ADMINISTRATIVE LAW CAN

TABLE OF CONTENTSINTRODUCTION TO ADMINISTRATIVE LAW...................................................................................................................1

Sources of Review Power:...........................................................................................................................................22 Principles of Fairness:...............................................................................................................................................3

ADMINISTERING THE RULE OF LAW..............................................................................................................................3Theories of the Rule of Law:........................................................................................................................................6

DELEGATING ADMINISTRATIVE POWER........................................................................................................................7REMEDIES IN ADMINISTRATIVE LAW............................................................................................................................8

Access to JR Decision flow chart:.................................................................................................................................9ACCESSING ADMINISTRATIVE JUSTICE........................................................................................................................15PROCEDURAL FAIRNESS..............................................................................................................................................15

Procedural Fairness: The Right to Be Heard.............................................................................................................15Duty to give reasons:.................................................................................................................................................17

Procedural Fairness: Independence, Impartiality and Bias.......................................................................................19Reasonable Apprehension of Bias:............................................................................................................................21

STANDARD OF REVIEW...............................................................................................................................................25Reasons and Reasonableness:...................................................................................................................................33

CONSTITUTIONAL REASONABLENESS..........................................................................................................................36REALIZING ABORIGINAL ADMINISTRATIVE LAW..........................................................................................................42

INTRODUCTION TO ADMINISTRATIVE LAW

Public vs. Private Law:- Private law creates horizontal legal relations among legal persons.

o Enable or constrain the use of individual power in relationshipso Provide framework for obligations and agreements between/among individualso Structure relationships involving corporations/other private associations in civil society

- Public law creates vertical legal relations between the state and legal persons AND both horizontal and vertical legal relations among institutions

o Unlike private law cases (which are bipolar – involving two adversaries), public law cases are usually polycentric – involving more than two parties (ex: multiple government bodies, interveners, class actions)

o Structure the relationship between the individual and the state o Structure the relationship among state institutionso Facilitate and constrain the exercise of public power

Powers often delegated through statutes Powers can be constrained within statute or by common law via judicial review

Reasons for Expansion of Government Activity (into tribunals):- Depoliticize certain decisions

o Ex: Immigration and Refugee Board appointed to a position on the board bc of expertise not bc of political party

- Need for greater specialization and technical/subject matter expertise to make decisions- Reluctance to entangle courts in matters not suitable to judicial review bc of specific nature or volume of

decisions to be made- Courts may be viewed as opposing/unhelpful to some groups subjected to decision-making

o Ex: labour unions

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- Some things cannot be left to private parties where room for corruption, bribery, self-interestWho are administrative actors and what do they do?

- Executive brancho Crown, governor general, PM, cabinet/governor-in-council, ministers, privy council

- Agencies, boards, commissions, crown corps, public inquiries, tribunals, arbitrators, government appointees, indigenous decision-makers, municipal govs, school boards

- Functions of administrative actors = decision-making/adjudicating, regulating (via subordinate legislation), policy making, researching, advising, prosecuting, educating

- Administrative decision makers…o Regulate and restrict activities

Ex: competition tribunal regulates the market; labour boards regulate the employment relationship

o Licence Trades and professions such as taxis, dentist, lawyers

o Confer and distribute benefits and burdens Ex: welfare, EI, disability benefits, tax assessments

o Adjudicate disputes Ex: landlord/tenant disputes; consent and capacity decisions for persons with mental disorders

o Confer, deny, revoke statuses Ex: immigration decisions, refugee determinations, human rights adjudication

Legal Formalism:1. Believe that law is comprised of ‘scientific’ legal rules discovered through the careful study of legal principles

and doctrine (i.e., jurisprudence)a. Want law to be more like science

2. Rules are best discerned through the close study of previously decided cases (i.e., the case study method)3. Legal texts require minimal interpretation by legal actors like judges who, if they must, should adhere to the

“plain meaning”4. Judges should ignore the policy implications and equitable outcomes of their rulings

a. “Just decide the case as the case”5. Only courts can properly protect individual rights, especially liberty and property interests as well as other

common law entitlements

Sources of Review Power:1. Original jurisdiction ordinary courts have jurisdiction over decisions of admin decision-makers when they are

challenged by way of direct actions by a citizen in contract or tort on ground that state infringed individual’s private legal right. Higher courts have inherent appellate jurisdiction.

2. Statutory right of appeal right to appeal must be provided for in a statute – no automatic right to appeal an admin decision; statute determines the scope of appeal

3. Courts’ inherent review jurisdiction superior courts may review admin decisions unless specific statute says otherwise/grants jurisdiction to another court/tribunal; reviewing court doesn’t have general jurisdiction – cannot substitute own decision for that of an admin actor

a. s96 of the Constitution has come to mean inherent jurisdiction of superior courts

Administrative Law Divided into 3 Parts:1. Procedural fairness: is this an issue courts should review and, if so, did the administrative decision-maker use

the proper procedures in reaching a decision?2. Substantive review: did the administrative decision-maker make an error of the kind or magnitude that the court

is willing to get involved in?3. Remedies and the legitimacy of judicial review: if there are no procedural or substantive defects in the decision,

should the court intervene, and if so, how?2

2 Principles of Fairness:1. The right to be heard/the duty to hear the other side (audi alteram partem)2. The right to an independent, impartial, unbiased decision-maker (nemo judex in sua causa)

Discretion: refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries

- A public officer has discretion whether the effective limits on his power leave him free to make a choice among possible courses of action or inaction (Baker)

- Dworkin: discretion in law is like a hole in a donut o When discretion exercised in a legal order using non-legal standards it is a legislative function of filling in

the gap (not official legislation) puts courts in role of acting like legislature to fill gap in cases of JR. Donut model implies that large swaths of judicial activity = problematic bc judges possibly usurping the legislative function

o Dworkin emphasizes that we need to ensure that we use the principles responsibly and interpret them responsibly. These principles are part of the “dough” so that when an actor, administrative decision maker or a judge uses a legal principle to fill a gap, it has a different result (no longer a “legislative timbit” as in the first model)

When the legal principle is used by the legal actor to shape their discretion, hole narrows (not eliminated, but more constrained). Narrowing of hole of donut is what Rand did in Roncarelli

Deference: The more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options.

- Discretionary decisions will be given considerable respect BUT that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of admin law, the fundamental values of Canadian society, and the principles of the Charter (Baker)

Legal principle: a binding normative standard. Unlike a rule, a legal principle does not dictate the legal result; it serves to guide the judgment and discretion of public officials, especially judges.

- When principles intersect or conflict, do not cancel each other out decision-maker must take into account the relative weight they have assigned to each principle then reconcile the principles by balancing them or giving one more weight than the other

ADMINISTERING THE RULE OF LAW

Rule of law = unwritten common law constitutional principle- Fundamental unwritten principle inherited from the British legal system (goes back to the Magna Carta) - Legal principle: binding normative standard that does not dictate the result but serves to guide the judgment

and discretion of public officials, especially judges (Dworkin)- Principles possess weight and are crucial tools for statutory interpretation (Dworkin) - Positive sources for this unwritten principle = preambles to the 1867 and 1982 Constitution Acts- Several competing conceptions of the rule of law currently exist interpreter must choose one over the other

and justify that choice in law (Dworkin, Raz) - Stands for supremacy over unconstrained political power- In admin law, RoL stands for proposition that all public power is or must be legally bounded in order to be

considered both valid and legit. (Dworkin, Fuller, Raz). Even if grant of discretion is broad and vague, it is never unconstrained. (Roncarelli)

Principle of the rule of law offers 4 essential guarantees to legal subjects:1. All persons will be considered formally equal under the rule of law (including those holding public power)

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2. Public standards will guide the creation, enactment, revision and enforcement of all laws3. Government and legal system will treat individuals fairly4. An existing legal system enables access to legal processes for all persons to resolve complaints (access to justice)

Arbitrariness:

Non-Arbitrariness aka Legality:- Decision may be arbitrary in substance if it is biased, illogical, unreasonable or capricious- Decisions also arbitrary and likely unfair if there is indifference about the procedures used- A just exercise of power is non-arbitrary in its substance and procedure

Canada (AG) v PHS (Insite) (2011): feds attempt to shut down Insite bc gov criminalizes drug possession and trafficking through Controlled Drugs and Substances Act (CDSA); CDSA has exemption but minister denies applying it; was the minister’s refusal to grant the exemption arbitrary/contrary to the rule of law? YES although the statute includes language of discretion (attracting deference), the minister’s refusal to grant the remedy under s56 was arbitrary and grossly disproportionate in its effects, hence not in accordance with the principles of fundamental justice; didn’t do a proper cost/benefit analysis; decision undermines the very purposes of the CDSA (protect health and safety); remedy: ordered the minister to grant the exemption (mandamus). RATIO: example of mandamus remedy (rare) on basis of ministerial arbitrariness.

SCC Definition of the RoL:

BC v Imperial Tobacco (2005): tobacco legislation such that companies had to pay $$ for medical costs via recovery act; is the Act ultra vires, constitutionally invalid? NO – SCC articulates the principle of the rule of law:

1. Law supreme over private individuals & government officials = one law for all a. Non-arbitrariness

2. Requires the creation and maintenance of a positive order of laws a. Laws must exist in legislative or common law form

3. Requires relationship between the State and individual to be regulated by lawa. Officials’ actions must be legally founded in order to be valid

4. Linked to the principles of judicial independence5. AND [new from the 2014 Trial Lawyers’ judgment] access to justice

Protection from unjust or unfair legislation “properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box.”

- Unwritten principles cannot be used to strike down legislation unless accompanied by a positive provision in a constitutional document

Basic content of the principle of the rule of law gleaned from the leading cases:1. All persons will be considered equal under the rule of law, including those holding public power2. Public standards will guide the creation, enactment, revision, and enforcement of all law3. The government and the legal system will treat individuals fairly4. An existing legal system enables access to legal processes for all affected persons in order to resolve complaints

(more colloquially known as ‘access to justice’).

No public authority above the law/No such thing as absolute discretion/Unwritten Principles:

Reference Re Secession of Quebec (1998): identifies 4 unwritten principles that inform public law that are the “lifeblood” of the constitution:

1. Rule of Law2. Federalism3. Democracy4. Constitutionalism

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Roncarelli v Duplessis (1959): R was a Jehovah’s Witness – bailed many of them out who were being prosecuted by Gov of QC; D, the AG/FM of QC acted outside of his power to remove R’s liquor license permanently after publicly warning R to stop doing this. Legitimate exercise of power? NO – Majority: D acted disproportionately, outside scope of jurisdiction (not based on his appreciation, determined by law); Rand J (concurring): unchecked admin arbitrariness = disintegration of RoL as fudnamental postulate of Constitutional structure; no such thing as absolute/untrammeled discretion; no legislative enactment w/o express language can convey unlimited arbitrary power exercisable for any purpose; RATIO: Public authorities are always constrained by the unwritten constitutional principle of the rule of law (no public authority is above the law). The exercise of public authority must be grounded in law.

- Dissent (Cartwright J): legislature gave no guidance to commission as to circumstances under which it can refuse to grant a permit or cancel a permit legislature intended the commission “to be a law unto itself”

- Rand J’s judgment invokes more modern rule of law potentially authorizing greater intervention based on public law principles and values, not just on private law rights as per Dicey

3 explicit sources of legal constraint:1. Enabling statute and regulations2. The constitution3. Larger body of public law

Implicit sources of legal constraint determined by judges using statutory interpretation techniques. Ex:

- Implied legislative purposes- Legal values- Fair procedures

Deference as respect/Privative clauses:

Privative clauses devised by legislature to limit or oust judicial review:- Finality clause: protects decisions made by public officials from further dispute internally- Ouster clause: protects decisions from external judicial review

Issues raised by privative clauses WRT rule of law:- Rule of law is only effective if it can be enforced privative clauses may create a situation where decisions

under a particular statute cannot be reviewed

National Corn Growers Association v Canada (Import Tribunal) (1990): CIT conducted inquiry into importation of corn grain from USA into Canada and determinedthat importation of grain had already caused, or was likely to cause in future, injury to Canadianproducers. This provided support for the deputy M’s decision to impose a provisional duty onUS corn. CIT’s decision based on a factual finding of harm informed by its expertise. Enablingstatute contained a privative clause stating that ‘every order or finding of the Tribunal is final andconclusive,’; did the CIT act beyond jurisdiction, make error of law, base decision on erroneous finding of fact? NO – standard of review = patent unreasonableness and not patently unreasonable; statute had privative clause which signals deference and gives the CIT discretion; Majority (Gonthier): court should review the tribunals interpretation and conclusions regarding its enabling statute if it appears patently unreasonable; Gonthier’s judgment reflects Raz’s “active role of courts” model of interpreting law and demands public and unprincipled justifications of tribunal decisions; Concurrence (Wilson – agrees w/conclusion not reasoning): courts should only review interpretation (not conclusions) if appears patently unreasonable; Wilson’s concurrence follows Fuller’s “respectful deference” model – downplays role of the courts and promotes intergovernmental cooperation; RATIO:

- Privative clauses signal a choice of standard of review- Privative clauses = nondiscretionary form of deference that require judicial restraint

o Signal that legislature intends for admin body to be the primary decision-maker in matters of fact, law, mixed fact or law and/or discretion

- Statutory provisions rarely yield a uniquely correct interpretation

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- Where interpretative disagreement exists, specialized tribunal has expert interpretation as part of its jurisdiction conferred by the enabling statute

- Deference as respect (Dyzenhaus)

Theories of the Rule of Law:

Dicey’s “Common Law Model”:- 3 core propositions1. No arbitrary authority in government, especially the executive branch and administrative state2. All persons are equally subject to the law (formal equality)

a. Legal formalism. Note: adherence to the rule of law doesn’t mean the resulting laws are substantively just, although they will be found valid bc they meet some minimal conditions

3. Constitutional law is part of the “ordinary law” of the land (aka the common law) - Dicey was antagonistic of legislation that involved itself in the workplace- Judiciary = guardians of common law checks courts meant to protect us by highly supervising admin decision-

makers and showing no deference- Prefers judge made law and unwritten constitution to written constitution- Consequence of Dicey’s view: admin bodies viewed with distrust as almost inherently lawless forms of

governance and shown no curial deference in review of their decisions

Fuller’s “laws of lawfulness” Model:- Viewed the relationship between government and citizens as one of reciprocity- 8 principles of legality/duties to realize:1. Laws should be general2. Laws should be promulgated (circulated/disseminated) so that citizens know the standards to which they are

being held3. Retroactive rule-making and application should be minimized4. Laws should be understandable5. Laws should not be contradictory6. Laws should not demand the impossible7. Laws should remain relatively constant through time8. There should be congruence between the laws as announced and their actual administration

Raz’s “guidance” Model:- Statute provides guidance to all that it effects through its framework, purposes and objectives, language, and

accompanying regulations places great value on role of well-crafted legislation- Rule of law as the principle of legality acts as practical guide for making effective law- Laws should be prospective, open and clear- Laws should be relatively stable- Judicial independence should be guaranteed- Procedural fairness must be observed by public officials in their decision-making- Courts should be easily accessible and have effective remedies- Discretion of crime-preventing agencies should be constrained

Lord Bingham’s Primary Rules and Sub-Rules:- Primary rule: all persons, public or private, should be bound by, and entitled to benefit from, promulgated

prospective laws publicly administered the courts- Sub-rules:

o Laws should be accessible, clear and predictable o Questions of legal right and liability should ordinarily be resolved by the application of law, not the

exercise of discretion

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o Ministers and all public officials must exercise public powers in good faith, fairly, for the purposes conferred, reasonably, and within jurisdiction

o Laws should adequately protect fundamental rightso Dispute resolution processes, without undue delay, should be provided when parties cannot resolve

matters themselveso Adjudicative procedures provided by the state should be fairo The state should comply with its obligations in international law

Dyzenhaus’ “deference as respect” Model:- Judges must be part of the partnership, not the herculean judge- Should have access to justice that is more open and affordable

DELEGATING ADMINISTRATIVE POWER

Delegated Rule-Making Power vs Soft Law:Delegated rule-making Soft law

Form of law? A binding form of law developed by the executiveFormal and public, sometimes referred to as ‘secondary legislation’

A non-binding form of law developed by the executiveInformal and non-public

Delegation? Power to make regulations must be expressly granted by the statute

Power to make soft law does not have to be expressly granted in the statute

What isn’t? Does not set general policy like a statute Does not set general policy like a statute

Function? Explains how statutes work / fills in details Provides guidance on, e.g., how to interpret the regulations or how to implement procedures

Types? Regulations, rules, orders-in-council, orders, directives, municipal by-laws, process requirements

Policy statements, interpretation bulletins, guidelines, manuals, handbooks, codes of conduct

Judicially reviewed?

