Admin Law Study Notes

CH 1: THE ADMINISTRATIVE STATE AND THE RULE OF LAW- create a new legal framework, administered by some agency, other than the courts of law after an identification of a problem not addressed by the operation of the market or private law (3)- nearly all public programs originate with a statute enacted by either the provincial or feds legislature to create new legal rights and dutiesIndependent Admin Agencies > (1) independence from govt (sort of), (2) those liable to be affected by a decision are given an opportunity to participate in the decision making process, (3) admin agencies typically operate where the public program is applied to the individual, (4) they are specualized (12-15)Independent Admin Agencies over Courts? > (1) decisions made would be inappropriate for Courts, (2) decisions made by people with expertise other than judges, (3) claims involve small sums of money, thus no need to clog courts, (4) more informal = expeditious Grounds for Review > (1) Procedural Impropriety: must give prior notice or opportunity to respond, (2) Illegality, (3) Unreasonableness, (4) Unconstitutionality

CH 2: CONSTITUTIONAL BASIS FOR JUDICIAL REVIEW- Constitution provides no provision that expressly deals with the power of the courts to review decisions of admin agenciesS96 Constitution 1867: provides for appointment of judges. Through s96, courts have assumed power to review legislation investing a provincially established administrative tribunal. (Re Residential Tenancies – see public)-if functions provided for in legislation ought not to belong to court (privitive clause), under s96 legislation will be unconstitutional (Crevier) Judicial Review and Charter of Rights > arguable that adequate access to JR is a requirement of the principles of fundamental justice for the purpose of s7 – “life, liberty, sec of person”

CH 3: THE ROLE OF JUDICIAL REVIEW - see ch5 Baker v Canada (1999)(Facts: lady had been rejected for application to remain in Canada based on Officer’s letter to Minister – she said she should have been exempt based on humanitarian and compassionate (H+C)) Procedural Fairness: is variable and depends upon facts in each case Factors affecting procedural fairness: (66-67)

1) Nature of decision and process to making it2) Nature of statute (ex – greater protection will be required if there is no appeal procedure

provided for in statute)3) Importance of decision to individual affected4) Legitimate expectations of person5) Choices of procedure of agency itself

Also:Provision of Reasons: in some circs reasons will be required as part of procedural fairness. In Baker they were given as she was provided with the Officers notes Legitimate expectations: depends whether statute affords one over and above normal. In Baker, she had a chance to put forward in writing her position, thus

http://canadianlegalnotes.tripod.com/

Participatory rights: individuals affected should have reasonable opportunity to give evidence to support case – here, she had the opportunity in writing as oral hearing is not mandatory in H&C decisions Apprehension of bias: would reasonable person think decision made unfairly with bias? In Baker, there was bias based on what Officer wrote Discretionary decision-making (ie. where decision maker (eg Minister) is given statutory authority to make exceptions) -decision must be made within bounds of statute, however considerable deference will be give to decision maker Standard of reviewPragmatic and Functional Approach (Pushpanathan): considers several factors as to whether administrative decision should be judicially reviewed. The more discretion left to a decision maker, the less courts should interfere – legislature intention primary importance (text pg 76).Ask:1) -is there a privative clause?2) -what is expertise of decision maker3) -what is purpose of provision and act as a whole4) -what is nature of problem in question, and does it relate to question of fact or law. In Baker, looking and H+C cases, facts of the case are very important. APPEAL ALLOWED based on bias and he didn’t take children enough into account STEP 1: JR Application re: procedural issue- Does duty of PF apply? CH4- If so, has duty been met (content of PF) CH5- If not, quash – all or nothing approach STEP 2: JR Application re: substantive issue- review merits or substance of decision according to appropriate standard of review- based on what SOR is selected (correctness or reasonableness) the court will either give deference to the tribunal or give no deference

CH 4: PROCEDURAL FAIRNESS: THE THRESHOLD – of whether you should be afforded PF

In order to determine if procedural fairness applies a court must first consider if the threshold has been met. If the court finds that there should have been a duty of procedural fairness and it was not complied with then the decision of the board/tribunal/commission will be quashed.

STEP 2: Examine the StatuteDoes the statute remove PF owed under the CL? ** SHE WILL SAY IN EXAM IF THIS APPLIESIf its in there: Say that it supersedes CL.Ex. Statute will say: “we can refuse your application without a hearing” or something like that


Need clear provision to take away right to PF- Where unambiguous, the statute will supersede the CL

NOTE: If statute says ‘you must give notice—look to CL to see what adequate notice is; ‘must give hearing’—look to CL to see what adequate hearing is

STEP 3: Apply the Common Law Step 1: Is there a right, privilege or interest at stake? 3 factors in assessing whether there was a duty of fairness: Knight (originally from Cardinal):1) Nature of decision: (Administrative v Legislative OR Final v Interim) (a) Is the decision ‘final’ or ‘interim’?

- Final/determinative = duty à If JR = final and court can quash decision- Interim = no duty à Right of Appeal clause = interim

Exceptions: - Recommendation based on investigation (interim) could lead to a final decision (Re

Abel)- If recommendation would have minor impact on final determination = no duty of PF

(Dairy Producer’s Co-operative Ltd v Saskatchewan) b) Is the decision administrative (ie. specific to the person) or legislative (general effect)?Rule: Look at the nature of the decision itself, and NOT the form of the power being exercised (Homex)Consider: (1) Number of people effected (Homex), (2) Nature of who made the decision (Inuit), (3) Effect of the decision (Homex; School closure cases) and (4) Decision made on broad grounds of public policy falls short of test Administrative = duty OR Legislative = no duty- “a purely ministerial decision, on broad grounds of public policy, will typically afford the

individual no procedural protection” (Martineau v Matsqui Institution) If ‘legislative’, do one of these apply:

(i) Cabinet/ Cabinet Appeals:Rule—General legislative decisions determining policy of broad application do not attract the duty of PF (Inuit Tapirisat)Inuit Tapirisat: no duty to afford PF to cabinet material. Telephone rates affected vast number of people; Cabinet had vast powers to be able to intervene on own motion/discretionary powers

(ii) By-laws : Rule: if bylaw is directed at one person and it is not of general application, then that by-law will required a duty of PF; however if by-law directed at everyone = legislative- Absurd to allow everyone a hearing- If by-law directed at single person = specific and duty of PF owed (Homex)- On-going dispute = duty to afford PF (Homex)Note: If decision is specific and final = duty (Knight- decision final and dealing specifically w him)

(iii) Policy making & school closures:Rule: PF not applicable to legislative or policy decisions. The rationale for this is that it would allow too many ppl to be given a hearing. For PF to apply to a policy or legislative decision, the duty to afford PF must be clearly spelled-out in the legislation (Canadian Association of Regulated Importers v Canada)School closure: difficult to determine whether admin or leg…(say both views)


View 1: Admin: b/c duty of PF applies to decisions that affect a finate group and have a high degree of impact (Bezaire v Windsor Roman Catholic Separate School Board)- School closures are policy decisions w broad impact on finite grpView 2: Legislative: b/c it could be considered a general policy decision PF will not be given for:1) Government acting for private citizen (Dunsmuir)If there is a K, then look at that K—private employment law will provide for protection for employees through notice period (Dunsmuir) 2) Government tendering/contracting:Government tendering demands that all bidders compete on a level playing field in terms of the call for tenders, and certiorari is available to quash the award of a contract in the event that the process was flawed- If public money spent for improper or in improper manner, the conduct of the

municipality should be subject to JR (Shell Canada) Facts: Vancouver decided not to do business w Shell; reviewable under PF because:(i) Government not acting purely as private citizen(ii) Government acting outside of its statutory mandate—disapproval of South African

regime beyond what municipality expected to do(iii) Although decision not reviewable, decisions should be carried out fairly 2) Nature of relationship between decision-maker and the individual: (not always applicable)Rule: Most often the relationship is Public Body and Citizen BUT this element acts as a ‘catch-all’ for thinking about other things that may alter analysis that flows from nature/impact of decision If employment relationship:a) PF applies whenever there is a decision to terminate a public officer whether for privilege or notb) Focus on the nature of the employment relationship/ ‘office holders’ (Knight; Dunsmuir)

(i) No K of employment and the office is purely statutory (ie. Minister and Judges) = duty of PF

(ii) If terms of employment expressly provide for summary dismissal or are silent on the matter/ employment ‘at pleasure’ = duty to afford PF

(iii) If the terms of appointment confer procedural rights = statutorily based right to PF, but no CL right

(iv) If the relationship is purely contractual, should be treated in private law-- look at that K—private employment law will provide for protection for employees through a notice period (Dunsmuir)

3) Effect of decision on the individual’s rights: it was clearly established that termination of employment is a significant decision with an important impact Step 2: Consider if any of the following apply1. Emergencies:Randolph – withdraw mail service to a person without a hearing when basis for decision was belief that the mails were being used for criminal purposes.Cardinal -Two prisoners were being held in isolation after being involved in a hostage taking in an attempted escape. They were placed there without given a hearing. It was done so in an emergency situation so PF did not apply.


