ADMINISTRATIVE LAW SUMMARY

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

PART I INTRODUCTION
Appeals rights of appeal are purely the creation of statute Judicial Review Procedure Actsee full NOTES Prerogative Writsremedies requested whe it reviewed gov!t act "su#sumed i JRP Act$ o certiorari% to quash or set aside a decisio & review certai t' of decisio o prohi#itio % to order a tri#u al ot to proceed i a matter&li(e a i )u ctio % preve t gov!t from acti g o ma damus% to order the performa ce of a pu#lic dut' co verse% force the gov!t to act* o ha#eas corpus% issues to determi e the legalit' of a perso +s dete tio % whether #' a private perso or pu#lic official% with a view to orderi g the release of the u lawfull' impriso ed*

PART II ADMINISTRATIVE PROCEDURES (i) Introduction

T,E R-.E O/ .AW AN0 T,E A012N2STRAT23E STATE Procedures4 5ENERA. 2NTRO0-6T2ON audi alteram partem "liste to the other side$% a d u til rece tl'% it u am#iguousl' i cluded the e tire ra ge of commo law procedural rights* 2ssues of co cer o the co cept of 7legislative7 as opposed to 7admi istrative7 a d 7)udicial7 fu ctio s& o the ma(i g of 7rules7 a d 7polic'7 as opposed to the resolutio of disputes& o the 7 o 8fi al7 or 7prelimi ar'7 as opposed to 7fi al7 ature of some decisio s& o the descriptio of the i terest at sta(e as #ei g a 7privilege7 as opposed to a 7right7& o the pull associated with 7propert'7 claims as opposed to other t'pes of 7i terest*7

(ii) The Duty of F irne!!" Sco#e of A##$ic tion

( ) %i!toric $ O&er&ie'
/air ess4 The Threshold,istorical Overview Natural Justice o audi alteram partem4 right to a oral heari g o otice o cou sel4 participatory rights, witnesses, cross-examinations, submissions, impartial decision-maker curre t ame for Natural Justice is procedural )ustice

commo law rights "i cludi g atural )ustice$ ca #e overridde #' explicit statute of legislature

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

Cooper v. Board of Works for Wandsworth District !"#$%, !&$ '( &!& 'ng.C)% ER.E 6J4 o *atural +ustice does not only apply to strictly +udicial acts,broadened,do not need to consider whether it was +udicial-.uasi-+udicial to determine whether natural +ustice applies o Natural )ustice requires otice a d a opportu it' to #e heard /he district board must do the thing legally0 there must #e a resolutio 9 otice:& a d% if there #e a #oard% a d a resolutio of that #oard% 2 have ot heard a word to show that it would ot #e salutar' that the' should hear the ma who is to suffer from their )udgme t #efore the' proceed to ma(e the order u der which the' attempt to )ustif' their )udgme t #efore the' proceed to ma(e the order u der which the' attempt to )ustif' their act* o No harm to #oard to hear 6ooper% #ut great harm to 6ooper o 2 thi ( the appeal clause would evide tl' i dicate that ma ' e;ercises of the power of a district #oard would #e i the ature of )udicial proceedi gs NOTES o rare e;ample of collateral attac(* The remed' #ei g sought is damages% ot )udicial review E<PANS2ON *icholson v. 1aldimand-*orfolk (egional% )olice Commissioners 2!3435 6 7C($!! 8nt.% .AS=2N 6J6"ma)orit'$4 RAT2O o i the sphere of the so8called 7quasi8)udicial the rules of atural )ustice ru % a d that i the admi istrative or e;ecutive field there is a ge eral dut' of fair ess*7 o 9There is: a dut' to o#serve the rudime ts of atural )ustice for a limited purpose i the e;ercise of fu ctio s that are ot a al'ticall' )udicial #ut admi istrative* 0E62S2ON o Status i office deserves this mi imal protectio * o 2 m' opi io % the appella t should have #ee told wh' his services were o lo ger required a d give a opportu it'% whether orall' or i writi g as the >oard might determi e% to respo d* 1ART.AN0 J "disse ti g$ o The ver' purpose of the pro#atio ar' period was to e a#le the respo de t to decide whether it wished to co ti ue his services #e'o d the pro#atio ar' period*

(() The E)er*ence nd Su(!e+uent E$ (or tion of the Duty of F irne!!" Nicho$!on nd ,ni*ht
9artineau v. 9ats.ui 6nmate Disciplinary Board, 2!3":5 ! 7C( #:; Can.%%

,O.02N5 Supreme 6ourt re)ected otio that certiorari ca #e used to review o l' )udicial or quasi8 )udicial fu ctio s% which appeared to e;pa d the limits of certiorari to i clude e forceme t of procedural requireme ts ge erall'* no separate set of rules that constituting fairness vs. natural justicerather there is a spectrum >ut co fi ed4 o the remed' #e gra ted o l' i cases of serious i )ustice

9*( v. Coopers < =ybrand, 2!3435 ! 7C( &3> Can.% criteria " o 8e;haustive$ for determi i g whether a decisio or order is o e required #' law to #e made o )udicial or quasi8)udicial #asis* (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated? (2) oes the decision or order directly or indirectly affect the rights and o!ligations of persons? (") Is the adversary process involved? (#) Is there an o!ligation to apply su!stantive rules to many individual cases rather than$ for example$ the o!ligation to implement social and economic policy in a !road sense? Cardinal v. Director of ?ent 6nstitution. 2!3">5 ; 7C( #&$ The de ial of a right to a fair heari g must alwa's re der a decisio i valid% whether or ot it ma' appear to a reviewi g court that the heari g would li(el' have resulted i a differe t decisio * .e0ai 4 ?0ut' of fair ess lies i ever' pu#lic authorit' of admi istrative ature that is ot legislative% that affects a rights% privileges% or i terests i dividual@ o uty of fairness applies where it affects an individual%s rights$ privileges$ or interests of individual$ ?night v. 6ndian 1ead 7chool Division *o. !3 2!33:5 6 7C( #>$ 7ask.% 5ENERA. 0-TA O/ /A2RNESS T,E NAT-RE O/ T,E 0E62S2ON -. There i! no $on*er need/ e0ce#t #erh #! 'here the !t tute ) nd te! it/ to di!tin*ui!h (et'een 1udici $/ +u !i21udici $ nd d)ini!tr ti&e deci!ion!. 3fo$$o'in* Nicho$!on4 5. Deci!ion! of $e*i!$ ti&e nd *ener $ n ture c n (e di!tin*ui!hed in thi! re!#ect fro) ct! of )ore d)ini!tr ti&e nd !#ecific n ture/ 'hich do not ent i$ !uch duty 6. A deci!ion of #re$i)in ry n ture 'i$$ not in *ener $ tri**er the duty to ct f ir$y/ 'here ! deci!ion of )ore fin $ n ture ) y h &e !uch n effect T,E RE.AT2ONS,2P >ETWEEN T,E E1P.OAER AN0 T,E E1P.OAEE o 0o !t eed to show )ust cause% #ut requires the admi istrative #od' to give the officer holder reaso s for the dismissal a d a opportu it' to #e heard* 9Nicholso :% 9si ce it is a pu#lic positio :

T,E 21PA6T O/ T,E 0E62S2ON ON T,E E1P.OAEE o &here is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. -N0ER T,E E0-6AT2ON A6T o ,avi g come to the co clusio that there e;ists a ge eral right to procedural fair ess% the statutor' framewor( must #e e;ami ed i order to see if it modifies this right 'rocedural fairness is a common law right$ and statute may modify this right -N0ER T,E E1P.OA1ENT 6ONTRA6T o it will be presumed, as was the case with the statute, that the parties intended that procedural fairness would apply and it will take an explicit or clearly implicit provision to the contrary to override this presumption T,E 6ONTENT O/ T,E 0-TA TO A6T /A2R.A o 7oth the ru$e! of n tur $ 1u!tice nd the duty of f irne!! re & ri ($e !t nd rd!. Their content 'i$$ de#end on" the circu)!t nce! of the c !e/ the !t tutory #ro&i!ion nd the n ture of the ) tter to (e decided. o 7ince the respondent could be dismissed at pleasure, the content of the duty of fairness would be minimal a d 2 would te d to agree that otice of the reaso s for the appella t >oard+s dissatisfactio with the respo de t+s emplo'me t a d affordi g a opportu it' to #e heard would #e sufficie t to meet the requireme t of fair ess* APP.26AT2ON4 6O1P.2AN6E W2T, T,E 0-TA TO A6T /A2R.A o the dut' to give reaso s eed ot i volve a full a d complete disclosure #' the admi istrative #od' of all of its reaso s for dismissi g the emplo'ee% #ut rather the commu icatio of the #road grou ds reveali g the ge eral su#sta ce of the reaso for dismissal o 2t was fou d that through the egotiatio sessio s #etwee the respo de t+s attor e' a d the appella t >oard% the respo de t was made full' aware of the grieva ces of the >oard a d had ample opportu it' to prese t his side of the stor'* o therefore co clude that the respo de t was properl' dismissed a d that his actio must fail* SOP2N=A J4 o @s a general rule, this category does not attract the duty of procedural fairness because the employer can terminate the employment without cause and without giving any reason o 2 her reaso s% m' colleague co cludes% at BCC% that a commo law dut' of fair ess arises from 7the ature of the decisio % the relatio ship e;isti g #etwee the respo de t a d the appella t >oard a d the impact o the respo de t of the impug ed decisio *7 /his precedes her detailed examination of the statute o /he correct approach re.uires an examination of the statute, regulations and contract to determine whether the respondent has brought himself within the exception to the general rule that an office terminable at pleasure does not attract the duty of fairness. /o do so, provisions of the governing instruments must be identified which specifically or by implication point to a duty of fairness *

E1ER5EN62ES

6mportant the action in .uestion is interim only and is open to reassessment in the context of a subse.uent hearing.

(c) 8i)it tion! of the Sco#e of the Duty" Deci!ion! of the $e*i!$ ti&e nd *ener $ #o$icy n ture
Duasi8)udicial888888888888888888888888888888888888888888888888legislative polic'

9artineau2!3":5 27C(5 A #ure$y )ini!teri $ deci!ion/ on (ro d *round! of #u($ic #o$icy/ 'i$$ ty#ic $$y fford the indi&idu $ no #rocedur $ #rotection Pu#lic #odies e;ercisi g legislative fu ctio s ma' ot #e ame a#le to )udicial supervisio

W,AT 2S A .E52S.AT23E PO.26A 0E62S2ON% AN0 W,AT .E3E. O/ /A2RNESS TO >E APP.2E0E -) the )ore *ener $ the i)# ct of the deci!ion/ the )ore $i9e$y it i! to (e $e*i!$ ti&e o i! the i)# ct of the deci!ion diffu!e nd ffectin* (ro d !#ectru) of the #u($ic in *ener $$y undifferenti ted ) nner/ or !#ecific in effect. 5)ho' i! the deci!ion to (e ) de:doe! it $oo9 to #o$icy or to d1udic ti&e #rocedure Canada @A% v. 6nuit /apirisat of Canada 2!3":5 7C( RAT2O ;u!t (ec u!e it ' ! n ct of c (inet (*o&ernor in counci$)/ dn< )e n it ' ! i))une fro) 1udici $ con!ider tion:Any ct of =IC h d to co)#$y '< !t tute 1ust loo( at the spectrum agai loo( at the ature of the power o 6s it simply a dispute between parties, or a polycentric decision. o Are the' loo(i g at the rights #etwee i dividuals or are differe t co sideratio s i volved* To deter)ine 'hether it i! #o$icy2deci!ion/ $oo9 to the !t tutory !che)e o N ture of Deci!ion" 8oo9 t 'hether the !u(1ect ) tter ffect! n rro' *rou# of indi&idu $! 8oo9 t 'hether it i! di!cretion ry deci!ion o N ture of Deci!ion2M 9er C (inet:!#eci $i>ed (ody of #o$icy2) 9er! Was !t )ust a ad)udicative factit was a #road #ased polic' decisio pol'ce tric issue a d #etter to loo( at the mi ister!s specialiFed staff /his is not the kind of decision that attracts protection of procedural fairness since it was a legislative decision o no need for cabinet to give any reasons for re+ection, or to hold any hearing 1omex 7CC, !3":% 026=SON "disse t$

Bylaw was not of general application,it was targeted at 1omex in particular, and it interfered w- their property rights o *ot that municipality couldnBt make the decision, but that because it was targeted, it couldnBt be called legislation o =ittle or no procedural protection for legislative policy decision, whereas the +udicial-administrative decision will have substantial protection o 6ourt we t #ac( to 1arti eaurights% #e efits a d i terests o Not )ust a #'law agai st all citiFe s% rather at a specific group* o At mi imum% ,ome; should have ( ow that the' were goi g to have a #'law e acted >ut the result ma' have #ee )ust the same fi all' Just eed a opportu it' to #e heard o ,ome; 0id ot get remed'% si ce it was discretio ar'the #uilder #ehaved poorl' ESTEA"ma)orit'$ o Statute does ot provide otice requireme ts o &he !ylaw represented the culmination of an inter partes dispute on adversarial lines !etween (omex and the municipality therefore this decision was not legislative$ !ut rather )uasi*judicial o attracts pri ciple of otice a d co seque t doctri e of audi alteram partem o

PO.26A81A=2N5 Bezair v. Windor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 ( iv. Ct.) 6ourt said there was a level of fair ess that applied 5uideli e Polic' said that >oard will follow the pu#lic co sultatio e;pectatio s 7ince neither 9inisterBs nor boardBs own procedural guideline followed there was a denial of procedural fairness )ublic consultation is condition precedent to a valid decision* (e )embroke Civic 1ospital v. 8ntario 1ealth 7ervices (estructuring Commission ,O.02N54 This is political decisio o procedural fair ess Duty to consult public and other affected groups, but it was only re.uired to make policy decision it was not to act as an ad+udicator 0 G eed to have procedural fair ess for polic' decisio Right to #e a#le to Hmeet the case! applica#le to adversarial decisio % ot to pol'ce tric polic' decisio ma(i g e terprise

(d) Intere!t! Protected (y the Duty of F irne!!

('C Webb and 8ntario 1ousing Corporation 2!34"5 28nt. C.@.5 2SS-E4 What happe s whe gov!t age t tries to limit or retract a rightE She was aware of the pro#lems a d she had a opportu it' to respo d to those pro#lems this satisfied the 0O/ owed to her +hen a person applies for housing$ the person is not entitled to procedural fairness !ecause it is not a right$ rather it is a privilege,!enefit.moreover$ the -(. is not adjudicative at all

/ut when the government !estows this !enefit on a person$ then they are entitled to procedural fairness rights (to a limited degree) when the government tries to retract the privilege. 2f a #e efit is retracted% the there is more importa ce attached tha a perso appl'i g see We## case

Canadian @ssociation of (egulated 6mporters v. Canada @A% 2!33&5 ; DC ;&4 C@% ,O.02N5 "6A$ 6A reversed decisio a d said it was polic' ma(i g a d was a(i to legislatio o right to ma(e su#missio s ,eld pri ciples of procedural fair ess are ot applica#le to quota polic' although the' ma' #e to i dividual decisio s respecti g gra ts of quotas* o 0uggests that the !roader the affected group$ the more li1ely to !e a legitimate policy decision. (from dissent in (omex) Statute did ot i dicate that procedural fair ess was i te ded o No i dicatio i statute that pu#lic co sultatio is required* o What applica t is see(i g is a pu#lic co sultatio process I ot co templated #' statute 1utfield v. Board of Dort 7akatchewan Aeneral 1ospital 2!3"#5 2@B C@5 ,O.02N5 If the !oard affects the rights of an individual in a final decision$ then they are owed the duty of fairness$ which will vary according to the significance of the right o Although the court of appeal affirmed this decisio % it relied o arrower grou ds tha this* While the respondent was under no duty to grant hospital privileges to an applicant, the interests rights% of the applicant were sufficiently affected to impose procedural fairness rights o Note that ,utfield did ot have a ' rights here he was appl'i g for privileges for the first time there were procedural rights #ecause of the severe impact it would have o his professio al reputatio * Now co cer ed wG the i terest at sta(e a d whether it is feasi#le to protect this i terest Protected private propert' rightspractice of a professio o 0ecisio s i volvi g reputatio are more protectio ",utfield$

=egitimate 'xpectation +here there was no common law duty of fairness owedthere will !e a duty of fairness owed when the person affected !y the decision*ma1er is led to !elieve that they will have participatory rightsexpecting duties of fairness to apply 8E ##$ie! on$y to #rocedur $ ri*ht!/ not !u(!t nti&e ri*ht! ature of the !u(!t nti&e intere!t 4 o ?e(( "i refere ce to the applica t+s i terest i co ti ued occupatio of gover me t housi g$ a d o %utfie$d "i refere ce to the applica t+s i terest i hospital admitti g privileges arisi g from his trai i g a d e tr' i to the ge eral practice of medici e% though

i teresti gl' this was ot see as ge erati g legitimate e;pectatio % at least i 1c0o ald J+s u dersta di g of the term$ 2egitimate 3xpectation in .anada4 an expectation of a hearing arising out of express representations$ a practice of holding such hearings or a com!ination of the two. 2 each% S66 held that the grou ds for successful i vocatio of the doctri e had ot #ee made out*

8ld 7t. Boniface (esidents @ssn. 6nc. v. Winnipeg City%, 2!33:5 $ 7C( !!4: 9an.%, Sopi (a o .egitimate E;pectatio 4 the principle affords a party affected by the decision of a public official an opportunity to make representation in circumstances in which there otherwise would no such opportunity. /he court supplies the opportunity to make a representation where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation * (eference re Canada @ssistance )lan 2!33!5 ; 7C( >;> BC% SOP2N=A J4 &here is no support in .anadian or 3nglish cases for the position that the doctrine of legitimate expectations can create su!stantive rights. o Where it is applica#le% it ca create a right to ma(e represe tatio s or to #e co sulted% #ut ot a right of co se t ,e saw it as procedural fair ess applied to legislatio o Rules gover i g procedural fair ess do ot appl' to a #od' e;ercise legislative fu ctio s o /urthermore% it is fu dame tal to our s'stem of gover me t that a gover me t is ot #ou d #' the u derta(i gs of its predecessor* RESTR26T2ONS 6ON6ERN2N5 P->.26 >O02ES o @A #ure$y )ini!teri $ deci!ion/ on (ro d *round! of #u($ic #o$icy/ 'i$$ ty#ic $$y fford the indi&idu $ no #rocedur $ #rotection/ nd ny tt c9 u#on !uch deci!ion 'i$$ h &e to (e founded u#on (u!e of di!cretion@ o 7pu#lic #odies e;ercisi g legislative fu ctio s ma' ot #e ame a#le to )udicial supervisio 7

Council of Civil 7ervice Enions v. 9inister for the Civil 7ervice, 2!3">5 @C $4& 'ng. 1=%. .ord /raser of Tull'#elto said% =egitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. ... 2 the prese t case the evide ce shows that% ever si ce 56,D #ega i JKLC% prior co sultatio has #ee the i varia#le rule whe co ditio s of service were to #e sig ifica tl' altered* Accordi gl' i m' opi io if there had #ee o questio of atio al securit' i volved% the appella ts would have had a legitimate e;pectatio that the mi ister would co sult them #efore issui g the i structio of MM 0ecem#er JKNO* Durey v. (oman Catholic 7chool Board for Conception Bay Centre !33!%, ;@dmin. =( ;d% ;#$ *fld. 7C/D%

the court reversed the )udgme t of Wells J4 on perusing the affidavits of ; of the !$ applicants for relief, the court was unable to find any evidence that those deponents had believed that the past practice would be followed in this instance,implies that there must !e evidence of an actual a su!jective legitimate expectation existed.

@ttaran v. Eniversity of British Columbia !33"%, & @dmin. =( $d% && BC 7C%. / Re)ected o the procedure was new and had been used only once previously0 o very few in the affected and complaining student body knew about it at the relevant time. o it was i the ature of a i structio to staff% ot a represe tatio to affected co stitue cies Estoppel a d .egitimate E;pectatio estoppel as a private law co cept4 with ( owledge of the promise or assura ce i questio % the applica ts acted to their detrime t i such a wa' as to ma(e it i equita#le for the other part' to ow assert the strict letter of the law* Of course% )ust as private law estoppel is ow movi g awa' from a ' eed for proof of actual detrime tal relia ce% it ma' ot #e a#solutel' ecessar'% if the a alog' is emplo'ed% to loo( for a 'thi g other tha a reaso a#l' held #elief that past practice will #e followed* 9ount 7inai 1ospital v. Fuebec 9inister of 1ealth and 7ocial 7ervices% 2;::!5 ;7C( ;"! Fue.% o There is% i short% o eed to resort to the doctri e of legitimate e;pectatio s to achieve procedural relief* o =egitimate 'xpectation does not allow substantive relief. 0* Promissor' Estoppel o &he doctrine of legitimate expectations does not necessarily$ though it may$ involve personal 1nowledge !y the applicant of the conduct of the pu!lic authority as well as reliance and detriment. o ,owever this is ot a private law case* Pu#lic law estoppel clearl' requires a appreciatio of the legislative i te t em#odied i the power whose e;ercise is sought to #e estopped* The legislatio is paramou t* 6ircumsta ces that might otherwise create a estoppel ma' have to 'ield to a overridi g pu#lic i terest e;pressed i the legislative te;t*

(e) Non2Fin $ Ad)ini!tr ti&e Action" Reco))end tion! nd Deci!ion! to Pro!ecute

The dutie! of f irne!! !hou$d not ##$y to $o'er $e&e$! 'hen there ##e $! re $$o'ed t hi*her $e&e$ ?i$$ $$o' for #rocedur $ #rotection! for non2di!#o!iti&e he rin*! 'hen there re !eriou! ne* ti&e con!e+uence! to the #er!on o For e0 )#$e/ f ct findin* ) y on$y occur t the $o'er $e&e$.

