Administrative Minor F05

8/12/2019 Administrative Minor F05

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ADMINISTRATIVE LAW SUMMARY

Bezair v. Windor Roman Catholi Se!arate Shool Board "#$$%&' $ (R ")d& *)* "Div.Ct.&......................................................................................................................................*

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PART I INTRODUCTION

Appeals

rights of appeal are purely the creation of statute

Judicial Review Procedure Actsee full NOTES

Prerogative Writsremedies requested whe it reviewed gov!t act "su#sumed i JRPAct$

o certiorari % to quash or set aside a decisio& review certait' of decisio

o prohi#itio % to order a tri#ual ot to proceed i a matter&li(e a i)uctio%

prevet gov!t from actig

o madamus % to order the performace of a pu#lic dut'coverse% force the gov!t

to act*

o ha#eas corpus % issues to determie the legalit' of a perso+s detetio% whether

#' a private perso or pu#lic official% with a view to orderig the release of the

ulawfull' imprisoed*

PART II ADMINISTRATIVE PROCEDURES

(i) Introduction

T,E R-.E O/ .AW AN0 T,E A012N2STRAT23E STATE

Procedures4 5ENERA. 2NTRO0-6T2ON

audi alterampartem "liste to the other side$% ad util recetl'% it uam#iguousl'

icluded the etire rage of commo law procedural rights*

2ssues of cocer

o

the cocept of 7legislative7 as opposed to 7admiistrative7 ad 7)udicial7fuctios&

o the ma(ig of 7rules7 ad 7polic'7 as opposed to the resolutio of disputes&

o the 7o8fial7 or 7prelimiar'7 as opposed to 7fial7 ature of some decisios&

o the descriptio of the iterest at sta(e as #eig a 7privilege7 as opposed to a

7right7&

o the pull associated with 7propert'7 claims as opposed to other t'pes of 7iterest*7

(ii) The Duty of Firne!!" Sco#e of A##$iction

() %i!toric$ O&er&ie'/airess4 The Threshold,istorical Overview

Natural Justice

o audi alteram partem4 right to a oral hearig

o otice

o cousel4participatory rights, witnesses, cross-examinations, submissions,

impartial decision-maker

curret ame for Natural Justice is procedural )ustice

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commo law rights "icludig atural )ustice$ ca #e overridde #' explicit statute of

legislature

T,E TRA02T2ONA. 0O6TR2NE AN0 T,E APPEARAN6E O/ /A2RNESS

Cooper v. Board of Works for Wandsworth District !"#$%, !&$ '( &!& 'ng.C)%

ER.E 6J4

o *atural +ustice does not only apply to strictly +udicial actsbroadeneddo not

need to consider whether it was +udicialuasi-+udicial to determine whether

natural +ustice applies

o Natural )ustice requires otice ad a opportuit' to #e heard

/he district board must do the thing legally 0 there must #e a resolutio

9otice:& ad% if there #e a #oard% ad a resolutio of that #oard% 2 have

ot heard a word to show that it would ot #e salutar' that the' should

hear the ma who is to suffer from their )udgmet #efore the' proceed to

ma(e the order uder which the' attempt to )ustif' their )udgmet #efore

the' proceed to ma(e the order uder which the' attempt to)ustif' their act*

o No harm to #oard to hear 6ooper% #ut great harm to 6ooper

o 2 thi( the appeal clause would evidetl' idicate that ma' e;ercises of the

power of a district #oard would #e i the ature of )udicial proceedigs

NOTES

o rare e;ample of collateral attac(* The remed' #eig sought is damages% ot

)udicial review

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,O.02N5

Supreme 6ourt re)ected otio that certiorari ca #e used to review ol' )udicial or quasi8

)udicial fuctios% which appeared to e;pad the limits of certiorari to iclude

eforcemet of procedural requiremets geerall'*

no separate set of rules that constituting fairness vs. natural justicerather there is a

spectrum

>ut cofied4o the remed' #e grated ol' i cases of serious i)ustice

9*( v. Coopers < =ybrand, 2!3435 ! 7C( &3> Can.%

criteria "o8e;haustive$ for determiig whether a decisio or order is oe required #'

law to #e made o )udicial or quasi8)udicial #asis*

(1) Is there anything in the language in which the function is conferred or in

the general context in which it is exercised which suggests that a hearing is

contemplated?

(2) oes the decision or order directly or indirectly affect the rights and

o!ligations of persons?(") Is the adversary process involved?

(#) Is there an o!ligation to apply su!stantive rules to many individual cases

rather than$ for example$ the o!ligation to implement social and economic policy

in a !road sense?

Cardinal v. Director of ?ent 6nstitution. 2!3">5 ; 7C( #&$

The deial of a right to a fair hearig must alwa's reder a decisio ivalid% whether

or ot it ma' appear to a reviewig court that the hearig would li(el' have resulted i

a differet decisio*

.e0ai4 ?0ut' of fairess lies i ever' pu#lic authorit' of admiistrative ature that is

ot legislative% that affects a rights% privileges% or iterests idividual@

o uty of fairness applies where it affects an individual%s

rights$

privileges$ or

interests of individual$

?night v. 6ndian 1ead 7chool Division *o. !3 2!33:5 6 7C( #>$ 7ask.%

5ENERA. 0-T O/ /A2RNESS

T,E NAT-RE O/ T,E 0E62S2ON

-. There i! no $on*er need/ e0ce#t #erh#! 'here the !ttute ndte! it/ to

di!tin*ui!h et'een 1udici$/ +u!i21udici$ nd dini!trti&e deci!ion! .

3fo$$o'in* Nicho$!on45. Deci!ion! of $e*i!$ti&e nd *ener$ nture cn e di!tin*ui!hed in thi!

re!#ect fro ct! of ore dini!trti&e nd !#ecific nture/ 'hich do not

enti$ !uch duty

6. A deci!ion of #re$iinry nture 'i$$ not in *ener$ tri**er the duty to ct

fir$y/ 'here! deci!ion of ore fin$ nture y h&e !uch n effect

T,E RE.AT2ONS,2P >ETWEEN T,E E1P.OER AN0 T,E E1P.OEE

o 0o!t eed to show )ust cause% #ut requires the admiistrative #od' to give the

officer holder reasos for the dismissal ad a opportuit' to #e heard*

9Nicholso:% 9sice it is a pu#lic positio:

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T,E 21PA6T O/ T,E 0E62S2ON ON T,E E1P.OEE

o &here is a right to procedural fairness only if the decision is a significant one

and has an important impact on the individual.

-N0ER T,E E0-6AT2ON A6T

o ,avig come to the coclusio that there e;ists a geeral right to procedural

fairess% the statutor' framewor( must #e e;amied i order to see if it modifies

this right 'rocedural fairness is a common law right$ and statute may modify

this right

-N0ER T,E E1P.O1ENT 6ONTRA6T

o it will be presumed, as was the case with the statute, that the parties intended

that procedural fairness would apply and it will take an explicit or clearly

implicit provision to the contrary to override this presumption

T,E 6ONTENT O/ T,E 0-T TO A6T /A2R.

o 7oth the ru$e! of ntur$ 1u!tice nd the duty of firne!! re &ri$e

!tndrd!. Their content 'i$$ de#end on"

the circu!tnce! of the c!e/

the !ttutory #ro&i!ion nd

the nture of the tter to e decided.o 7ince the respondent could be dismissed at pleasure, the content of the duty of

fairness would be minimal ad 2 would ted to agree that otice of the reasos for

the appellat >oard+s dissatisfactio with the respodet+s emplo'met adaffordig a opportuit' to #e heard would #e sufficiet to meet the requiremet

of fairess*

APP.26AT2ON4 6O1P.2AN6E W2T, T,E 0-T TO A6T /A2R.

o the dut' to give reasos eed ot ivolve a full ad complete disclosure #' the

admiistrative #od' of all of its reasos for dismissig the emplo'ee% #ut

rather the commuicatio of the #road grouds revealig the geeral su#stace of

the reaso for dismissal

o 2t was foud that through the egotiatio sessios #etwee the respodet+s

attore' ad the appellat >oard% the respodet was made full' aware of thegrievaces of the >oard ad had ample opportuit' to preset his side of

the stor'*

o therefore coclude that the respodet was properl' dismissed ad that his actio

must fail*

SOP2N=A J4

o @s a general rule, this category does not attract the duty of procedural

fairness because the employer can terminate the employment without cause and

without giving any reason

o 2 her reasos% m' colleague cocludes% at BCC% that a commo law dut' of

fairess arises from 7the ature of the decisio% the relatioship e;istig #etwee

the respodet ad the appellat >oard ad the impact o the respodet of the

impuged decisio*7 /his precedes her detailed examination of the statute

o /he correct approach reuires an examination of the statute, regulations and

contract to determine whether the respondent has brought himself within the

exception to the general rule that an office terminable at pleasure does not

attract the duty of fairness. /o do so, provisions of the governing instruments

must be identified which specifically or by implication point to a duty of fairness*

E1ER5EN62ES

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6mportant the action in uestion is interim only and is open to reassessment in the

context of a subseuent hearing.

(c) 8iittion! of the Sco#e of the Duty" Deci!ion! of the $e*i!$ti&e nd*ener$ #o$icy nture

Duasi8)udicial888888888888888888888888888888888888888888888888legislative polic'

9artineau2!3":5 27C(5

A #ure$y ini!teri$ deci!ion/ on rod *round! of #u$ic #o$icy/ 'i$$ ty#ic$$y

fford the indi&idu$ no #rocedur$ #rotection

Pu#lic #odies e;ercisig legislative fuctios ma' ot #e amea#le to )udicial

supervisio

W,AT 2S A .E52S.AT23E PO.26 0E62S2ON% AN0 W,AT .E3E. O/ /A2RNESS TO

>E APP.2E0

-) the ore *ener$ the i#ct of the deci!ion/ the ore $i9e$y it i! to e $e*i!$ti&e

o i! the i#ct of the deci!ion diffu!e nd ffectin* rod !#ectru of the

#u$ic in *ener$$y undifferentited nner/ or !#ecific in effect.

5)ho' i! the deci!ion to e de:doe! it $oo9 to #o$icy or to d1udicti&e #rocedure

Canada @A% v. 6nuit /apirisat of Canada 2!3":5 7C(

RAT2O

;u!t ecu!e it '! n ct of cinet (*o&ernor in counci$)/ dn< en it '! iune

fro 1udici$ con!idertion:Any ct of =IC hd to co#$y '< !ttute 1ust loo( at the spectrum agailoo( at the ature of the power

o 6s it simply a dispute between parties, or a polycentric decision.

o Are the' loo(ig at the rights #etwee idividuals or are differet cosideratios

ivolved*

To deterine 'hether it i! #o$icy2deci!ion/ $oo9 to the !ttutory !chee

o Nture of Deci!ion"

8oo9 t 'hether the !u1ect tter ffect! nrro' *rou# of

indi&idu$!