V.M. v. BC - Jehovah’s Witness parents received minimal notice and ability to challenge medical evidence when the Director seized their sextuplets to give them blood transfusions. In this case there could be no “interim” decision.**If only for an interim basis, like most emergency cases, and is open to reassessment in the context of an explicit provision after the event hearing then DoF will not apply in emergency situations. 2. Investigatory/Interim DecisionsRule: An investigation with recommendations that is not a final decision owes no right to PF BUT if those recommendations are going to have so much weight in the process that it is effectively the decision then there will be right to PF. In an investigation, the rights, privileges and interests of a person are usually not in issue. Report: If it’s a report (and it hasn’t decided anything) and the report affects the reputation of a person then there may be a duty of PF on the makers of the report. Kriever Commission Guay v. Lafleur [1965]: G was one of a group of taxpayers whose affairs were under investigation. He was unsuccessful in being allowed to be present for the questioning of witnesses. Re Abel and Advisory Review board [1979]: Persons detained after being found NCRMD were denied access to the Board’s materials and report. Final decision was made by the lieutenant-governor. Court found virtually only chance of success applicants had was a positive report. Persons had a right to assess the reports and materials and recommendations. 3) Legitimate Expectations-A person who’s interest is affected and has developed a LE that he or she will be accorded procedural fairness then that person should receive procedural fairness. -How would a LE arise? Element 1: Look at past conduct and practices of parties. To form a LE requires a clear unambiguous and unqualified promise (through words and/or action): It must be clear that what those were the past practices and procedures were always offered in that manner. E.g. CUPE (no firm practice in past of ministers appointing form the list. Each minister did it differently)Element 2: The expectation cannot conflict with the statutory duty. You cannot change the statute because of an expectation. Element 3: The doctrine of legitimate expectations does not give rise to substantive rights. It is only a source of procedural claims: Reference re Canada Assistance Plan (**Need to find a LE is a procedure used. i.e. always get reasons. To say they always made the same decision would be wrong as this is getting into substantive law.) à Split on if Actual Knowledge or Reliance is required. Furrey said yes but Binnie J in Mtn Sinai said No. à Relief is procedural and within the powers of the Admin body Mtn Sinai

CONSTITUTIONAL DIMENSIONS of PF-see ch 11 analysis re jurisdiction- Again, we are looking to see whether the ‘procedural’ threshold has been crossed before we conduct the analysis in Ch 5 STEP 1


Threshold: When the statute explicitly excludes procedural entitlements or is interpreted not to allow procedural entitlements, then you can use the Charter or BoR**Statute overrides common law. Charter or BoR overrides statute! STEP 2Once you find that the Charter of BOR applies, you have to find a right that applies

o Charter S.7o BOR S. 1(a)o BOR S. 2(e)

BILL OF RIGHTSSTEP 1- Bill of Rights: matter must be in federal sphere (only applies to federal statute) BUT.... Does not include Canada’s Business Corporations Act- Unlike the Charter, the reach of the BOR corresponds generally to that of JR under the Federal Court Act. Not confined to just the government. STEP 2: ESTABLISHING A RIGHT UNDER BILL OF RIGHTS S1(a) BoR- s1(a): “right of the individual to life, liberty and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law” Threshold: Only applies to individuals (natural persons), not corporations Element 1: Is there a right to life liberty and security (similar to s7 interpretation)? And Element 2: enjoyment to property? AndElement 3: the right not to be deprived thereof except by due process of the law? USE Bill of Rights, s. 1(a) for “due process” = procedural fairness (notice, opportunity to make submissions, some substantive content, property rights)

S2(e) BoRs2(e): “no law of Canada shall be construed and applied so as to… deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”

• Threshold: Person rather than individual (Includes corporation)

Element 1: Was person deprived if the right to a fair hearing?Element 2: In accordance with the PoFJ?Element 3: For the determination of his rights and obligations? Main Determination CASE EXAMPLEDoes the s2(e) of BOR apply to Cabinet Decisions? In order for s2(e) of the BOR to apply to cabinet decisions the “rights” and “obligations” must be unique to the person or interveners bringing the application. If broad application and not specific to you, then wont work : National Anti-Poverty Organization It is not enough when someone has an interest in the decision or an interest is being affected: National Anti-Poverty Organization


S 2(e) of the Bill applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determine indvl rights and obligations. >>> It does not impose on Parliament the duty to provide a hearing before the enactment of legislation. (Authorson v. Canada (Attorney General) (2002) – interest on veteran pension denied, bill passed through all necessary readings etc. They argued this went against their ‘enjoyment of property’ under 1(a)) NB: “Unless the conflicting legislation expressly declares that it operates notwithstanding the Bill of Rights, the Bill of Rights applies and the legislation is inoperative. The Bill of Rights protects only rights that existed in 1960, prior to its passage”: Authorson CHARTER OF RIGHTS AND FREEDOMSCharter of Rights and Freedoms: may be federal or provincial sphere Charter s2 everyone has the following rights: a) freedom of religion b) freedom of thought, belief, opinion , expression and pressc) freedom of peaceful assembly and association s7 right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.s 8 Everyone has the right to be secure against unreasonable search or seizure.s9 Everyone has the right not to be arbitrarily detained or imprisoned.s 10 Everyone has the right on arrest or detention(a) to be informed promptly of the reasons therefor;(b) to retain and instruct counsel without delay and to be informed of that right; and(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.s 15 (1) Every individual is equal before the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Section 1 and the Oaks Test : {STATE} – Charter rights have been breached and will depend on a charter analysis, per s1 and the Oakes test.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Once a violation of a Charter right is found the burden shifts to the Govt to show that the limitation in justified. The Oaks Test. a) Importance of the objective b) Rational connection between the objective and he means c) Minimal impairment possible. à If justified that portion or the Statute has no force or effect. S52(1) STEP 1


http://laws.justice.gc.ca/fra/charte/1.html

Must involve state action:Because of applying only to governmental action, does not cover same scope as judicial review (or Bill of Rights in federal sphere): - Even if public, not necessarily government action: McKinney v. University of Guelph,- Human rights commissions are bound by the charter: Blencoe- BUT…. Some bodies otherwise not “government” may be when implementing government policy or program: Eldridge (in that case, translation services for the hearing impaired) STEP 2ESTABLISHING A RIGHT UNDER CHARTERS7: Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice

• S7 is the principle source of procedural protections (Also has a substantive component)

ELEMENT 1: Was the right to life, liberty or security breached?Security of the person: (1) Interference with bodily integrity and; (2) Serious state-imposed psychological stress constitutes a breach of an individual’s security of the person and; (3) Also includes freedom from the threat of physical punishment or suffering from Singh (included deportation where life may be threatened). ELEMENT 2: If so, was it in accordance with the POFJ? Accordance with POFJ:Not in accordance with “PFJ” if the A has no knowledge of the Ministers case beyond the rudimentary reasons which the minister has decided to give him in rejecting his claim: (Singh v. Canada (Minister of Employment and Immigration) – wanted refugee status for fear of prosecution in India – they were denied by the Minister, who took advice from Refugee Committee – HELD – their Charter rights were violated by not giving them a hearing) WHAT PROCEDURAL CLAIMS MAY BE MADE UNDER THE CHARTER (POFJ)Singh: “at a minimum” s 7 includes procedural fairness Charkaoui: disclosure of case to meet is a principle of fundamental justice; if not full disclosure, must be “substantial compliance” with principle; s7 breached and could not be saved under s.1. Chiarelli v. Canada (Minister of Justice) (1992) SCC P. 231: The court held that disclosure of confidential sources wasn’t required by PFJ – he had been given a summary of the evidence (if he wouldn’t have been given this – might have been a breach) but the names of the sources are not required Suresh v. Canada (Minister of Citizenship and Immigration) (2002) SCC P. 298: - Where risk of torture, information re deportation must be disclosed and individual given opportunity to respond; reasons required for relevant issues. Subject to claims of privilege- Did not insist that there has to be oral hearing could be done in writing. Minister had to provide reasons.


Three differences b/w BOR and the Charter S.7:The use of the term “individual” and “person” in BOR, as opposed to “Everyone” in Charter-Everyone includes corporations-Whether corporations is included in the BOR has yet to be definitively be determined-The inclusion of enjoyment of property in BOR-S.7 does not include protection for property rights-c. The attachment in s. 2(e) of procedural protections to the “determination of rights and obligations” CH 5: THE CHOICE OF PROCEDURES – see ch3 (what procedures are required to make decision process fair, the courts have flexibility in determining the procedural requirements- full hearing to written submissions)

- once it has been est that the threshold for PF has been met, it is necessary to determine the content of procedural fairness based on the 5 Baker factors as applied in Suresh to help us determine how much procedural fairness should be required 1) Nature of the Decision Making Process

a) Is it a discretionary decision? (More reason for PF)- Argue that if there is a high level of discretion then perhaps can lean towards PF to

ensure that discretion was exercised properly. b) Is the decision of a serious nature, does it affect those around them?

- If yes à then the greater the impact then the more rigorous the procedural protections will be mandated. i.e. torture and deportation is most serious

- When doing this analysis it is best to do it in the context of a comparison to cases such as Baker and Suresh in order to determine the serious nature of the decision. E.g. in Suresh there was the issue of torture or deportation in Baker.

c) Does the process resemble a judicial decision?- The more the process resembles a judicial decision, the more likely procedural

protections will be required Knight*higher severity = PF; higher discretion = no PF 2) Nature of Statutory Scheme> Greater procedural protection required when there is no:1. provision for a hearing 2. if the decision is final and determinative (Baker), - If there is a privative clause this would seem to suggest that procedural fairness should

apply as the decision is likely final and determinative. 3. If no requirement of oral or written submission, 4. If no right of appeal, 5. Only subject to JR as judges can only quash they cannot replace decision of the board. 3) The Importance of the Decision to the Individual Affected4) Legitimate Expectations of Person Challenging Decision (see above)5) Choice of Procedures Made by the Agency > expertise + discretion requires lower procedural fairness CONCLUDE a LOW - meting, informal, reasons, right to be hear in some way


MED - written subs, right to heard in some way HIGH -full court procedural, oral, legal rep, range of PF should be Applied. Once you determine, based on the 5 factors, how much PF should be required, you apply this standard to the CONTENT of PF below – see if any of the “content” below has occurred CONTENT OF PF: WHAT SPECIFIC PROCEDURE ARE YOUR SEEKING – WHAT DID THEY MISS? PRE-HEARING CONTENT ISSUESNotice- notice of a hearing must be provided to the person that the hearing will affectTake into account > (1) Form: oral or written, (2) manner of service: Re Rymal – can be reasonably expected to come to the attention of interested persons, (3) timing: must get early enough to have reasonable opportunity to participate (Krever), (4) content: notice must be reasonably effective in providing information (Ontario Hydro)Kriver- HIV inquiry regarding blood transfusions. At conclusion of hearing notices were issued indicating the possibility of Misconduct and allowing the party to respond. Argued that notice at end of hearing was inadequate. Held: was adequate as not Crim trial consequences less serious and less PF required. Parties were sophisticated. Need for Flexibility, and tailor procedures to specific facts.Re Webb welfare housing, kids out of control was give oral and written notice, was adequate. - requirement for Notice = fairness, not perfection DiscoveryThe Stinchcombe Rules require the Crown to disclose all relevant information in its possession, subject to privilege. Having information available is an aspect of fairness. There are two kinds of administrative law disclosure: from the Tribunal to the parties (the Tribunal vets the material, sometimes adds its own, and sends it to the parties); and bw the parties. -Duty of fairness does not require the disclosure of all relevant info. -First, look at disclosure requirements in the statutory or tribunal rules of procedure. The -CL level of disclosure is flexible, depending on the Baker factors. -This is illustrated by different rules for different bodies: - Generally, mutual disclosure is required for documents that will be relied on. Participants generally have the right to reasonable information in advance – requests for full discovery rights have occasionally been accepted. > Privilege will still be protected. Additionally, some factors may require non-disclosure, such as: national security, confidentiality, other policy reasons, or other fairness concerns.