Yes—the content of both process and substance, but usually deferentially.Except for Procedural Fairness: if the decision to make the rule is ‘legislative and general’ [Inuit Tapirisat] there is not JR; but can if the rule is aimed at an individual or single party [Homex]

Not usually, except in the case of fettering—ie, when DM follows a guideline or policy s/he views as mandatory and therefore does not exercise discretion intended by the legislature (Kanthasamy, p337)

Why delegate rule-making?- Expertise**- Time

o Faster, flexible, can respond to specific factual contextso Note: soft law more easily adaptable to changing circumstances

- Information legislatures have incomplete info

Risks of delegated rule-making:- Principal-agent problem: admin agent making the rules may not follow the wishes of the legislature (the

principal)o Agent may follow own views and values over the legislator’s views and values

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o Agent may not even attempt to further public interest but seek to further own interest or the interests of particular groups (aka regulatory capture) (National Corn Growers, Paradis Honey)

- Legislators may delegate in order to further own interests/avoid blame enact broad legislation and delegate rule-making power to avoid blame for stringent regulations or get credit for taking strong action without actually doing anything

4 Approaches to Controlling Principal-Agent Risks:1. Structure discretion (broad vs. narrow powers) appoint particular trustworthy/reliable agents, select

appropriate body to exercise discretion, legal constraints/guidance in statute, limit resources2. Legislative oversight legislature or committee can review regulations (not soft law usually), have central

oversight by cabinet or other body, include ministerial responsibility in legislature (but can cause delays)3. Judicial review review decision-making procedures and substantive review

a. Raises some issues bc courts lack expertise, time-consuming, judge acting as an agent may substitute own interpretation or own views

4. Process requirements increased info for rule-makers, more deliberation by citizens, increased openness, participation, transparency (note: costly and time consuming)

Note: Governor in Council = cabinet/Governor General, acting on the advice of the Prime Minister and the Cabinet.

No procedural fairness where a decision is of a “legislative and general” nature:

Canada (AG) v Inuit Tapirisat (1980): CRTC assigned the approval of phone tariffs and under their enabling legislation approved a new rate for Bell and its customers after public hearings involving numerous parties including IT and others; IT disagreed with new rate structure and was allowed to comment on it – it would disadvantage the poor/those up north; regulatory capture issue; entitled to procedural fairness or any remedy? NO – cabinet was exercising legislative function and is exempt from procedural fairness; CRTC decision is not specific and individual, but a broad tariff decision; fixing public rates for a public utility is legislative action in its purest form; Etsey J (majority) gives high deference on procedural grounds; RATIO: no common law requirement of procedural fairness where decision is of a “legislative and general” nature; legislative doesn’t always mean “by the legislature”

Judicial review of substance/content: - Quashing order in council requires egregious case (Thorne’s Hardware)- Quashing by-law only done if no one reasonable body informed by relevant factors could have enacted it

(Catalyst Paper)

Thorne’s Hardware Ltd. v Canada (1983): Federal government passed order in council extending boundaries such that Thorne’s (private facility) now has to pay to use harbour (public) for first time ever; private facilities; was decision to expand harbour/implement fees made considering improper elements/ can court even consider it? NO – not the duty or right of the court to investigate the motives that impelled the cabinet to pass the Order in Council; govs reasons are unknown but reasons not required here; RATIO: quashing an order in council requires an “egregious case” (not found here) – must be very bad-faith decision making, corruption, or serious flaw

REMEDIES IN ADMINISTRATIVE LAW

Bottom line = read the statute!- Enabling statute sets out what remedies are within the jurisdiction of the admin body (explicitly or implicitly)- Enabling statute sets out internal review process and whether it is a de novo (new trial/start fresh/broad review

or more constrained in scope; is there reconsideration power?- Enabling statute may set out parameters for a statutory appeal (no inherent appellate jurisdiction by courts over

admin tribunals)

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o If yes, what is the scope of the appeal? Note: if statutory appeal says can only appeal to court on matter of fact and you think

something went wrong on interpretation of law, must apply for JRo Is an appeal available as a right or is leave required? If leave required, who may grant it?

- Enabling statute may contain privative clause signalling legislative intent about JR- Overarching statutes control access to courts and JR ex: Federal Courts Act, BC ATA- No inherent jurisdiction of admin tribunals over remedies- Tribunals not bound by precedent/stare decisis and operate by flexible rule of consistency (Domtar)

Accessing Judicial Review:- JR = exceptional remedy, about inherent jurisdiction of s. 96 courts to review Exec action via admin action; last

resort- General rule = access to courts (JR) only available after you have exhausted all avenues of appeal, including

internal appeals and any appeal provided for in statute, unless an argument exists that the available remedies are inadequate, then you can “leapfrog” to JR (Harelkin)

- Judicial review = a remedy in itself

Access to JR Decision flow chart:- Are you barred from proceeding bc of standing, mootness, justiciability, limitations, delay, unclean hands,

etc.?o If yes The endo If no…

- Is the decision-maker exercising private or public function?o Private Is there connection to public authority or exercise of some public function?

If no JR not available If yes Is decision final? (ATs can change their mind up to final decision)

If no Obtain final decision (usually) If yes Have you exhausted all (internal & external) adequate remedial routes?

o If no exhaust them (normally)o If yes is it fed or prov authority?

Select level: check applicable statutory procedures, acts, rules of court Apply: Decision to grant JR at discretion of court

o PUBLIC Is decision final? If no Obtain final decision (usually) If yes Have you exhausted all adequate (internal/external) remedial routes for challenging

the decision? If no exhaust them (normally) If yes is it fed or prov authority?

Select level: check applicable statutory procedures, acts, rules of court Apply: Decision to grant JR at discretion of court

o Caution Even if the decision-maker exercises a public function, examine to see if it operates at considerable remove and therefore is not part of machinery of government

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Types of Remedies:Types of REMEDIES

Administrative/public law Constitutional Civil Criminal “Non-legal”

Tribunal remedies

enabling statute explicitly or implicitly determines availability

• Declaratory order• Enforce obligation/

duty/right•Mandamus• Ongoing seizin• Quo warranto• Request court to

enforce order• Internal appeal• Reconsider/rehear• [Membership]

• s52: non-application of inconsistent law• s24: just &

equitable remedy

• Costs• Compensation• Damages• Discipline• Fines• Licenses• Restitution

• Federal or Provincial Crowns prosecute quasi-criminal offences: fines and imprisonment

• Change agent• Conciliate/

mediate• Consultation• Education• Equitable:

anything “fits”• “Expert”•Monitor• Policy

Judicial remedies in public law Subject to judicial discretion

• Certiorari/quash• Declaration• Enforce obligation/

duty/right• Habeas corpus• Injunction/structural

injunction•Mandamus• Quo warranto

• s52: declaration of invalidity/ delayed declaration of invalidity• s24: just &

equitable remedy

• Costs• Compensation• Contempt• Damages• Restitution

• Contempt• Fines• Imprisonment• Prosecution

• Change agent• Equitable• Reference

question

Non-court remedies

• Ombudsperson• Auditor general• Parliamentary officers who provide oversight in diff areas Admin tribunals may possess authority to craft novel, broad or non-legal remedies

• Public commissions• Public inquiries•Media & accountability

The Prerogative Writs:Name Translation Effect

Certiorari cause to be certified quash or invalidate an order or a decision *most common

Prohibition prohibit prevent the unlawful assumption of jurisdiction or halt the proceedings where unlawful jurisdiction is being exercised

Mandamus(Insite)

we command order a duty to be performedBUT cannot tell tribunal how to decide

Conditions for obtaining mandamus (Insite)1. Demonstrate clear legal right to have the thing sought done, in the

manner, and by the person

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2. Duty must lie on the official at time relief sought3. Duty must be “purely ministerial” in nature

- Officer must possess no discretionary powers in this matter4. Demand for and refusal to perform the act sought

Cert + Man commonly combined send back (with directions) for reconsideration

Declaration statement of a legal position or status

public law = declare action ultra vires (outside jurisdiction)not enforceable but usually obeyed

Habeas corpus

produce the body ensure detention is not arbitrary; context specific

Quo warranto by what authority? challenge basis of authority used to justify acts

Novel and (in)effective remedies/enforcement of orders:- Enforcement powers of a tribunal must be granted in its enabling statute otherwise tribunal must rely on the

court to enforce orders (McKinnon)- Novel remedies available in some contexts (ex: McKinnon)- When remedial scope is broad, adjudicators becomes tatutorily authorized “change agents” ex: have ability

to stay involved or remain seized over time (not becoming “functus officio” like regular courts) (McKinnon)

McKinnon v Ontario (Minister of Correctional Services) (2003): M was First Nations correctional officer; HRT found M suffered discrimination and harassment at work – HRT ordered remedies against Minister of Correctional Services that ministry pay damages for discrimination, compensate for reduced salary, failure to be promoted, relocate M, implement human rights training, etc.; case continued on bc ministry did not comply with remedies; ministry sought JR and lost; commission resumed and ordered new set of remedies (revision order) and adjudicator argued he remained seized of the case; could adjudicator order additional remedies? YES – previous remedies not made in good faith; revision orders needed to address failure; remedies granted were “novel”: prospective, open-ended, subject to ongoing revision/elaboration; AT remained seized of the matter (retained jurisdiction) until entire series of orders implemented and complainant’s remedial right was met w/ full compliance and substantial conformity; RATIO: administrative entities are imbued with their own “equity-like” powers and may make novel, fact-specific remedies; enforcement powers (for the tribunal) must be granted by statute, otherwise T must rely on court to enforce its orders (rare that T can enforce).

Is Judicial Review Available?1. Is the tribunal whose actions are being challenged a public body?2. Does the party seeking to challenge administrative action have standing to challenge a tribunal decision? 3. Which court should the party seeking administrative action apply to for judicial review?4. Has the party missed any deadlines?5. Has the party exhausted all other adequate means of recourse for challenging the tribunal’s actions?

Availability of JR: Discretionary basis:- Authority for JR is discretionary (Domtar: existence of conflict in decisions of AT not an independent basis for JR)

Domtar v Quebec (1993): Employee was injured before the closing of the plant. D had already announced closure and thus wanted to compensate employee only for the 3 days the plant would be open, not the full 14 days he would have been entitled to as per an Act. Employee complained to CSST and his complaint was dismissed. Employee appealed to CALP, which found in his favour. Corporation sued. Two different interpretation of the statute of the provision, by two different bodies (one that favours employer – CSST, one that favours employees – CALP) because there are two different ways to pursue the remedy. Are conflicting interpretations by different admin bodies cause for JR? NO – cannot have judicial review simply on the basis of inconsistency because:

1. Intent of Legislator: several possible constructions of same provision2. Jurisdiction: both decision-makers were within their jurisdiction; expertise/deference vs.

consistency/predictability (if not PU, still defer)

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3. Risk of Arbitrariness: risk of using courts for form of shopping for best decision 4. Institutional Pluralism: we have a pluralist system – you will get different reasons from different places (levels of

court, provinces, etc.); who is in best position to rule; court subbing opinion eliminates decision-makers autonomy, expertise

5. RoL: must be qualified for purpose of JR, not an absolute principle, deference (i.e. Wilson J in National Corn Growers) should be afforded.

6. Policy: lack of unanimity is price to pay for decision-maker’s freedom/independence given to members of ATs not the court’s job to micromanage

RATIO: Judicial review is a discretionary remedy in and of itself; conflicting administrative interpretations do not provide independent basis for judicial review

Availability of JR: Private Body: - JR reserved for state action where the exercise of state authority has a “sufficiently public character” (Highwood

Congregation)- No free-standing right to procedural fairness (Highwood Congregation)

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall (2018): W disfellowed from H for sinning and not fully repenting; decision confirmed by appeal committee and by head of the JW’s in Canada; W asked Alberta Court of Queen’s Bench to review the decision on basis that the committee that disfellowed him acted unfairly; do courts have jurisdiction to review religious organizations where concerns about procedural fairness? NO – courts don’t have power to review decision of a private, religious organization, can only review decisions of public decision-makers; private decision-makers don’t have to follow fair procedures unless enforceable legal right at stake; W only has private law or non-legal remedies available; RATIO: no free standing right to procedural fairness (duty of procedural fairness only has to do with public actors, not private actors).

Highwood Congregation v Wall framework:1. The public law remedy of judicial review is reserved for state action and where the exercise of state authority

has a “sufficiently public character” [para 13]2. There is no free-standing right to procedural fairness3. A court may intervene in decisions of voluntary organizations concerning membership where property or civil

rights are at issue4. If the decisions of religious groups or other voluntary associations (e.g., clubs, guilds) affect legal rights, then

procedural fairness concerns may be addressed by reviewing courts5. Only justiciable decisions will be reviewed for fairness (i.e., not theology questions or concerns)6. Public law remedies like certiorari may not be granted in litigation relating to contractual or property rights

between private parties

McDonald v Anishinabek (2006): M hired on probationary basis as First Nations constable; allegations of sexual harassment raised against M; police chief investigated and satisfied complaints could be substantiated never talked to M, concluded M had opportunity to respond; M grieved dismissal to labour board and brought JR application for review of board’s dismissal decision; is the decision-maker a public actor (such that there can be JR)? YES – as a public office holder, M was owed a duty of fairness prior to his dismissal; although the code of conduct is not a statute (therefore violating code of conduct doesn’t entitle M to procedural fairness remedies) court goes back to statutory interpretation and reduces salience of the code; court considers numerous factors to determine if entity is part of gov and subject to private law and concludes yes; court grants application for certiorari and quashed decision to dismiss; RATIO: identifies criteria used to determine if an entity is part of government and subject to public law:

- source of powers- functions and duties of the body- implied devolution of power

- extent of the government’s direct or indirect control over the body

- power over the public at large

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- nature of body’s members and how appointed- how funded- nature of the board’s decisions - constituting documents or procedures indicate

duty of fairness is owed

- relationship to other statutory schemes or other parts of government, such that the body is woven into the network of government

Bottom Line: 1. Prerogative writs are available to supervise general machinery of government, even if not constituted by

statutory power (i.e., also includes prerogative power and some other forms of non-statutory power)2. IF decision-maker fulfills a public function or if decision-making has public law consequences3. THEN duty of fairness applies AND decision is subject to judicial review [and will also be subject to substantive

review] 4. But compare Mcdonald with Highwood Congregation

a. Bottom line from Highwood narrows this down even moreb. There will be some forms of Indigenous decision makers who will be outside the scope of judicial review

and public law remediesAvailability of JR: Exhaust all adequate means:

- Applicant for JR must first avail themselves of all adequate means of review (Harelkin)

Harelkin v University of Regina (1979): H asked to discontinue studies, unclear if due to GPA or mental health; appealed decision to student council, committee only heard university side and H had no chance to have his side heard/rebut university side, asked for another hearing and that was denied, he could to appeal to senate and decided not too, decided to seek judicial review; H entitled to judicial review? NO – SK court of appeal was right in refusing certiorari and mandamus bc H should have pursued right of appeal to senate; court shouldn’t use discretion to promote delay or expenditure unless no other adequate alternative remedy; factors to consider in exercising judicial discretion: procedure on appeal, composition of the Senate Appeal Committee, powers and manners in which they were probably exercised by a non-professional body, if Senate more likely to “re-try” the case, burden of previous finding, efficiency, expediency, costs; RATIO: an applicant for judicial review must have first availed himself of all other adequate means of review.

The Structure of Judicial Review:- 3 distinct steps of judicial review to prevent a “jumble of issues” (Budlakoti)

Budlakoti v Canada (Citizenship and Immigration) (2015): B born in Canada to Indian parents working in Canada; B later convicted of criminal offenses and deemed inadmissible to Canada due to serious criminality under IRPA; B’s parents no longer worked in Canada and B not a citizen – deportation ordered; B seeking declaration of citizenship similar to mandamus; entitled to seek citizenship through JR? NO – must first try to obtain citizenship from India or Canada before seeking JR (other options available); statutory scheme set up such that Minister grants citizenship – cannot just skip this step; views expressed by Minister and/or officials don’t necessarily give rise to RAB; RATIO: sets out the structure of JR: There are three distinct steps of judicial review to prevent a “jumble of issues”:

1. Preliminary objections (show stoppers what will prevent you from getting issue to court?): a. [56] Are there any recognized reasons why the judicial review or any issues in it should not be heard?

(e.g. mootness, lack of jurisdiction over subject or remedial relief, issue estoppel, other forums or adequate alternative remedies)

b. Where they are well-founded, the reviewing court cannot hear all or some of the issues and will not proceed further on a particular matter or even the entire case

c. [57] Judicial review is meant to be a last resort when all other adequate, effective forums for relief have been exhausted (Harelkin)

i. This step can be relaxed if a case involves ROL concerns or if public law values favour immediate access to a reviewing court.

2. Merits of Judicial Review: a. What substantive or procedural grounds for review of an administrative decision are triggered?

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b. Does this case involve other matters that might be properly considered the subject of judicial review under ss. 18 and 18.1 of the Federal Courts Act?

c. What is the standard of review of an appellate court such as FCA uses to overturn a decision about a preliminary objection made by a lower court such as FC?

i. The usual appellate standard of review for extricable legal issues is correctness (Housen, 2002 SCC 33)

ii. On all other issues, it requires a finding that a court committed a palpable and overriding error.iii. Diff from the admin law SOR which is applied to decision-maker (some cases involve both – go

after the lower court AND decision-maker)3. Remedies:

a. What are the legally available remedies in this case?b. Remedies are discretionary and counsel may have to argue for the court for a particular remedyc. In Budlakoti, the remedy sought = CDN citizenship; but this was refused - “the declaration … would

achieve the same effect as a mandamus order against the Minister requiring him to recognize the appellant as a Canadian citizen.” Outside of the judge’s discretion to demand minister citizenship

Private Law Remedies/liability of public authorities:- No current precedent for claim for maladministration claim for damages against public aurhority court

outlines claim in obiter: Courts may grant relief, including monetary relief, when:o 1. A public law authority acts unacceptably or indefensibly in the admin law sense, and o 2. As a matter of discretion, a remedy should be granted (Paradis Honey)

- Although a public law maladministration claim for damages would be novel, such a claim would have a strong basis in Canadian law. The Constitution gives courts the power to grant relief against improper exercises of public power. (Paradis Honey) Further, SCC has already granted monetary relief against public authorities for improper public law decision-making (Roncarelli).

