ADMINISTRATIVE LAW

Kristina Gallo
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Contents
INTRODUCTION ....................................................................................................................................................................... 4
Introduction-Course Overview and Concepts ..................................................................................................................... 4
Reading Notes-Introduction................................................................................................................................................ 6
Baker v Canada.................................................................................................................................................................. 13
The Rule of Law ................................................................................................................................................................. 24
A Constitutional Basis for Judicial Review [Crevier].......................................................................................................... 29
Crevier v AG (Qc), [1981] 2 SCR 220 ............................................................................................................................. 31
Remedies........................................................................................................................................................................... 34
Harelkin v Univ of Regina (1979)................................................................................................................................... 40
Howe v Institute of Chartered Accountants (1994) ...................................................................................................... 42
Homex Realty v Wyoming, 1980 ................................................................................................................................... 43
Mining Watch, 2010 SCC ............................................................................................................................................... 44
Scope of Judicial ReviewWhat is Public Enough? ......................................................................................................... 45
Volker Stevin NWT (‘92) Ltd v NWT .............................................................................................................................. 46
Air Canada v Toronto Port Authority ............................................................................................................................ 47
PROCEDURAL FAIRNESS: DUTY OF FAIRNESS ....................................................................................................................... 49
The Duty of Fairness.......................................................................................................................................................... 49
Copper v Board Works for Wandsworth District, 1863 ................................................................................................ 50
Nicholson v Norfork Police Commissioners, 1979 ........................................................................................................ 51
Cardinal ......................................................................................................................................................................... 53
Knight v Indian Head School Division, 1990 .................................................................................................................. 53
Dunsmuir v New Brunswick, 2008 ................................................................................................................................ 56
Administrative Tribunal Act, SBC 2004, c 45 (ATA) ....................................................................................................... 59
Threshold Test................................................................................................................................................................... 60
Inuit Tapirisat (1980, SCC) ............................................................................................................................................. 62
Courtoreille v Canada.................................................................................................................................................... 64
Canadian Doctors for Refugee Care v Canada (AG), (2014, FC) .................................................................................... 65
Homex Realty v Wyoming (Village) (1980) ................................................................................................................... 65
Re Abel and Advisory Board (1979, ONCA) ................................................................................................................... 67
Legitimate Expectations .................................................................................................................................................... 69
Reference re Canadian Assistance Plan (BC), 1991....................................................................................................... 70
Apotex, [2000] 4 FCR 264 (CA) ...................................................................................................................................... 71
Canada v Mavi, 2011 ..................................................................................................................................................... 72
Agraira (2013, SCC) ....................................................................................................................................................... 73
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Mt Sinai Hospital Center v QC, 2001, SCC ..................................................................................................................... 74