(e @bel and @dvisory (eview Board !343%, 34 D=( $d% $:& 8nt. Div. Ct.%0 affGd. !3"!%, !!3D=( $d%!:! 8nt.C@%

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At the heari g% the law'ers as(ed for disclosure of the reports give to the #oard* 5RAN5E J4 o the rules of atural )ustice should appl' otwithsta di g that the proceedi g will result i a recomme datio o l' i cases such as thisde Smith tests4 o The te!t for non2di!#o!iti&e deci!ion! o (1) &he importance of the decision for the applicant Applicatio 4 o l' opportu it' to avoid i carceratio ideal case o (2) the degree of proximity !etween the investigation and the 5final6 decision and the exposure of the person invested to harm&he influence of the lower decision on the final outcome @pplicationC 1ere the proximity is greatThe seco d test of de Smith is easil' met whe o e co siders the effect the recomme datio a d its accepta ce has o the freedom of the applica ts* ie* The recomme datio s are usuall' followedcompels protectio of rights o &hat is$ loo1 at the nexus !w, the recommendation and the final decision&he more li1ely that the lower level decision will affect the final decision$ and the higher effect on the individual then more li1ely to have procedural fairness rights o 0isclosure4 That is ot however to sa' that the reports must ecessaril' #e revealed* Normall' he should #e give the opportu it' of perusal* O e ca readil' imagi e those reports co tai i g allegatio s of fact detrime tal to the applica t which could readil' #e refuted* .ower dut' of fair essgive some opportu it' to ma(e su#missio s A//2R1E0 ON APPEA. o O+0riscoll J disse ted #oard 7is ot su#)ect to review #ecause the #oard+s report*** does ot #i d the .ieute a t85over or o The 6ourt of Appeal decided the )urisdictio al issue i favour of A#el a d 0ivisio al 6ourt a#out the procedures NOTES o /his case allowed procedural protection even though it concerned a non-binding report, and was an administrative rather than +udicial or .uasi-+udicial decision. o 0ispositio made i A#el* The outcome was ot a order for productio #ut rather a quashi g a d remissio #ac( for reco sideratio of the procedural claims made #' A#el a d his cou selshows some defere ce a d ot reviewed o correct ess sta dard*

9asters Case 2!33&5 8ntario Court of Hustice Aeneral Division%, Divisional Court &he existence of a general duty to act fairly depends on the consideration of the nature of the decision to !e made !y the administrative !ody7 the relationship existing !etween that !ody and the individual7 and the effect of the decision on the individual8s rights. o 1asters+ positio was more politicall' accou ta#le a d more se ior tha those positio s i *icholson a d ?night* o /urther% the Premier was ot acti g pursua t to a statute #ut rather was e;ercisi g a prerogative to co sider revo(i g o e of his earlier appoi tme ts 9more discretio ar': /he applicant was given an ade.uate opportunity to know the allegations against him and to state his case before the )remier considered the matter,aware of allegations and had opportunity to be heard.

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(iii) Con!titution $ Thre!ho$d!" A8ife/ 8i(erty nd Security of the Per!onB

The 6harter of Rights a d /reedoms /he Charter and the Bill of (ightsC 7ources of )rocedural )rotection Bill of (ights J* a% the right of the individual to life, liberty, security of the person and en+oyment of property, and the right not to be deprived thereof except by due process of lawC M* o law of 6a ada shall #e co strued a d applied so as to o e% deprive of the right to a fair hearing in accordance with the principles of fundamental +ustice for the determination of his rights and obligations. federal statutes o l' Charter C* Ever'o e has the right to life% li#ert' a d securit' of the perso a d the right ot to #e deprived thereof e;cept i accorda ce with the pri ciples of fu dame tal )ustice* *ational @nti-)overty 8rganiIation v. Canada @ttorney-Aeneral% !33:%, #: D=( &th% 4!; DC@% 2 must agree with the appella t a d the i terve ers that s* M"e$ of the 6a adia >ill of Rights ca have o applicatio i this matter* Charter 2t was held as earl' as JKNP #' the Supreme 6ourt that sectio C have a su#sta tive as well as a procedural compo e t "Refere ce re >6 1otor 3ehicle Act% 9JKNP: M S6R LNB ">6$ o The o l' form of procedural discrimi atio that cou ts% therefore% is o e that has the i te tio or effect of discrimi ati g agai st perso s As for section !! a d its guara tees of 7a i depe de t a d impartial tri#u al%7 of o u reaso a#le dela' i the co duct of proceedi gs% a d of presumptio s of i oce ce% its direct effect has #ee co fi ed to crimi al proceedi gs a d those with 7true pe al 7 co seque ces7 7ection 4

7ingh v. Canada 9inister of 'mployment and 6mmigration% 2!3">5 ! 7C(!44J Can.% W2.SON J "0ic(so 6J a d .amer J co curri g& Ritchie J too( o part i the )udgme t$

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2 summar'% 2 am of the view that the rights which the appella ts are see(i g to assert are o es which e title them to the protectio of s* C of the 6harter* o 2 am prepared evertheless% to accept for prese t purposes that writte su#missio s ma' #e a adequate su#stitute for a oral heari g i appropriate circumsta ces* o 9undamental justice must include procedural fairness Un(i !ed % &e n o##ortunity to ) 9e their c !e o In particular$ I am of the view that where a serious issue of credi!ility is involved$ fundamental justice re)uires that credi!ility !e determined on the !asis of an oral hearing./ 2t seems to me that% as a matter of fu dame tal )ustice% a refugee claima t would #e e titled to discover' of the 1i ister+s case prior to such a heari g* o 2 am accordi gl' of the view that the procedures for determi atio of refugee status claims as set out i the 2mmigratio Act% JKCB do ot accord refugee claima ts fu dame tal )ustice i the ad)udicatio of those claims a d are thus i compati#le with s* C of the 6harter* >EETQ J "Este' a d 1cl t're JJ co curri g$4 o 2t violates the principles of fundamental +ustice under s. ; e% of the Bill of (ights to not allow an oral hearing in this case, o /ut s. 2(e) does not impose an oral hearing in all cases&he most important factors in determining the procedural content of fundamental justice in a given case are (1)the nature of the legal rights at issue and (2)the severity of the conse)uences to the individuals concerned. ... o @lso, When there the case will turn on the findings of fact and credibility, need to have the right to make oral submissions. o E;te t of applicatio of pri ciple 0epe ds o legal rights at issue a d co seque ces to applica t

Chiare66i v. Canada 9inister of Hustice% 2!33;5 7C( 4!! Can.% /A6TS o As a result% 6 a d his cou sel were e;cluded whe detailed evide ce was give #' the R61P as to 6+s i volveme t i orga iFed crime* While a summar' of that evide ce was later provided% it was without refere ce to the R61P+s sources of i formatio * ,O.02N5 o ,owever% the state also has a co sidera#le i terest i effectivel' co ducti g atio al securit' a d crimi al i tellige ce i vestigatio s a d i protecti g police sources* o 7ince he had information that disclosed the investigation of his involvement in drug trafficking and a summary of surveillance regarding the murder allegation the procedural opportunities to respond such as calling a witness or cross-examining the (C9) o and the competing interests at play 2security of informant5, 6 conclude that the procedures followed by the (eview Committee in this case did not violate principles of fundamental +ustice*

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5od#out v* .o gueuil "JKKC% S6R$ /acts 4 6it' of .o gueuil made a co ditio of emplo'me t to live withi cit' #ou ds% a d whe respo de t moved to a other mu icipalit'% she was fired* 2ssue4 Are mu icipalities #ou d #' the 6harterE 0id this particular actio violate s* C of the 6harterE ,eld 4 Appeal upheld* Aes to #oth questio s* Re!trictin* n Indi&idu $C! choice of re!idence ffect! her !.D ri*ht! to $i(erty

@uthorson =itigation Auardian of% v. Canada @ttorney Aeneral% 7upreme Court of Canada HudgmentC Huly !4, ;::$ ,O.02N54 7ection ; e% of the Bill of (ights applies only to guarantee the fundamental +ustice of proceedings before any court, tribunal, or administrative body that determines individual rights and obligations. 7ection ; e% does not impose upon )arliament the duty to provide a hearing before the enactment of legislation. The >ill of Rights protects o l' those rights that e;isted at the time of its passage i JKBR* At that time it was u disputed% as it co ti ues to #e toda'% that Parliame t had the right to e;propriate propert' if it made its i te tio clear*

RE6ENT 0E3E.OP1ENTS 5osseli o S*C d G give protectio for su#siste ce a d welfare rights o Procedural protectio d G appl' to eco omic rights% i cludi g social welfare 1a' #e commo law procedural rights% #ut ot rights from 6harter s* C 6haoulli o ,ealth care waitlist for surger' o 0 G violate securit' of perso What life, liberty, and security of the person rights are protected by the CharterK o 6ustod' matters o 6rimi al matters o 1e tal health matters o Priso discipli e o Parole o The courts #ega to i crease what was protected Wilson v. BC medical services commission!3"" 2BC C@5 /A6TS o New doctors were required to appl' for a practitio er!s um#er which allowed them to #ill the provi ce

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o The ti)e/ #$ ce/ nd #ur#o!e of #r ctice cou$d (e re!tricted ,O.02N5 o The $e*i!$ tion ' ! not in ccord nce 'ith PF it ' ! ( !ed u#on the ##$ic tion of & *ue nd uncert in criteri nd $eft !u(!t nti $ !co#e for r(itr ry conduct

Blencoe v. BC 1uman (ights Commission ;::: 7CC ,O.02N51a)orit' "1c.achli % .!,0% 5o thier% 1a)or% >astarache$4 Applicatio of 6harter o &he .harter applies to the actions of the /.(:. . Otherwise% o e could have tri#u als set up #' the gover me t i order to avoid the 6harter* o Further)ore/ !. D c n e0tend (eyond cri)in $ $ '% at least where there is state actio which directl' e gages the )ustice s'stem a d its admi istratio * =iberty 6nterest o ;2i!erty< is engaged where state compulsions or prohi!itions prevents freedom from ma1ing important and fundamental life choices. o ,owever% the state has ot preve ted > from ma(i g a ' ?fu dame tal perso al choices@* o Therefore% the i terests sought to #e protected i this case do ot fall withi the ?li#ert'@ i terest protected #' s* C* o Durthermore, the s. 4 rights of Lliberty and security of the personM do not include a generaliIed right to dignity. Ps'chological Stress o O e does have a right to #e free from serious state imposed ps'chological stress o in order for !t te2induced #!ycho$o*ic $ !tre!! to (e (re ch of !ecurity of the #er!on/ it )u!t )eet t'o re+uire)ent!" the #!ycho$o*ic $ h r) )u!t re!u$t fro) the ction! of the !t te nd it )u!t (e !eriou! o ,ere% the ma)or harm to the respo de t was caused ot #' the gover me t #ut #' the pu#licit' surrou di g the allegatio s themselves* 0ela' i the heari g4 o There is o co stitutio al right outside of the crimi al co te;t to #e ?tried@ withi a reaso a#le amou t of time* o The ma)orit' of the 6ourt of Appeal erred i tra spla ti g s* JJ"#$ pri ciples set out i the crimi al law co te;t to huma rights proceedi gs u der s* C* o In order to de$ y to (e n (u!e of #roce!! t for n d)ini!tr ti&e $ ' !t nd#oint/ there )u!t (e #roof of !i*nific nt #re1udice (in n e&identi ry !en!e) 'hich re!u$t! fro) n un cce#t ($e de$ y o deter)in tion of 'hether de$ y i! inordin te i! not ( !ed on the $en*th of the de$ y $one/ (ut on contextual factors" conte0tu $ n $y!i!" n ture of the c !e nd it! co)#$e0ity/ the #ur#o!e nd n ture of the #roceedin*!/ nd 'hether the re!#ondent contri(uted to the de$ y or ' i&ed the de$ y/ ' ! there #re1udiceE 0isse t 2 Part "2aco#ucci% >i ie% Ar#our% .e#el$4 C899'*/ o S* C will o l' #e applied i e;treme circumsta ces

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/or e;ample% compelli g testimo ' or forci g the productio of docume ts

"iv$ Procedural Propriet'4 The Sta dard of Review a d Some 5e eral Thoughts (&) The Content of Procedur $ F irne!!
( ) Introduction nd An $ytic $ Fr )e'or9
Baker v. Canada 9inister of CitiIenship and 6mmigration% 2!3335 ; 7C( "!4 Can.% /A6TS o 0ecisio 4 i sufficie t huma itaria a d compassio ate grou ds to warra t processi g o This letter co tai ed o reaso s for the decisio * /his does not use the word NdiscretionB, but the court interpreted it thus The Statutor' Scheme a d the Nature of the 0ecisio PRO6E0-RA. /A2RNESS o The fact that a decisio is admi istrative a d affects 7the rights% privileges or i terests of a i dividual7 is sufficie t to trigger the applicatio of the dut' of fair ess4 6ardi al v* 0irector of =e t 2 stitutio 9JKNP: M S6R BLO "6a *$% applica#le to this case "J$ /actors Affecti g the 6o te t of the 0ut' of /air ess o NATURE OF DECISION AND T%E PROCESS /he more the process resembles +udicial decision making, the more likely it is that procedural protections closer to the trial model will be re.uired by the duty of fairness. In e& $u tin* the #roce!!/ con!ider the function of the tri(un $/ the n ture of the deci!ion2) 9in* (ody/ the deter)in tion! th t )u!t (e ) de to re ch deci!ion o STATUTORF SC%EME AND STATUTE CREATIN= T%E 7ODF 5reater procedural protectio s% for e;ample% will #e required whe o appeal procedure is provided withi the statute% or whe the decisio is determi ative of the issue a d further requests ca ot #e su#mitted fi alit' o SI=NIFICANCE OF DECISION FOR RECIPIENT" The more importa t the decisio is to the lives of those affected a d the greater its impact o that perso or those perso s% the more stri ge t the procedural protectio s that will #e ma dated o 8E=ITIMATE EGPECTATIONS" The legitimate e;pectatio s of the perso challe gi g the decisio ma' determi e what procedures the dut' of fair ess require i give circumsta ces* Our 6ourt has held that% i 6a ada% this doctri e is part of the doctri e of fair ess or atural )ustice% a d that it does ot create su#sta tive rights* o TRI7UNA8S C%OICE OF PROCEDURE" The dut' of fair ess should also ta(e i to accou t a d respect the choices of procedure made #' the age c' itself%

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particularl' whe the statute leaves to the decisio 8ma(er the a#ilit' o to choose its ow procedures% or o whe the age c' has a e;pertise i determi i g what procedures are appropriate i the circumsta ces o list of factors is ot e;haustive* "M$ .egitimate E;pectatio s "O$ Participator' Rights (H)The Pro&i!ion of Re !on! o 2 cases such as this where the decisio has importa t sig ifica ce for the i dividual% whe there is a statutor' right of appeal% or i other circumsta ces% some form of reaso s should #e required* (I) Re !on ($e A##rehen!ion of 7i ! o Re !on ($e A##rehen!ion of 7i ! ##$ie! to $$ i))i*r tion officer! 'ho #$ y !i*nific nt ro$e in the ) 9in* of deci!ion!/ 'hether they re !u(ordin te re&ie'in* officer!/ or tho!e 'ho ) 9e the fin $ deci!ion o The test for reaso a#le apprehe sio of #ias 4 9T:he apprehe sio of #ias must #e a reaso a#le o e% held #' reaso a#le a d right mi ded perso s% appl'i g themselves to the questio a d o#tai i g thereo the required i formatio * *** 3T4h t te!t i! @'h t 'ou$d n infor)ed #er!on/ &ie'in* the ) tter re $i!tic $$y nd #r ctic $$y nd h &in* thou*ht the ) tter throu*h conc$ude. ?ou$d he thin9 th t it i! )ore $i9e$y th n not th t 3the deci!ion2) 9er4/ 'hether con!ciou!$y or uncon!ciou!$y/ 'ou$d not decide f ir$y.@ The !t nd rd! for re !on ($e ##rehen!ion of (i ! ) y & ry/ $i9e other !#ect! of #rocedur $ f irne!!/ de#endin* on the conte0t nd the ty#e of function #erfor)ed (y the d)ini!tr ti&e deci!ion2) 9er in&o$&ed" The (i ! doe! not h &e to (e ctu $/ it on$y need! to ##e r to re !on ($e out!ider th t there i! (i ! RE32EW O/ T,E E<ER62SE O/ T,E 12N2STER+S 02S6RET2ON "S->STANT23E RE32EW$ "J$ The Approach to Review of 0iscretio ar' 0ecisio 81a(i g o Definition" Di!cretion refer! to deci!ion! 'here the $ ' doe! not dict te !#ecific outco)e/ or 'here the deci!ion2) 9er i! *i&en choice of o#tion! 'ithin !t tutori$y i)#o!ed !et of (ound rie!. o Whe the parliame t gives a discretio ar' power% this suggest that there should #e more defere ce o 3Pre27 9er con!ider tion!4 Deci!ion! c$ !!ified ! di!cretion ry ) y on$y (e re&ie'ed on $i)ited *round! !uch ! the ( d f ith of deci!ion2) 9er!/ the e0erci!e of di!cretion for n i)#ro#er #ur#o!e/ nd the u!e of irre$e& nt con!ider tion! o /he Jpragmatic and functionalJ approach recogniIes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less o Three sta dards of review have #ee defi ed4 pate t u reaso a#le ess% reaso a#le ess simpliciter% a d correct ess

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6n my opinion the standard of review of the substantive aspects of discretionary decisions is best approached within this framework o /he pragmatic and functional approach takes into account considerations such as 5/i!eault6 !%the wording of the enactment conferring +urisdiction on the administrative tribunal, 2privative clause, whether it is an entitlement5 ;%the purpose of the statute creating the tribunal, the reason for the tribunalBs existence, $%the area of expertise of its members and &%the nature of the problem before the tribunal. It includes factors such as whether a decision is =polycentric= and the intention revealed !y the statutory language. &he amount of choice left !y 'arliament to the administrative decision* ma1er and the nature of the decision !eing made are also important considerations in the analysis o After >a(er% ow 'ou appl' the PS/ test for eve discretio ar' measure "M$ The Sta dard of Review i This 6ase o The fir!t f ctor i! the #re!ence or (!ence of #ri& ti&e c$ u!e/ nd the 'ordin* of th t c$ u!e Pushpa atha shows that the e;iste ce of this provisio mea s there should #e a lower level of defere ce o issues related to the certified questio itself* o The !econd f ctor i! the e0#erti!e of the deci!ion2) 9er. o The third f ctor i! the #ur#o!e of the #ro&i!ion in # rticu$ r/ nd of the Act ! 'ho$e. o The fourth f ctor out$ined in Pu!h# n th n con!ider! the n ture of the #ro($e) in +ue!tion/ e!#eci $$y 'hether it re$ te! to the deter)in tion of $ ' or f ct!. o The appropriate sta dard of review is reaso a#le ess simpliciter* Was This 0ecisio - reaso a#leE o >n unreasona!le decision is one that$ in the main$ is not supported !y any reasons that can stand up to a somewhat pro!ing examination. o Deter)inin* 'hether the ##ro ch t 9en (y the i))i*r tion officer ' ! 'ithin the (ound rie! !et out (y the 'ord! of the !t tute nd the & $ue! of d)ini!tr ti&e $ ' re+uire! conte0tu $ ##ro ch/ o The O#)ectives of the Act o 2 ter atio al .aw o The 1i isterial 5uideli es 6ON6.-S2ONS AN0 02SPOS2T2ON o Therefore% #oth #ecause there was a violatio of the pri ciples of procedural fair ess owi g to a reaso a#le apprehe sio of #ias% a d #ecause the e;ercise of the , S 6 discretio was u reaso a#le% 2 would allow this appeal* o 2A6O>-662 J "6or' J co curri g$4 o 2 agree with .+,eureu;80u#e J+s reaso s a d dispositio of this appeal% e;cept o 2 do ot agree with the approach adopted #' m' colleague% wherei refere ce is made to the u derl'i g values of a u impleme ted i ter atio al treat' i the course of the co te;tual approach to statutor' i terpretatio a d admi istrative law%

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7uresh v. Canada 9inister of CitiIenship and 6mmigration% 2;::;5 ! 7C( $ Can.% >a(er o =re ter #rocedur $ #rotection! ... 'i$$ (e re+uired 'hen no ##e $ #rocedure i! #ro&ided 'ithin the !t tute/ or 'hen the deci!ion i! deter)in ti&e of the i!!ue nd further re+ue!t! c nnot (e !u()itted o The *re ter the effect on the $ife of the indi&idu $ (y the deci!ion/ the *re ter the need for #rocedur $ #rotection! to )eet the co))on $ ' duty of f irne!! nd the re+uire)ent! of fund )ent $ 1u!tice under !. D of the Ch rter.

(() St tutory Po'er! Procedure Act nd Other =ener $ Procedur $ Code!

7tatutory )owers )rocedure @ct (78 !33:, c. 7.;;, as amended !33$, c. ;4, 7ched.0 !33&,c.;4,s. >#0 !334,c.;$,s. !$0!333,c. !;, 7ched. B., s. !# Opage $:; to $$; O*"J$ P*L"J$ N*R K*R JR JR*J JJ*"l$ JP*"J$ JB* JK*"J$ MJ*M"J$ MO*"J$ "M$ MP*"J$ "M$ NOTES E;clusio of the SPPA is ot ecessaril' a e;clusio of atural )ustice* /or the purpose of this course% the SPPA will most pro#a#l' #e e;cluded #' statute* 0oes NOT appl' o where there is o oral heari g o where it is o l' a recomme datio " ot a decisio $ o whe it is do e #' legislator o where the rules of civpro appl' "mediatio $ o o 8ad)udicative decisio

(c) Or $ %e rin*!
/raditionally, an oral hearing was usually re.uired as an element of natural +ustice although not always* =omo 6o structio 2 c* v* 6ommissio des Relatio s de Travai du Due#ec% 9JKBN: *icholson4 clearl' left the discretio o whether to proceed #' wa' of oral or writte heari g i the ha ds of the >oard of 6ommissio ers of Police* 0ingh" An or $ he rin* i! not nece!! ri$y uni&er! $ co)#onent of the @#rinci#$e! of fund )ent $ 1u!tice@ under !ection D of the Ch rter/ o $thou*h there i! need for !uch #rocedure @'here !eriou! i!!ue ! to credi(i$ity i! in&o$&ed.@:confir)ed in Sure!h.