8oo9 t 'hether it i! di!cretionry deci!ion

o Nture of Deci!ion2M9er

Cinet:!#eci$i>ed ody of #o$icy29er! Was!t )ust a ad)udicative factit was a #road #ased polic' decisiopol'cetric issue

ad #etter to loo( at the miister!s specialiFed staff

/his is not the kind of decision that attracts protection of procedural fairness since it was

a legislative decision

o no need for cabinet to give any reasons for re+ection, or to hold any hearing

1omex 7CC, !3":%

026=SON "disset$

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o Bylaw was not of general applicationit was targeted at 1omex in particular,

and it interfered w their property rights

o *ot that municipality couldnt make the decision, but that because it was

targeted, it couldnt be called legislation

o =ittle or no procedural protection for legislative policy decision, whereas the

+udicialadministrative decision will have substantial protection

o

6ourt wet #ac( to 1artieaurights% #eefits ad iterestso Not )ust a #'law agaist all citiFes% rather at a specific group*

o At miimum% ,ome; should have (ow that the' were goig to have a #'law

eacted

>ut the result ma' have #ee )ust the same fiall'

Just eed a opportuit' to #e heard

o ,ome; 0id ot get remed'% sice it was discretioar'the #uilder #ehaved

poorl'

ESTE"ma)orit'$

o Statute does ot provide otice requiremets

o &he !ylaw represented the culmination of an inter partes dispute on

adversarial lines !etween omex and the municipality therefore this decisionwas not legislative$ !ut rather uasi*judicial

o attracts priciple of otice ad cosequet doctrie of audi alteram partem

PO.2681A=2N5

Bezair v. Windor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 (iv. Ct.)

6ourt said there was a level of fairess that applied

5uidelie Polic' said that >oard will follow the pu#lic cosultatio e;pectatios

7ince neither 9inisters nor boards own procedural guideline followed there was a

denial of procedural fairness

)ublic consultation is condition precedent to a valid decision*

(e )embroke Civic 1ospital v. 8ntario 1ealth 7ervices (estructuring Commission

,O.02N54 This is political decisioo procedural fairess

Duty to consult public and other affected groups, but it was only reuired to make policy

decision it was not to act as an ad+udicator

0G eed to have procedural fairess for polic' decisio

Right to #e a#le to Hmeet the case! applica#le to adversarial decisio% ot to pol'cetric

polic' decisio ma(ig eterprise

(d) Intere!t! Protected y the Duty of Firne!!

(' Webb and 8ntario 1ousing Corporation 2!34"5 28nt. [email protected]

2SS-E4 What happes whe gov!t aget tries to limit or retract a right

She was aware of the pro#lems ad she had a opportuit' to respod to those pro#lems

this satisfied the 0O/ owed to her

+hen a person applies for housing$ the person is not entitled to procedural fairness

!ecause it is not a right$ rather it is a privilege,!enefit.moreover$ the - is not

adjudicative at all

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/ut when the government !estows this !enefit on a person$ then they are entitled to

procedural fairness rights (to a limited degree) when the government tries to retract the

privilege.

2f a #eefit is retracted% the there is more importace attached tha a perso appl'ig

see We## case

Canadian @ssociation of (egulated 6mporters v. Canada @A% 2!33&5 ; C ;&4 C@%

,O.02N5 "6A$

6A reversed decisio ad said it was polic' ma(ig ad was a(i to legislatioo right

to ma(e su#missios

,eld priciples of procedural fairess are ot applica#le to quota polic' although the'

ma' #e to idividual decisios respectig grats of quotas*

o 0uggests that the !roader the affected group$ the more liely to !e a legitimate

policy decision. (from dissent in omex)

Statute did ot idicate that procedural fairess was iteded

o No idicatio i statute that pu#lic cosultatio is required*

o What applicat is see(ig is a pu#lic cosultatio process I ot cotemplated #'

statute

1utfield v. Board of ort 7akatchewan Aeneral 1ospital 2!3"#5 2@B C@5

,O.02N5

If the !oard affects the rights of an individual in a final decision$ then they are owed

the duty of fairness$ which will vary according to the significance of the right

o Although the court of appeal affirmed this decisio% it relied o arrower grouds

tha this*

While the respondent was under no duty to grant hospital privileges to an applicant, the

interests rights% of the applicant were sufficiently affected to impose procedural fairness

rightso Note that ,utfield did ot have a' rights here he was appl'ig for privileges

for the first timethere were procedural rights #ecause of the severe impact it

would have o his professioal reputatio*

Now cocered wG the iterest at sta(e ad whether it is feasi#le to protect this iterest

Protected private propert' rightspractice of a professio

o 0ecisios ivolvig reputatio are more protectio ",utfield$

=egitimate 'xpectation

+here there was no common law duty of fairness owedthere will !e a duty of

fairness owed when the person affected !y the decision*maer is led to !elieve that they

will have participatory rightsexpecting duties of fairness to apply

8E ##$ie! on$y to #rocedur$ ri*ht!/ not !u!tnti&e ri*ht!

ature of the !u!tnti&e intere!t4

o ?e"i referece to the applicat+s iterest i cotiued occupatio of

govermet housig$ ad

o %utfie$d"i referece to the applicat+s iterest i hospital admittig privileges

arisig from his traiig ad etr' ito the geeral practice of medicie% though


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iterestigl' this was ot see as geeratig legitimate e;pectatio% at least i

1c0oald J+s uderstadig of the term$

egitimate 3xpectation in anada4 an expectation of a hearing arising out of express

representations$ a practice of holding such hearings or a com!ination of the two.

2 each% S66 held that the grouds for successful ivocatio of the doctrie had ot

#ee made out*

8ld 7t. Boniface (esidents @ssn. 6nc. v. Winnipeg City%, 2!33:5 $ 7C( !!4: 9an.%,

Sopi(a o .egitimate E;pectatio4 the principle affords a party affected by the decision

of a public official an opportunity to make representation in circumstances in whichthere otherwise would no such opportunity. /he court supplies the opportunity to make

a representation 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*

(eference re Canada @ssistance )lan 2!33!5 ; 7C( >;> BC%

SOP2N=A J4

&here is no support in anadian or 3nglish cases for the position that the doctrine of

legitimate expectations can create su!stantive rights.o Where it is applica#le% it ca create a right to ma(e represetatios or to #e

cosulted% #ut ot a right of coset

,e saw it as procedural fairess applied to legislatio

o Rules goverig procedural fairess do ot appl' to a #od' e;ercise legislative

fuctios

o /urthermore% it is fudametal to our s'stem of govermet that a govermet is

ot #oud #' the uderta(igs of its predecessor*

RESTR26T2ONS 6ON6ERN2N5 P->.26 >O02ES

o @A #ure$y ini!teri$ deci!ion/ on rod *round! of #u$ic #o$icy/ 'i$$

ty#ic$$y fford the indi&idu$ no #rocedur$ #rotection/ nd ny ttc9

u#on !uch deci!ion 'i$$ h&e to e founded u#on u!e of di!cretion@

o 7pu#lic #odies e;ercisig legislative fuctios ma' ot #e amea#le to )udicial

supervisio7

Council of Civil 7ervice Enions v. 9inister for the Civil 7ervice, 2!3">5 @C $4& 'ng. 1=%.

.ord /raser of Tull'#elto said%

=egitimate, or reasonable, expectation may arise either from an express promise

given on behalf of a public authority or from the existence of a regular practice

which the claimant can reasonably expect to continue. ... 2 the preset case the evidece shows that% ever sice 56,D #ega i KLC% prior

cosultatio has #ee the ivaria#le rule whe coditios of service were to #e

sigificatl' altered* Accordigl' i m' opiio if there had #ee o questio of atioal

securit' ivolved% the appellats would have had a legitimate e;pectatio that the

miister would cosult them #efore issuig the istructio of MM 0ecem#er K*

urey v. (oman Catholic 7chool Board for Conception Bay Centre !33!%, ;@dmin. =( ;d% ;#$

*fld. 7C/D%

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the court reversed the )udgmet of Wells J4

on perusing the affidavits of ; of the !$ applicants for relief, the court was unable to find

any evidence that those deponents had believed that the past practice would be followed

in this instanceimplies that there must !e evidence of an actual a su!jective

legitimate expectation existed.

@ttaran v. Eniversity of British Columbia !33"%, & @dmin. =( $d% && BC 7C%. /

Re)ected

o the procedure was new and had been used only once previously0

o very few in the affected and complaining student body knew about it at the

relevant time.

o it was i the ature of a istructio to staff% ot a represetatio to affected

costituecies

Estoppel ad .egitimate E;pectatio

estoppel as a private law cocept4 with (owledge of the promise or assurace

i questio% the applicats acted to their detrimet i such a wa' as to ma(e it

iequita#le for the other part' to ow assert the strict letter of the law* Of course% )ust as private law estoppel is ow movig awa' from a' eed for proof of

actual detrimetal reliace% it ma' ot #e a#solutel' ecessar'% if the aalog' is

emplo'ed% to loo( for a'thig other tha a reasoa#l' held #elief that past practice will

#e followed*

9ount 7inai 1ospital v. Fuebec 9inister of 1ealth and 7ocial 7ervices% 2;::!5 ;7C( ;"!

Fue.%

o There is% i short% o eed to resort to the doctrie of legitimate e;pectatios to

achieve procedural relief*

o =egitimate 'xpectation does not allow substantive relief.

0* Promissor' Estoppel

o &he doctrine of legitimate expectations does not necessarily$ though it may$

involve personal nowledge !y the applicant of the conduct of the pu!lic

authority as well as reliance and detriment.

o ,owever this is ot a private law case* Pu#lic law estoppel clearl' requires

a appreciatio of the legislative itet em#odied i the power whose e;ercise is

sought to #e estopped* The legislatio is paramout* 6ircumstaces that might

otherwise create a estoppel ma' have to 'ield to a overridig pu#lic iterest

e;pressed i the legislative te;t*

(e) Non2Fin$ Adini!trti&e Action" Recoendtion! nd Deci!ion!

to Pro!ecute The dutie! of firne!! !hou$d not ##$y to $o'er $e&e$! 'hen there ##e$! re

$$o'ed t hi*her $e&e$

?i$$ $$o' for #rocedur$ #rotection! for non2di!#o!iti&e herin*! 'hen there re

!eriou! ne*ti&e con!e+uence! to the #er!on

o For e0#$e/ fct findin* y on$y occur t the $o'er $e&e$.