PROCEDURAL FAIRNESS: HEARING RIGHTS .......................................................................................................................... 76
Introduction-Content of the Duty ..................................................................................................................................... 76
Particular Hearing Rights .................................................................................................................................................. 80
Krever Inquiry, 1997 SCC............................................................................................................................................... 80
Mission Institution v Khela (2014, SCC) ........................................................................................................................ 84
Canada v Mavi, 2011 ..................................................................................................................................................... 85
Masters v Ontario, 1994 ............................................................................................................................................... 87
Khan v Univ of Ontario, 1997 ONCA ............................................................................................................................. 88
Innisfil Township v Vespra Township, 1981 SCC ........................................................................................................... 90
Djakovic v BC (Workers’ Comp), 2010 BCSC ................................................................................................................. 91
Nfld & Labrador Nurses Union (2011)........................................................................................................................... 94
Wall v Independent Policy Review Director, 2013 ........................................................................................................ 96
# Manitoba Ltd London Limos v Unicity Taxi Ltd et al., 2012 MBCA ............................................................................ 98
Constitutional Sources of Procedural Rights..................................................................................................................... 99
Singh v Canada (Minister of Employment and Immigration), 1985 SCC ..................................................................... 101
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC...................................................................... 104
Charkaoui v Canada (Citizenship and Immigration), 2007 SCC [#1] ........................................................................... 106
Charkaoui v Canada (Citizenship and Immigration), 2008 SCC [#2] ........................................................................... 108
Canada (Citizenship and Immigration) v Harkat, 2014 SCC ........................................................................................ 110
Blencoe v British Columbia (Human Rights Commission), 2000 SCC .......................................................................... 112
S. 35 procedural rights – the Duty to consult and accommodate (DTC&A) ................................................................... 116
PROCEDURAL FAIRNESS-INDEPENDENCE AND IMPARTIALITY ........................................................................................... 122
Bias: principles and variation of the standard in administrative contexts ..................................................................... 123
Pelletier v Canada (AG), 2008 FC ................................................................................................................................ 126
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), 1992 SCC .................. 129
Old Boniface Residents Assn Inc v Winnipeg City, 1990 SCC ...................................................................................... 131
Save Richmond Farmland Society v Richmond (Township), 1990 SCC ....................................................................... 132
Brosseau v Alberta Securities Commission, 1989 SCC ................................................................................................ 133
Institutional Independence: adjudicative contexts [Tribunal Independence]................................................................ 135
2747-3174 Quebec Inc v Quebec (Regie des permis d’lcool), 1996 SCC .................................................................... 135
Ocean Port Hotel Ltd. v BC (General Manager, Liquor Control and Licensing Branch), 2001 SCC ............................. 138
Keen v. Canada (Attorney General), 2009 FC.............................................................................................................. 140
Statutory Provisions .................................................................................................................................................... 143
Institutional decision making .......................................................................................................................................... 145
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International Woodworkers of American Local 2-69 v Consolidated-Bathurst Packaging ltd., 1983 ........................ 150
Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FC ........................................................... 154
SUBSTANTIVE REVIEW ........................................................................................................................................................ 157
Standard of Review Analysis ........................................................................................................................................... 159
Dunsmuir v New Brunswick, 2008 SCC ....................................................................................................................... 160
Privative Clauses and Statutory Rights of Appeal ........................................................................................................... 166
Canada (Citizenship and Immigration) v. Khosa 2009 SCC ......................................................................................... 169
Expertise and Statutory Purpose .................................................................................................................................... 172
Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 SCC ........................................................ 173
Bell Canada v Bell Aliant Regional Communications, 2009 SCC.................................................................................. 174
The Nature of the Question ............................................................................................................................................ 177
Alberta (Information of Privacy Commissioner) v Alberta Teachers Association, 2011 SCC ...................................... 178
CUPE v NB Liquor Corporation, 1979 SCC ................................................................................................................... 180
Workers Compensation Art (Re) and O’Donnell, 2008 YKCA ..................................................................................... 185
Edmonton East, 2016 SCC ........................................................................................................................................... 187
Correctness ................................................................................................................................................................. 189
Reasonableness........................................................................................................................................................... 190
Charter Rights and Discretionary Decisions ................................................................................................................ 202
Statutory Standards of Review ................................................................................................................................... 211
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INTRODUCTION
Introduction-Course Overview and Concepts

Course Overview
1. Introductory concepts, themes
2. Remedies – why go to tribunals, why go to courts to try to undo what tribunals do, scope of remedies at courts, and
more about tribunals
3. Grounds for judicial review – procedural fairness (and more about tribunals, includes some constitutional issues)
4. Grounds for judicial review – substantive review (includes some constitutional issues)
5. Tribunal jurisdiction over constitutional issues

Course Themes
LAW-POLICY
Which institutions of government are associated with law? What are the mechanisms of accountability/constraint for those
institutions? Which institutions of government are associated with policy? And what are the mechanisms of
accountability/constraint for those?
And where do administrative agencies fit in?
What happens if our ideas of law and policy are less separable?

Formalist/traditional view of the separation of powers:

Legislatures
“to decide upon and Courts
enunciate policy” “to interpret and
apply the law”
Executive
“to administer and
implement that policy”

Ocean Port – administrative tribunals “span the constitutional divide between the judiciary and the executive” but are
ultimately part of the executive, under the mandate of the legislature (at para. 32).
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Legislatures
“to decide upon Courts
and enunciate “to interpret and
apply the law”
Executive
“to administer and