May v. Ferndale Institution > inmates, computerized reclassification system Here, CSC’s failure to disclose the scoring matrix was a clear breach of its statutory duty of disclosure. > Without the scoring matrix, the inmate were deprived of information essential to understanding the computerized system which generated their scores and were prevented from formulating a meaningful response to the reclassification decisions. Pritchard v Ontario (Human Rights Comm) –see agency counsel below> SCC of Canada confirmed the application of solicitor-client privilege to legal opinions prepared by an administrative agency’s in-house counsel. >> The work done by in-house counsel involves legal and non legal responsibilities. The application of privilege depends on the circumstances in which advice is sought and given, the subject matter of the advice and the nature of the relationship. When solicitor-client privilege is found, it applies ”with equal force in the context of advice given to an administrative board by inhouse counsel as it does to advice given in the realm of private law.” DelayKodellas- Human Rights case delay of 4 yrs between complaints and hearing. Delay fault of Commission. K had intended to call whole staff and his memory had faided. Actual Predjudice found. BUT parties expected to make efforts to preserve evidence and locate witnesses, and may have proceed without all witness. > (1) whether delay is prima facie unreasonable considering time requirements, (2) reason for delay, (3) the prejudice/impairment that delay caused Blenco, the court looked at > (1) impact of delay, (2) nature of proceeding/statute/body, (3) cause of delayWhat To understand from this case: What the threshold was for a remedy and what the threshold was for a stay of proceedings as a remedy? § If you meet the high threshold, the delay would be so severe that it would be contrary to

justice and would prevent a person from answering the case i.e. dead witness § Where the remedy is a stay of proceedings, the threshold to be met is high b/c a stay of

proceedings is a serious remedy. The threshold must be an abuse of process.§ There are other remedies available – e.g. cost and less serious remedies could be met by a

lower threshold THE ACTUAL HEARING Oral HearingThere is no presumption of an oral hearing- Factors to consider > (1) Nature of issue (Masters: accused of Sexual assault after investigation interviewed women. He applied for JR of the Investigative report, argured that he was not involved in interviews, or given witness details. HELD- no trial type hearing as process not close to a crim trial. PF was satisfied by giving him names of witnesses so he could interview then himself.): fairness does not generally require oral hearing in investigative context or where individual knows the case against them(2) Credibility (Khan- Law student who failed evidence, said she had 4 booklets. Took it to JR HELD – the case stood on her creditability so oral hearing required. Different if just arguing that grade was to low. -When credit an issue decision maker may need to see expressions, hear speech of person.-where credibility is involved, oral hearing is probably required


Open Hearing (Oral Hearing allowed)S 9 SPPA (Stat Power Procedure Act) (Ontario): conditions the exercise of discretion of Tribunal to hold open hearing with a presumption in favour of openness.-consider countervailing factors: (1) Freedom of expression and media access = open; (2) privacy rights of complainants, witnesses, etc. = closed 1) Does the Agency have Discretion to Close or does Statute Mandate it Closed Charkaoui2) If Not Consider - -freedom of expression media access, Privacy rights, reputation, stigma, commercially sensitive material. Right to Counsel- There is not general right to counsel (Re Men’s Clothing)Factors > (1) complexity, (2) capacity, (3) impact of outcome (Re Parrish))-consideration of s7 Charter also relevant as it does not give absolute right to counsel (Howard v Stony Mountain)-In Ontario Right to council Provided for s10 SPAA when, Individual subpoenaed, required to attend and testify under oath, reports are made public, individual can be deprived of rights/livhood Disclosure A party is entitled to know what evidence and representation have been given and is entitled to adequate opportunity to respond (Kane, Charkaoui)-there are presumptions in favour of disclosure, look to see if there are reasons for non-disclosure Disclosure > giving information to the parties that the agency has relevant to the decision -criminal law standard for disclosure, not applicable to admin (May- jail transfer scoring matrix)- If an agency relies on evidence or representations and does not disclose or give an opportunity to respond, decision can be challenged (Kane) Exceptions to Disclosure- 3rd party interests (protection of sources) (Gallant)- Crown Privilege: can be applied under Access to Information Act- Access to Info Statutes: don’t preclude CL right to information- commercially/politically/security sensitive info (Chiarelli)- cost and delay- interesting in obtaining candid, complete, and objective advice Unacceptable Reasons for Not Disclosing- tribunal claiming that the person already knows the information or asserting that the ‘info is accurate’ (Gough)- Dr. doesn’t want to reveal full reports Charkaoui > The Immigration and Refugee Protection act allows the Minister of Citizenship and Immigration to issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada . > The certificate and the detention are both subject to review by a judge of the Fed Court in a process that may deprive the person of some or all of the information on the basis of which the certificate was issued or the detention ordered. > The secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him and hence to challenge the government’s case. > This in turn undermines the judge’s ability to


come to a decision based on all the relevant facts and law. >The infringement of s 7 is not saved by s 1 of the Charter. Official NoticeExtent and manner to which agency may use material not in evidence. Rule: If administrator is relying on something outside record, must advise parties so they can counter it.What types of material not in evidence can an agency use? > (1) Decision maker’s own expertise. (Ie property assessment.), (2) Creation of a board with specialized expertise implies an intention decision-makers will use that expertise in reaching decisions. (3) Colleague’s experience/collective knowledge of agency members. (4) Information gained in past cases. (5) Books/files. Admissibility of EvidenceRules of evidence not applicable to agencies unless expressed by statute (which is rare).-If normal rules of evidence not required to be followed, still procedural fairness required.-therefore PF may only be invoked where more severe rules of evidence not followed Cross ExaminationCross-Examination: where right to full hearing involved, cross-examination more likely should be allowed (Innisfil v Vespra: whether the opposing municipality were entitled to cross-examine the official of the ministry who had presented letter stating the govt policy had been settled). Consider whether agency is exercising Court-like function in determining rights, or is simply administrating (Innisfil v Vespra). Cross-examination to be “reasonably required” under s 10.1(b) SPPA. When will PF require Cross-Examination? > (1) impact and seriousness of decision, (2) nature of proceeding (Innisfil), (3) how important the witness evidence is (Re Country of Strathcona), (4) effectiveness of another means to challenge the evidence (Re Country of Strathcona)-Importance of the Evidence to the case – adversarial nature, impact of decision, other means to challenge evidence. Re Country Strathcona – Witness out of country so couldn’t cross and test evidence. HELD- Opportunity to be heard implies chance to test other sides case. There are other means to test case then cross, the loss of chance to cross taken into consideration of weight given to evidence. Other View:Re B & Catholic Children’s Aid Person put on a Child Abuse Register Child had since recanted; board relied on hearsay evidence from the social worker without hearing from the child. HELD : Reliance on this evidence without ability to cross resulted in a finding of denial of procedural fairness lack of ability to cross was critical to the admissibility of the evidence, POST HEARING ISSUES Reasons- Traditionally, duty to give reasons was not part of PF until Baker, when it est that the duty to give reasons may be required


-There is a duty to give reasons when > (1) decision important to individual, (2) there is a statutory right of appeal, (3) where decisions are discretionary, (4) legit expectations -analyse 5 Baker factors to see if there is a duty to give reasons Reasons should (VIA RAIL CANADA INC. v. NATIONAL TRANSPORTATION AGENCY):

• Indicate factors considered in exercising discretion• Indicate findings of fact that form basis for decision• Indicate evidence on which findings of fact were made• Address major points at issue• Set out reasoning process• Should have been some discussion of what is an “undue obstacle”—define and apply

terms to the facts • Set out and weigh factors• Onerous requirements for reasons in this case

H: The agency failed to provide sufficient insight into the reasoning process or factors it considered in determining obstacle & undue—erred in law. - potential s7 Charter breach if not given substantial information for decision (Charkaou – see abovei) EFFECT OF BREACH OF DUTY TO GIVE REASONS

• Complete failure to give reasons: mandamus – must ask and be denied for reasons (order something to be done)

• Inadequate reasons: quash decision or remit to decision maker to provide reasons or re-hear

CH 6: INSTITUTIONAL DECISIONS – 1 st limb of PF Issue > (1) sheer volume of the decisions to be made may demand a large staff and some arrangements for dispersal of authority; (2) the range and complexity of the issues may make it impossible for any individual to have the time, expertise, and perspective to make an intelligent decision Delegation- delegatus non potest delegare > right to be ‘heard’ means right to be heard by person/members who will make the decision and who have heard all the evidence and argument Rule > a board cannot confer on another the authority to do things which otherwise that person would have to do himselfExceptions > statute permitting delegation (Local Govt Board v Arlidge), - Disciplinary Powers cannot be delegated (Vine) > look at the scope if the provision – ‘personally’ vs ‘any person authorized’ Factors > (1) nature of the decision, if more important to individual, should not be delegated (Vine), (2) Complexity of decision, (3) nature of decision maker, (4) practical factors If Delegation is Permitted must be by :


a) an expressed act b) must not be unlimited c) Delegator must retain ultimate control d) delegate must act with in power Sub-Issue: Deciding without Hearing-principle that only those members hearing all of evidence can decide issue, as otherwise individual whose interests are at stake is not able to put full case forth (Arlidge)- to insist that Miniser’s do everything would impair efficency – they generally CAN delegate (Arlidge) Consultation Among Agency MembersGeneral Rule: If a DM engages in consultation then such procedures must be voluntary and optional. -If new evidence is considered during consultation then the parties have to be given an opportunity to respond. Decision makers cannot be forced to adopt positions they do not agree with by consultation process: IWA, LOCAL 2-69 v. CONSOLIDATED-BATHURST -only hearing members can decide the facts of a case, the relevant law, & application of law to facts. Consultation on policy matters (or research, theoretical law, editing, presentation, etc.) is okay if: parties are informed of any changes and given opportunity to respond; does not force the body’s decision; and no new evidence is provided (Consolidated Bathurst). Advantage: allows for consistency in decision makingDisadvantage: parties cannot respond when Board meets consults -Parties must be aware of all arguments & considerations that impact the decision and given the opportunity to give submissions (Payne). - if after consultation takes place and the board changes their mind > (1) There is a presumption that during consultation the tribunals have followed the procedure in the absence of information to the contrary): ELLIS-DON LTD(2) There must be evidence that the decision was changed/influenced by the process based on factual consideration undertaken by the board in post-hearing consultation in order to find breach of procedural fairness: ELLIS-DON LTD Remember if re: law or policy then this is ok. Agency Counsel- Nearly all admin agencies have legal counsel who may be employed full timeLawyers involved in investigations & prosecutions should not assist those who adjudicate (Quebec Inc v Quebec). During Hearing: Counsel may advise the tribunal – both sides must hear answers & make submissions. Degree of intervention permitted depends on the context & counsel’s perceived neutrality. Counsel Assisting with Reasons: Counsel can assist with reasons – the decision must be substantively the members & counsel should be wary of retiring (going to the end) with the committee members (Spring) Factors to determine counsels role in assisting with reasons: nature of proceedings, composition of tribunal, terms of enabling legislation, support structure available to tribunal, tribunal’s workload etc. (Khan v. C P&S). Reasons review (policy): policies cannot prevent the proper people from deciding the case (Bovbel).


