Introduction Private Law vs Public Law

Private Law vs Public Law

•Private Law

•Creates “horizontal” legal relations among legal persons

•Enable/constrain the use of individual power in relationships

•Provide a framework for obligations and agreements between or among individuals

•Structure relationships involving corporations or other private associations in civil society

•Public Law

•Creates “vertical” legal relations between the state and legal persons, and both horizontal & vertical legal relations amongst institutions

•Unlike private law cases which are bipolar in structure (1v1), public law cases are usually polycentric

•Structure the relationship between the individual and the state

•Structure the relationship among state institutions

•Facilitate and constrain the exercise of public power (powers are often delegated through statutes, and can be constrained within the statute or by common law through judicial review)

•Private vs public law matters when determining the remedy (compensation, recognizing right, amending statute, order property to be returned reconsidering a decision, punishing offender, etc)

Administrative Actors

•Administrative actor is a person or institution…

•that delivers a public program or engages in government action

•that acts through and is controlled by legislation or other public law norms

•who has delegated authority from the legislature in order to implement the legislative scheme under the statute

•Includes Executive Branch (Crown, GG, PM, PM’s office, Cabinet, Governor-in-Council, Ministers/their departments/delegates, Privy Council); Administrative Actors (agencies boards, commissions, crown corporations, public inquiries, tribunals, arbitrators, government appointees, indigenous decision-makers, municipal governments, school boards)

•They make decisions, create subordinate legislation (regulations), adjudicate, develop policy, investigate, prosecute, provide advice, educate, and research

•They regulate and restrict activities, licence, discipline, confer/distribute benefits and burdens, adjudicate disputes, confer/deny/revoke statuses

Historical Evolution

•Pre 1979 Dicey Attitude

•1. Law is composed of scientific legal rules that could be discovered by a careful study and application of legal principles

•2. These rules are best discerned by a close examination of previously decided cases (Blake Brown)

•3. Legal documents speak for themselves, so that judges can interpret the meaning of legal documents by simply looking for the “plain meaning” of the words

•4. Judges could all but ignore the policy implications of their impartial rulings

•5. Only courts can properly protect individual rights, especially liberty and property interests as well as other common law entitlements

•Three Key Legal Moments

•McRuer Commission (1968) –codification of procedures for admin tribunals and a single application for judicial review

•Federal Courts Act, 1970

•Result: Admin law moved from a pure common law regime to a statutory-based regime informed by the common law; admin law modernized in in 1979

•Historical Dynamics – tensions between appropriate roles (greater admin action for progressive distribution of benefits vs admin action that curtails access to courts for vulnerable individuals)

How Courts Get Involved

•Original jurisdiction

•challenge government action through ordinary law (i.e., using contract or tort law as well as private legal rights)

•higher courts have inherent appellate jurisdiction over decisions from lower courts here

•Statutory right of appeal

•no automatic right to appeal administrative decisions exists

•a statute creates a right of appeal federally or provincially

•READ the statute to determine the scope of the appeal

•Courts’ inherent judicial review jurisdiction

•s96 of the Constitution Act, 1867 guarantees this jurisdiction to superior courts

•Through judicial interpretation, s96 has come to mean the inherent jurisdiction of superior courts

•originally, this jurisdiction was tied to the available remedies (i.e., the prerogative writs)

•complications arise if a statute has a privative clause

•a reviewing court does not have general jurisdiction and cannot substitute its own decision for that of an administrative actor

Jurisdiction & Privative Clauses

•Jurisdiction

•Administrative decision-makers neither enjoy unlimited power (even if discretionary) nor do they have final say on questions regarding the scope of their delegated authority

•The statutory delegate must interpret its authority (located in its home statute) in scope and in purpose so as not to assume a power that was not intended by the legislature

•Administrative decision-makers can lose their jurisdiction in two ways:

•1) a legal defect or error can prevent them from acquiring jurisdiction in the first place;

•2) jurisdiction exists at the outset, but a legal error may subsequently cause the decision-maker to ‘step outside of’ or lose jurisdiction

•Privative Clauses

•Several types of privative clauses exist, but the general form is a statutory provision protecting the decisions made by public officials in boards, tribunals, and ministries either from further dispute internally (that is, a finality clause) or from external judicial review (that is, an ouster clause)

S96: Federal vs Provincial

•If a court finds that a tribunal is acting as a s96 court then, notwithstanding privative clause, tribunal decisions may be subjected to review and the privative clause either read down or of no effect, because the province was without jurisdiction to create it

•1) Historical Inquiry: is admin decision similar to one that would’ve been exclusively within the power of a superior, district, or county court to make? (during time of Confederation)

•2) Is the impugned power a “judicial” power as opposed to a legislative or an administrative power? (judicial power=private dispute, adjudicated through application of a recognized body of rules and in a manner consistent with fairness and impartiality)

•3) Has the decision-making power in its contemporary institutional setting sufficiently changed its character such that it cannot conform to the jurisdiction of a court? (even if once historically exercised by s96 court)

•Crevier v AG – affirmed that there is a constitutionally recognized right to judicial review, at least of questions of jurisdiction, that cannot be displaced by a privative clause, no matter how strongly worded

Introduction

Rules vs Legal Principles

• Rules and principles are two kinds of binding normative standards that set out legal obligations but differ in their character, the direction they give, and their operation

• Legal Principle

• Open ended & doesn’t set out automatic consequences

• When they conflict, principles don’t cancel each other out (possess weight and are crucial tools for statutory interpretation)

• Decision-makers reconcile by balancing or giving one principle more weight than the other

• Serves to guide the judgement and discretion of public officials, especially judges

• Rules

• Valid rules dictate legal results, applicable in an all-or-noting fashion

• Secession Reference – principles inform and sustain the constitutional text: they are the vital assumptions upon which the text is based

• No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other

• Essential characteristics of unwritten constitutional principles: (1) usually not expressly written; (2) identified, interpreted, and given content primarily by courts; (3) written text maintains primacy; (4) used to “fill gaps” in the express terms of the constitutional text; (5) may have full legal force so that can limit government action (usually executive) and bind courts

Theories of the Rule of Law

•Dicey: rule of law possessed: (1) the absence of arbitrary and discretionary authority in government, but especially in the executive branch and the administrative state; (2) formal legal equality so that every person (including public officials) would equally be subject to the law; and (3) the existence of constitutional law as a binding part of the ordinary law of the land

•Considered the courts to be the chief rule of law check on the executive arbitrariness in a Westminster system of government and the primary means to control delegations of power to administrative bodies

•Judge-made law combined with an unwritten constitution represented a better mode of legal constraint than written codes and constitutions because this combination was believed to be less vulnerable to executive attempts to suspend or remove rights

•Argued for the primacy of a correctness SOR, created by judges in the common law to scrutinize administrative decisions on their merits, and courts need not defer to (or show respect to) the decisions made by administrative bodies that implicated common law rights

•Parliament was held to be institutionally sovereign and supreme over the other two branches of government

•Fuller’s 8 principles of legality: laws should be general; promulgated (so citizens know which standards they are being held); retroactive rule-making (application should be minimized); understandable; non-contradictory; not demand the impossible; remain relatively constant through time; and should be congruence between the laws as announced and their actual administration

•These principles lies a vision of the relationship between a government and the citizenry as a “kind of reciprocity” because the enterprise of law is not a “one-way projection of authority” onto legal subjects as in authoritarian regimes (rather, it respects people’s fundamental autonomy)

Theories of the Rule of Law

• Raz’s Guidance Model: Laws should be prospective, open and clear; laws should be relatively stable; the making of particular laws should be guided by open, stable, clear, and general rules; judicial independence should be guaranteed; procedural fairness must be observed by public officials in their decision-making; courts should have review powers over the implementation of the other principles; courts should have be easily accessible and have effective remedies; the discretion of crime-preventing agencies should be constrained

• Raz believes it is possible to reduce the rule of law to one basic idea: law must be capable of guiding the behaviour of its subjects

• Raz: Most of the requirements we associate with the rule of law can be derived from this one basic idea in which the rule of law as the principle of legality acts as a practical guide for making effective law, thereby minimizing the harms that the legal system might itself create

• The 3 Big Ideas Common to All Theories: (1) Law is a human institution; (2) law structures human and institutional relations; (3) all laws (written and unwritten) have need of interpretation

• The Core of the rule of law = non-arbitrariness (legality)

Administering the Rule of Law

Politics and the Rule of Law

• Canada v PHS (Insite) – Insite is a government-sanctioned safe injection facility; federal minister of health decided not to renew exemption protection facility from federal drug laws concerning possession/trafficking in CDSA

• S56: The Minister may (as deems necessary) exempt if, in the opinion of the Minister, the exemption of necessary for a medical or scientific purpose or is otherwise in the public interest

• Deference & Separation of Powers shown: “it is for the relevant govt, not the Court, to make criminal and health policy”

• The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use

• Ministerial arbitrariness in Insite: Minister’s refusal to grant exemption was arbitrary and grossly disproportionate in its effects, and not in accordance with PFJ

• Minister’s decision to deny exemption is arbitrary because it undermines the very purposes of the CDSA (protection of health and public safety) based on evidence available to him

• Decision was neither necessary nor consistent with the state interest that lies behind the legislation

• the effect of denying the exemption is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics

• Judicial ‘Guidance’: The factors considered in making the decision on an exemption MUST include evidence

The Content and Utility of Rule of Law (SCC)

• BC v Imperial Tobacco (2005) – BC Tobacco Damages Act allowed province of BC to sue manufacturers of tobacco products for compensation of tobacco-related health care costs incurred by individuals exposed to tobacco products; onus of proof was on manufacturers, and they argued that this sift interfered both with the guarantee of a fair trial and the ability of judges to assess/weigh relevant evidence

• Rule of law principle does not give rise to an ability to strike down legislation based on its content

• Rule of law does not require that legislation be prospective or general; doesn’t prohibit conferral of special privileges on govt (except where necessary for effective governance)

• Rule of law does not ensure a fair civil trial

• RATIO: current judicial definition of the rule of law;

• 1) Law is supreme over private individuals and government officials = one law for all

• Government officials must exercise their power non-arbitrarily and according to laws which both enable and constrain these powers

• 2) Requires the creation and maintenance of a positive order of laws

• Laws must exist in legislative or common law form

• 3) Requires the relationship between the State and the individual to be regulated by law

• Officials’ actions must be legally founded in order to be valid

• 4) Linked to the principles of judicial independence & access to justice [new from the 2014 Trial Lawyers’ judgment]

The Rule of Law According to Professor Mary Liston

• in terms of basic content, the principle of the rule of law offers four basic guarantees to legal subjects:

• 1) that all persons will be considered equal under the rule of law, including those holding public power;

• 2) that public standards will guide the creation, enactment, revision, and enforcement of all laws;

• 3) that the government and the legal system will treat individuals fairly; and,

• 4) that an existing legal system enables access to legal processes for all affected persons in order to resolve complaints (more colloquially known as ‘access to justice’).

• Because the rule of law stands for the supremacy of law over unconstrained political power, a state committed to the rule of law will go some distance to guarantee that all public officials are both authorized and bound by law in the exercise of their functions and powers

• These institutional features discussed (i.e., separation of powers), combined with the basic content discussed here, therefore aim to constrain the exercise of public power throughout the state


Founding the Administrative Rule of Law

•Roncarelli v Duplessis (1959) – Roncarelli, a Jehova’s Witness, owned restaurant; Roncarelli posted bail for other JWs who were being jailed for distributing religious pamplets; Duplessis publicly warned him to stop posting bail

•When he did not stop, Duplessis ordered the liquor board to cancel Roncarelli’s liquor licence, which forced him to shut-down his restaurant

•“The Commission is authorized to grant, refuse, or cancel permits”

•Martland, Locke, Kervin – not a function either of PM or AG to interfere with administration of Commission by causing the cancellation of a liquor permit

•Entirely outside his legal functions; involved the exercise of power which, in law, he didn’t possess at all

•Consideration not on his own appreciation of his functions, but determined according to law

•He assumed that he was justified in using any means he thought fit to deal with the situation

•Rand J: there is no such thing as absolute and untrammelled ‘discretion”; an administration of licences on the highest level of fair and impartial treatment to all may be forced to follow the practice of “first come first served”, which makes the strictest observance of equal responsibility to all of even greater importance

•At this stage of developing government it would be a danger of high consequence to tolerate such a departure from good faith in executing the legislative purpose

•Caution for the future regarding reasons: It may be difficult if not impossible in cases generally to demonstrate a breach of this public duty in the illegal purpose served; there may be no means, even if proceedings against the Commission were permitted by the AG, as here they were refused, of compelling the Commission to justify a refusal or revocation or to give reasons for its action

•Rand J on the language of arbitrariness in law (Roncarelli 1959 SCC)

•de facto power of the Executive is exercised deliberately and intentionally to destroy the vital business interests of a citizen

•the grounds for refusing or cancelling a permit should unquestionably be only those that are compatible with the purposes envisaged by the statute

•a citizen exercised an unchallengeable right totally irrelevant to the sale of liquor in a restaurant

•acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry

•illegal purpose

•abuse of public power

•Cartwright (dissent) unable to find that Legislature has laid down any rules to guide the commission under which it may refuse or cancel permit; admin tribunals base decision and orders not on legal rights and liabilities, but on policy/expediency

•No standards or conditions are indicated; so legislature intended the commission “to be a law unto itself”

•Caution for future: wisdom and desirability of conferring such a power upon an official without specifying grounds which it is to be exercised are matters for Legislature not of the Court

Deference as Respect

•National Corn Growers Assn v Canada – Canadian Import Tribunal (CIT) inquiry determined that American subsidizing of US corn would cause economic injury to Canadian producers (US producers could sell corn at lower prices unless in Canada unless Canadian growers responded by reducing their prices)

•Enabling statute (Special Import Measures) permitted Canada to impose a countervailing duty on foreign-subsidized goods entering the Canadian market

•Deputy Minister used CIT’s decision to justify imposing a provisional duty on American corn imports; P (power American lobbying organization) challenged the CIT’s decision as patently unreasonable on the grounds that it made erroneous findings of fact

•Appellants argued: improper use of GATT; misinterpretation of “subsidized goods”: either actually imported or meaningful threat of importation must exist; no cogent evidentiary basis for finding of material injury to Canadian producers

•Gonthier (majority)

•1. Was it patently unreasonable for the tribunal to refer to the General Agreement on Tariffs and Trade (GATT) in interpreting the SIMA? No.

•When interpreting legislation enacted with a view towards implementing international obligations, reasonable for tribunal to examine domestic law in context of relevant agreement to clarify uncertainty. (Domestic legislation doesn’t need to be ambiguous on its face).

•2. Was the Tribunal’s interpretation of s. 42 of SIMA unreasonable? No.

•GATT and SIMA permit a broad interpretation of “subsidized imports”.

•S. 42’s “goods” refers to “imported” goods.

•Under SIMA, the tribunal could consider potential for increased imports and under GATT, tribunal could make finding of material injury absent actual increase in imports.

•3. Did the tribunal reach its decision without any cogent evidence to support its determination of material injury? No.

•Causation est. regarding consequences of US market, actions, surplus stock, and relative free trade between Canada and US.

•With respect, I do not understand how a conclusion can be reached as to the reasonableness of a tribunal’s interpretation of its enabling statute without considering the reasoning underlying it


Deference as Respect

•National Corn Growers Assn v Canada – Wilson J (concurring in result):

•Dicey’s account of the rule of law makes the courts patrol and police the boundaries of administrative tribunals so as not to “transgress” the sovereign will of Parliament, subjecting them to the same SOR as a lower court

•Courts could characterize all matters as ‘going to jurisdiction’ – even in the face of a privative clause – and show no deference

•Dicey’s account is inconsistent with realities of the modern administrative state AND legislative intent

•Enabling statutes communicate legislative intent to delegate primary responsibility for the administration of a particular policy sector and powers (fact-finding, interpretation, etc.)