- May pursue private remedies in provincial superior courts that have concurrent jurisdiction with federal courts for federal authorities (TeleZone)

Paradis Honey Ltd. v Canada (2015): action for damages in tort brought by P bc prohibition continued on importation of honeybee packages from USA even though the prohibition under the CFIA regulations expired; P argued minister breached duty of care and acted without lawful authority in prohibiting P from obtaining permits for importation of honeybee packages; can plaintiffs bring action to recover for losses? YES – there is no bar to recovery traditionally in public law need additional circumstances to exercise discretion in favour of monetary relief – gov acting invalidly not enough (found additional factors here); (in obiter ) can an action for monetary relief be founded on public law principles? MAYBE – court didn’t need to go further but considered this question; new analytic framework needed to replace the one created for private parties (aka need public law version of Cooper/Anns test); RATIO: in obiter, court outlined a new analytic framework for claims against public authorities:

1. Establish that the public authority’s action is unacceptable or indefensible in the administrative law sense. (para 134)

a. Use Dunsmuir reasonableness review to determine. If found unreasonable, go to step 2.b. Public authority doesn’t have a duty of care

2. Monetary relief is still subject to traditional remedial discretion. (para 138) a. Still about achieving the remedy. Remedy still tied to judicial discretion. May not get the amount you

want still subject to remedial discretion of the court.b. Examine the acceptability and defensibility of the decision, the surrounding circumstances, its effect,

and public law values that would be furthered by the remedy in this particular case.c. How should court exercise its discretionary authority to award monetary relief?

i. Quality of public authority’s conduct must be considered bc an order for monetary relief = mandatory in public law, mandatory orders can only be made when public authority has clear duty to fulfil, when significant maladministration has occurred, or when public law values need

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to be vindicated- Note: What would this public case look like if it were an administrative law argument with traditional law

remedies? o Usual remedy would be to quash the guideline and send the decision back to the decision-maker for

reconsideration

BC Judicial Procedure Review Act (1996):- If ATA does not apply, JR proceeds according to common law and/or any requirements in JRPA- **You now access a remedy through an application for judicial review rather than identifying the particular

remedy first- Typical JRPA Process: 1. Identify all relevant respondents

o At same time, check to see if BC ATA applies to the tribunal2. File the petition and affidavits on time in the appropriate court registry

o 60 days from date of the decision3. Serve copies to respondents including the Attorney General

o AG may determine that a public interest element exists4. Respondent must serve copies of response to other parties

o 21 days from date Respondent is served with filed petition5. Determine what the record is

o Written or oral hearing recording, documents, correspondence6. Petitioner obtains a hearing date from BCSC

o File and serve notice of date at least 7 days before hearing7. File petition record in court no later than 4 pm on the full day before hearing

ACCESSING ADMINISTRATIVE JUSTICE

3 key considerations:1. Access to the tribunal2. Access to legal or other knowledge necessary to obtain tribunal services3. Access to resources needed to navigate the tribunal system

Standing = 2 components:1. Standing to access tribunals

o Tribunals have no inherent jurisdiction standing to bring matter to tribunal must e found in tribunal’s governing statute or some other statutory authority

2. Standing to challenge an admin decision in courto Not every citizen entitled to challenge admin action generally reserved for those who have sufficient

legally recognized interest in the matter to justify JRo Test for standing = whether the applicant is a “person aggrieved” by the admin decision “person

aggrieved” = one who will suffer some “peculiar grievance of their own beyond some public grievance suffered by them in common with rest of the public

o Bc challenging admin decision = unaffordable, discretionary public interest standing allows “test” applicant or NGO to launch JR proceedings on behalf of broader group (ex: Downtown Eastside)

o Test for public interest standing (Downtown Eastside) 1. Is the matter serious and justiciable? 2. Is the party seeking standing genuinely interested in the matter? 3. Is there any other reasonable and effective way for the matter to be adjudicated?

SCC held that this factor just requires proposed proceeding be, in light of various pragmatic considerations, reasonable & effective means of bringing case to court

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Finlay v Canada (Minister of Finance) (1986): expanded public-interest standing such that it is also available in non-constitutional cases.

PROCEDURAL FAIRNESS

Procedural Fairness: The Right to Be Heard

1st Principle of PF = the right to be heard/the duty to hear the other side (audi alteram partem)

Duty of Fairness:- Duty of fairness applies to administrative decisions; duty lies on all public authorities, independent from statutes

(Nicholson)- Note: Pre-Nicholson, unless your decision-maker could be described as judicial or quasi-judicial, you had no right

to procedural fairness; “purely administrative” decisions = high deference- Still no duty of fairness WRT legislative decisions (Nicholson, Cardinal)- Emergencies can suspend or abridge (condense) PF however they cannot eliminate PF (Cardinal)- Legislator always intends a duty of fairness to apply unless clear statutory language or necessary implication

demands the contrary. (Note: This is part of legislative expectations) (Mavi)- SOR for PF is fairness (akin to correctness) (Khela). We ask if procedural protection was adequate, not ideal.

Duty of fairness applies to admin decisions:

Nicholson v Haldimand-Norfolk (Regional) Police Commissioners (1979): N summarily dismissed after 15 months employment as police officer; no notice, given no reasons; regulations provided that POs could not be penalized without hearing or right of appeal, but permitted the Board of Commissioners “to dispense with the services of any constable within 18 months of his becoming a constable.” N sought JR bc he believed his dismissal was arbitrary and wrongful goes up to SCC; was N entitled to procedural fairness? YES – typically bc this was a purely administrative decision N would not be entitled to procedural fairness BUT Laskin changes this bc the effect of the regulations is that an officer who has served 18+ months is protected from arbitrary discharge but no protection from this for officer who has served less than 18 months this is arbitrary/unfair; Laskin reads in PF and sends back to be heard again with directions to improve procedure ; RATIO: the duty of procedural fairness applies to administrative decisions duty lies on all public authorities, independent from statutes; Ingeneral, the duty of fairness requires two things, both of which are restatements of natural justice protections: (1) the right to be heard, and (2) the right to an independent and impartial hearing.

- Dissent (Martland J): purely administrative, no duty to explain

Threshold Test:- Meant to expand the reach of fairness in admin decision-making

Cardinal v Kent Institution (1985): Prisoners allegedly involved in hostage taking at Kent; prisoners given admin dissociation aka segregation; director didn’t make independent inquiry into allegations, just relied on what he heard; segregation board recommends putting prisoners back into gen pop and director disagreed bc of potential danger – didn’t give reasons to prisoners and didn’t give them right to be heard; was continued segregation a breach of PF? YES – director’s decision was procedurally flawed; general common law duty of fairness on every public authority making an admin decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual; this is a public prison making an admin decision that affects rights/privileges/interests; while prison environment may invite more deference bc inherently dangerous, risk to others, courts do have expertise in criminal law; directors decision quashed bc he should have informed prisoners of reasons for decision orally/in writing, given them opportunity to respond and get info about the allegations; RATIO: sets out the threshold test for the application of the duty of procedural fairness: duty of procedural fairness lies on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual

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- Note: affecting interests = low bar

Content of the Duty:

Baker v Canada (CIC) (1999): B applied for PR under humanitarian and compassionate grounds; B denied PR, not given reasons; Immigration Act had provision allowing JR of decision with leave granted by FCTD; FCTD judgment can only be appealed if FCTD certifies “serious question of genuine importance” for FCA to consider; goes up to the SCC; was the procedure used fair considering all the circumstances? NO – sent back for reconsideration by different officer; RATIO: creates the 5 factor framework for determining the content of the duty of fairness; discusses the importance of reasons; outlines the basic components of the duty of fairness; relevant WRT RAB

Baker Framework: was the procedure used in this case fair considering all of the circumstances? Framework is an open list of 5 factors weighed and balanced together in order to determine content

1. Nature of the decision and the process followed2. Nature of the statutory scheme and the terms under which the body operates3. Importance of the decision to the individual(s) affected4. Legitimate expectations of the person(s) challenging the decision (see below)5. Respect for agency expertise in determining and following the agency’s own procedures

Duty to give reasons:- No general duty in admin law to give reasons (Baker)- Flawed reasons are sufficient - In certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a

decision (Baker):o Where the decision has important significance for the individual (such as in Baker where the profound

importance of an H&C decision to those affected militated reasons)o When there is a statutory right of appealo Constitutional right at stake o In other circumstances “some form of reasons” may still be required

- No duty to give reasons in context of Mavi, wherein the administrative decision maker, the government of Ontario, was obliged to collect debt from immigrants’ sponsoring family members without formal reasons – “the existence of the debt [was], in the context of [that] particular program, reason enough to proceed.”

- When does fairness require that a tribunal must give reasons for its decisions?o Check the relevant statute and procedural code for a reasons requirement (has legislature turned their

mind to a reasons requirement?)o If none, apply the five Baker factors to determine the content of the duty in order to argue that reasons

are or are not required in these circumstances Ex: is the decision of high importance to the individual as in Baker?

o If duty exists, no deference will be owed to the tribunal in its choice not to give reasonso Fairness is the appropriate standardo Remedy = quash the decision and send back for re-determination with reasons o Reasons further public confidence, accountability and transparency in decision-makingo Principles satisfied: democracy, rule of law, accountability, good or responsible government

Fairness in Baker:- Fairness = minimum “floor” of the duty that must be met- Fairness is contextually understood- Procedures are essential to realizing the “just exercise of power”- Procedures need only be adequate, not optimal or perfect

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- Procedural fairness is a participatory right entailingo an open and appropriate procedureo an opportunity to put views and evidence forward fullyo governed by the principles of democracy and the rule of law

- Administrative bodies are masters of their own procedures unless legislature indicates otherwise (Knight) = principle of deference

o Despite being jurisdictional in nature, deference informs duty of fairness in several ways

Basic content of procedural fairness (Baker):- Notice: was notice adequate? Notice = most fundamental of the participatory rights- Disclosure: Stinchcombe principles do not apply; must be sufficient in order to know the case to be met

o No right to full disclosure; must be sufficient and adequate- Oral hearings: seldom required unless credibility is at issue bc expensive and timely- Right to counsel: no right to counsel in administrative proceedings- Right to call evidence & cross-examine witnesses: normally part of oral hearing

o Much more limited in paper hearings- Timeliness and delay: delay may be a breach of fairness and usual remedy would be ordering an expedited

processo Would have to be a particularly egregious case but statute can demand that matters be dealt with in

timely manner/give specific timelines- Reasons: may be required in some circumstances

Limitations on the duty of fairness: Legislative decisions:- Purely Ministerial decision” = No duty of fairness (Ref. Re CAP)- Parliament or public body exercising a legislative function = No duty of fairness AND no judicial supervision of

legislative process (i.e., not justiciable) (Ref. Re CAP)

Canada (AG) v Inuit Tapirisat (1980): CRTC assigned the approval of phone tariffs and under their enabling legislation approved a new rate for Bell and its customers after public hearings involving numerous parties including IT and others; IT disagreed with new rate structure and was allowed to comment on it – it would disadvantage the poor/those up north; regulatory capture issue; entitled to procedural fairness or any remedy? NO – cabinet was exercising legislative function and is exempt from procedural fairness; CRTC decision is not specific and individual, but a broad tariff decision; fixing public rates for a public utility is legislative action in its purest form; Etsey J (majority) gives high deference on procedural grounds; RATIO: no common law requirement of procedural fairness where decision is of a “legislative and general” nature; legislative doesn’t always mean “by the legislature” ex: legislative = GIC (cabinet) performing a legislative function

Why no duty of fairness WRT legislative functions? (Ref. Re CAP)- Cannot restrain sovereignty of Parliament- Process of legislation governed by internal rules and procedures in Parliament (lex parliamenti)- May extend to Cabinet in its capacity as the link between the executive and the legislative in the Westminster

system of governmento Cannot restrain Executive from introducing legislationo Also affects Governor General who recommends introduction of legislation on advice of Cabinet

- Separation of powers: executive implements public policy- S42(1) of Interpretation Act preserves principle of parliamentary sovereignty- AND Wells v Newfoundland, [1999] 3 SCR 199: “Legislatures are subject to constitutional requirements for valid

law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate.”

Exception to Legislative decisions Municipal By-Laws: 18

- Municipal bylaw can be subject to PF where it is bipolar (targeting a specific person/groups interests) rather than polycentric (Homex)

Homex Realty and Development Co v Wyoming (1980): H was going to sell land to W, negotiations broke down and W enacted municipal bylaw that effectively froze the land; W didn’t give notice of bylaw; H sought JR to quash bylaw; is H entitled to PF here? YES but cannot get remedy bc didn’t come with clean hands – bylaw was masked quasi-judicial action and is subject to PF; H should have had opportunity to be heard; RATIO: if a municipal bylaw is no longer for general application but is being used to target a particular group, entitled to PF because this is no longer legislative but is quasi-judicial

Exception to Legislative decisions Emergencies: - When exercising legislative functions, legislatures need only comply with constitutional requirements no

additional procedural obligations under admin law (Cardinal)

Cardinal v Kent Institution (1985): director had to make a quick decision in an urgent/emergent situation therefore there could be no requirement of prior notice or an opportunity to be heard before the segregation decision BUT still had a duty just changes the content of the duty

Doctrine of legitimate expectations:- If public authority makes clear, unambiguous, unqualified representations within their jurisdiction about

procedure it will follow in making particular decision, or if it has consistently adhered to certain procedural practices in past in making such a decision, scope of duty of procedural fairness owed to affected person will be broader (Mavi)

o Proof of reliance not requiredo Representations must not conflict with statutory duty

- Baker: legitimate expectations = one factor to consider when determining procedural obligations that admin decision-maker must follow

Canada (AG) v Mavi (2011): liable for costs of social assistance if you sponsor someone under Immigration Act; sign contract to that effect basically; 8 sponsors denied liability of this; was the procedure used fair considering all the circumstances? YES – considering Baker factors debt collection is contractual, strict process; statutory scheme has strict obligations to pay back – can defer debt if meet criteria; immensely important to individual bc crippling debt (but not as bad as deportation…); no legit expectation of debt forgiveness, only some accommodation; no specific expertise bc contract issue but high-volume issue so maybe waste of courts time; not a case where reasons required – not at the Baker level; gov must: (i) give notice of claim, (ii) give an opportunity to be heard re mitigating factors of immediate collection, (iii) consider relevant factors brought to their attention, considering the undertaking was essential to sponsor the person in the first place and (iv) to notify the sponsor of the government’s decision. RATIO: clarifies the doctrine of legitimate expectations:

1. Government official makes representations within jurisdiction regarding process to be followed2. Representations must be clear, unambiguous and unqualified3. Representations must only be procedural, not substantive4. Representations must not conflict with a statutory duty (ex. if in Mavi a govnt official said they would forgive the

debt = would be unenforceable bcus it is against the statutory scheme)5. Proof of reliance is not required

Fairness vs. “Correctness”:

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- Standard of review for procedural fairness is fairness (akin to correctness) (Khela)o Still entitled to a margin of deference

Mission Institution v Khela (2014): K transferred from med to max security prison on involuntary emergency basis after alleged involvement with a stabbing; K asked for disclosure, security report and info on how warden deemed source to be reliable; K receives some reasons but no info about sources – requests scoring matrix and is told no and that all policies followed; K submits habeus corpus application; was the procedure used fair considering all the circumstances? NO – K returned to med security; applying Baker the nature is less straightforward than Mavi, some guidance in statute but onus on DM to provide info to effected person (some exceptions); arguably of high importance to K although could argue libery already deprived anyway; expertise significant here bc not a typical environment; weighing the factors – severe info gaps that needed to be filled K entitled to see scoring matrix to meet case against him only necessary restrictions permitted under the statutory scheme; RATIO: standard of review for procedural fairness = fairness akin to correctness (akin to bc doesn’t mean no deference)

Procedural Fairness: Independence, Impartiality and Bias

2nd Principle of PF = the right to an independent, impartial, unbiased decision-maker (nemo judex in sua causa)

Development of the Law of Tribunal Independence in Canada 3 waves:1. Independence of the judiciary used as foundation on which to mould concept of admin tribunal independence2. Ocean Port affirmed hybrid nature of tribunals and maintained that there is no general constitutional guarantee

of independence where tribunals are concerned3. Retrenchment litigants again pushed to have judicial declarations that admin tribunal independence =

guaranteed by constitution

Test for adequate tribunal independence = whether a reasonable, well-informed person having thought the matter through would conclude that an admin decision-maker is sufficiently free of factors that would interfere with his/her ability to make impartial judgments (reasonable apprehension of bias test)

Judicial vs Administrative Models WRT Independence:

Objective conditions Judicial Administrative

Security of tenure

Secure until retirementRemoval only for causeConstitutionally guaranteed

Fixed, short or long-term appointments according to the home statute

At pleasure appointments possible therefore more easily removed

Financial security/ remuneration

Salary and pension security Variable: set by legislation or contract (statute key in determining level of independence)

Administrative control

Day-to-day control of institutional operations (nobody interferes with decisions about leave requirements or interveners)

Federal Commissioner of Judicial Affairs (resources)

Ministerial / departmental involvement & oversight therefore more external interference (some statutes actually invite ministers to have hands on control of admin decision-makers)