Independent
Administrative
Agencies

Language Concepts
Going forward, these words and concepts will be important:
 Judicial Review
 Superior Courts (vs Inferior)
 Inherent jurisdiction (of superior courts – p.21)
 Privative (or preclusive) clauses
o Legislative messages to the courts to ‘butt out’, to limit their review of decisions that legislators have
delegated to administrative bodies.
o Can vary in strength – allowing courts to review on some issues, or attempting to stop courts from
reviewing at all
o BUT it is not constitutionally permissible to completely block review by superior courts: Crevier (next
week) – legislatures cannot oust review by superior courts for jurisdiction.
 Jurisdiction
o A decision-maker’s area of proper authority or power. Most administrative actors have their jurisdiction
defined by statute. Identifying their area of proper authority or power is therefore a matter of statutory
interpretation.
o Much of the history of judicial review (of administrative decision-makers) is about courts interpreting the
scope of a given DM’s authority.
 Procedural fairness, procedural review
o How decisions are made
o Closely related to “natural justice” – procedural principles of common law courts (we’ll come back to
this…
o Two main principles:
 audi alteram partem – decision-makers should “hear the other side” in a dispute before deciding
 nemo judex in sua causa – no one should be a judge in their own cause
 Substantive review
o Review of the decision itself (the substance or merits of the decision)
o Filtered through standards of review
 Deference
 Discretion
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Reading Notes-Introduction
The Administrative State: Delivering Public Programs
 There is a range of public programs implemented by administrative agencies, the kinds of institutions through
which the programs are delivered and the tools typically available to enable administrators to discharge their
mandates
 Much of the subject matter of administrative law is the law governing the implementation of public programs
o Particularly at the point o deliver where are the likely to have the most immediate impact on the rights
and lives of individuals
 Most of these programs are administered under the authority of statute, enacted by either the parliament of Canada
or provincial legislatures
 Programs originate in the identification of government of a problem created by or not adequately addressed by the
operation of the market or private law (often stemming from inequalities of power)
 Once the problem is identified (often as a result of political lobbying and other forms of public pressure)
government may respond in a way of ways:
1. They may decide to do nothing
2. They can deal with it through existing legal tools and institutions (example: criminal law or taxation)
3. They can create a new legal framework administered by some agency other than the courts of law,
designated for specifically for this purpose
 This third option is the primary realm of administrative law
The Subject Matter of Public Administration
 Administrative law is a branch of public law
 It plays a role in a wide variety of specialized areas, including:
o Employment
The employment relations are extensively regulated by statutory programs. For example: employees have
a right to be represented by a trade union of their choice, statues typically prescribe some basic employee
entitled that are of particular importance to those who are not covered by a collective agreement,
employees and applicants for employment also have a statutory right to not be discriminated against
(based on such grounds as sex, race, nationality, ethnic origin, colour, religion, sexual orientation, age or
disability)
o Regulated Industries
Rapid industrialization and urbanization of the 19th century proved the market incapable of ensuring
certain public goods, as a result the operation of some industries is subject to extensive statutory
regulation. For example many utility companies are required to get consent before they increase the tariff
they charge to consumers, broadcasters are required to ensure an allocation and use of the airways that
serves public interest in developing a national cultural identity, to sustain availability the exploitation of
natural resources (renewable and non-renewable) is also heavily regulated, all forms of commercial
transportation, production of foods, the supply of drinking water and the pharmaceutical industry,
financial institutions are also subject to statutory controls.
o Economic Activities
The state regulates important aspects of economic activity regardless of the industry or business in which
is occurs. For example: mergers and takeovers of scrutinized for the possibility of adverse impacts on
competition.
o Professions and Trades
The members of most professions enjoy a statutory monopoly to render the services associated with that
profession (example: Law) or ot use a particular professional designation. Members typically have to
satisfy prescribed education standards and sometimes good character requirements, once granted a license
they are subject to discipline by their governing body. Regulatory schemes also apply to trades and
vocations.
o Social Control
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Some public programs restrict individual’s freedom of movement (example incarceration or incarceration
of the mentally ill)
o Human Rights
Public awareness and debate about social dimensions of discrimination had led to the enactment of
statutory schemes for the protection of human rights. Unlike the equality rights in the Charter, human
rights statutory schemes apply to the activities of private individuals and corporations as well as
government.
o Income Support
The provisions of income support remain an important aspect of the Canadian state, although these
programs are increasingly questioned and reduced. Example: injured worker’s compensation,
employment linked pensions and employment insurance.
o Public Services
Government also delivers or pays for a range of services. Example: health care, education, child welfare,
road construction and maintenance, police forces, garbage collection, public transportation. Nearly every