•Implications for Statutory Interpretation

•administrative actors have more experience in the field and specialized knowledge vis-à-vis courts

•administrative actors understand, supervise, and participate in realizing the legislative mandate

•statutes are often ambiguous in meaning (or have gaps, deliberate and inadvertent) and often no singly correct interpretation exists

•detached judicial analysis can misunderstand the context and dynamics and therefore may provide the wrong answer

•the perspective is flipped: the decision should not be reviewed solely through the eyes of the court but should be presumed reasonable because of expertise and the privative clause

•if the interpretation is not patently unreasonable on its face, review ends

•if the legislature does not like the answer, it can amend the statute

•the legislature has made clear that neither this Court nor the FCOA is to act as a normal appellate court in connection with the Canadian Import Tribunal’s findings

•If courts were to take it upon themselves to conduct detailed reviews of these decisions on a regular basis, the Tribunal’s effectiveness and authority would soon be effectively undermined


Rules vs Soft Law

• Rules

• Legally binding requirements and, as such, the legislature has to expressly grant to the decision-maker in a statute the power to make rules

• Can be judicially reviewed (the content of both process and substance, but usually deferentially)

• Soft Law

• Developed by administrative decision-makers, but is not legally binding; informal and non-public

• Includes guidelines or policies; plays an important role in how decisions are made, both procedurally and substantively

• The power to make soft law does not have to be expressly ranted in the statute

• Not usually judicially reviewed, except in the case of fettering

• Advantages of regulations & soft law

• Provides greater certainty and consistency in a regulatory regime so affected persons can predict how an actor will exercise its power

• Can be (comparatively) faster to respond to change; flexible and can respond to specific factual contexts

• Enables expertise in procedure and/or substance

• Cost saving by facilitating comprehensive and proactive remedies for problems

• Can be used to avoid unnecessary adjudication

Why Do Legislatures Delegate?

•Expertise in procedure and/or substance (Primary Reason)

•Legislator’s can’t possibly have sufficient expertise to understand and evaluate all the various, detailed requirements in the vast range of areas that comprise the regulatory and welfare state

•Legislators lack the time

•Legislators lack the time to think through all the different ways in which specific provisions should be structured, relate to other provisions, and may apply in particular circumstances

•Legislators lack the information

•They have incomplete information; statutes are necessarily incomplete and are difficult and time-consuming to amend as new information arises

•Because legislation can be difficult and time-consuming to alter, legislators may delegate the power to fill in requirements in order to increase flexibility (to allow the requirements to be changed as new information arises)

•The issues of expertise, time, and information explain why there is soft law (policies and guidelines)

•While soft law is much more easily adaptable to changing circumstances, as making soft law is less likely to involve time-consuming and costly procedural steps than rule-making

•While soft law may have advantages from an efficiency perspective because they are easily altered, this ease of adjustment raises concern about democratic legitimacy as it may stem from a lack of procedural safeguards

•Gitxaala Nation – Parliament delegated power to executive (Cabinet); Parliament included expert body (National Energy Board) to gather info and was part of a public hearing process which resulted in Cabinet approving pipeline

•Indigenous/environmental groups challenged report; based on the extremely broad nature of the delegated power and the role played by Cabinet, FCOA gave Cabinet “the widest margin of appreciation over these questions”

•It found Cabinet’s decision to be reasonable as “to rule otherwise would be to second-guess the GIC’s appreciation of the facts, its choice of policy, its access to scientific expertise, and its evaluation and weighing of competing public interest considerations, matters very much outside of the ken of the courts”

The Risks of Delegation

•Delegation raises the risk that those who are making the rules or soft law are not following the wishes or expectations of those who delegated the power

•Principal-Agent Problem: arises in all sorts of setting when one party (principal) gives another party (agent) the power to undertake some task on the principal’s behalf

•Two Concerns:

•1. Executive-agent is not following the wishes of the legislature-principal [relationship between executive and legislature]

•2. Agent (executive or legislature) is not following the wishes of the democratic principal [relationship between the public and the executive/legislature)

•Agent may not act in the principal’s best interests [trust, reliance] and principal cannot easily monitor to ensure accountability

•Agent may follow its own views or values in making the content of the regulations or soft law because it believes it knows best how to further the public interest; these may contradict or be in tension with the legislature’s policy preferences (regulatory capture)

•Agent may follow its own views or values in making the content of the regulations or soft law because it wishes to further its own interests or interests of particular groups

•Broad, nice-sounding legislation can delegate the details to, e.g., Cabinet and Cabinet can then ‘gut’ the purposes and objectives of the legislation through regulations

•Accountability can fail in many ways:

•Legislature cannot monitor the executive even with ministerial responsibility

•Contracting out to private parties

•Public cannot monitor legislature, executive or private parties

Delegating Administrative Power

Controlling Risks of Delegation (Principal-Agent Problem)

•4 Approaches to Controlling the Risks Created by the Principal-Agent Problem

•1) How much does principal trust the agent?: structuring discretion

•appoint particular trustworthy or reliable agents to implement legislature’s policy preferences; or select an appropriate body [internal or arm’s length] to exercise the discretion; or put legal constraints and guidance in the statute or; limit the available resources

•2) How can the legislature or executive exercise direct control?

•legislature or its committee reviews rules and regulations (though not usually soft law)

•ministerial responsibility in the legislature

•central oversight by Cabinet or another central oversight body

•3) How do the courts provide oversight?: judicial review

•review the rule-making procedures to ensure adequate participation

•substantive review keeps agent within bounds of delegated power when it makes mistakes, substitutes its own views of the public good, or acts in its own self interest

•some agents may be owed a lot of deference: eg, Cabinet

•But do we really want courts to review rules or soft law?

•process is random because depends on who benefits or bears the costs or is best resourced

•it is time-consuming and expensive

•potential error cost because courts lack expertise

•If faced with detailed, technical rules a court may defer (therefore no real check) or if intervenes, select the wrong rule

•another principal-agent problem: the agent (judge) may substitute his/her own interpretation of the legislature’s policy preferences or even her/his own views of the appropriate policy

•4) What can process do?: process requirements may result in better decisions

•Increased information for rule-makers

•more thoughtful deliberation by citizens

•Increased openness, participation, transparency, understanding

•reduce ability of interest groups to dominate or pressure those making rules

•Downsides: costly, time-summing; interest groups can still dominate; participate can enhance mistakes that public makes (‘information cascades’, where people decide based on others’ decisions)

Judicial Review of the Process of Making Rules and Regulation

•AG Canada v Inuit Tapirisat (1980 SSC) – IT challenged a rate increase for telephone services by Bell; CRTC implemented the rate increase following hearings in which the Inuit Tapirisat had participated; CRTC approved rate increase without attaching the conditions that IT had requested

•IT appealed to federal Cabinet; CRTC made submissions to Cabinet; IT was not allowed to review or respond to the CRTC submission

•IT sought judicial review, claiming no procedural fairness because CRTC made submissions to which it didn’t have access

•64(1) of NTA: The GIC may at any time, in his discretion, vary or rescind any order, decision, rule or regulation of the Commission

•64(2) an appeal lies from the Commission to the FCOA upon a question of law, or a question of jurisdiction, upon leave

•Etsey J – dividing line between legislative and administrative functions isn’t always easy to draw; however, the executive branch has been assigned a function performable in the past by the Legislature itself (and where subject matter isn’t an individual concern or right unique to appellant), different considerations may be thought to arise

•Doesn’t matter that function has been assigned as here to a tier of agencies (CRTC, GIC)

•Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether the Governor in Council has performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate

•Added right in s64(1): “Governor in Council may ‘of his motion’ vary or rescind any rule or order of the Commission”

•This is legislative action in its purest form where the subject matter is the fixing of rates for a public utility

•In the past, GIC has proceeded by way of an actual oral hearing; no doubt GIC could still hold oral hearings, but even if a court had the power and authority to direct (which they don’t) it would be a very unwise/practical judicial principle which would convert past practice into rigid, invariable administrative procedures

•Delegated legislation is legally binding and general in nature; no common law requirement of procedural fairness where a decision is “legislative and general” nature (no notice, hearing, or reasons)

•“legislative” doesn’t always mean “by legislature”; even if reg concerns a particular body, this doesn’t make it non-legislative

•Courts may be more willing to defer to decisions made using expansive procedures (including public participation) because it signals better-quality decisions

Judicial Review of the Substance/Content

•Thorne’s Hardware Ltd v The Queen (1983) – federal GIC (Cabinet) made an order in council under the National Harbours Board Act extending the boundaries of the Port of Saint John, NB; P challenged the order in council on the basis that it was made in bad faith

•P argued that Cabinet extended the boundaries in order to increase the revenues of NHB and that such a purpose was not within the scope of Cabinet’s powers and under the Act

•7(1) The Board, for the purpose of this Act, has jurisdiction over the following harbours

•7(2) the boundaries of the harbours are as described, or as may be determined from time to time by order of the GIC

•14.1(e) GIC may make bylaws including the imposition and collection of tolls on vessels or aircraft entering, using, or leaving any of the harbours

•The court takes a strong position against examining the actions of Cabinet in making orders in council (a form of delegated rule making)

•Dickson J – It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in Council

•the government’s reasons for expanding the harbour are in the end unknown; governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations

•Implications (Bottom Lines) from Throne’s Hardware

•For orders in council, quashing an order in council requires an “egregious case” (Thorne’s Hardware)

•For by-laws, only if the by-law is one no reasonable body informed by relevant factors could have enacted (Catalyst Paper)

•For regulations made by Cabinet:

•regulations benefit from a presumption of validity: it is hard to challenge regulations

•an onus rests on the complaining party to demonstrate the invalidity of delegated legislation

•review grounds restricted to: 1) inconsistent with the purposes of / completely unrelated to the statute; 2) a statutory condition precedent has not been observed (Katz Group, Wildlands League)

•For regulations made by other administrative actors (ie, boards or tribunals):

•rule set aside only if it is one no reasonable body informed by the relevant factors could have have made (Green v Law Society of Manitoba)

Delegating Administrative Power

Read the Statute

•1) The enabling statute sets out what remedies are within the jurisdiction of the administrative body—explicitly OR implicitly.

•2) The enabling statute sets out the internal review process and whether it is a de novo review or more constrained in scope.

•3) enabling statute may set out parameters for statutory appeal.

•4) The enabling statute may contain a privative clause signalling legislative intent about judicial review.

•5) The federal or provincial levels may have an overarching statute that controls access to the courts and judicial review: eg, FCA, BC ATA (powers and limits)

•Example #1: Statutory Appeals

•Immigration Act contains a provision allowing judicial review of decision but only with leave given by Federal Court—Trial Division

•FCTD’s judgment can only be appealed if FCTD certifies a “serious question of general importance” for the FCOA to consider

•FCA renders judgment regarding serious question & other matters

•SCC exercises discretion whether or not to give leave for review of the FCA’s judgment

•Example #2: Federal Courts Act

•18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction

•(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; &

•(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

•Example #3: BC Administrative Tribunals Act

•44(1) tribunal doesn’t have jurisdiction over constitutional q’s

•45(1) the tribunal does not have jurisdiction over constitutional questions relating to the Charter

•(2) If constitutional question, other than one relating to Charter, is raised by a party in a tribunal proceeding

•(a) on the request of a party or on its own initiative, at any stage of an application the tribunal may refer that question to the court in the form of a stated case, or

•(b) on the request of the Attorney General, the tribunal must refer that question to the court in the form of a stated case.

•(3) The stated case must (a) be prepared by the tribunal; (b) be in writing; (c) be filed with the court registry; and (d) include a statement of the facts and relevant evidence

Types of Remedies

•Institutional Structure – A remedy in law is a way of enforcing a right or redressing a wrong

•The general (court-developed) rule is that access to courts is only available after you have exhausted all avenues of appeal, including internal appeals and any appeals to courts provided for in the enabling statute

•Because a tribunal does not have the general jurisdiction that a court does, the power to impose a particular remedy must be provided for in the tribunal’s enabling statute

•Most tribunal’s composition, structure, and mandates are different from courts’, and their approach to remedies reflect those differences

•1) Tribunal Remedies (internal) – enabling statute explicitly or implicitly determines availability (declaratory order; enforce obligation, duty, right; mandamus (compels lower court or government agency to perform a duty it is mandated to perform); ongoing seizin; quo warranto; request court to enforce order; internal appeal; reconsider/rehear

•2) External Judicial Remedies (external) – subject to judicial discretion (certiorari/quash; declaration; enforce obligation, duty, right; habeas corpus; injunction or structural injunction; mandamus; quo warranto)

•3) Non-Court Remedies (TRC, access to information requests)

•4) Novel and In/effective Remedies

•McKinnon v Ontario – P was correctional officer of Indigenous ancestry working within the Ministry of Correctional Services; OHRT found he suffered discrimination and harassment at his workplace because of his race; tribunal ordered a number of systemic remedies to address the “poisoned atmosphere” (that certain respondents be relocated; that tribunal’s order be publicized among corrections employees; that human rights training program be established)

•McKinnon alleged poisoned work environment had not improved; issue not whether implemented, but were remedies carried out in good faith?

•Preamble of OHRC: purpose to recognize the dignity and worth of every person; provide equal rights and opportunities without discrimination and having as its aim the creation of a climate …so that each person feels a part of the community and able to contribute fully to the development and well-being of community and province

•35(1) Commission may apply to Tribunal for an order if C is of opinion that (a) it is in the public interest to make an application; and (b) an order under 45.3 could provide an appropriate remedy

Types of Remedies

•McKinnon v Ontario (CONTINUED) –

•Did the Ministry carry out these orders in good faith? If it did, court won’t have jurisdiction to impose some other set of orders on the Ministry because hindsight makes it appear that the remedy was inefficacious

•If failed to comply with orders; then that direct transgression would require a revision of the orders that appropriately address the reasons for that failure so as to better assure their fulfilment

•“in the matter of institutional reform, although the Ministry has at times ‘talked the talk’, it appears never to have ‘walked the walk’

•Remedies Issue: since Ministry failed, authority given to court by 41(1)(a) to direct it to do anything that ought to achieve compliance with this Act and in respect of future practices

•Root causes: the indifference, ineptitude, and bad faith of management at all levels in dealing with race-based and workplace discrimination complaints

•Must address it more carefully, directly, and comprehensively than was done in 1998; whether this process is “crafting of new orders”, or the generous amplification of existing orders, seems to me unimportant

•2002 newly crafted remedies to (1) Ministry-wide; (2) Detention Centre; (3) publication (shaming); (4) specific to complainant; (5) professional assistance; (6) final responsibility to deputy minister of correctional services

•Tribunal remains “seized” [ie, retains jurisdiction] until entire series of orders implemented and complainant’s remedial right met with full compliance and substantial conformity

•When the remedies were not implemented, the tribunal ordered further action be taken: including training for ministry and facility management, establishing a roster of external mediators to deal with discrimination complaints, and appointing (at the ministry’s expense) an independent 3rd party consultant to develop and oversee the training programs.

•The orders were geared less towards righting wrongs to McKinnon (though there was ordered paid leave of absence, reinstatement, and promotion) and more towards effecting systemic change

Judicial Review

•4) Judicial Review as a Remedy in Itself – judicial review is a discretionary remedy and is both (1) an institutional procedure; and (2) a remedy in itself

•Courts do not have inherent appellate jurisdiction over administrative tribunals like they do with lower courts

•A statute must provide a right of appeal

•If no statutory right of appeal exists, then the person must apply for judicial review

•Despite the fact that courts may review executive action using administrative law, judicial review is considered an exceptional, discretionary remedy

•Judicial review is neither automatic, nor is it an individual right

•Discretionary Bases for Refusing a Remedy: (Original Rules)

•1) The most important basis for refusing to grant a remedy in judicial review is that adequate alternative remedies are available (parties should exhaust all other legal avenues for review before resorting to the “last resort” of judicial review

•2) Judicial review applications that are brought before tribunal proceedings have been concluded are usually dismissed as being premature

•3) Even if statutory time limits for filing a judicial review application have been met, parties must be aware that delays and consequences may be grounds for a reviewing court to refuse a remedy (parties should object promptly to any perceived impropriety on the part of the tribunal; and don’t skip a hearing)

•4) A remedy in JR will not be granted where the issues are moot (where dispute is over or has not yet arisen; tribunal’s order has expired or no longer affects applicant; or where litigant no longer actually wants the remedy that tribunal might have granted had it not erred)

•5) A court will use its discretion to refuse to grant a remedy on JR where the party making JR application does not come with clean hands (illegal conduct; obtain unfair advantage)

Availability of Judicial Review: Discretionary Basis

•Even when 5 grounds not present, courts began to recognize that it could sometimes be appropriate to refuse to grant judicial review out of deference to tribunal’s unique institutional roles

•Domtar Inc v Quebec – Employee injured at work three days before plant shut-down & wanted to be compensated for entirety of shut-down; company only wanted to pay for three days

•4 statutes were engaged & two administrative bodies [CALP and Labour Court (penal body)] came to conflicting interpretations of the same statute; CALP said that Domtar should pay 90% salary for 14 days; But Labour Court said employer should be acquitted b/c layoff occurred during 14-day period

•S60 the employer of a worker who suffers injury shall pay him 90% of salary for each day the worker would normally have worked for 14 days following beginning of disability

•SOR for CALP decisions = patently unreasonable

•CALP’s Interpretation – large, liberal, remedial, for benefit-conferring and protecting legislation

•Labour Court Interpretation – strict construction for penal-like legislation; lenient interpretation to avoid penalty

•L’Heureux-Dube – is there a true jurisprudential conflict? Assume without deciding that jurisprudential conflict exists

•Do conflicting administrative interpretations provide an independent base for JR?