Pritchard v Ontario (Human Rights Comm – see disclosure above Agency guidelines: -Some admin agencies make extensive use of guidelines on the interpretation of their enabling legislation- Members expected to follow guidelines unless exceptions exist. However, must be flexibility to allow for exceptions Thamotharem > Whether guideline 7 in refugee case prescribes a hearing procedure that is in breach of the claimant’s right to procedural fairness >>Despite the express stat authority to make guidelines here, they do not have the same legal effect that stat rules can have > Guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate regardless of the facts of the particular case before them. > Since the language of guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstance, the court should be slow to conclude that members will regard themselves as bound to follow the standard order in the absence of clear evidence to the contrary. EG – Baker – guidelines were applied to the substantive review of the decision. Bezaire failure to follow the guidelines for consultation before school was closed went to whether it resulted in a breach of PF. The Guidelines / Policies Must be flexible to allow for exceptions Thamotharem – see aboveBell Canada- accused of paying female employees less. Issue was the commissioners ability to issue guidelines to fetter the discretion of the tribunal. HELD: guidelines are subordinate leg. To fetter the discretion of tribunal was authorized by law. Guidelines can not be contrary to the act. Can be challenged if issued in Bad Faith or to influence the process.

CH 7: BIAS AND LACK OF INDEPENDENCE – 2 nd limb of PF

General Rule: nemo judex in causa propria sua debet esse – none should be judge in her own cause > no personal interest in decision > cannot have associated with a party or cause BIASTest: Reasonable Apprehension of Bias Test-Committee for Justice and Liberty, Energy Probe: what would an informed person viewing the matter realistically and practically conclude, having thought the matter through? Consider Amount of Bias Allowable- Strictest for judicial decisions, more lenient on political or policy decisions What Type of Bias is Present?

a) Pecuniary/other Material InterestsDirect (ie certain) pecuniary or other material interest in a matter will constitute bias (Energy Probe).

b) Antagonism During HearingMost common situation is unreasonably aggressive questioning or comments about testimony (Gooliah). May indicate decision maker’s bias towards issue.

c) Association between Party & Decision Maker


-self explanatory (Coventant of Sacred Heart – owner of residence was the member’s wife, who was a member of the executive of a ratepayers group) (Marques – since a year had passed b/w positions, it didn’t count: must look at totality of situation)

d) Involvement of Decision maker in Earlier Stage of ProcessUsually where decision maker has heard matter originally that is being re-heard under appeal or judicial review, or has been involved in investigation and decision to proceed with the matter being heard. (National Energy Board) e) Attitudinal / Pre-JudgementAs strong views on a relevant or irrelevant issue. -are the views interfering with the adjudicative process, Newfoundland Telephone- Wells made public comments the pay packages were ludicrous. After hearing began he kept making these comments. NT argued this creates a reasonable apprehension of bias. HELD- he had a Closed Mind to the issue, this applies during the investigatory stage and to a higher standard once hearing begins.Remedy- comes from Cardinal – the decision will be void, denial of a fair hearing die to RAB. Statutory Authorisation of Bias (overlapping roles) - most common responses to an allegation of bias by reason of prior involvement is stat auth Brosseau: if certain degree of overlap of functions of administrative body is authorized by statute, to the extent that it is authorized there will generally be no reasonable apprehension of bias. EA Manning: Dual roles are not sufficient evidence of bias. In such a case, advance information about a complainant is not bias, but prejudgment is – unless permitted by statute. Doctrine of necessity: may require members to hear matter even though they may be biased Québec Inc. v. Quebec: bias analysis considers the nature of the dispute, the other duties of the agency & the overall operational context. Held: The lack of separation of roles in the circumstances violates natural justice. This is based on the nature of the dispute to be decided, the other duties of the agency and the operational context as a whole. -A plurality of functions in a single administrative agency is not necessarily problematic but it must not result in excessively close relations among those involved in different stages of the process. -The fact that lawyers make submissions to directors who have no legal training and then advise them in respect of the same matter raises a reasonable apprehension of bias. -It is equally problematic that the Chairman can initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case, and include himself on that panel. -The reasonably informed person test is appropriate for independence & impartiality. -Independence deals with the structure of the tribunal & its relationship to other bodies; -Impartiality deals with attitude towards the parties & issues. More independence is required for more adjudicative tribunals. - Impartiality does not require an empty mind – the decision maker may consider policies & guidelines that should legitimately bind them (this is an example of guidelines as delegated legislation – legally binding. Other guidelines are merely suggestions, and statutes or rules prevail. Applying a discretionary guideline without regard for the merits of the individual case fetters discretion & breaches fairness).


Bell Canada v. CTEA : > Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. Bell alleged that the Tribunal’s independence and impartiality were compromised by two powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”, and second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries. Held: Independence pertains to the tribunal’s structure and its relationship to other entities. Impartiality pertains to the tribunal’s thoughts regarding the issues and parties towards it . While impartiality is a yes or no question, while independence is much more flexible. On the one hand, the tribunal is adjudicative. On the other, it is implementing a government policy of rectifying discrimination. The power to extend appointments fails the reasonable person test on both grounds, per Valente (judges will see a matter through to its conclusion, regardless of term limits). Also, how would deciding a certain way affect the HRT Chairman’s decision? The HRC’s involvement in the case, including its guidelines, do not affect impartiality or independence, as the guidelines are merely part of the law that governs the tribunal. They are necessary to fulfill the policy objective of the Tribunal, and are permissible as long as they are not so determinative as to prejudge the case. Neither issue challenges procedural fairness, constitutional principles or quasi-constitutional principles (s. 2(e) of the Bill of Rights [the Bill takes primacy over federal legislation, requiring a standard of fundamental justice despite legislation to the contrary]). LACK OF INDEPENDENCE Independence refers to particularly the relationship of administrative agencies and government. Is a risk that bc govt through legislation affects administrative bodies, admin bodies will adjudicate under influence of govt and not independently. However, mere expression of government’s intentions toward an admin body will not give rise to lack of independence finding Sethi. -Consider: would a right minded person conclude members of admin body would lack independence in making decision Sethi (ie. reasonable apprehension test) Charter and Bill of Rights applicationWhere legislative intent against independence is clear, a constitutional or quasi constitutional argument can be made. Challenges to independence can occur under s.2(f) of the Bill of Rights and s.11(d) of the Charter for lack of “independent and impartial tribunal. S. 11(d) only applies to criminal cases while the Bill of Rights only applies to federal tribunals, but the definitions in these cases have spilled over into the administrative law sphere. Canadian Pacific v. Matsqui – regimes to challenge initial assessements re Indian taxes. Only one level of appeal before Fed Court hears it. Indians were eligible appointees, didn’t have to be paid and had no tenure. Companies fought this > SCC basically had split ruling. The statutory intent regarding independence is vital. Independence is based on the relationship, as determined by certain objective factors from Valente: (1) security of tenure, (2) financial security and (3) institutional independence apply to administrative tribunals who adjudicate.Different degrees of independence are necessary in different contexts (adjudicative v. policy, holding hearings, etc.)Consider:-nature of tribunal-interests at stake-other indices of independence


Statutory AuthorizationOcean Port (2001): statute can specifically authorize certain admin bodies so that one cannot claim lack of independence even if violated. In this instance would have to rely on Constitutional breach.

CH 12: THE USE AND MISUSE OF DISCRETION

Does the decision maker have discretion?· Does the statute use the word “may”? · Are there a range of options the decision maker can chose from?· Does the statute refer to opinion, or the public interest?

Abuse of Discretion as Grounds for Judicial Review The forms of abuse of discretion are:i) bad faith ii) not taking into account relevant consideration or iii) taking into account irrelevant considerationsiv) improper purposesRoncarelli v Duplessis > where the statute appeared to grant a discretion but yet the SCC intervened because Duplessis cancelled liquor licence just because he did not like him. He abused his discretion Irrelevant Considerations : a tribunal that is given discretion to decide what matters are relevant does not act ultra vires in exercising this discretion contrary to the beliefs of the court, however the court will intervene and grant appropriate remedy when this is the case (Re Sheehan – was an inmate, there was riot and he was injured applied for compensation. Statue said the board could make an order in its discretion, based on what it consider relevant. The Board denied compensation said he been convicted of a crime before assaults, and didn’t bring a action against Govt body for comp. Court Held – these factor were not relevant BUT on appeal HELD – court wont intervene unless considerations are clearly irrelevant and made in Bad Faith. Failure to take into Account Relevant ConsiderationsAn exercise of discretion will be ultra vires only if agency has overlooked a factor that its enabling statute expressly or impliedly obliged it to consider. (CUPE: ministers discretion to appoint arbitrators – and he appointed past judges > Minister expressly excluded relevant factors legislation said to take into account > “in the opinion of the Minister > did not consider expertise in (labour relations) which were central to the statutory purpose and so the failure to consider them was unreasonable) Improper Purpose: What is the purpose of the act and the consideration leading to the decision. Shell Canada Roncarelli – he was a restaurant owner, he took profits to post bail for Jehovahs Witnesses. The premier instructed the Liquor commissioner to revoke his license. Discretion not exercise for a legitimate purpose, and took into account Irrelevant considerations