public service is delivered under statutory authority.
Institutions of the Administrative State
 Legislatures
o The legislature is in principle the leading public forum where the most important political decisions taken
in the name of the electorate are explained, debated and potentially approved
o From a legal point of view nearly all public programs must originate with a statute enacted by the
provincial/federal legislature in order to create new legal rights and duties
o The legislature will have a rule in the subsequent administration of a program
 Cabinet and Ministers
o Typically, the cabinet is made up of various ministers and is chaired by the prime minister or premier who
assigns ministerial responsibilities
o A minister generally has responsibility for a department (federal) or ministry (provincial) that is normally
established by statute
o The cabinet or individual ministers may be empowered to supplement a statute with delegated legislation,
they may also exercise discretionary powers that directly affect the individual (example: under the
Immigration Protection Act the minister may allow a person to enter Canada even if they are not
otherwise eligible)
o The minister within whose mandate the agency operates will normally be responsible for appointing the
members of the agency, they will also report to the legislature on the operation of the program and answer
questions from members of the house
o By its control of strategic policies and the allocation of funds the cabinet may play a decisive role in
determining the shape and scope of public programs
 Municipalities
o Municipalities exercise power that is delegated to them by the provincial legislature
o Many of the programs that affect people are administered at the local level of government
 Crown Corporations
o Some public services are provided through crown corporations which enjoy substantial independence in
their day to day operations
o The purpose of this independence is to enable them to make commercial decisions without government
interference
 However, through the powers of purse and other means, including the appointment of members of
the board the government can exert considerable influence.
o Examples: CBC, Canada Post
 Private Bodies and Public Functions
o An important array of nominally private bodies are found in the boarderland between government and
private sector
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oSome derive their legal authority from contract, yet by the virtue of the control they exercise over
particular activities and the nature of the functions they perform, private bodies may resemble the
administrative agencies that otherwise discharge governmental functions
o Examples: governing bodies of may sports, self governing teaching and research institutions, universities
 Independent Administrative Agencies
o These are the most distinctive institutions of the administrative state, many emerged after WW2 with the
rapid expansion of the responsibilities assumed by the government.
o Similarities Between the Different Administrative Agencies
 The independent agencies that are most frequently encountered in administrative law share at
least 4 features:
1. They enjoy a measure of independence from the government department with overall
responsibility for the policy area in which they operate
 A few statutes enable the cabinet to influence the making of agency decisions, either by
issuing a policy guideline that the agency must consider or on appeal , by reversing,
varying, or remitting a decision of the agency
2. Those who are liable to be affected by a decision are given an opportunity to participate in the
decision making process by producing evidence and making submissions
 Administrative hearings may vary greatly
3. Independent agencies typically operate at the ‘sharp end’ of the administrative process (that is the
point when a program is applied to the individual)
 Some agencies also operate at the level of policy making and hold hearings to allow those
who are interested to participate in the formulation of policy, that will guide the agency
when deciding individual cases
4. All administrative agencies are specialized
 They deliver a particular program or part of one, courts of law in contrast decide cases
across a much broader spectrum
o Difference Found Among Administrative Agencies
 It is more challenging to capture the generic differences among agencies
 Decisions made by agencies are found of a continuum; at one end are agencies that determine
individual rights based on past events or facts, a relatively precise statutory standard and a limited
degree of discretion that is exercised in the particular circumstances of the case; other agencies
have much larger policy making mandates and are guided more by their broader understanding of
the public interest than by the impact of the decision on the individual or small group of
individuals
 Some agencies resemble courts in their structure, others employ a large staff to provide expert
economic financial policy or legal analysis in policy development
 Some agencies have a massive caseload; others devote most of their time to one or two large
decisions
 They may also vary greatly in the place they occupy in the overall decision making process
 Some only make recommendations to a body with final decision making power
 Some make the first and final determination of individuals legal rights
 The effect of their decisions of individuals can also be very different, sometimes it can devastate
the life of the person concerned, others have a less serious impact
 Membership of agencies also caries widely, some serve on a full time basis for a set term others
only hear particular disputes
o Administrative agencies occupy a unique position based on their unique strengths, relative to courts, they
have one food in the world of government and the other in the world of law and judiciary
o Agencies are part of the government in that they are responsible for advancing the public interest by
implementing the programs they administer
o Independent Agencies or Government Departments?
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 Independent agencies have certain advantages over government departments as makers of