•Morissette – YES, conflict is difficult to reconcile with the notion of equality before the law (main corollaries of rule of law, and most intelligible one)

•L’HDJ – agrees (partially) in that as our legal system abhors whatever is arbitrary, it must be based on a degree of consistency, equality, and predictability in the application of law

•This fosters: ability to plan affairs, integrity of a rational process, public confidence, good administration, exhibits objectivity, fairness by treating like cases alike

•Litigants ought not receive diametrically opposed answers to the same question

•L’HDJ gives 6 jurisprudential reasons why answer is NO – JR is confirmed as a discretionary remedy in and of itself

•Implication: A flexible rule of consistency exists in admin law


•Domtar v Quebec – do conflicting administrative interpretations provide an independent base for JR?

•However, L’HDJ disagrees with Morissette in 6 reasons

•1) The intent of the legislator reason: the need to recognize democracy, parliamentary supremacy, and the separation of powers

•The legislature itself admits several possible and rational constructions of the same legislative provision – this is the guiding principle without which, in theory, they can be no judicial review in the event of conflicting decisions

•2) The jurisdiction reason: the best-placed authority

•the advisability of judicial intervention in the event of conflicting decisions among administrative tribunals, even when serious and unquestionable, cannot (in these circumstances) be determined solely by the “triumph” of the rule of law

•Where decisions made within jurisdiction are not patently unreasonable, the issue instead turns on whether the principles underlying curial deference should give way to other imperatives (in my opinion, NO)

•3) The risk of arbitrariness reason: the need to constrain and restrain judicial power

•Real risk that superior courts, by exercising review for inconsistency, may be transformed into genuine appellate jurisdictions; the concept of consistency may distort the very nature of JR (which can result in arbitrariness)

•4) The institutional pluralism reason: main issue is who is in the best position to rule on the impugned decision; administrative tribunal has decision-making autonomy and special expertise

•5) The rule of law reason (it is not an absolute principle)

•For purposes of JR, principle of rule of law must be qualified; curial deference also increasingly important (National Corn Growers)

•6) The policy reason: tribunals under the patently unreasonableness standard have the “authority to err within jurisdiction”

•Lack of unanimity is the price to pay for the decision-making freedom and independence given to members of these tribunals

Remedies in Administrative Law


•Consistent with Domtar, McLachlin’s new rule of law would make it possible for institutions other than courts to play key roles in maintaining it

•This opens the door to the idea that courts do not necessarily have a monopoly on the values of reasons and fairness

•Contrary to Dicey’s view that the court’s primary role is to constrain, limit, and if possible eliminate administrative power, the new Rule of Law allows courts to respect and advance the roles of administrative tribunals

•Today, in deciding whether to exercise its discretion to grant JR, a court adopts a multi-factorial, contextual approach that nevertheless draws some insight from the traditional grounds

•The normal JR analysis generally aims to strike the balance between the courts’ essential role in upholding the rule of law, while avoiding “undue interference” with administrative powers

•Respecting, protecting, and adhering to the rule of law means that judges should base even their discretionary decisions on identifiable reasons

Availability of Judicial Review: Availability at Common Law

•Highwood Congregation of Jehovah’s Witnesses v Wall (2018, SCC) – HCJW is a voluntary, religious association with no statutory foundation and doesn’t own property; a member must live according to accepted standards and one who deviates and does not repent may be asked to appear committee and may be disfellowshipped

•Wall was disfellowshipped after sinful behaviour & insufficiently repentant; decision confirmed by Appeal Committee comprised of elders; Wall then filed application for JR seeking an order of certiorari quashing the committee’s decision on the basis it was procedurally unfair

•Earlier Framework: prerogative writs are available to supervise general machinery of government, even if not constituted by statutory power

•If a decision maker fulfills a public function (or if decision-making has public law consequences), then duty of fairness applies & decision is subject to JR

•Rowe J – Availability of JR: earlier framework do not make JR available for private bodies; fails to distinguish between “public” in a generic sense and “public” in a public law sense

•In my view, a decision is public where is involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power; JR is about the legality of state decision-making

• Had Mr. Wall been able to show that he suffered some detriment or prejudice to his legal rights arising from the Congregation’s membership decision, he could have sought redress under appropriate private law remedies

•In this case’s circumstances, the negative impact doesn’t give rise to an actionable claim – no basis for courts to intervene in Congregation’s decision-making process & matters in issue fall outside the courts’ jurisdiction

Availability of Judicial Review: Availability at Common Law

•Highwood Congregation of JW (continued) –

•Rowe J - Justiciability: indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible (court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter)

•Consider: that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute

•WALL FRAMEWORK:

•1) The public law remedy of judicial review is reserved for state action and where the exercise of state authority has a “sufficiently public character”

•2) There is no free-standing right to procedural fairness

•3) A court may intervene in decisions of voluntary organizations concerning membership where property or civil rights are at issue

•4) If the decisions of religious groups or other voluntary associations (eg, clubs, guilds) affect legal rights, then procedural fairness concerns may be addressed by reviewing courts

•5) Only justiciable decisions will be reviewed for fairness (ie, not theology questions or concerns)

•6) Public law remedies like certiorari may not be granted in litigation relating to contractual or property rights between private parties


Judicial Review as a Remedy: Alternatives

•Requirement: exhaust all adequate means

•Harelkin v University of Regina (1979) – Harelkin chose not to pursue his claim to the Senate Appeal Committee, instead proceeding straight to JR. University of Regina Act set out Senate Appeal Committee procedure

•S78(1)(c) the university council shall appoint a committee to hear and decide upon (subject to appeal to the senate) all applications and memorials by students

•S33(1)(e) Senate shall appoint a committee to hear and decide upon appeals by students and others from decisions of the council

•Beetz (majority) – factors to consider in deciding to exercise judicial discretion: procedure on appeal; composition of the Senate Appeal Committee; powers and manner in which they were probably exercised by a non-professional body; if Senate more likely to “re-try” the case; burden of previous finding; efficiency, expediency, costs

•all of the appellant’s difficulties could have been resolved fairly, within a reasonable time and at little cost to himself and to the university had he simply wanted to use all the remedies put at his disposal by the Act

•Court should not use their discretion to promote delay and expenditure unless there is no other way to protect a right

•Dickson (dissent) – factors to consider in deciding to exercise judicial discretion: delay; nature of the error; right of appeal to courts vs statutory tribunal or administrative officials; capacity of remedial body; alternative remedy (convenience and adequacy)

•Fault lies in the legislation, not in the expectations of the student

•The university says that to require the full hearing of the type which the applicant seeks could be interpreted as a requirement to have a least two full-scale confrontations between student and university in the process of having a student discontinue his studies

Judicial Review Framework

•When considering whether JR should be granted, consider:

•1. Are you barred from proceeding because of C/L grounds of refusal? (Khosa) (standing, mootness, justifiability, limitations, delay, unclean hands, etc.)?

•If yes, no JR.

•2. Is the decision maker exercising a private or public function?

•a) If they are a private actor, are they exercising public power or “part of the machinery of government” (McDonald v Anishinabek)?

•If not public/part of government, no JR (JR only available for exec action).

•3. Is the decision final and have all remedial/appeal routes been exhausted (Harelkin)?

•If no, first exhaust all other routes of challenge and appeal.

•4. Is the authority provincial or federal?

•Determines which court to apply to

•Both provincial superior courts and the Federal Courts have judicial review jurisdiction.

•5. Check applicable statutory procedures acts (e.g., ATA or rules of court)

•Applications to Federal Court must be within 30 days; 60 days in BC.

•6. Apply for JR

•7. Decision whether to grant JR at the discretion of the court

•At each of these stages, there may need to be an argument made that JR should be granted (e.g., argument about whether or not public actor, or whether or not decision is final, etc.).

Remedies on Judicial Review: The Prerogative Writs

•Certiorari – quash or invalidate an order or a decision

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

•Mandamus – order a duty to be performed BUT cannot tell tribunal how to decide

•Main conditions for obtaining mandamus

•1) Demonstrate clear legal right to have the thing sought done, in the manner, and by the person

•2) Duty must lie on the official at time relief sought

•3) Duty must be “purely ministerial” in nature

•Officer must possess no discretionary powers in this matter

•4) Demand for and refusal to perform the act sought

•General rule is that mandamus cannot be used to force an administrative decision-maker to exercise its discretion in a particular way, although exercises of discretion cannot be unlawful and must always conform to the constitution

•Canada (AG) v PHS (Insite) – the court found that sending the matter back to the Minister for reconsideration would be inadequate in view of the attendant risks and delays, and that the only constitutional response to Insite’s exemption application was to grant it

•Court therefore took the rare step of issuing an order in the nature of mandamus, compelling the Minister to exercise its discretion so as to issue an exemption to Insite

•Certiorari + Mandamus (most common administrative law remedy) – send back (with directions) for reconsideration

•Declaration – declare action ultra vires (not enforceable but usually obeyed)

•Habeas Corpus – ensure detention is not arbitrary

•Quo warranto – challenge basis of authority used to justify facts


Remedies on Judicial Review: Statutory Reform

•Statutory Reform

•The BC Administrative Tribunal Act, the BC Judicial Review Procedure Act and other statutes have sought to simplify and clarify the procedures surrounding JR. Some of the provisions:

•Parties now submit application without having to specify which writ they are seeking

•Right to appeal initial JR decision

•Mechanisms to resolve interlocutory orders and interim issues (i.e., extending JR to exercises of statutory power, rather than final decisions)

•Interaction between JRPA and ATA in BC:

•1. Check to see if the tribunal is subject to the ATA

•2. If the ATA does not apply, JR proceeds according to common law and/or any requirements in the JRPA

•3. If ATA does apply, check to see the limitation periods, what standard of review applies, Constitutional jurisdiction, etc.

Private Law Remedies

•Private law remedies available to parties, as against administrative agencies, are outside the scope of administrative law and judicial review.

•However, attempts to obtain such remedies have become increasingly common, and have put pressure on JR doctrine (i.e., parties would rather have money than a JR remedy, in many cases).

•To obtain monetary relief, a party must initiate a separate civil action for damages alongside, or in lieu of, a JR application. Negligence and misfeasance in public office are popular torts that are pursued.

•In Telezone, the SCC made it clear that parties do not need to seek judicial review before they can bring a private law action for damages, and the concurrent proceedings does not violate the rule against collateral attacks

•Paradis Honey developed a claim for monetary relief grounded entirely in public, as opposed to private law

•Paradis Honey v Canada (2015) – A group of commercial beekeepers started a class action (instead of JR) against the Minister of Agriculture and Agri-Food and the Canadian Food Inspection Agency for losses because a new, absolute prohibition on importation prevents them from importing honeybee colonies; P argued that D acted without lawful authority in adopting this import policy and breached their DOC, causing the plaintiffs harm in the form of lost profits

•Relief against the Crown: look at Crown Liability and Proceedings Act

•3(a) In Quebec, the public law authority must commit a fault within the meaning of this provision and civil law

•3(b) In all other provinces; public law authority must commit a “legally-recognized fault” (including but not limited to, a tort)

•23(1) – proceedings against the Crown may be taken in the name of AG or agency; this case names Her Majesty the Queen, Minister of Agriculture.., and CFIA

•in FCA, litigants can choose to pursue an action against the Crown in either federal or provincial courts = choice of forum (TeleZone)


•Paradis Honey Ltd v Canada (continued) (Stratas) –

•Q1: Can P recover losses due to the imposition of a stricter government policy prohibiting them from importing honeybee “packages”? In other words, is there a judicially-created policy bar to recovery?

•No bar to recovery, no rule that decisions made under a general public duty, government policy, or core policy are protected from a negligence claim

•In public law, traditionally monetary relief has never been automatic when a government action has been found invalid; additional circumstances were required to exercise discretion in favour of monetary relief

•Q2: Must the Court use the traditionally private law analysis or can an action for monetary relief be founded on public law principles?

•Judge-made reform to judge-made law has its limits; we can create a more coherent law of liability for public authorities; a new analytic framework is needed to replace the one created for private parties

•Public authorities don’t have “neighbours” and carry out mandatory statutory obligations that advantage some over others

•Framework for claims against public authorities that MAY replace private law framework (paradigmatic case is roncarelli)

•(1) Establish that the public authority’s action is unacceptable or indefensible in the admin law sense (use Dunsmuir reasonableness review to determine)

•(2) Monetary relief is still subject to traditional remedial discretion (Examine the acceptability and defensibility of the decision, the surrounding circumstances, its effect, and public law values that would be furthered by the remedy in this particular case)


•Paradis Honey Ltd v Canada (continued) –

•Q3: How should a court exercise its discretionary authority to award monetary relief? – the quality of the public authority’s conduct must be considered

•An order for monetary relief is mandatory and in public law, mandatory orders can only be made when:

•The public authority has a clear duty to fulfill – when the failure to act was unacceptable or indefensible, or where there were specific undertakings, reliance, or known vulnerabilities of specific persons that trigger the affirmative duty to act

•When significant maladministration has occurred, or public law values need to be vindicated

•Maladministration and conduct offensive to public law values can take many forms – i.e. abuse of power, bad faith, pursuit of improper purposes, clearly wrong conduct, recklessness, irrationality

•Must also consider the usual considerations involved when exercising remedial discretion in judicial review

•Application: here, the policy is unauthorized, scientifically unsupported blanket policy preventing P from exercising legal right to apply for importation permits

•Is unacceptable and indefensible also because of a “flavour of maladministration” & bad faith

•In order to calculate damages, the question is “but for” the government’s imposition of an invalid policy, what would have been the position of the beekeepers?

•could the beekeepers have mitigated their losses by pursuing judicial review right away and would that remedy have been adequate?

•might there be a “benign, scientifically-based explanation” for the conduct and the policy? don’t know as there were no reasons given


• Paradis Honey - obiter

• What would this case look like if it were an administrative law argument with traditional public law remedies?

• The decision-maker fettered discretion through a binding guideline

• Guidelines, unless authorized by the home statute cannot be binding

• If it was intended to be binding, it should have been passed as a regulation

• The guideline imposes an absolute prohibition on importation and therefore conflicts with the language in s160 of the regulations.

• The guideline is not supported by any scientific evidence

• The guideline was also enacted for an improper purpose in order to benefit financially a faction of commercial beekeepers who had ‘captured’ the public authority

• This also makes the guideline, and the decision taken under it, unreasonable.

• The usual remedy would be to quash the guideline and send the decision back to the decision-maker for reconsideration

• Monetary relief unlikely, unless the reviewing court accepted the bad faith argument

The Structure of Judicial Review

•Budlakoti v Canada (Citizenship and Immigration) (2015) – B born in Canada to Indian nationals. Went to jail. While in jail, Minister of Citizenship and Immigration investigated B’s status and deemed him inadmissible to Canada due to “serious criminality” under s. 4 of Immigration and Refugee Protection Act. Immigration and Refugee Board found B not a citizen under s. 3(1)(a) of Citizenship Act and issued deportation order. Applicant could legally apply for citizenship in Canada under s. 5(4) of Citizenship Act and in India

•What issues should be considered, in what order, and how at judicial review?

•There are 3 distinct analytic steps in order to prevent a jumble of issues

•1) Preliminary objections: “show stoppers”

•Are there any recognized reasons why the JR or any issues in it should not be heard?