(e @bel and @dvisory (eview Board !343%, 34 D=( $d% $:& 8nt. Div. Ct.%0 affGd.

!3"!%, !!3D=($d%!:! 8nt.C@%

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At the hearig% the law'ers as(ed for disclosure of the reports give to the #oard*

5RAN5E J4

o the rules of atural )ustice should appl' otwithstadig that the proceedig will

result i a recommedatio ol' i cases such as thisde Smith tests4

o The te!t for non2di!#o!iti&e deci!ion!

o (1) &he importance of the decision for the applicant

Applicatio4 ol' opportuit' to avoid icarceratioideal caseo (2) the degree of proximity !etween the investigation and the 5final6 decision

and the exposure of the person invested to harm&he influence of the lower

decision on the final outcome

@pplication 1ere the proximity is greatThe secod test of de Smith is

easil' met whe oe cosiders the effect the recommedatio ad

its acceptace has o the freedom of the applicats*

ie* The recommedatios are usuall' followedcompels

protectio of rights

o &hat is$ loo at the nexus !w, the recommendation and the final decision&he

more liely that the lower level decision will affect the final decision$ and the

higher effect on the individual then more liely to have procedural fairnessrights

o 0isclosure4 That is ot however to sa' that the reports must ecessaril' #e

revealed* Normall' he should #e give the opportuit' of perusal* Oe ca

readil' imagie those reports cotaiig allegatios of fact detrimetal to the

applicat which could readil' #e refuted*

.ower dut' of fairessgive some opportuit' to ma(e su#missios

A//2R1E0 ON APPEA.

o O+0riscoll J disseted

#oard 7is ot su#)ect to review #ecause the #oard+s report*** does ot #id

the .ieuteat85overor

o The 6ourt of Appeal decided the )urisdictioal issue i favour of A#el ad

0ivisioal 6ourt a#out the procedures NOTES

o /his case allowed procedural protection even though it concerned a non-binding

report, and was an administrative rather than +udicial or uasi-+udicial decision.

o 0ispositio made i A#el* The outcome was ot a order for productio #ut

rather a quashig ad remissio #ac( for recosideratio of the procedural claims

made #' A#el ad his couselshows some deferece ad ot reviewed o

correctess stadard*

9asters Case 2!33&5 8ntario Court of Hustice Aeneral Division%, Divisional Court

&he existence of a general duty to act fairly depends on the consideration of the nature

of the decision to !e made !y the administrative !ody7 the relationship existing !etween

that !ody and the individual7 and the effect of the decision on the individual8s rights.o 1asters+ positio was more politicall' accouta#le ad more seior tha those

positios i*icholsonad?night*

o /urther% the Premier was ot actig pursuat to a statute #ut rather was e;ercisig

a prerogative to cosider revo(ig oe of his earlier appoitmets 9more

discretioar':

/he applicant was given an adeuate opportunity to know the allegations against him

and to state his case before the )remier considered the matteraware of allegations and

had opportunity to be heard.

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(iii) Con!titution$ Thre!ho$d!" 8ife/ 8ierty nd Security of

the Per!onB

The 6harter of Rights ad /reedoms

/he Charter and the Bill of (ights 7ources of )rocedural )rotection

Bill of (ights

* a% the right of the individual to life, liberty, security of the person and en+oyment

ofproperty, and the right not to be deprived thereof except by due process of law

M* o law of 6aada shall #e costrued ad applied so as to

o e% deprive of the right to a fair hearing in accordance with the

principles of fundamental +ustice for the determination of his rights and

obligations. federal statutes ol'

Charter

C* Ever'oe has the right to life% li#ert' ad securit' of the perso ad the right ot to

#e deprived thereof e;cept i accordace with the priciples of fudametal )ustice*

*ational @nti-)overty 8rganiIation v. Canada @ttorney-Aeneral% !33:%, #: D=( &th% 4!;

C@%

2 must agree with the appellat ad the iterveers that s* M"e$ of the 6aadia >ill of

Rights ca have o applicatio i this matter*

Charter

2t was held as earl' as K #' the Supreme 6ourt that sectio C have a su#stative as

well as a procedural compoet "Referece re >6 1otor 3ehicle Act% 9K: M S6R LB

">6$

o The ol' form of procedural discrimiatio that couts% therefore% is oe that has

the itetio or effect of discrimiatig agaist persos

As forsection !!ad its guaratees of 7a idepedet ad impartial tri#ual%7 of o

ureasoa#le dela' i the coduct of proceedigs% ad of presumptios of iocece% its

direct effect has #ee cofied to crimial proceedigs ad those with 7true

peal 7 cosequeces7

7ection 4

7ingh v. Canada 9inister of 'mployment and 6mmigration% 2!3">5 ! 7C(!44JCan.%

W2.SON J "0ic(so 6J ad .amer J cocurrig& Ritchie J too( o part i the )udgmet$

#%


13/68

2 summar'% 2 am of the view that the rights which the appellats are see(ig to assert are

oes which etitle them to the protectio of s* C of the 6harter*

o 2 am prepared evertheless% to accept for preset purposes that writte

su#missios ma' #e a adequate su#stitute for a oral hearig i appropriate

circumstaces*

o 9undamental justice must include procedural fairness

Uni!ed %&e n o##ortunity to 9e their c!e

o In particular$ I am of the view that where a serious issue of credi!ility is

involved$ fundamental justice reuires that credi!ility !e determined on the

!asis of an oral hearing./

2t seems to me that% as a matter of fudametal )ustice% a refugee

claimat would #e etitled to discover' of the 1iister+s case prior to

such a hearig*

o 2 am accordigl' of the view that the procedures for determiatio of refugee

status claims as set out i the 2mmigratio Act% KCB do ot accord refugeeclaimats fudametal )ustice i the ad)udicatio of those claims ad are thus

icompati#le with s* C of the 6harter*

>EETQ J "Este' ad 1clt're JJ cocurrig$4o 2t violates theprinciples of fundamental +ustice under s. ;e% of the Bill of (ights

to not allow an oral hearing in this case,

o /ut s. 2(e) does not impose an oral hearing in all cases&he most important

factors in determining the procedural content of fundamental justice in a given

case are

(1)the nature of the legal rights at issue and

(2)the severity of the conseuences to the individuals concerned. ...

o @lso, When there the case will turn on the findings of fact and credibility, need to

have the right to make oral submissions.

o E;tet of applicatio of priciple 0epeds o legal rights at issue ad

cosequeces to applicat

Chiare66i v. Canada 9inister of Hustice% 2!33;5 7C( 4!! Can.%

/A6TS

o As a result% 6 ad his cousel were e;cluded whe detailed evidece was give

#' the R61P as to 6+s ivolvemet i orgaiFed crime* While a summar' of that

evidece was later provided% it was without referece to the R61P+s sources of

iformatio*

,O.02N5

o ,owever% the state also has a cosidera#le iterest i effectivel' coductig

atioal securit' ad crimial itelligece ivestigatios ad i protectig police

sources*o 7ince he had

information that disclosed the investigation of his involvement in drug

trafficking and a summary of surveillance regarding the murder

allegation

the procedural opportunities to respond such as calling a witness or

cross-examining the (C9)

o and the competing interests at play 2security of informant5, 6 conclude that the

procedures followed by the (eview Committee in this case did not violate

principles of fundamental +ustice*

#)


14/68

5od#out v* .ogueuil "KKC% S6R$

/acts 4 6it' of .ogueuil made a coditio of emplo'met to live withi cit' #ouds% ad whe

respodet moved to aother muicipalit'% she was fired*2ssue4 Are muicipalities #oud #' the 6harter 0id this particular actio violate s* C of the6harter

,eld 4 Appeal upheld* es to #oth questios*

Re!trictin* n Indi&idu$! choice of re!idence ffect! her !. ri*ht! to $ierty

@uthorson =itigation Auardian of% v. Canada @ttorney Aeneral% 7upreme Court of Canada

Hudgment Huly !4, ;::$

,O.02N54

7ection ;e% of the Bill of (ights applies only to guarantee the fundamental +ustice of

proceedings before any court, tribunal, or administrative body that determines individualrights and obligations.

7ection ;e% does not impose upon )arliament the duty to provide a hearing before the

enactment of legislation.

The >ill of Rights protects ol' those rights that e;isted at the time of its passage i

KB* At that time it was udisputed% as it cotiues to #e toda'% that Parliamet had the

right to e;propriate propert' if it made its itetio clear*

RE6ENT 0E3E.OP1ENTS

5osseli

o S*C dG give protectio for su#sistece ad welfare rightso Procedural protectio dG appl' to ecoomic rights% icludig social welfare

1a' #e commo law procedural rights% #ut ot rights from 6harter s* C

6haoulli

o ,ealth care waitlist for surger'

o 0G violate securit' of perso

What life, liberty, and security of the person rights are protected by the CharterK

o 6ustod' matters

o 6rimial matters

o

1etal health matterso Priso disciplie

o Parole

o The courts #ega to icrease what was protected

Wilson v. BC medical services commission!3"" 2BC C@5

/A6TS

o New doctors were required to appl' for a practitioer!s um#er which allowed

them to #ill the provice

#+


15/68

o The tie/ #$ce/ nd #ur#o!e of #rctice cou$d e re!tricted

,O.02N5

o The $e*i!$tion '! not in ccordnce 'ith PF it '! !ed u#on the

##$iction of &*ue nd uncertin criteri nd $eft !u!tnti$ !co#e for

ritrry conduct

Blencoe v. BC 1uman (ights Commission ;::: 7CC

,O.02N51a)orit' "1c.achli% .!,0% 5othier% 1a)or% >astarache$4

Applicatio of 6harter

o &he harter applies to the actions of the /: . Otherwise% oe could have

tri#uals set up #' the govermet i order to avoid the 6harter*

o Furtherore/ !. cn e0tend eyond criin$ $'% at least where there is state

actio which directl' egages the )ustice s'stem ad its admiistratio*

=iberty 6nterest

o ;i!erty< is engaged where state compulsions or prohi!itions prevents freedom

from maing important and fundamental life choices.

o ,owever% the state has ot preveted > from ma(ig a' ?fudametal persoal

choices@*

o Therefore% the iterests sought to #e protected i this case do ot fall withi the

?li#ert'@ iterest protected #' s* C*

o urthermore, the s. 4 rights of Lliberty and security of the personM do not

include a generaliIed right to dignity.