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6laims to a oral heari g are also o es that are situatio se sitive i the se se that their ecessit' ma' depe d o the matters that are at issue i the particular proceedi gs as opposed to #ei g a feature of all e;ercises of the releva t statutor' power

9asters v. 8ntario !33&%, !" 8( $d% >>! Div. Ct.% The f ct th t it ' ! #o$itic $ office t #$e !ure inf$uenced the f ct th t he did not h &e cert in ri*ht!:therefore $$ he de!er&ed i! $o' !t nd rd of f irne!! o 1asters is o l' e titled to hear ?the #road grou ds7 of the accusatio s #ut ot 7ever' detail7 /urthermore% 1asters was i fact give the opportu it' #' the Premier to ma(e legal a stateme t a d to respo d to all additio al details ot requiri g a oral heari g ?han v. Eniversity of 8ttawa !334%,$&:( $d%>$> C@% 1AJOR2TA o 0e ial of Procedural /air ess /irst% a d most importa t% the 6ommittee should have give a oral heari g #ecause her credi#ilit' was a critical issue o her appeal* 7y n or $ he rin*/ I )e n he rin* in 'hich !he h d n o##ortunity to ##e r in #er!on (efore the Co))ittee nd n o##ortunity to ) 9e or $ re#re!ent tion! to it. Note4 ot li(e a trial heari g o opportu it' to cross8e;ami e% questio T Third% the 6ommittee should have give 1s* =ha a opportu it' to correct or co tradict the three 7factors7 it relied o i its decisio * o /ecause ?s. @han8s appeal turned on her credi!ility and !ecause of the serious conse)uences to her of an adverse finding$ fairness re)uired an oral hearing. o She doe! not h &e to h &e !ho'n ctu $ #re1udice22She need on$y !ho' th t the Co))itteeJ! (re ch of it! duty of f irne!! ) y re !on ($y h &e #re1udiced her 02SSENT "/i la'so $4 o Or $ %e rin* 'ou$d h &e not ch n*ed the outco)e o This was ot a matter which tur ed o credi#ilit'* There were o allegatio s made agai st the appella t a d the proceedi gs were ot adversarial i ature* RE1E02ES4 o Need to !ho' th t the conc$u!ion 'ou$d h &e (een different outco)e if the #rocedure ' ! different if you e0#ect to o&erturn deci!ion. o >ut if the outcome was ot pre)udiced #' appl'i g the wro g procedure% the the court will ot overtur the ruli g

(d) The Ri*ht of Coun!e$

2 most heari g situatio s% the right of the parties to represe tatio #' cou sel or a age t is assumed a d% i deed% i ma ' cases will #e provided for statutoril'* 2 volves o Right to cou sel o Right to particular cou sel o Participator' rights of cou sel o /u di g of cou sel through legal aid

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1a' ot wa t law'ers

(eC 9enBs Clothing 9anufacturers @ssociation of 8ntario and /oronto Hoint @malgamated Clothing and /extile WorkersG Enion !343%, ;; =@C ;d% $;", .uashed !:& D=( $d% &&! 8nt. Div. Ct.% 2 troduci g law'ers would mea a loss of efficie c' a d e;pedie c' SO-T,EA J4 o A atural perso i the i dustr' i questio does ot have a a#solute right to represe tatio #' legal cou sel* o /urthermore% such represe tatio would alwa's #e permissi#le #' agreeme t% or whe ever the ar#itrator e;ercised his discretio i favour of permitti g it* o In view of the vital importance of the controversy to the applicant company$ and the apparent complexity of the matter !oth in fact and in law$ natural justice$ in my view$ re)uires that the applicants !e represented !y legal counsel at the ar!itration hearing without any limitation$ even if the applicants had no a!solute right thereto. 6O11ENT o /hey can cut the lawyer off on certain points if the tribunal is sufficiently knowledgeable,this would not violate the right to counselthis depends on the *ature of the )rocess and what is intended from participation (e )arrish 2!33$5;DC#: /D% ,O.02N5 o - dou#tedl' the scope of the fair ess pri ciple depe ds o the co seque ces a d ature of the i quir' as well as the repercussio s o the i dividuals i volved* o 6n this particular case, a witness could be faced with a negative report seriously or adversely affecting his rights and his reputation without being given a fair opportunity to present his case with the assistance of counsel. o The duty to ct f ir$y i)#$ie! the #re!ence of coun!e$ 'hen co)(in tion of !o)e or $$ of the fo$$o'in* e$e)ent! re either found 'ithin the en ($in* $e*i!$ tion or i)#$ied fro) the #r ctic $ ##$ic tion of the !t tute *o&ernin* the tri(un $" (1) where an individual or a witness is su!poenaed$ re)uired to attend and testify under oath with a threat of penalty7 (2) where a!solute privacy is not assured and the attendance of others is not prohi!ited7 (") where reports are made pu!lic7 (#) where an individual can !e deprived of his rights or his livelihood7 or (A) where some other irrepara!le harm can ensue. I do not intend thi! $i!t to (e e0h u!ti&e o The >oard ma' #e perfectl' free to prohi#it the atte da ce of more tha o e cou sel a d it would #e up to the i vestigator to determi e if the prese ce of more tha o e would seriousl' impede the progress of the i vestigatio . o 2 these circumsta ces the procedural fair ess requires that the wit ess #e permitted to #e accompa ied #' cou sel whe at the i quir'* o E;pedie c' does ot outweigh the eed for cou sel Dehghani v. Canada 9inister of'mployment and 6mmigration%, 2!33$5 ! 7C( !:>$ Can.%.

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/he principles of fundamental +ustice do not include a right to counsel in these circumstances of routine information gathering. Dederal Court of Canada was influenced by an 'nglish +udgment, ( v. 7ecretary of 7tate for the 1ome Department, ex p. /arrant, 2!3"&5 ! @ll '( 433 FB%. o We#ster J said4 the followi g are co sideratio s which ever' #oard should ta(e i to accou t whe e;ercisi g its discretio whether to allow legal representation some are only applicable to prison context, but amend as needed% !. /he seriousness of the charge and of the potential penalty. 2. +hether any points of law are li1ely to arise $. Capacity of a particular prisoner to present his own case. #. 'rocedural difficultieswhen prisoners are not allowed to call witnesses and directly cross*examine or test evidence A. &he need for reasona!le speed in ma1ing their adjudication #. /he need for fairness as between prisoners and as between prisoners and prison officers. o

1oward v. 7tony 9ountain 6nstitution !3">%, !3 D=( &th% >:; DC@% 2SS-E4 What is i issue is thus solel' whether the appella t had a u de ia#le right to cou sel a d% more particularl'% whether s* C of the 6a adia 6harter of Rights a d /reedoms guara teed him that right* T,-R.OW 6J4 ,O.02N5 o 6 am of the opinion that the enactment of s. 4 has not created any absolute right to counsel in all such proceedings. o Whether or ot a i mate+s request for represe tatio #' cou sel ca lawfull' #e refused is ot properl' referred to as a matter of discretio #ut is a matter of right where the circumsta ces are such that the opportu it' to prese t the case adequatel' calls for represe tatio #' cou sel o &he right to representation !y counsel will depend on (1) the circumstances of the particular case$ (2) its nature$ (") its gravity$ (#) its complexity$ (particularly if dealing with legal issue) (A) the capacity of the inmate himself to understand the case and present his defence. 3xpeditiousness too. &he list is not exhaustive. APP.26AT2ON o ;#4 days of earned remission was in +eopardy,6n my view, that alone suggests his need of counsel. lack of particulars of offences Conviction on the two of the charges to which he pleaded not guilty might result in consecutive losses of $: daysG remission without reference to the vague and difficult charge *ew Brunswick 9inister of 1ealth and Community 7ervices% v. A. H.% 2H.A.5 2!3335 $ 7C(&# *B% .A1ER 6J "5o thier% 6or'% 1c.achli % 1a)or a d >i ie JJ co curri g$4

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o o

6 would like to make it clear that the right to a fair hearing will not always re.uire an individual to be represented by counsel when a decision is made affecting that individualGs right to life, liberty, or security of the person 7.4 rights%. 6n particular, +hether it is necessary for the parent to !e represented !y counsel is directly proportional to the seriousness and complexity of the proceedings$ and inversely proportional to the capacities of the parent. Sectio J A al'sis4 O the #asis that the o#)ective of this polic' co trolli g legal aid e;pe ditures is pressi g a d su#sta tial% that the polic' is ratio all' co ected to that o#)ective% a d that it co stitutes a mi imal impairme t of s* C% 2 fi d that the deleterious effects of the polic' far outweigh the salutar' effects of a ' pote tial #udgetar' savi g

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

NOT26E 'h t con!titute! !ufficient di!c$o!ure (7 9er):the n ture of the deci!ion nd 'h t i! t !t 9e Notice must #e reaso a#le Peo#$e de!er&in* notice re the # rtie! on 'ho) the deci!ion 'i$$ h &e effect 2f 'ou do !t have sufficie t otice% 'ou ca raise a request to ad)our the tri#u al 02S6.OS-RE Beneral principles4 a party is entitled to 1now what evidence and representations have !een given and is entitled to an ade)uate opportunity to respond!e a!le to ma1e the case against him isclosure is the disclosure to parties of information that the agency has a!out the decision to !e made7 official notice is the extent and manner in which an agency may$ ma1ing its decisions$ use material that is not introduced in evidence. 7titchcombe2see te;t for more details: C !e! re+uirin* fu$$ di!c$o!ure o Mi!conduct o D ) *ed re#ut tion o Profe!!ion $ de!i*n tion C !e! 'here there i! $o'er $e&e$ of di!c$o!ure o 'hen it i! #o$icy deci!ion o ?hen it i! !o)eone u# t co$$e*e of !ur*eon! o M !ter!" !e0u $ !! u$t =ook at Baker to determine the appropriate level of disclosure ?ane v. Board of Aovernors of the Eniversity of British Columbia, 2!3":5 ! 7C( !!:> BC%. ,O.02N5 o :ights were infringed !y having a meeting !ehind closed doors$ not telling him a!out it$ and not allowing him to respond. o The >oard was u der a o#ligatio to postpo e u til =a e hear the additio al facts adduced& at the ver' least the >oard should have made 0octor =a e aware of those facts a d afforded him a real a d effective opportu it' to correct or meet a ' adverse stateme t made*

%)

6O11ENT o %e didnCt need to !ho' th t the outco)e 'ou$d h &e cert in$y (een different/ he on$y needed to !ho' th t there cou$d h &e (een different outco)e to e rn the re)edy

A66ESS TO 2N/OR1AT2ON STAT-TES @ccess to 6nformation @ct, (7C !3">, c. @-l, s. ; ;%% "J$ A66ESS TO A5EN6A 2N/OR1AT2ON (e *apoli and WorkersG Compensation Board !3"!%, !;# D=( $d% !43 BC C@% F ctor! #re!!in* for di!c$o!ure o The nature of the conse)uences were importa t% a d therefore there is a higher sta dard of disclosure o .redi!ility issue4 The reports stated that it was a eurotic pro#lem a d that he was e;aggerati gwhich is e;actl' the t'pe of i formatio that should #e cross8 e;ami ed o Cone of these experts is named, o 7ummary is insufficient to determine the case against him, A effective challenge would require productio of the origi al reports* The argume t that doctors will #e restrai ed if the' ( ow their otes will #e disclosed glosses over the valid co trar' view that the' will prepare them with greater care a d dilige ce% a d% more importa t% that fair ess requires that the origi al reports #e disclosed i order that the claima t ca effectivel' a swer the case agai st him* 6O11ENT o 0isti guish from 1asters Nature of the tri#u al4 it was a ad hoc tri#u al for 1asters% more of a ad)udicative #od' hereloo(i g more at the facts 2 terests at sta(e8it was a positio at pleasure for 1asters% whereas it was a compe satio claim here The i terests of the victim The summar' i 1asters was more sufficie t "M$ 20ENT2TA O/ SO-R6ES O/ 2N/OR1AT2ON The !econd !itu tion in&o$&e! c$ i)! to di!c$o!ure of !ource! of infor) tion/ nd there i! no *ener $ ru$e (eyond @re !on ($ene!!.@ Recall% 6hiarrelli Aallant v. Canada Deputy Commissioner, Correctional 7ervice Canada% !3"3%, $# @dmin. =( ;#! DC@% ,O.02N5"ma)orit'$ o The pri ciples of fu dame tal )ustice "s*C$ do ot have% therefore% the same fle;i#ilit' as the rules of atural )ustice a d of fair ess* Thu!/ the deci!ion to tr n!fer the re!#ondent to S !9 tche' n Penitenti ry ' ! not ) de in ccord nce 'ith the #rinci#$e! of fund )ent $ 1u!tice !ince the re!#ondent ' ! not *i&en re $ o##ortunity to n!'er the $$e* tion ) de * in!t hi). o Sectio J A al'sis4 o#vious that i a free a d democratic societ'% it is reaso a#le% perhaps eve ecessar'% to co fer such a wide discretio o pe ite tiar' authorities*

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1AR6EA- JA "co curri g i the result$4 o In $i*ht of the i)#ort nce of the con!e+uence!/ &he inmate is not entitled (!y the audi alteram partem principle) to more information !efore as1ing for his representations Thi! i! due to the n ture of the #ro($e) nd hi! re!#on!i(i$ity to' rd tho!e entru!ted to hi! c re. o 8n the one hand, the information given is definitely more substantial including the inmateGs )rogress 7ummary (eport in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars. 0ESJAR02NS JA "disse ti g$4 o (eliability may be demonstrated in a number of ways, as for instance, by an independent investigation or by corroborating information from independent sources ot do e here

Aough v. Canada *ational )arole Board% !33:%, &> @dmin. =( $:& DC /D% REE0 J4 o It i! c$e r th t the re+uire)ent! of fund )ent $ 1u!tice o#er te on !#ectru). The content of !uch re+uire)ent! & ry 'ith the circu)!t nce! of the c !e. o Sectio C Requireme ts i the Parole Pe ite tiar' 6o te;t There is o dou#t that the applica t% i the prese t case% is e titled to sufficie t detail respecti g the allegatio s #ei g made agai st him to e a#le him to respo d i tellige tl' thereto u less the respo de t ca demo strate otherwise* o Sectio J The issue is whether the Natio al Parole >oard is required to either release i formatio to the applica t "whe disclosure will ecessaril' reveal the source of that i formatio $ or forego relia ce o that i formatio i ma(i g a decisio o the applica t+s parole* admi istrative co ve ie ce does ot )ustif' a de ial of fu dame tal )usticeSi gh v* 1i ister of Emplo'me t S 2mmigratio 9JKNP: J S6R JCC the pa el co cluded there is o co vi ci g evide ce that disclosure would threate the safet' of the i forma ts The re!#ondent ' ! offered n in c )er he rin* for )ore info on the !!ertion!/ nd th t coun!e$ 'ou$d not re&e $ thi! info to hi! c$ient:the P ro$e 7o rd re1ected thi! ! it 'ou$d h &e !eriou! nd d&er!e effect on the 'or9in* of the # ro$e !y!te):Court ! id thi! i! !i)#$y not credi($e. 2 ote% first of all% that Reg* JC"P$ is too #roadl' framed* ot saved #' s* J a al'sis* 02ST2N5-2S, 5A..ANT AN0 5O-5, o The perso was at large here% was ot i 5alla t 2mpact is differe to e is the impact to the i dividual% here it his li#ert' o The Natio al Parole >oard refused to have disclosure i camera )ritchard v. 8ntario 1uman (ights Commission 2;::&5 7CC $! 2get from supplement5 0.. said that -(:. advice is solicitor*client privilegesacrosanctonly compromised in exceptional cases

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o Cot su!ject to disclosure 6O11ENT o 2s it a legal questio % or a factual questio E The $ 'yer! for the co))i!!ion re not $i9e tho!e in n d&er! ri $ c !e/ !ince the $ 'yer! 'ere not nece!! ry co)#onent of the deci!ion #roce!! nd !he did not 9no' of their e0i!tence Minor thin9! th t thi! ) y (e the e0ce#tion to !o$icitor2c$ient #ri&i$e*e

Sla'to % The A ti80umpi g Tri#u al A Stud' Prepared for the .aw Reform 6ommissio of 6a ada "JKCK$% at LC REE0 J4 6o fide tial #riefs% docume ts a d e;hi#its are made availa#le #' the Tri#u al o l' to cou sel who are appeari g for parties represe ted at the heari gs% a d those cou sel are required to give a u derta(i g ot to reveal co fide tial i formatio to their clie ts* /oshiba Corporation v. @nti-Dumping /ribunal !3"&%, " @dn ! =( !4$ C@%, &he analysis and opinion in staff memoranda are irrelevant to the ascertainment of the /oard8s reasons for decision !ecause they cannot !e assumed to have !een adopted !y it as its reasons. /he BoardGs reasons for decision are those which it chooses to express or which can otherwise be clearly shown from its own words or actions to have been its reasons. >ut a age c' head ma' ofte #e the i tellectual i ferior of a age c' specialist a d rel' o the staff memora da of the specialistso we eed disclosure Speight J co cluded #' drawi g a disti ctio #etwee a 7factual summar'7 a d 7comme t*7 o (e was persuaded that any comment on the merits and demerits of particular points of o!jection had to !e disclosed. o >s for purely factual summaries$ he expressed that it might !e !etter that there !e disclosure in the interests of accuracy in a complex area where it is only natural that errors may creep in. Hanisch comments,get from book,comments allows collaboration o )roblem is too much collaboration,and no strict review by one decision-maker

(f) E&idence nd Cro!!2e0 )in tion

A012SS2>2.2TA O/ E320EN6E A*encie! (Tri(un $!) re not *o&erned (y the ru$e! of e&idence u!ed (y court! un$e!! !o)e !t tutory #ro&i!ion re+uire! the)/ nd !uch #ro&i!ion! re r re. SPPA "sectio JP"J$$disregardi g of the ormal rules of evide ce is sa ctio edthis does ot ecessaril' ma(e the commo law rules of evide ce irreleva t or ge erall' i applica#le* rules of evide ce are looser i tri#u al tha that of trials u less i dicated i the statute overridi g co cer is fair ess to i dividual a d a#ilit' to support their case =ha v* 6ollege of Ph'sicia s a d Surgeo s of O tario "JKKM$% KL 0.R "Lth$ JK4 "O t* 6A$% o the Ont rio Court of A##e $ !u!t ined the d)i!!ion of he r! y e&idence

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The he r! y e&idence ' ! not on$y nece!! ry (ut there 'ere !ufficient indici of it! re$i (i$ity. %o'e&er/ e0c$u!i&e re$i nce on he r! y nd o#inion e&idence ) y h &e the con!e+uence of $e din* to deni $ of n tur $ 1u!tice. o >o d v* New >ru swic( "1a ageme t >oard$ "JKKM$% KP 0.R "Lth$ COO "N> 6A$% o the N> 6ourt of Appeal set aside a ar#itrator+s sustai i g of a dismissal for se;ual assault #ecause it o l' relied o hearsa' a d opi io The ph'sicia a d the allergist% with their special s(ills a d ( owledge% might have added a dime sio of critical importa ce>' refusi g to hear their evide ce the #oard de ied the applica t atural )ustice* &he fact that such evidence might not have assisted the applicant was not a valid reason for refusing to hear it. ?offici $ noticeB o *ener $ ru$e in court 1ud*e! re entit$ed to t 9e A1udici $ noticeB of f ct! th t re uncontro&erted/ !oci $$y cce#ted f ct! 0ispute over what is ?- co trovertedG6ommo Se se@ o

6ROSS8E<A12NAT2ON Re Toro to Newspaper 5uild a d 5lo#e Pri ti g% 9JKPJ: O 0.R JBM "O t* ,6$% aff+d*% 9JKPM: M 0.R ORM "O t* 6A aff+d*% 9JKPO: M S6R JN "O t*$$ o Lthe right to cross-examination was not granted, that exclusion, of itself, was tantamount to a denial of basic +ustice.J JR*J"#$ of the SPPA though co ditio ed o the cross8e;ami atio #ei g 7reaso a#l' required for a full a d fair disclosure of all permitted or required #' the phrase 7reaso a#l' required7E right to cross8e;ami e is more importa t whe it is ad)udicative as opposed to polic' 6nnisfil /ownship% v. Pespra /ownship% 2!3"!5 ; 7C( !&> 8nt.% Ad1udic ti&e &. Po$icy 3$e!! cro!!2e0 )in tion due 'hen it i! #o$icy4 o ?here the 7o rd deter)ine! the ri*ht! of the contendin* # rtie! 'ith the onu! f $$in* u#on the contender to introduce the f ct! nd !u()i!!ion!/ the 7o rd techni+ue 'i$$ t 9e on !o)ethin* of the ##e r nce of tr dition $ Court. o ?here/ on the other h nd i! )ore concerned 'ith co))unity intere!t! t $ r*e/ nd 'ith technic $ #o$icy !#ect! of !#eci $i>ed !u(1ect/ one c nnot e0#ect the tri(un $ to function in the ) nner of the tr dition $ Court. If the appellant has here the right to cross*examine$ it is not for the appellate .ourt to withhold such right !ecause in its judgment it is dou!tful$ or even impossi!le to advance its case !y cross*examination. *eed clear statutory direction along the lines to make a challenge immune from crossexamination

(*) Duty to =i&e Re !on!