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

•Judicial review is meant to be a “last resort” when all other adequate, effective forums for relief have been pursued and exhausted

•This general rule can be relaxed if a case involves concerns about the rule of law or where public law values favour immediate access to a review court; otherwise, parties must follow legislatively prescribed procedures first

•2) Merits of JR – what substantive or procedural grounds for review of an administrative decision are triggered? Does it involve matters properly considered for JR under s18 and 18.1 of FCA?

•The usual appellate SOR for extricable legal issues is correctness (Housen v Nicolaisen)

•On all other issues, it requires a finding that a court committed a palpable and overriding error

•This is different than admin law SOR

The Structure of Judicial Review

•Budlakoti v Canada (Continued)

•3) Remedies: what are the legally available remedies in this case?

•remedies are discretionary and counsel may have to make arguments to the Court to exercise its discretion in favourof a particular remedy

•Stratas – The different roles of the reviewing court and the administrative decision-maker should be respected to the extent possible when considering preliminary objections

• The general rule is that other adequate and effective forums must be pursued first and exhausted before accessing judicial review

•Courts rarely use their discretion to relax the rule when there are other available avenues for redress unless a compelling reason exists

•In this case, the rule will not be relaxed

•Parliament has set up an exclusive statutory scheme where an administrative official—the Minister—grants citizenship, not the reviewing court

•This Minister must consider relevant Charter values

•the appellant can also apply to India for national status or citizenship

•the views expressed by the Minister and/or his officials at the earlier legal proceedings do not necessarily give rise to an apprehension of bias

Federal and Provincial Acts

•17(6) If an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or established by or under a law of a province, the Federal Court has no jurisdiction to entertain any proceeding in respect of the same matter unless the Act expressly confers that jurisdiction on that court.

•18.1(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

•(2) Time limitation is 30 days after the time the decision or order was first communicated

•Powers of the Federal Court

•18.1(3) on an application for JR, FC 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.

•The BC JRPA aims to simplify the application for judicial review

•1. ID all relevant respondents. See if BCTA applies to the tribunal

•2. File petition and affidavits on time in appropriate court registry (60 days from date of decision)

•3. Serve copies to respondents, incl. AG. AG may determine that a public interest element exists

•4. Respondent must serve copies of response within 21 days of being served

•5. Determine what the record is (written or oral hearing recording, documents, correspondence)

•6. Petitioner obtains hearing from date of BCSC (file and service notice of date at least 7 days before hearing).

•7. File petition record in court no later than 4 pm on the full day before hearing

•The BC ATA applies to certain administrative bodies in BC and shapes judicial review for those bodies

Common Law Origins and Modern Development

•In past eras of administrative law, only judicial and quasi-judicial decisions triggered procedural obligations

•Natural justice principles: “hear the other side” and “no person can be the judge in her own cause”

•All other public decisions were deemed administrative and thus could be made without the burden of common law procedural obligations

•Courts began to move away from the distinction between judicial, quasi-judicial, and administrative decisions as determinative

•Nicholson v Haldimand-Norfolk Police Commissioners – held that a “duty of fairness” applied to administrative decisions; necessary both for conceptual clarity and to promote justice

•Constable dismissed 15 months in & no reasons given, no notice, not allowed to make representations

•S27b – board can dispense services of any constable within 18 months of his becoming a constable

•Expressio unius rule = legislature necessarily excluded fairness because expressly required elsewhere VS Maxim ought not to be applied if it leads to inconsistency or injustice AND court may imply procedural obligations

•Two types of arbitrariness at work

•1) The nature of the modern employment relationship

•Old CL rule that a one can be put out without reason or prior notice ought to be examined in light of collective agreements which offer broad protection against arbitrary dismissal in the case of employees who cannot claim the status of office holders

•2) The problem of formalism in the jurisprudence

•The classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question

•In the sphere of the so-called quasi-judicial, the rules of natural justice run, and in the administrative or executive field there is a general duty of fairness; constable should be treated “fairly” not arbitrarily

•Over time, court’s accepted that all decision-makers, whether exercising judicial, quasi-judicial, or administrative powers, should be subject to the same, flexible duty of fairness

•No longer a need to distinguish between natural justice and the duty of fairness

•At the low end of the spectrum, a decision-maker is bound by minimum procedural duties, such as providing notice to affected parties

•At the high end of the spectrum, a decision-maker must follow a more onerous set of procedures that may replicate the procedures followed in a trial

Duty of Fairness

• Duty of Fairness 1: Audi Alteram Partem – the duty to hear the other side

• Threshold test: Cardinal v Kent Institution

• Cardinal v Kent Institution – held to be unfair for the director of a penitentiary not to provide reasons to two inmates who were kept in solitary conditions even after the Segregation Review Board had recommended they be transferred back into the general prison population

• As a general rule, all public decision-makers who make administrative decisions that affect the rights, interests, and privileges of an individual must decide fairly

• Threshold Test (meant to expand the reach of fairness in administrative decision-making)

• This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual

• Remedy for breach of PF in this context: to continue the policy of segregation after rejecting the Segregation Review Board’s recommendation to end it, the Director ought to have (1) informed affected prisoners of reasons for his decision orally or in writing; (2) give them an opportunity, even if informal, to make representations and to question his decision as well as be given any information about the earlier allegations; (3) doesn’t have to make an independent inquiry into the allegations; (4) unlawful continued segregation engages habeas corpus

• Essence of procedural fairness:

• I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision

• The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have

• It is not for a court to deny that right and sense of justice on the basis ofspeculation as to what the result might have been had there been a hearing

Duty of Fairness

Threshold, Framework, and Ethos in the Modern Common Law Approach

•In order to determine what procedural obligations an administrative decision-maker must follow under common law, we must ask two questions: (1) is the duty of fairness triggered? (is the decision being made one that should be made fairly?); (2) what does the duty entail? (what is the content/context of the duty?)

•Baker v Canada (CIC) (1999) – deals with fairness in the deportation context

•At the time of the litigation, Baker lived in Canada but was not a Canadian citizen or a permanent resident; arrived as visitor from Jamaica in 1981 and stayed in Canada

•During her time in Canada, she was employed and was a mother to 4 children, all Canadian-born

•In 1992, a deportation order was issued for Baker on the grounds that she had worked illegally and had overstayed her original visitor’s visa

•In 1993, she began the process of acquiring PR status, but applicants must generally apply from outside of Canada; however, legislative scheme has exception if person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations

•Baker argued for these grounds, saying applying general rule would have grave consequences for both herself and children; had mental health treatment in Canada and not in Jamaica

•In April 1994, she received letter stating that application for exemption had been denied; no reasons were provided; upon requesting reasons, she was provided with the notes of Officer

•After receiving the reasons, she was served with another deportation order; she applied for JR

•Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?


•Baker v Canada (Continued) – threshold test from Cardinal v Kent

•This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual

•SCC held that the common law duty of fairness applied to humanitarian and compassionate decisions (“clearly, the determination of whether an applicant will be exempted from the requirements of the Act falls within this category”)

•SCC held that duty owed to Baker by minister was more than minimal

•Minister had to consider the issues and evidence fully and fairly and that both Baker and others whose important interests were affected by the decision in a fundamental way had to have a meaningful opportunity to present the evidence relevant to their case

•Oral interview not required to meet this standard; Baker had had the opportunity to provide the decision-maker with all of the relevant info and arguments

•Baker was entitled to written reasons, given the “profound importance” of the decision to those affected

•Demonstrating its flexibility in relation to reasons, the court concluded that the duty to provide reasons was fulfilled when Baker was given notes

•Basic question: Was the procedure used fair considering all of the circumstances?

•The framework is an open list of 5 factors weighed and balanced together in order to determine the content

•1) Nature of the decision and the process followed

•2) Nature of the statutory scheme and the terms under which the body operates

•3) Importance of the decision to the individual(s) affected

•4) Legitimate expectations of the person(s) challenging the decision

•5) Respect for agency expertise in determining and following the agency’s own procedures


•Baker v Canada – the reasons requirement

•it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision

•in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required

•The profound importance of an H & C decision to those affected militates in favour of a requirement that reasons be provided

•It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached

•The existence of reasons is part of procedural fairness BUT analyzing the content is now part of substantive review because of Newfoundland Nurses’ Union

•Elements of the Baker “ethos”

•Fairness is the minimum “floor” of the duty that must be met

•Fairness is contextually understood

•Procedures are essential to realizing the “just exercise of power”

•Procedures need only be adequate, not optimal or perfect

•Procedural fairness is a participatory right entailing

•an open and appropriate procedure

•an opportunity to put views and evidence forward fully

•governed by the principles of democracy and the rule of law

•Administrative bodies are masters of their own procedures = principle of deference

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

•Specific Components – (1) notice (was it adequate?); (2) Disclosure (Stinchcombe principles do not apply, must be sufficient in order to know the case to be met); (3) Oral Hearings (seldom required unless credibility is at issue); (4) right to counsel (no right in administrative proceedings); (5) right to call evidence and cross-examine witnesses (normally part of an oral hearing); (6) timeliness and delay (delay may be a breach of fairness; expedited process is a usual remedy); (4) reasons (if not required by statute or regulations, it may be required in the circumstances)

Duty of Fairness

Duty of Fairness - Limitations

•Legislative Decisions

•Canada v Inuit Tapirisat – the dividing line between legislative and administrative functions is not always easy to draw

•Where the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject matter is not an individual concern or a right unique to the petitioner or appellant, different considerations may be thought to arise

•The fact that the function has been assigned here to a tier of agencies doesn’t alter the political science pathology of the case

•Cabinet = parliament and legislature AND the executive branch of government in this case

•This conclusion is made all the more obvious by the added right in s. 64(1) that the Governor in Council may “of his motion” vary or rescind any rule or order of the Commission

•This is legislative action in its purest form where the subject matter is the fixing of rates for a public utility such as a telephone system

•No doubt the Governor in Council could still hold oral hearings if so disposed

•Even if a court had the power and authority to so direct (which I conclude it has not) it would be a very unwise and impractical judicial principle which would convert past practice into rigid, invariable administrative procedures

•Ref Re CAP – (Sopinka J) two limits on reach of the duty of PF

•A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion

•Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision

•1) “Purely Ministerial Decision” = no duty of fairness

•2) Parliament or public body exercising a legislative function=no duty of fairness AND no judicial supervision of the legislative process (ie, not justiciable – Authorson; Mikisew Crew FN)


•Limitations – Legislative Functions

•Sopinka on why in Ref Re CAP:

•Government not bound by undertakings of predecessor

•Cannot restrain sovereignty of Parliament

•Process of legislation governed by internal rules and procedures in Parliament (lex parliamenti)

•May extend to Cabinet in its capacity as the link between the executive and the legislative in the Westminster system of government [see Inuit Tapirisat; reflect on Gitxaala Nation]

•cannot restrain Executive from introducing legislation

•also affects Governor General who recommends introduction of legislation on advice of Cabinet

•Separation of powers: executive implements public policy

•S42(1) of Interpretation Act preserves principle of parliamentary sovereignty

•Wells v Newfoundland (1999) on limitations (legislative functions) – “Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate.”

•Thus in Wells, Well’s argument that he was entitled to procedural fairness when the House of Assembly passed legislation that had the effect of eliminating his employment was rejected; legislature had followed the constitutional requirements for valid law-making and thus had acted lawfully

•When exercising legislative functions, legislatures need only comply with constitutional requirements; additional procedural obligations under administrative law do not apply

•Decisions of a legislative nature are not subject to the common law duty of fairness

•Wells and Cardinal shouldn’t be read together as a categorical exemption from duty of fairness for all legislative decisions; rather, in every instance of decision-making, the nature of the decision being made should be closely examined to determine its true character and whether it is the type of decision that should be immune from the common law duty of fairness (like Homex)


•Exception to legislative decisions

•Homex Realty and Development v Wyoming (Village) – HomexRealty, a real estate and development business, challenged a municipal by-law on fairness grounds

•The first issue was whether the duty of fairness had been triggered, and the court held that it had

•Despite first appearances, the by-law was not of a truly legislative character (Etsey): “the bylaw had some characteristics of a community interest by-law but it also represented the purported culmination of an inter partes dispute conducted on adversarial lines between Homex and the Council”

•The town council had used the bylaw to target Homex because of an ongoing dispute between the municipality and the developer

•“the action taken by the Council was not in substance legislative but rather quasi-judicial in character” – as a result, duty of fairness applied

•The courts long ago developed the general proposition that wherever a statute authorizes the interference with property or other rights and is silent as to whether or not the agency in question is required to give notice prior to the intervention in such rights, the courts will “supply the omission of the legislature” and require the agency in question to afford the subject an opportunity of being heard before it proceeds

•Whether or not the courts today will invoke this principle of interpretation may depend upon the nature of the action being undertaken by a body such as a municipal council

•Was Homex heard? NO – no formal hearing, but detailed negotiations and correspondence; Homex didn’t receive opportunity to make its position known once aware of Village’s final position; Homex needed to be heard; BUT Homex denied discretionary prerogative remedy of quashing the bylaw (certiorari) (court condemned Homex’s actions during litigation)

•Dickson – what we have here is not a bylaw of wide and general application which was to apply to all citizens of the municipality equally; rather, it was a bylaw named deliberately at limitingtherights of one individual (appellant Homex)

•Bylaw was not legislative or general; Homex was entitlted to procedural safeguards (since interests were affected) when the municipal council enacted the bylaw

•Dickson & Etsey shows that when it comes to determining whether duty of fairness is triggered, substance is more important than form

Duty of Fairness

Duty of Fairness – Limitations (Emergencies)

•Cardinal v Kent Institution – although McEachern C.J.S.C. severely criticized the imposition of administrative segregation by oral instructions that are not followed as soon as possible by written notice with reasons for the decision, he held, as I have indicated, that the original imposition of administrative segregation in this case was a lawful exercise of the Director's discretionary authority under s. 40(1) of Penitentiary Service Regulations, and that it was not carried out unfairly

•That conclusion was not seriously challenged on the appeal, and, indeed, it would not appear to be open to challenge

•Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision

•Baker – 5 factors

•There is a prominent place of legislative intent and statutory interpretation within the contextual analysis

•Knowing what the common law requires will always call for a nuanced and deep understanding of the statutory scheme within which an administrative decision-maker operates

•In this sense, an analysis of the common law duty of fairness is always a balancing of views on how a decision-maker must act in order to be fair

•Deference to legislative intent is reflected in the importance of the statutory scheme to shape the common law duty of fairness, as expressed in first 2 Baker factors

•Respect for the views of administrative decision-makers is reflected in the 4th and 5th Baker factors, which direct out attention to the choices and practices of administrative actors

•Further, respect for judicial views is reflected in the value attributed to the common law duty of fairness in administrative law and in the heavy reliance on jurisprudence to determine the procedural obligations to which decision-makers are held

•Principle of participatory rights in Baker – “public decisions must be made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-makers”

Framework and Application of the Modern Common Law Approach

•Baker v Canada – determining the content of the duty

•Basic question: Was the procedure used fair considering all of the circumstances?

•Threshold test from Cardinal v Kent

•The framework is an open list of 5 factors weighed and balanced together in order to determine the content

•Reasons Requirement

•the principle that affected persons should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decisions

•L’HDJ – In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision

•in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required

•The profound importance of a humanitarian and compassionate grounds decision to those affected militates in favour of a requirement that reasons be provided

•It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached

•When does fairness require that a tribunal must give reasons for its decisions?

•1. Check the relevant statute and procedural code for a reasonsrequirement

•2. If none, apply the five Baker factors to determine the content of the duty in order to argue that reasons are or are not required in these circumstances

•3. If duty exists, no deference will be owed to the tribunal in its choice not to give reasons

•4. Correctness/Fairness akin to correctness is the appropriate standard

•5. Remedy = quash the decision and send back for re-determination with reasons [Be strategic!]