Ps'chological Stress

o Oe does have a right to #e free from serious state imposed ps'chological stress

o in order for !tte2induced #!ycho$o*ic$ !tre!! to e rech of !ecurity of

the #er!on/ it u!t eet t'o re+uireent!"

the #!ycho$o*ic$ hr u!t re!u$t fro the ction! of the !tte nd

it u!t e !eriou!o ,ere% the ma)or harm to the respodet was caused ot #' the govermet #ut #'

the pu#licit' surroudig the allegatios themselves*

0ela' i the hearig4

o There is o costitutioal right outside of the crimial cote;t to #e ?tried@

withi a reasoa#le amout of time*

o The ma)orit' of the 6ourt of Appeal erred i trasplatig s* "#$ priciples set

out i the crimial law cote;t to huma rights proceedigs uder s* C*

o In order to de$y to e n u!e of #roce!! t for n dini!trti&e $'

!tnd#oint/ there u!t e #roof of !i*nificnt #re1udice (in n e&identiry

!en!e) 'hich re!u$t! fro n uncce#t$e de$y

o deterintion of 'hether de$y i! inordinte i! not !ed on the $en*th of

the de$y $one/ ut on contextual factors" conte0tu$ n$y!i!"

nture of the c!e nd it! co#$e0ity/

the #ur#o!e nd nture of the #roceedin*!/ nd

'hether the re!#ondent contriuted to the de$y or 'i&ed the de$y/

'! there #re1udice

0isset 2 Part "2aco#ucci% >iie% Ar#our% .e#el$4

C899'*/

o S* C will ol' #e applied i e;treme circumstaces

#,


16/68

o /or e;ample% compellig testimo' or forcig the productio of documets

"iv$ Procedural Propriet'4 The Stadard of Review ad Some

5eeral Thoughts

(&) The Content of Procedur$ Firne!!() Introduction nd An$ytic$ Fre'or9

Baker v. Canada 9inister of CitiIenship and 6mmigration% 2!3335 ; 7C( "!4 Can.%

/A6TS

o 0ecisio4 isufficiet humaitaria ad compassioate grouds to warrat

processig

o This letter cotaied o reasos for the decisio*

/his does not use the word Ndiscretion, but the court interpreted it thus

The Statutor' Scheme ad the Nature of the 0ecisio

PRO6E0-RA. /A2RNESS

o The fact that a decisio is admiistrative ad affects 7the rights% privileges

or iterests of a idividual7 is sufficiet to trigger the applicatio of the dut' of

fairess4 6ardial v* 0irector of =et 2stitutio 9K: M S6R BL "6a*$%

applica#le to this case

"$ /actors Affectig the 6otet of the 0ut' of /airess

o NATURE OF DECISION AND T%E PROCESS

/he more the process resembles +udicial decision making, the more

likely it is that procedural protections closer to the trial model will bereuired by the duty of fairness.

In e&$utin* the #roce!!/ con!ider

the function of the triun$/

the nture of the deci!ion29in* ody/

the deterintion! tht u!t e de to rech deci!ion

o STATUTOR SC%EME AND STATUTE CREATIN= T%E 7OD

5reater procedural protectios% for e;ample% will #e required whe o

appeal procedure is provided withi the statute% or whe the decisio is

determiative of the issue ad further requests caot #e su#mitted

fialit'

o SI=NIFICANCE OF DECISION FOR RECIPIENT"

The more importat the decisio is to the lives of those affected ad the

greater its impact o that perso or those persos% the more striget the

procedural protectios that will #e madatedo 8E=ITIMATE EGPECTATIONS"

The legitimate e;pectatios of the perso challegig the decisio ma'

determie what procedures the dut' of fairess require i give

circumstaces*

Our 6ourt has held that% i 6aada% this doctrie is part of the doctrie of

fairess or atural )ustice% ad that it does ot create su#stative rights*

o TRI7UNA8S C%OICE OF PROCEDURE"

The dut' of fairess should also ta(e ito accout ad respect the choices

of procedure made #' the agec' itself%

#-


17/68

particularl' whe the statute leaves to the decisio8ma(er the

a#ilit'

o to choose its ow procedures% or

o whe the agec' has a e;pertise i determiig what

procedures are appropriate i the circumstaces

o list of factors is ot e;haustive*

"M$ .egitimate E;pectatios "$ Participator' Rights

(H)The Pro&i!ion of Re!on!

o 2 cases such as this where the decisio has importat sigificace for the

idividual% whe there is a statutor' right of appeal% or i other circumstaces%

some form of reasos should #e required*

() Re!on$e A##rehen!ion of 7i!

o Re!on$e A##rehen!ion of 7i! ##$ie! to $$ ii*rtion officer! 'ho

#$y !i*nificnt ro$e in the 9in* of deci!ion!/ 'hether they re

!uordinte re&ie'in* officer!/ or tho!e 'ho 9e the fin$ deci!ion

o The test for reasoa#le apprehesio of #ias 4

9T:he apprehesio of #ias must #e a reasoa#le oe% held #' reasoa#lead right mided persos% appl'ig themselves to the questio ad

o#taiig thereo the required iformatio* ***

3T4ht te!t i! @'ht 'ou$d n infored #er!on/ &ie'in* the

tter re$i!tic$$y nd #rctic$$y nd h&in* thou*ht the tter

throu*h conc$ude. ?ou$d he thin9 tht it i! ore $i9e$y thn not tht

3the deci!ion29er4/ 'hether con!ciou!$y or uncon!ciou!$y/ 'ou$d

not decide fir$y.@

The !tndrd! for re!on$e ##rehen!ion of i! y

&ry/ $i9e other !#ect! of #rocedur$ firne!!/ de#endin* on the

conte0t nd the ty#e of function #erfored y the dini!trti&e

deci!ion29er in&o$&ed"

The i! doe! not h&e to e ctu$/ it on$y need! to ##er to re!on$e out!ider tht there i! i!

RE32EW O/ T,E E


18/68

o 6n my opinion the standard of review of the substantive aspects of discretionary

decisions is best approached within this framework

o /he pragmatic and functional approach takes into account considerations such

as5/i!eault6

!%the wording of the enactment conferring +urisdiction on the

administrative tribunal, 2privative clause, whether it is an entitlement5

;%the purpose of the statute creating the tribunal, the reason for thetribunals existence,

$%the area of expertise of its members and

&%the nature of the problem before the tribunal.

It includes factors such as whether a decision is =polycentric= and the

intention revealed !y the statutory language.

&he amount of choice left !y 'arliament to the administrative decision*

maer and the nature of the decision !eing made are also

important considerations in the analysis

o After >a(er% ow 'ou appl' the P/ test for eve discretioar' measure

"M$ The Stadard of Review i This 6ase

o The fir!t fctor i! the #re!ence or !ence of #ri&ti&e c$u!e/ nd the

'ordin* of tht c$u!e

Pushpaatha shows that the e;istece of this provisio meas there

should #e a lower level of deferece o issues related to the certified

questio itself*

o The !econd fctor i! the e0#erti!e of the deci!ion29er.

o The third fctor i! the #ur#o!e of the #ro&i!ion in #rticu$r/ nd of the Act

! 'ho$e.

o The fourth fctor out$ined in Pu!h#nthn con!ider! the nture of the

#ro$e in +ue!tion/ e!#eci$$y 'hether it re$te! to the deterintion of $'

or fct!.

o The appropriate stadard of review is reasoa#leess simpliciter*

Was This 0ecisio -reasoa#leo >n unreasona!le decision is one that$ in the main$ is not supported !y any

reasons that can stand up to a somewhat pro!ing examination.

o Deterinin* 'hether the ##roch t9en y the ii*rtion officer '!

'ithin the oundrie! !et out y the 'ord! of the !ttute nd the &$ue! of

dini!trti&e $' re+uire! conte0tu$ ##roch/

o The O#)ectives of the Act

o 2teratioal .aw

o The 1iisterial 5uidelies

6ON6.-S2ONS AN0 02SPOS2T2ON

o Therefore% #oth #ecause there was a violatio of the priciples of procedural

fairess owig to a reasoa#le apprehesio of #ias% ad #ecause the e;ercise of

the , 6 discretio was ureasoa#le% 2 would allow this appeal*

2A6O>-662 J "6or' J cocurrig$4

o 2 agree with .+,eureu;80u#e J+s reasos ad dispositio of this appeal% e;cept

o 2 do ot agree with the approach adopted #' m' colleague% wherei referece is

made to the uderl'ig values of a uimplemeted iteratioal treat' i the

course of the cote;tual approach to statutor' iterpretatio ad admiistrative

law%

#


19/68

7uresh v. Canada 9inister of CitiIenship and 6mmigration% 2;::;5 ! 7C( $ Can.%

>a(er

o =reter #rocedur$ #rotection! ... 'i$$ e re+uired 'hen no ##e$

#rocedure i! #ro&ided 'ithin the !ttute/ or 'hen the deci!ion i!

deterinti&e of the i!!ue nd further re+ue!t! cnnot e !uitted

o The *reter the effect on the $ife of the indi&idu$ y the deci!ion/ the *reter

the need for #rocedur$ #rotection! to eet the coon $' duty of firne!!nd the re+uireent! of fundent$ 1u!tice under !. of the Chrter.

() Sttutory Po'er! Procedure Act nd Other =ener$ Procedur$

Code!7tatutory )owers )rocedure @ct (78 !33:, c. 7.;;, as amended !33$, c. ;4, 7ched.0 !33&,c.;4,s.

>#0 !334,c.;$,s. !$0!333,c. !;, 7ched. B., s. !# Opage $:; to $$;

*"$

*L"$

*

K*

*

*"l$

*"$

B*

K*"$

M*M"$

M*"$ "M$

M*"$ "M$

NOTES

E;clusio of the SPPA is ot ecessaril' a e;clusio of atural )ustice* /or the purpose of this course% the SPPA will most pro#a#l' #e e;cluded #' statute*

0oes NOT appl'

o where there is o oral hearig

o where it is ol' a recommedatio "ot a decisio$

o whe it is doe #' legislator

o where the rules of civpro appl' "mediatio$

o o8ad)udicative decisio

(c) Or$ %erin*! /raditionally, an oral hearing was usually reuired as an element of natural +ustice

although not always* =omo 6ostructio 2c* v* 6ommissio des Relatios de Travai duDue#ec% 9KB:

*icholson4 clearl' left the discretio o whether to proceed #' wa' of oral or writte

hearig i the hads of the >oard of 6ommissioers of Police*

0ingh" An or$ herin* i! not nece!!ri$y uni&er!$ co#onent of the @#rinci#$e! of

fundent$ 1u!tice@ under !ection of the Chrter/

o $thou*h there i! need for !uch #rocedure @'here !eriou! i!!ue !

to credii$ity i! in&o$&ed.@:confired in Sure!h.

