isconduct) %ai*er and dela0# in*ol*e Dudicial assessent of the action of the applicantA Lin1s to la% of standingA enerall0 - onl0 those %ho ha*e suffered specified hardaage a0 see1 5 e*en if Canadian la% recognises categories of public interest standingA The discretionar0 grounds for the refusal for relief ha*e the potential to legitiise unla%ful adinistrati*e action and part of the obDecti*e in this chapter is to raise Euestions as to %hen it is appropriate for the courts to ta1e that ris1 of allo%ing an unla%ful decision or course of action to achie*e de facto legal statusA Concepts of “*oidness” and “nullit0” are generall0 relati*e rather than absoluteA eAgA in ,anito(a >anguage !ights  Case ; court did not *oid all la%s that %ere not drafted bilingual ; allo%ed the to be deeed *alid until $anitoba re-legislated bilinguall0A Sparvier v. Cowessess &ndian Band No. 3M

? !lection of chief of bandA 'ppeal tribunal ordered ne% election on the basis of irregularities in *oting processA &ifferent chief elected but also successful challenge to order of appeal tribunalA To inii2e disruption to 5udge left the second election undisturbed until the ne% appeal had been heardA &id this b0 postponing the Euashing order until either the original election %as upheld or the da0 after the election should the appeal tribunal order another electionA

<

.eed reedial fle"ibilit0 to diinish disrupti*e effects of 5A Soeties courts ha*e esche%ed use of discretion at the reedial stageA Cardinal * &irector of Kent +nstitution ; SCC reDected arguents for refusing relief for breach of rules on natural  Dustice based on proposition that the outcoe %ould ha*e been the sae e*en if rules on natural Dustice %ere coplied %ithA Pragatic approach ; breach of rules on natural Dustice ight not render a decision *oidA .ote: coentators ha*e highlighted a proble of reigning in Dudicial reedial discretion and subDect it to appropriate ordering principles %hile at the sae tie ensuring that the Dudges ha*e sufficient reedial fle"ibilit0 and roo for creati*el0 dealing %ith the cople"ities of regulator0 structures and specific fact situationsA +s the la% %ell-ser*ed b0 current principles go*erning appeal court inter*ention in the e"ercise of  reedial discretions b0 first instance Dudges +n Canadian "acific >td. v. ,ats-ui &ndian Band ) SCC stated: ? This discretionar0 deterination should not be ta1en lightl0 b0 re*ie%ing courtsA +t %as 5o0al 5ANs discretion to e"ercise) and unless he considered irrele*ant factors) failed to consider rele*ant factors) or reached an unreasonable conclusion) then his decision should be respectedA To Euote Lord &iploc1 in Hadmor "roductions >td. v. Hamilton ) 6td. v. ,ats-ui &ndian Band 

? 9hether applicants) contesting propert0 ta") could proceed directl0 to Federal Court b0 application for 5 and b0pass appeals tribunals established b0 the ta"ing +ndian bands b0 %a0 of b0la%A ? The Euestion %as %hether the trial Dudge e"ercised proper discretion in refusing to entertain the respondents> application for Dudicial re*ie%) %hich then forced the to pursue their Dudicial challenge b0 eans of appeal procedures established b0 the +ndian  'ctA ? The presiding Dudge held that a *ariet0 of factors should be considered b0 courts in deterining %hether the0 should enter into Dudicial re*ie%) or alternati*el0 should reEuire an application to proceed through a statutor0 appeal procedureA (The court ust al%a0s bear in ind Parliaent>s obDecti*e in creating the +ndian ta"ation po%ers as %ell#A ? These factors include: the con*enience of the alternati*e reed0) the nature of the error) and the nature of the appellate bod0 (iAeA) its in*estigator0) decision-a1ing and reedial capacities#A ? $ust consider the adeEuac0 of the statutor0 appeal procedures established b0 the bands and not sipl0 the adeEuac0 of the appeal tribunals ; noted that bands pro*ided for appeals fro the tribunals to the Federal CourtA ? The Dudge held that the original Dudge>s findings %ere not unreasonableA 'll he had to decide %as %hether it %as an adeEuate foru) not if it %as a better foru than the courtsA ? 4o%e*er) the trial Dudge failed to ta1e into account the lac1 of the +ndian tribunal>s lac1 of independenceA

Statutor( A##eal to the Courts enerall0) Canadian Courts ta1e the position that if the grounds on %hich the applicant for 5 is rel0ing could ha*e been raised in the conte"t of a statutor0 appeal) the application %ill be disissed ; ,ilner "ower &nv. ? 'l(erta nerg and tilities Board  td. v. d de Wolfe 9rucking >td.  (6s e"pertise or raison d>[tre) this suggests) although it is not conclusi*e in itself) that the legislature did not intend to reser*e the e"clusi*e authorit0 to rule on the *alidit0 of the order to that tribunal# and (J# the penalt0 on a con*iction for failing to copl0 %ith the orderA ? This reflects the general approach aied at deterining the legislature>s intention as to the appropriate foruA

s illicit dealings %ith the 't1inson *illage forced the court to den0 the issuance of the order of Dudicial re*ie%) not%ithstanding the fact that 4oes had a right to be heard but did not recei*e that opportunit0A ? 4oe" sought throughout proceedings to a*oid the burden associated %ith the subdi*ision of the landsA +n preliinar0 stages of application for 5) it too1 inconsistent and contradictor0 positionsA Sought to put its land be0ond reach of unicipal regs b0 chec1erboardingA

2ai!er On occasion relief a0 be denied to an applicant on the basis of %ai*er or acEuiescence (1no%ing 0our rights but not enforcing the#A $ost coonl0 occurs %here defect coplained of is breach of rules of natural Dustice or biasA 4alifa"-&artouth eal !state /oard one of grounds for denial of relief %as failure of applicants to obDect at the hearing to the lac1 of notice on one of the charges) this being the basis of the application for certiorariA &angerous to participate in a hearing %ithout at least obDecting %hen 0ou belie*e the decision-a1er is transgressing the rules of Dustice in soe %a0A /reach of rules of natural Dustice is regarded as a categor0 of Durisdictional error and raises soe theoretical probles %ith using %ai*er or acEuiescence as a basis for denial of reliefA 's %ith the ordinar0 courts) Durisdiction cannot be conferred on statutor0 authorities be consent or acEuiescenceA 4o% can 0ou e*er Dustif0 allo%ing %ai*er or acEuiescence to defeat allegation of breach of rules of natural Dustice

'alance of Con!enience !ssentiall0) the refusal of relief because the applicant had other a*enues of recourse a*ailable or on the basis that there %as a chance that the copletion of the proceedings b0 the tribunal %ould eliinate the applicant>s concerns is based on the preise that it is ore con*enient to use alternati*e eans of sol*ing the proble before) or as a substitute for) see1ing Dudicial re*ie%A ,o(il /il Canada >td. v CanadaNewfoundland /ffshore "etroleum Board  6t cancelled the pri*atisation contract and passed legislation to nullif0 deal and den0 access to 5A Consortiu actuall0 got declaration that go*>t acted in breach of contractA +n tort) there is Dudicial acceptance of the need to appl0 different or odified standards to the liabilit0 of go*tsA For there to be tort liabilit0 on the part of a statutor0 authorit0) the plaintiffs ust be able to fit their case %ithin a 1no%n head of tort liabilit0A +n Cooper v. Board of Works for Wandsworth