•6. Reasons further public confidence, accountability and transparency in decision-making

•7. Principles satisfied: democracy, rule of law, accountability, good and responsible government

Framework and Application of the Modern Common Law Approach

•Baker v Canada (Continued ) – 5 Baker Factors

•1. Nature of the decision and the process followed

•Disputes between parties pull toward more extensive protections

•Where rights are involved, more extensive reasons will be required

•More judicial-type environment, the more stringent reasons requirement

•2. Nature of the statutory scheme and its terms

•Preliminary vs final decision (if important right at stake, then it may attach to preliminary)

•Existence of appeal favours reasons requirement

•3. Importance of the decision to the individual(s) affected

•The more important the decision is to the individual, the more important that reasons be provided and explain the decision

•Balanced against interests of decision-maker and deference towards selected procedures

•4. Legitimate expectations of the person challenging the decision

•Enhanced procedural protection only

•5. Respect agency expertise in determining and following own procedures

•Agency has jurisdiction to create own procedures

•Agency has expertise in determining appropriate procedures in the circumstances

•Polycentricity and efficiency concerns tend in the direction of minimal reasons requirement

•Notice is the most fundamental of the participatory rights; without notice, it is impossible for an affected party to exercise her other rights of participation except by chance

•In line with the principle of contextuality and access to justice, it is only in rare cases that a decision-maker is required to hold an oral hearing

•The common law has not historically required decision-makers to provide reasons for their decisions; this was modified in Baker

•Baker’s H&C grounds aren’t judicial decision, but rather a polycentric discretionary decision and the minister had to consider many factors in assessing application; called for “more relaxed requirements” of duty of fairness

•However, other factors suggested more stringent obligations” statute didn’t provide for an appeal procedure; decision was of exceptional importance; statutory scheme empowered minister with significant discretion to decide = “more than minimal”

Duty of Fairness

Doctrine of Legitimate Expectations

• Canada (AG) v Mavi (2011) – held that it was fair for government of Ontario not to provide reasons for its decision to collect debts from sponsoring relatives in the immigration context

• Fundamental question: what specific rights does the duty of fairness reasonably require of an authority in a particular legislative and administrative context?

• General Rule – legislator always intends a duty of fairness to apply unless clear statutory language or necessary implication demands the contrary

• Basic Question – was the procedure used fair considering all of the circumstances?

• The Key to Framing: “straightforward debt collection”

• Do Cardinal Threshold test & Baker 5 factors

• Legitimate expectations: holding government to its word

• Government official makes representations within jurisdiction regarding process to be followed

• Representations must be clear, unambiguous and unqualified

• Representations must only be procedural, not substantive

• Representations must not conflict with a statutory duty

• Proof of reliance is not required

• Revised procedure

• Before filing a certificate of debt with Federal Court, government must:

• 1. Notify sponsor at last known address

• 2. Offer limited time opportunity to explain in writing her circumstances militating against immediate collection

• 3. Take into account considerations that weigh against immediate collection

• 4. Notify sponsor of decision

• 5. But don’t need to provide reasons

Duty of Fairness

•Applying 5 Baker Factors to Mavi

•General Rule – legislator always intends a duty of fairness to apply UNLESS CLEAR STATUTORY LANGUAGE or necessary implication demands the contrary

•Nature of administrative decision is debt collection.

•Statutory scheme is the intention to avoid a complicated administrative review process

•IRPA does NOT provide a mechanism for sponsors to appeal the enforcement decision

•Effect of the decision is significant – sponsorship debts can be large and accumulate quickly

•Legislation leaves the government with a measure of discretion

•Fairness v Correctness

•When procedural decisions are under scrutiny in the context of judicial review, they will be reviewed, as a general rule, on a standard of correctness

•An error of procedure is deemed to be an error of law and, thus, a matter reviewed on correctness

•Mission Institution v Khela 2014 SCC – Khela transferred from medium security to maximum security after conspiring to stab fellow inmate; argued that transfer was unreasonable

•Received some reasons but no info as to what the sources said or why they might be reliable; Khelasubmitted a written rebuttal, asking for the scoring matrix that was used to determine his security ranking

•Warden said she couldn’t disclose this information, but that all the appropriate policies had been followed

•provincial superior courts have concurrent jurisdiction with federal courts when hearing habeas corpus applications; the warden’s transfer decision was procedurally unfair and also unreasonable

•LeBel J. concluded that it would not be necessary to determine whether the decision made by the Warden was unlawful on the basis of unreasonableness; Instead, the decision was unlawful because it was procedurally unfair

•the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review that applies to other flaws in the decision or in the decision-making process; For instance, the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness

•The Principle of Deference – s27(3) authorizes the withholding of information when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation

•The Commissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize; As a result, the Commissioner, or the warden, is entitled to a margin of deference on this point

•Similarly, the warden and the Commissioner are in the best position to determine whether a given source or informant is reliable; Some deference is accordingly owed on this point as well

•Judicial Review and the Effect of the Breach – if, however, certain information is withheld without invoking s27(3), deference will not be warranted, and the decision will be procedurally unfair and therefore unlawful; a breach of the DOF renders the procedure (and decision made using the procedure) VOID – decision will be quashed and returned to the decision-maker to reconsider using the improved procedure

Duty of Fairness

Introduction

•Independence, Impartiality, and Bias all centre on the notion of fairness in the administrative decision-making process

•Key characteristics of a fair proceeding before an administrative body are that the decision-maker and the decision-making process not grant undue preferential or adverse treatment nor be driven by preconceived notions

•A full and fair hearing will also result in better decision-making

•Regardless of reality, the mere perception of partiality toward a particular outcome, or BIAS, provided that the perception is reasonable, is enough to have a decision overturned

•If bias is the evil that we are trying to avoid, IMPARTIALITY refers to the ideal state of the decision-maker or decision-making institution

•An impartial decision-maker is one who is able to make judgements with an open mind (comes to the decision-making table without their “mind already made up” or without connections that improperly influence the decision-making process)

•INDEPENDENCE is a means of achieving impartiality

•Rule Against Bias – a decision-maker should neither judge their own cause nor have any interest in the outcome of a case they are deciding (nemo judex in sua causa debet esse)

•Aims to avoid circumstances in which the decision-maker acts as both prosecutor and judge in the same matter or decides for personal gain or benefit

•Hear the other side – requirement for decision-maker to hear and listen to both sides of the case before making a decision (audialteram partem)

•Encourages decision-maker to focus on the facts of the dispute and the relevant law, and not on extraneous, or irrelevant, considerations

•Both principles inform the right to an independent and impartial proceeding

•At Pleasure Appointments – allows government to appoint a member for as long as the government deems fit

•Generate a lot of controversy; in essence, they theoretically enable the government to remove a decision-maker whose decisions are not in line with its expectations

•Given that tribunals are to be independent or “at arm’s length” from government, “at pleasure” appointments open the door to the possibility of governmental interference with tribunal decision-making

Sources of Independence

• CONSTITUTION ACT, 1867

• PREAMBLE

• Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

• VII JUDICATURE

• Tenure of office of Judges

• 99(1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

• Termination at age 75

• 99(2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

• Salaries, etc., of Judges

• 100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada

The Theory of Judicial Independence

•Dickson J from The Queen v Beauregard – there are 3 objective structural conditions identified as necessary to guarantee independence: security of tenure, financial security, and administrative (or institutional) control

•These 3 conditions serve to reassure the public that the possibility of interference in judicial decision-making by the executive and legislative branches of government has been reduced, if not eliminated

•Security of Tenure (interference: ability of government to remove a judge for such things as rendering decisions that do not meet government’s approval)

•JUDICIAL: secure until retirement; removal only for cause; constitutionally guaranteed

•ADMINISTRATIVE: fixed, short or long-term appointments according to the home statute; at pleasure appointments possible, and therefore more easily removed

•Financial Security/Renumeration (guarantee that government is responsible for renumeration of judges but won’t alter the pay for arbitrary reasons such as its discontent with decisions rendered; also a promise that the amount that judges are paid will be sufficient to keep them from seeking alternative means of supplementing their income)

•JUDICIAL: salary and pension security

•ADMINISTRATIVE: Variable: set by legislation or contract

•Administrative Control (deals with the manner in which the affairs of the court are administered)

•JUDICIAL: day-to-day control of institutional operations; Federal Commissioner of Judicial Affairs (resources)

•ADMINISTRATIVE: Ministerial/departmental involvement and oversight, and so therefore more external interference; subject to legislative change; financial dependence

•Goal Or Adjudicative Independence (independence from interference in deliberations; embodies the ability of a decision-maker to decide, free of inappropriate interference by other decision-makers)

•JUDICIAL: eliminate or reduce interference from executive and legislative branches

•ADMINISTRATIVE: eliminate or reduce inappropriate interference and influence; incorporate only relevant considerations

Independence, Impartiality, and Bias

Judicial vs Administrative Independence

•Parliamentary Supremacy vs Warding Off Interference

•Ocean Port Hotel Ltd v BC – the SCC decision is significant because it attempted to lay to rest the controversial issue of whether “at pleasure” appointments provide a satisfactory degree of independence for decision-makers sitting on tribunals that impose penalties

•Addresses whether “at pleasure” appointments (which are clearly not as secure as fixed-term appointments) could provide an adequate image of independence from government

•This case also offers definitive opinions regarding the constitutional nature of courts and tribunals, and the distinction

•Offer reasons why administrative tribunals should need the same degree of independence as courts

•RCMP reported that OP Hotel was responsible for 5 incidents that violated the Liquor Control and Licensing Act, and the terms of its liquor licence

•The Liquor Control and Licensing Branch, a regulatory branch established under the Act, consequently imposed a 2-day suspension on Ocean Port’s liquor licence

•The Liquor Appeal Board held a hearing de novo and confirmed the suspension, finding that the evidence supported 4 of the 5 alleged infractions

•OP Hotel argues Liquor Appeal Board lacked sufficient independence to render a fair hearing; also as an administrative tribunal exercising adjudicative functions, they required the same degree of independence guaranteed to courts

•In PEI Reference, SCC held that judicial independence is an unwritten constitutional principle that applies not only to the superior courts of inherent jurisdiction but also extends to the Provincial Court of summary jurisdiction; OP Hotel argues it should extend to tribunals as well


•Ocean Port Hotel (Continued) – SCC disagreed; asserted that there is no freestanding constitutional guarantee of administrative tribunal independence and that the enshrined constitutional protection of judicial independence could not be translated to the context of administrative decision-making bodies

•McLachlin CJ on statutory presumptions:

•Valid statutory regime prevails over common law principles of natural justice

•If statute is silent, courts will infer that Parliament/ legislature intended procedural justice

•Cannot infer if clearly ousted by express statutory language (only can if part of a constitutional challenge to the statute)

•Here the statute is unambiguous

•Judicial independence has historically developed to protect the judiciary from interference from the executive branch, but administrative tribunals aren’t separate from the executive

•Administrative tribunals, by contrast, lack this constitutional distinction from the executive; They are, in fact, created precisely for the purpose of implementing government policy

•Implementation of that policy may require them to make quasi-judicial decisions; They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government; However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it

•While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not; Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected


•Ocean Port (Continued) – tribunal independence is a common law principle of natural justice, and so the degree of independence required at common law could be ousted by express statutory language or necessary statutory implication, so long as the statute is constitutionally valid (principles of natural justice determined by application of Baker factors)

•On a theoretical level, it is up to the legislature or Parliament to create enabling statutes that foster independent decision-making when legislating for a variety of different tribunals

•Ocean Port affirms this and implicitly encourages legislative policy-makers to consider the specificities of various tribunals, to retain and promote factors that foster independence, and to eliminate those that do not

•In some circumstances, use of the judicial conditions of independence may be effective; but, policy makers should be open to considering factors that actually affect the independence of administrative decision-makers In various contexts

•Statutory Reform and Tribunal Independence: BC ATA

•Chair's initial term and reappointment

•2(1) The chair of the tribunal may be appointed by the appointing authority, after a merit based process, to hold office for an initial term of 3 to 5 years.

•(2) The chair may be reappointed by the appointing authority for additional terms of up to 5 years.

•Member's initial term and reappointment

•3(1) A member, other than the chair, may be appointed by the appointing authority, after a merit based process and consultation with the chair, to hold office for an initial term of 2 to 4 years.

•(2) A member may be reappointed by the appointing authority as a member of the tribunal for additional terms of up to 5 years.

•Termination for cause

•8 The appointing authority may terminate the appointment of the chair, a vice chair or a member for cause


“At Pleasure” Appointments and the Executive

•Keen v Canada (AG) (2009) – Ocean Port didn’t address the fundamental problem with “at pleasure” appointments, that the government is not legally prevented from removing appointees for the decisions they make

•Uproar ensued when Canada’s Nuclear Safety Commission President Linda Keen was removed from her job over a decision to keep a nuclear power plant closed for its failure to meet safety standards

•NSA regulates all nuclear facilities and activities in Canada to ensure their compliance with health, safety, security, and environmental standards as well as with Canada’s international obligations

•Natural Resources Minister Gary Lunn was concerned that the commission had not reopened the nuclear power plant in question, which caused a severe shortage of critical medical isotopes necessary for the critical health care

•Lunn questioned Keen’s judgement and whether she was duly executing the requirements of the position; Keen responded back to letter, refuting his assertions; Lunn fired her night before parliamentary hearing where she was going to explain her position on the matter

•The order in council that removed Keen stated that the governor in council had considered her letter, but found that she had failed to demonstrate the necessary leadership to address the isotope crisis in a timely way; further stated GIC lost confidence in her

•Keen applied to Federal Court for judicial review; at issue was whether she received adequate procedural fairness in the manner of her dismissal

•The court held that the circumstances of her termination were sufficient to satisfy the requirements of fairness for an “at pleasure” appointment (which is how her appointment as president was characterized)


•Keen v Canada (Continued) – The Federal Court was faithful to SCC’s guidance in Dunsmuir, which provided that a lower level of procedural fairness is required on termination of an “at pleasure” appointee than on the dismissal of an appointee instated on terms of good behaviour

•Dunsmuir had specified that, with respect to “at pleasure” appointments, procedural fairness is needed “to ensure that public power is not exercised capriciously”

•In this light, FC held that Keen had been provided with adequate procedural fairness for an “at pleasure” appointment

•It was enough that the minister had written to Keen advising her that he was contemplating recommending to GIC that her position as president be terminated, that he had provided her with the reasons for his concern, and that he had offered her an opportunity to respond

•FC also noted that the order-in-council terminating Keen’s appointment stated that the GIC had “carefully considered her submission”

•Structure of Relations

•Minister of Natural Resources [Gary Lunn]

•dual responsibility and oversight of two agencies

•appoints President and members of Canadian Nuclear Safety Commission

•also responsible for Atomic Energy of Canada Ltd.

•Canadian Nuclear Safety Commission

•the “regulator”

•arm’s length, independent agency

•issues licence to AECL

•members appointed “during good behaviour”

•Atomic Energy of Canada Ltd.

•the “regulated”

•Independent Crown corporation operating reactor at Chalk River

•NRU reactor operating since 1957

•uses weapons-grade uranium


•Keen v Canada (Continued)

•Nuclear Safety and Control Act, S.C. 1997, c. 9

•DIRECTIVES

•19(1) The Governor in Council may, by order, issue to the Commission directives of general application on broad policy matters with respect to the objects of the Commission.

•(2) An order made under this section is binding on the Commission.

•Recently the SCC in Dunsmuir had occasion to review an “at pleasure” appointment and held that certain duties of fairness were owed to a person having such an appointment before action was taken to dismiss that person

•If the statutory provisions were silent, such a person has at least a right to notice of an intention to be dismissed and to make representations in that regard for consideration before a final decision as to dismissal is made

•The substantive issue before the Court is the propriety of the Order in Council terminating Ms. Keen’s designation as President of the Commission; She remained as a member until her voluntary resignation

•The Act is silent as to the designation of Ms. Keen or any other member, as President; Is that designation “during good behaviour” or is it “at pleasure”? If that designation was “at pleasure” the evidence shows that Ms. Keen was afforded the procedural fairness contemplated by Dunsmuir

•As stated in Thorne’s Hardware, the court cannot enquire into the validity of such a recital in an Order in Council

•I am, therefore, satisfied that, if the designation of Ms. Keen as President of the Commission was “at pleasure”, then the requirements of procedural fairness have been satisfied and the dismissal cannot be set aside.

•On the other hand, if the designation of Ms. Keen as President was “during good behaviour”, it is quite clear that neither the Minister nor the Governor in Council have provided Ms. Keen adequate information setting out the grounds upon which it was believed that she lacked good behaviour

•I find that there is insufficient evidence to satisfy me that there was any meaningful discussion as to the designation of President being during good behaviour and, even if there was, such discussions were in no way binding upon the Crown.



