Availability of Judicial Review

Four Remedies on Judicial Review:

1) Certiorari decision is quashed
2) Prohibition proceeding is arrested for the duration while there is lack of jurisdiction or
abuse of discretion
3) Mandamus compelled to perform a duty it is mandated to perform in a procedurally fiar
manner
4) Declaration used to declare some gobt action ultra vires
Four conditions for obtaining mandamus
1) A shows they have a clear right to ask ofr performance
2) The duty is due and incumbent on the official at the time the relief is sought
3) The duty must be purely ministrerial in nature, not discretionary
4) There must be a demand and a refusal to perform the act

1) Is JR an option?
Is the tribunal a public body?
o If the body in question is fulfilling a public law function, it is subject to JR. Consider:
source of powers, functions and duties of the body,

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extent of the government's direct or indirect control over the body,

power over the public at large,
nature of the body's members and how they are appointed and funded
nature of the board's decisions,
whether constituting documents or procedures indicate duty of fairness is owed,
relationship to other stat schemes such that the body is woven into the network of
government

Is the applicant a party to the action or do they have some collateral interest in the matter?
Is the source of the impugned authoritys power federal or provincial?
Has the limitation period expired?
Limitation period in BC is 60 days
Are there any other discretionary bases for refusing a remedy?
Application is premature the record before the court is inadequate
Applicant has delayed and acquiesced
The matter is moot
The applicant does not come with clean hands
In Homex, although the DoF was breached, the court refused Homex a rehearing with
procedural fairness b/c they did not come with clean hands.
Have all other adequate means of recourse for challenging the ts actions been exhausted?
Is there a statutory right of appeal?
In Harelkin, access to JR was denied b/c internal appeal to the Senate
was an option
If an alternative remedy exists, could it adequately resolve the grievance?

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Is it available as of right or is leave required?

What is the scope of the appeal?
De novo review or is it restricted to a particular issue?
What is the nature of the error
Conflicting interpretations b/n tribunals do not give rise to JR (Domtar)
A lack of unanimity is the price to pay for freedom and independence of AT
A board can remained seized of a matter until there has been actual compliance
(McKinnon)
What is the nature of the appellate body?
What is the capacity of the remedial body?
If breach of NJ, then statutory appeal is inadequate
If statutory interpretation, then appeal should suffice (Harelkin)
If alternative remedy would fail, proceed to JR

Procedural Fairness Judicial Review

1) Is the person entitled to procedural fairness in any respect?
o DoF applies to administrative decisions that affect the rights, interests, or privileges of an
individual (Nicholson)
o PF must yield to contrary legislation (Ocean Port)
o If the statute is silent on PF, the court will read PF in on the presumption that the legislature
intended to protect the CL DoF (Nicholson)
o PF does not apply to legislative or questions of a general nature (Tapirisat)
o PF does not apply to a body exercising purely legislative functions (Inuit Tapirisat, Re CAP)
b/c subject to political accountability UNLESS the policy decision has an immediate and
specific target (Homex)
o Procedural fairness does not affect outcomes, substance of decisions (CAP, Baker)
If the court decides PF was violated, the matter will be sent back to the tribunal for
reconsideration and they will be ordered to afford the proper procedural fairness.
o DoF does not apply to preliminary decisions unless they have do facto finality (Re Abel,
Singh)
o A right to PF can be postponed in the event of an emergency (Cardinal)
2) What procedural fairness are they entitled to?
o PF at a minimum requires:
1) A right to a hearing, oral or written
2) Before an impartial and independent arbitrator
3) Based on the facts and law
4) With knowledge of the case to meet and an opportunity to meet said case
o It may include one or more of the following:
1)
2)
3)
4)

Right to notice of a potential decision (Homex)

Right to disclosure of particulars (Dairy Producers Coop, Charkaoui)
Right to make written submissions (Nicholson, Baker)
Right to a hearing within a reasonable time (Blencoe)