administrative decisions
 They are insulated from the day to day pressures of politics, thus it is easier for agencies to
maintain an open process and develop long term consistent policies
o Independent agencies or courts?
 Who should resolve disputes that arise from the implementation of a public program? The main
reason for assigning this role to an independent agency rather than a court is:
1. The nature of decisions make by agencies are far more governmental then judicial
 Sometimes the judicial process is just not apt for making multifaceted decisions of this
kind (aka about things like quotas to import chickens)
2. In some cases, it may be more desirable that decisions be made by persons no judges
 Experience and expertise in areas beyond the law may be requires, as well as an approach
to the issue that is more sympathetic with the aims of the program than that which is
often displayed by judges
3. Many of the disputes involve relatively small sums, so processing them thought the courts would
be a misallocation of public resources
4. A more informal process may enable more expeditious decisions and reduce the need for legal
representation
Administrative Tools
 Public officials and institutions typically have available a wide range of tools with which to deliver the public
program for which they are responsible, in contrast courts of law discharge with mandate solely through the
adjudication of cases brought before them
 For many administrative agencies, adjudication is an important tool but these functions are only one part of its
overall mandate

Political and Administrative Redress of Individual Grievances

 Law assumes particular importance in public administration when things have gone wrong (at least in the eyes of
those affected by the decisions made in the course of implementing a public program)
 Lawyers are often involved in the design of an institutional arrangement for the investigation and review of
administrative action about which there is a complaint
 The focus is thus on the role of the courts in reviewing administrative agencies and on the remedies that a court
may award when a decision maker is found to have acted unlawfully
 This focus is important because some of the most complex aspects of administrative law arise in the narrow
context of judicial review
 But the focus on judicial review can be misleading because most government decisions are never subject to
litigation
Legislative Oversight of the Administrative Process
 Involvement of the legislatures with public programs does not end with the enactment of the enabling statute, but
legislative oversight is inadequate for investigating complaints from the individual about decisions made in the
course of implementing public programs
 Therefore, every provinces has an officer of the legislature called the ombudsperson
o They are empowered to investigate action taken in the administration of a government organization that
affects individuals
o They have the power to obtain information in connection with the investigation, which is conducted in
private
o To set the investigation process in motion the complainant merely has to file a complaint
o They can consider a wide range of possible erros that might have been committed in the delivery of the
public program
o If they conclude that something went awry the organization with be asked to provide a remedy (could be a
simple apology or revision of operation policy etc)
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o If the recommendation is not acted on they may then report the matter to the relevant committee of the
legislature
o Keep in mind that their conclusions are NOT legally binding, any remedy is ultimately only enforceable
through political pressure and public opinion
Administrative Remedies
 Administrative agencies invariably have internal mechanisms for dealing with citizens grievances
 It may simply be a matter of asking the person who made the decision to revisit it or speak with a more senior
member of the agency, or sometimes there are formal levels of appeal
 Unlike courts, independent administrative agencies often have an express statutory power to reconsider their
decisions
 If none of these provide a satisfactory solution then the complainant may need to consider taking the matter to an
outside body that is independent of the original decisions maker, in more jurisdiction this will be the regular
courts

Courts and Administrative Agencies

 Public law litigation is generally a remedy of last resort
 The cost of taking the administration to court is high and the prospect of success is low
Principle Ways in Which a Court May Be Required to Resolve a Dispute (between Individual and
administrative institution)
1. Original Jurisdiction
 The legislature may not have established a mechanism specifically for the purposes of challenging an
administrative decision, in which case a person may take her claim against the government directly to
court
 Also persons claiming that a governmental body has violated a charter right may seek a remedy directly
from a court under s 24 of the charter
 It is also possible to proceed directly to court when an administrative action has infringed the individual’s
private legal rights by constituting a tort, breach of contract or some other wrong for which an award of
damages may be made of specific relief granted
2. Appeals
 Since the early 1970’s statutory rights of appeal to the courts from administrative decisions have become
a familiar feature of schemes established to deliver public programs
 Such rights come in different from, the most generous allow an appeal of a question of law, fact and
discretion and authorize the appellate court to substitute its opinions for that of the agency; other may
limit the appeal
 If the court concludes that the agency erred, it may refer to matter back to the agency or reverse the
decision and find in favor of the appellant
 An appellant court may be prepared to show deference to the agency’s conclusions, including on
questions of law
3. Courts Inherent Judicial Review Jurisdiction
 In the absence of a statutory right of appeal to the courts the superior courts of the provinces nevertheless
retain a supervisory jurisdiction over the institutions and officials that administer our public programs
 The superior courts inherited this supervisory jurisdiction from the English royal courts of justice
 Since 1970 the federal court and federal court of appeal (which are statutory courts rather than
supervisory courts with inherent jurisdiction under the common law) have exercised virtually exclusive
jurisdiction over general administrative agencies
Judicial Remedies of Administrative Law
 The court exercised their supervisory jurisdiction under the common law through remedies that were available
only in respect of public duties and powersthey were known as prerogative writs
 Three have been particularly important in the development of administrative law:
o Certiorari: used to quash or set aside decisions
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o Prohibition: used to order a tribunal not to proceed in a matter