POST8,EAR2N5 2SS-ES Reaso s

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In 7 9er it!e$f/ it ' ! o(&iou!$y the i)#ort nce of the intere!t t !t 9e th t tri**ered the o($i* tion. o ot all e;ercises of statutor' or prerogative power ow i volve the givi g of reaso s S66 &he judgment$ echoing earlier authority$ also seems to accept that the existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons

The 6o te t of the 0ut' To 5ive Reaso s the reaso s should show that the it addressed itself to the parties argume ts o a ' sig ifica t questio of law releva t to the case% a d should i dicate the #asis o which it resolved the dispute% i order to assure the parties that the heari g has give them a mea i gful opportu it' to respo d Whe the tri#u al+s applicatio of a statutor' sta dard depe ds o this e;iste ce of certai facts% the reaso s should i clude the fi di gs of fact made #' the tri#u al a d i dicate the evide ce o which the tri#u al #ased its fi di gs* Ceed to 1now how the issues were framed and why it chose one view over another. P6@ (ail Canada 6nc. v. *ational /ransportation @gency 2;::!5 ; DC ;> C@% footnotes omitted% RAT2O o =standard of ade)uacy for duty to give reasons must ultimately reflect the purposes served !y a duty to give reasons.<loo1 at overall function of the tri!unal. o :easons must contain the decision*ma1er must set out its findings of fact and the principal evidence upon which those findings were !ased. &he reasons must address the major points in issue. &he reasoning process followed !y the decision*ma1er must !e set out and must reflect consideration of the main relevant factors. APP.26AT2ON4 o 6n this case, ade.uacy of the @gencyGs reasons measured with reference to the extent to which they provide P6@ with sufficient guidance to formulate their tariff without running afoul of the @gency and to the extent to which they give effect to P6@Gs right of appeal by providing sufficient insight into the @gencyGs reasoning process and the factors that it considered. o 6n summary, the @gency failed to provide sufficient insight into the reasoning process that it followed or the factors that it considered in determining that any obstacle provided by the tariff was undue. 6n so doing, it erred in law. Effect of >reach of the 0ut' To 5ive Reaso s If it is apparent from the reasons for a decision$ whether given voluntarily or under legal o!ligation$ that the decision ma1er misinterpreted the legislation or committed some other error of law$ the decision may !e set aside. 1owever, if the tribunalGs reasons, read in a realistic manner, indicate that it applied its mind to the most important issues, a court will not necessarily infer from its silence about others that it ignored them altogetherC ?indler v. @ttorney Aeneral of Canada, 2!3"45 ; DC !&> C@%.

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2t is more usual% though% for a court to decli e to speculate whether the tri#u al would have decided the dispute i the same wa' if it had realiFed that it could ot i law rel' upo the reaso s give

(h) 7i !
B6@7 @*D =@C? 8D 6*D')'*D'*C' 2NTRO0-6T2ON nemo judex in causa propria sua de!et esse" 8iter $$y tr n!$ ted/ thi! h ! it th t no one ou*ht to (e 1ud*e in hi! or her o'n c u!e The court refuses to i vestigate the decisio ma(er+s actual state of mi d PE6-N2ARA AN0 OT,ER 1ATER2A. 2NTERESTS If #er!on h ! direct fin nci $ intere!t in the tri(un $ % the' are disqualified The state of mi d of the decisio 8ma(er is irreleva t If it i! indirect:then they $oo9 t re !on ($e ##rehen!ion of (i ! spectrum>wG ad)udicative a d polic'.i#ert' case 'nergy )robe v. Canada @tomic 'nergy Control Board% !3"&%, " D=( &th% 4$> DC /D%. affGd. !3"&%, !> D=( &th% &" DC@% REE0 J ",eal a d Sto e agreed with this trial level stateme t$4 o But, 6 can find no direct pecuniary interest, as that concept has been defined in the +urisprudence. /here was no contract conditionally in effect pending the outcome of the new licences to 8ntario 1ydro. o &he most that could !e said of ?r -lsen as of the date of the hearing was that he could entertain a reasona!le expectation of pecuniary gain as a result of approval of the licencesnot enough to constitute a reasona!le apprehension of !ias. 1AR6EA- J4 o :esasona!le >pprehension of /ias &he only rational re)uirements are that the !enefit come from the decision itself and that it !e a li1ely enough effect to =colour= the case in his eyes. &he presence of an immediate possi!ility$ not to say pro!a!ility$ of gain to !e coming to him directly or indirectly as a result of his decision would !e enough to render someone unfit to ma1e it. o The mere possi#ilit' that a profit could #e realiFed i the future out of other co tracts awarded i the course of co structio of other u its was o dou#t too alie % co ti ge t a d remote to co stitute pecu iar' #ias with respect to the decisio to #e made at that time o /he standard of ob+ectivity in a tribunal does not have to be as high as that re.uired of an ad+udicative tribunal and the rules applicable should therefore be less strict the pecu iar' i terest ought to #e more immediate a d certai a d the o 8 pecu iar' i terest must give rise to ver' su#sta tial grou ds for apprehe di g lac( of o#)ectivit'* NOTES o 7upreme Court of Canada sustained the position that classification of the function as +udicial or .uasi-+udicial was no longer a prere.uisite to a challenge on the basis of bias,but the standards of detachment varied according to the nature of the role being performed o Canadian )acific =td. v. 9ats.ui 6ndian Band, 2!33>5 ! 7C( $ Can.%,

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income raised through the tax assessment scheme does not accrue to any individual, but rather to the community as a whole.

>2AS4 T,E 5ENERA. TEST Reaso a#le Apprehe sio of >ias 27CC5 Committee for Hustice and =iberty v. *ational 'nergy Board, 2!34"5 ! 7C( $#3 Can.%, o 5&6he apprehension of !ias must !e a reasona!le one$ held !y reasona!le and right*minded people$ applying themselves to the )uestion and o!taining thereon the re)uired information. In the words of the .ourt of >ppeal$ that test is =what would an informed person$ viewing the matter realistically and practicallyhaving thought the throughconclude.< The 6a adia courts have ot #ee all that co siste t i the ( owledge that is to #e attri#uted to the reaso a#le #'sta der* A tago ism 0uri g the ,eari g Where ad)udicator seems to favour o e side 2ts most commo ma ifestatio s are u reaso a#l' aggressive questio i g or comme ts a#out testimo ' Baker v. Canada 9inister of citiIenship and 6mmigration% % o the court may dis.ualify a decision maker who reveals in the course of a paper hearing an antagonism toward a party or a lack of sympathy with legislative ob+ectives and the way the legislation is being enforced. Associatio >etwee Part' a d 0ecisio 1a(er Perso al i volveme t i specialiFed i dustries'ou would e;pect recurre ce o #ut differe t from #ei g a activist i the field who has had stro g views towards the issue at sta(e 2N3O.3E1ENT O/ 0E62S2ON 1A=ER 2N EAR.2ER STA5E O/ PRO6ESS

Committee for Hustice and =iberty v. *ational 'nergy Board 2!34"5 7C( .as(i 6J o The &ice of re !on ($e ##rehen!ion of (i ! $ie! not in findin* corre!#ondence (et'een the deci!ion! in 'hich Mr Cro'e # rtici# ted nd $$ the !t tutory #re!cri#tion! @to t 9e into ccount $$ !uch ) tter! ! to it ##e r to (e re$e& nt/@ !ut rather in the fact that he participated in wor1ing out at least some of the terms on which the application was later made and supported the decision to ma1e it. The more usual situatio s of prior i volveme t are o es i which a decisio ma(er has i the same or a other capacit' alread' heard the matter #efore the tri#u al "reheari g o e has participated$ or #ee i volved i the i vestigatio a d decisio to proceed with the matter #ei g heard* /ownship of Pespra v. 8ntario 9unicipal Board% !3"$%, ; D=( &th% $:$ 8nt. Div. Ct.%,

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But, when there is added to those strong statements the actual decision of !3"$, ... made without +urisdiction and contrary to natural +ustice, based upon the evidence of !34# without regard for any change in circumstances in the intervening seven-year period and, in particular, without evidence of population pro+ections, the government policy having lost its relevancy, the reasonable apprehension of bias by Pespra is inevitable in our view. 2 the realm of appeals% the most o#vious possi#ilit' is that perso ma(es the i itial decisio a d the hears the appeal% either alo e or as part of the appeal tri#u al* o

=aw 7ociety of Epper Canada v. Drench 2!34>5 7C( ,O.02N5 "Spe ce for ma)orit'$ o -ne argument for the 0ociety was even if the proceedings were an appeal$ the maxim expressio unius est exclusio alterius permitted the mem!ers to participate. 0ection "D prohi!ited committee mem!ers from participating in one 1ind of appeal$ therefore implicitly permitting them to participate in others. 0pence E$ writing for the majority of the court$ accepted this argument7 o Spe ce J co cluded that 6o vocatio was ot co sideri g a appeal* ,e said that the discipli e process was 7a si gle proceedi g i which there are two stages4 /irst% the i quir' a d i vestigatio i to the complai t #' the discipli e committee% the results of which are em#odied i a report to the >e chers& a d seco dl'% the co sideratio a d dispositio of the report #' the >e chers i 6o vocatio *@ .as(i "disse t$4 Whe there was a serious offe se% the there was #ias

STAT-TORA A-T,OR2QAT2ON Brosseau v. @6berta 7ecurities Commission% 2!3"35 ! 7C( $:! @lta.% .+,E-RE-<80->E% o Reaso a#le Apprehe sio of >ias o In assessing !ias of administrative tri!unals$ the courts must !e sensitive to the nature of the !ody created !y the legislator. o 5e eral Rule4 someo e should ot sit as a i vestigator a d decider o ;Cemo Eudex< 3xception4 If a certain degree of overlapping of functions is authoriFed !y statute$ then$ to thee extent that it is authoriFed$ it will not generally !e su!ject to the doctrine of =reasona!le apprehension of !ias= per se. assuming the constitutionality of the statute is not in issue o 0u#i JA fou d that the structure of the Act where#' commissio ers could #e i volved i #oth the i vestigator' a d ad)udicator' fu ctio s did ot% #' itself% give rise to a reaso a#le apprehe sio of #ias* '.@. 9anning =td. v. 8ntario 7ecurities Commission iy3&%, !" 8( $d% 34 Div. Ct.%, affGd. !33>%, !;> D=( &th% $:> 8nt. C@% 1ONT5O1ERA J "0u et a d ,owde JJ co curri g$trial* o 'ven if 87C staff tried to separate their investigative role from the CommissionersG role as ad+udicators, the roles have become so interwoven that there is a reasonable apprehension of bias against all Commissioners because the creation and adoption of )olicy !.!: mass of complaints specifically regarding 9anning =imited and others in the staff report

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the material led by the 87C in @insley 6n a press interview, the Chair of the 87C, 9r. WaitIer, stated that their +ob is to get rid or regulate penny stock dealers O9r. WaitIer cannot sit on either hearing because of a reasonable apprehension of bias. o /he 87C both staff and Commissioners% were acting within the ambit of their statutory duties in assembling and considering information in respect of a certain segment of the securities market. But in using that information to conclude that the securities dealers including 9anning =imited% were in fact engaging in the practices alleged in )olicy !.!:, and now in the notices of hearing, the Commissioners pre+udged the case. 0->2N 6JO ".a#rosse a d 0ohert' JJA co curri g$4 o 0isqualificatio #' Reaso of 6orporate Tai t o &here was no evidence of prejudgment on the part of the new .ommissioners since they were not involved in the consideration and adoption of the 'olicy 0tatement o ?r. +aitFer8s comment a!out getting the penny stoc1 dealers into the self* regulating system is clearly a reflection of his ideal solution$ which is a solution he advocates for all players in the mar1et. In ma1ing the comments complained of here$ ?r. +aitFer was fulfilling his mandate as .hair of the .ommission /herefore, no bias,WaitIer and other commissioners can sit on the hearing o >ias Resulti g from 6ommissio +s 0efe ce i the Ai sle' Actio o It ' ! the Co))i!!ion !t ff/ $on* 'ith coun!e$/ 'ho 'ere re!#on!i($e for !!e)($in* the ) teri $! th t for)ed the ( !i! of the Co))i!!ionJ! re!#on!e to the #$ intiff!J $$e* tion! in the Ain!$ey ction !o no (i ! for co))i!!ioner! o Eve though the tribunal believed that the assertions in the defences were true, it is not reasonable to fear that the members of the tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s. !4c in.uiry. NOTES o Caccamo v. Canada 9inister of 9anpower < 6mmigration% 2!34"5 ! DC $## C@% at $4$C if all eligi!le adjudicating officers are su!ject to the same potential dis)ualification !ased on financial !ias$ the law must !e carried out notwithstanding that potential dis)ualification o

;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33#5 $7C(3!3 RAT2O o Duasi86o stitutio alism a d Statute 2f there is a legislative provisio % the we must loo( to see whether there are a ' co stitutio al or quasi8co stitutio al protectio s that eed to #e made So eve if there is e;press legislative authorit' "Regie$% it must still ot violate the rights e dowed i co stitutio al or quasi8 co stitutio al docume ts "Due#ec 6harter$ o 2 stitutio al >ias etermination of institutional !ias4 a well*informed person$ viewing the matter realistically and practically and having thought the matter through would have a reasona!le apprehension of !ias in a su!stantial num!er of cases. >lways$ the informed person8s assessment will always depend the circumstances.

)%

the nature of the dispute to !e decided$ the other duties of the administrative agency and how the operational context as a whole will of course affect the assessment. Stricter ##$ic tion in cri)in $ tri $/ 'here ! *re ter f$e0i(i$ity )u!t (e !ho'n to' rd d)ini!tr ti&e tri(un $!. APP.26AT2ON o "iii$ Role of the 0irectors O(a' for Regie to participates i the process of i vestigatio % summo i g a d ad)udicatio But the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the decision-making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases.

2N0EPEN0EN6E !#ectru)" the )ore d1udic ti&e the )ore inde#endence th t i! ' rr nted/ the )ore #o$icy dri&en/ the $e!! inde#endence in&o$&ed If the !t te i! c$e r (out the #o'er!/ then it o&erru$e! the co))on $ '/ of cour!e/ !u(1ect to con!titution $ #ro&i!ion! Palente Decision Three criteri of 1udici $ inde#endence o (1) 0ecurity of &enure lifetime appoi tee)udges ca o l' #e dismissed #' legislature o (2) 9inancial 0ecurity PE2 Refere ce4 eed a i depe de t committee to settle )udges salar' to e sure that )udges d G rule i favour of gov!ts also to e sure that )udges are ot #ri#ed o (")Institutional Independence Assig me t of )udges to cases is do e i depe de tl' ,ee# in )ind th t thi! 'h t 'e ##$y for 1ud*e!/ 'e need to ##$y to tri(un $! ccordin* to e0tent re+uired /rom Regieif chair appoi ted% there ma' #e lac( of i depe de ce

Canadian )acific =td. v. 9ats.ui 6ndian Band 2!33>5 ! 7C($ Can.% .A1ER 6J6 "6or' J co curri g$"0isse t o This issue$4 o RAT2O o To determi e whether a reaso a#le a d right8mi ded perso % viewi g the whole procedure as set out i the assessme t #'8laws% would have a reaso a#le apprehe sio of #ias o the #asis that the mem#ers or me appeal tri#u als are ot i depe de t/ the V $ente #rinci#$e! )u!t (e con!idered in $i*ht of the n ture of the ##e $ tri(un $! the)!e$&e!/ the intere!t! t !t 9e/ nd other indice! of inde#endence (!uch ! o th!) o strict applicatio of the 3ale te pri ciples ma' #e warra ted where

))

Tri#u al 0ecisio s affect the securit' of the perso of a part' "such as 2mmigratio $ o In thi! c !e/ 'e re de $in* 'ith n d)ini!tr ti&e tri(un $ d1udic tin* di!#ute! re$ tin* to the !!e!!)ent of #ro#erty t 0e! )ore f$e0i($e ##ro ch i! c$e r$y ' rr nted. SOP2N=A J ".+,eureu;80u#e% 5o thier a d laco#ucci JJ co curri g$"ma)orit' o this issue$4 o 2 do ot disagree with the 6hief Justice that the #a d ta;atio tri#u als must compl' with the pri ciples of atural )ustice "procedural fair ess$% #ut without a clear u dersta di g of the releva t% operatio al co te;t% these pri ciples ca ot #e applied* o Criteri of 'h t $e&e$ 'i$$ ##$y 8oo9 t n ture of tri(un $ N ture of i!!ue t !t 9e ?h t re the other indici of inde#endent thin9in* o Mu!t inter#ret !t tute! in (ro d ) nner #ro&i!ion! th t re i)ed t ) int inin* Indi n ri*ht!/ nd to inter#ret n rro'$y #ro&i!ion! i)ed t $i)itin* or (ro* tin* the). o 6 conclude that effectively, the provincial authorities, as a policy matter, have relin.uished their historical field of taxation over reserve lands, have given the force of law to the by-laws, have clothed the respective 6ndian band councils with the mantle of legitimacy in running their own system of taxation. o Although i this appeal% te ure a d remu eratio ma' #e esta#lished #' the #a ds o appoi tme t of the ta;atio tri#u als*

;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33# 5$ 7C( 3f3 5ONT,2ER J4 Judicial 2 depe de ceSecurit' of Te ure o In my view$ the directors8 conditions of employment meet the minimum re)uirements of independence. &hese do not re)uire that all administrative adjudicators$ li1e judges of courts of law$ hold office for life. 9ixed* term appointments$ which are common$ are accepta!le. (owever$ the removal of adjudicators must not simply !e at the pleasure of the executive. o .e 0ai J i 3ale te4 &he judge can !e remova!le only for cause$ and that cause !e su!ject to independent review and determination !y a process at which the judge affected is afforded a full opportunity to !e heardcannot remove judge in an ar!itrary manner. 2 stitutio al 2 depe de ce o 2e ain E in Galente4 &he essential elements of institutional independence may !e summed up as judicial control over the administrative decisions that !ear directly and immediately on the exercise of the judicial function. o 6t has not been shown how the 9inister might influence the decision-making process. The fact that the 1i ister of Pu#lic Securit' is ultimatel' respo si#le for #oth the Regie a d the various police forces co ducti g i vestigators would ot i m' view cause a i formed perso to have a reaso a#le apprehe sio with respect to the i depe de ce of the directors* Appeal allowed*

)+

Bell Canada Case---7/6== *''D /8 ('@D Hpheld the chair%s power to extend$ or refuse to extend$ the term of tri!unal mem!er since the chair is only remova!le for causeso he cannot !e influenced in such a manner S-PRE1E 6O-RT o The #o$icy i! #er)i!!i($e -)C$e r$y e!t ($i!hed (y (ro d #ur#o!e! of $e*i!$ ture Re !on! re!t not on inde#endence/ (ut on !co#e #er)itted to )ini!ter in $e*i!$ ture in choice of r(itr tor! 5)not u!ed #r ctic $$y in ny ' y th t i! i)#ro#er reasonable and practical to allow tribunal chair to renew .uestioning during course of hearing

8cean Court Case at least get proper caseC not read scanned,perhaps in textbook% S66 reversed the >66A o /ribunals are created for implementing governmental policy the' ma(e quasi8 )udicial decisio s o -ltimatel'% it is gover me ts that set the rules a d appoi tme ts o >oard is ot a court% it is a lice si g #od'withi prov* gov!t authorit' o 6ommo law o l' applies where the statute is sile t or am#iguous 6n this particular case, there was no doubt in the statute that the board members were to serve at pleasure,not ambiguous o 6o stitutio al requireme ts did ot appl'eco omic right o sectio C% JJ issues o 5over me ts ca appoi t who the' wa t% as lo g as the' have a ope mi d*

(&i) In!titution $ Deci!ion!" C !e Studie! in Procedur $ Choice

2 stitutio al 0ecisio s

( ) De$e* tion" The 8e* $ Doctrine

7 !ic Ru$e" .annot delegate authority unless the statute provides for it % &e $!o con!tructed the need to h &e d)ini!tr ti&e efficiency/ con!iderin* the &o$u)e of 'or9/ nd r n*e nd co)#$e0ity of i!!ue! Need to $oo9 t con!i!tency of deci!ion! nd the #o'er of the ch ir) n to ffect the outco)e /or ad)udicative decisio s% less li(el' to accept delegatio tha for polic' decisio s*

Willis, JDelegatus *on )otest DelegareJ !3&$%, ;! Can. Bar (ev. ;>4-#! delegatus non potest delegare% a delegate ma' ot re8delegate 2f the authorit' amed i the statute has a d retai s a ge eral co trol over the activities of the perso to whom it has e trusted% it is still delegatio If/ ho'e&er/ the uthority e0erci!e! !uch !u(!t nti $ de*ree of contro$ o&er the ctu $ e0erci!e! of the di!cretion !o entru!ted nd it c n (e ! id to direct it! o'n )ind to it/ there i! in $ ' no @de$e* tion@ nd the ) 0i) doe! not ##$y. o The word 7perso all'7 is to #e read i to the statute

),

Pine v. *ational Dock =abour Board 2!3>45@C&"" 'ng.1=% .OR0 SO1ER3E.. o 0iscipli ar' powers% whether 7)udicial7 or ot% ca ot #e delegated 32S6O-NT =2.1-2R .64 2 o It i! nece!! ry to con!ider the i)#ort nce of the duty 'hich i! de$e* ted nd the #eo#$e 'ho de$e* te. thi! duty in thi! !che)e i! too i)#ort nt 3out$ 'ed fro) #rofe!!ion for $ife4 to de$e* te un$e!! there i! n e0#re!! #o'er. it ' ! #er)i!!i($e if it h d !t ted !o in the !t tute/ (ut th t i! (!ent here. to have authorit' to appoi t someo e% it eeds to #e e;plicitl' provided NOTES The #rinci#$e of non2de$e* tion $!o re+uire! th t $$ )e)(er! of the tri(un $ he rin* di!#ute # rtici# te in !u(!t nti&e !en!e in the ) 9in* of the deci!ion. o 6B9 Canada v. Deputy 9inister of *ational (evenue, Customs and 'xcise, 2!33;5 ! DC ##$ DC@%, ?h t )u!t (e done/ ho'e&er/ i! th t t !o)e #oint in ti)e/ the # ne$ )u!t re ch deci!ion co$$ecti&e$y nd e ch )e)(er )u!t @# rtici# te@ indi&idu $$y in th t co$$ecti&e deci!ion in *reein* 'ith it or di!!entin* fro) it. There h ! to (e )eetin* of the )ind! / e ch )e)(er (ein* infor)ed t $e !t in *ener $ ' y of the #oint of &ie' of e ch of hi! co$$e *ue!. 9organ v. @cadia Eniversity !3">% *7 7C% p.&3!% see text for details% 2t would #e too much to e;pect the dea to determi e these himself The' co structed power to delegate the decisio 0E6202N5 W2T,O-T ,EAR2N5 only those mem!ers of an agency who hear a particular case may decide it 0elegati g the 0ut' To ,ear =ocal Aovernment Board v. @rlidge 2!3!>5@C!;: 'ng.1=% 32S6O-NT ,A.0ANE4 o ?inister at the head of the !oard is expected to o!tain his materials vicariously through his officials$ and he has discharged his duty if he sees that they o!tain these materials for him properly. &o do everything personally would !e to impair his efficiency. .OR0 S,AW4 o 9inisterial is responsible to parliament, but the minister must be able to delegate NOTE o 2 6a ada% some decisio s e;ceptio all' require the mi ister+s perso al decisio (amm !3>4% 8nt C@% details missing% RAT2O o elegation doctrine and the rule that only those who hear may decide lead to4

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,O.02N5 o court )uashed the decision and said it was o!jectiona!le for persons who were not part of the initial hearing to comment at a later time when the decision was made to revo1e

the people that hear the evidence are the people are the ones who are entitled to decidecan%t have new mem!ers in the course of the trial need )uorumcan%t lose mem!ers either

Heffs v. *ew Qealand Dairy )roduction and 9arketing Board 2!3#45 lG@C>>! *Q)C% 32S6O-NT 02.,ORNE4 o Mere$y M tter of Procedure/ 'hich doe! not &io$ te n tur $ 1u!tice" Whether the #oard heard the i terested parties orall' or #' receivi g writte stateme ts from them is a matter of procedure* ?hether the (o rd ##ointed #er!on or #er!on! to he r nd recei&e e&idence nd !u()i!!ion! fro) intere!ted # rtie! for the #ur#o!e infor)in* the (o rd of the e&idence nd !u()i!!ion! Cot permissi!le if it involved credi!ility of witnesses o But Board must still be fully informed of the evidence given and the submissions made and had considered this o Implied that it is permissi!le to delegate the evidence*ac)uiring process if credi!ility is not an issue o 0ummary is of the relevant evidence and su!missions is accepta!le if it ade)uately discloses the evidence and su!missions to the !oard. 6O11ENT o 6f there had been a clear delegation of authority and appropriate directions to the committee, it would have been more likely that the process would have been upheld

(() Con!u$tin* 'ith Other A*ency Me)(er!K Decidin* 'ithout %e rin* nd 7i !