Suresh – ministerial discretion to deport someone who was a danger to security of Canada even when there was a possibility that person LL&SP was in danger > -Court gave deference to Minister b/c legislation made it his decision Multiple purposes/considerations: where multiple purposes/considerations exist, decision is ultra vires only where any of those are dominant in outcome of decision Discretion and the Charter, Underlying Principles of the Constitution, and International LawSlaight v Davidson (1989): Need to consider whether use of discretion results in Charter breach, and if so whether breach justified under s.1. In deciding what is reasonable and demonstrably justified, Canada's international treaty obligations are relevant. Chamberlain v Surrey School District > local school board could not impose its religious values by refusing to permit the use of books that sought to promote tolerance of same-sex relationships. Lalonde v Ontario > A tribunal must take unwritten constitutional principles into account when making discretionary decisions.If international conventions can be considered in interpreting enabling statute (Slaight, Baker), then so should the Canadian constitution. Delegated Legislation-delegated legislation subject to judicial review on grounds of ultra vires Consider reviewability of delegated legislation made by:1) Governor or Lieutenant Governor in Council (generally not reviewable unless don’t have jurisdiction, or other severe circs) (Thorne’s Hardware) -Minister/independent agencies (somewhat reviewable of legislatures to delegate individual ministers and independent admin agencies the authority to legislate) (Cox v College of Optometrists – can the College, under the Health Diciplines Act, discipline individual doctors? > ) -Municipal By-laws (courts not hesitant to review delegated legislation passed by municipalities, generally in the form of by-laws)-also note additional by-law grounds of unreasonableness, discrimination and oppression, lack of jurisdiction, abuse of power, serious illegalities (Port Louis – didn’t give notice re tax increase, Shell Canada – Vancouver concedes that the Resolutions discriminate aginst Shell, the issue is whether the discrimination was justified under Vancouver Charter > they are not and therefore ultra vires) Unreviewable Discretionary Powers? Prerogatives-are sometimes reviewable: court more interested in nature of power than its source (ie. whether legislative)-if decision maker makes decisions that alters individual’s rights or deprives them of some benefit/advantage, then judicially reviewable (Council of Civil Service Unions)-decision maker must be empowered by public law


http://en.wikipedia.org/wiki/Same-sex_relationships

http://en.wikipedia.org/wiki/Books

http://en.wikipedia.org/wiki/School_board

Public Interest Immunity & Government Funding-not reviewable by court when PII or govt funding claimed: unless fraud or extreme circs-even Charter arguments shut down Preclusive Clauses and Abuse of Discretion-preclusive clauses can prevent judicial reviewability of claims of public interest immunity-could potentially be breach of Constitution by ousting judicial review of discretionary powers Private Powers of Public Authorities-not yet clear to what extent judicial review of government bodies engaging in private transaction applies > arguments on both sides (pg 1051) If there is a guideline, does it effectively remove the discretion? (Fettering) - A decision-maker that has been given discretion cannot “fetter” that discretion. It cannot limit

or remove its own discretion à Discretion can only be limited by the entity that conferred the power, the legislature.

- Fettering is problematic because discretion is presumable conferred for a purpose. Fettering implies interference with that purpose.

- Fettering of discretion is an issue of PF. The process is either fair or it is not (or it attracts a correctness standard of review).

- If the tribunal has fettered its discretion, a court will intervene and there is no room for deference.

The decision maker can use:- Guidelines, - Checklists, - Reference to previous cases, etc. How do we distinguish between permissible guidelines and impermissible fettering of discretion? - Language of the guidelines (mandatory or suggestive)- Evidence of how the Guidelines are used in practice (whether tribunal members are pressured

or required to follow them or whether they treat them as binding rules rather than mere guidelines.)

Thamotharem v. Canada: Issue was whether Guidelines on the order of question of refugee claimants compromised the independence of the Board.The Court found that the Guidelines were authorized by law (delegated legislation or soft law).The legislature that conferred the discretion could lawful limit it via authorized Guidelines.When is a “guideline” an improper fetter of discretion? - Is the language mandatory or permissive?- Does it allow for exceptions (even if only in exception circumstances?).- In practice, is the Guideline applied as a mandatory directive

SUBSTANTIVE ANALYSIS


CH 9: THE STANDARD OF REVIEW

STEP 1: JR Application re: procedural issue- Does duty of PF apply? CH4- If so, has duty been met (content of PF) CH5- If not, quash – all or nothing approach STEP 2: JR Application re: substantive issue- review merits or substance of decision according to appropriate standard of review- based on what SOR is selected (correctness or reasonableness) the court will either give deference to the tribunal or give no deference History - -Analysis was called the ‘pragmatic and functional test’ and there were 3 standards of review Correctness, Reasonableness Simplicitor, and Patently Unreasonable (Southam). -pragmatic approach focuses on legislative intention > why did the legislature give them this power?-this will allow us to figure out if its in the ‘tribunals’ jurisdiction or not- CUPE > SCC gave a clear warning to courts not to label something a jurisdictional question to be reviewed – the court should take a deferential approach Dunsmuir –He was fired with 4mths pay with out cause. His grevience was denied for PF and lack of notice. Arbitrator held denied PF and in effect reinstated him In JR the test renamed the ‘Standard of Review Analysis’. And made only 2 standards Correctness and Reasonableness . Correctness – the court will not show deference (respect court shows to DM authority) to the DM reasoning process. Court will conducts its own analysis to determine if agrees with DM. If not court substitutes own view and the correct answer. Reasonableness - Court analysis the qualities that make the decision reasonable. The Court considers a) Justification, transparency, or the DM process, b) Does the Decision fall with in a range of possible acceptable outcomes based on the law and facts. STEP 1 (Dunsmuir as 1st set out in Pushpanathan)1) Determine whether statutorily embedded deference standard exits (eg BC Act, below) – if yes go to leg section2) If No, see if CL has already decided which standard to be used (eg Dunsmuir deals with govt contracts) 3) If No, apply Dunsmuir ‘Standard of Review’ analysis and determine which standard to use. (below) IF No… STEP 2 Standard of Review Analysis 1) Presence of a Privative Clauseà is clause stating the decision of the tribunal is final and not reviewable


à suggests that the Legislature wanted the decision made by Tribunal no the courts. à used to avoid delays, expenses, greater deference towards expert DM. The strength of Privative Clause- No PC = correctness…but not always (Mossop)- Weak PC = prob correctness…but could still give them deference (United Brotherhood) Administrative Tribunals Act (BC)s58 – Standard of Review with Privative Clause - Contains patently unreasonableness s58 (1) – tribunal must be considered an expert in all matter it has exclusive jurisdiction. (2) a) – decision can only be interfered with if Pat. Unreasonable b) – tribunal did not fairly c – for all other matter not in a-b the standard is Correctness (3) Decision is Patently Unreasonable if discretion: a) exercised in bad faith b) improper purpose c) based on irrelevant factors d) fails to take Statutory requirements into consideration s59 – Standard of Review with NO Privative Clause 1) For JR the standard to review a decision is Correctness for all questions except those regarding exercise of discretion 2) Must not set aside a finding of fact by the tribunal Unless not evidence supporting it – the finding is otherwise unreasonable 3) Court Must NOT set aside a discretionary decision of the tribunal unless it is Pat. Unreasnable 4) Same as 3) above Federal Court Act s18.1 – see Khosa below for application May grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal: (a) acted without jurisdiction, beyond its jurisdiction or refused to exercise its jurisdiction;(b) failed to observe a principle of natural justice, procedural fairness or procedure that it was required by law to observe;(c) erred in law in making a decision,(d) based decision on an erroneous finding (e) acted, or failed to act, by reason of fraud or perjured evidence;(f) acted in any other way that was contrary to law. Khosa - with respect to the Federal courts act. The legislation has the power to leg a standard of review. The act doesn’t specify a standard of review. Each section must be assessd according to CL standards. The language in the statute Must be direct and state with standard. But the Federal Ct act never set out the standard of review, expressed but in the BC Act it clearly states Pat. Unreasonable so it will apply (Khosa)Vic Times Colonist - suggests Pat unresaonablenss interpreted to mean a High level of deference, because Court cant do anything unless it is a crazy unreasonable decision. 2) The Purpose of the Tribunal According to the Legislation-Dunsmuir, tribunal was meant to resolve dispute in a timely and cost effective method of resolving employment disputes, which suggests reasonableness standard


Consider: choice of remedies, policy type decisions, require weighing of interests considerations, parties called polycentricity 3) The Nature of the Question at Issue - is the issue one of Law, Fact and law or solely Fact?a) if factual/policy(ie creditability) - Reasonableness = more deferenceb) If law and Fact can not be separated - Reasonableness = more deferencec) Interpreting questions of Law in OWN statute - Reasonableness d) Constitutional questions (s96, federal jurisdiction, delegation- Correctness =less deferencee) Any jurisdictional question – Correctness f) Questions of General Law (interpretation of other statutes, bound byfindings of fact) – Correctness 4) The Expertise of the Tribunal Greater deference where the decision making body has more expertise than the courts. - ask if issue is highly specialized in natureConsider: Pushpanathan1) the court assesses the expertise of the tribunal 2) the court considers its own expertise relative to the tribunals 3) Relevance of issue to expertise – process of appointing members to tribunal, necessary qualifications

Can you Determine the Standard From CL (go back to #two from step 1) Dunsmuir- there was privative clause, arbitrator was interpreting his own statute, leg purpose to timely/binding system to resolve disputes. The nature of the legal question was outside the expertise of arbitrator. Standard of reasonableness. -It was though found that his interpretation of the Statute was unreasonable and outside the range of acceptable outcomes Khosa – Immigrant who killed lady in driving accident. Held that after his sentence he was to be sent back to India. Standard was found to be reasonableness applied the 4 factors from PushpanthanAsk: is the decision in the reasonable range Proprio Direct - real estate agent required fees and no sale took place. Breached real estate agent act. Tribunal was interpreting own act so Reasonableness Lake - Ministers decision to extradite person to US for Drug offence. Involved mostly Policy, and extreme end of Admin decision making. Minister had to consider law and statute and the Charter. If the correct legal test was applied by the minister, if so assessed on Reasonableness. Here it was done ok and decision was held to be within range of possible reasonable outcomes.


Segmentation > Where a single decision is challenged on multiple grounds. Applies to: (1) Jurisdictional issues, or (2) Constitutional questions. Both of which are reviewed on a standard of correctness. Segmentation has been viewed and disputed as being a tool that the judges can use to interfere or get around legislation intention to confer legislation on tribunal and not on the courts. Step 1: Look to Levis and Via Rail. Compare those cases to the situation at hand. Case 1: Levis (City) v Fraternite des policiers de Levis Inc: question of whether police officer should be dismissed or not. Two applicable statutes—City and Town Act said ppl convicted must be dismissed VS Police Act said there was discretion to dismiss or not. Arbitrator said Police Act overrode City and Town Act and that discretion applied thus allowed to keep job. ISSUE: question of whether it was possible to divide the application of the statute in terms of which statute governed, which provision applied.- SCC HELD: ‘multiple standards of review should be adopted when there are clearly defined

questions that engage different concerns—however different standards should only be used where there are clear distinctions btw the questions. Segmentation should occur only where the issue is “genuinely external” and “easily differentiated from other issues in the case.”