o Mandamus: Is used to order the performance of a public duty
 There is a fourth one (Habeas corpus: issues to determine a person the legality of a person’s detention) but this
has a specialized nature and stands outside the mainstream administrative law
 Historically the three mentioned above were used to ensure that bodies with limited legal powers did not exceed
those powers at the potential expense of the power of central government
 These prerogative powers are granted at the discretion of the court
Grounds for Review
 When the legislature has not provided a statutory right of appeal there are four principal grounds of judicial
review in contemporary law
1. Procedural Impropriety
 Before taking action that may adversely impact the interest of individual, administrators generally
have a legal duty to act in a way that is procedurally fair
 This typically requires them to give prior notice and a reasonable opportunity to respond to those
likely effected
 Impartiality in the decision maker is also an attribute of procedural fairness
 Much of the law defining administrative action that is subject4ed to the duty to be fair and the
precise content of that duty has been developed by judges as a matter of common law
 Legislatures may also prescribe the procedures to be followed by a particular agency, or groups of
agencies in making decisions
 An agency that indicates that it does not intend to comply with the duty of fairness or of the
statutory required procedure may be prohibited from proceedings to a decision or be order to
proceed according to the proper procedure (commonly an applicant will ask the court to quash a
decision that was made in breach of a procedural duty)
2. Illegality
 Administrative action that has not legal validity is not authorized by law
3. Unreasonableness
 Administrators also have a duty not to exercise their powers unreasonably
 This duty has emerged rather recently as a general principle of judicial review
 There must be some evidence to support a material finding of fact on which an agency basis its
decision
 An administrative agencies interpretation of ambiguous language in its enabling legislation must
be reasonable
 Lack of reasonableness is grounds of review of the exercise of many discretionary powers
conferred on public authorities
 When administrative action infringes a charter right it may be justified under section 1 as a
reasonable limit prescribed by law
4. Unconstitutionality
 The constitution is an important element of the legal framework within which administrative
agencies deliver public programs
 Relationship Between Administrative Law and Constitutional Law
 Regardless of whether it is authorized by statute, administrative law action may always
be impugned in court on the ground that is breaches a provision of the constitution (an
administrative agency cannot do what a legislature lacks the constitutional competency to
authorize)
 Both constitutional and administrative law are branches of public law and their concerns
overlap
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Administrative Tribunals and the Courts: An Evolutionary RelationshipSCC Beverley McLachlin