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5) Right to an oral hearing (Baker, Singh)

6) Right to counsel (Christie)
7) Right to call and cross-examine witnesses (Irvine)
8) Right to written reasons for a decision (Baker, Dunsmuir, Khosa)
A failure to afford a fair hearing, the very essence of the DoF, always invalidates the decision
(Cardinal)

The concept of DoF is variable and its content must be decided in context (Baker)
o There are 5 non-exhaustive criteria to consider in determining the content in a particular
context
1) The nature of the decision
More Judicial (resembling bi-polar adjudication of interests) = more PF
Quasi-judicial proceedings attract notice requirements (Homex)
Discretionary = less PF (Baker)
Legislative or general in nature = no PF
Polycentric = less PF (Baker)
2) The nature of the statutory scheme
Preliminary decision = depends on degree of proximity to final decision
(Re Abel)
Non-determinative = no PF (Dairy Owners Coop)
Full PF at later stage offsets lack of PF at earlier stage (Irvine)
De facto finality = more PF (Re Abel, Singh)
Investigatory process = less PF
No appeal procedure = more PF (Baker)
Finality = more PF (Singh)
3) The importance of the decision the individual affected
Greater impact = more PF (Cardinal, Baker)
4) Whether the doctrine of legitimate expectation applies
Long-standing practice = LE of PF
Promise = LE of PF (Mount Sinai)
Commitment to International Conventions (Suresh)
Legislative body or capacity = no LE of PF
5) The DMs Choice of procedures
Greater discretion = less PF
Expertise in developing procedures = less PF
Institutional constraints = less PF
o The right to written reasons should not be underemphasized as resonas constitute the
primary form of accountability of the decision make to the applicant, the public, and to the
reviewing court (Khosa)
o Overarching concerns of safety and security can diminish fairness rights (Cardinal)
3) Is the right/interest impaired a POFJ contained in s. 7 of the Charter?
o The Charter overrules legislative intent (Singh)
o If life, liberty or security of the person are infringed, CL DoF is minimal requirement for PF

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Applies to anyone physically present in Canada whether or not they are a citizen (Singh)
Onus is on A to establish impairment of s. 7 rights
o

Liberty can be engaged both by physical restraint and by state compulsions or prohibitions
that affect important and fundamental life choices.

Liberty is not synonymous with unconstrained freedom.

Security of the person protects both physical and psychological integrity of the individual
o Ps psychological harm was not directly caused but was likely exacerbated by the
state-caused delay
o S.7 does not protect a generalized right of dignity.
o Some amount of stress and stigma must be accepted.
State-caused delays may still trigger s.7 rights

If seeking convention refugee status, A must make out a prima facie case of a risk of torture
If procedural requirements are met, applicant can be deported (Suresh)
o PF is reduced in sitiatons of national security or where safety is a concern (Charkaoui,
Cardinal)
o Requires disclosure, subject to privilege and the interest of national security (Suresh)
o Substitutions for full discosure may be permitted if prove adequate (Charkaoui)
o Requires notice and an opportunity to respond to the facts upon which DM intends to rely
(Suresh)
o Final decision cannot be based on any material outside the record (Singh)
o Sometimes include a right to legal counsel (Christie)
o An oral hearing is required where credibility is an issue (Singh)
o Includes duty to give responsive written reasons (Suresh)
4) Did the applicant get an adequate level of PF?
o Apply the Baker factors to the facts
5) Is there a breach of independence or impartiality?
o The principles of natural justice are encapsulated in two central ideas:
Dm should neither judge their own cause nor have interest in outcome of a case
before them
DM must hear and listen to both sides before making a decision
o Impartiality connotes absence of bias, actual or perceived
o Independence, the ability to decide matters free from inappropriate interference or influence,
is a means of achieving impartiality
o ATs do not attract constitutionally guarantees of independence as the judiciary does (Ocean
Port)
The judiciarys independence is meant to protect it from interference from the
executive
o The intention of the legislature dictates the degree of independence required of a particular
b/t
o To ascertain Ls intention, must examine the statute as a whole in particular, the nature,
purpose and practice of the AT in question
o at pleasure appointments may prove sufficient depending on the enabling statute