•Keen v Canada (Continued)

•The second point raised by Ms. Keen’s counsel is that the position of President and member are sufficiently intertwined so that the member’s status of “during good behaviour” is that of the President as well; This second point is continued in the Applicant’s third point which is that if the legislation is silent or ambiguous then the rule of law and natural justice should dictate the that the designation as President would be on the same basis as that of a member, namely, during good behavior

•Ocean Port states that where the legislation can be reasonably and clearly interpreted, it should prevail over any general concepts bases on the rule of law and natural justice

•The last point raised by Ms. Keen counsel relates to Canada’s international obligations under the Convention on Nuclear Safety

•At best Baker says that international law or obligations may “help inform” a decision of the Court; I have not been referred to any part of the Convention on Nuclear Safety that would address the security of tenure of a person designated as President of a Commission such as the one at issue here, particularly where that person may continue as a member of the Commission; I find no real help from this point

•Considering all of the above, I must conclude that Ms. Keen, while remaining as a member of the Commission “during good behaviour” must be considered to hold her designation as President, as her commission from Her Majesty says “during Our Pleasure”; The decision of this Court in Houle affirmed by the Federal Court of Appeal in respect of a statute almost identical in the wording of the relevant sections to that under consideration here is binding, and if not binding, persuasive such that the result must be the same here

•Content of procedural fairness for Keen

•Enabling statute indicates members hold office during good behaviour; but is silent regarding President

•Interpretation Act states that every public officer is deemed to hold office at pleasure unless expressed otherwise

•1. Minister of Natural Resources [Gary Lunn] writes letter indicating displeasure and loss of confidence

•2. Keen replies on January 8, 2008 and receives no reply

•3. January 15 order in council terminates her as president and indicates that Governor in Council has “carefully considered the submission” from January 8

•4. Keen continues as ordinary member

•5. September 2008 Keen voluntary resigns as member of CNSC

•PF satisfied for according to Federal Court

Reasonable Apprehension of Bias

• The Rule Against Bias – allegations of reasonable apprehension of bias exist in two major forms in administrative law:

• (1) Perceptions of Individual Bias, which deal with the impartiality of individual decision-makers; and

• (2) Perceptions of Institutional Bias, which deal with whether reasonable perceptions of partiality regarding the decision-making body as a whole can be raised in a substantial number of cases

• COMMON LAW TEST for tribunal independence, impartiality & bias

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

• ONUS lies on the person alleging to raise the issue before the decision-maker at the first available opportunity

• ONUS lies on the person alleging to adduce evidence to meet the reasonableness threshold of “more than mere suspicion”

• PROOF is on a balance of probabilities

Perceptions of Individual Bias

•Individual Bias

•Four grounds exist at common law to determine whether an individual decision-maker has exhibited bias:

•1. a pecuniary or material interest in the outcome of the matter being decided

•only direct and certain financial interests count (Energy Probe)

•if the gain is insignificant and no different from that received by the average person in a widespread group of benefit recipients, it will not count

•a statute may authorize indirect pecuniary benefit

•2. personal relationships with those involved in the dispute

•includes parties, counsel, witnesses and other administrative actors

•is the relationship close enough and current enough to pose a threat to impartiality?

•3. Prior involvement in or knowledge or information about the matter in dispute

•mediation privilege may be directed by the statute

•BUT the statute could authorize multiple overlapping functions that may oust the common law

•4. an attitudinal predisposition towards the outcome (prior, fixed view)

•the text is flexible and ranges in application from strict to lenient depending on the nature and function of the decision-maker

•a municipal councillor, for example, will not be held to stricter adjudicative standards unlike an adjudicative member of a tribunal

•Assessing Allegations of Bias: The Intensity of Review

•Strict Reasonable Apprehension of Bias – applicable to courts and tribunal hearings

•Flexible Reasonable Apprehension of Bias – commission of inquiry; investigative decision makers

•More Lenient CLOSED MIND Standard – investigative decision makers, applicable to legislative/policy/decision-makers

Individual Bias

•Determining which procedural safeguards, including the degree of independence and impartiality, are needed in any particular administrative context is a matter of balancing several factors including the nature of the decision being made, the nature of the statutory scheme, and the agency’s choice of procedures

•Baker v Canada (1999) –

•Context and application

•Decision of great importance to individual

•Decision critical to interests of Canada

•Individualized, not general, decision

•Decision requires “special sensitivity,” recognition of diversity, understanding of others, openness to difference

•Decision requires understanding history of Canada and importance of immigration

•Notes indicate stereotypes regarding mental illness, single mothers, domestic workers

•Conclusion: “In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz’s comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes.”

•Newfoundland Telephone Case – the administrative law jurisprudence has held that the standard for determining whether disqualifying bias exists should be whether the adjudicator has a closed mind

•In other words, what is central is whether the decision-maker is amenable to persuasion of whether their comments indicate a “mind so closed that any submission by the parties would be futile”

•The test has led to permissible variation in the degree to which a decision-maker may be wedded to a position held prior to making a decision on the outcome

•The degree to which a court will accept a prior, fixed view on the part of a decision-maker is determined by the nature and function of the decision-making process

•A multifunctional administrative body may have varying standards depending on the function being performed; administrative bodies that conduct policy functions will be subject to the closed-mind standard

Individual Bias

•Chretien v Canada (2008) – Commission of Inquiry into the Sponsorship Program, Gomery (also a judge) the Commissioner; Commissioner made several public statements during the hearings which Chretien alleges demonstrate a RAB

•Stated conclusions publicly before hearing all the evidence (“I simply confirmed the findings of the Auditor General, which I think I’m in a position to do after 3 months of hearings”)

•A reasonable apprehension of bias standard was used to evaluate comments made to the media by the commissioner of a public inquiry

•The applicant, former PM, was successful in having the factual findings in the public inquiry set aside because the commissioner’s media comments made during the inquiry showed pre-judgement of the matter

•This was surprising because public inquiries aim to determine the facts and do not have binding, enforceable impact

•On the basis of SCC jurisprudence, one would have expected the investigatory nature to require a close-minded test

•1. The purpose of this Commission is

•e. the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry but must also ensure that there is procedural fairness in the conduct of the inquiry …

•f. a commission of inquiry is not a court or tribunal, and has no authority to determine legal liability …

•k. the Commissioner be directed to perform his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization and to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings

•What is the level of procedural fairness in this case?

•Taking into consideration the factors enunciated in Baker, I find that the Applicant was entitled to a high level of procedural fairness before the Commission

•Although the nature of the proceedings do not provide for the same level of procedural fairness required in a trial, the potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation was of such serious consequence that a high degree of fairness was required.

Individual Bias

•Chretien v Canada (2008) – What type of RAB test is required?

•Should it be a strict application because Gomery was a judge? Or a Closed mind test because it is a Commission of Inquiry and has an investigatory function?

•Falls somewhere between the middle and high end of the Newfoundland spectrum

•Do the public statements made by Commissioner Gomerylead a reasonable and right-minded person viewing the matter realistically and practically and having thought the matter through to conclude that he was biased against Chrétien?

•Gomery’s comments to the media in the investigation, during the hearings, after the release of the Report, and upon retirement indicate he prejudged the issues and was not impartial. Surrounding circumstances lead a reasonable person to conclude that he was not impartial.

•The most striking evidence was the pejorative comment made about the Applicant (para 93): “It’s such a disappointment that the Prime Minister would put his name on golf balls. That’s really small-town cheap, you know, free golf balls.”

•“That the Commissioner made assurances that he had not prejudged any issue is irrelevant, as one may be unaware of their own biases:

•Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit.”


RAB – The Closed Mind Test

• Newfoundland Telephone v Newfoundland (1992 SCR) – under the Public Utilities Act, the Board is responsible for the regulation of the Newfoundland Telehphone Co

• Andy Wells appointed to the Board and publicly stated that he intended to play an adversarial role on the board regarding consumer rights

• The board commissioned an analysis of the costs of the NFLDTC, followed by a public hearing to discuss the report; Well’s expressed public outrage regarding the executive salaries at NFLDTC

• At the hearing, NFLDTC argued that Well’s statements created an apprehension of bias; Board disallowed the costs of the enhanced pension plans

• The Board’s decision (5 members)

• Did not have the jurisdiction under the statute to rule on removing its own members

• Would disallow the cost of enhanced pension plan for certain senior executives (Majority, but Minority would allow)

• Refund customers some amounts that used to cover the costs of the enhanced pension plan (All)

• Made no order regarding individual salaries of senior executive officers (Wells’ concurring opinion wishes to revisit in future, but agrees with Majority)

• Cory J for the SCC on Composition and Function

• May have investigative, prosecutorial and adjudicative functions in order to regulate complex or monopolistic industries

• Composition can and should reflect society and not just experts or (in the words of Professor Hudson Janisch) “main line party faithful” or “bland civil servants”

• Cannot assume that consumer advocates or corporate members will be biased because of their representative function or connections

• Assume that all will strive to be fair and think without bias

• Strong opinions do not equal bias

• Many administrative bodies must consider the public interest first and this is essential for public confidence

RAB – The Closed Mind Test

• Newfoundland Telephone (Continued)

• The closed mind test – The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile

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

• Application

• Board is at the legislative end

• But it also has duties to act as an investigator, prosecutor and adjudicator regarding rates and charges

• Should be “wide licence” for members to make public comments during the investigative phase

• Pre-hearing comments are “no more than a colourful expression” and do not equal bias

• Closed mind test for investigative phase not satisfied

• Post-hearing stage requires more discretion and procedural fairness (but not same as a judge)

• Post-hearing comments indicate a closed mind

• RAB test for hearing phase satisfied

• REMEDY: Damage created by reasonable apprehension of bias cannot be truly remedied

• Order of the Board of Commissioners of Public Utilities is invalid


Institutional Bias

•Consolidated Bathurst – the Ontario Labour Relations Board held a meeting of the full labour board to discuss the draft reasons of one of its three member panels

•The purposes of such meetings were to facilitate understanding and appreciation through the board of policy developments and to evaluate the practical consequences of proposed policy initiatives on provincial labour relations and the economy

•At this particular meeting, the decision discussed dealt with whether a legal test the board had established through its jurisprudence should be replaced by another

•SCC issue was whether full board meetings constitute a breach of the natural justice principle that “they who hear must decide”, by placing the decision-makers in a situation where others who have not heard the evidence or arguments can influence them on the particular matter

•It was also argued that such meetings are unacceptable because they do not provide the parties with adequate opportunity to answer issues that may be voiced by board members who had not heard the case

•Ontario Labour Relations Act

•102(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

•108. The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

Institutional Bias

•Consolidated Bathurst –

•Structural/Institutional Elements of a Full Board Meeting

•Called at request of the Ontario Labour Relations Board panel or any member of the hearing panel

•Includes members of original 3-member panel [3 members: Chair, management rep, union rep]

•Members are full-time and part-time

•Discussion limited to policy issues / alternatives

•Facts are taken as given

•Consensus not required

•No minutes kept

•No votes taken

•Attendance is voluntary

•Final decision left to the panel

•Decision is not binding on other panels

•Parties not notified or present

•Does the full board meeting regarding the draft decision (ie, the institutional practice that aims to further consistency) violate procedural fairness by compromising the independence of an individual member (ie, “he who decides must hear”)? NO

•No evidence that three decision-makers were influenced or pressured by others or had opinion imposed on them: each panel member held to own opinion

•No evidence that the three decision-makers were “fettered” in their judgment

•No evidence that factual issues re-opened and discussed

•No evidence that non-panel members participated in final decision

•Consultation was voluntary and not imposed

•PROVIDED THAT

•Parties be given notice and opportunity to respond if new ground arises from the meeting

•the large number of persons who participate in Board decisions creates the possibility that different panels will decide similar issues in a different manner; It is obvious that coherence in administrative decision-making must be fostered

•The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one

Institutional Bias

•Consolidated Bathurst –

•SCC acknowledged the need for full board meetings to ensure consistency; in the majority’s opinion, such meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective

•As well, consultation was useful in achieving the board’s mandate; the structure of the board was conducive to exchanges of opinions between management and union (as evidenced by its tripartite nature) in order to use its combined expertise to regulate labour relations in a prompt and final manner

•The majority also saw coherence as a goal to be fostered so that the outcome of disputes did not depend on the identity of the decision-maker

•And last, in the majority’s view, the fact that a privative clause protects the board’s decisions made it even more incumbent on the board to take measures to avoid conflicting results

•At the same time, the court recognized that fostering coherence should not comprise any panel member’s capacity to decide in accordance with his conscience and opinions

•“no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision”

•“a formalized consultation process could not be used to force or induce decision makers to adopt positions with which they do not agree”

•“nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members’ capacity to decide the issues at stake independently

•A discussion does not prevent a decision-maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom

•Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility

•Relevant issue is whether there is pressure on the decision maker to decide against his or her conscience and opinions

•Guidelines so natural justice would not be breached: (1) that the discussions be limited to law or policy and not factual issues; (2) and that the parties be given a reasonable opportunity to respond to any new ground arising from the meeting

•In this regard, the court approved of the checks and balances put in place by he LRB – for example, not keeping minutes, not keeping attendance, and not holding a vote at the end

The Concept of Jurisdiction

•Jurisdiction = “law declared”

•Legal authority or power

•General governmental power to exercise authority over persons/things

•Issues/areas over which a statutory authority has power usually conferred by specific provisions in the statute

•Scope of court’s inherent power to decide a case/grant a remedy

•The concept of jurisdiction: privative clauses and other legislative signals

•Privative clauses purported to oust entirely JR of the legality of administrative action; ordinarily JR is available for breaches of procedural fairness, errors of law, abuse of discretion, or factual findings made in the absence of evidence

•Originally intended to prevent courts from interfering with substantive outcomes of administrative action through the doctrines of error of law or absence of evidence for findings of fact

•Privative clauses vary in wording, but usually include a grant of exclusive jurisdiction over the subject matter, a declaration of finality with respect to the outcome, and a prohibition on any court proceedings to set the outcome aside

•Judges faced with a privative clause assigned themselves the task of determining whether the issue fell “within jurisdiction” and, therefore, within the ambit of the privative clause or was a “jurisdictional question” that determined the outer boundary of the decision-maker’s authority

•In the case of the latter, a court was entitled to review the decision; at this juncture, and before the emergence of a variable SOR, correctness was the implicit and exclusive SOR

•Rather like the early approach to natural justice, review in the face of a privative clause was an all-or-nothing affair; either the issue was a jurisdictional question, and the courts treated it as they would an issue on appeal, or it was virtually immunized from judicial oversight


•The effectiveness of privative clauses in deterring judicial intervention depended on the ease and frequency with which courts could designate an issue as determinative of jurisdiction, therefore warranting strict judicial scrutiny

•2 techniques deployed by the courts were the “preliminary or collateral question” doctrine, and the “asking the wrong question” doctrine

•Within jurisdiction usually: decision-making area, fact/law, parties, and remedies

•Judicial solutions

•Read privative clauses narrowly so can review on Patent Unreasonableness standard

•Or

•Determine Decision-Maker asked itself the ‘wrong question’ (ie, take Decision-Maker outside of jurisdiction)

•Or

•Block Decision-Maker’s acquisition of jurisdiction through the preliminary question doctrine (ie, “gut”)

•MORE DEFERENCE:

•Privative clause granting exclusive jurisdiction, declaration of finality, ousting court proceedings to set outcome aside [full]

•Finality clause stating decision is final and binding on the tribunal (facts, law, mixed fact and law, etc.)

•Prohibition on judicial proceedings to set aside the result

•Restrict access to/scope of judicial review through leave requirement

•LESS DEFERENCE:

•No privative clause (BUT expertise counts for a lot now)

•Statutory right of appeal (BUT scope may be broad of limited)


•Cupe v NB Liquor Commission (1979) – a public sector union, CUPE, went on strike; under the terms of the NB Public Service Labour relations Act, striking employees were prohibited from picketing and employers were prohibited from using replacement workers

•102(3) Where subsection (1) and subsection (2) are complied with employees may strike and during the continuance of the strike

•(a) the employer shall not replace the striking employees or fill their position with any other employee, and

•(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.