6nternational Woodworkers of @merica, =ocal ;-#3 v. Consolidated-Bathurst )ackaging =td. !3"$%, > C=(B( *7% 43 8=(B%, 2!33:5 ! 7C( ;"; 8nt.% 0E62S2ON O/ T,E >OAR04 o (ationale for having board meetings Broader ramifications Aet perspective from other chairs experts% Consistency SOP2N=A J "disse ti g$ ".amer 6J6 co curri g$4 o The fu$$ (o rd he rin* &io$ te! the #rinci#$e! of n tur $ 1u!tice in t'o re!#ect!" fir!t/ th t )e)(er! of the 7o rd 'ho did not #re!ide t the he rin* # rtici# ted in the deci!ion:no o##ortunity for # rty to #er!u de the)

)*

Second/ th t the c !e i! decided t $e !t in # rt on the ( !i! of ) teri $! 'hich 'ere not di!c$o!ed t the he rin* nd in re!#ect of 'hich there ' ! no o##ortunity to ) 9e !u()i!!ion! o /he second deprived the appellant of a full opportunity to present evidence and submissions and constituted a denial of natural +ustice. o Not certai that the full >oard i flue ced the pa el% #ut it is fatal to the decisio of the >oard that this is what might ver' well have happe ed* o /urthermore% whe the rules of atural )ustice collide with a practice of the >oard% the latter must give wa'* 5ONT,2ER J "Wilso % .a /orest% .+,eureu;80u#e% a d 1c.achli JJ co curri g$4 o &o determine permissi!ility of full !oard meeting Importance of pu!lic issue +hether there was concern for having consistent decisions 'ros and cons of having these discussions in the a!sence of the parties o the da ger that full #oard meeti gs ma' fetter the )udicial i depe de ce of pa el mem#ers does ot create a reaso a#le apprehe sio of #ias or lac( of i depe de ce ".i#ert' test$ o &he criteria for independence is not a!sence of influence !ut rather the freedom to decide according to one8s own conscience and opinions. o /ull >oard 1eeti gs a d the Audi Alteram Partem Rule o I therefore conclude that full !oard meeting consultation process does not violate the audi alleram partem rule provided that factual issues are not discussed and that the parties are given a reasona!le opportunity to respond to any new ground arising from such a meeting

/remblay v. Fuebec Commission des affaires sociales% 2!33;5 ! 7C(3>; Fue.% 5ONT,2ER J4 ,O.02N5 Of course% secrec' remai s the rule% #ut it ma' o etheless to #e lifted whe the litiga t ca prese t valid reaso s for #elievi g that the process followed did ot compl' with the rules of atural )ustice* The te!ti)ony of the )e)(er C$ ude Pothier de#ict! !y!te) in 'hich in ctu $ f ct Acon!tr intB !ee)! to h &e out'ei*hed Ainf$uenceB/ re* rd$e!! of ny intern $ directi&e to the contr ry. E0ertion of !y!te)ic #re!!ure th t (re che! $iti* ntC! ri*ht to inde#endent tri(un $ o Co))i!!ion of ho$din* #$en ry )eetin*! 'ithout )e)(er! of +uoru) h &in* re+ue!ted the) o the &otin* #rocedure 3!ho' of h nd!4 o t 9in* )inute! The i stitutio aliFed co sultatio process curre tl' #ei g used #' the 6ommissio ma' also give rise to a reaso a#le apprehe sio of #ias i a i formed litiga t* P$en ry )eetin*! ) y (e con!u$t tion too$ (ut they !hou$d not (e i)#o!ed on deci!ion2) 9er! nd !hou$d (e he$d in !uch ' y ! to $e &e deci!ion ) 9er! free to decide ccordin* to their o'n con!cience! nd o#inion!. "O>2TER$ Part Pla'ed #' the Preside t i the 6ase at >ar a d Appeara ce of >ias o "strictl' spea(i g% o#iter$2 the case at #ar% there is o evide ce that ew argume ts of law were raised at the 7co se sus ta#le*7 or #' the preside t!s decisio * The co sultatio process therefore did ot i fri ge the audi alteram partem rule*

).

'llis-Don =td. v. 8ntario =abour (elations Board% 2;::!5 l7C(;;! 8nt.% 1AJOR2TA o Not allowed to e;ami e tri#u al mem#erstoo #urde some o In the a!sence of any further evidence$ this .ourt cannot reverse the presumption of regularity of the administrative process simply !ecause of a change in the reasons for the decision$ especially when the change is limited on its face to )uestions of law and policy$ as discussed a!oveneed some deli!erative secrecy o Ceed to have institutionaliFed consultation proceedings to ensure consistency$ predicta!ility$ and finality >2NN2E J "disse ti g$ "1a)or J co curri g$4 o 6o trar' to .e>el J% after review of draft a d fi al decisio % what had happe ed #efore the #oard i dicated that 7the evide ce was reweighed or reassessed% appare tl' as a result of the full8#oard meeti gdiffere t co structio of facts* o -nce it was determined here that the change !etween the initial decision and the final decision related to an issue that was almost entirely factual$ and was nevertheless put up for discussion at a full /oard meeting$ I thin1 the appellant has made out a prima facie !asis for judicial review which in this case the /oard chose not to re!ut. )ayne v. 8ntario 1uman (ights Commission% ;:::%, !3; D=( &th% $!> 8nt. C@% S,ARPE JA "O+6o or JA co curri g$4 o &he appellant was not entitled to any right of discovery to rummage through the commission8s files in hope of uncovering something helpful to her case$ !ut this did not mean that she was not entitled to a =more focused examination.< o &he examination will not !e permitted unless the party proposing it can present some !asis for a clearly articulated and o!jectively reasona!le concern that a relevant legal right may have !een infringed. 3xaminations !ased on conjecture or mere speculation will not !e allowed. A>E..A JA "disse ti g$4 o She cert in$y ' ! not #re# red to ! $& *e the ##$ic tion (y identifyin* !o)e )ore focu!ed e0 )in tion o /here is no evidence that any member of the staff made inappropriate comments at the relevant meetings, made comments that were not based on information contained in the (eports, or made any comments that unduly influenced or interfered with the CommissionGs ability to make up its own mind based on relevant and appropriate factors* S-11ARA Di!cu!!ion $$o'ed 'hen on$y #o$icy di!cu!!ion i! t i!!ue Any con!u$t tion )u!t de $ 'ith 'h t ' ! de $t 'ith in the # ne$ If there i! ne' i!!ue! di!cu!!ed/ you )u!t #ut it to the # rtie! fir!t

(c) ?ritin* nd Re&ie'in* Re !on! for Deci!ion

)$

At the ,eari g i a adversarial proceedi g% less active i terve tio o the part of tri#u al cou sel is li(el' to #e allowed #' the dut' of fair ess tha i a proceedi g that is more i quisitorial The Preparatio of Reaso s /he relevant black-letter law can be stated simply. o 9irst$ the decision made must !e that of the tri!unal mem!ers themselves 5and not the lawyers wor1ing on staff6. Dor this reason, counsel who, without the consent of the parties, retire with the tribunal while it deliberates may thereby create a reasonable apprehension of biasC the participation of a non-member in making the tribunalBs decision. o second$ the reasons for decision must !e in su!stance those of the tri!unal mem!ers$ not their cler18s or their counsel8s. 7pring v. =aw 7ociety of Epper Canada !3""%, >: D=( &th% >;$ 8nt. Div. Ct.% .A>ROSSE o 2 the prese t case% the cler( was ot part of the prosecutio * o &he deli!erations$ the findings and the decision$ were all made without input from any third party. &he cler1 did not participate in or influence the findings or the decision. Co part of the decisional process was delegated. o /herefore, the reasons were the reasons of the Discipline Committee and there can be no reasonable apprehension of bias. o ?ere it not for the ffid &it of Mr. F chetti 3'ho re#e ted$y re&ie'ed the docu)ent 'ith the c$er94 I 'ou$d h &e h d no he!it tion in orderin* ne' he rin*. TRA2NOR J "disse ti g$4 o Equall'% the fact of readi g a d adopti g draft reaso s prepared #' a third part' is i sufficie t** o 2t is a situatio % as 2 view it% where the evide ce was orga iFed #' him to logicall' reach esse tial fi di gs of fact a d support co clusio s with respect to credi#ilit'* &hat process$ in my view$ must !e underta1en !y the .ommittee$ at least in draft form$ in order that comparison is easily made to ascertain that the reasons in essence are the reasons that appear a!ove the signature of the .ommittee chairman. ?han v. College of )hysicians and 7urgeons of 8ntario !33;%, 3& D=( &th% !3$ 8nt. C@% 0O,ERTA4 The propriet' of cou sel!s i volveme t i the drafti g process apart from s* JM"O$ of the ,ealth 0iscipli es Act o 9actors etermining the 'ropriety of 'rocedures used in the preparation of reasonsloo1 at its effect on overall integrity of process4 &he nature of the proceedings$ the issues raised in those proceedings$ the composition of the tri!unal$ the terms of the ena!ling legislation$ the support structure availa!le to the tri!unal$ the tri!unal8s wor1load$ and other factors o ?here coun!e$ i! connected 'ith one of the # rtie! to the he rin* n ##e r nce of (i ! 'i$$ re!u$t if th t coun!e$ # rtici# te! in the dr ftin* #roce!!

+/

o o

91a(e most of what is #elow u #olde i the co cise summar': Coun!e$J! in&o$&e)ent in the dr ftin* #roce!! did not under)ine Dr. ,h nJ! (i$ity to 9no' the c !e ) de * in!t hi) or to #re!ent hi! o'n c !e There is o evide ce that cou sel assumed the role of a advocate% adva ci g o e positio No ne' e&idence or r*u)ent! or $e* $ i!!ue! for the Co))itteeJ! con!ider tion durin* the dr ftin* #roce!!. Coun!e$C! in&o$&e)ent in the 'ritin* of the re !on! did not co)#ro)i!e inde#endence or i)# rti $ity. It ' ! not ) nd tory/ nd ' ! entire$y under the contro$ of the Co))ittee* 6ou sel+s assista ce could ot have had a ' coercive effect o the 6ommittee* In th t re* rd/ the fo$$o'in* fe ture! of the #roce!! re !i*nific nt/ $thou*h none re deter)in ti&e" (i)A Co))ittee )e)(er #re# red the fir!t dr ft of the re !on!. (ii) Coun!e$/ 'ith the ch ir) n of the Co))ittee/ re&i!ed nd c$ rified the fir!t dr ft (ut did not 'rite inde#endent$y of th t dr ft. (iii) The Co))ittee )et to con!ider nd re&i!e the dr ft ! )ended (y coun!e$ nd the ch ir) nK coun!e$ #$ yed no ro$e in thi! re&ie' nd re&i!ion. (i&) The fin $ #roduct 'hich e)er*ed fro) the dr ftin* #roce!! ' ! !i*ned (y e ch )e)(er of the Co))ittee A ' o e of these factors is ot determi ativeThe e tire process must #e co sidered*

Reaso s Review

Bovbel v. Canada 9inister of 'mployment and 6mmigration% 2!33&5 ; DC >#$ C@% ,O.02N5 > fair reading of the documents on the record shows$ in our view that the legal advisors were not to discuss the findings of facts made !y the mem!ers !ut merely$ if there was a factual inconsistency in the reasons$ to loo1 at the file in order to determine$ if possi!le$ how the inconsistency could !e resolved. True% there was alwa's the possi#ilit' that the legal advisors might% si ce the' were i possessio of the file% e;ceed their ma date a d tr' to i flue ce the factual fi di gs of the #oard* ,owever% as me tio ed #' 1a o e' JA i Weerasi ge% a ' polic' is suscepti#le to a#use* F ct th t there ' ! hi*h &o$u)e of c$ i) nd c$e r #rotoco$ for re !on! ' ! !ufficient for court to (e ! ti!fied th t re !on! fter 'ritten (y tri(un $ cou$d (e re&ie'ed

(d) A*ency =uide$ine!

if there i! *uide$ine/ there )u!t (e e0#re!! uthority (y the !t tute:)oreo&er/ it i! not (indin*

+#

PART III SU7STANTIVE REVIE? (i) Introduction

Crevier v. @ttorney Aeneral ofFuebec 2!3"!5 ; 7C( ;;: H Fro) con!titution $ $ '/ the $e*i!$ ture ) y not $i)it the (i$ity of the court to h &e 1uri!diction o&er d)ini!tr ti&e tri(un $!

(ii) St nd rd of Re&ie'
( ) De&e$o#)ent of the 8 ' of Deference
Privative or Preclusive 6lauses #ri& ti&e c$ u!e (#rec$u!i&e c$ u!e)" a provision that limits the jurisdiction of the court to examine the su!stance of the decision 6-PE% .ocal KBO v* New >ru swic( .iquor "JKCK$4 A New Start *ational =abor (elations Board v. 1earst )ublications 6nc. $;; E7 !!! !3&& 6ourts are allowed to review the statutor' authorit' of #oard% #ut where the questio is o e of specific applicatio of a #road statutor' term i a proceedi g i which the age c' admi isteri g the statute must determi e it i itiall'% the reviewi g court+s fu ctio is limited* o Suggests that there must #e defere ce whe there is statutor' i dicatio s of legislative i te t to gra t the #oard #road powers* (e Cormier and @lberta 1uman (ights Commission !3"&%, !& D=( &th% >> @lta. FB%% The words 7emplo'er%7 7emplo'7 a d 7emplo'me t%7 as used i the prese t statute% must #e regarded as am#iguous* There #ei g am#iguit'% the mea i g to #e attri#uted to them should #e li#eral% so far as that is co siste t with the purpose of the Act a d ot i co siste t with some other provisio of the Act which must #e read as a whole* o Whe i terpreti g the purpose of a statutor' power u der o e specific provisio % loo( at the purpose of the Act as a whole* ESTA>.2S,2N5 T,E 1O0ERN STAN0AR0 Canadian Enion of )ublic 'mployees 2CE)'5, =ocal 3#$ v. *ew Brunswick =i.uor Corporation 2!3435 ; 7C( ;;4 *B% 3sta!lished that if there is a strong intent of legislature for deference$ then apply the standard of patent unreasona!leness Sta dard of Review o Re1ection of @#re$i)in ry or co$$ ter $ ) tter@ te!t o The !t nd rd to ##$y i! # tent unre !on ($ene!! ?h t con!titute! # tent$y unre !on ($e" ctin* in ( d f ith/ ( !in* the deci!ion on e0tr neou! ) tter!/ f i$in* to t 9e re$e& nt f ctor! into ccount/ (re chin* the #ro&i!ion! of n tur $ 1u!tice or )i!inter#retin* the #ro&i!ion! of the Act !o ! to e)( r9 on n in+uiry or n!'er +ue!tion not re)itted to it

+%

o o

Put nother ' y/ ' ! the 7o rdJ! inter#ret tion !o # tent$y unre !on ($e th t it! con!truction c nnot (e r tion $$y !u##orted (y the re$e& nt $e*i!$ tion nd de) nd! inter&ention (y the court u#on re&ie'E 2 do ot see how o e ca properl' so characteriFe the i terpretatio of the >oard* The am#iguit' of s* JRM"O$"a$ is ac( owledged a d u dou#ted* There is o o e i terpretatio which ca #e said to #e 7right@ the 7o rdJ! inter#ret tion 'ou$d !ee) t $e !t ! re !on ($e ! the $tern ti&e inter#ret tion! !u**e!ted in the Court of A##e $. Cert in$y the 7o rd c nnot (e ! id to h &e !o )i!inter#reted the #ro&i!ion in +ue!tion ! to @e)( r9 on n in+uiry or n!'er +ue!tion not re)itted to it.@

NOTES A commo feature of the )udgme ts i these three cases is% of course% their emphasis o statutor' co te;t a d legislative purpose% rather tha o commo law co cepts or presumptio s% as the (e' to i terpreti g the admi istrative statutes i questio o 0ic(so J i 6-PE said the statutor' la guage i dispute 7#ristles with am#iguities%7 #ut also that 7there is o o e i terpretatio which ca #e said to #e right*7 o 0ic(so J i 6-PE did ot thi ( that it was the respo si#ilit' of the court to resolve the am#iguit' i issue i that case* This% he said% was a matter for the #oard .2/E A/TER 6-PE4 TWO STEPS >A6= AN0 ONE /ORWAR0E /irst% despite the prese ce of a stro g privative clause "such as that i the O tario .a#our Relatio s Act% for e;ample$% a age c'+s decisio ma' #e set aside as i e;cess of its )urisdictio if it is #ased o a i correct i terpretatio of the ge eral law OR of a provisio of its e a#li g statute% which% o a pragmatic a d fu ctio al a al'sis% the legislature should #e held ot to have left to the co clusive determi atio of the age c' Seco d% a age c' e;ceeds its )urisdictio #' placi g a pate tl' u reaso a#le i terpretatio o those provisio s of its e a#li g statute% which% o a pragmatic a d fu ctio al approach to the statutor' scheme% the legislature should #e regarded as havi g e trusted co clusivel' to the age c' to i terpret* Third% privative clauses that fall short of outright prohi#itio s of )udicial review "such as those stati g that the age c'+s decisio s are 7fi al a d #i di g7$ do ot provide as much protectio from )udicial review* The' are% however% to #e ta(e i to accou t as part of the overall statutor' co te;t whe a reviewi g court is determi i g whether% a d to what e;te t% it should defer to the age c'+s i terpretatio of its legislatio * Jurisdictio al Provisio s4 The 6orrect ess Sta dard 7yndicat des 'mployes de production du Fuebec et de lB@cadie v. Canada =abour (elations Board 2!3"&5 ;7C( referred to hereafter as the CBC case% If there is a statute that left the jurisdiction openespecially when there%s no privative clausethen the standard of correctness applies Enion des enployes de service, =ocal ;3" v. Bibeault 2!3""5 ; 7C( !:&" Fue.% Case initiated the pragmatic and functional test to be used to determine the standard of review >EETQ J4

+)

A mere error of law is a error committed #' a admi istrative tri#u al i good faith i i terpreti g or appl'i g a provisio of its e a#li g Act o 6o trast ?mere error of law@ to4 pate tl' u reaso a#le i terpretatio 4 a fraud o the law or a deli#erate refusal to compl' with it )urisdictio al error4 misappl'i g a provisio which co fers )urisdictio tribunal will exceed its +urisdiction because of errorC o !. if the .uestion of law at issue is within the tribunalGs +urisdiction, it will only exceed its +urisdiction if it errs in a patently unreasonable manner o ;. if however the .uestion at issue concerns a legislative provision limiting the tribunalGs powers, a mere error will cause it to lose +urisdiction and sub+ect the tribunal to +udicial review. 2correctness standard5 Pr *) tic or function $ te!t to deter)ine the 1uri!diction of the d)ini!tr ti&e tri(un $ :Court )u!t e0 )ine the intention of the $e*i!$ tor (y $oo9in* t o (1)the wording of the enactment conferring jurisdiction on the administrative tri!unal$ 5privative clause$ whether it is an entitlement,privilege6 o (2)the purpose of the statute creating he tri!unal$ the reason for the tri!unal%s existence$ o (")the area of expertise of its mem!ers and o (#)the nature of the pro!lem !efore the tri!unal. 7efore decidin* 'hether to ##$y the correctne!! !t nd rd or the !t nd rd of # tent unre !on ($ene!!/ it i! nece!! ry to deter)ine the tri(un $J! 1uri!diction u!in* the #r *) tic or function $ te!t. Pr *) tic OR Function $ Te!t 3re!t ted4 o Prec$u!i&e<#ri& ti&e c$ u!e o Re !on for tri(un $<ro$e o E0#erti!e o Pro&i!ion<n ture of L<$ '/ )i0ed $ ' nd f ct<f ct o