#$


20/68

6laims to a oral hearig are also oes that are situatio sesitive i the sese that their

ecessit' ma' deped o the matters that are at issuei the particular proceedigs as

opposed to #eig a feature of all e;ercises of the relevat statutor' power

9asters v. 8ntario !33&%, !" 8( $d% >>! Div. Ct.%

The fct tht it '! #o$itic$ office t #$e!ure inf$uenced the fct tht he did not

h&e certin ri*ht!:therefore $$ he de!er&ed i! $o' !tndrd of firne!!o 1asters is ol' etitled to hear ?the #road grouds7 of the accusatios #ut ot

7ever' detail7

/urthermore% 1asters was i fact give the opportuit' #' the Premier to ma(e legal

a statemet ad to respod to all additioal detailsot requirig a oral hearig

?han v. Eniversity of 8ttawa !334%,$&:($d%>$>C@%

1AJOR2T

o 0eial of Procedural /airess

/irst% ad most importat% the 6ommittee should have give a oral

hearig #ecause her credi#ilit' was a critical issue o her appeal*

7y n or$ herin*/ I en herin* in 'hich !he hd no##ortunity to ##er in #er!on efore the Coittee nd

n o##ortunity to 9e or$ re#re!enttion! to it.

Note4 ot li(e a trial hearigo opportuit' to cross8e;amie%

questio

Third% the 6ommittee should have give 1s* =ha a opportuit' to

correct or cotradict the three 7factors7 it relied o i its decisio*

o /ecause s. @han8s appeal turned on her credi!ility and !ecause of the

serious conseuences to her of an adverse finding$ fairness reuired an oral

hearing.

o She doe! not h&e to h&e !ho'n ctu$ #re1udice22She need on$y !ho' tht

the CoitteeJ! rech of it! duty of firne!! y re!on$y h&e#re1udiced her

02SSENT "/ila'so$4

o Or$ %erin* 'ou$d h&e not chn*ed the outcoe

o This was ot a matter which tured o credi#ilit'* There were o allegatios

made agaist the appellat ad the proceedigs were ot adversarial i ature*

RE1E02ES4

o Need to !ho' tht the conc$u!ion 'ou$d h&e een different outcoe if the

#rocedure '! different if you e0#ect to o&erturn deci!ion.

o >ut if the outcome was ot pre)udiced #' appl'ig the wrog procedure% the the

court will ot overtur the rulig

(d) The Ri*ht of Coun!e$ 2 most hearig situatios% the right of the parties to represetatio #' cousel or a

aget is assumed ad% ideed% i ma' cases will #e provided for statutoril'*

2volves

o Right to cousel

o Right to particular cousel

o Participator' rights of cousel

o /udig of cousel through legal aid

%/


21/68

1a' ot wat law'ers

(e 9ens Clothing 9anufacturers @ssociation of 8ntario and /oronto Hoint @malgamated

Clothing and /extile WorkersG Enion !343%, ;; =@C ;d% $;", uashed !:& D=( $d% &&! 8nt.

Div. Ct.%

2troducig law'ers would mea a loss of efficiec' ad e;pediec'

SO-T,E J4

o A atural perso i the idustr' i questio does ot have a a#solute right to

represetatio #' legal cousel*

o /urthermore% such represetatio would alwa's #e permissi#le #' agreemet% or

wheever the ar#itrator e;ercised his discretio i favour of permittig it*

o In view of the vital importance of the controversy to the applicant company$

and the apparent complexity of the matter !oth in fact and in law$ natural

justice$ in my view$ reuires that the applicants !e represented !y legal counsel

at the ar!itration hearing without any limitation$ even if the applicants had no

a!solute right thereto.

6O11ENT

o /hey can cut the lawyer off on certain points if the tribunal is sufficiently

knowledgeablethis would not violate the right to counselthis depends on the*ature of the )rocess and what is intended from participation

(e )arrish 2!33$5;C#:/D%

,O.02N5

o -dou#tedl' the scope of the fairess priciple depeds o the cosequeces

ad ature of the iquir' as well as the repercussios o the idividuals

ivolved*

o 6n this particular case, a witness could be faced with a negative report seriously

or adversely affecting his rights and his reputation without being given a fair

opportunity to present his case with the assistance of counsel.

o The duty to ct fir$y i#$ie! the #re!ence of coun!e$ 'hen cointion of

!oe or $$ of the fo$$o'in* e$eent! re either found 'ithin the en$in*

$e*i!$tion or i#$ied fro the #rctic$ ##$iction of the !ttute *o&ernin*

the triun$"

(1) where an individual or a witness is su!poenaed$ reuired to attend and

testify under oath with a threat of penalty7

(2) where a!solute privacy is not assured and the attendance of others is

not prohi!ited7

(") where reports are made pu!lic7

(#) where an individual can !e deprived of his rights or his livelihood7 or

(A) where some other irrepara!le harm can ensue.

I do not intend thi! $i!t to e e0hu!ti&eo The >oard ma' #e perfectl' free to prohi#it the attedace of more tha oe

cousel ad it would #e up to the ivestigator to determie if the presece of

more tha oe would seriousl' impede the progress of the ivestigatio.

o 2 these circumstaces the procedural fairess requires that the witess #e

permitted to #e accompaied #' cousel whe at the iquir'*

o E;pediec' does ot outweigh the eed for cousel

Dehghani v. Canada 9inister of'mployment and 6mmigration%, 2!33$5 ! 7C(

!:>$ Can.%.

%#


22/68

o /he principles of fundamental +ustice do not include a right to counsel in these

circumstances of routine information gathering.

ederal Court of Canada was influenced by an 'nglish +udgment, ( v. 7ecretary of 7tate

for the 1ome Department, ex p. /arrant, 2!3"&5 ! @ll '( 433 FB%.

o We#ster J said4 the followig are cosideratios which ever' #oard should ta(e

ito accout whe e;ercisig its discretio whether to allow legal representation

some are only applicable to prison context, but amend as needed% !. /he seriousness of the charge and of the potential penalty.

2. +hether any points of law are liely to arise

$. Capacity of a particular prisoner to present his own case.

#. 'rocedural difficultieswhen prisoners are not allowed to call

witnesses and directly cross*examine or test evidence

A. &he need for reasona!le speed in maing their adjudication

#. /he need for fairness as between prisoners and as between prisoners

and prison officers.

1oward v. 7tony 9ountain 6nstitution !3">%, !3 D=( &th% >:; C@% 2SS-E4 What is i issue is thus solel' whether the appellat had a udeia#le right to

cousel ad% more particularl'% whether s* C of the 6aadia 6harter of Rights ad

/reedoms guarateed him that right*

T,-R.OW 6J4 ,O.02N5

o 6 am of the opinion that the enactment of s. 4 has not created any absolute

right to counsel in all such proceedings.

o Whether or ot a imate+s request for represetatio #' cousel ca lawfull' #e

refused is ot properl' referred to as a matter of discretio #ut is a matter of right

where the circumstaces are such that the opportuit' to preset the case

adequatel' calls for represetatio #' cousel

o &he right to representation !y counsel will depend on

(1) the circumstances of the particular case$

(2) its nature$

(") its gravity$

(#) its complexity$ (particularly if dealing with legal issue)

(A) the capacity of the inmate himself to understand the case and

present his defence.

3xpeditiousness too.

&he list is not exhaustive.

APP.26AT2ON

o ;#4 days of earned remission was in +eopardy6n my view, that alone suggests

his need of counsel.

lack of particulars of offences Conviction on the two of the charges to which he pleaded not guilty

might result in consecutive losses of $: daysG remission without

reference to the

vague and difficult charge

*ew Brunswick 9inister of 1ealth and Community 7ervices% v. A. H.% 2H.A.5 2!3335 $

7C(*B%

.A1ER 6J "5othier% 6or'% 1c.achli% 1a)or ad >iie JJ cocurrig$4

%%


23/68

o 6 would like to make it clear that the right to a fair hearing will not always

reuire an individual to be represented by counsel when a decision is made

affecting that individualGs right to life, liberty, or security of the person 7.4

rights%. 6n particular,

o +hether it is necessary for the parent to !e represented !y counsel is directly

proportional to the seriousness and complexity of the proceedings$

and inversely proportional to the capacities of the parent.o Sectio Aal'sis4 O the #asis that the o#)ective of this polic' cotrollig legal

aid e;peditures is pressig ad su#statial% that the polic' is ratioall'

coected to that o#)ective% ad that it costitutes a miimal impairmet of s* C% 2

fid that the deleterious effects of the polic' far outweigh the salutar' effects of

a' potetial #udgetar' savig

(e) Di!c$o!ure nd Offici$ NoticeNOT26E

'ht con!titute! !ufficient di!c$o!ure (79er):the nture of the deci!ion nd 'ht

i! t !t9e

Notice must #e reasoa#le Peo#$e de!er&in* notice re the #rtie! on 'ho the deci!ion 'i$$ h&e effect

2f 'ou do!t have sufficiet otice% 'ou ca raise a request to ad)our the tri#ual

02S6.OS-RE

Beneral principles4 a party is entitled to now what evidence and representations have

!een given and is entitled to an adeuate opportunity to respond!e a!le to mae the

case against him

isclosure is the disclosure to parties of information that the agency has

a!out the decision to !e made7 official notice is the extent and manner in which an

agency may$ maing its decisions$ use material that is not introduced in evidence. 7titchcombe2see te;t for more details:

C!e! re+uirin* fu$$ di!c$o!ure

o Mi!conduct

o D*ed re#uttion

o Profe!!ion$ de!i*ntion

C!e! 'here there i! $o'er $e&e$ of di!c$o!ure

o 'hen it i! #o$icy deci!ion

o ?hen it i! !oeone u# t co$$e*e of !ur*eon!

o M!ter!" !e0u$ !!u$t

=ook at Baker to determine the appropriate level of disclosure

?ane v. Board of Aovernors of the Eniversity of British Columbia, 2!3":5 ! 7C( !!:> BC%.