Subject to legislative change

Financial dependence

Goal Eliminate or reduce interference from executive and legislative

Eliminate or reduce inappropriate interference and influence

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branches Incorporate only relevant considerations

Independence, Impartiality and Bias – Judicial vs. Administrative:

Characteristics Judicial Administrative

Independence = institutional relationsInstitutional autonomy that aims to secure conditions needed for impartiality

Institutional autonomy from other branches of government

3 OBJECTIVE structural conditions: security of tenure, financial security, institutional control- freedom from external pressures:

litigants, media, organized groups

- protection from Executive interference in administration / salaries / judgment

Less institutional autonomy from the Executive branch- appointments & removals- “at pleasure” appointments- budget and remuneration- policy-making control- appropriate Ministerial involvement and/or undue

interference in decision-making- freedom from external pressures: litigants, media,

organized groups

Impartiality = state of mind or attitude to issues and/or parties (Partly about the person but also about the institution they belong to. When you assume a role in society, there is a particular morality that comes along with it)

Individual autonomy to decide with an ‘open mind’ and be or appear impartial- adjudicative independence- freedom from internal pressures:

colleagues, staff, higher-ups- reliance on own mind and

conscience to hear the matter fully

Decisions made within a regulatory context and directed by the statute- involvement with other tribunal members- norms, values, priorities, policies set by statute and

Executive [i.e., authorizes ‘bias’]Practices that promote consistency and efficiency but in tension with the judicial model:- expertise, board meetings, membership

Bias = individual subjective judgment Perception of partiality towards particular outcome

Individual prejudgement precluded because of:- already decided (‘closed mind’)- ideological, discriminatory,

arbitrary- conflict of interest- pecuniary interest / corruption- irrelevant considerations

Practices that promote consistency and efficiency but in tension with the judicial model:- individual bias = individual tribunal member- institutional bias = body as a whole

Goals Secure impartiality and ensure decision-making autonomy

Eliminate or reduce inappropriate interference & influenceIncorporate only relevant considerations

Judicial vs. admin tribunal independence:- Look to the statute or relevant procedural code to determine legislative intent WRT independence (Ocean Port)- Admin tribunals not constitutionally distinct from executive (unlike judiciary) no freestanding constitutional

guarantee of tribunal independence currently exists (Ocean Port)- Clear statutory requirements can oust common law guarantees (like principles of natural justice) (Ocean Port)

Ocean Port Hotel Ltd. v BC (General Manager, Liquor Control and Licensing Branch) (2001): O’s liquor license suspended; O appealed and Liquor Appeal Board confirmed suspension; O applied for JR arguing the Liquor Appeal Board was not sufficiently independent and argues that same degree of independence as courts is required; do administrative tribunals require the same level of independence as courts? NO – at pleasure appointments don’t mean the board is not sufficiently independent; valid statutory regime (which existed in this case) prevails over common law principles of

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natural justice if statute is silent courts will infer legislature intended procedural justice but cannot infer if clearly ousted by express statutory language such as this case; admin tribunals lack constitutional distinction from the executive created for purpose of implementing government policy; appeal denied; RATIO: no freestanding constitutional guarantee of admin tribunal independence up to the parliament or legislature to determine the degree of independence of admin tribunals

“At pleasure” appointments and the executives:- At pleasure appointments attract a bare minimum of procedural fairness (Keen)

Keen v Canada (AG) (2009): K removed from job as president of Nuclear Safety Commission over decision to keep plant closed for failure to meet safety standards; Commission has no jurisdiction over medical health but regulates nuclear facilities WRT compliance with health, safety, security, environmental standards; Natural Resources Minister L concerned that commission hadn’t reopened plant bc of severe shortage of critical medical isotopes needed for health care; K refuses to reopen, K terminated – still member but not president; did K receive adequate PF? YES – president is an “at pleasure” appointment which traditionally attracted no guarantees of PF; K got a letter with notice, had opportunity to respond, letter apparently read, disagreed with and then decided on; Dunsmuir reaffirmed that “at pleasure” appointments receive bare minimum of PF; enabling statute for commission; although members are appointed to commission during “good behaviour” there is no indication of appointing president i.e., at pleasure; court will not step in to read in more PF; RATIO: at pleasure appointments attract a bare minimum of procedural fairness

Reasonable Apprehension of Bias:- 2 forms of allegations of bias:

o 1. Perceptions of individual bias impartiality of individual decision-makerso 2. Perceptions of institutional bias impartiality of the decision-making body

- Test for tribunal independence AND reasonable apprehension of bias: “[T]the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (Committee for Justice and Liberty v National Energy Board)

o Onus lies on person alleging bias to raise the issue before the decision-maker at the first available opportunity

o Onus lies on person alleging bias to adduce evidence to meet the reasonableness threshold of “more than mere suspicion”

Focus on the perception of bias objective test (Chrétien)o Presumption of impartiality for adjudicators (Newfoundland Telephone)o Proof = balance of probabilities o Test also applies to decision-making institutions (Lippé)

- Reasonable apprehension of bias test applies flexibly with eye to operational context of tribunal and functions set out in legislation and in practice:

o Strict RAB test applicable to courts and tribunal hearingso Flexible RAB applies to commission of inquiry (Chrétien)

- Closed-mind test:o Applicable to legislative, policy & investigative decision-makerso Closed mind test: The party alleging disqualifying bias must establish that there is a prejudgment of the

matter, in fact, to the extent that any representations at variance with the view, which has been 22

adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. (Newfoundland Telephone)

- Remedy: typical remedy = quash the decision and have matter reheard by differently constituted panel (as they did in Newfoundland Telephone)

Perceptions of Individual Bias: - Four grounds exist at common law to determine whether an individual decision-maker has exhibited bias- Allegation can be brought on more than one ground1. Pecuniary or material interest in the outcome of the matter being decided

1. Only direct and certain financial interests can constitute pecuniary bias (Energy Probe)2. Does not count if the gain is insignificant and no different from that received by average person in a

widespread group of benefit recipients 3. Statute may authorize indirect pecuniary benefit

2. Personal relationships with those involved in the dispute ( Pinochet, Brar ) 1. Includes parties, counsel, witnesses and other admin actors 2. Ask: is the relationship close enough and current enough to pose a threat to impartiality?

3. Prior involvement in or knowledge about the matter in dispute ( Wewaykum, Ocean Port ) 1. Mediation privilege may be directed by the statute2. Statute could authorize multiple overlapping functions that may oust common law3. Focus on the nature and extent of the DMs previous involvement

i. Ex: Wewaykum Indian Band although Binnie’s involvement was more than pro formal management, was never counsel of record and played no active role in dispute claim after filed; not involved in the litigation in a material way

4. Attitudinal predisposition towards the outcome (i.e., a prior, fixed view – Chrétien ) 1. Test = flexible and ranges in application from strict to lenient depending on nature and function of the

DM (Chrétien)i. Ex: municipal councilor would not be held to stricter adjudicative standards

ii. Admin bodies that conduct policy functions/legislative-like DMS (like municipal councilor) held to more lenient closed-mind standard

Individual Bias:- Baker = leading case on individual bias- Bias is an objective test, not subjective the fact that a DM thinks they have an open mind/is not biased is

irrelevant (Chrétien)- Mid-range RAB test may apply in mixed context such as where it is an investigatory stage but the DM is a judge

(Chrétien)- Strong opinions do not = bias (Newfoundland Telephone)

Baker v Canada (CIC) (1999): B applied for PR under humanitarian and compassionate grounds; B denied PR, not given reasons; Immigration Act had provision allowing JR of decision with leave granted by FCTD; FCTD judgment can only be appealed if FCTD certifies “serious question of genuine importance” for FCA to consider; goes up to the SCC; was the procedure used fair considering all the circumstances? NO – sent back for reconsideration by different officer; once the 5 factors confirmed that the duty of fairness in these circumstances is more than minimal (para 32), applying the common law test for RAB officer’s notes indicate stereotypes regarding mental illness, single mothers, domestic workers and “do not disclose an open mind or weighing of the particular circumstances of the case free from stereotypes” (para 48); RATIO: duty of fairness owed to Baker by the Minister meant that the decision-makers should be free from any "reasonable apprehension of bias” RAB found here

Chrétien v Canada (Ex-Commissioner, Commission of Inquiry into the Sponsorship Program and Advertising Activities) (2008): during commission inquiry into C (PM at the time), Gommery J (head of commission) made statements including: “gov program run in catastrophically bad way”; “simply confirmed findings…which I am entitled to do”’ “what’s C got to

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hide”; “juicy stuff is about to come”…etc; what is the content of PF required and was there a breach bc of RAB? HIGH PF, RAB FOUND – entitled to high level of PF using Baker factors due to potential damage findings could have on reputation – RAB test required is in the middle of the NL Telephone spectrum (Gommery is a judge, lends itself to strict standard but commission has investigatory function which lends itself to closed-mind); media comments made by Gommery unacceptable – right-minded person would believe he was not impartial towards C; RATIO: RAB test applied will depend on context (ex: investigatory but a judge); Gommery argued he was not biased bc he didn’t close his mind RAB is NOT a subjective test it is objective

Closed mind test:- Closed mind test: The party alleging disqualifying bias must establish that there is a prejudgment of the matter,

in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. (Newfoundland Telephone)

Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) (1992): NL utilities board looking at pensions and high exec pay at NL telephone; prior to hearing, member of the board made statements indicating they were against the pension plan/high pay (“who do they think they are” “why should we pay for pension plan”); board disallowed pension plan, did not make order WRT exec salaries; NL telephone alleges bias; BIAS? YES – there was RAB and the decision is void bc it undermines procedural fairness; permissible to have investigative, prosecutorial and adjudicative functions regulate complex/monopolistic industries; cannot assume consumer advocate will be biased bc of representative function – must assume that we all strive to be fair/without bias; strong opinions do not = bias; board is more legislative than adjudicative therefore should have wide license for members to make public comments during investigative stage appropriate test in investigative stage = closed mind test; pre-hearing statements did not satisfy the test BUT post-hearing requires more PF and they indicate a closed mind; RATIO: sets out the closed mind test; damage created by reasonable apprehension of bias cannot be truly remedied. Remedy is making the decision void.

Perceptions of Institutional Bias:- “The requisite level of institutional independence…will depend on (A) the nature of the tribunal, [More Judicial =

More Independent] (B) the interests at stake, [More important interest = More Independent] and (C) other indices of independence such as oaths of office” (CP v Matsqui (citing Valente principles))

- Use RAB test for challenges to particular institutional practices that affect duty of fairness. Bias results from institutional practice, not individual (Consolidated Bathhurst)

- There is a special application of the RAB test to determine if an apprehension of bias across a substantial number of cases exists. This is used for allegations of systemic institutional bias. (Geza)

o 1) Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?’

o 2) Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis using the RAB test.

International Woodworkers of America, Local 2-69 v Consolidated Bathurst Packaging Ltd. (1990): ON labour relations board held full board meeting to discuss draft reasons of one of tis panels in a dispute between W and B; both parties in the dispute were exclude from the meeting; at full board meeting the group discusses and makes a conclusion but issue goes back to the original panel for final determination; board meeting featured the panel and members, discussion limited to policy issues/alternatives, facts taken as given, consensus not required, no minutes, no votes, voluntary

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decision, final decision left to the panel and is not binding; B heard about the meeting and sued arguing institutional bias; did the full board meeting constitute institutional bias, violating PF bc “he who decides must hear”? NO – although may have been different in this context, in this case not an issue; no evidence the 3 DMs were influenced or pressured; no evidence the DMs were “fettered” in judgment; no evidence of factual issues being discussed or of non-panel members participating in final decision; RATIO: 2 part test to determine apprehension of bias in institution

Institutional Independence:- Truly adjudicative bodies may be held to stricter standard (CP v Matsqui)

Canadian Pacific Ltd v Matsqui Indian Band, (1995): Involved appeals from tax assessments of real estate within reserves, a power granted under Indian Act; issue was whether lands granted to CP by R were by definition excluded from lands “within a reserve.”; CP lost at trial and appealed to FCTD arguing that provisions permitting band members to sit on assessment appeal tribunal raised RAB; went up to SCC with CP arguing assessment appeal tribunals inadequate alternative to JR bc the appeal tribunal gave rise to RAB; does the appeal structure lack independence and give rise to bias? TRIBUNAL NOT SUFFICIENTLY INDEPENDENT – Indian Act allows bands to develop internal appeal procedures and should be respected but tribunal members lack sufficient independence; RATIO: principles of natural justice apply to indigenous communities; Valente principles of judicial independence must be applied in context of the institutional structure and functions performed by tribunal grounds for apprehension of bias must be substantial

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STANDARD OF REVIEW

Jurisdiction = “law declared”1. Legal authority or power2. General governmental power to exercise authority over persons/things3. Issues/areas over which a statutory authority has power usually conferred by specific provisions in the statute4. Scope of the court’s inherent power to decide a case/grant a remedy

Legislative Signals WRT Jurisdiction:

Privative clauses:- Initially intended to prevent courts from interfering with substantive outcomes of admin actions via JR;

effectiveness of deterring judicial intervention depended on ease and frequency with which courts could designate issues as determinative of jurisdiction, therefore warranting strict judicial scrutiny

- Types of privative clauses:o Finality clauses – final answer located with statutory delegateo 100% ouster clauses – no JR

- Encourage final resolution, disincentives litigation, allocate scarce judicial resources- Original judicial solution to privative clauses = statutory interpretation strategies read privative clauses

narrowly, determine if DM asked “wrong question”, or block DM’s jurisdiction through the “preliminary question” doctrine

o Jurisdiction protected by privative clauses (intra vires/within jurisdiction) included: Decision-making Fact/law

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Parties Remedies

o Ways DM loses jurisdiction (ultra vires/outside jurisdiction): 1. Legal defect or error can prevent them from acquiring jurisdiction in the first place

Never delegated the authority to do this “Preliminary question”

2. Jurisdiction exists at the outset, but a legal error may subsequently cause the decision-maker to “step outside of” or lose jurisdiction

“Asking the wrong question” Ex: if tribunal crafts a remedy beyond the ambit of its remedial jurisdiction set by its

enabling statute

Concept of Jurisdiction:- CUPE led the way for reasonableness review- Jurisdiction can be delegated explicitly or implicitly in a statute (CUPE)- Jurisdiction is a question of law and a matter of statutory interpretation (CUPE)

CUPE v NB Liquor Corporation (1979): CUPE went on strike under Public Service Labour Relations Act striking employees prohibited from picketing and employers prohibited from using replacement workers; privative clause prohibited reviewing any award, direction, declaration or ruling of the board; employer and union both complained bc workers picketing and employer using replacement employees; board upheld both complaints employer sought JR and it went up to SCC; employer argued that management personnel doing the work didn’t fit the restriction of not replacing striking employees with any other employee statutory interpretation question; what is the correct interpretation of the act and should the court step in? BOARD HAD RIGHT INTERPRETATION AND SHOULD RECOGNIZE EXPERTISE OF BOARD – Dickson noted that there are 4 possible interpretations of the statute; clear that board has jurisdiction and authority to interpret the statute and punish the party in the wrong; interpretation of statute lies logically at the heart of the specialized jurisdiction confided to the board such that board not required to be “correct” but entitled to err and would be protected by privative clause; interpreting the act the way the employer and Court of Appeal did would deprive strikers of right to picket but not deprive employer of right to employ strike-breakers – would sterilize the right to strike; RATIO: marks doctrinal change WRT privative clauses and JR

1. Curial deference towards tribunals: administrators = specialized decision-makers and bear primary responsibility for implementing their statutory mandate and may be better suited to the interpretive task than the generalist judge

2. Provision in dispute “bristles with ambiguities” no single interpretation could lay claim to being “correct” several plausible interpretation s

3. Correctness dropped as dominant standard of reasonableness. Dickson: short of a patently unreasonable interpretation of a statutory provision, courts should not interfere with the result reached by the admin decision-maker

4. Eliminates the “asking the wrong question” and “prelim questions” narrow authority/jurisdiction: ask “did the AT have authority over the subject matter, the parties, and the remedy the parties are seeking?”