0E32AT2ONS /RO1 T,E STAN0AR0 Canada @ttorney Aeneral% v. 9ossop ! 7C(>>& Can.% .ase where there was no privative clause$ yet the court accorded deference !ased on expertise .A1ER 6J64 o In !#ite of the (i$ity to o&erturn deci!ion! of the 7o rd on findin*! of f ct/ thi! Court h ! indic ted th t !o)e curi $ deference 'i$$ ##$y e&en to c !e! 'ithout #ri& ti&e c$ u!e! to the #rinci#$e of the !#eci $i> tion of dutie! (!ee /ell .anada v. .anada) o +hile curial deference will apply to findings of fact$ which the /oard of In)uiry may have !een in a !etter position to determine$ such deference will not apply to findings of law in which the /oard has no particular expertise. .A/ORESTJ4 o 7ut hu) n ri*ht! tri(un $ doe! not ##e r to )e to c $$ for the ! )e $e&e$ of deference ! $ (our r(itr tor. o These questio s of law are the provi ce of the )udiciar'% a d i volve co cepts of statutor' i terpretatio a d ge eral legal reaso i g which the courts must #e supposed compete t to perform*

++

&hey must$ therefore$ review the tri!unal8s decisions on )uestions of this 1ind on the !asis of correctness$ not on a standard of reasona!ility .+,E-RE-<80->E J "disse ti g$4 despite a ge erall' defere tial sta ce% courts will i terve e i the face of a )urisdictio al error% or pate tl' u reaso a#le error of fact or law* 0iscussio of the co sideratio s ta(e i to accou t i the test for the sta dard4 o 3xpertise4 /ell .anada v. .anada (.anadian :adio*television and &elecommunications .ommission) 51DID6 1 0.: 1J22$ at p. 1J#K$ Bonthier E o!served that$ even where a court is granted statutory appellate jurisdiction over a !oard$ =curial deference should !e given to the opinion of the lower tri!unal on issues which fall s)uarely within its area of expertise o Nature of the questio 4 more defere ce where admi istrative #od' has the )urisdictio to ma(e polic' choices o 0tandard of .orrectness for .onstitutional Luestions o D of /actG.aw 2 ge eral% defere ce is give o questio s of fact #ecause of the 7sig al adva tage@ .ess defere ce is warra ted o questio s of law /irst% the % is a e;ami atio of the statute* What is the purpose of the #oardE To what social eeds is it respo di gE What is the scope of powers that have #ee gra ted to itE Are these i #road or arrow termsE 0oes it have polic'8ma(i g powersE 2s suggesti g that more or less defere ce should #e give E 2s there a privative clauseE Seco d% it is valua#le to focus clearl' o the #oard whose decisio is #ei g impug ed* 2s it a specialiFed #oardE 0oes it have a developed #od' of )urisprude ce that guides it a d fu ctio s as precede tE ,ow are its mem#ers selected% a d how do participate i decisio 8 ma(i gE 2s there a co te;t i which the mem#ers wor( that provides them with field8 se sitivit' or other adva tagesE Third% the ature of the pro#lem u der scruti ' is a importa t co sideratio * 0oes the matter squarel' or #' implicatio fall withi the powers of the #oardE 0oes it require specialiFed ( owledge to a swerE Would it #est #e decided i a co te;t specific setti g% or is it a questio of ge eral applicatio E 0oes the pro#lem seem to have o l' o e 7correct7 a swer% or are there a variet' of possi#le a d reaso a#le i terpretatio sE 0oes the i tegrit' of the admi istrative scheme require that the pro#lem #e a swered >oardE Are there reaso s to thi ( that a court would #e #etter to deal with the matterE 0oes it i volve a questio of co stitutio al i terpretatio that would #e i appropriatel' left to #e determi ed #' a #oardE

Enited Brotherhood of Carpenters and Hoiners of @merica, =ocal >43 v. Bradco Construction =td. 2!33$5;7C($!# *fld.% ,O.02N5 o 0pectrum of privative clauses Whether or ot the word 7fi al7 should #e i terpreted i a ' particular case as co ve'i g a i te tio to preclude or restrai )udicial review requires a a al'sis of the provisio i light of the purpose% ature a d e;pertise of the tri#u al to the decisio of which it refers*

+,

Where the releva t legislative provisio is a true privative clause% )udicial review is limited to errors of )urisdictio resulti g from a error i i terpreti g a legislative provisio limiti g the tri#u al+s powers or a pate tl' u reaso a#le error o a questio of law otherwise withi the tri#u al+s )urisdictio * 9See >i#eault for tests: o 2 the a#se ce of legislative i te tio that defere ce should #e paid to fi di gs of law made #' a ar#itrator% such fi di gs would #e reviewa#le o a sta dard of correct ess* o The legislature has gra ted a appeal righteve here the courts will #e defere tial if the tri#u al is e;pert o >ut whe it is ot e;pert% a d there is a privative clause% the there will #e less defere ce APP.26AT2ON o No intention of $e*i!$ ture (y !.MM(5) to re!trict 1udici $ re&ie' to on$y 1uri!diction $ ) tter! u#on t 9in* into ccount the re$e& nt f ctor! of !t tutory 'ordin* nd e0#erti!e o ;udici $ deference to the deci!ion of the r(itr tor i! nonethe$e!! ' rr nted here. &he issues to !e resolved 5proper interpretation of >rt. ".M16 in coming to these conclusions involved the interpretation of the collective agreement and its application to a particular factual situation$ matters which constitute the core area of the ar!itrator8s expertise. @lso the purpose and wording of s. "", which confers upon the arbitrator exclusive +urisdiction to come to a final settlement of disputes arising out of the interpretation or application of the collective agreement o /hus, standard of review is patent unreasonableness o

RE8EN/OR62N5 T,E 1O0ERN STAN0AR0 Canadian Enion of )ublic 'mployees, =ocal $:! v. 9ontreal City% 2!3345l7C(43$ Fue.% Remedial Jurisdictio of the 6ou cil o ,i$$! the #ro#o! $ th t 'hen de $in* '< re)edie!/ the court !hou$d on$y ##$y the correctne!! ( !i! o To determi e )urisdictio % must see whether the' acted withi their sphere of authorit' o 0id cou sel act withi its )urisdictio stricto se so o /irst use the PS/ test to determi e whether the pro#lem addressed #' the tri#u al fell withi the e;clusive a d specialiFed )urisdictio gra ted it #' the legislature Pate t - reaso a#le ess o The determi e the sta dard of review to #e applied 9seems to use the PS/ test to determi e whether the sta dard as well:

(() E0tendin* the Re ch of Deference" St tutory A##e $!

)eIim v. British Columbia 7uperintendent of Brokers% 2!33&5 ; 7C( >>4 BC% o The Role of the 6ommissio o ?here tri(un $ #$ y! ro$e in #o$icy de&e$o#)ent/ hi*her de*ree of 1udici $ deference i! ' rr nted 'ith re!#ect to it! inter#ret tion of the $ ' 3Fro) 7r dco4 7r dco" A3For4 S#eci $i>ed tri(un $! re!#on!i($e for the re*u$ tion of !#ecific indu!tri $ or techno$o*ic $ !#here/ *re ter de*ree of deference

+-

i! due their inter#ret tion of the $ ' not'ith!t ndin* the (!ence of #ri& ti&e c$ u!eB o In the case at !ar$ the .ommission8s primary role is to administer and apply the 0ecurities >ct. It also plays a policy development role. o Therefore% the decisio s of the 6ommissio % falli g withi its e;pertise% warra t )udicial defere ce 9pate t u reaso a#le ess: 0E62S2ON4 o % &in* re* rd to the n ture of the !ecuritie! indu!try/ the Co))i!ionJ! !#eci $i> tion of dutie! nd #o$icy de&e$o#)ent ro$e ! 'e$$ ! the n ture of the #ro($e) (efore the court/ con!ider ($e deference i! ' rr nted in the #re!ent c !e not'ith!t ndin* the f ct th t there i! !t tutory ri*ht of ##e $ nd there i! no #ri& ti&e c$ u!e.

Canada Director of 6nvestigation and (esearch% v. 7outham 6nc. 2!3345 ! 7C( 4&" Can.% .ase esta!lished the middle standard of review4 reasona!leness simpliciter 2A6O>-662 J "for the court$ A al'sis Statutor' Right of Appeal o There is o privative clause% a d so )urisdictio of the 6ourt to review the tri#u al!s decisio is ot at issue The Nature of the Pro#lem >efore the Tri#u al o /riefly stated$ )uestions of law are )uestions a!out what the correct legal test is7 )uestions of fact are )uestions a!out what actually too1 place !etween the parties7 and )uestions of mixed law and fact are )uestions a!out whether the facts satisfy the legal tests o 2f the Tri#u al did ig ore items of evide ce that the law requires it to co sider% the the Tri#u al erred i law* Similarl'% if the Tri#u al co sidered all the ma dator' (i ds of evide ce #ut still reached the wro g co clusio % the its error was o e of mi;ed fact a d law* o In !hort/ the Tri(un $ for*ed no ne' $e* $ #rinci#$e/ nd !o it! error/ if there ' ! n error/ c n on$y h &e (een of )i0ed $ ' nd f cta questio of mi;ed law a d fact suggests a certai degree of defere ce The Sta dard o 2 m' view% co sideri g all of the factors 2 have ca vassed% what is dictated is a sta dard more defere tial tha correct ess #ut less defere tial tha 7 ot pate tl' u reaso a#le*7 o Several co sideratio s cou sel defere ce4 the fact that the dispute is over a questio of mi;ed law a d fact& the fact that the purpose of the 6ompetitio Act is #roadl' eco omic% a d so is #etter served #' the e;ercise of eco omic )udgme t& a d the fact that the applicatio of pri ciples of competitio law falls squarel' withi the area of the Tri#u al+s e;pertise* o Other co sideratio s suggest review4 the e;iste ce of a u fettered statutor' right of appeal from decisio s of the Tri#u al a d the prese ce of )udges o the Tri#u al* o Because there are indications both ways, the proper standard of review falls somewhere between the ends of the spectrum to that of reasonableness simpliciter >n unreasona!le decision is one that$ in the main$ is not supported !y reasons that can stand up to a somewhat pro!ing examination. >ccordingly$ a court reviewing a conclusion on the reasona!leness standard must loo1 to see whether any reasons support it.

+*

The difference (et'een @unre !on ($e@ nd @# tent$y unre !on ($e@ $ie! in the i))edi cy or o(&iou!ne!! of the defect. If the defect i! ## rent on the f ce of the tri(un $J! re !on!/ then the tri(un $J! deci!ion i! # tent$y unre !on ($e. 7ut if it t 9e! !o)e !i*nific nt !e rchin* or te!tin* to find the defect/ then the deci!ion i! unre !on ($e (ut not # tent$y unre !on ($e. the cce#ted ##ro ch of court of ##e $ i! to te!t the findin*! 3of f ct4 ) de t tri $ on the ( !i! of 'hether or not they 'ere c$e r$y 'ron* r ther th n 'hether they ccorded 'ith th t courtJ! &ie' of the ( $ nce of #ro( (i$ity. 0E62S2ON 6O11ENT o +hen there is a mixed law and fact$ more li1ely to !e at the reasona!leness standard o Reaso a#le test is ot too differe t from the clearl' wro g test o ?h t i! the difference ('< the unre !on ($e te!t nd the # tent$y unre !on ($e te!t DonCt h &e to (e ! #ro(in* to deter)ine 'hether it i! unre !on ($e o

=aw 7ociety of *ew Brunswick v. (yan ;::$ 7CC ;: *B0 2A6O>-662 J4 The Pragmatic a d /u ctio al Approach ,ow 1a ' Sta dards Are Availa#le i Review of Admi istrative 0ecisio sE o I ) not con&inced th t the incre !e in co)#$e0ity *ener ted (y ddin* fourth !t nd rd 'ou$d $e d to *re ter #reci!ion in chie&in* 1udici $ re&ie' of d)ini!tr ti&e ction. The Pragmatic a d /u ctio al Approach Applied to the 0isputed 0ecisio The E;pertise of the 0iscipli e 6ommittee o As the 6hief Justice otes i 0r* D*% the questio at this stage of the a al'sis is whether the decisio 8ma(i g #od' has greater e;pertise tha the reviewi g court with respect to the questio u der review* Purpose of the .aw Societ' Act a d the 0iscipli ar' Process o 6n the case of Dr. F., at para. $!, the Chief Hustice confirms earlier +urisprudence holding that =5a6 statutory purpose that re)uires a tri!unal to select from a range of remedial choices or administrative responses$ is concerned with the protection of the pu!lic$ engages policy issues$ or involves the !alancing of multiple sets of interests * or considerations will demand greater deference from a reviewing court.= Nature of the Duestio i 0ispute4 .aw% /act% or 1i;ed .aw a d /act o The Co))itteeJ! deci!ion on ! nction i! not one th t 'i$$ deter)ine future c !e! e0ce#t in!of r ! it i! u!efu$ c !e for co)# ri!on. T,E STAN0AR0 O/ REASONA>.ENESS S21P.262TER What 0oes the Reaso a#le ess Sta dard Require ofa Reviewi g 6ourtE o +hen underta1ing a correctness review$ the court may underta1e its own reasoning process to arrive at the result it judges correct. In contrast$ when deciding whether an administrative action was unreasona!le$ a court should not at any point as1 itself what the correct decision would have !een. o &his does not mean that every element of the reasoning given must independently pass a test for reasona!leness. &he )uestion is rather whether the reasons$ ta1en as a whole$ are tena!le as support for the decision

+.

0E62S2ON4 o laco#ucci J the fou d that #' refere ce to the sta dard of u reaso a#le ess% the 0iscipli e 6ommittee+s decisio o sa ctio was ot reviewa#le* o 2t was ot for the court to reweigh the evide ce* That would #e the equivale t of correct ess review*

Hudicial (eview )rocedure @ct (7:!33:,c.H.l there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for +udicial review Dederal Court @ct (7C !3">, c. D-4 2as amended by 7C !33:, c. "5 "d$ #ased its decisio or order o a erro eous fi di g of fact that it made i a perverse or capricious ma er or without regard for the material #efore it*

(c) The Modern St nd rd Articu$ ted Pu!h# n th ) &. C n d (Mini!ter of Citi>en!hi# nd I))i*r tion)
)ushpanathan v. Canada 9inister of CitiIenship and 6mmigration% 2!33"5 ! 7C(3"; Can.%RRR 3* ANA.AS2S A* Sta dard of Review o the focu! of the in+uiry i! !ti$$ on the # rticu$ r/ indi&idu $ #ro&i!ion (ein* in&o9ed nd inter#reted (y the tri(un $ J*/actors To >e Ta(e i to Accou t Privative 6lauses o ,owever% the prese ce of a 7full7 privative clause is compelli g evide ce that the court ought to show defere ce to the tri#u al +s decisio % u less other factors stro gl' i dicate the co trar' as regards the particular determi atio i questio o 2 esse ce% a partial or equivocal privative clause is o e which fits i to the overall process of evaluatio of factors to determi e the legislator+s i te ded level of defere ce% a d does ot have the preclusive effect of a full privative clause* E;pertise o If tri(un $ h ! (een con!tituted 'ith # rticu$ r e0#erti!e 'ith re!#ect to chie&in* the i)! of n Act/ 'hether (ec u!e of the !#eci $i>ed 9no'$ed*e of it! deci!ion2) 9er!/ !#eci $ #rocedure/ or non21udici $ )e n! of i)#$e)entin* the Act/ then *re ter de*ree of deference 'i$$ (e ccorded. o ?a1ing an evaluation of relative expertise has three dimensions4 the court must characteriFe the expertise of the tri!unal in )uestion7 it must consider its own expertise relative to that of the tri!unal7 and it must identify the nature of the specific issue !efore the administrative decision*ma1er relative to this expertise Purpose of the Act as a Whole% a d the Provisio i Particular o Where the purposes of the statute a d of the decisio 8ma(er are co ceived ot primaril' i terms of esta#lishi g rights as #etwee parties% or as e titleme ts% #ut rather as a delicate #ala ci g #etwee differe t i terests #etwee differe t parties% this suggests that the court should defer*

+$

> polycentric issue is one which involves a large num!er of interloc1ing and interacting interests and considerations as opposed to !ipolar opposition of 2 party%s interestsmore deference for polycentric decisions The 7Nature of the Pro#lem74 A Duestio of .aw or /actE o In South )" if the di!#ute i! o&er *ener $ #ro#o!ition then it ) y +u $ify ! #rinci#$e of $ '/ 'here ! if the di!#ute i! o&er &ery # rticu$ r !et of circu)!t nce! th t i! not #t to (e of )uch intere!t to 1ud*e! nd $ 'yer! in the future.B o In the usual case$ however$ the !roader the propositions asserted$ and the further the implications of such decisions stray from the core expertise of the tri!unal$ the less li1elihood that deference will !e shown. o

(d) The Ne' 7 tt$e*round N ture of the Lue!tion

/rinity Western Eniversity v. British Columbia College of /eachers 2;::!5 ! 7C( 44; BC% Canada Deputy 9inister of *ational (evenue% v. 9attel Canada 6nc. 2;::!5 ; 7C( !:: Can.% /A6TS o /he particular .uestions of law at issue in this appeal are not scientific or technical. 6n Dr. F. v. College of )hysicians and 7urgeons of British Columbia, ;::$ 7CC !3 G BC% 5ives the distilled curre t lawgood for review 16.A6,.2N 6J The Primac' of the Pragmatic a d /u ctio al Approach A Review of the Pragmatic a d /u ctio al /actors 'xpertise o Breater deference will !e called for only where the decision*ma1ing !ody is$ in some way$ more expert than the courts and the )uestion under consideration is one that falls within the scope of this greater expertise A !t tutory #ur#o!e th t re+uire! tri(un $ to !e$ect fro) r n*e of re)edi $ choice! or d)ini!tr ti&e re!#on!e!/ i! concerned 'ith the #rotection of the #u($ic/ en* *e! #o$icy i!!ue!/ or in&o$&e! the ( $ ncin* of )u$ti#$e !et! of intere!t! or con!ider tion! 'i$$ de) nd *re ter deference fro) re&ie'in* court 4 see PeFim% a d Southam%

(e) C !e Study

(iii) A##$yin* the St nd rd of Re&ie'

6ORRE6TNESS RE32EW

( ) Lue!tion! of 8 '
Canada @ttorney Aeneral% v. 9ossop 2!33$5 ! 7C(>>& Can.% .A1ER

,/

It is thus clear that when 'arliament added the phrase =family status= to the 3nglish version of the .(:> in 1DI"$ it refused at the same time to prohi!it discrimination on the !asis of sexual orientation in that >ct. In my opinion$ this fact is determinativeK .A /OREST J *** 9after co sideri g the sta dard of review issue% co ti ued:4 o In sum$ neither ordinary meaning$ context$ or purpose indicates a legislative intention to include same*sex couples with =family status.= .+,E-RE-<80->E J "disse ti g$ o U!e (ro d nd #ur#o!i&e ##ro ch to inter#retin* %u) n Ri*ht! $e*i!$ tion o Purpose of the Act o Te;tual 2 terpretatio o Purpose a d 2 te t The 7livi g8tree7 doctri e o The 1ea i g of 7/amil' Status7 A purposive approach to the defi itio of famil' var' with legislative purpose% a d depe d o the co te;t of the legislatio o 7/amil' Status7 i 6o te;t ,owever% categories of discrimi atio ofte overlap i sig ifica t measure NOTES o For the t'o 1ud*e! conductin* correctne!! re&ie'/ it cert in$y $oo9! ! thou*h they re en* *ed in tot $$y fre!h con!ider tion of the i!!ue!. o 8J%eureu02Du(e ;/ ho'e&er/ in conductin* # tent unre !on ($ene!! re&ie' i! &ery )uch centred on the ho$din* of the tri(un $. On the other h nd/ her n $y!i! of the $e* $ i!!ue! i! det i$ed. 6O11ENT o 'ven though =B1eureaux-Dube to apply the standard of patent reasonableness, she did a great deal of investigation into the ruling, which is a departure from the benchmark of looking for something obvious. o

*anaimo City % v. (ascal /rucking =td 2;:::5 7C(,*ot assigned in (eadings ?ust give a !road and purposive approach

(c) Lue!tion! of Mi0ed F ct

nd 8 '

Qurich 6nsurance Co. v. 8ntario 1uman (ights Commission% 2!33;5 All )udges fou d that the test applied was i correctthe #oard applied the wro g legal a al'sis a d this sta dard was too high* SOP2N=A J4 o The 6ode% however% states i s* LJ"O$ " ow s* LM"O$$ that a appeal lies to a court o a ' questio of law or fact a d that the court ma' su#stitute its opi io for that of the >oard of 2 quir'**** o The i sura ce co te;t is differe t from the emplo'me t co te;t* o 6n my opinion, a discriminatory practice is JreasonableJ within the meaning of s. ;! now s. ;;% of the Code if a% it is based on a sound and accepted insurance practice0 @*D b% there is no practical alternative. o 6n my view, this set too high a standard and not one that s. ;! now s. ;;% re.uires o It 'ou$d therefore (e in ##ro#ri te for thi! Court to find # rticu$ r #r ctice to (e unre !on ($e 'hen no re !on ($e $tern ti&e e0i!t!

,#

3In thi! e0 )#$e of the correctne!! !t nd rd (ein* ##$ied to )i0ed f ct nd $ '/ So#in9 thou*ht c )e u# 'ith the ne' $e* $ #rinci#$e to (e ##$ied4 .+,E-RE-<80->E J "disse ti g$4 o The findin*! of !#eci $i>ed tri(un $ c n on$y (e o&erturned (y court if they re # tent$y unre !on ($e. >ut she would defer to the fi di gs of fact withi that decisio Court c nnot !u(!titute their o'n o#inion! for findin*! of the 7o rd of In+uiry/ e&en in c !e! $i9e thi! one 'here there i! no #ri& ti&e c$ u!e nd there re 'ide ##e $ #ro&i!ion! She separated the fi di g of fact% from the legal a al'sis* o 2 co clusio % si ce a alter ative to the e;isti g discrimi ator' classificatio scheme did e;ist% a d the respo de t has ot% as the >oard of 2 quir' poi ted out% prese ted a ' evide ce that the classificatio s'stem curre tl' i place for drivers over the age of MP ca ot #e used for i sured perso s who are u der the age of MP% 2 must co clude that the respo de t has also failed to esta#lish that the discrimi ator' s'stem was a reaso a#le #asis for classificatio of driversdefer to the tri#u al o

(d) Content of P tent Unre !on ($ene!!