•Section 101 contained a lengthy privative clause declaring, inter alia, that every “award, discretion, declaration, or ruling of the Board is final and shall not be questioned or reviewed in any court”

•The employer complained to LRB that union was picketing, contrary to 102(3)(b), and the union complained that the employer was filling striking employees’ positions with management personnel, contrary to s102(3)(a)

•Board upheld both complaints and employer successfully sought JR of the board’s order against it, and eventually the union appealed to SCC

•Interpretation of 102(3)(a) – employer argued that management personnel were not employees as defined in the Act, and therefore 102(3)(a) was not breached by the use of management personnel to replace employees during the strike

•Dickson J (majority) – result of employer interpretation would be that strikers would have been deprived of their right to picket, but the employer would not have been deprived of the right to employ strike-breakers

•SCC did not follow the extant analytical framework toward the conclusion that 102(3) was a question within the jurisdiction of the board and thus immunized from JR by the privative clause; instead, Dickson J canvassed the reasons for the existence of privative clauses, emphasizing the legislative choice to confer certain tasks onto administrative actors, the specialized expertise and accumulated experience of administrative bodies, and the virtues of judicial restraint; allowed union’s appeal

Standard of Review: The Basics


•CUPE v NB Liquor – in the case at bar, the interpretation of s102(3) “would seem to lie logically at the heart of the specialized jurisdiction confided to the Board”

•Consequently, a court should only interfere if (by labelling as jurisdictional error) an interpretation of the provision is “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation”

•Old-style jurisdiction

•The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. (para. 10)

•Jurisdiction re-cast

•The interpretation of s. 102(3) would seem to lie logically at the heart of the specialized jurisdiction confided to the Board. In that case, not only would the Board not be required to be “correct” in its interpretation, but one would think that the Board was entitled to err and any such error would be protected from review by the privative clause in s. 101

•Implications: 3 doctrinal changes:

•Recognition that administrative decision-makers are not merely “inferior tribunals” but specialized bodies that possess a legislative mandate to apply their expertise and experience to matters that they may be better suited to address than an “ordinary court”

•1) The court situates the case in a broader reappraisal of the respective roles assigned by the legislature to the courts and to administrative bodies in the implementation of regulatory regimes

•2) Because the provision in dispute “bristles with ambiguities”, no single interpretation could lay claim to being “correct”; instead, there were several plausible interpretations

•3) Acknowledged a failure of prior judicial efforts to construct a coherent, principled means of distinguishing reviewable questions from those insulated by a privative clause

•Short of a patently unreasonable interpretation of a statutory provision courts should not interfere with the result reached by the administrative decision-maker

•A jurisdictional question is assessed according to a standard of “correctness”, while questions within jurisdiction are evaluated against a standard of “patent unreasonableness”

Reasonableness Standard of Review

•Canada (Director of Investigation and Research) v Southam Inc (1997) – Iacobucci J made explicit what he had only hinted at in Pezim – namely, an intermediate SOR between patent unreasonableness and correctness; he labelled the standard “reasonableness simpliciter” and declared it (retrospectively) as the standard of review applied in Pezim

•Competition Tribunal found that Southam’s acquisition of newspapers substantially lessened competition in the market (said Southam had to divest itself of 1 of 2 community papers)

•What is the nature of the problem?

•Section 12(1) of the Competition Tribunal Act contemplates a tripartite classification of questions before the Tribunal into questions of law, questions of fact, and questions of mixed law and fact

•questions of law are questions about what the correct legal test is

•questions of fact are questions about what actually took place between the parties

•and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

•I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

•Unreasonable vs Patently Unreasonable Decision

•An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination

•Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it

•The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it

•example of defect in evidentiary foundation itself: an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence

•Example of defect in logical process would be a contradiction in the premises or an invalid inference

Reasonableness Standard of Review

•Canada v Southam (Continued)

•Unreasonable vs Patently Unreasonable Decisions

•The difference between UNREASONABLE and PATENTLY UNREASONABLE lies in the immediacy or obviousness of the defect

•If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is PATENTLY UNREASONABLE

•But if it takes some significant searching or testing to find the defect, then the decision is UNREASONABLE but not patently unreasonable

•This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record; If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem

•Future Problems Already Flagged

•It is possible that if I were deciding this case de novo (from the beginning), I might not dismiss so readily as the Tribunal did what is admittedly weighty evidence of inter-industry competition

•In my view, it is very revealing that Southam’s own expert, an American newspaper consultant, identified the community newspapers as the source of Southam’s difficulties in the Lower Mainland

•To find, in the face of such evidence, that the daily newspapers and the community newspapers are not competitors is perhaps unusual

•In that sense, the Tribunal’s finding is difficult to accept; However, it is NOT UNREASONABLE

•Factors that counsel deference: dispute is over question of mixed law and fact; purpose of Act is broadly economic; better served b the exercise of economic judgement; falls in area of Tribunal’s expertise

•Factors that counsel exacting review: existence of an unfettered statutory right of appeal from decisions of Tribunal; presence of judges in the Tribunal

•Since there are indications both ways, the proper standard of review falls somewhere between the ends of the spectrum; because the expertise of the Tribunal suggests deference, a posture more deferential than exacting is warranted

Standard of Review: The Basics


•Implications of Southam:

•Although Iacobucci was not entirely clear on “inquiry of evidentiary foundation or the logical process”, he seemed to have regarded the most deferential standard of PU as appropriate only in the presence of a privative clause, where intervention must formally be justified by resort to the concept of jurisdiction

•Reviewer will often be tempted to intervene when the reviewer would have come to a conclusion opposite the tribunal’s BUT courts must resist; judicial restraint is needed if a cohesive, rational, and sensible system of judicial review is to be fashioned

•Correctness=greater scrutiny

•PU=more deference

•Reasonableness=somewhere in between

•Iacobucci: “My statement that I might not have come to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such intervention and a call for restraint.”

•SCC after stood firm that SOR isn’t a spectrum, and stood firm on 3 SOR rather than a spectrum

•Pragmatic and Functional Redux

•Pushpanathan v Canada (1998) – concerned the interpretation of a provision in the Immigration Act that excludes refugee status those people “guilty of acts contrary to the purposes and principles of the UN”

•Pushpanathan had made a refugee claim in Canada; before his claim was heard, he was convicted in Canada of the offence of conspiracy to traffic narcotics; he was then excluded from refugee protection under the provision on the basis of his conviction

•A distinctive feature of Act was mechanisms of JR; statute contained no privative clause or right of appeal; instead, JR could only commence with leave of a judge of the FC, and no reasons were required where leave was denied

•If leave was granted and the case heard, the losing party could only appeal to the FCOA if the trial judge certified “a serious question of general importance”

Pragmatic and Functional Redux

•Pushpanathan v Canada (1998) (Continued)

•Bastarache organized the factors relevant to discerning legislative intent into 4 categories: (1) privative clause; (2) expertise; (3) purpose of the act as a whole and of the provision in particular; and (4) nature of the problem (question of law, fact, or mixed)

•Two overarching ingredients: the legislator’s direct or indirect pronouncement about judicial supervision; and the reviewing court’s assessment of the agency’s relative expertise

•The inquiry into statutory purpose and the nature of the problem seem to address specific indicia of expertise

•Court admitted that “purpose and expertise often overlap”, and that the rationale for greater scrutiny of general questions of law than questions of fact relate to the relative expertise of courts versus agencies

•1. Privative clause

•Absence of PC does not imply high standard of scrutiny

•Ouster clause: a full privative clause is a compelling reason for ample deference

•If partial or equivocal PC, will need to look to legislative intent to determine standard but will not likely be the PU standard

•If DM does not possess ample expertise, PC will not protect the decision

•2. Expertise

•Most important factor according to Southam [Note: this will become unsettled in Dunsmuir.]

•Assessed by the courts relative to their own expertise, a comparative assessment; e.g., is there a human rights dimension where judges may be more expert?

•Interpretation of enabling legislation—purposes, objective, agency composition—including highly generalized statutory interpretation aka question of law [Nat’l Corn Growers]

•Non-judicial means of implementing the legislation

•Specialized knowledge or legal and policy areas that generalist judges will not know: e.g., economic, financial, labour, international relations, technical, trade,

•Special procedures for dispute resolution

•Elected bodies: Ministers and their delegates, school boards, municipalities

Pragmatic and Functional Redux

•Pushpanathan v Canada (Continued)

•3. Purpose of the Act as a Whole and Provision In Particular

•Purpose and expertise often overlap

•Legislative scheme in its entirety using the modern approach to statutory interpretation

•Provision with a statutory appeal: permits more searching review

•Ask if there is a “delicate balancing between different constituencies” (para 36)

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

•Assess whether rights/entitlements are protected/affected

•Attend to language that is vague, open-textured, or grants discretion

•4. Nature of the Problem

•Question of law may be granted a wide degree of deference especially when combined with expertise and/or PC

•Question of fact or question of mixed fact and law or discretionary language = more deference

•“Pure” questions of law have precedential impact: “a finding which will be of great, even determinative import for future decisions of lawyers and judges” (para 37)

•Generalized proposition of law = correctness

•Narrow questions of jurisdiction require correctness

•Legislative intent re: questions of law [review factors 1,2, & 3] and intersection with expertise

Standard of Review: From 3 to 2

Pragmatic and Functional Approach

•Pushpanathan v Canada (Continued)

•FCA = patent unreasonableness

•1. PC = not strong (s67(1))

•2. Expertise = specialized tribunal, staffed by experts in field with special knowledge

•3. Purpose of Act as a whole and provision in particular = limited structure to apply for JR, not adversarial but inquisitive in structure, no adverse party, highly complex legal area

•4. Nature of problem = question of law but not broad, general

•SCC = correctness

•1. PC = not strong

•2. Expertise = no relative expertise, less developed than a human rights tribunal; also no managing or supervisory function over the legislative scheme

•3. Purpose of Act as a whole and provision in particular = statutory right of appeal (s83(1) based on criterion of ‘generality’ outweighs the PC; also not polycentric

•4. Nature of problem = question of human rights

•Baker reformulated the pragmatic and functional approach: The “pragmatic and functional” approach recognizes that standards of review for errors of law [and discretionary decisions] are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less

•The spectrum of standards of review can incorporate the principle that in certain cases, the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament

The New Analytical Framework

•The Calculus of Deference = assess and balance the factors, select the standard, calibrate the level of deference, and apply

•Dunsmuir v New Brunswick (2008 SCC) – Mr Dunsmuir was dismissed from his civil service position in the Department of Justice; he received severance, but insisted that he was also owed a duty of fairness prior to termination; he grieved unsuccessfully, and then appealed to an adjudicator

•The adjudicator appointed to address Dunsmuir’s grievance interpreted the relevant statutory provisions in a manner that allowed him to consider the reasons for discharge, even though the employer did not assert that Mr Dunsmuir was dismissed for cause

•The question of law was whether the adjudicator was entitled to inquire into whether the employer actually dismissed Dunsmuir for cause and, by extension, whether just caused existed

•The adjudicator determined that the statute authorized him to inquire into the reasons for discharge as part of the grievance arbitration, but then went on to find that the dismissal was, on the facts, not for cause

•One issue before the SCC was the appropriate SOR for the question of law concerning the adjudicator’s authority to inquire into the reasons for dismissal

•Binnie J: “A system of judicial review based on the rule of law ought not to treat a privative clause as conclusive, but it is more than just another “factor” in the hopper of pragmatism and functionality. Its existence should presumptively foreclose judicial review on the basis ofoutcome on substantive grounds unless the applicant can show that the clause, properly interpreted, permits it or there is some legal reason why it cannot be given effect.” (para 143)


•Dunsmuir v NB (Continued)

•Majority (Bastarache & Lebel) on eliminating the PU standard:

•Moreover, even if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable from a merely irrational decision, it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough; It is also inconsistent with the rule of law to retain an irrational decision.

•Majority on Reasonableness Review

•Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result

•Instead, they may give rise to a number of possible, reasonable conclusions

•Tribunals have a margin of appreciation within the range of acceptable and rational solutions

•A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes.

•In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process; But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Standard of Review: From 3 to 2



•Majority on Deference and Reasonableness

•The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism

•In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law

•What does deference mean in this context?

•Deference is both an attitude of the court and a requirement of the law of judicial review

•It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view

•Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law

•The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers”

•We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission, but a respectful attention to the reasons offered or which could be offered in support of a decision”

•Deference in the context of reasonableness standard therefore implies that courts will give due consideration to the determinations of decision-makers

•deference requires respect for the legislative choices to leave some matters in the hands of administrative decision-makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system



•The result: two approaches develop in the caselaw

•Rebuttable presumption of reasonableness standard coupled with correctness carve-out [Binnie J]

•OR

•Two-step Standard of Review (SOR) analysis [Majority]

•In addition to the appropriateness of the reasoning (under either standard), the outcome must also be reasonable or correct (depending on the standard used)

•CORRECTNESS (NO deference) will apply to:

•A constitutional issue

•A question of general law that is BOTH of central importance to the legal system as a whole AND outside the specialized area of expertise

•Drawing jurisdictional lines between two or more competing specialized tribunals

•A “true” question of jurisdiction or vires [narrowly understood]

•The ‘simplified’ 2-step Test from the Dunsmuir majority

•1) Look to past jurisprudence to see how particular category of question was addressed (if satisfactorily) regarding level of deference owed.

•2) If not, contextually analyze the factors using the Standard of Review analysis:

•a) Privative clause [important]: if strong, likely reasonableness

•b) Purpose of tribunal from interpretation of enabling legislation

•c) Nature of the question

•If fact, discretion, policy, mixed fact and law: likely reasonableness

•If law, then home statute, closely related statutes, expertise in common or civil law rules in the statutory context: likely reasonableness

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

•Deschamps: simple approach – identify if question of law, question of fact, of questions of mixed fact and law is the issue; very little else needs to be done in order to determine whether deference needs to be shown to an administrative body; all 4 factors need not be considered, and JR of administrative action is often not distinguishable from the appellate review of court decisions



•Binnie J concurring: on degrees of deference in reasonableness review

•The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate; “Contextualizing” a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference

•Binnie J: private clause and reasonableness of outcome

•When the applicant for judicial review challenges the substantive outcome of an administrative action, the judge is invited to cross the line into second-guessing matters that lie within the function of the administrator

•This is controversial because it is not immediately obvious why a judge’s view of the reasonableness of an administrative policy or the exercise of an administrative discretion should be preferred to that of the administrator to whom Parliament or a legislature has allocated the decision, unless there is a full statutory right of appeal to the courts, or it is otherwise indicated in the conferring legislation that a “correctness” standard is intended

•Binnie J: risks of reasonableness review regarding outcomes

•Reducing three standards of review to two standards of review does not alter the reality that at the high end “patent” unreasonableness was not a bad description of the hurdle an applicant had to get over to have an administrative decision quashed on a ground of substance

•The danger of labelling the most “deferential” standard as “reasonableness” is that it may be taken (wrongly) as an invitation to reviewing judges not simply to identify the usual issues, (such as whether irrelevant matters were taken into consideration, or relevant matters were not taken into consideration), but to reweigh the input that resulted in the administrator’s decision as if it were the judge’s view of “reasonableness” that counts

•At this point, the judge’s role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose

Statutory Interpretation

•The “Modern Principle” or “Rule” (Rizzo Shoes)

•Words are read in:

•The entire context

•In their grammatical and ordinary sense when not defined

•Harmoniously with the scheme of the Act, the purpose or object of the Act, and the intention of Parliament

•Using a textual, contextual and purposive to analyze

•Legislative History – Hansard debates, Minister’s statements affirming statutory purpose in subsequent amendments, legislative silences regarding potential amendments

•Judicial Interpretation – statutory purposes affirmed in jurisprudence; functional analysis of institutional relations and positions; rules of construction (express intent or silence, absurd results, structural analysis, consistent expression across a number of related statutes, coherence)

•Agency Interpretation – agency precedents, reasons, statements regarding statutory purposes by Agency Officials, soft law

•Expert Evidence – witnesses, outside experts provide contextual information that is not for use in actual interpretation

Correctness Standard of Review

•CORRECTNESS will apply to:

•A constitutional issue

•A question of general law that is BOTH of central importance to the legal system as a whole AND outside the specialized area of expertise

•Drawing jurisdictional lines between two or more competing specialized tribunals

•A “true” question of jurisdiction or vires

•Correctness Review: Underlying Rationales

•1. Supervise jurisdiction of administrative decision-makers

•Generalist judges are uniquely placed and independent of the executive

•2. Exhibit expertise in matters over which administrative decision-makers are less adept and knowledgeable

•But not all instances of law interpretation

•3. Ensure consistency and predictability in the legal system

•Especially where a range of reasonable alternative interpretations exist?