,O.02N5

o :ights were infringed !y having a meeting !ehind closed doors$ not telling him

a!out it$ and not allowing him to respond.

o The >oard was uder a o#ligatio to postpoe util =ae hear the additioal

facts adduced& at the ver' least the >oard should have made 0octor =ae aware

of those facts ad afforded him a real ad effective opportuit' to correct or meet

a' adverse statemet made*

%)


24/68

6O11ENT

o %e didnt need to !ho' tht the outcoe 'ou$d h&e certin$y een

different/ he on$y needed to !ho' tht there cou$d h&e een different

outcoe to ern the reedy

A66ESS TO 2N/OR1AT2ON STAT-TES @ccess to 6nformation @ct, (7C !3">, c. @-l, s. ;;%%

"$ A66ESS TO A5EN6 2N/OR1AT2ON

(e *apoli and WorkersG Compensation Board !3"!%, !;# D=( $d% !43 BC C@%

Fctor! #re!!in* for di!c$o!ure

o The nature of the conseuenceswere importat% ad therefore there is a higher

stadard of disclosure

o redi!ility issue4 The reports stated that it was a eurotic pro#lem ad that he

was e;aggeratigwhich is e;actl' the t'pe of iformatio that should #e cross8

e;amied

o Cone of these experts is named,o 7ummary is insufficient to determine the case against himA effective

challengewould require productio of the origial reports*

The argumet that doctors will #e restraied if the' (ow their otes will #e disclosed

glosses over the valid cotrar' view that the' will prepare them with greater care ad

diligece% ad% more importat% that fairess requires that the origial reports #e disclosed

i order that the claimat ca effectivel' aswer the case agaist him*

6O11ENT

o 0istiguish from 1asters

Nature of the tri#ual4 it was a ad hoc tri#ual for 1asters% more of a

ad)udicative #od' hereloo(ig more at the facts

2terests at sta(e8it was a positio at pleasure for 1asters% whereas it wasa compesatio claim here

The iterests of the victim

The summar' i 1asters was more sufficiet

"M$ 20ENT2T O/ SO-R6ES O/ 2N/OR1AT2ON

The !econd !itution in&o$&e! c$i! to di!c$o!ure of !ource! of infortion/

nd there i! no *ener$ ru$e eyond @re!on$ene!!.@

Recall% 6hiarrelli

Aallant v. Canada Deputy Commissioner, Correctional 7ervice Canada% !3"3%, $# @dmin. =(;#! C@%

,O.02N5"ma)orit'$o The priciples of fudametal )ustice "s*C$ do ot have% therefore% the same

fle;i#ilit' as the rules of atural )ustice ad of fairess*

Thu!/ the deci!ion to trn!fer the re!#ondent to

S!9tche'n Penitentiry '! not de in ccordnce 'ith the

#rinci#$e! of fundent$ 1u!tice !ince the re!#ondent '! not *i&en

re$ o##ortunity to n!'er the $$e*tion de *in!t hi.

o Sectio Aal'sis4 o#vious that i a free ad democratic societ'% it is reasoa#le%

perhaps eve ecessar'% to cofer such a wide discretio opeitetiar' authorities*

%+


25/68

1AR6EA- JA "cocurrig i the result$4

o In $i*ht of the i#ortnce of the con!e+uence!/

&he inmate is not entitled (!y the audi alteram partem principle) to

more information !efore asing for his representations

Thi! i! due to the nture of the #ro$e nd hi!

re!#on!ii$ity to'rd tho!e entru!ted to hi! cre .

o 8n the one hand, the information given is definitely more substantial includingthe inmateGs )rogress 7ummary (eport in its entirety, the extent of the concern

of the Warden, and cogent reasons for non-disclosure of further particulars.

0ESJAR02NS JA "dissetig$4

o (eliability may be demonstrated in a number of ways, as for instance, by an

independent investigation or by corroborating information from

independent sourcesot doe here

Aough v. Canada *ational )arole Board% !33:%, &> @dmin. =( $:& C /D%

REE0 J4

o It i! c$er tht the re+uireent! of fundent$ 1u!tice o#erte on

!#ectru. The content of !uch re+uireent! &ry 'ith the circu!tnce! ofthe c!e.

o Sectio C Requiremets i the Parole Peitetiar' 6ote;t

There is o dou#t that the applicat% i the preset case% is etitled to

sufficiet detail respectig the allegatios #eig made agaist him to

ea#le him to respod itelligetl' thereto uless therespodet ca demostrate otherwise*

o Sectio

The issue is whether the Natioal Parole >oard is required to either

release iformatio to the applicat "whe disclosure will ecessaril'

reveal the source of that iformatio$ or forego reliace o that

iformatio i ma(ig a decisio o the applicat+s parole*

admiistrative coveiece does ot )ustif' a deial of fudametal

)usticeSigh v* 1iister of Emplo'met 2mmigratio 9K:

S6R CC

the pael cocluded there is o covicig evidece that disclosure

would threate the safet' of the iformats

The re!#ondent '! offered n in cer herin* for ore info on

the !!ertion!/ nd tht coun!e$ 'ou$d not re&e$ thi! info to hi!

c$ient:the Pro$e 7ord re1ected thi! ! it 'ou$d h&e !eriou! nd

d&er!e effect on the 'or9in* of the #ro$e !y!te:Court !id thi!

i! !i#$y not credi$e.

2 ote% first of all% that Reg* C"$ is too #roadl' framed*

ot saved #' s* aal'sis* 02ST2N5-2S, 5A..ANT AN0 5O-5,

o The perso was at large here% was ot i 5allat

2mpact is differetoe is the impact to the idividual% here it his li#ert'

o The Natioal Parole >oard refused to have disclosure i camera

)ritchard v. 8ntario 1uman (ights Commission 2;::&5 7CC $! 2get from supplement5

0 said that -: advice is solicitor*client privilegesacrosanctonly

compromised in exceptional cases

%,


26/68

o Cot su!ject to disclosure

6O11ENT

o 2s it a legal questio% or a factual questio

The $'yer! for the coi!!ion re not $i9e tho!e in n d&er!ri$

c!e/ !ince the $'yer! 'ere not nece!!ry co#onent of the

deci!ion #roce!! nd !he did not 9no' of their e0i!tence

Minor thin9! tht thi! y e the e0ce#tion to !o$icitor2c$ient#ri&i$e*e

Sla'to% The Ati80umpig Tri#ual A Stud' Prepared for the .aw Reform 6ommissio of

6aada "KCK$% at LC

REE0 J4

6ofidetial #riefs% documets ad e;hi#its are made availa#le #' the Tri#ual ol' to

cousel who are appearig for parties represeted at the hearigs% ad those cousel are

required to give a uderta(ig ot to reveal cofidetial iformatio to their cliets*

/oshiba Corporation v. @nti-Dumping /ribunal !3"&%, " @dn ! =( !4$ C@%, &he analysis and opinion in staff memoranda are irrelevant to the ascertainment of the

/oard8s reasons for decision !ecause they cannot !e assumed to have !een adopted !y

it as its reasons. /he BoardGs reasons for decision are those which it chooses to

express or which can otherwise be clearly shown from its own words or actions to have

been its reasons.

>ut a agec' head ma' ofte #e the itellectual iferior of a agec' specialist ad rel'

o the staff memorada of the specialistso we eed disclosure

Speight J cocluded #' drawig a distictio #etwee a 7factual summar'7 ad

7commet*7

o e was persuaded that any comment on the merits and demerits of

particular points of o!jection had to !e disclosed.

o >s for purely factual summaries$ he expressed that it might !e !etter that there

!e disclosure in the interests of accuracy in a complex area where it is only

natural that errors may creep in.

Hanisch commentsget from bookcomments allows collaboration

o )roblem is too much collaborationand no strict review by one decision-maker

(f) E&idence nd Cro!!2e0intion

A012SS2>2.2T O/ E320EN6E

A*encie! (Triun$!) re not *o&erned y the ru$e! of e&idence u!ed y court! un$e!!

!oe !ttutory #ro&i!ion re+uire! the/ nd !uch #ro&i!ion! re rre.

SPPA "sectio "$$disregardig of the ormal rules of evidece is sactioedthis

does ot ecessaril' ma(e the commo law rules of evidece irrelevat or geerall'

iapplica#le*

rules of evidece are looser i tri#ual tha that of trials uless idicated i the statute

overridig cocer is fairess to idividual ad a#ilit' to support their case

=ha v* 6ollege of Ph'sicias ad Surgeos of Otario "KKM$% KL 0.R "Lth$ K4 "Ot*

6A$%

o the Ontrio Court of A##e$ !u!tined the di!!ion of her!y e&idence

%-


27/68

o The her!y e&idence '! not on$y nece!!ry ut there 'ere !ufficient

indici of it! re$ii$ity.

%o'e&er/ e0c$u!i&e re$ince on her!y nd o#inion e&idence y h&e the

con!e+uence of $edin* to deni$ of ntur$ 1u!tice.

o >od v* New >ruswic( "1aagemet >oard$ "KKM$% K 0.R "Lth$ C "N>

6A$%

o the N> 6ourt of Appeal set aside a ar#itrator+s sustaiig of a dismissal forse;ual assault #ecause it ol' relied o hearsa' ad opiio

The ph'sicia ad the allergist% with their special s(ills ad (owledge% might have added

a dimesio of critical importace>' refusig to hear their evidece the #oard deied

the applicat atural )ustice*

&he fact that such evidence might not have assisted the applicant was not a valid

reason for refusing to hear it.

?offici$ noticeB

o *ener$ ru$e in court 1ud*e! re entit$ed to t9e 1udici$ noticeB of fct!

tht re uncontro&erted/ !oci$$y cce#ted fct!

0ispute over what is ?-cotrovertedG6ommo Sese@

6ROSS8E


28/68

In 79er it!e$f/ it '! o&iou!$y the i#ortnce of the intere!t t !t9e tht tri**ered the

o$i*tion.

o ot all e;ercises of statutor' or prerogative power ow ivolve the givig of reasos

S66

&he judgment$ echoing earlier authority$ also seems to accept that the existence of

a statutory right of appeal from the decision will normally generate an entitlement to

reasons

The 6otet of the 0ut' To 5ive Reasos

the reasos should show that the it addressed itself to the parties argumets o a' sigificat

questio of law relevat to the case% ad should idicate the #asis o which it resolved the

dispute% i order to assure the parties that the hearig has give them a meaigfulopportuit' to respod

Whe the tri#ual+s applicatio of a statutor' stadard depeds o this e;istece of certai

facts% the reasos should iclude the fidigs of fact made #' the tri#ual ad idicate the

evidece o which the tri#ual #ased its fidigs*

Ceed to now how the issues were framed and why it chose one view over another.