1ethodolog' *ational Corn Arowers @ssn. v. Canada 6mport /ribunal% 2!33:5 ; 7C(!$;& Can.% W2.SON4 RAT2O o One )u!tNnot (e*in 'ith the +ue!tion 'hether the tri(un $J! conc$u!ion! re # tent$y unre !on ($eK r ther/ one )u!t (e*in 'ith the +ue!tion 'hether the tri(un $J! inter#ret tion of the #ro&i!ion! in it! con!tituti&e $e*i!$ tion th t define the ' y it i! to !et (out n!'erin* # rticu$ r +ue!tion! i! # tent$y unre !on ($e the court should ot a al'Fe the merits of a tri#u al+s i terpretatio of the Act i light of 5ATT* o /o embark upon a detailed analysis of the extent to which the evidence will support the /ribunalGs finding in the face of a privative clause is to engage in the very kind of meticulous analysis of the /ribunalGs reasoning that CE)' made clear courts should not conduct. o if one determines that the .anadian Import &ri!unal8s interpretation of s. #2 >ct is not =so patently unreasona!le that its construction cannot !e rationally supported !y the relevant legislation$= then the in)uiry must come to an end. APP.26AT2ON o In )y &ie'/ it i! c$e r th t the Tri(un $ ' ! de $in* 'ith the 9ind of i!!ue th t it ' ! !et u# to de $ 'ith. It c nnot (e ! id to h &e (een ctin* out!ide it! 1uri!diction. o 1oreover% while the Tri#u al+s i terpretatio of s* LM might well #e u satisfactor' to those co cer ed to secure a more li#eral i ter atio al trade polic'% i m' view it ca hardl' #e descri#ed as a i terpretatio that is 7so pate tl' u reaso a#le that its co structio ca ot #e ratio all' supported #' the releva t legislatio *7 The terms 7su#sid'7 a d 7su#sidiFed goods7 are defi ed i ver' #road terms i deed a d the determi atio of 7material i )ur'7 certai l'

,%

ca ot #e said to preclude the 7#roader7 i terpretatio of s* LM"J$ that the Tri#u al favoured* 5ONT,2ER J4 =onthier *oe! on to $oo9 to !ee 'hether there i! e&idence to find ) teri $ in1ury Tri#u al+s 2 terpretatio of s* LM o ,avi g fou d that the rules of statutor' i terpretatio allow co sideratio of a u derl'i g agreeme t at the prelimi ar' stage of determi i g if the domestic legislatio co tai s a am#iguit'% 2 do ot hesitate to co clude i this case that the Tri#u al did ot act u reaso a#l' i co sulti g the 5ATT* o Rule OB of the Tri#u al+s Rules of Procedure directs the Tri#u al to 7e;ami e *** the actual a d potential volume of the *** su#sidiFed goods imported i to 6a ada7 "emphasis added$* o 5ive these requireme ts% it was reaso a#le for the Tri#u al to co sider that the pote tial for i creased imports properl' formed part of its i quir' Pote tial 2mports a d the 5ATT o ,avi g regard to the #road wordi g of the 5ATT provisio s% it was ot u reaso a#le a d was therefore ope to the Tri#u al to ma(e a fi di g of material i )ur' eve i the a#se ce of a i crease i the amou t of imports% a d to co sider pote tial imports The /i di g of 71aterial 2 )ur'+ o 5ive the evide ce #efore the tri#u al% it was ot u reaso a#le for the Tri#u al to i fer such that the 6a adia price would #e determi ed #' the -S mar(et% give the ope ature of the 6a adia mar(et a d give that the - ited States is the o l' via#le source for imports% that America stoc(s ot used for domestic co sumptio would have flowed i to 6a ada i greater amou ts Hnli1e my colleague$ +ilson E$ I do not thin1 that the &ri!unal8s references to the provisions of the B>&&$ as well as all other aspects of the reasoning !y which it arrived at its interpretation of 0I?>$ are totally irrelevant to a determination of an application for judicial review. 6O11ENT o ?h t i! intere!tin* (out thi! i! ho' f r you t 9e the # tent$y unre !on ($e !t nd rd ?i$!on ! id th t once it i! found to (e # tent$y unre !on ($e/ it !hou$d (e !truc9 do'n =onthier *oe! further to ! y th t 'e !hou$d $oo9 t the e&idence nd to ) 9e fin $ conc$u!ion o Cow the law is that the court will loo1 to see whether there are some facts to support the decisionNNN

City of /oronto ;::$ 7C( 44 .e>el 4 o E&en 'hen you *ree on 'h t the !t nd rd i!/ the ##$ic tion c n & ry !o )uch th t there i! !ti$$ *re t de $ of con!i!tency o No c$e r di!tinction ('< n $y!i! of re !on ($e !i)#$iciter/ nd # tent$y unre !on ($y o M y (e (etter to *o ( c9 to 5 !t nd rd S->STANT23E RE32EW S-11ARA &hree 0tandard

,)

.orrectness$ :easona!leness 0impliciter(0outham)$ 'atent Hnreasona!leness5.H'36 'ragmatic and 9unctional &est(/i!eault) o (1) 3xpertise M 9eu# Lu $ific tion Fie$d e0#erti!e:e0#erti!e ) y co)e fro) h &in* he rd $ot of c !e! o (2) Cature of ecision 'rovision,nature of L,law$ mixed law and fact,fact Is there an entitlement o (")'reclusive,privative clause o (#)'urpose of 2egislation,:eason for &ri!unal Further nu nce! in Pu!h# n th n/ Ry n/ Dr. L 9or general )uestions of law$ constitutional and human rights issues$ they apply the correctness standard 5get !etter definitions from the .ases6 o Correctne!! the court n $y>e! it fre!h $)o!t ('here ! the court $' y! !hou$d refer to the deci!ion of the tri(un $ in c !e of re !on ($ene!! !i)#$iciter or # tent unre !on ($ene!!) o Re !on ($ene!! (South )) South )" !o)e'h t #ro(in* n $y!i! o P tent Unre !on ($ene!! (CUPE) 8oo9 t the ) *nitude Mu!t (e o(&iou! P $# ($e nd o&erridin* error of tri(un $ o ?here Correctne!! 'i$$ ##$y tod y" o (-)If it i! %R tri(un $/ then it i! *ener $$y the correctne!! !t nd rd o (5)the tri(un $ i! inter#retin* *ener $ $ '/ then they 'i$$ ##$y correctne!! !t nd rd o A$!o ##$y correctne!! if th t i! the conc$u!ion fter the POF te!t o Not !o )uch ##$yin* to re)edie! ny)ore/ !ee CUPE &. Montre $

(i&) Re&ie' of the U!e<Mi!u!e of Di!cretion

( ) Introduction
It must suffice here to say that !y discretion we mean an express legal power to choose a course of action from a range of permissi!le options$ including the option of inaction. 5see /a1er for a definition too6

(() A(u!e of Di!cretion ! =round of ;udici $ Re&ie'

6o sideratio s4 o /irst% a d most o#vious% is the statutor' la guage i which the discretio is gra ted* 2s it couched i o#)ective or su#)ective termsE 2s it related to a specific purpose or is it gra ted for more ge eral purposesE

,+

o o o

Seco d is the ature of the i terest affected #' the discretio ar' power* 2s it o e to which our legal s'stem ormall' gives a high degree of protectio E ,ow seriousl' is it affected #' the decisio E Third is the character of the decisio * Are there effective alter ative chec(s% such as political accou ta#ilit'% that will preve t the a#use of discretio E /ourth is the character of the decisio ma(er* E;pertiseE

(oncarelli v. DuplessisC )re-Baker =aw 18=D6*A o ?0iscretio 7 ecessaril' implies good faith i dischargi g pu#lic dut' o Rule of .aw4 No matter how discretio ar' a decisio is i terms of the wordi g% the decisio 8ma(er ca ot defi e the limits of its ow powers o 0iscretio is su#)ect to )udicial review a d there is o a#solute discretio 6ourt to e sure that he is acti g withi the scope of his authorit' "ultra vires$ 7ummary of )re-Baker =aw,found not to be ultra vires 8*=S 6D the use of discretion isC o +ithin authority o In Bood faith o Hn!iased,uninfluenced,unfettered decision*ma1er o Cot ta1ing into account extraneous,irrelevant factors whether a factor considered !y the agency was relevant or a purpose pursued was authoriFed is reviewa!le !y a standard of correctness$ not unreasona!leness. E ter >a(er 9JKKK: %o'e&er/ ! 'e ! ' e r$y in thi! c !e(oo9/ $$ of th t ch n*ed dr ) tic $$y in /a1er. o &his then led to the court recogniFing for the first time explicitly that the =pragmatic and functional approach= was also of use in determining the intensity with which reviewing courts should !e approaching decisions in the discretionary section of the spectrum !etween pure )uestions of law$ at one end$ and completely unfettered discretion to !e exercised on the !asis of the su!jective judgment of the repository of power$ at the other end. NNNNN0ee the /a1er case a!ove on this issueNNNNN The Releva ce of the Pre8>a(er pri ciples o discretio toda'4 o The old legal pri ciples mea little or othi g i the case of #ad faith% acti g u der dictatio % u lawful su#delegatio % a d wro gful fetteri g% give that these are largel' fact8#ased grou ds of a#use of discretio review* o ,owever% i the realm of faili g to ta(e accou t of releva t factors% ta(i g accou t of irreleva t factors% a d eve acti g for a improper purpose% it is ow ecessar' to as( whether the sta dard of review is that of i correct ess% u reaso a#le ess% or pate t u reaso a#le ess* 7uresh v. Canada 9inister of CitiIenship and 6mmigration% 2;::;5 ! 7C( $ Can.% ,O.02N5 o FIRST ISSUE" ?%ET%ER %IS PRESENCE ?AS RIS, TO NATIONA8 SECURITF (NO CONSTITUIONA8 ISSUE) o The first factor suggests that Parliame t i te ded o l' a limited right of appeal*

,,

o o o o o

o o

Although the 1i ister+s s* PO"l$"#$ opi io is ot protected #' a privative clause% it ma' o l' #e appealed #' leave of the /ederal 6ourt Trial 0ivisio "s* NM*J"J$$% a d that leave decisio ma' ot itself #e appealed "s* NM*M$$* The seco d factor% the relative e;pertise of the decisio 8ma(er% agai favours defere ce it was the mi ister!s decisio % a d he has special i formatio The third factor4 the purpose of the legislatio agai favours defere ce* This purpose as discussed i Pushpa atha is to permit a 7huma itaria #ala ce7 of various i terests 7the serious ess of the da ger posed to 6a adia societ'7 o the o e ha d% a d 7the da ger of persecutio upo refouleme t o the other* Agai % the 1i ister is i a superior positio to a court i ma(i g this assessme t* /i all'% the ature of the case poi ts to defere ce* /ourth% The i quir' is highl' fact8#ased a d co te;tual* lt is the 9inister who was obliged to give proper weight to the relevant factors and none other warra ts defere cepate t u reaso a#le ess sta dard )rovided the s. >$ ! % b% decision is not patently unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures it should be upheld. 2) SECOND ISSUE" ?OU8D IT INFRIN=E S. D IF T%E PERSON ?AS DEPORTED sta dard of review for decisio of the 1i ister!s decisio o whether the refugee faces a su#sta tial ris( of torture whe deported whether there is a substantial risk of torture is a fact-driven in.uiry. Such issues are largel' outside the realm of e;pertise of reviewi g courts a d possess a egligi#le legal dime sio * &herefore apply the correctness standard on constitutional issue &he court may not reweigh the factors considered !y the ?inister$ !ut may intervene if the decision is not supported !y the evidence or fails to consider the appropriate factors.

(e 7heehan and Criminal 6n+uries Compensation Board !34$%, $4 D=( $d% $$# 8nt. Div. Ct.%, revGd. !34>%, >; D=( $d% 4;" 8nt. C@% An e0 )#$e of Pre27 9er 8 ':t 9in* ccount of irre$e& nt f ctor! o No Right to 6ompe satio o No i dicatio of which factors to co sider o 7o rd c nCt con!ider # tent$y irre$e& nt con!ider tion!/ (ut th t i! not the c !e here. o With respect 6 do not construe the @ct as authoriIing the Court to review the correctness of the BoardGs decision made within the scope of its authority o In )y o#inion the Di&i!ion $ Court erred 'hen it con!idered th t it! t !9 ' ! to deter)ine if the ! id circu)!t nce! 'ere re$e& nt. In the $i*ht of the di!cretion &e!ted in the 7o rd to h &e re* rd to $$ circu)!t nce! 'hich it con!idered re$e& nt !o $on* ! it cted in *ood f ith/ the deci!ion of the 7o rd ! to 'h t con!ider tion! re re$e& nt re unch $$en*e ($e

,-

NOTES o Dalton v. Criminal 6n+uries Compensation Board !3";%, $# 8( ;d% $3& Div. Ct.%, @lthough the Board could properly find that her behaviour contributed to her in+ury, to hold that she was the exclusive cause of this particular in+ury was legal error,they failed to take account of other relevant considerations RE1E02ES 0 G su#stitute it ow decisio % o l' ordered it to #e re8tried Whe it is a discretio ar' decisio % the court will rarel' su#stitute its ow decisio this will happe o l' whe there is o l' o e decisio that could possi#l' #e reached

7hell Canada )roducts =td. v. Pancouver City% 2!33&5 !7C(;$?BC% Decided (efore 7 9er:'ron*fu$ #ur#o!e #rinci#$e 1c.A6,.2N J "disse ti g$4 o /hese considerations lead me to conclude that courts should adopt a generous, deferential standard of review toward the decisions of municipalities part of democrac'Judicial i terve tio is warra ted o l' where a mu icipalit'+s e;ercise of its powers is clearl' ultra vires% or where cou cil has ru afoul of o e of the other accepted limits o mu icipal power* o I would cast the proper functions of a municipality in a larger mould. &he term =welfare of the citiFens$= it seems to me$ is capa!le of em!racing not only their immediate needs$ !ut also the psychological welfare of the citiFens as mem!ers of a community who have an interest in expressing their identity as a community SOP2N=A J4 o Reviewa#ilit' /he decision was made under its corporate power procurement% and hence not through the Council,was this a determinative factor o 2mpermissi#le Purpose The cit' was see(i g to use its powers to do #usi ess 7to affect matters i a other part of the world7 "pp* OLN8LK$% a purpose which is directed at matters outside the territorial limits of the 6it'* 0o far as the purpose of the Gancouver .harter is concerned it is perhaps !est expressed in s. 1ID$ which provides that =.ouncil may provide for the good rule and government of the city.= Any #o'er! i)#$ied fro) their *ener $ $ n*u *e )u!t (e re!tricted to )unici# $ #ur#o!e! nd c nnot e0tend to inc$ude the i)#o!ition of (oycott ( !ed on ) tter! e0tern $ to the intere!t! of the citi>en! of the )unici# $ity. /ailure To 6o sider Releva t /actors A more limited a d plausi#le versio is that% while a age c' ma' lawfull' co sider a large um#er of factors i the e;ercise of a discretio ar' power "permissive releva t co sideratio s$% it is required to co sider o l' some of them "ma dator' releva t co sideratio s$* o >n exercise of discretion will therefore !e ultra vires only if the agency has overloo1ed a factor that its ena!ling statute expressly$ or more usually$ impliedly$ o!liged it to consider.

,*

1ultiple Purposes a d 6o sideratio s Pre& i$in* &ie' ##e r! to (e th t the court 'i$$ on$y ho$d !uch deci!ion! to (e u$tr &ire! if the un$ 'fu$ #ur#o!e or con!ider tion #$ yed do)in nt or ) teri $ ro$e in the e0erci!e of di!cretion Purpose a d Proof Whe a age c' e;ercises its discretio after receivi g a report from a se ior official or committee% the court ma' attri#ute to the age c' a ' stateme t of purpose co tai ed i that report

(c) Di!cretion nd the Ch rter" Unre !on ($ene!! Re&i!ited

2 the a#se ce of e;press words or ecessar' implicatio % it was presumed that the legislature did ot i te d a discretio to #e e;ercised so as to curtail #asic li#erties* 0iscrimi ator' practices struc( dow through misuse of discretio pri ciple ,owever% the mere fact that a statutor' discretio ar' has the pote tial to #e e;ercised i a wa' that i fri ges 6harter rights a d freedoms does ot give rise automaticall' to i validatio * 2 such cases% the attac( will have to #e o the i dividual e;ercise of discretio % ot the authoriFi g provisio 3er' limited use of the 6harter to stri(e dow legislatio as void for vague ess u der

7laight Communications 6nc. v. Davidson 2!3"35 ! 7C( !:$" Can.% 026=SON 6J4 The Relatio ship >etwee Admi istrative .aw Review a d Review - der the 6harter o Durthermore, not only am 6 of the view that the negative order is reasonable in the administrative law sense but 6 also believe that it is reasonable and demonstrably +ustified in the sense of s. ! of the Charter. o +hile patent unreasona!leness is important to maintain for )uestions untouched !y the .harter (such as review of determinations of fact in the realm of value in)uiry)$ the courts should have recourse to this standard only in the clearest of cases in which a decision could not !e justified under s. 1 of the .harter .A1ER "disse ti g i part$ o Though the ad)udicator clearl' had )urisdictio to ma(e a order he felt to #e equita#le a d proper% he lost this )urisdictio whe he made a pate tl' u reaso a#le decisio * o .egislatio co ferri g a imprecise discretio must therefore #e i terpreted as ot allowi g the 6harter rights to #e i fri ged* o If the exercise of discretion that affects .harter rights passed the section 1 analysis$ it must still !e determined whether it was a patently unreasona!le application NOTES o 0u!se)uently in :oss v. Cew /runswic1 0chool istrict Co. 1A$ 51DDK6 1 0.: I2A (C/)$ the court indicated that the ic1son approach represented the invaria!le rule7 that if the exercise of a discretion that affected .harter rights and freedoms passed muster !y reference to section 1$ it was thereafter redundant to in)uire whether it was$ nonetheless$ patently unreasona!le. OT,ER 21PORTANT 6O1PONENT O/ T,2S 6ASE o If decision ma1er is given a wide degree of discretion under the statute and argua!ly he has a choice of how to interpret how far he can go$ then he must exercise his discretion within the !ounds of the .harter

,.

.ourt indicated it is not re*weighing factors that the discretionary decision ma1er has ta1en into accountif discretionary decision ma1er has applied appropriate factors$ the court will not overturn it even if it would have come to a different decision on those factors itself

The Jurisdictio of Tri#u als a d the 6o stitutio T,E J-R2S026T2ON O/ TR2>-NA.S TO 0E620E 6ONST2T-T2ONA. 6,A..EN5ES &ri!unals should interpret their legislation in a way that is consistent with the constitution. > statutory power that may seem wide enough to authoriFe the infringement of a .harter protected right should !e =read down= *ova 7cotia Workers compensation v. 9artin 2;::$5--missing this,download this case 1arti a d .esseur ,O.02N5 o O&erru$ed Coo#er nd c$o!er to Cuddy Chic9!. o If the legislature has granted authority to consider the law$ then it has jurisdiction to address constitutional law o /or co stitutio al )urisdictio must co sider the ma date of the tri#u al through statutor' i terpretatio o su!ject to a correctness standard for a constitutional determination o re!utta!le presumption that if it can decide legal )uestions$ it can decide constitutional )uestions can !e re!utted !y legislation (statute) excluding it practical considerationswhether the tri!unal was supposed to ma1e decisions expeditiously )aul v. British Columbia2appeals level5 ,O.02N5 o Same i terpretatio as 1arti v* .esseur* o St tutory inter#ret tion:did the $e*i!$ ture *i&e the) uthority to deter)ine +ue!tion! of $ ' If !o/ they c n de $ '< e0i!tin* (ori*in $ ri*ht! ! 'e$$ APP.26AT2ON o The' had power to decide questio s of lawa d there was othi g to re#ut this* 6O11ENT o =ook for conduct that infringes the charter, or legislation that infringes the charter o 6n 9artin, the legislation itself was found to infringe the Charter Hane patient 2Divisional Court5 ,O.02N5 o 6ourt applied the M rtin te!t o 8oo9ed t Ment $ %e $th Act:$oo9ed t the #ur#o!e of the $e*i!$ tion 'ointed to the need to have decisions made in a timely way

,$

+hich was not contemplated to try .harter claims$ which are a lengthy process

Cooper v. Canada 1uman (ights Commission% 2!33#5 $ 7C( ">& Can.% .A1ER 6J4 2 troductio o 5e erall' accepted pri ciple4 that tri#u als which have )urisdictio over the ge eral law% have )urisdictio to refuse to appl' a d he ce effectivel' to re der i operative laws that the' fi d to #e u co stitutio al.amer challe ges this o @s a matter of constitutional principle that power must be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature The 2ssue i this 6ase o .a /orest J relies o the o 8ad)udicator' ature of the 6ommissio to de ' it )urisdictio over the ge eral law% a d he ce over the 6harter* ,e i fers as a matter of logic that tri#u als appoi ted #' the 6ommissio ca ot co sider 6harter challe ges to the 6a adia ,uma Rights Act% #ecause 6harter challe ges will ot get past the 6ommissio * As well% he fails to fi d i the provisio s of the Act the #asis for impl'i g a legislative i te t that tri#u als have )urisdictio over the ge eral law* o 1c.achli J% #' co trast% focuses o specific provisio s i the Act which gover the 6ommissio a d tri#u als% to i fer the i te t #' Parliame t that these #odies ca co sider the ge eral law% a d he ce 6harter challe ges to their e a#li g legislatio * The Separatio of Powers o 6udd' 6hic(s sa's that a tri#u al could ot ma(e a declaratio of i validit'% #ecause it was ot a court .a /OREST J "Sopi (a% 5o thier a d laco#ucci JJ co curri g$4 A al'sis o &he essential )uestion facing a court is whether the ena!ling statute (expressly$ or implicitly) grants the power to determine )uestions of law 2f it is ot e;pressl' provided% determi e whether this power is implied #' o If a tri!unal does have the power to consider )uestions of law$ then it follows !y the operation of s. A2(1) that it must !e a!le to address constitutional issues$ including the constitutional validity of its ena!ling statute.5clearly enunciated !y this .ourt in .uddy .hic1s6 The Scheme of the Act The Jurisdictio of the 6ommissio Practical 6o sideratio s o practical considerations may !e of assistance in determining if the intention of 'arliament$ !ut they are not determinative. the co)#o!ition nd !tructure of the tri(un $/ the #rocedure (efore the tri(un $/ the ##e $ route fro) the tri(un $/ nd the e0#erti!e of the tri(un $. The Jurisdictio of a Tri#u al u der the Act 1c.A6,.2N J ".+,eureu;80u#e J co curri g$ "disse ti g$4 *** o 2 m' view% ever' tri#u al charged with the dut' of decidi g issues of law has the co comita t power to decide 6harter issues too* NOTES o O&erru$ed in M rtin c !e (o&e