Here, there were 2 separate questions—1) relationship btw 2 statutes (correctness); 2) interpretation and application of Police Act (mixed fact and law- reasonableness) Danger of segmentation: (Abella J) will lead to more intrusive review of administrative decision making. Thus, it should ONLY occur where the issue is ‘genuinely external’ and ‘easily differentiated from other issues in the case’ (Levis) Case 2: Council of Canadians w Disabilities v Via Rail Canada Inc: FACTS: Via rail acquired new rail cars; Council of Canadians w Disabilities complained to Canadian Transportation Agency about lack of accessibility for users w personal wheelchairs. Agency found undue obstacle and ordered cars to be modified.MAJORITY HELD: single standard of patent unreasonable applied both questions -- 1) authority to decide complaint; and 2) whether there was an undue obstacle

- Court should be reluctant to separate out areas as ‘jurisdictional’ or as relating to a ‘preliminary question’

- This was consistent w majority in LevisDISSENT: disagreed and said segmentation was appropriate Standard of Review for Discretionary Decisions Dunsmuir – the standard of Reasonableness – court will consider whether the discretion falls within a range of possible outcomes. When the Admin Tribunal Act BC applies the Standard of Review is Patent Unreasonableness regardless of a Privative Clause Some Guiding Principles:(1) Findings of fact: Standard usually reasonableness


(2) Questions of law interpreting tribunal’s own jurisdiction, standard (almost) always correctness: Trinity Western University

(3) General questions of law and no expertise: Correctness (Mattel)(4) Where a privative clause: Standard usually reasonableness, rarely correctness; (5) Where there is a right of appeal: Standard usually correctness but could be

reasonableness based on other factors(6) For the exercise of discretion: Standard almost never correctness;(7) For a constitutional question: Standard always correctness.(8) For procedural issues: Standard always correctness. AFTER GOING THROUGH FACTORS YOU WILL MAKE A DETERMINATION AS TO WHICH STANDARD OF REVIEW TO USE TO REVIEW THE DECISION: (1) Reasonableness; Reasonableness standard means deference: respect for legislative choices, expertise of tribunals, and different roles of courts and administrative tribunalsAsk: (1) if there was transparency, justification and intelligibility of the Tribunal throughout the decision-making process; (2) What would a reasonable person think (significant change). Look to see whether the decision of the tribunal falls within range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Reasonableness Applies to: (1) Questions of fact, (2) Discretion and Policy (3) As well as question where the legal issues cannot be easily separated from the factual issues (4) If interpreting a home statute and/or closely related statute then reasonableness but this can be trumped if there is a statutory right of appeal as it pushes us more towards a correctness SOR(5) A strong privative clause(6) Expertise NB: Courts are taking notice of what SCC said in Dunsmuir that one reasonableness SOR does not invite more intervention by the courts: Coffey v. College of Licenced Practical Nurses of Manitoba 2008 MBCA 33, leave to appeal to S.C.C. refused: There is only one reasonableness standard and there is not different levels of deference in that single standard: Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 436 (2) Correctness – no deference to DM and court will take own analysis of issue and decide if the decision was correctly or not correctly decided. - Correctness SOR Applies to: (1) Question of law of central importance to legal system and outside expertise of decision-maker; (2) Question of jurisdiction between two or more tribunals; (3) Constitutional issues(4) If outside expertise of DM then certainly correctness(5) Statutory right of appeal(6) No Expertise


Canada v. Khosa, [2009]-legislature with clear intention can set standard of review- s18.1 Federal Court Act establishes grounds for review, not standards for review -However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles Inconsistency: A Species of Patent Unreasonableness pg(890-915) Question: Can, in the name of inconsistency, a Court quash a tribunal’s decision that is at odds with other decisions or jurisprudence developed by that or another tribunal even though the decision in question is not otherwise unreasonable or patently unreasonable and does not turn on an issue of jurisdiction? Domtar > a lack of unanimity is the price to pay for the decision making freedom and independence given to the members of these tribunals and recognizing the existence of a conflict in decisions as an independent basis for judicial review would, in my opinion, constitute a serious undermining of those principles

CH 11: THE JURISDICTION OF TRIBUNALS AND THE CONSTITUTION

The Charter applies to decisions of administrative bodies because the legislature cannot give statutory power to do something that the legislature itself could not do, that is, violate the constitution: Slaight Communication Distinguish between two situations below and choose the appropriate one. The Constitution can be contravened two ways:1. The legislation may be valid, but the particular decision may be unconstitutional.- If the infringing decision is just one possible outcome of the exercise of discretion, then it is the

administrative decision itself that should be challenged. (Martin/Conway)2. The legislation that creates the administrative agency or that confers power on the

agency may be unconstitutional. - If the legislation expressly confers a power to infringe the Charter, then the statute itself

violates the Charter. (Multani)

SCENARIO 1: Is a party before an administrative tribunal arguing that legislation is

contrary to the constitution?There is no issue that administrative agencies are expected to consider the Constitution, and particularly the Charter and make decisions in accordance with it (Slaight Davidson).

Q1: Does Tribunal have Jurisdiction to Hear Constitutional Matters? Paul v. B.C. [2003] (page 915)A Tribunal has jurisdiction to hear Constitutional matters if its empowering legislation explicitly or implicitly grants the jurisdiction.


-Administrative tribunals w express or implied jurisdiction to determine Q’s of law arising under a legislative provision presumed to have jurisdiction to decide constitutional validity of that provision, as this is also a question of law.(rebuttable presumption) Q2: Is an Administrative Decision Maker a Court of Competent Jurisdiciton?To determine if a tribunal is considered a “court of competent jurisdiction” and can give a remedy under s24(1) you will need to apply the test from Weber v Ontario Hydro: The Tribunal must have jurisdiction over:(1) The parties, (2) The subject matter, and (3) The remedies sought (this is the crucial question) - Can only provide Charter remedies to the extent that they have jurisdiction to order remedies under statute S. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Q3: Can the Tribunal Decide the Constitutionality of a Provision?- not looking for express provisions/jurisdiction to decide Constitutional questions > if the express legislation implicitly or explicitly grants the tribunal the ability to interpret and decide questions of law > then there is the presumption they can decide constitutional questions Q4: Can the presumption be rebutted by the other party?- Onus lies with the party challenging jurisdiction. Generally, it may only be rebutted by an explicit withdrawal of authority, or a clear implication to the same effect. The power to interpret the law is not one that the legislature confers lightly, and so practical issues, etc., will generally not be sufficient to rebut. Such an implication should generally arise from the statute itself, rather than from external considerations. REMEDIES – If the tribunal has authority to decide constitutional question, what remedy does it have authority to give? Nova Scotia (WCB) v Martin: • Even if tribunal has authority to decide a constitutional question a tribunal cannot strike

down the legislation under s. 52:Martin• BUT…..A tribunal can and must refuse to apply an unconstitutional provision in that

particular case. Therefore they will make their decision as if the provision did not exist. This is not a remedy it is just respecting ROL.

• Only a court can strike down legislation!NB: Standard of review on JR is always CORRECTNESS for a constitutional question Administrative Tribunals Act, S.B.C. 2004, - printedss. 43-45 -legislature chooses which of 3 jurisdiction scenarios apply > (1) if the tribunal can refer to questions of law including Const, (2) Tribunals w/o jurisdic over Consti questions, (3) Tribs with jurisdic over Charter questions Administrative Procedures and Jurisdiction Act, R.S.A. 2000, ss. 10-16 -Alberta Act providing that decision maker has no jurisdiction to decide constitutional issues unless given permission to do so under regulation


SCENARIO 2: MultaniStep 1: Is a party arguing that their charter rights have been violated? Multani Here a person will complain about the decision an institution has made and complain directly to the court.

On JR, is a party alleging that an administrative agency’s decision is inconsistent w the Charter?Direct breach? = use consti principles/ remedies- Example: Multani—see belowFailure to reflect values consistent w Charter? = Use admin analysis- Decision doesn’t affect cases where Charter values may be factor, but decision itself

doesn’t violate Charter (Chamberlain—freedom of religion and equality were indirectly involved, but neither directly violated)à If this is case, then court considers charter values in admin law analysis

IF DIRECT BREACH…Here, the Court meets the requirement of being a ‘court of competent jurisdiction’ and has the ability to award a remedy.

Step 2: What approach should the court take in deciding if there is a breach of the charter in an administrative law context? If Decision infringes Charter Right then Charter Principles Apply If there is an infringement based on a decision of the board then charter principles should apply and the decision should be subjected to the test set out in s. 1 to ascertain whether it constitutes a reasonable limit: Multani There is a difference in:1) The analysis(i) Admin law principles—here we apply the SOR and determine the amount of deference the court should give the Tribunal(ii) Charter—here we apply s1 Oakes Test to see if violation is justified2) The remedy(i) Admin law principles—leaving the legislation in place and granting a remedy in respect of the particular decision (ie. to declare decision be null OR order reconsideration)(ii) Charter—strike down legislation Step 3: RemediesIf provision cannot be saved under s1 (Oakes Test) ,then there will be a breach. If a breach is established, the Tribunal/Court can award [fill in remedies from directly above] remedies. Cases:Slaight Communications Inc v Davidson: D radio time salesman. Dismissed for cause by Slaight Communications- alleging his sales were inadequate. Grievance filed under Canada Labour Code. Arbitrator found D unfairly dismissed and that manager of Slaight had ulterior motive for firing D. - Arbitrator made 2 orders: 1) S provide D w letter setting out quotas and D’s actual sales (positive order); 2) S not provide info other than letter in response to questions about D’s performance (negative order)

S applied for JR of arbitrator’s decision


HELD: Both orders infringed s2(b) (freedom of expression), but were saved under s1- Oakes test:

1) Importance of objective = allow D to find a new job w/out being lied about by former employer

2) Rational connection = given D had been subject of vendetta, lengths S had gone to in attempting to justify firing, preventing any other info being disseminated was rationally connected to objective

3) Minimal impairment = positive order (letter) would be worthless if it was accompanied by allegations about D’s dismissal.

Multani v Commission Scolaire Marguerite- Bourgeoys: M and family were orthodox Sikhs. Part of religion was wearing ‘kirpan’. M was 12 yrs old; accidentally dropped 8 inch kirpan wearing under clothes at school. School Board (Commission) sent M’s parents a letter saying he could wear his kirpan to school provided that he complied w certain conditions to ensure it was sealed in clothing. Family agreed. Governing Board of M’s school refused to agree—argued that this violated Article 5 of School’s Code of Conduct. Council of Commissioners upheld this decision. M’s father sought order under s24(1) that decision of Council of Commissioners was of ‘no force or effect’SC of Quebec HELD: order made that M could wear kirpan.Court of Appeal HELD: applied admin law principles—SOR was reasonablenessSCC HELD: decision should be declared null; discussed issue of whether analysis should be admin or charter.—MAJORITY = Charter……..HOWEVER……DISSENT: Deschamps and Abella JJ (used administrative law principles): don’t go under Charter, look at SOR (reas or correctness) and then can consider the legislature won’t authorize any of its agencies to breach Charter.- Noted that Courts have admin law principles in cases involving Charter rights—see Chamberlin. These principles could be applied here.