•Some legal questions require ONE right answer

•Northrop Grumman Overseas Services Corp v Canada (AG) (2009 SCC) – NG (a US Corporation) submitted bid for procurement of military goods; NG wanted to complain to the Canadian International Trade Tribunal (CITT) that Public Works Canada had not evaluated its contractual bid in accordance with the Agreement on International Trade (AIT); the CITT Act contemplated complaints from “potential suppliers” of procurement contracts under the AIT where certain threshold conditions were met

•When the CITT agreed to hear the complaint, PW challenged Northrop Overseas’ standing to file the complaint on the grounds that Northrop Overseas was not a “Canadian supplier”

•The CITT ruled that Northrop Overseas had standing to bring the complaint

•On judicial review, the Federal Court of Appeal quashed the ruling, holding that the CITT’s jurisdiction under the AIT was limited to complaints brought by Canadian suppliers.

Correctness Standard of Review

•Northrop Grumman v Canada (Continued) –

•Rothstein J: Parliament’s clear and unambiguous intent

•It is abundantly clear having regard to these provisions of the AIT that the agreement pertains to domestic trade within Canada; Essentially, it is a domestic free trade agreement.

•These provisions assist in providing context within which to interpret the meaning of Article 502(1) of the AIT

•As I understand Ryer J.A’s reasons, he takes “procurement within Canada” to be a subset of the category of “trade within Canada”, which defines the scope of the AIT at Article 101(1); “procurement within Canada” is that sub-category of “trade within Canada” whereby the government acquires supplies; I think he is correct.

•Northrop Overseas’ argument that non-Canadian suppliers have standing to bring complaints based on the AIT to the CITT leads to problematic results; If the argument of Northrop Overseas were correct, it would gain rights under the AIT despite its US government not being a party to the AIT; This poses difficulties

•Second, Northrop Overseas’ interpretation undermines the Canadian government’s approach to negotiating trade agreements

•Ratio: correctness review will apply to “true” questions of jurisdiction or vires; when applying correctness review, the court here took a closed system approach to analyzing legislative intent and gave no deference to CITT (court didn’t examine CITT’s reasoning)

•The court avoided engaging the question of jurisdiction by noting that the parties all accepted that earlier case law remained authoritative in imposing a standard of correctness

•Because the earlier jurisprudence determined the SOR in a “satisfactory manner” the court was relieved of the task of conducting a fresh SOR analysis

Standard of Review: Correctness

Correctness Review

•Mouvement laique Quebecois v Saguenay (City) (2015) –mayor had habit of starting municipal council’s public meetings with recitation of prayer; AS (atheist) attended meetings and felt uncomfortable and asked to stop; Mayor refused but changed prayer via a bylaw and made it non-mandatory ; AS went to Quebec HR tribunal, which held it was in breach of state’s duty of neutrality and it interfered in a discriminatory manner with AS’s freedom of conscience and religion

•Previous decisions and context of this appeal support a separate application of the standard of correctness to the QUESTION OF LAW concerning the scope of the state’s duty of neutrality that flows from freedom of conscience and religion

•The IMPORTANCE of this question to the legal system, its broad and general scope and the need to decide it in a uniform and consistent manner are undeniable

•Gascon J (majority): rationale for correctness review

•Another such case is where general questions of law are raised that are of importance to the legal system and fall outside the specialized administrative tribunal’s area of expertise is Mclean

•“The logic underlying the ‘general question’ exception is simple. As Bastarache and LeBel JJ. explained in Dunsmuir, ‘[b]ecause of their impact on the administration of justice as a whole, such questions require uniform and consistent answers’”

•Or in Mowat: “correctness review for such questions “safeguards a basic consistency in the fundamental legal order of our country”

Correctness Review

•Mouvement laique v Saguenay (Continued)

•However, it was not open to the COA to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard

•For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise

•The same is true of the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted

•The Tribunal is entitled to deference on such matters.

•The only requirement is that its reasoning be transparent and intelligible.

•Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law”

•Gason rebutting the presumption of reasonableness review:

•Moreover, the jurisdiction the legislature conferred on the Tribunal in this regard in the Quebec Charter was intended to be non-exclusive; the Tribunal’s jurisdiction is exercised concurrently with that of the ordinary courts; I am therefore of the view that the presumption of deference has been rebutted for this question

•that the applicable standards on judicial review of the conclusions of a specialized administrative tribunal can sometimes vary depending on whether the questions being analyzed are of law, of fact, or of mixed fact and law.

Correctness Review

•Quebecois v Saguenay – Gascon on jursidictions

•If a complainant chooses the administrative process route, rather than a court of law, they commit themselves to that process instead of judicial review

•Quebec Human Rights Commission decided it would only investigate the prayer issue, and not the religious symbols issue, and referred the matter on that basis without giving reasons to explain why the religious symbols issue would not be investigated

•Quebec Human Rights Tribunal’s jurisdiction is dependent on the identifying, screening, and referral/denial authority of the QHRC

•Once referred, and if discrimination is proved, the QHRT has the authority to award a remedy, the scope of which is shaped by the investigation done by the QHRC

•Because the QHRC did not give reasons re the religious symbols issue, the QHRT used this as a justification to extend its jurisdiction on the grounds of the QHRC’s improper refusal to act

•QHRT did not have the jurisdiction to consider the religious symbols issue

•AND if the QHRT did not have jurisdiction to consider the religious symbols issue, the Quebec Court of Appeal also did not have jurisdiction to consider the religious symbols issue—even though they did!

•but Tribunal could hear evidence beyond that collected by the QHRC in order to determine whether the prayer was discriminatory

•Gascon: on deference as respect

•The COA could not disregard Tribunal’s findings of fats regarding the existence of an exclusion based on religion unless they could be held to be unreasonable – the evidence does not support such a result

•The deference the court owed precluded it from intervening rashly in this regard

•In my opinion, it was open to the Tribunal to conclude that the municipality’s practice, given its religious nature, was in breach of the state’s duty of neutrality and resulted in an exclusion based on religion


Correctness Review

• Quebecois v Saguenay

• Gascon on remedial jurisdiction:

• In the case at bar, the appellants asked the Tribunal to declare the By-law inoperative and of no force or effect in relation to Mr. Simoneau and, in particular, to order that the interference with his rights cease

• Insofar as the By-law infringed the Quebec Charter, the Tribunal could declare it to be inoperable against him; However, it could not declare it to be “inoperative and invalid” without further clarification, as that would amount to a general declaration of invalidity, which it does not have the jurisdiction to make; In any event, the Tribunal’s orders completed its declaration

• The Tribunal ordered the respondents solidarily to pay $30,000 in compensatory and punitive damages

• The Tribunal had a broad discretion to decide on the scale of the appropriate remedies. It gave reasons for its decision, and they are intelligible. It is entitled to deference on these questions.

Correctness Review

•Quebecois v Saguenay

•Abella J (agreeing in part)

•Agrees with result BUT

•Rejects segmentation of issues and result that they are reviewed under different standards

•Court must review decision / reasons as a whole todetermine if reasonable

•General law + outside expertise issue is a “binary exception to the presumptive application of reasonableness” (para 167)

•Otherwise can “hive off” a component of the decision or right from the ambit of expertise

•Result = reviewing court can subject one aspect of freedom of religion—state religious neutrality—to more heightened scrutiny than the right itself contrary to Dunsmuir

•Risk is acute for human rights tribunals dealing with discrimination issues that deference will always be gutted because all issues of discrimination are central and important to the legal system

•In this case, we are dealing with a human rights tribunal. Its mandate is to determine whether discrimination has occurred based on a number of enumerated rights. One of those rights is freedom of religion and conscience. This is undoubtedly a question of “central importance to the legal system as a whole”, but far from being “outside the adjudicator’s specialized area of expertise”, it is the Tribunal’s daily fare. Since state neutrality is about what the role of the state is in protecting freedom of religion, part of the inquiry into freedom of religion necessarily engages the question of state religious neutrality. It is not a transcendent legal question meriting its own stricter standard, it is an inextricable part of deciding whether discrimination based on freedom of religion has taken place

Correctness Review

• Quebecois v Saguenay

• Abella J

• What do we tell reviewing courts to do when they segment a tribunal decision and subject each segment to different standards of review only to find that those reviews yield incompatible conclusions? If we keep pulling on the various strands, we may eventually find that a principled and sustainable foundation for reviewing tribunal decisions has disappeared. And then we will have thrown out Dunsmuir’s baby with the bathwater

• Separation of Powers: Division of Labour & Obligations

• Parliament/Legislature – establish criteria and procedures governing policy area within constitutional limits

• Decision-Maker – decide according to P’s criteria and procedures + constitutional values and the constitution (writ large)

• Courts – review decision-maker’s decision to see if exercised within Parliament or legislature’s constraints and the constitution writ large, including values, AND, if appropriate factors considered in conformity with constraints and values, then show deference as respect


The Significance of the Privative Clause

•Canada v Khosa (2009 SCC) – Khosa was Indian citizen and landed immigrant to Canada; took part in street racing and was convicted of dangerous driving and criminal negligence causing death

•Khosa applied unsuccessfully to Immigration Appeal Division to remain in Canada notwithstanding the conviction

•Majority of IAD did not accept that there were “sufficient humanitarian and compassionate considerations to warrant special relief against removal order” within 67(1)(c)

•Grounds for JR enumerated in FCA; state silent on the applicable SOR except to state that erroneous findings of fact warranted relief if made in a perverse or capricious manner or without regard for the material before it

•67(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

•(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

•72(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.

•162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

•18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

•Binnie J for the majority on the interpretation of s18.1(4) of FCA:

•Federal Courts Act must be “sufficiently elastic” to apply to decisions made by hundreds of different types of administrators

•Must be Parliament’s intent to reflect this reality

•Federal Courts Act sets out threshold grounds for discretionary relief, NOT standards of review

•Differs from the BC ATA

•Not a self-contained code but informed by common law

•Standard of review analysis applied: not a “checklist”

•Existing jurisprudence: reasonableness

•Contextualized approach when jurisprudence is not conclusive: still is reasonableness

The Significance of the Privative Clause

•Khosa (Continued)

•Applied 2-step Dunsmuir test:

•(1) Existing jurisprudence points to reasonableness;

•(2) detailed analysis of 4 Pushpanathan factors also points to reasonableness:

•(a) presence of privative clause & no stat. right of appeal → strongly indicates deference

•(b) purpose of IAD = empowered to make wide range of appeal decisions based on fact-dependent and policy-driven assessment → deference

•(c) nature of the question = request for special relief under s. 67 → deference

•(d) expertise of IAD = significant b/c conducted hearing and assessed evidence (incl. from the respondent himself) → deference.

•IAD not held to standard of criminal court: issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but whether the prospects for rehabilitation were such that they warranted special relief from a valid removal order; The IAD was required to reach its own conclusions based on its own appreciation of the evidence, and it did so

•In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA, the decision reached by the majority in this case to deny special discretionary relief against a valid removal order did not fall outside the range of reasonable outcomes.

•In cases where the legislature has enacted judicial review legislation, an analysis of that legislation is the first order of business. Then apply Dunsmuir test for SOR.

•Majority: default is reasonableness; Rothstein: if no PC= correctness.

•Maj: It is not the case that absent statutory direction, explicit or by necessary implication, no deference is owed to administrative decision makers in matters relating to their special role, function and expertise.

Euthanizing Jurisdiction

•Alberta v Alberta Teachers Association 2011 (SCC) – adjudicator made decision on behalf of IAPC finding that respondent association breached complainants’ privacy rights

•Alberta Teacher Association argued that Commissioner lost jurisdiction by failing to extend the completion date of injury within the 90 day period set out in 50(5); commissioner took 22 months from initial complaint before extending the estimated completion date

•ATA eventually found to have contravened the act; by doing so, both Commissioner and adjudicator implicitly decided that providing an extension after 90 days did not result in the inquiry automatically being terminated

•Rothstein J on true questions of jurisdiction

•The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importancewhen the tribunal is interpreting its home statute

•In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review; However, since Dunsmuir, this Court has departed from that definition of jurisdiction

•Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review

•However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review

•True questions of jurisdiction are narrow and will be exceptional

•When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness

•As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness

Standard of Review: Reasonableness

Euthanizing jurisdiction

•Alberta Teachers (Continued) –

•Binnie on true questions of jurisdiction

•I agree with Cromwell J. that the concept of jurisdiction is fundamental to judicial review of administrative tribunals and, more generally, to the rule of law – but – The courts, not the tribunals, determine the outer limits of those mandates.

•Enforces deeply problematic statement by the Dunsmuir majority that jurisdiction should be understood in the “narrow sense of whether or not the tribunal had the authority to . . . decide a particular matter

•The middle ground between Cromwell J. and Rothstein J., it seems to me, lies in the more nuanced approach – ““if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference”

•Cromwell J on true questions of jurisdiction

•I remain of the view that correctness review exists, both as a matter of constitutional law and statutory interpretation. This will be true, on occasion, with respect to a tribunal’s interpretation of its “home” statute. As the Court affirmed in Dunsmuir, “judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits”

Application of the reasonableness standard

•Celgene Corp v Canada (AG) (2011 SCC) – interpretation whether pharmaceutical product distributed by Celgene from its base in US to Canadian purchasers through a Special Access Programme could be considered a drug sold in any market in Canada

•Board concluded that sales fell within both its authority for price investigation and its related remedial powers if price deemed excessive, and that it was “sales in any market in Canada”

•Abella J: issue – : whether the concept of “sold in any market in Canada” in the relevant provisions should be interpreted strictly in accordance with commercial law principles, or whether its definition should be responsive to the surrounding legislative context and purpose

•Consequence: Board has the authority (aka jurisdiction) to require Celgene to provide pricing information for Thalomid and (potentially) order a price reduction

•In rejecting the technical commercial law definition, the Board was guided by the consumer protection goals of its mandate, concluding that Celgene’s approach would undercut these objectives by preventing the Board from protecting Canadian purchasers of Thalomid and other foreign-sold SAP patented medicines

•Board applied modern approach: The mandate of the Board includes balancing the monopoly power held by the patentee of a medicine, with the interests of purchasers of those medicines

•In this Court, neither party presented any argument on the standard of review; Both had proceeded throughout the judicial review process on the basis that the applicable standard of review was correctness; While the parties should not be able, by agreement, to contract out of the appropriate standard of review, like Evans J.A. I am of the view that the Board’s decision would be upheld under either standard

•I also question whether correctness is in fact the operative standard; This specialized tribunal is interpreting its enabling legislation; Deference will usually be accorded in these circumstances; Only if the Board’s decision is unreasonable will it be set aside.

•And to be unreasonable, as this Court said in Dunsmuir, the decision must be said to fall outside “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”; Far from falling outside this range, I see the Board’s decision as unassailable under either standard of review

Presumptions and Indicia of (un)reasonableness

•Presumptions for reasonableness review

•REASONABLENESS is the presumptive standard regarding reasoning and outcome when:

•1) a specialized or expert tribunal

•2) interprets its enabling or home statute (or closely related statutes)

•3) on a question of fact or mixed fact and law or (in some cases) law

•4) or exercises broad statutory discretion

•5) And correctly applies all applicable legal principles or tests (if applicable)

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

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

•8) and produces a reasonable outcome which is defensible in respect of the facts and law.

•Note the importance of REASONS in establishing reasonable decision and outcomes

•Indicia of Unreasonableness

•Illogical, irrational reasoning

•disproportionate outcome (eg., in relation to strength of the affected right/interest/privilege)

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

•differential treatment: different decisions reached in respect of highly similar factual situations

•failure to take into account a relevant consideration or, conversely, failure to exclude an irrelevant consideration

•factual findings made without a rational basis or presence of contradictory factual findings

•unacknowledged or unexplained changes in policy or tribunal jurisprudence

•interpretive conflict with judicial precedent

•absurdity, insanity, complete irrationality, etc etc etc

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

Standard of Review: Reasonableness

Introduction Private Law vs Public Law

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Transcript of Introduction Private Law vs Public Law