Question of fact, law or mixed fact and law? (Southam)- Questions of law are questions about what the correct legal test is- Questions of fact are questions about what actually took place between the parties - Questions of mixed law and fact are questions about whether the facts satisfy the legal tests

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Reasonableness Standard of Review:- Reasonableness simpliciter: An unreasonable decision is one that, in the main, is not supported by any reasons

that stand up to a somewhat probing examination (Southam)- Difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the

defect. (Southam)o If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently

unreasonable. o If it takes some significant searching or testing to find the defect, then the decision is unreasonable but

not patently unreasonable

Canada (Director of Investigation and Research) v Southam Inc (1997): concerned finding by competition tribunal that S’s acquisition of various newspapers within given advertising market lessened competition; monopoly concern; to remedy, competition tribunal gave S option of divesting itself of one of its 3 newspapers – reasons for this decision were hundreds of pages with info on market behaviour; S appeals; what is the relevant standard of review is tribunal’s decision entitled to deference? YES – question involves mixed fact and law which attracts some deference; specialized decision; no privative clause which invites correctness; statutory scheme is complex with economic objectives; specific expertise on tribunal – 8 members have economic and commercial expertise; need standard more deferential than correctness but less deferential than patent unreasonableness reasonableness; was decision unreasonable? No; RATIO: established middle ground of reasonableness

Pragmatic and Functional Approach (pre- Dunsmuir ): - Pragmatic and functional approach (Pushpananthan) replaced older approach of “preliminary”, “collateral”, or

“jurisdictional” question

Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998): P came as refugee and became PR; charged, guilty imprisoned while a PR; renews refugee claim while on parole and is excluded from refugee protection under article 1F(c) which excludes from refugee status those persons “guilty of acts contrary to the purposes and principles of the united nations”; P applies for JR; what is the correct SOR and did this meet the standard? SOR = CORRECTNESS – INCORRECT – Bastarache reformatted the pragmatic and functional question from Bibeault to “did the legislator intend this question to attract judicial deference”?; identified 4 factors relevant to discerning legislative intent that should be assessed and weighed to answer the question: 1) privative clause, 2) expertise, 3) purpose of act as a whole and of provision in particular, 4) nature of the problem; in this case the privative clause was not strong, there was no relative expertise, the purpose of the act granted a statutory right of appeal and is not polycentric and the nature is a question of human rights attract correctness; RATIO: consolidated the pragmatic and functional approach and identified 4 key factors relevant to discerning legislative intent

Pragmatic and functional approach: did the legislator intend this question to attract judicial deference? Assess, apply and way the 4 factors to answer

1. Privative clause :a. Absence of PC does not imply high standard of scrutiny

i. BUT if no PC, patent unreasonableness off the tableb. Ouster clause: a full privative clause is a compelling reason for ample deference c. If partial or equivocal PC, will need to look to legislative intent to determine standard but will not likely

be the PU standardd. If DM does not possess ample expertise, PC will not protect the decision

2. Expertise: a. Most important factor according to Southam [Note: this will become unsettled in Dunsmuir.]b. Assessed by the courts relative to their own expertise, a comparative assessment; e.g., is there a human

rights dimension where judges may be more expert?

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c. Interpretation of enabling legislation—purposes, objective, agency composition—including highly generalized statutory interpretation aka question of law (National Corn Growers)

d. Non-judicial means of implementing the legislation e. Specialized knowledge or legal and policy areas that generalist judges will not know: e.g., economic,

financial, labour, international relations, technical, trade, f. Special procedures for dispute resolutiong. Elected bodies: Ministers and their delegates, school boards, municipalities

3. Purpose of the act as a whole and the provision in particular: a. Purpose and expertise often overlapb. Legislative scheme in its entirety using the modern approach to statutory interpretationc. Provision with a statutory appeal: permits more searching reviewd. Ask if there is a “delicate balancing between different constituencies” (para 36)e. Principle of polycentricity informs the purpose (engages balancing of multiple interests, range of

administrative responses/remedies, large number of interacting interests/considerations/factors, policy formation, cost-benefit analyses, management function, protective role)

f. Assess whether rights/entitlements are protected/affectedg. Attend to language that is vague, open-textured, or grants discretion

4. Nature of the problem: a. Question of law may be granted a wide degree of deference especially when combined with expertise

and/or PC (but question of law generally = less deference)b. Question of fact or question of mixed fact and law or discretionary language = more deferencec. “Pure” questions of law have precedential impact: “a finding which will be of great, even determinative

import for future decisions of lawyers and judges” (para 37)d. Generalized proposition of law = correctnesse. Narrow questions of jurisdiction require correctnessf. Legislative intent re: questions of law [review factors 1,2, & 3] and intersection with expertise

Modern Standard of Review:- Dunsmuir got rid of patent unreasonableness 2 standards of review = correctness (less deference) and

reasonableness (more deference)- Dunsmuir set out 2-step test for SOR- Dunsmuir identified 4 exceptions to presumption of reasonableness- When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be

presumed that the appropriate standard of review is reasonableness (Alberta Teachers)

Dunsmuir v New Brunswick (2008): D dismissed from non-unionized civil service position at DOJ; also held at pleasure positions as statutory office holder; employment governed by two statutes – civil service act and public service labour relations act; D not an ideal employee – received warnings, had errors of judgment, probation extended, etc.; informed about concerns over work performance and D said he would seek legal advice; review of performance never occurred and several months later a meeting was scheduled, cancelled, and followed by a letter terminating without cause; D received severance but argued owed duty of fairness prior to termination and grieved dismissal unsuccessfully, appealed to adjudicator and adjudicator interpreted statutory provisions such that he could consider reasons for discharge (even though “without cause”); adjudicator went on to find that dismissal was not for cause but that D should be reinstated for purposes of running process again and should have had reasons; goes to JR; was adjudicator entitled to inquire into whether D was dismissed for cause (jurisdictional question) and what was the appropriate standard of review for addressing that jurisdictional question? STANDARD = REASONABLENESS, ADJUDICATOR OUTSIDE JURISDICTION – majority eliminates patent unreasonableness; tribunals ought to have margin of appreciation with what they decide; deferential standard here bc privative clause, arbitrator administering discrete and specialized labour law regime, question of law but not of central importance to legal system; however, adjudicator outside jurisdiction; RATIO: sets out 2 step test for standard of review

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2 Step Standard of Review Analysis (Dunsmuir):1. Look to past jurisprudence to see how particular category of question was addressed (if satisfactorily) regarding

level of deference owed.2. If not, contextually analyze the factors using the Standard of Review analysis:

a. Privative clause [important]: if strong, likely reasonablenessb. Purpose of tribunal from interpretation of enabling legislationc. Nature of the question

i. If fact, discretion, policy, mixed fact and law: likely reasonablenessii. If law, then home statute, closely related statutes, expertise in common or civil law rules in the

statutory context: likely reasonablenessd. Expertise of tribunal [tribunal broadly interpreted; also important], discrete and special administrative

regime: likely reasonablenessi. Expertise attaches to the institution or function not the individual decision-maker (Edmonton

East)

Approaches and Models to Statutory Interpretation:Models of Statutory

Interpretation

SkepticRomanticDiceyan

FormalistIntentionalist

PositivistTextualist

NormativePragmatic Judges make it all up.

JR is arbitrary and indeterminate in essence.

Words have a single meaning that is stable over time.Law dictates the answerqua legislative intent.

Interpretation is inherently contestable.Legal meaning is often ambivalent and/or ambiguous.

It's a judge's game.Figure out the desired result and work

backwards to justify the outcome.

Strict focus on text.Situate text in context.

Plain meaning.Appearance of little judicial discretion.

Contextual and purposive.Dynamic interpretation.

Open inquiry into competing values or social/policy priorities.Acknowledge all interpretation involves discretion.

One right answer.Correctness review as the norm.

Little to no deference.

Multiple reasonable interpretations exist.Who is best placed to decide?

Reasonableness review as the norm.Potential maximal deference.

Problems: 1) discretion;2)privative clauses; 3) smuggling

in value-driven choices.

Yes

Problems: 1) sniff test approach; 2)assertion of plain intent.

Judges do not necessarily need to be transparent inthe exercise of their discretionary powers nor in the

reasons they give.All branches participate in a public law culture of justification.

All branches should give reasons for their decisions.

Judicial monopolyStrict separation of powers

Constitutional pluralismInstitutional dialogue

Modern Principle of Statutory Interpretation (Rizzo Shoes):- "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context

and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

o Words read in: The entire context

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In their grammatical and ordinary sense when not defined Harmoniously with the scheme of the Act, the purpose or object of the Act, and the intention of

Parliament Using a textual, contextual and purposive to analyze

Presumption of reasonableness can be rebutted Correctness will apply to: (Dunsmuir)1. A constitutional issue2. A question of general law that is BOTH of central importance to the legal system as a whole AND outside the

adjudicator’s specialized area of expertise (MLQ)3. Drawing jurisdictional lines between two or more competing specialized tribunals4. A “true” question of jurisdiction or vires [narrowly understood]: where the tribunal must explicitly determine

whether its statutory grant of power gives it the authority to decide a particular matter (Northrup Grunman) (Alberta Teachers, Edmonton East jurisdictional exception is NARROW)

Consistency not a standalone ground for rebutting reasonableness standard (McLean)

Rationale for Correctness Review:1. Supervise jurisdiction of administrative decision-makers

a. Generalist judges are uniquely placed and independent of the executive2. Exhibit expertise in matters over which administrative decision-makers are less adept and knowledgeable

a. But not all instances of law interpretation3. Ensure consistency and predictability in the legal system

a. Especially where a range of reasonable alternative interpretations exist?b. Some legal questions require ONE right answer

Correctness Standard in Action: True question of jurisdiction or vires:- Under correctness standard, reviewing court not obliged to consider tribunal’s reasons (Northrop Grumman)- Jurisdiction narrowly construed generally means authority over subject matter, parties, and/or remedies (CUPE,

Northrup Grumman).

Northrop Grumman Overseas Services Corp v Canada (AG) (2009): HMG launched request for proposals for procurement of military equipment; 3 companies bid: N (Delaware), LM (hq in Maryland but have Canadian division), R (hq in Mass but have Canadian office); N submitted unsuccessful bid and complained that there had been violation of the agreement on international trade (AIT); HMB filed for dismissal on grounds that N was not a “Canadian supplier” as contemplated by the AIT; CITT that AIT had standing to bring compliant and HMG filed for JR of CITT’s ruling; can the tribunal hear the compliant and did they err in providing standing to N? N has no standing, SOR = correctness – this is a truly jurisdictional issue bc it determines whether or not the CITT an hear a complaint; “abundantly clear” that AIT agreement pertains to domestic trade within Canada; tribunal got it wrong (note: Liston disagreed that it was “abundantly clear”)

Correctness Standard in Action: question of general law that is BOTH of central importance to the legal system as a whole AND outside the adjudicator’s specialized area of expertise:

- MLQ = example of displacing the presumption of reasonableness

Mouvement laïque québécois v Saguenay (City), (2015): council meetings had opening prayer; prayer was revised and included the prayer (bylaw stated you didn’t have to be in the room while recited); preamble to bylaw “justified” prayer; Quebec human rights tribunal determined the bylaw permitting recitation of religious prayer prior to council meetings infringed freedom of conscience and religion under Quebec charger; what is the SOR and was the tribunals decision reasonable/correct? SOR = CORRECTNESS, TRIBUNAL WAS INCORRECT – this is a question of general importance to the legal system with a need to decide in uniform and consistent manner; tribunal only investigated the prayer issue and not other issues and did not give reasons on all issues; HRT didn’t have jurisdiction to consider the religious symbols issue; HRT stepped out of bounds and made incorrect decision

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Significance of the privative clause post- Dunsmuir : - Privative clauses are highly significant (Khosa)- Privative clauses offer greater protection from judicial review because they are a legislative demand for

deference regarding the statutory delegate’s interpretation of its jurisdiction/scope of authority (Khosa)

Canada (Citizenship and Immigration) v Khosa (2009): K = permanent resident convicted of criminal negligence received conditional criminal sentence bc lacked mens rea; immigration authorities deemed him inadmissible and ordered him removed from Canada for engaging in actions constituting criminality according to the Immigration and Refugee Protection Act; K appealed to the immigration appeal division (IAD) on basis of h&c grounds IAD refused to exercise power to grant relief; eventually goes up to SCC for JR; what is the appropriate standard of review and did the IAD make a reasonable/correct decision? SOR = REASONABLENESS, DECISION = REASONALBE – s18.1(4) of the Federal Courts Act Dictates Grounds for Review, not SOR; SOR is reasonableness bc IAD operating within expertise, h&c relief was exceptional within overall policy framework; question of fact; privative clause; RATIO: Federal Courts Act sets out grounds for discretionary relief, not standards of review (differs from BC ATA); standard of review analysis is not a checklist; cannot reweigh factors;

Similarities and differences in approach to interpreting the privative clause and its relation to the standard of review:

Legislative Intent

Privative Clause (PC)

On Expertise

Standard of Review If NO PC Effect Constitutional

model

BINNIE Dunsmuir(concurrence)

Fundamental re: standard of review, not just another factor in the hopper

Not conclusive but pretty high ranking

Indicates separate ground for deference

Presumptively reasonable-ness

Legislative intent determines whether reasonable-ness or correctness

Applicant has burden to show unreasonableness

Always a judicial-legislative tension in administrative law

ROTHSTEINKhosa (concurrence)

Fundamental re: standard of review

conclusive PC also indicates expertise; fused

IF PC, then presumptively reasonable-ness

Correctness Applicant has burden to show unreasonableness

Tension only if there is a PC

Similarities and differences in determining the reasonableness of the outcome:Binnie (majority) Rothstein (concurrence) Deschamps (concurrence) Fish (dissent)

FC Act = s18.1(4) sets out grounds of review of administrative action which permit remedial relief

Deference is the presumptive approach

PC signals greater deference

Courts ought not to re-weigh or substitute but can determine range of reasonable outcomes

Reasonableness is a single standard contextually applied

SofR = reasonableness

IAD = reasonable decision

FC Act = s18.1(4) sets out the standards of review determined by legislature

Legislated standards oust the common law

Without a PC, correctness is the presumptive approach

PC signals relative expertise

PC signals Dunsmuir standard of review analysis

P’s intent: deference only to findings of fact

∴ SoR = reasonableness

IAD = reasonable decision

FC Act = s18.1(4) sets out the standards of review determined by legislature

Legislated standards oust the common law

Does not sign on to Rothstein’s reasoning inParts I & II---

---

Agrees

∴SoR = reasonableness

IAD = reasonable decision

[I’m not touching that s18.1(4) issue]

SoR = I agree with BinnieIAD should explain disagreement with

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sentencing judge“Incorrect” evidentiary findingIAD = Unreasonable decision

What is a true question of jurisdiction?- True question of jurisdiction is narrow and exceptional; high bar to displace presumption of reasonableness with

a jurisdictional issue (Alberta Teachers)- When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be

presumed that the appropriate standard of review is reasonableness (Alberta Teachers)

Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (2011): IPC found AB teachers had disclosed private info contrary to the Act; under statute, inquiry had to be completed 90 days after complaint received by IPC but adjudicating delegate took much longer; issue of compliance with timelines not raised before the IPC or the adjudicator (adjudicator basically read in extension) but on JR AB teachers argues IPC lost jurisdiction due to failure to extend inquiry period; trial judge found against IPC, IPC appealed; should the timeliness issue have been considered on JR if not raised before adjudicator? What is the SOR? Was the decision reasonable/correct? ISSUE SHOULD HAVE BEEN RAISED EARLIER; SOR = REASONABLENESS; DECISION = REASONABLE – AB teachers arguing correctness review on basis of true question of jurisdiction; this is a tribunal interpreting home statute – supports presumption of reasonableness; although no reasons given, the adjudicators decision (to read in an extension) was reasonable although reasons would have been good

Applying reasonableness:- Celgene = example of reasonableness review as it ought to operate- If there are competing interpretations, and one is most in line with ledge purpose/intent via the modern and

contextual approach, that one will likely prevail (Celgene)- More deference owed if interpreting home statute (Celgene)

Celgene Corp. v Canada (Attorney General) (2011): patented medicine prices review board looked into whether drug prices were excessive and ordered remedy of price reduction; board wanted pricing info from C and C resisted and said board didn’t have jurisdiction to get this info; turns on interpretation of “sold in any market in Canada”; does the board have jurisdiction and was their remedy reasonable/correct? BOARD HAS JURISDICTION, REMEDY REASONABLE/CORRECT – the statutory mandate of the board is to protect Canadian consumers; Abella (majority) says it doesn’t matter which standard of review we choose bc boards interpretation is reasonable AND correct; must ask what interpretation best meets the overriding purpose of the statute (dominant thing we should do in reasonableness review) sold has commercial law meaning but doesn’t mean board is wrong bc they have jurisdiction to interpret “sold” based on their understanding and role mandate of the Board includes balancing the monopoly power held by the patentee of a medicine, with the interests of purchasers of those medicines; didn’t go through Dunsmuir bc neither party argued about standard of review and Abella says it doesn’t matter; RATIO: This specialized Board was interpreting its home statute, which should usually allow it deference; if there are competing interpretations, and one is most in line with ledge purpose/intent via the modern and contextual approach, that one will likely prevail.

Presumptions for reasonableness review: REASONABLENESS is the presumptive standard regarding reasoning and outcome when:

1. a specialized or expert tribunal2. interprets its enabling or home statute (or closely related statutes)3. on a question of fact or mixed fact and law or (in some cases) law4. or exercises broad statutory discretion5. And correctly applies all applicable legal principles or tests

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6. to construct an interpretation of its statutory powers that falls within range of possible acceptable interpretations

7. resulting in a decision that demonstrates justification, transparency and intelligibility usually, but not always, through the provision of reasons

8. and produces a reasonable outcome which is defensible in respect of the facts and law. Note the importance of REASONS in establishing reasonable decision and outcomes

Indicia or badges of unreasonableness:- Illogical, irrational reasoning- disproportionate outcome (eg., in relation to strength of the affected right/interest/privilege)- inconsistency with the enabling legislation (eg, departure from the clear meaning of the statute, neglect of a

statutory duty, conflict with or frustration of statutory scheme/object/purpose)- differential treatment: different decisions reached in respect of highly similar factual situations- failure to take into account a relevant consideration or, conversely, failure to exclude an irrelevant consideration- factual findings made without a rational basis or presence of contradictory factual findings- unacknowledged or unexplained changes in policy or tribunal jurisprudence- interpretive conflict with judicial precedent- absurdity, insanity, complete irrationality, etc.