LeBel: ONLY USE CHARTER WHEN NECESSARY TO DO SO—not in all cases—ie where basis of challenge is a violation of a constitutional right, then you have to engage in constitutional analysis

- Ie. here, they were dealing with freedom of religion- Oakes test can be applied flexibly

CH 13: REMEDIES FOR UNLAWFUL ADMINISTRATIVE ACTION: THEIR SCOPE AND THEIR LIMITS

Government in Conduct of Business- Purely procurement (commercial) dealings of govt not reviewable, but business involvement beyond that is reviewable and remedy then available (Volker). - If a company has a preferential place in bidding on contracts then an obligations of procedural fairness applies to any removal of such a designation notwithstanding the fact that the source of the designation was an executive or prerogative rather than a statutory scheme: Volker


Voluntary Associations- are voluntary associations subject to JR, who are either by law or de facto, control access to or opportunities in various forms of occupations- the question is whether the deciding body can be considered a ‘tribunal’ for the purposes of JR-If voluntary associating acting adjudicatively, and public interest is a concern beyond those directly affected, then decisions may be reviewable and a remedy granted (R v Halifax-Darmouth – a real estate board suspended Seaside from membership for various alledged breaches of assoc rules and regs) Statutory Remedial RegimesFederal Court Act s18; Judicial Review Procedure Acts (BC, Ontario): create federal and provincial judicial review rights -JR jurisdiction is divided between the provincial superior courts and the Federal Court of Canada > the choice as to whether to proceed to which Court will depend on whether the source of power or authority in question is Fed or prov -can be confusion as to whether provincial court has jurisdiction to judicially review matter: May v. Ferndale Institution: provides that provincial jurisdiction should only be declined by provincial court where a statute confers jurisdiction on a court of appeal to correct errors of a lower court, or legislator has put in place complete procedure for review of an administrative decision. MODES OF RELEIF Statutory Appeals- most common way of challenging administrative action is by the huge variety of statutory appeals that exist in the individual statutes creating specific tribunals, agencies, stat powers, etc Prerogative writs:(1)Certiorari > quash or set aside a decision (most common)-General Rule: The court on JR cannot substitute the tribunal’s opinion (can only do so on statutory right of appeal) -Exception: Unless statute so provides -When using this Remedy the Court May:(1) Send it back to the tribunal to be reheard.

• This does not prevent the tribunal from making the same decision but just doing it on legal grounds: Re Labour Relations Board

(2) Send the decision to another panel that has jurisdiction to hear the matter. This is where the court would use prohibition. This might not always be possible in the admin law context. (3) The court may quash the decision and send it back to the tribunal with directions if it is expressed in the statute or rules or inherent jurisdiction

• General direction – i.e. comply with rules of the court or • Specific direction – i.e. not heard by a specific individual

(4) If it is a procedural defect then rewind and start from the point from where the defect occurred. If not procedural then the tribunal must re hear the entire issue. Why can’t the court make a decision on JR?


The authority exercised by the DM is given by statute. The court cannot step in. If this were allowed, it would raise concerns about interference with legislative decisions (2) MandamusTo order an act to be done **Often sought in conjunction with Certiorari -Mandamus appropriate to overcome the inaction or misconduct of a person charged with performance of public duties-This remedy allows the court to order an administrative body to do something specific• The action the court orders must be: (1) one that a public person/body has a legal duty to do or (2) the applicant must have a legal right to have the duty done-The court can only order mandamus when (must be a request and refusal):(1) The tribunal refuses to comply with a specific duty it has after be asked to comply or (2) An individual has or the applicant must have asked for duty to be done and been refused Mount Sinai Hospital v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281 • The minister who was previously in power promised to issue a permit to the hospital. A

new gov’t was elected and the new minister refused to issue the permit due to money restraints after he was asked to do so by the courts.

• The court gave an order of mandamus to order the minister to provide the permit (3) Prohibition(4) Habeas corpus—to test legality of detention(5) Quo warranto—to show authority for action Legislation - Legislation in several jurisdictions has simplified remedies and procedures for seeking

them (compared to the old prerogative writs), but the remedies are generally based on the old prerogative writs.

For example, the Federal Court can issue writs (Federal Court Act, s . 18(1)) and make a variety of orders (s. 18.1(3)):s. 18.1(3) On an application for judicial review, the Federal Court may:(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Declaration- This is a pronouncement by the court on matters of law, defining the rights and obligations

of parties. - This remedy will normally be made along with other orders but it may be granted as a sole

remedy if no other remedy is appropriate. - NOT LEGALLY BINDING but generally followed when ordered. CUPE v. Ontario (Minister of Labour)[“Retired Judges”]: The union asked for the appointments of arbitrators to be set aside. This was held to be inappropriate because issue was the appointment procedures generally, rather than the appropriateness of individual appointments. Some arbitrators might in fact have appropriate qualifications. Thus, the


appropriate remedy was a declaration that the Minister must make appointments in accordance with certain legal requirements such as independence, impartiality, expertise and mutual acceptability. Monetary Remedies (very rare)- Damages may be awarded under s. 24(1) of the Charter. - Damages may be awarded for tort- Occasionally awarded in administrative JR (ie, if there is a legal duty to make a payment,

it may be compelled in mandamus, or if a dismissal is quashed, the office holder may be declared entitled to back pay.)

- "Courts on JR are able to award damages, but normally this needs to be brought by a separate action (outside JR) via statement of claim procedure": >>

- However, to claim for damages, you must find a provision in govt statute allowing it – you can not just claim it out “of thin air” – must have some legal authority to do so

It will be appropriate for damages to be awarded when: Vancouver (City) v. Ward1) There is a Charter breach.2) Damages are “just and appropriate” in that they serve a functional purpose of compensation

to an individual for loss suffered, vindication by affirming Charter values, or deterring future breaches.

3) No countervailing considerations indicate damages should not be awarded (ie the availability of alternative remedies for the Charter breach or good governance concerns, such as a claim for damages based on government action authorized by a law since found unconstitutional).

4) In compensation, the quantum of the loss is established by evidence. Note: Although normally rarely awarded, in the decision in Vancouver the SC awarded damages for breach of the charter, SC has said that damages will be more frequently be made available. Interim and Interlocutory Relief Rule: This remedy is available if authorized by statute or rules – both the QB and fed rules – the court has jurisdiction to make an interim order pending the outcome of the application Federal Court Act, s. 18.2: On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application. Saskatchewan Queen’s Bench Rules, Rule 668(1): The court may make such interim orders as it sees fit, including orders preserving the status quo or the position of the parties, and may extend, modify or set aside any such orders. Stays of Administrative Proceeding General rule: a stay of proceedings is not automatic, considerations will be the same in private matters but may be provided for in: Federal Court Act, s. 18.2: On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.


Saskatchewan Queen’s Bench Rules 668(2): An application for judicial review shall not constitute a stay of the proceedings to which the application relates, but the court may grant a stay of such proceedings on application made for that purpose.Procedure: If you want a stay you must apply for it specifically and separately Requirements for a Stay

(1) Case has merit: prima facie case or a “serious question to be tried” - The latter after American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504 (H.L.)

is generally accepted(2) Establish that Irreparable harm will result if a stay is not granted

- Harm that cannot be or difficult to be compensated in damages(3) Balance of convenience

- balance the harm that the P will suffer if the injunction is not granted against the harm the D will suffer if it is granted

- is it going to cause more harm than good to grant a stay of proceedings?- Re: balance of convenience: usual presumption in favour of maintenance of status

quo. This has no merit in a case of an alleged Charter violation: RJR-Macdonald v Canada

Test was usually applied in private law but this test has been adapted to public law: Manitoba (AG) v Metropolitan Stores – employer sought stay of further proceedings until Court disposed of Charter challenge A stay of proceedings and an interlocutory injunction are remedies of the same nature. Same principles apply to interim stays as for interim injunctions: Manitoba (AG) v Metropolitan Stores BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES v. CANADIAN PACIFIC LTD. (1996) Question: Is it possible for the party to apply to the court and have them step in during a tribunal hearing to grant an injunction? General Rule: The court has a “residual discretionary power” to step in and order an interlocutory injunction, even where the court does not otherwise have jurisdiction over the matter, where the statute of the tribunal doesn’t provide for an injunction to be made by the decision maker of that tribunal Answer: The court said YES, provided certain conditions are met

- The most important condition is that the statute did not provide for an injunction to be given by the decision maker of the tribunal.

- If the arbitrator could have issued an injunction and chose not to – you can’t go to the court in the alternative.

CH 14: STANDING There are 3 Types of Standing: (1) Personal Interest Step 1


In order to have personal standing one must be: (i) be “directly affected”: Federal Court Act, s. 18.1(1) or (ii) have a “sufficient interest”: Saskatchewan Queen’s Bench Rules R665(1) S. 18.1(1) – Application for JR – An application for JR may be made by the AG of Canada or by anyone directly affected by the matter in respect of which relief is sought. Step 2Who can bring an application for JR? In most cases, it will be obvious. If you were a party before the tribunal or if the decision affects you personally. These individuals or parties will have standing to seek JR

E.g.: Hartwig v. Saskatoon Police Assn., 2007 SKCA 74 where the Police Association, having participated in the judicial inquiry that was being challenged, was held to have standing on judicial review

The General Test to see if an individual has standing based on personal interest is as follows (Finley):

(1) A person must show an interference with a private right, special damage, or exceptional prejudice that is not suffered by others of the population. In other words a sufficient “nexus”; or (2) Direct causal relationship between the injury and the action being challenged. It cannot be remote of speculative.

E.g. Mr Finley couldn’t get past this condition. He has an interest but the relationship was too remote and indirect.

(2) Public Interest StandingPublic interest standing is a matter of discretion for the court: Finlay v. Canada (Minister of Finance) (1986) S.C.C Step 1Finley sets out Criteria that must be met in order to get public standing: (1) Justiciability (proper matter to be determined by the courts as opposed to policy matters which are best left to legislature or executive to decide); (2) Serious issue raised; (3) Individual has genuine interest in issue (not a “mere busybody”); (4) No other reasonable or effective manner in which issue may be brought before court **Only Factor (2) (3) (4) Need to be met**should use as last resort. Better off finding someone who is directly affected. CASE EXAMPLEAMNESTY INTERNATIONAL CANADA v. CANADA (CANADIAN FORCES), 2007 FC 1147Made an application for JR and wanted public standing. The court looked at all 4 factors and determined that the three that need to be met were satisfied.