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Where a statutor' authorit' does have )urisdictio to co sider the releva t 6harter questio % all of the i dicators are that the statutor' authorit' 7 ot o l' has the authorit' #ut a dut' to ascertai 7 the a swer to the co stitutio al challe ge74

PART IV CONSTITUTIONA8 ISSUES (i) Tri(un $C! Authority to Decide Con!titution $ I!!ue!
Weber v. 8ntario 1ydro 2!33> 5;7C(3;3 2A6O>-662 J ".a /orest a d Sopi (a JJ co curri g$ "disse ti g o the cross8appeal$4 A Ar#itrator 2s Not a 76ourt7 o Tri#u als is ot court u der s*ML"J$ due to followi g differe ces Eve if a 6ourt% a Ar#itrator 2s Not a 6ourt 7of 6ompete t Jurisdictio 7 o Although 2 do ot dispute the a#ilit' of ar#itrators to decide 76harter issues%7 this a#ilit' does ot i clude the a#ilit' to gra t 6harter remedies* o +hile I agree that ar!itrators must not apply an invalid law$ an ar!itration decision cannot have the effect of actually stri1ing down the law7 only a court can ma1e such a declaration (.uddy .hic1s)$ o In short$ it cannot remedy the fact that the law (or !ehavior) violates the .harter$ it can only remar1 that it is so. o O l' courts ca gra t such 6harter remedies 1c.A6,.2N J "5o thier% .+,eureu;80u#e% a d 1a)or JJ co curri g$4 "#$ The 6harter 6laims o It fo$$o'! fro) Mi$$! th t !t tutory tri(un $! cre ted (y P r$i )ent or the 8e*i!$ ture! ) y (e court! of co)#etent 1uri!diction to *r nt Ch rter re)edie!/ #ro&ided they h &e 1uri!diction o&er the # rtie! nd the !u(1ect ) tter of the di!#ute nd re e)#o'ered to ) 9e the order! !ou*ht. o > tri!unal will !e a court of competent jurisdiction if its constituent legislation gives it power over the parties$ the issue in litigation and power to grant the remedy which is sought under the .harter. (?ills) NOTES o 9ooring v. Canada *ational )arole Board% 2!33#5 6 7C( 3> BC% determined that the *ational )arole Board was not a Jcourt of competent +urisdictionJ i the co te;t of a argume t that the #oard should have e;cluded illegall' o#tai ed evide ce i parole revocatio proceedi gs #' refere ce to sectio ML"M$ of the 6harter .i(e the #asic structure a d fu ctio of the Parole >oard% the la guage of the >oard+s% e a#li g statute ma(es it clear that the >oard lac(s the a#ilit' or )urisdictio to e;clude releva t evide ce T,E STAN0AR0 O/ RE32EW >lso$ once the courts have ac1nowledged that an administrative tri!unal has jurisdiction to determine a constitutional challenge to its ena!ling legislation$ either on its face or as applied to the particular dispute$ they have often added that the tri!unal8s decision on the constitutional )uestion is su!ject to judicial review for correctness. o 2 fact% i a other co te;t% the Supreme 6ourt has recog iFed the eed for )udicial defere ce to age c' fi di gs of co stitutio al or 6harter facts* This was i Suresh . o 'rovided it was ta1en into account and the decision was not patently unreasona!le$ the court =should not reweigh= the correct factors.

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PART V REMEDIA8 ISSUES (i) St ndin*

STAN02N5 2N J-0262A. RE32EW PRO6EE02N5S 5e eral Tur i g poi ts4 2 each case% the Supreme 6ourt upheld the applica t+s status to comme ce the particular declarator' proceedi gs a d% more ge erall'% the court held that )udges had a #road discretio % at least i co stitutio al matters% to allow proceedi gs to #e comme ced #' private i dividuals with o particular sta(e* o Thorso v* Attor e' 5e eral of 6a ada% 9JKCP: 2 S6R JON "O t*$ "la guages act$& Nova Scotia >oard of 6e sors v* 1cNeil% 9JKCB: M S6R MBP "NS$& "movie ce sor$ a d 1i ister of Justice of 6a ada v* >orows(i% 9JKNJ: M S6R PCP "Sas(*$ "therapeutic a#ortio committee$ 'ach of these cases involved attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citiIens and taxpayers. Dinlay v. Canada 9inister of Dinance% 2!3"#5;7C(#:4 Car ,O.02N5 A #$ intiff c n !ue 'ithout 1oinin* the Attorney2=ener $ in t'o c !e! (c$ !!ic ru$e) o fir!t/ 'here the interference 'ith the #u($ic ri*ht i! !uch th t !o)e #ri& te ri*ht of hi! i! t the ! )e ti)e interfered 'ith. 3*ener $ ru$e4 o !econd$y/ 'here no #ri& te ri*ht i! interfered 'ith/ (ut the #$ intiff/ in re!#ect of hi! #u($ic ri*ht/ !uffer! !#eci $ d ) *e #ecu$i r to hi)!e$f fro) the interference 'ith the #u($ic ri*ht. O l' the perso s most directl' affected should have sta di g% therefore there should #e o other reaso a#le a d effective ma er i which the issue ma' #e #rought #efore a court* he i! #er!on 'ith *enuine intere!t in the!e i!!ue! nd not )ere (u!y(ody. Cot necessary to have prior re)uest of >ttorney general where it is clear from the position adopted !y the >ttorney Beneral in the case that he would not have consented to the institution of proceedingssuch as the case here. Whether a plai tiff should #e gra ted either declarator' relief or i )u ctive relief i a particular case is a matter of )udicial discretio to #e e;ercised accordi g to criteria a d co sideratio s which are somewhat differe t for the two forms of relief* The respo de t should i m' opi io #e recog iFed as havi g sta di g to see( the i )u ctive relief pra'ed for i his stateme t of claim* NOTES o O e of the implicatio s of the /i la' )udgme t seems to #e that the discretio of the court o l' comes i to pla' whe the applica t or plai tiff fails to esta#lish sta di g #' refere ce to the traditio al commo law rules or a ' releva t statutor' provisio s with respect to sta di g* P->.26 2NTEREST STAN02N5

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Canadian Council of Churches v. Canada 9inister of 'mployment and 6mmigration% 2!33;5 ! 7C(;$# Can.% ,O.02N5 Should the 6urre t Test for Pu#lic 2 terest Sta di g >e E;te dedE o The *r ntin* of #u($ic intere!t !t ndin* i! not re+uired 'hen/ on ( $ nce of #ro( (i$itie!/ it c n (e !ho'n th t the )e !ure 'i$$ (e !u(1ect to tt c9 (y #ri& te $iti* nt. o The deci!ion 'hether to *r nt !t tu! i! di!cretion ry one 'ith $$ 'hich th t de!i*n tion i)#$ie!. The Applicatio of the Pri ciples for Pu#lic 2 terest Sta di g to this 6ase o ?hen #u($ic intere!t !t ndin* i! !ou*ht/ con!ider tion )u!t (e *i&en to three !#ect!. 9irst$ is there a serious issue raised as to the invalidity of legislation in )uestion? 0econd$ has it !een esta!lished that the plaintiff is directly affected !y the legislation or if not does the plaintiff have a genuine interest in its invalidity? &hird$ is there another reasona!le and effective way to !ring the issue !efore the court? Serious 2ssue of l validit' ,as the Plai tiff 0emo strated a 5e ui e 2 terestE Whether There is A other Reaso a#le a d Effective Wa' to >ri g the 2ssue >efore the 6ourtE o These issues will #e discussed i the course of the umerous claims with a factual poi t of refere ceThere are other reaso a#le methods of #ri gi g the matter #efore the court* o 2 would haste to add that this should ot #e i terpreted as a mecha istic applicatio of a tech ical requireme t* Rather it must #e remem#ered that the #asic purpose for allowi g pu#lic i terest sta di g is to e sure that legislatio is ot immu iFed from challe ge* Priend v. @lberta !33"5 ! 7C( &3$ @lta.% 6ORAJ"for ma)orit'$4 o Sta di g o 6a adia 6ou cil of 6hurches "at p* MPO$4 the three co sideratio s o Dirst, is there a serious issue raised as to the invalidity of legislation in .uestionK o 7econd, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its invalidityK o /hird, is there another reasonable and effective way to bring the issue before the courtK The on$y other ' y the i!!ue cou$d (e (rou*ht (efore the Court 'ith re!#ect to the other !ection! 'ou$d (e to ' it unti$ !o)eone i! di!cri)in ted * in!t on the *round of !e0u $ orient tion in hou!in*/ *ood! nd !er&ice!/ etc. nd ch $$en*e the & $idity of the #ro&i!ion in e ch ##ro#ri te c !e. Thi! 'ou$d (e ' !tefu$ of 1udici $ re!ource! - fair4 #urde s of dela'% cost a d perso al vul era#ilit' to discrimi atio for the i dividuals This ca ot #e a satisfactor' result*

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'rovisions are all very similar raise the same constitutional issue and don%t depend on any particular factual contextso no need to wait for e&idence of di!cri)in tion in re ! other th n e)#$oy)ent

NOTES o further di)en!ion to the !t ndin* doctrine o Canadian 'gg 9arketing @gency v. (ichardson,2!33"5 $ 7C( !>4 *W/%. 6n delivering the )oi t ma)orit' )udgme t% laco#ucci a d >astarache JJ stated4 +here a case has !een fully argued on the merits then$ notwithstanding that in the general argument it may appear that the plaintiff has no status to maintain the action$ if the )uestion involved is one of pu!lic importance then the .ourt has a discretion to decide the case on the merits.

1arris v. Canada 2;:::5 & DC $4 C@% 6o clusio o Sta di g o A )ere $e* $ o#inion on inter#ret tion of !t tute/ 'ithout )ore/ 'ou$d (e in!ufficient for court to e0erci!e it! di!cretion to reco*ni>e #u($ic intere!t !t ndin*. NOTE o 6ourt also i dicates that% if the allegatio had merel' #ee that the mi ister had erred i law i his i terpretatio of the Act% the situatio would have #ee differe t* So a mere error of law ma' ot cou t for as much as assertio s of a#use of discretio * T,E RO.E O/ T,E ATTORNEA 5ENERA. 'nergy )robe v. Canada @tomic 'nergy Control Board% 2!3"&5;DC!$" /D% 2SS-E4 o The applica t% E erg' Pro#e% does ot o#)ect to the Attor e' 5e eral ma(i g argume ts to the 6ourt o the issues #ut co te ds that he should do so o l' as a amicus curiae* o The Attor e' 5e eral o the other ha d wa ts full part' statusso that he ca have rights to appeal REE0 J4 o Duty of A= i! to en!ure th t the d)ini!tr tion of #u($ic ff ir! i! in ccord nce 'ith $ '/ nd thi! in&o$&e! the ri*ht to r*ue either !ide of c !e: direct intere!t in c !e 2t is a 7questio of ge eral importa ce is raised7 si ce it is a co ti ui g #usi ess activit' ot )ust this i sta ce o Second$y the i!!ue (efore the Court i! one of *ener $ #u($ic i)#ort nce: (enefici $ to he r A=C! #er!#ecti&e 2NTER3ENORS 2 terve er has status to participate i litigatio to which the applica t has ot #ee amed as a part'* T'o for)! of inter&enor!" o (-) Inter&enor P rty:*i&en $$ the ri*ht! of the ori*in $ # rtie! to the $iti* tion/ inc$udin* the ri*ht to ##e $

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(5) Friend of the Court ( )icu! cur e):re!tricted to the $e&e$ of # rtici# tion !#ecified (y the court nd doe! not e0tend to conferrin* ##e $ ri*ht!. the curre t O tario Rules of 6ourt "Rules of Practice$4 o JO*RJ"J$ Where a perso who is ot a part' to a proceedi g claims a i terest i the su#)ect matter of the proceedi g% "a$ a i terest i the su#)ect matter of the proceedi g* "#$ that he or she ma' #e adversel' affected #' )udgme t i the proceedi g& or "c$ that there e;ists #etwee him or her a d o e or more of the parties to the proceedi g a questio of law or fact i commo with o e or more of the questio s i issue i the proceedi g% the perso ma' move for leave to i terve e as a added part'* o "M$ O the motio % the court shall co sider whether the i terve tio will u dul' dela' or pre)udice the determi atio of the rights of the parties to the proceedi g a d the court ma' add the perso as a part' to the proceedi g a d ma' ma(e such order as is )ust* &his is a iscretionary power of the court o Possi#le e;ceptio of i terve tio s #' the Attor e' ge eral o 0iscrectio regardi g status a d the e;te t of participator' rights% su#)ect to the limitatio s imposed #' the la guage of the releva t rules Try to &oid du#$ic tion/ or *r nt inter&enor !t tu! (ut on$y $$o'in* 'ritten r*u)ent nd no or $ r*u)ent =ener $$y inter&enor! re not $$o'ed to introduce ne' i!!ue! fter the fir!t $e&e$ deci!ion (7C):they ' nt fin $ity o 7ut ) y $$o' ne' i!!ue if it doe! not #re1udice nd on other con!ider tion! o

(i&) Inter$ocutory Re$ief nd St y!

2 troductio ;udici $ Re&ie' Procedure Act: ##$ie! in Ont rio/ (ut not to feder $ #rocedure! o Certior ri/ ) nd )u!/ nd h (eu! cor#u! o Ne' one! dded" to ) 9e dec$ r tion! nd in1unction! 6n ( v. Batchelor, 2!34"5 ; 7C( 3"" 8nt%, o service of a motion for prohi!ition and to )uash proceedings under the -ntario .riminal >ppeal :ules was to suspend the jurisdiction of the provincial court until review proceedings were disclosed or disposed of the provincial court o /atchelor is inapplica!le in civil matters !y caselaw The O tario SPPA% sectio MP"J$lau chi g of a appeal sta's the impleme tatio of the decisio u der appeal "a#se t a statutor' provisio to the co trar' or a order from the appellate #od'$* o ,owever% sectio MP"M$ sa's that a applicatio for )udicial review does ot qualif' as a appeal for these purposes* Applicatio to the )udge If the # rty need! re!u$t nd you c nCt *o throu*h th t #roce!!:!. P ! y! th t you c n ##$y to !in*$e 1ud*e ! ) tter of ur*ency Sta'i g the Admi istrative Process /or i terim relief% 6ourt applies the same test as i i )u ctio cases &o get an interim injunction (>merican .yanamide)

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(1)Ceed to show that there is a serious case to !e made (2)&hat the applicant see1ing injunction will suffer irrepara!le harm (")&he !alance of convenience favours granting the injunction (!w, applicant O respondent) Metro#o$it n !tore! confir)! th t thi! i! the te!t to ##$y in pu!lic cases with the addition of consideration of pu!lic interest. 6odificatio of writs u der JRPA% that these writs are still e;iste t of grou ds to refuse i )u ctio o 0ela'laches o 6o duct of the parties o 2f it is i co seque tial o o o

9anitoba @ttorney Aeneral% v. 9etropolitan 7tores 9/7% =td. 2!3"45 l7C(!!: 9an, >EETQ J4 >eetF J re)ected the argume t there should #e a presumptio of validit' for the purposes of i terlocutor' relief where a statutor' regime was #ei g challe ged for lac( of co formit' with the 6a adia 6harter of Rights a d /reedoms* The -sual 6o ditio s for the 5ra ti g of a Sta' >merican .yanamid .o. v. 3thicon 2tdK 3-QDI4 - A$$ ER IRH (En*. %8)" o (-)nece!! ry to )eet thi! te!t ' ! to ! ti!fy the Court th t there ' ! !eriou! +ue!tion to (e tried ! o##o!ed to fri&o$ou! or &e0 tiou! c$ i). o (5)?hether the $iti* nt 'ho !ee9! the inter$ocutory in1unction 'ou$d/ un$e!! the in1unction i! *r nted/ !uffer irre# r ($e h r)/ th t i! h r) not !u!ce#ti($e or difficu$t to (e co)#en! ted in d ) *e o (6)A7 $ nce of con&enienceB or A( $ nce of incon&enienceB:deter)in tion of 'hich of the t'o # rtie! 'i$$ !uffer the *re ter h r) fro) the *r ntin* or refu! $ of n inter$ocutory in1unction/ #endin* deci!ion on the )erit "M$ The >ala ce of 6o ve ie ce a d the Pu#lic 2 terest /OR A 6ONST2T-T2ONA. 6ASE "i$0ifficult' or 2mpossi#ilit' to 0ecide the 1erits at the 2 terlocutor' Stage o At the i terlocutor' stage% the court is ot i a adequate positio to decide the merits of a case eve though the evide ce that is li(el' to #e adduced u der s* J seems of little weight "ii$The 6o seque ces of 5ra ti g a Sta' i 6o stitutio al 6ases "iii$6o clusio o 9or !oth suspension cases and exemption constitutional cases an interlocutory stay of proceedings ought not !e granted unless the pu!lic interest is ta1en into consideration in the !alance of convenience and weighted together with the interest of private litigantsto a serious challenge of statute /his is so, even if there is a prima facie case against the law o Too hi*h !t nd rd in e0e)#tion c !e! to ! y th t it i! on$y in @e0ce#tion $@ or @r re@ circu)!t nce! th t the court! 'i$$ *r nt inter$ocutory in1uncti&e re$ief. o 7ut the !t nd rd ) y (e o9 y for !u!#en!ion c !e! NOTES (H(-9acDonald =td. v. Canada @ttorney Aeneral%, 2!33&5 ! 7C( $!! Fue.%, >* The Stre gth of the Plai tiff!s 6ase o E0ce#tion! to the ##$ic tion of the A)eric n Cy n )id te!t in Ch rter $iti* tion (-)'here the re!u$t of the inter$ocutory #roceedin*! 'ou$d effecti&e$y re!o$&e the ) tter in di!#ute nd

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(5)'here the +ue!tion of con!titution $ity #re!ented ! @!i)#$e +ue!tion of $ ' $one. o Refi i g the co cept of 7irrepara#le harm7 mea t i a pu#lic law setti g4 The fi a cial damage which will #e suffered #' a applica t followi g a refusal of relief% eve though capa#le of qua tificatio % co stitutes irrepara#le harm 1o etar' loss of this ature will ot usuall' amou t to irrepara#le harm i private law cases* J* The Pu#lic 2 terest o @Pu($ic intere!t@ inc$ude! (oth the concern! of !ociety *ener $$y nd the # rticu$ r intere!t! of identifi ($e *rou#!. o Whe a private applica t alleges that the pu#lic i terest is at ris( that harm must #e demo strated o If #u($ic uthority i! ch r*ed 'ith the duty of #ro)otin* or #rotectin* the #u($ic intere!t nd th t the i)#u*ned $e*i!$ tion/ re*u$ tion/ or cti&ity ' ! undert 9en #ur!u nt to th t re!#on!i(i$ity/ the court 'i$$ re di$y cce#t it! !t te)ent on 'hether #u($ic h r) i! de)on!tr ted. o 6o sideratio of the pu#lic i terest ma' also #e i flue ced #' other factors such as whether it is a 7suspe sio 7 case or a 7e;emptio 7 case* 7imilarly, even in suspension cases, a court may be able to provide some relief if it can sufficiently limit the scope of the applicantGs re.uest for relief so

('9'D6'7--@pplication to Areenfield exam F Applicatio of JRPA writs De$ y o 2f parties came M 'ears after the pro#lem% the the court would sa' that the'!re out of time #ecause of the writ of laches"dela'$facts stale% u fair No time limit% #ut ot allowed if it is u fair* I!!ue 'ou$d (e 'h t court! e0#ect i! re !on ($e ti)e Normal appeal provisio s are OR or BR da'sso 'ou ca argue that it is withi a reaso a#le ra ge Conduct o There ' ! !o)e underh ndedne!!:!ee %o)e0 c !e Inconse)uential o If the defect is a real defect !ut has minimal impact on the overall resultthen no remedy granted o +ill happen where there was a procedural fairness defect$ !ut court is confident that the result would !e the same. If it i! e&idence th t ' ! not he rdthe 'ou ca as( that it #e se t #ac( to the tri#u al to co duct the heari g i accorda ce with fair ess Beneral rule4 courts do not su!stitute their own opinion for that of the tri!unal o 3xception4 when there is only one possi!le outcome 1a' as( for ma damus% or prohi#itio which is what follows from old writs 6f it is bias, it is very important to ask for a different decision maker COSTS o ?innin* # rty i! entit$ed to co!t!:!u(!t nti $ nd # rti $ inde)nity o 7ut no co!t! if it i! no&e$ or te!t c !e o If it i! #u($ic intere!t c !e:u!u. the ! )e ru$e!:on occ !ion/ the court

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>ut the courts are aware of litigatio costs So the' are i cli ed to gra t them to a successful to a private litiga t% #ut ot gover me t"who do ot as( a 'wa's$

E<A1 A0326E-se the headi gs o outli e of what pri ciples we eed to ( ow* E;ample4 procedural fair ess8does it appl'what is the levelwhat is the co te tT EmphasiFe cases me tio ed i classdo !t have to go i to detail of the casesif the a other tri#u al has allowed appeal% the do !t eed to do a proced* test E<A1S /or the e;amshe wa ts to see the source a d the appropriate steps#ut ot a histor' of procedural fair ess if 'ou do !t ( ow somethi g #ecause of a lac( of factsthe Usa' that it is a h'pothetical*

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