Note that reasons can be used to explain or justify despite the presence of indicia of unreasonableness as can further evidence

Reasons and Reasonableness:- 2 legal sources for reason giving:

o Statute may mandate that DM must give reasonso Common law

- No general duty to give reasons- Baker established that there are some administrative contexts where reasons are required- Absence of reasons = PF issue (Newfoundland Nurses)- Adequacy of reasons = substantive review issue (Newfoundland Nurses)- Adequacy of reasons not a standalone basis for JR or remedy of quashing a decision (Newfoundland Nurses)- If reasons in fact do not seem wholly adequate to support the decision, court must first seek to supplement

them before it seeks to subvert them (Newfoundland Nurses)- When only limited reasons are required, it is entirely appropriate for courts to consider the reasons that could

be offered for the decision and imply them as the decision-maker’s. (Agraira)

Functions of Reasons: (Newfoundland Nurses)1. Disclose expertise in the subject area of the home statute “using concepts and language often unique to their

areas and rendering decision that are often counter-intuitive to a generalist”2. Justify the decision using transparent and intelligible reasoning that all audiences – counsel, affected persons,

and especially the losing party, reviewing courts, other agencies, and the general public – can understand3. Illustrate that the outcome is also reasonable when, as is often the case in admin decision-making, more than

one reasonable result is possiblea. Clarifies “why this interpretation” and not another possible interpretation

Adequacy of reasons:- Absence of reasons = PF issue (Newfoundland Nurses)- Adequacy of reasons = substantive review issue (Newfoundland Nurses)- Adequacy of reasons not a standalone basis for JR or remedy of quashing a decision (Newfoundland Nurses)- If reasons in fact do not seem wholly adequate to support the decision, court must first seek to supplement

them before it seeks to subvert them (Newfoundland Nurses)

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See case on next page ***

Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) (2011): permanent employee could not include time previously spent as casual employee for purpose of counting vacation; arbitrator wrote 12 page decision; JR of decision/reasons trial judge said reasons were repetitive, not cogent, conclusion unsupported by findings; court of appeal overturned and said reasoning could have been better but good enough; went up to SCC; were the reasons adequate and what is the standard of review? REASONS SUFFICIENT – inadequate reasons do not = unreasonable decisions; deficient reasons not a freestanding ground of appeal; reasons need not be perfect merely sufficient; as per Dunsmuir, adequate reasons exhibit “justification, transparency, intelligibility”; deference as respect as per Dyzenhaus requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in the support of a decision”; reasonable in this context means that the reasons do in fact or in principle support the conclusion reached even if reasons in fact do not seem wholly adequate to support the decision, court must first seek to supplement them before it seeks to subvert them; RATIO: absence of reasons = PF issue; adequacy of reasons = substantive review issue; adequacy of reasons not a standalone basis for JR or remedy of quashing a decision

How is the review of reasons informed by deference? (Newfoundland Nurses)- Inadequate reasons and unreasonable decisions are not identical- Unclear writing does not necessarily indicate deficiency in reasoning- Deficient reasons are not a freestanding ground of appeal- Reasons need not be perfect but merely sufficient- Need not be comprehensive or well-written and may contain errors- Reasons need to be read as a whole and not with “forensic or microscopic lens

Adequate Reasons (Newfoundland Nurses):- Exhibit “justification, transparency and intelligibility” (Dunsmuir)- Permit the parties to understand why the tribunal made the decision- Facilitate the appeal process and judicial review- Satisfy the reviewing court that the tribunal grappled with the substantive live issues- Allow the reviewing court to understand how outcome is within the range of acceptable outcomes

Inadequate Reasons (Newfoundland Nurses):- Bare conclusions with no supporting information- Opaque conclusions- No intelligible path to conclusions- Conclusions not supported by principles- Glaring inconsistencies- Lack of evidence- Irrelevant considerations present / relevant considerations omitted- Minimal reasons which effectively immunize from review and accountability- Exhibit attitude of “Trust us, we got it right.” (VIAA, para. 21)

Remedies and Reasons:- If reasons were required under PF, were they provided?

o If NO, provide them!o If YES:

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Are the reasons so deficient that they no longer count as reasons? If YES, not adequate and will not satisfy reasonableness review If NO, are the reasons deficient in some way?

o If YES, seek to supplement themo If NO, reasons = ok.

Implied Reasons:- Ministers entitled to deference when interpreting their home statute (deemed expert) (Agraira)- Court will seek to supplement inadequate reasons before subverting them (Newfoundland Nurses, Agraira)

o In Agraira, supplemented reasons on basis of implied reasoning

Agraria v Canada (Public Safety and Emergency Preparedness) (2013): A denied refugee status; was admitted to a Libyan organization that previously used violence against the state but had already denounce violence and were part of civil movement to overthrow dictatorship when A joined; A married Canadian who sponsored him for PR PR denied bc of involvement with Libyan org; statutory regime created as result of 9/11 created Minister of Public Safety who makes the decision that A shouldn’t be granted belief bc his presence is detrimental to national interest; A took decision to federal court and won; federal court of appeal overturned; A appealed to SCC; what is the appropriate standard of review for reviewing ministers decision & were his reasons sufficient? REASONABLENESS; REASONS CAN BE SUPPLEMENTED – decision should be assessed on reasonableness, because of both the jurisprudence and the fact that questions of fact, discretion, and policy require deference and this is a DM interpreting their own statute; Ministers reasons said that national interest, national security and public safety all mean the same thing court says no, 3 distinct terms; accepts ministers decision but rejects idea that the terms are synonymous; supplements the ministers reasons and what they think the minister meant when he thought of national inters tbc no express decision; supplement the reasons then assess if reasonable it was reasonable Minister placed particular emphasis on national security and public interest – not outside the interpretive scope. If he had only done that it would have been borderline BUT he considered other factors too, which satisfies that his definition of national interest was not too narrow

Supplemented reasons:- No reasons problem can be “cured” at JR (McLean)- Consistency not a standalone ground for rebutting reasonableness standard (McLean)- McLean supports HIGH DEFERENCE for DM interpreting home statute

o Resolution of unclear language in a DM’s ES is best left to the DM. The exercise of that interpretive exercise is part of the DM’s expertise. They have interpretive discretion.

McLean v British Columbia (Securities Commission) (2013): M engaged in misconduct; under Act, securities commission of one province may take over proceedings from another province’s regulator via settlement agreement but these secondary proceedings must not be commenced more than 6 years after date of the events that give rise to the proceedings; commission engaged in secondary proceedings 6 years after a settlement agreement but 9 years after misconduct; commission didn’t’ explain its interpretation of the provision; M appealed; statutory interpretation issue – what is the triggering even that the 6 years is measured from; are the commissions reasons sufficiently correct/reasonable? SOR = REASONABLENESS, REASONS SUPPLEMENTED TO BE REASONABLE – presumption of reasonableness as per Dunsmuir not rebutted; while limitation periods are generally of central importance to fair administration of justice it doesn’t follow that this limitation period must be reviewed for correctness; consistency not a standalone ground for rebutting reasonableness standard; DM interpreting home statute; all of this supports reasonableness and the commissions interpretation was reasonable largely turns on expertise; person bringing the proceedings has the burden to show both that their interpretation is reasonable AND that the administrative decision-maker’s interpretation is unreasonable; a basis for the Commission’s interpretation is apparent from the arguments advanced by the respondent, who is also empowered to make orders under (and thus to interpret) s. 161(1) and (6)

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therefore will supplement reasons; RATIO: court will supplement reasons in situation of high deference where they can be somewhat deduced

Valid lack of reasons:- Reasons not required to pass municipal bylaws (Catalyst Paper)

Catalyst Paper Corp. v North Cowichan (2012): C had paper mill in municipality; district increased property taxes on C by reallocating burden from long term fixed-income residents to C; C complained but wasn’t seeing results so sues saying bylaw should be set aside on basis of unreasonableness; when can courts review bylaws and are reasons required? NARROW POWER TO SET ASIDE BYLAW, REASONS NOT REQUIRED – narrow and highly deferential scope for JR; courts must be constrained as per rule of law – cannot substitute for other DM unless bylaw enacted for improper purpose; democratic DMs do not have to give formal reasons when they enact laws reasons for municipal bylaw traditionally deduced from debate, deliberations and policy statements; RATIO: power to set aside a bylaw is narrow; reasons not required to pass bylaws

Additional cases that may change…

Wilson v Atomic Energy: Abella in obiter said standard of review is judge made law; should get rid of correctness and just have a standard of reasonableness; Abella for majority said admin decision bodies entitled not to follow stare decisis and reaffirms the reasonableness statute

Kanthasamy v CDA (CIC): disguised correctness review if court says a decision is reasonable bc the court thinks the decision-maker got it right, basically doing reasonableness; situation of application for refugee protection being denied on H&C grounds; Did the Officer reach a decision that was defensible and acceptable on the facts before her. Under reasonableness review, the Officer is allowed to make acceptable and defensible assessments as to the significance and weight of the evidence. Here, the Officer found the evidence to be deserving of little weight. Is there anything in the record that would undercut the acceptability and defensibility of that conclusion? Case involves considerable deference bc discretionary decision and expertise; BUT still not reasonable bc officer took a narrow approach and didn’t give sufficient consideration to P’s youth, mental health, evidence of discrimination if deported, etc.; RATIO: ‘Certified questions’ (those of general importance) are not determinative of the SOR; Certified Q gets you to the FC but doesn’t indicate SOR (though door left open to ‘segmenting off’ the question and reviewing it on correctness).

Edmonton East v Edmonton: should board’s interpretation of the municipal gov act be reviewed on a correctness standard? Does board have jurisdiction to increase property assessment after owner submits a complaint; presumption of deference jurisdictional exception is NARROW; not correctness review here; discusses possibility of new category for correctness review; expertise not inherent in the person attaches to the institution/function (incompetent decision maker but expert institution means you cannot suggest lack of expertise); board had jurisdiction here and there is no prohibition against retroactive taxation SOR = reasonableness, decision = reasonable

CONSTITUTIONAL REASONABLENESS

Discretion = decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. As K. C. Davis wrote in Discretionary Justice (1969), at p. 4: (Baker)

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Statutory Interpretation: Recognizing Discretion:Connection with the modern approach to statutory interpretation: how to recognize discretion:

1. Authorization: may vs. shall2. Delegate broad powers often through general or vague language

• Decision-maker may do anything that is necessary/advisable/expedient to fulfill the power• Decision-maker empowered to act for the public good

3. Objective vs. subjective grant of power such as:• Appropriate and/or equitable remedies in the circumstances• On a balance of probabilities• Good government• In the Minister’s opinion• For the proper purpose• In the public interest• Reasonable/reasonably• Reasonable grounds to believe• Relevant considerations• Satisfaction

Traditional common law grounds of review for abuse of discretion (see Roncarelli as an example):1. Bad faith Roncarelli2. Acting under dictation/influence Roncarelli3. Unlawful delegation of powers4. Fettering treated soft law as if binding

a. E.g. Kanthasamy: the majority decision (Justice Abella) found that the Immigration Officer had unreasonably fettered her discretion by avoiding the “requisite analysis” of s.25(1) of the Immigration and Refugee Protection Act (“IRPA”).

5. Improper/unauthorized purpose or motive went against statutory purposes/frustrated intent of legislature (Roncarelli)

6. Unreasonable/irrational/illogical decision-making7. Omission of relevant factors 8. Consideration of irrelevant factors (Roncarelli The fact that a DM is convinced he is acting in what he

conceives to be “the best interest” of the populace is an irrelevant consideration in decision-making. Baker changed this. Could previously only be reviewed on those grounds. Discretionary decisions now folded into reasonableness review. Don’t tie to a ground, just say it is unreasonable then make argument about why decision is unreasonable argument can refer to some of those grounds. Works for all of reasonableness review, not just discretionary decisions. Common law now more streamlined – just an unreasonable decision. Grounds now just = arguments you can make.

Doré v Barreau du Québec (2012): - Most current precedent WRT an admin decision that infringes a protected right (note: Loyola comes after but

applies Dore)- Facts:

o D wrote letter to a judge who criticized him in court/in his decision o Barreau decided to sanction him for the letter and D argued that doing so infringed his expressive rights

under the Chartero Disciplinary decision that affects a Charter right

- Issue:o Did the Discipline Council's decision infringed his right to freedom of expression under s. 2(b) of

the Charter?o How does the Charter apply to administrative decisions?

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- Law:o Oake’s testo Correctness standard WRT constitutional questions (Dunsmuir)

- Analysis:o Abella: Framework that all admin decision makers should comply with constitutional onus of the

admin decision maker: o a constitutional obligation rests on ADMs exercising statutory functions and making discretionary

decisions to act consistently with the Charter and its values LEGAL OBLIGATION to consider the constitution If we have a constitution/charter, shouldn’t decision maker think about it in every decision that

affects our rights? SCC says YESo ADMs are presumed to have the interpretative expertise to identify and interpret Charter rights and

values as well as identify minimally impairing options Liston disagrees. Ex: Baker decision-makers had no expertise over the Charter. However, we

could train people (but $$$)o if their reasons exhibit a proportionately reasonable balancing of the identified statutory objectives and

Charter values, they are entitled to deference from a reviewing courto administrative law views public authorities in the executive branch as coordinate partners in the

constitutional project by bringing the constitution closer to Canadians through access to justice, interpretation, and remedies

o Methodology for the administrative decision-maker [ADM]: o ADMs should understand the range of Charter values in their statutory environment as well as the

particular one(s) that are engaged in the case at hando ADMs should take the lead on using the Charter as an interpretive aid when considering their enabling

statutes and should consistently consider and apply Charter values in their decisionso ADMs should ask how the Charter value(s) will best be protected in light of the statutory objectives o ADMs should then identify the harms that interference with the Charter value(s) will produce and

consider how to balance the severity of the interference of the Charter protection with the statutory objectives

Balance such to minimally impair (doesn’t have to be the LEAST impairing – like Oakes)o ADMs should select the outcome which “falls within a range of possible, acceptable outcomes,” is

explained by reasons that exhibit both “justification, transparency and intelligibility” and indicate that the decision reflects a proportionate balancing of the Charter protections at bar, so that both the decision and outcome are “defensible in respect of facts and law”

o Abella J: the new methodology: o Reviewing court’s methodology: Dunsmuir not at all related to discretionary decisions that affect a

charter right/value. o Here it is the Disciplinary Council of the Barreau du Quebec: o ADM identifies Charter value(s) and statutory objective(s):

2(b) freedom of expression / “public mandate to ensure that lawyers behave with ‘objectivity, moderation and dignity’” (para 8) from the Code of ethics of advocates

o ADM asks itself how Charter value will be best protected in light of statutory objective: can we see this in the reasons?

o ADM engages in proportionality analysis = balancing the severity of interference with statutory objectives

Barreau du Québec determined that the statements contained in the letter had “little expressive value” (para 16) when balanced against the discipline required to ensure that “lawyers and judges ... work together in the interest of justice” (para 17)

Not the quality/type of expression that we would want to provide constitutional protection to Also judges and lawyers not supposed to be in this antagonistic relationship

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o ADM choses outcome which “falls within a range of possible, acceptable outcomes” and is explained by reasons exhibiting “justification, transparency and intelligibility”

Doré’s comments are not protected speech and, based on the seriousness of Doré’s conduct and lack of remorse, it was reasonable to suspend his ability to practise for 21 days

o How does a court review a discretionary decision that affects a Charter right/value? o 1. Know that the proper framework to determine compliance with the Charter is administrative law

proportionality reviewo 2. Standard of review for discretionary decisions affecting Charter rights/values is reasonableness

(contextually applied) Charter values have a horizontal effect in administrative law similar to the horizontal effect they

have on the common law Past jurisprudence (if satisfactory) may indicate how much of deference was owed in an

analogous case Court must recognize that the ADM is in best position to determine impact of the decision on

Charter values because of the specific facts of the caseo 3. Consider the factors from the Standard of Review analysis to assist with the determination of what is

reasonable and proportionate AND the reasons given Privative clause Purpose of tribunal from interpretation of enabling legislation Nature of the question Expertise of the specialized tribunal

court must recognize that ADM is in best position to determine impact of Charter values on the specific facts of the case

Administrative bodies/public actors empowered and required to consider Charter values within scope of expertise [para 36] and

ADM has skills to recognize that Charter values are fundamental and can weigh/balance them in relation to specific facts and statutory purposes (para 53)

o 4. Consider if the outcome disproportionately harms a Charter value court may ask if a less severe interference was considered or exists

o Central criterion of proportionality in reasonableness review: o Integrate the spirit of s1 into judicial reviewo Affirmation of reasonableness review and deference as respect: o Correctness review outlawed. Cannot do correctness review for a discretionary decision here. o The reviewing court’s conclusion: o Proportional/balancing. Need to ensure discipline and civility. o The Court found that a more flexible approach is required to applying Charter values to administrative

law decisions affecting a single individual, and that a full Oakes s. 1 analysis created too many difficulties.o Should not do Oakes test but instead proposes “proportionality” analysis that balances “the severity of

the interference of the Charter protection with the statutory objectives”o Standard of review for an administrative tribunal's decision as it relates to the impact on a specific

individual's Charter rights is "reasonableness", not "correctness". That is, a reviewing court will only interfere if the decision was unreasonable. If the decision was reasonable, even if the reviewing court would have come to different conclusion, then the reviewing court will not interfere.

o SCC rebrands D’s freedom of expression under s2(a) as a Charter “value” deference should apply to judicial review of a discretionary infringement of this value when Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. As per Dunsmuir, this should attract deference

o With the standard of review in mind, the Court found that a decision will be reasonable if the decision-maker balances the Charter values with the statutory objectives by doing the following:

1. Considering what the statutory objectives are.

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2. Determining how the Charter values at issue are best protected in view of the statutory objectives.

o A court reviewing the decision-maker's decision must decide whether the decision reflects a proportional balancing of the Charter protections in play.