P6@ (ail Canada 6nc. v. *ational /ransportation @gency 2;::!5 ; C ;> C@% footnotes

omitted%

RAT2O

o =standard of adeuacy for duty to give reasons must ultimately reflect the purposes

served !y a duty to give reasons.reach of the 0ut' To 5ive Reasos If it is apparent from the reasons for a decision$ whether given voluntarily or under legal

o!ligation$ that the decision maer misinterpreted the legislation or committed some other

error of law$ the decision may !e set aside.

1owever, if the tribunalGs 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 ?indler v. @ttorney Aeneral of Canada, 2!3"45 ; C!&> C@%.

%


29/68

2t is more usual% though% for a court to declie to speculate whether the tri#ual would have

decided the dispute i the same wa' if it had realiFed that it could ot i law rel' upo the

reasos give

(h) 7i!

B6@7 @*D =@C? 8 6*D')'*D'*C'

2NTRO0-6T2ON

nemo judex in causa propria sua de!et esse" 8iter$$y trn!$ted/ thi! h! it tht no one

ou*ht to e 1ud*e in hi! or her o'n cu!e

The court refuses to ivestigate the decisio ma(er+s actual state of mid

PE6-N2AR AN0 OT,ER 1ATER2A. 2NTERESTS

If #er!on h! direct finnci$ intere!t in the triun$% the' are disqualified

The state of mid of the decisio8ma(er is irrelevat

If it i! indirect:then they $oo9 t re!on$e ##rehen!ion of i!spectrum>wG

ad)udicative ad polic'.i#ert' case

'nergy )robe v. Canada @tomic 'nergy Control Board% !3"&%, " D=( &th% 4$> C /D%.

affGd. !3"&%, !> D=( &th% &" C@%

REE0 J ",eal ad Stoe agreed with this trial level statemet$4

o But, 6 can find no direct pecuniary interest, as that concept has been defined in the

+urisprudence. /here was no contract conditionally in effect pending the outcome of

the new licences to 8ntario 1ydro.

o &he most that could !e said of r -lsen as of the date of the hearing was that he

could entertain a reasona!le expectation of pecuniary gain as a result of approval

of the licencesnot enough to constitute a reasona!le apprehension of !ias.

1AR6EA- J4o :esasona!le >pprehension of /ias

&he only rational reuirements are that the !enefit come from the decision

itself and that it !e a liely enough effect to =colour= the case in his eyes.

&he presence of an immediate possi!ility$ not to say pro!a!ility$ of gain to

!e coming to him directly or indirectly as a result of his decision would !e

enough to render someone unfit to mae it.

o The mere possi#ilit' that a profit could #e realiFed i the future out of other

cotracts awarded i the course of costructio of other uits was o dou#t too alie%

cotiget ad remote to costitute pecuiar' #ias with respect to the decisio to #e

made at that time

o /he standard of ob+ectivity in a tribunal does not have to be as high as that reuired

of an ad+udicative tribunal and the rules applicable should therefore be less strict the pecuiar' iterest ought to #e more immediate ad certai ad the o8

pecuiar' iterest must give rise to ver' su#statial grouds for

apprehedig lac( of o#)ectivit'*

NOTES

o 7upreme Court of Canada sustained the position that classification of the function as

+udicial or uasi-+udicial was no longer a prereuisite to a challenge on the basis of

biasbut the standards of detachment varied according to the nature of the role

being performed

o Canadian )acific =td. v. 9atsui 6ndian Band, 2!33>5 ! 7C( $ Can.%,

%$


30/68

income raised through the tax assessment scheme does not accrue to any

individual, but rather to the community as a whole.

>2AS4 T,E 5ENERA. TEST

Reasoa#le Apprehesio of >ias

27CC5 Committee for Hustice and =iberty v. *ational 'nergy Board, 2!34"5 ! 7C( $#3Can.%,

o 5&6he apprehension of !ias must !e a reasona!le one$ held !y reasona!le and

right*minded people$ applying themselves to the uestion and o!taining thereon

the reuired information. In the words of the ourt of >ppeal$ that test is =what

would an informed person$ viewing the matter realistically and practicallyhaving

thought the throughconclude.


31/68

o But, when there is added to those strong statements the actual decision of !3"$, ...

made without +urisdiction and contrary to natural +ustice, based upon the evidence of

!34# without regard for any change in circumstances in the intervening seven-year

period and, in particular, without evidence of population pro+ections, the government

policy having lost its relevancy, the reasonable apprehension of bias by Pespra is

inevitable in our view.

2 the realm of appeals% the most o#vious possi#ilit' is that perso ma(es the iitial decisioad the hears the appeal% either aloe or as part of the appeal tri#ual*

=aw 7ociety of Epper Canada v. rench 2!34>5 7C(

,O.02N5 "Spece for ma)orit'$

o -ne argument for the 0ociety was even if the proceedings were an appeal$

the maxim expressio unius est exclusio alterius permitted the mem!ers to

participate. 0ection "D prohi!ited committee mem!ers from participating in one

ind of appeal$ therefore implicitly permitting them to participate in others. 0pence

E$ writing for the majority of the court$ accepted this argument7

o Spece J cocluded that 6ovocatio was ot cosiderig a appeal* ,e said that the

disciplie process was 7a sigle proceedig i which there are two stages4 /irst% the

iquir' ad ivestigatio ito the complait #' the disciplie committee% the resultsof which are em#odied i a report to the >echers& ad secodl'% the cosideratio

ad dispositio of the report #' the >echers i 6ovocatio*@

.as(i "disset$4 Whe there was a serious offese% the there was #ias

STAT-TOR A-T,OR2QAT2ON

Brosseau v. @6berta 7ecurities Commission% 2!3"35 ! 7C( $:! @lta.%

.+,E-RE-E%

o Reasoa#le Apprehesio of >ias

o In assessing !ias of administrative tri!unals$ the courts must !e sensitive to thenature of the !ody created !y the legislator.

o 5eeral Rule4 someoe should ot sit as a ivestigator ad decider

o ;Cemo Eudex< 3xception4 If a certain degree of overlapping of functions is

authoriFed !y statute$ then$ to thee extent that it is authoriFed$ it will not generally

!e su!ject to the doctrine of =reasona!le apprehension of !ias= per se.

assuming the constitutionality of the statute is not in issue

o 0u#i JA foud that the structure of the Act where#' commissioers could

#e ivolved i #oth the ivestigator' ad ad)udicator' fuctios did ot% #'

itself% give rise to a reasoa#le apprehesio of #ias*

'.@. 9anning =td. v. 8ntario 7ecurities Commission iy3&%, !" 8( $d% 34 Div. Ct.%, affGd.

!33>%, !;> D=( &th% $:> 8nt. C@%

1ONT5O1ER J "0uet ad ,owde JJ cocurrig$trial*

o 'ven if 87C staff tried to separate their investigative role from the CommissionersG

role as ad+udicators, the roles have become so interwoven that there is a reasonable

apprehension of bias against all Commissioners because

the creation and adoption of )olicy !.!:

mass of complaints specifically regarding 9anning =imited and others in the

staff report

)#


32/68

the material led by the 87C in @insley

o 6n a press interview, the Chair of the 87C, 9r. WaitIer, stated that their +ob is to get

rid or regulate penny stock dealers O9r. WaitIer cannot sit on either hearing

because of a reasonable apprehension of bias.

o /he 87C 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 concludethat the securities dealers including 9anning =imited% were in fact engaging in the

practices alleged in )olicy !.!:, and now in the notices of hearing, the

Commissioners pre+udged the case.

0->2N 6JO ".a#rosse ad 0ohert' JJA cocurrig$4

o 0isqualificatio #' Reaso of 6orporate Tait

o &here was no evidence of prejudgment on the part of the new ommissioners since

they were not involved in the consideration and adoption of the 'olicy 0tatement

o r. +aitFer8s comment a!out getting the penny stoc 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 maret.

In maing the comments complained of here$ r. +aitFer was fulfilling

his mandate as hair of the ommission /herefore, no biasWaitIer and other commissioners can sit on the hearing

o >ias Resultig from 6ommissio+s 0efece i the Aisle' Actio

o It '! the Coi!!ion !tff/ $on* 'ith coun!e$/ 'ho 'ere re!#on!i$e for

!!e$in* the teri$! tht fored the !i! of the Coi!!ionJ! re!#on!e to

the #$intiff!J $$e*tion! in the Ain!$ey ction!o no i! for coi!!ioner!o Eve thoughthe 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 caseimpartially when they hear the evidence and arguments for the appellant at the s. !4c

inuiry.

NOTES

o Caccamo v. Canada 9inister of 9anpower < 6mmigration% 2!34"5 ! C $## C@%

at $4$

if all eligi!le adjudicating officers are su!ject to the same potential

disualification !ased on financial !ias$ the law must !e carried out

notwithstanding that potential disualification

;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33#5 $7C(3!3

RAT2O

o Duasi86ostitutioalism ad Statute

2f there is a legislative provisio% the we must loo( to see whether there are

a' costitutioal or quasi8costitutioal protectios that eed to #e made

So eve if there is e;press legislative authorit' "Regie$% it must stillot violate the rights edowed i costitutioal or quasi8

costitutioal documets "Due#ec 6harter$

o 2stitutioal >ias

etermination of institutional !ias4 a well*informed person$ viewing the

matter realistically and practically and having thought the matter

through would have a reasona!le apprehension of !ias in a su!stantial

num!er of cases.

>lways$ the informed person8s assessment will always depend

the circumstances.

)%


33/68

the nature of the dispute to !e decided$

the other duties of the administrative agency and

how the operational context as a whole will of course affect the

assessment.

Stricter ##$iction in criin$ tri$/ 'here! *reter f$e0ii$ity u!t

e !ho'n to'rd dini!trti&e triun$!.

APP.26AT2ONo "iii$ Role of the 0irectors

O(a' for Regie to participates i the process of ivestigatio%

summoig ad ad)udicatio

But the possibility that a particular director could, following the

investigation, decide to hold a hearing and could then participate in

the decision-making process would cause an informed person to

have a reasonable apprehension of bias in a substantial number of

cases.

2N0EPEN0EN6E

!#ectru" the ore d1udicti&e the ore inde#endence tht i! 'rrnted/ the ore

#o$icy dri&en/ the $e!! inde#endence in&o$&ed

If the !tte i! c$er out the #o'er!/ then it o&erru$e! the coon $'/ of cour!e/

!u1ect to con!titution$ #ro&i!ion!