• Public interest standing granted:


(1) serious legal issue (“fairly arguable case” or “reasonable cause of action”); (2) Applicants clearly have genuine interest (3) No other means for addressing issue because possibility of an action by an affected person was obviously not a realistic alternative under the circumstances (they were detained). *Even if you are granted standing it does not mean you will win the case or get a remedy. You just have a right to be heard. (3) Standing of Administrative Agency/TribunalTraditionally, tribunal ordinarily does not have standing on judicial review because:

(1) the tribunal should not have an opportunity to defend its reasoning(2) the reasons should have set out the basis of the decision – they should not be able to add more

Exception: Where the jurisdiction of tribunal is at issue the tribunal can appear before the court to defend its jurisdiction. Children's Lawyer for Ontario v. Goodis: The Court found that the appropriate scope for standing will depend on the circumstances of the case, considering: Whether the tribunal’s submissions are necessary for the matter to be fully argued and appropriately decided by the reviewing court. The tribunal should maintain the appearance of neutrality. Also, the nature of the question – an allegation of unfair treatment of a particular litigant v. an allegation that the institutional decision making process is unfair. Watson v Catney: C delegated power to hearing officer. W (affected Police Officer) applied for stay of proceedings from hearing officer. Chief of Police (c) unhappy about this and wanted disciplinary proceedings resolved. C applied for JR. HELD: C had standing, but then lost in Court of Appeal because there was no right of appeal under statute. Since C appointed hearing officer and delegated authority to him, he would effectively be seeking review of his own decision = not permitted Case example where Tribunal member HAD standing:Real Estate Council of Alberta v Henderson: H real estate broker; complaints brought against him. Exec Director of Real Estate Council referred matter to hearing panel and acted as prosecutor.ISSUE: could Exec Director prosecute H personally? NO.H convicted of 3 complaints, but acquitted on others. Exec Director sought JR on the acquittals. Exec Director had standing—although ED was part of Real Estate Council, EC’s role under statute was distinct and ED was seeking review, NOT of own decision, but of Panel’s decision (separate entities) Ontario Children’s Lawyer v Ontario Info and Privacy Comm > In the proceedings resulting in this appeal, the Children’s Lawyer for Ontario sought judicial review of the decision of the Information and Privacy Commissioner who ordered the Children’s Lawyer to disclose certain documents in her possession. > t he Children’s Lawyer now appeals, challenging the role that the Commissioner was permitted to play in the Divisional Court. Issue: the scope of standing to be accorded by the court to an administrative tribunal whose decision is attacked by way of judicial review. Held > see exception above > they needed to hear important information from them CASE EXAMPLESWatson v. Catney, 2007 ONCA 41: The Police chief appointed hearing officer. The hearing officer granted Watson's motion and stayed the discipline proceedings. The Chief applied for judicial review. Could he do this? >


Court held that the Chief could not have public standing because he was directly linked to the DM as he appointed him. It would be like the tribunal applying for standing.-To grant JR would erode public confidence and lessen the fairness of the discipline process. Can’t appoint someone then appeal a decision he does not like. Real Estate Council of Alberta v. Henderson, 2007 ABCA 303: > The Executive Director sought judicial review on the basis that the hearing panel's refusal to permit cross-examination was an error of law and argued that the acquittals should be set aside. --The legislative regime under the Real Estate Act provided for independence between the hearing panel and the Executive Director of the Council. Therefore, the Executive Director was sufficiently separate from hearing panel and could have standing (Council and Hearing panel sufficiently separate). - The Executive Director had standing to bring the application for judicial review. -- Executive Director was directly affected by the decision of the hearing panel and fell within the category of an aggrieved person. ROLE OF ATTORNEY GENERAL AND STANDING-Can become involved as a parties requires or on their own motion-May challenge a decision the parties are happy (and do not wish to challenge) with but can seek judicial review of an administrative decision as a matter of public interest- where: (1) in general public interest, (2) where AGs interest affected INTERVENOR OR AMICUS CURIAE AND STANDING

· This is when someone is appointed by the court to represent a party or interest that would not be heard.

· This is an appointment by the court rather than an application by an intervener to participate in JR

· Allowed at court’s discretion Test: the court must ask if they will they add anything new, represent interest not otherwise represented Usually not permitted to expand case (limits on introducing evidence or arguments possible)

CH 15: THE DISCRETION OF COURT Variety of devices that the courts have used in the control of access to a determination on the merits of JR application > (1) Matter is private, not public, (2) Issue is not judiciable or otherwise not reviewable, (3) There has been no final decision by stat authority, (4) Applicant lacks standing Courts also have an overriding discretion to deny relief – most common grounds (below) > to the extent that most of these bases for the denial of relief are rooted in concerns for the integrity and the functioning of the administrative process - Just because a remedy is generally available does not mean that a court will necessarily

award it.


- The court has a discretion whether to award a particular remedy or whether to award any remedy at all. Therefore even where a party is successful on the merits, there may be no remedy awarded. (see ie Homex)

- In the case of a failure to accord PF, however, this will almost always result in quashing of the decision.

The court may decline to interfere if:1) The applicant has not exhausted other routes of appeal (ie if the agency has an

internal appeal process) Rule: A person must first use all remedies available to them before they apply for JR. It is a remedy of last resort: Canada v Addison & Leyen- If there are other means to have your appeal heard i.e. internal appeal mechanism or

statutory right of appeal – you have to use it before the court will step in for JR. - A matter of discretion but likely courts will deny a remedy if you do not exhaust all

available avenues first- A court may refuse to hear an application for JR if the applicant has failed to use all

available routes of appeal within the administrative system. - The court may also refuse to hear the application if there is a statutory right of appeal to

the courts that has not been utilized. - This may also be the case if the applicant had a right of appeal, but missed the limitation

period, or if they were unsuccessful on appeal. - A court may also refuse to hear an application for judicial review that is made concurrent

with an appeal. (An appeal and judicial review cannot be joined.) Canada v. Addison & Leyen Ltd: The company received notices of tax assessment. It filed objections, but did not appeal to the Tax Court. The company brought an application for JR of the Minister’s assessment decision. The Crown applied to have the application struck, and was successful. HELD: Although the Federal Court had the jurisdiction to review the Minister’s decision, but declined to do so as the company had not used the regular appeal process. JR is the “remedy of last resort”. Okwuobi v. Lester B. Pearson School Board: Several parents were seeking English language educations for their children in Quebec, and challenged the provisions of the Charter of the French Language requiring that most children in Quebec be educated in French. The Administrative Tribunal of Quebec had authority to decide questions of law, and therefore constitutional questions. HELD: the parents could not bring their application in the courts until they had exhausted their remedies in the ATQ. Gates v. Canada (Attorney General): Inmates returning to Matsqui Institution on parole violations are housed in the Temporary Detention Unit. Applied for an injunction directing the institution to maintain the unit at a minimum temperature of 20 degrees overnight. The temperature in the Unit could potentially affect the health of inmates and was therefore urgent. Thus, the application was considered and the order was granted. This is an exception to the general rule that judicial review will not be heard where an alternative process is available but has not been utilized.

2) The application is a collateral attack on an order.- A decision should not be challenged in separate proceedings if it could have been

challenged directly


- A person is not to attack/undermine a previous decision of a tribunal in a separate proceeding when that person had an opportunity to challenge it directly: Wilson v. The Queen

- This rule is not limited to administrative proceedings. Examples: An order is challenged when proceedings are taken against you, rather than when the order was made.

- A court has the discretion not to hear the matter or to deny a remedy if the proceeding amounts to a collateral attack.

§ (Maybrun Mines)

(Garland v Consumer Gas - that this action does not constitute an impermissible collateral attack on the OEB’s order. > where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review > collateral attack cases all involve a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum. In this case, the appellant is not bound by the Board’s orders, therefore the rationale behind the rule is not invoked. > to prevent a party from circumventing the effect of a decision rendered against it. > 3) The application is premature.- An application for JR challenging an element of the decision or process should not be

brought until the final decision has been made.Air Canada v. Lorenz: AC challenged the adjudicator in an unjust dismissal case for bias prior to a final decision being made. The court noted that relief should only be allowed in exceptional cases, considering various factors including the strength of the case, waste of resources, delay, and fragmentation of litigation. In this case, the adjudication of the unfair dismissal was stayed for almost two years before the JR application was dismissed. 4) The applicant has delayed bringing the application.- If a limitation period for filing a JR application passes, it may be a complete bar to

proceeding.- The statute or rules of court may allow the court to extend the time limits.- Even if there is no applicable limitation period, if the applicant has delayed bringing the

application, the court may decline to grant relief. - Result may depend on prejudice to other persons who have relied on the challenged

decision. Friends of the Oldman River Society v. Canada (Minister of Transport): the Society challenged a decision to approve construction of a dam. By the time the challenge was made, the construction company had completed 40% of the work. However, the Society showed ongoing legal efforts had been made to challenge the decision, so the delay argument was not successful in that case. 5) The issue is moot. - Where the dispute has no practical significance for the applicant. The relevant time is the

time of the decision, not the time the application is commenced. Borowski v. Attorney General

- Remember that the court may choose to hear the case. The court may exercise discretion where, for example.o Important issues are at stake.o Similar situations may reoccur or the conduct complained of is systemic.


o There are other proceedings in which the legal issue is significant.Examples:- For three of the four applicants in May v. Ferndale, they were no longer in medium

security by the time the matter reached the Supreme Court of Canada.- Ontario (Children’s Lawyer) v. Goodis: Jane Doe had ceased to participate in the

proceedings by the time the matter reached the Court of Appeal. - V.M. v. BC: Jehovah’s witness family with sextuplets. The blood transfusions had been

completed and the children returned to their parents’ custody. 6) The applicant has committed misconduct: - Court can deny a remedy if applicant has acted unreasonably – come to court with clean

hands Homex Realty: The SCC found Homex had a right to be heard prior to passage of the bylaw. Homex used a device called “checker boarding” to avoid municipal regulations. This was legal, but could be considered as a factor. Homex was seeking to avoid the consequences of an agreement the previous owner of the lands had made with the town regarding the cost of servicing the lots. Therefore the court declined to quash the bylaw. 7) The applicant has waived rights.- Failure to object (ie to bias) when the applicant becomes aware of the defect may be taken

as acquiescence. - Underlying policy considerations: Parties should not wait to see if the decision is in their

favour before raising concerns. The agency should be given the opportunity to rectify any problems if possible


Admin Law Study Notes

Documents

Transcript of Admin Law Study Notes