If outcome of the balancing falls within a range of possible, acceptable outcomes, it merits deference

If in exercising its statutory discretion the decision-maker has properly balanced relevant Charter values with the statutory objectives, decision will be found to be reasonable

o In applying the above analysis to D’s case, the Court found that the issue was how to balance the right of freedom of expression and making open criticism of the judicial process with the need to ensure civility in the legal profession. The Court went on to find that the Discipline Council's decision to reprimand D was not an unreasonable balance.

o Admin bodies have an advantage in applying the Charter to specific set of facts in context of their enabling legislation

- Conclusion/Ratio:o Seems that rights protection differs according to whether the Charter is infringed via rule/law or via

discretion (which would attract deference) o Ratio: The Court found that the test in R. v. Oakes (which is used to determine whether a law that

infringes a section of the Charter is unconstitutional under section 1 of the Charter) does not apply to administrative law decisions, although there is "conceptual harmony" between the review for reasonableness and the Oakes framework. Instead, the question is whether the administrative decision is reasonable, in that it reflects a proportionate balancing of the Charter rights and values at play.

o Oakes analysis should NOT apply to admin decisions that infringe Charter rights

Loyola High School v Quebec (AG) (2015):- Court applies approach from Dore- Facts:

o Loyola wanted a partial exemption from mandatory curricular program, Ethics and Religious culture, which taught about ethics and beliefs of various religions from secular and neutral perspective

o Loyola wanted to teach the ethics of other religions from a Catholic perspective o Minister denied Loyola’s request o Loyola brought an application for judicial review, arguing that the normative pluralism “underpinning

the program violated freedom of religion because it was ‘incompatible with Loyola’s character as a Catholic institution'” (Loyola, para 29).

o The application judge accepted this argument, concluding the Minister’s decision was incorrect and violated Loyola’s right to religious freedom. The Quebec Court of Appeal disagreed and overturned the decision. It concluded the ERC program did not interfere with religious freedom in any substantial way. Used reasonableness standard bc post Dore. Found reasonable.

o Loyola appealed to SCC instead of arguing that entire program impaired religious freedom, now narrowed it down to focusing on teaching other religions from a catholic perspective being difficult.

- Issues:o Does the program interfere with religious freedom? Was the decision reasonable/correct?o What is the correct standard of review?o Has the minister given affect as fully as possible to the charter values at stake here?

- Law:o Dore: a decision will be reasonable if the decision-maker balances the Charter values with the statutory

objectives by doing the following: 1. Considering what the statutory objectives are. 2. Determining how the Charter values at issue are best protected in view of the statutory

objectives.

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- Analysis:o Abella stresses the contextual aspect of the Doré framework. She notes that it responds to the diverse

statutory and procedural contexts that decision makers operate within, and provides a degree of deference to the expertise the decision makers bring to the balancing exercise.

o **Methodology for the decision-maker: o 1. DM balances Charter value with statutory objective(s)

How do the context and reasons disclose how the Minister of Education balanced the Charter value with the statutory objectives?

o 2. DM asks how Charter value will be best protected in light of statutory objective How do the context and reasons show how the Minister of Education considered this question?

o 3. DM engages in proportionality analysis = balancing the severity of interference with statutory objectives

Do the context and reasons show that the Minister of Education engaged in a proportionality analysis?

o 4. DM choses outcome which “falls within a range of possible, acceptable outcomes” and is explained by reasons exhibiting “justification, transparency and intelligibility”

Why did the Minister of Education believe the outcome to be justified/transparent/intelligible AND acceptable?

o Methodology for the reviewing court: Abella uses Dore : o 1. Use administrative law proportionality review with the reasonableness standard contextually applied

Why did you think the “concurring partially in the result” judges did not do this?o 2. ASK: Has the decision-maker disproportionately and unreasonably limited a Charter right/value when

exercising a statutory discretion? What makes the decision disproportionate? What makes it unreasonable?

o 3. Consider the factors from the Standard of Review analysis to assist with the determination of what is reasonable and proportionate

How do the Majority and the “partially concurring” decisions consider: Privative clause

o No privative clause Purpose of tribunal from interpretation of enabling legislation Nature of the question Expertise of the specialized tribunal

o All agree that religious freedom needs to be protected. Secular state cannot impose secularity. Religious institutions can exercise their freedom and can be compatible with fundamental values even if done in different ways than secular institution (debated). Public interests can curtail the scope of a right – which leads to a lot of deference.

o 4. Assess if the outcome disproportionately harms the Charter value(s) Do both judgments agree with each other on this point?

o Bottom line: would be unreasonable. Interference wasn’t trivial bc you are requiring L to teach about other religions from a neutral manner (which is a fair requirement) but hard to believe that they can teach their own religion with a neutral perspective inconsistent with the idea of holding a religious belief. Minister gave no weight to religious freedom. No balancing done. Outcome disproportionate.

o In applying Doré to Loyola’s request for an exemption, Justice Abella considered the statutory objectives of the regulation allowing for alternative programming for private schools. She found that in order to be consistent with these objectives, the Minister must consider the competencies the province wished to inculcate in students when it designed the ERC program. She determined these competencies to be flexible and thematic, allowing for significant variation in instruction, as long as the competencies were tied to the program’s goals: the recognition of others and the pursuit of the common good.

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o Bearing this in mind, the Minister’s task when deciding to grant an exemption was to balance the realization of the ERC program’s goals with respect for the Charter‘s protection of Loyola’s collective practice of Catholicism and the transmission of the Catholic faith.

o By requiring that all aspects of Loyola’s alternative program be taught from a neutral perspective, including its instruction on Catholicism, the state was telling it how to teach the religion that “animates” it’s identity. This interferes with the rights of parents to transmit their faith to their children through communal institutions. As a result, the Minister’s decision limited freedom of religion more than necessary given the statutory objectives.

o Despite this conclusion, Justice Abella did not fully endorse Loyola’s alternative program. The program wished to teach other ethical frameworks from the “lens” of Catholic ethics and morality. It was determined that this would transform the ethics component from a study of different ethical approaches to a study of Catholicism. This would delegitimize the other religions in a way that was contrary to the goals of the program. It was determined that requiring Loyola’s teachers to discuss other religion’s ethics in an objective way would not be a serious interference with their freedom of religion.

o Remedy according to Abella J: As a result, she allowed the appeal and remitted the matter to the Minister for reconsideration. Sent back with guidance. Must achieve the proportional outcome – respecting the religious freedom of Loyola – but can decide how to do this.

o Methodology for the reviewing court: Dissent says we should go back to Oakes and goes back to a half/half:

o Dissent considered issue of freedom of religion for institutions (vs. individuals)o Remedy according to the dissent: order (mandamus via s24 of the Charter) the Minister to grant the

exemption (citing Insite) and gives list of things to do. Doesn’t seem like deference as respect…

- Conclusion/Ratio:o 4-3 majorityo By requiring Loyola to teach the ethics of religions other than Catholicism in a neutral and objective way,

Loyola was forced to take some water in their wine. As a result, the decision functions more as a helpful re-articulation of the Doré framework than an strong endorsement of freedom of religion in private educational institutions.

REALIZING ABORIGINAL ADMINISTRATIVE LAW

Haida Nation: key constitutional fact that there were pre-existing communities and legal orders in pre-Canada. Only now are we realizing how salient that fact is.

Royal Proclamation of 1763:- Magna Carta of Indian rights- Representation of the Crown- WRT Indigenous peoples, contains a promise from the king of the rule of law that whoever is living in this

territory should be able to benefit from the laws of England, to be protected by the Crown from incursions and encroachments by other parties, and guarantee that there will be public justice for all as near as may be agreeable to the Laws of England

British North America Act, 1867:- Promise from the Royal Proclamation constitutionalized in the reserve system- Indigenous communities hold land collectively not individually. When it is to be sold/alienated, it goes to the

Crown who is supposed to engage in good faith practices and fair dealings

Constitution Act, 1982:- Recognition of existing aboriginal and treaty rights

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Unwritten principle of the Crown:- Opportunity for constructing a new relationship- Honour of the Crown not meant to be a mere symbol- Recognizes that Indigenous peoples were not conquered but often subdued by an illegal means (proper route

would have been to negotiate treaties). Where there is no treaty, there is a duty on government to consult and accommodate and come up with a sort of co-governing arrangement OR execute a treaty

- Where the Crown wants to alter the existing relationship, must also consult such that no Crown action can be done that affects Indigenous rights/access without consultation

- In admin law, it is protecting rights and interests that have not yet been proved

Current role of the legal system:- Convert a moral and political duty into an effective legal obligation

o Haida Nation v British Columbia (Minister of Forests) [2004]

McDonald v Anishinabek (2006): M hired on probationary basis as First Nations constable; allegations of sexual harassment raised against M; police chief investigated and satisfied complaints could be substantiated never talked to M, concluded M had opportunity to respond; M grieved dismissal to labour board and brought JR application for review of board’s dismissal decision; is the decision-maker a public actor (such that there can be JR)? YES – as a public office holder, M was owed a duty of fairness prior to his dismissal; although the code of conduct is not a statute (therefore violating code of conduct doesn’t entitle M to procedural fairness remedies) court goes back to statutory interpretation and reduces salience of the code; court considers numerous factors to determine if entity is part of gov and subject to private law and concludes yes; court grants application for certiorari and quashed decision to dismiss; RATIO: identifies criteria used to determine if an entity is part of government and subject to public law:

- source of powers- functions and duties of the body- implied devolution of power- extent of the government’s direct or indirect control over the body- power over the public at large- nature of the body’s members and how appointed- how funded- nature of the board’s decisions - constituting documents or procedures indicate duty of fairness is owed- relationship to other statutory schemes or other parts of government, such that the body is woven into the

network of governmentBottom Line:

5. Prerogative writs are available to supervise general machinery of government, even if not constituted by statutory power (i.e., also includes prerogative power and some other forms of non-statutory power)

6. IF decision-maker fulfills a public function or if decision-making has public law consequences7. THEN duty of fairness applies AND decision is subject to judicial review [and will also be subject to substantive

review]8. But compare Mcdonald with Highwood Congregation

a. Bottom line from Highwood narrows this down even moreb. There will be some forms of Indigenous decision makers who will be outside the scope of judicial review

and public law remedies

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First Nations Child and Family Caring Society of Canada et al. (FNCFCS) v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) (2016): sets out remedial principles to further the principle of reconciliation; Canada failed to comply with tribunal order requiring them to cease discriminatory activities and reform policies accordingly mandamus order = remedy

Canadian Pacific Ltd v Matsqui Indian Band, (1995): Involved appeals from tax assessments of real estate within reserves, a power granted under Indian Act; issue was whether lands granted to CP by R were by definition excluded from lands “within a reserve.”; CP lost at trial and appealed to FCTD arguing that provisions permitting band members to sit on assessment appeal tribunal raised RAB; went up to SCC with CP arguing assessment appeal tribunals inadequate alternative to JR bc the appeal tribunal gave rise to RAB; does the appeal structure lack independence and give rise to bias? TRIBUNAL NOT SUFFICIENTLY INDEPENDENT – Indian Act allows bands to develop internal appeal procedures and should be respected but tribunal members lack sufficient independence; RATIO: principles of natural justice apply to indigenous communities; Valente principles of judicial independence must be applied in context of the institutional structure and functions performed by tribunal grounds for apprehension of bias must be substantial

Sparvier v Cowessess Indian Band (1993): The election of a Band Chief under a custom election code was challenged by one of the unsuccessful candidates; does Federal Court have jurisdiction over the Appeal Tribunal? YES – under statute, federal court has jurisdiction over federal board, IF past juris correct, (Gabriel v Canatonquin), federal court has jurisdiction over indigenous DMs; commission or other tribunal; indigenous appeal tribunal = federal board; to the extent that this court has jurisdiction, principles of natural justice and PF must be applied; WRT bias this is an appeal board regarding an election dispute – appeal board had 3 members delegated power to decide on facts, application of law, customs this is adjudicative so more stringent application of RAB test but small community so somewhat relaxing bias standard; normal remedy WRT elections would be to see if election should be annulled but this could be problematic; Part of the issue was over whether one of the people who ran was properly a member of the community. This goes back to issues of colonialism – at times arbitrary lines drawn. Not up to us to decide who is part of the community – so what is the right remedy? Remedy = If there were problems with the election and the appeals tribunal, court coming in and telling them what to do won’t help. Counsel should go back, consult with community, come back to me and say what you think the remedy is. If I think its ok, that is what we will do.

Pastion v Dene Tha’ FN: also about an election; sets out several things about aboriginal admin law:- General presumption of deferential review post-Dunsmuir plus Indigenous DMs applying Indigenous law have

expertise that courts do not haveo Request for correctness review rebuttedo Election regulations = home statute of the elections appeal board

- Where reasons are given court is obliged to hear them- Imperfect reasons are still reasons - Not the courts job to pick apart reasons – as long as reasons = plausible its OK- Supplemented the board’s reasons

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FRAMEWORKS

PROCEUDRAL FAIRNESS GUIDE

Principle One: The Right to be Heard (“Audi Alternam Partem”):

Step 1: Is the duty of fairness triggered? AKA Cardinal threshold met? Duty of fairness applies to every public authority making an admin decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual (Cardinal)

1. Is it a truly public authority? (Highwood, McDonald) 2. Is that authority making an administrative decision?

o Versus a legislative decision or pure policy decision3. Are the persons rights, privileges or interests affected?4. Do any exceptions apply?

o Preliminary: duty does not usually apply to preliminary decisions or investigations. The less final the decision, the weaker the content

o Legislative: when exercising legislative functions, legislatures need only comply with constitutional requirements no additional procedural obligations under admin law

o Subordinate legislation: not subject to PF unless situation where it appears bipolar and specific rather than general such as in Homex

o Emergencies: emergencies can suspend or abridge (condense) duty of PF (Cardinal)o Public officer under contract: where a public employee is protected from wrongful dismissal by contract,

their remedy should be in private law not public law (Dunsmuir) i. Note: duty of fairness will still apply when: 1) despite appearances to contrary, employee not

actually protected by employment contract (at pleasure appointments like ministers or judges) or 2) by necessary implication from a statutory power governing the employment relationship

Step 2: If a duty is triggered, what does the DOF require in the relevant circumstances? (aka content of the duty) (Baker factors) Apply the framework and ask, “was the procedure used in this case fair considering all of the circumstances?”

- Fairness (akin to correctness) = standard of review for procedural fairness (Khela). Framework is an open list of 5 factors weighed and balanced together in order to determine content

1. Nature of the decision and the process followeda. What is the nature of the decision? fact, law, mixed fact and law, discretion, preliminary, investigatory

or final, closer to legislativeb. What is the nature of the process? the closer the administrative process is to judicial decision-making,

the more likely that procedural protections are closer to the trial model (such as an oral hearing, cross-examination, maximum disclosure, and right to counsel). Conversely, the closer the process is to the administrative (and by that we mean executive policy functions) or legislative, the content of PF will be minimal (and if classified as fully legislative in nature, not applicable at all).

c. Criminal/penal More adjudicative = More PFd. Policy/security Administrative; discretionary = Less PFe. Between whom? Polycentric? (less PF) Between 2 parties? (more PF)

i. Disputes between parties pull toward more extensive protectionsf. Are rights involved? If yes, more extensive reasons requiredg. Is it a judicial-type environment? More stringent reasons required

2. Nature of the statutory scheme and the terms under which the body operatesa. Preliminary vs. final decision?

i. Note: if a very important right at stake, reasons requirement may attach to a preliminary decision

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b. PF specified as principle?c. Privative clause?

i. Note: breach of procedural justice NOT protected by a privative clause bc it is jurisdictional d. Notice and/or reasons requirement?e. Appeal? Internal? Statutory? Statutory right of appeal may indicate more PF (enhanced procedures such

as reasons) owed but NOT determinativei. Leave requirement? Signals implicit deference though not a privative clause

3. Importance of the decision to the individual(s) affecteda. More significant the decision, the more stringent the required procedures should be (ex: more

important reasons are)b. High end? (Baker) – Life, liberty and security of the person? Economic? Security? Remaining in country?