Full board meetings are practical means of calling onteh cumulative experience of BMs and
encouraging coherence in decisions that have important policy implications (ConsolidatedBathurst)
To ensure independce in FBMs:
DMs cannot be forced or induced to adopt positions w/ which they do not agree
Discussions must be limited to law or policy and not factual issues

Parties must be given reasonable opportunity to respond to any new ground arising from
meeting
Consultation processes must be voluntary (requested) and not made compulsory by the
institution
Plenary meetings should not be aimed at reaching a consensus
The ultimate decision must be that of the DM alone with no participation from others
o The duty to act fairly and in a manner that does not give rise to reasonable apprehension of bias applies
to everyone who plays a significant role in the process (both the reviewing officers and the Minister)
o The standard for bias varies depending on context the nature and context of the DMing process
drives the content of procedural fairness, including what will constitute impartiality (Baker)
o A real likelihood or probability of bias should be demonstrated, mere suspicion of bias is insufficient
o 2-part test for apprehension of bias:
o Having regard to a number of factors including but not limited to the potential for conflict b/n
the interests of BMs and those of the parties who appear before them, will there be a
reasonable apprehension of bias in the mind of a fully informed person in a substantial
number of cases?
If the answer to that question is no, allegations of an apprehension of bias cannot be
brought on an institutional level, but must be dealt with on a case-by-case basis
o Would RP, who was reasonably informed of the facts and had thought the matter through in a
practical manner, conclude on a BOP that the decision was not impartial?
6) Has the matter been subject to unreasonable undue delay?
o Delay alone will not warrant a stay of proceedings as an abuse of process (Blencoe)
o To be deemed an abuse of process, the undue delay must be clearly unacceptable, have directly caused
significant prejudice or been so oppressive as to taint the proceedings.
o Determination of whether a delay is inordinate is not based on length of the delay alone but on
contextual factors including the nature of the rights at stake, the complexity of the proceedings,
allocation of responsibility for delay, similar cases etc
o 3 main factors to be balanced in assessing unreasonable delay:
1) time taken vs. inherent time requirements,
2) causes of the delay, and
3) impact of delay on all parties
o The threshold for unreasonable delay is not so high that the only remedy is a stay of proceedings.

Substantive Review under Admin Law

1) Does the ATA apply?
2) If no, has jurisprudence already determined in a satisfactory manner the degree of defence to be accorded
w/ regard to a particular category of question? (Dunsmuir)
o Non-unionized public office holders are now exclusively dealt with under private contract law
(Dunsmuir)