Palente Decision

Three criteri of 1udici$ inde#endence

o (1) 0ecurity of &enure

lifetime appoitee)udges ca ol' #e dismissed #' legislature

o (2) 9inancial 0ecurity

PE2 Referece4 eed a idepedet committee to settle )udges salar' to esure that )udges dG rule i favour of gov!ts

also to esure that )udges are ot #ri#ed

o (")Institutional Independence

Assigmet of )udges to cases is doe idepedetl'

,ee# in ind tht thi! 'ht 'e ##$y for 1ud*e!/ 'e need to ##$y to triun$!

ccordin* to e0tent re+uired

/rom Regieif chair appoited% there ma' #e lac( of idepedece

Canadian )acific =td. v. 9atsui 6ndian Band 2!33>5 ! 7C($Can.%

.A1ER 6J6 "6or' J cocurrig$"0isset o This issue$4

o RAT2O

o To determie whether a reasoa#le ad right8mided perso% viewig the whole

procedure as set out i the assessmet #'8laws% would have a reasoa#le

apprehesio of #ias o the #asis that the mem#ers or me appeal tri#uals are ot

idepedet/ the V$ente #rinci#$e! u!t e con!idered in $i*ht of

the nture of the ##e$ triun$! the!e$&e!/

the intere!t! t !t9e/ nd

other indice! of inde#endence (!uch ! oth!)

o strict applicatio of the 3alete priciples ma' #e warrated where

))


34/68

Tri#ual 0ecisios affect the securit' of the perso of a part' "such as

2mmigratio$

o In thi! c!e/ 'e re de$in* 'ith n dini!trti&e triun$ d1udictin*

di!#ute! re$tin* to the !!e!!ent of #ro#erty t0e!ore f$e0i$e ##roch i!c$er$y 'rrnted.

SOP2N=A J ".+,eureu;80u#e% 5othier ad laco#ucci JJ cocurrig$"ma)orit' o this

issue$4o 2 do ot disagree with the 6hief Justice that the #ad ta;atio tri#uals

must compl' with the priciples of atural )ustice "procedural fairess$% #ut without a

clear uderstadig of the relevat% operatioal cote;t% these priciples caot #e

applied*

o Criteri of 'ht $e&e$ 'i$$ ##$y

8oo9 t nture of triun$

Nture of i!!ue t !t9e

?ht re the other indici of inde#endent thin9in*

o Mu!t inter#ret !ttute! in rod nner #ro&i!ion! tht re ied t

intinin* Indin ri*ht!/ nd to inter#ret nrro'$y #ro&i!ion! ied t

$iitin* or ro*tin* the.

o 6 conclude that effectively, the provincial authorities, as a policy matter, haverelinuished their historical field of taxation over reserve lands, have given the force

of law to the by-laws, have clothed the respective 6ndian band councils with the

mantle of legitimacy in running their own system of taxation.

o Although i this appeal% teure ad remueratio ma' #e esta#lished #' the #ads o

appoitmet of the ta;atio tri#uals*

;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33# 5$ 7C( 3f3

5ONT,2ER J4

Judicial 2depedeceSecurit' of Teure

o

In my view$ the directors8 conditions of employment meet the minimumreuirements of independence. &hese do not reuire that all

administrative adjudicators$ lie judges of courts of law$ hold office for life. 9ixed*

term appointments$ which are common$ are accepta!le. owever$ the removal of

adjudicators must not simply !e at the pleasure of the executive.

o .e 0ai J i 3alete4

&he judge can !e remova!le only for cause$ and that cause !e su!ject to

independent review and determination !y a process at which the judge

affected is afforded a full opportunity to !e heardcannot remove judge in

an ar!itrary manner.

2stitutioal 2depedece

o e ain E in Galente4 &he essential elements of institutional independence may !e

summed up as judicial control over the administrative decisions that !ear directlyand immediately on the exercise of the judicial function.

o 6t has not been shown how the 9inister might influence the decision-making process.

The fact that the 1iister of Pu#lic Securit' is ultimatel' resposi#le for

#oth the Regie ad the various police forces coductig ivestigators would

ot i m' view cause a iformed perso to have a reasoa#le apprehesio

with respect to the idepedece of the directors*

Appeal allowed*

)+


35/68

Bell Canada Case---7/6== *''D /8 ('@D

Hpheld the chair%s power to extend$ or refuse to extend$ the term of tri!unal mem!er

since the chair is only remova!le for causeso he cannot !e influenced in such a

manner

S-PRE1E 6O-RT

o The #o$icy i! #eri!!i$e

-)C$er$y e!t$i!hed y rod #ur#o!e! of $e*i!$ture Re!on! re!t not on inde#endence/ ut on !co#e #eritted to

ini!ter in $e*i!$ture in choice of ritrtor!

5)not u!ed #rctic$$y in ny 'y tht i! i#ro#er

reasonable and practical to allow tribunal chair to renew

uestioning during course of hearing

8cean Court Case at least get proper case not read scannedperhaps in textbook%

S66 reversed the >66A

o /ribunals are created for implementing governmental policythe' ma(e quasi8

)udicial decisios

o -ltimatel'% it is govermets that set the rules ad appoitmets

o >oard is ot a court% it is a licesig #od'withi prov* gov!t authorit'

o 6ommo law ol' applies where the statute is silet or am#iguous

6n this particular case, there was no doubt in the statute that the board

members were to serve at pleasurenot ambiguous

o 6ostitutioal requiremets did ot appl'ecoomic righto sectio C%

issues

o 5overmets ca appoit who the' wat% as log as the' have a ope mid*

(&i) In!titution$ Deci!ion!" C!e Studie! in Procedur$ Choice2stitutioal 0ecisios

() De$e*tion" The 8e*$ Doctrine 7!ic Ru$e" annot delegate authority unless the statute provides for it

%&e $!o con!tructed the need to h&e dini!trti&e efficiency/ con!iderin* the

&o$ue of 'or9/ nd rn*e nd co#$e0ity of i!!ue!

Need to $oo9 t con!i!tency of deci!ion! nd the #o'er of the chirn to ffect the

outcoe

/or ad)udicative decisios% less li(el' to accept delegatio tha for polic' decisios*

Willis, JDelegatus *on )otest DelegareJ !3&$%, ;! Can. Bar (ev. ;>4-#! delegatus non potest delegare% a delegate ma' ot re8delegate

2f the authorit' amed i the statute has ad retais a geeral cotrol over the activities of

the perso to whom it has etrusted% it is still delegatio

If/ ho'e&er/ the uthority e0erci!e! !uch !u!tnti$ de*ree of contro$ o&er

the ctu$ e0erci!e! of the di!cretion !o entru!ted nd it cn e !id to direct it!

o'n ind to it/ there i! in $' no @de$e*tion@ nd the 0i doe! not ##$y.

o The word 7persoall'7 is to #e read ito the statute

),


36/68

Pine v. *ational Dock =abour Board 2!3>45@C&""'ng.1=%

.OR0 SO1ER3E..

o 0iscipliar' powers% whether 7)udicial7 or ot% caot #e delegated

32S6O-NT =2.1-2R .64 2

o It i! nece!!ry to con!ider the i#ortnce of the duty 'hich i! de$e*ted

nd the #eo#$e 'ho de$e*te.

thi! duty in thi! !chee i! too i#ortnt 3out$'ed fro #rofe!!ionfor $ife4 to de$e*te un$e!! there i! n e0#re!! #o'er.

it '! #eri!!i$e if it hd !tted !o in the !ttute/ ut tht i! !ent

here.

to have authorit' to appoit someoe% it eeds to #e e;plicitl' provided

NOTES

The #rinci#$e of non2de$e*tion $!o re+uire! tht $$ eer! of the

triun$ herin* di!#ute #rtici#te in !u!tnti&e !en!e in the 9in* of the

deci!ion.

o 6B9 Canada v. Deputy 9inister of *ational (evenue, Customs and 'xcise,

2!33;5 ! C ##$ C@%,

?ht u!t e done/ ho'e&er/ i! tht t !oe #oint in tie/ the #ne$u!t rech deci!ion co$$ecti&e$y nd ech eer u!t

@#rtici#te@ indi&idu$$y in tht co$$ecti&e deci!ion in *reein* 'ith

it or di!!entin* fro it. There h! to e eetin* of the ind! / ech

eer ein* infored t $e!t in *ener$ 'y of the #oint of &ie'

of ech of hi! co$$e*ue!.

9organ v. @cadia Eniversity !3">% *7 7C% p.&3!% see text for details%

2t would #e too much to e;pect the dea to determie these himself

The' costructed power to delegate the decisio

0E6202N5 W2T,O-T ,EAR2N5

only those mem!ers of an agency who hear a particular case may decide it

0elegatig the 0ut' To ,ear

=ocal Aovernment Board v. @rlidge 2!3!>5@C!;: 'ng.1=%

32S6O-NT ,A.0ANE4

o inister at the head of the !oard is expected to o!tain his materials vicariously

through his officials$ and he has discharged his duty if he sees that they o!tain

these materials for him properly. &o do everything personally would !e to

impair his efficiency.

.OR0 S,AW4

o 9inisterial is responsible to parliament, but the minister must be able to

delegate

NOTE

o 2 6aada% some decisios e;ceptioall' require the miister+s persoal decisio

(amm !3>4% 8nt C@% details missing%

RAT2O

o elegation doctrine and the rule that only those who hear may decide lead to4

)-


37/68


38/68

Second/ tht the c!e i! decided t $e!t in #rt on the !i! of

teri$! 'hich 'ere not di!c$o!ed t the herin* nd in re!#ect of

'hich there '! no o##ortunity to 9e !ui!!ion!

o /he second deprived the appellant of a full opportunity to present evidence and

submissions and constituted a denial of natural +ustice.

o Not certai that the full >oard iflueced the pael% #ut it is fatal to the decisio

of the >oard that this is what might ver' well have happeed*o /urthermore% whe the rules of atural )ustice collide with a practice of the

>oard% the latter must give wa'*

5ONT,2ER J "Wilso% .a /orest% .+,eureu;80u#e% ad 1c.achli JJ cocurrig$4

o &o determine permissi!ility of full !oard meeting

Importance of pu!lic issue

+hether there was concern for having consistent decisions

'ros and cons of having these discussions in the a!sence of the parties

o the dager that full #oard meetigs ma' fetter the )udicial idepedece of pael

mem#ers does ot create a reasoa#le apprehesio of #ias or lac( of

idepedece ".i#ert' test$

o &he criteria for independence is not a!sence of influence !ut rather the

freedom to decide according to one8s own conscience and opinions.

o /ull >oard 1eetigs ad the Audi Alteram Partem Rule

o I therefore conclude that full !oard meeting cons

Documents

Administrative Minor F05