More PFc. Right or privilege or interest at stake? Right has most WEIGHTd. Oral hearing more likely if involving: serious import, reputation, livelihood, personal security

4. Legitimate expectations of the person(s) challenging the decisiona. Recall: Only gets you more/better procedure, NOT promised outcome (applies to process not substance)b. Legitimate expectations: holding government to its word (Mavi)

i. Government official makes representations within jurisdiction regarding process to be followedii. Representations must be clear, unambiguous and unqualified

iii. Representations must only be procedural, not substantiveiv. Representations must not conflict with a statutory duty (ex. if in Mavi a govnt official said they

would forgive the debt = would be unenforceable bcus it is against the statutory scheme)v. Proof of reliance is not required

5. Respect for agency expertise in determining and following the agency’s own proceduresa. Agency has jurisdiction to create own procedures (this is a strong legislative signal of confidence & trust

= deference) b. Agency has expertise in determining appropriate procedures in the circumstancesc. Polycentricity and efficiency concerns tend in the direction of minimal reasons requirement

Step 3: What kind of procedural fairness did the plaintiff get? Elements of a fair procedure include:

Pre-hearing At hearing Post-hearing- Sufficient notice

to all relevant parties

- Know the case to be met

- Disclosure of relevant info

- No delay

- Paper (usual)/oral hearing (credibility)- Right to counsel in some circumstances - Relevant parties present- Check rules re: admissible evidence- Relevant facts/issues are before the

DM for consideration- No bias or lack of impartiality- Institutional independence

- Case decided by person who heard claimant

- Reasons (sometimes given orally at the hearing)

- Relevant changes in circumstances since first hearing may require a re-hearing or a re-opening

Basic content of procedural fairness (Baker):- Notice: was notice adequate? Notice = most fundamental of the participatory rights

o Notice in reasonable time, with description of the process, delivered properly and to the right parties?- Disclosure: Stinchcombe principles do not apply; must be sufficient in order to know the case to be met

o No right to full disclosure; must be sufficient and adequate- Oral hearings: seldom required unless credibility is at issue bc expensive and timely

o Is it an admin tribunal whose procedures are informal? Paper hearings, no face-to-face meetings, no opportunity to argue against other party’s submissions, not knowing actual identity of the DM? Oral hearing less likely

- Right to counsel: no right to counsel in administrative proceedings- Right to call evidence & cross-examine witnesses: normally part of oral hearing

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o Much more limited in paper hearings- Procedures specified in statute: if yes, may give rise to legitimate expectations (Mavi)- Timeliness and delay: delay may be a breach of fairness and usual remedy would be ordering an expedited

processo Would have to be a particularly egregious case but statute can demand that matters be dealt with in

timely manner/give specific timelineso Any efficiency/cost concerns?

- Reasons: may be required in some circumstances

Principle Two: Independence, Impartiality and Lack of Bias (“nemo judex in sua causa”):

Step 4: Is there a reasonable apprehension of bias? Using the Baker framework to determine the level of fairness, apply to RAB. If you determined that a low level of PF was required for the first principle, that may mean the reviewing court will be reluctant to find a reasonable apprehension of bias in that particular context. The converse would be true if a high level of PF was required, especially if the context was adjudicative, and review for fairness would be more demanding.

Test is applied flexibly with an eye to the operational context of the tribunal as well as the functions set out in legislation and in actual practice

1. Test for tribunal independence AND reasonable apprehension of bias: “[T]the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (Committee for Justice and Liberty v National Energy Board)

a. Onus lies on person alleging bias to raise the issue before the decision-maker at the first available opportunity

b. Onus lies on person alleging bias to adduce evidence to meet the reasonableness threshold of “more than mere suspicion”

i. Focus on the perception of bias objective test (Chrétien)c. Presumption of impartiality for adjudicators (Newfoundland Telephone)d. Proof = balance of probabilities e. Test also applies to decision-making institutions (Lippé)

2. If alleging individual bias, which ground are you alleging bias on? (can be more than one) - Four grounds exist at common law to determine whether an individual decision-maker has exhibited bias

1. Pecuniary or material interest in the outcome of the matter being decided i. Only direct and certain financial interests can constitute pecuniary bias (Energy Probe)

ii. Does not count if the gain is insignificant and no different from that received by average person in a widespread group of benefit recipients

iii. Statute may authorize indirect pecuniary benefit2. Personal relationships with those involved in the dispute ( Pinochet, Brar )

iv. Includes parties, counsel, witnesses and other admin actors v. Ask: is the relationship close enough and current enough to pose a threat to impartiality?

3. Prior involvement in or knowledge about the matter in dispute ( Wewaykum, Ocean Port ) i. Mediation privilege may be directed by the statute

ii. Statute could authorize multiple overlapping functions that may oust common lawiii. Focus on the nature and extent of the DMs previous involvement

1. Ex: Wewaykum Indian Band although Binnie’s involvement was more than pro formal management, was never counsel of record and played no active role in dispute claim after filed; not involved in the litigation in a material way

4. Attitudinal predisposition towards the outcome (i.e., a prior, fixed view – Chrétien )

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i. Test = flexible and ranges in application from strict to lenient depending on nature and function of the DM (Chrétien)

1. Ex: municipal councilor would not be held to stricter adjudicative standards 2. Admin bodies that conduct policy functions/legislative-like DMS (like municipal

councilor) held to more lenient closed-mind standard3. If alleging institutional bias “The requisite level of institutional independence…will depend on (A) the nature of

the tribunal, [More Judicial = More Independent] (B) the interests at stake, [More important interest = More Independent] and (C) other indices of independence such as oaths of office” (CP v Matsqui (citing Valente principles))

a. Use RAB test for challenges to particular institutional practices that affect duty of fairness. Bias results from institutional practice, not individual (Consolidated Bathhurst)

b. There is a special application of the RAB test to determine if an apprehension of bias across a substantial number of cases exists. This is used for allegations of systemic institutional bias. (Geza)

i. Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?’

ii. Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis using the RAB test.

c. Examples of institutional bias:i. Terms of appointment – do they lead to questions about independence/undue influence on

decision-makingii. Payment – decision-making at the pleasure of the government therefore will just advance

government policy?iii. Exercise multiple functions that should be kept separate? Ex: investigative stage should be

separate from decision-making stageiv. Closeness of the DM to governmentv. Permissible for the legislature to build in bias (Celgene all about consumer protection. Built in

bias. Not about company profits – therefore cannot run a bias argument.)4. Which test should be used to determine bias regular (RAB strict/flexible) OR closed mind?

a. Reasonable apprehension of bias test applies flexibly with eye to operational context of tribunal and functions set out in legislation and in practice:

i. Strict RAB test applicable to courts and tribunal hearingsii. Flexible RAB applies to commission of inquiry (Chrétien)

b. Closed-mind test:i. Applicable to legislative, policy & investigative decision-makers

ii. Closed mind test: The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. (Newfoundland Telephone)

Procedural Fairness Conclusion: Remedy

Step 5: Remedy = revised procedures and a reconsideration of the decision, but not the substantive outcome- Check home statute or other relevant states regarding statutory rights of appeal (affect jurisdiction of reviewing

court)- JR occurs after final decision made and all reconsideration and appeal routes have been exhausted

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- PF is a jurisdictional issue and breach of duty of PF always renders decision invalid (Cardinal). Decision is quashed (certiorari) and sent back to DM with order for fairer procedures (mandamus)

- Typical remedy where RAB = quash the decision and have matter reheard by differently constituted panel (as they did in Newfoundland Telephone)

Questions to ask when considering remedies:- How do we know that the claimant has ability to access judicial review?- What kind of statute is involved?- What information can you discern from the language of the relevant provisions?- Which courts have jurisdiction over this matter?- What considerations can you identify that a judge would have in mind when hearing the compliant?- What is the typical admin law remedy for this type of problem?- What is the range of outcomes that can be reached in this case? Broad or narrow?- Can you may any demands using mandamus?- What rule of law problems exist?

STANDARD OF REVIEW GUIDE

Dunsmuir sets forth a two-step methodology to select the appropriate standard. It current presumesreasonableness standard, with an ability to rebut this presumption.

Step 1: Start with the Dunsmuir 2-step SOR test:1. Precedent? Look to past jurisprudence to see how particular category of question was addressed (if

satisfactorily) regarding level of deference owed.a. NO – don’t have the scope of precedent to be able to establish the standard of review in this context.

2. If no precedent, or unsatisfactory precedent, contextually analyze using the modern approach to statutory interpretation (Rizzo Shoes) and the non-exhaustive factors in the standard of review analysis (formerly the P&FA from Pushpanathan) = THE WEIGHING STEP as noted in Dunsmuir, because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future. The analysis must be contextual.

a. Privative clause [important]: if strong, likely reasonablenessi. Privative clause is highly significant (Dunsmuir, Khosa)

1. Full privative clause = exclusive jurisdiction + finality of decision + no appeal + no JRii. A presumption of reasonableness exists on a question of law if a full privative clause is present

1. Some judges see privative clauses as determinatively indicating reasonableness review and that its absence indicates legislative intent to select the correctness standard (Rothstein J in Khosa).

2. Other judges think that “a privative clause [should not be treated] as conclusive, but it is more than just another “factor” in the hopper of pragmatism and functionality” and that the existence of a privative clause presumptively forecloses judicial review on correctness unless the applicant can show that the clause, properly interpreted, permits it or there is some legal reason why the outcome cannot be given effect. (Binnie J in Dunsmuir). Some also consider expertise equally significant as privative clause (Iacobucci J in Southam, Binnie J in Khosa). So far, this view has carried the day.

b. Purpose of tribunal from interpretation of enabling legislationi. Purpose and expertise often overlap

ii. Principle of polycentricity informs the purpose (engages balancing of multiple interests, range of administrative responses/remedies, large number of interacting interests/considerations/factors, policy formation, cost-benefit analyses, management function, protective role) polycentricity warrants more judicial restraint (Pushpanathon)

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iii. A provision w/ a statutory appeal mechanism warrants more searching reviewiv. Assess whether rights/entitlements are protected and/or affectedv. Attend to language that is vague, open-textured, or grants discretion

c. Nature of the question Question of fact, law or mixed fact and law? (Southam)i. Questions of law are questions about what the correct legal test is

1. Less deference generally unless combined with expertise and/or privative clause2. More deference owed if interpreting home statute (Celgene)

ii. Questions of fact are questions about what actually took place between the parties 1. Attracts most deference

iii. Questions of mixed law and fact are questions about whether the facts satisfy the legal tests1. Attracts medium deference (Southam, Pushpanathon)

d. Expertise of tribunal [tribunal broadly interpreted; also important], discrete and special administrative regime: likely reasonableness

i. Expertise attaches to the institution or function not the individual decision-maker (Edmonton East)

ii. Higher relative expertise attaches to administrative bodies that deal with the following:1. Domestic and international economic matters (National Corn Growers, Southam);2. Financial matters (McLean);3. Technical matters (Celgene);4. Highly political matters often involving Ministers (Agraira, Lake,) or5. Cabinet/Governor in Council (CNR v Canada (AG)); and, labour boards and adjudicators

(CUPE, Alberta Teachers).6. Similar deference will be accorded to ADMs of a democratic pedigree such as school

boards and municipalities (Chamberlain, Catalyst Paper). This may include Indigenous DMs.

In light of the above factors, the analysis supports/rebuts the presumption of reasonableness.

However, the presumption of reasonableness can be rebutted…

OR

This supports a correctness standard does this fit into one of the categories of correctness?

Note: Reasonableness (contextually applied) will be the presumptive standard of review and the conclusion when:- A specialized or expert tribunal- interprets its enabling or home statute (or closely related statutes)- on a question of fact or mixed fact and law or (in some cases) law- or exercises broad statutory discretion- And correctly applies all applicable legal principles or tests- to construct an interpretation of its statutory powers that falls within range of possible acceptable

interpretations- resulting in a decision that demonstrates justification, transparency and intelligibility usually, but not always,

through the provision of reasons- and produces a reasonable outcome which is defensible in respect of the facts and law.

o Reviewing court recognizes DMs margin of appreciation within the range of acceptable and rational solutions

Onus rests on applicant to show that the interpretation and the outcome are both unreasonable Onus rests on applicant to rebut presumption and have correctness selected and applied

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Step 2: Presumption of reasonableness can be rebutted Correctness will apply to: (Dunsmuir)

Correctness review = questions of law

1. A question of constitutional law, division of powers or expressly charter rights matters a. Ex: tribunal determines constitutionality of a provision in a statute

2. A question of general law that is BOTH of central importance to the legal system as a whole AND outside the adjudicator’s specialized area of expertise (MLQ)

a. Ex: concepts from common law (such as solicitor-client privilege), or civil law or international law; interpreting foundational concepts like “state neutrality” (UNLESS tribunal has particular expertise in the interpretation and application of a general common law or civil law rule in relation to a specific statutory context ex: statutory limitation periods, costs)

3. Drawing jurisdictional lines between two or more competing specialized tribunals4. A “true” question of jurisdiction or vires [narrowly understood]: where the tribunal must explicitly determine

whether its statutory grant of power gives it the authority to decide a particular matter (Northrup Grunman) (Alberta Teachers, Edmonton East jurisdictional exception is NARROW)

a. Jurisdiction narrowly construed generally means authority over subject matter, parties and/or remedies (CUPE, Northrup Grunman)

Consistency not a standalone ground for rebutting reasonableness standard (McLean)

This does not fit into any of the 4 exceptions and thus the presumption of reasonableness is not rebutted SOR = reasonableness.

OR

This is a situation of #___ and therefore rebuts the presumption of reasonableness SOR = correctness.

Examples…- Ex: presume to be reasonableness bc home statute but to be sure will do analysis- Ex: there are statutory signals such that presumption of reasonableness can be rebutted bc of statutory right of

appeal

Step 3: Apply the standard!

Applying the reasonableness standard:

Was the standard of reasonableness met in the circumstances? No re-weighing of relevant factors in discretionary decisions is permitted. (Suresh ... but now reconsidered bc of Baker and Dore)

- Look at reasoning, reasons, outcome (Dunsmuir)- Is outcome within the range of possible acceptable outcomes defensible in respect of the facts and the law?

(Dunsmuir)- Is there justification, transparency and intelligibility to the decision? (Dunsmuir)- Indicate some expertise (recall: interp of HS gives ADM interp upper hand don’t construe jrdx too narrowly)- Recall: reasons need NOT be perfect (prohibition on re-weighing, but that’s what courts do!)- Apply to fact, talk about in terms of impact on client, importance of interest, PI imp’ce; rhetoric of public law

Indicia or badges of unreasonableness:- Illogical, irrational reasoning- disproportionate outcome (eg., in relation to strength of the affected right/interest/privilege)

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- inconsistency with the enabling legislation (eg, departure from the clear meaning of the statute, neglect of a statutory duty, conflict with or frustration of statutory scheme/object/purpose)

- differential treatment: different decisions reached in respect of highly similar factual situations- failure to take into account a relevant consideration or, conversely, failure to exclude an irrelevant consideration- factual findings made without a rational basis or presence of contradictory factual findings- unacknowledged or unexplained changes in policy or tribunal jurisprudence- interpretive conflict with judicial precedent- absurdity, insanity, complete irrationality, etc.

Are reasons required?- No general duty to give reasons

o Mavi no reasons requiredo Reasons not required to pass municipal bylaws (Catalyst Paper)

- Baker established that there are some administrative contexts where reasons are required- Absence of reasons = PF issue (Newfoundland Nurses)- Adequacy of reasons = substantive review issue (Newfoundland Nurses)- Adequacy of reasons not a standalone basis for JR or remedy of quashing a decision (Newfoundland Nurses)- If reasons in fact do not seem wholly adequate to support the decision, court must first seek to supplement

them before it seeks to subvert them (Newfoundland Nurses)- When only limited reasons are required, it is entirely appropriate for courts to consider the reasons that could

be offered for the decision and imply them as the decision-maker’s. (Agraira)

Were the reasons adequate?

Adequate Reasons (Newfoundland Nurses):- Exhibit “justification, transparency and intelligibility” (Dunsmuir)- Permit the parties to understand why the tribunal made the decision- Facilitate the appeal process and judicial review- Satisfy the reviewing court that the tribunal grappled with the substantive live issues- Allow the reviewing court to understand how outcome is within the range of acceptable outcomes

Inadequate Reasons (Newfoundland Nurses):- Bare conclusions with no supporting information- Opaque conclusions- No intelligible path to conclusions- Conclusions not supported by principles- Glaring inconsistencies- Lack of evidence- Irrelevant considerations present / relevant considerations omitted

Can reasons be implied (Newfoundland Nurses) or supplemented (Agraira)?- Court will seek to supplement inadequate reasons before subverting them (Newfoundland Nurses, Agraira)

o In Agraira, supplemented reasons on basis of implied reasoning

CASES that apply Reasonableness:- Southam (Competition Tribunal re: newspapers in the Lower Mainland)- Khosa (Indian permanent resident; deported on basis of serious criminal re: street race causing death)- Catalyst Paper (municipal gov’ts owed deference; range of deference; supplement reasons)- Agraira (definition of national interest; court supplements based on implied reasoning)

Applying the correctness standard:

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No deference is owed to the reasoning process. From the outset, the reviewing court asks whether thetribunal’s decision was correct. It is effectively a de novo reviewing process.

The reviewing court is not obliged to consider the tribunal’s reasons (Northrup Grumman). Correctness permits substitution of court’s interpretation and imposition of the correct answer. BUT correctness review is now less frequent than reasonableness review (McLean). In many cases, it will not be necessary to consider all four factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

Correctness permits substitution of the court’s interpretation and imposition of the correct answer. CASES that apply Correctness:

- MLQ (question of general importance to the legal system with a need to decide in uniform and consistent manner

- Northrup Grumman (American company lost military contract; TRUE issue of jurisdiction)

Step 4: Remedy:

Usual remedy is certiorari – QUASH decision and send back for re-determination.

Could supplement/imply resons

Can also use, at FC, for example: remedial power of FCs; other prerogative writs (declaration; order s/o to fulfill duty in partic way: Insite; prohibit DM from acting, etc.)

Other remedial action:- Mandamus - Damages for loss of income under Paradis Honey (can use broadly on the exam but note that all the stuff is in

obiter)- Costs- Statutory reform - Media

Questions to ask when considering remedies:- How do we know that the claimant has ability to access judicial review?- What kind of statute is involved?- What information can you discern from the language of the relevant provisions?- Which courts have jurisdiction over this matter?- What considerations can you identify that a judge would have in mind when hearing the compliant?- What is the typical admin law remedy for this type of problem?- What is the range of outcomes that can be reached in this case? Broad or narrow?- Can you may any demands using mandamus?- What rule of law problems exist?

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