3) If no, conduct the standard of review analysis in order to determine the level of defence owed to the DM
which will dictate the standard of review to be applied to the decision
o Determining the standard of review is an exercise in discerning legislative intent (Pushpanathan)
o The question is whether the legislator intended the court to defer to the b/t w/ respect to the
disputed issue
o Jurisdictional questions do not have to be determined at the outset they can arise at any point
(Bibeault)
o Determining legislative intent requires a weighing of several different factors, each of which is
indicative of a level of defence to be shown but none of which are dispositive of the matter
(Pushpanathan)
1) Presence or absence of a privative clause:
o Sets the rule of law and the doctrine of parliamentary supremacy against one another
Rule of Law: demands that admin agencies must at all costs be prevented from being sole
judges of the validity of their own acts
Parliamentary Supremacy: the legislator enacts the law, and the court must interpret and
apply the law in accordance with the legislators intent
o PCs vary in wording but will generally include:
1) grant of exclusive jurisdiction over the subject matter
2) declaration of finality with respect to the outcome, and
3) a prohibition on any court proceedings to set the outcome aside
o Full PC = deference
o Partial or equivocal PC = neutral
o absence of PC = neutral
o an unfettered right of appeal = no deference
2) Expertise of the tribunal
o Most important factor expertise outweighs PC
o Even where no PC and a statutory right of appeal, the concept of specialization requires deference
be shown on matters which fall squarely w/in their expertise (Pezim)
o 3 step evaluation by the courts:
1. Characterize the expertise of the tribunal
2. Consider its own expertise relative to the tribunal
3. Identify the nature of the specific issue relative to this expertise (Pushpanathan)
o Broad relative expertise = considerable deference even in cases of highly generalized statutory
interpretation (Southam, Corn Growers)
o Statutory criteria for appointment and specialized knowledge of the members is important
(Pushpanathan)
o Evidence of expertise comes from the statute and the context, not from the qualifications,
competence, training or experience of the individual DM (Pushpanathan)
o A preponderance of lay members reflects legslatures belief that specialization is moer desireable
than legal acumen (Southam)
3) Purpose fo the statue as a whole and the provision in particular
o Purpose and expertise often overlap.
o The purpose as are the special qualifications of its members is often indicated by the specialized
nature of the legislative structure and the need for expertise (Pushpanathan)
o Determine whether the purpose od the act better served by deference to the DMs decision
o Whether the AT is especially well-suited to the task of overssing the statutory scheme

More deference is warranted if the statute can be described as:

1) polycentric (engages a balancing of multiple interests, constituencies and factors),
2) containing a significant policy element (legislative), and
3) articulating the legal standards in vague or open-textured language (general in nature)
4) Nature of the problem
o Disputes that more closely resemble bipolar model of opposition = less deference
o Charter or Constitution = no deference = correctness always
o Questions of Jurisdiction = no deference
o Pure questions of law = no deference
That the tribunal must weigh certain facts is a question of law = no deference (Southam)
o General questions of law with precedential value = no deference
o Questions that do not require expertise = less deference
Labour boards, human rights tribunals and commissions = minimal deference
o Question of law w/in tribunals expertise = deference
o Questions of mixed fact and law = neutral
o Within jurisdiction = deference
o Questions of fact = deference
o How the tribunal weighs the facts is a matter of discretion = deference (Southam)
o The more particular a decision = question of fact = deference (Southam)
4) On the basis of the degree of deference that must be shown, determine the standard of review:
1) Does the degree of deference weigh in favour of Correctness?
No deference is shown to reasoning process and court will undertake a de novo analysis
Must be maintained in respect of jurisdictional and some other questions of law
A question that goes to jurisdiction is simply descriptive of a provisio for which the proper
standard of review is correctness and no deference will be shown (Pushpanathan)
If court would have decided otherwise, it can substitute its own view, the correct answer
(Dunsmuir)
2) Or does the degree of deference weigh in favour of Reasonableness?
Deferential standard based on the principle that certain questions that come before ATs do
not lend themselves to one specific result and may give rise to a number of possible,
reasonable conclusions
Concerned with the existence of justification, transparency, and intelligibility within the
DMing process and whether the decision falls within a range of possible acceptable
outcomes which are defensible in respect of facts and law (Dunsmuir)
Recognizes AT expertise and does not pave the way for a more intrusive review not
submission but a respectful attention to the reasons offered (Dunsmuir)
Court should not engage in de novo analysis (Ryan)
Must stay close to the reasons given and assess wehtehr they adequately support het
decision (Ryan)
An unreasonable decision is one that is not supported by any reasons that can stand up to a
somewhat probing examination (Southam)
If appropriate standard is reaosnbleness simpliciter, court must not interfere unless the party
seeking review has positively shown that he decision was unreasonable (Ryan)
Reasonableness requires deferential self-discipline a court will often be forced to accept a
decision as reasonable even if it is unlikely that it would have decided the same way (Ryan)