 how to maintain the rule of law when most legal decisions are not made by legislatures, the executive or the
courts – the traditional branches of governance – but by a host of administrative tribunals exercising delegated
executive power. The rule of law requires that all official power be exercised within the framework of the law –
fairly, reasonably and in accordance with the powers duly conferred on the body exercising them. The challenge
is ensuring this in the modern regulatory state.
 The Backdrop: Transition from the Traditional Model to the Modern Regulatory State
o On the traditional model of governance, Parliament and the legislatures pass laws. The executive
implements and enforces these laws. The courts, for their part, interpret and apply the laws Parliament
and the legislatures passed in the course of adjudicating a particular dispute
 Under this traditional model, the executive played a relatively modest role. Its functions were
exercised by Ministers and their immediate delegates.
o In this new model, which began to emerge over a century ago, the legislatures did not content themselves
with passing laws that told people what they must do or not do. Instead, governments began setting up
administrative frameworks designed to govern a particular area of human activity. The result was the
birth of the modern regulatory state.
 typical administrative scheme, as it came to be called, set out the legislature's basic objects and
provisions in a general statute. But unlike the traditional model, most of the heavy lifting was
now done by regulations, adopted by the executive branch of government under orders-in-
council.
 inevitably, always, there was a tribunal – a body of people appointed by the government on a
permanent, semi-permanent or ad hoc basis to decide issues arising under the scheme between
citizens and the state, and sometimes between citizens and citizens.  The result was a dramatic
shift in who did society's judging.
 Legislatures could not remove the constitutional power of the courts. But they proved that they
could shift much of their work to administrative tribunals
 The move to administrative governance in a host of areas gained momentum in the last half of the
20th century. Now, in the beginning of the 21st century, literally thousands of administrative
systems occupy the legal landscape.
o Tribunals provide specialized and technical resolutions in different situations, ensure greater innovation,
flexibility and efficiency in the delivery of governmental programs and strategies, and provide an
informal and rapid forum for public hearings, thereby minimizing time and costs related to litigation
before ordinary courts
 Yet the rise of administrative tribunals posed a problem. How could we have all the benefits of
tribunal justice, and still maintain the rule of law? courts took on the task of ensuring that
administrative tribunals remain true to their fundamental mandates, both procedurally and
substantively
o The courts in the first half of the 20th century developed two modes of control to ensure the rule of law
was preserved. They enunciated principles of natural justice to assure procedural fairness: the right to
notice, the right to be heard, the right to a coherent procedure and a reasoned decision. These were the
guarantees of the rule of law from a procedural perspective. And on the substantive side, they moved to
ensure that administrative tribunals exercised their powers as the legislature intended or was presumed to
have intended. The legislature could not have intended the tribunal to make arbitrary or wrong decisions,
the courts reasoned. Therefore, courts were empowered, indeed obliged, to set such decisions aside.-
This is the Backdrop of the 4 periods of administrative law in Canada
 The First Period: Confrontation
o The period between 1950 and 1975 was characterized by a period of confrontation Courts intervened
repeatedly and routinely in tribunal decisions using a sweeping and fluid definition of jurisdictional error
o The goal was to ensure that administrative tribunals operated within the principles that define the rule of
law. Not arbitrarily. Not capriciously. Not unreasonably. Fairly and in accordance with the law.
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oBut some felt the courts were going too far. Legislatures responded to judicial intervention by telling the
courts to mind their own business and leave tribunal decisions alone. They took to routinely inserting
privative clauses in administrative statutes. Decisions were declared to be "final" and "not subject to
review".
o Legal battles raged over what constituted a question of jurisdiction and what the courts could not touch
 The Second Period: Contextual Deference
o Starting in the late '70s, a new, less confrontational approach began to emerge. The decisions of the
Supreme Court began to acknowledge that administrative tribunals were doing important policy and
adjudication work – work that an overly expansive approach to judicial review could frustrate.
o Justice Dickson, as he then was, held that courts should defer to what administrative tribunals think is
reasonable within their own context and special expertise, even if this included statutory interpretation.
o The adoption of a "reasonableness" test marked an important shift away from the earlier view that
tribunals should be subject to the same standard of review as courts. In effect, the Court recognized that
deference may further the goals and purposes underlying the legislature's decision to delegate ultimate
responsibility to an administrative agency rather than to the courts
o Deference in context and within the rule of law – this, broadly speaking, was the picture from the late '70s
to the late '90s. Principled, yes. Nuanced, yes. But, as it turned out, difficult to apply.
 The Third Period: The Search for Standards of Review
o Beginning in the late '90s the Supreme Court in a series of cases struggled with how to achieve deference
within the rule of law
o In cases such as Pezim, the Court spoke of a "spectrum of deference" depending on various factors. All
very contextual. All very loose. And, said the critics, all highly uncertain.
o Eventually, in the 1997 case of Southam, the Court came to recognize three standards of review –
correctness, reasonableness and patent unreasonableness: in ordinary language, strict, deferential and very
deferential
o In 2008, after a decade of struggle to find the right formulation, the Court sought to simplify and
consolidate in Dunsmuir.
 The Fourth Period: Consolidation and Settling Down – 2008 to Now
o We may now be entering a period of relative calm in administrative review
o There is general acceptance on the part of legislatures and tribunals of the importance of judicial review
by the courts to ensure that administrative tribunals operate in a way that is procedurally fair and
substantively appropriate
o We have not resolved all the problems. But we understand better how to go about resolving them. We
understand better than we once did that what matters is fundamental fairness, and that what is
fundamentally fair depends profoundly on the particular mandate and context of the tribunal in
question. We understand better that the rule of law does not always call for one right answer in every
case, but rather that for many decisions there is a range of reasonable alternatives. And most importantly,
we understand that both tribunals and courts are essential to maintaining the rule of law in our complex,
rapidly changing world

Baker v Canada
1. How would you characterize the legal authority that was exercised? What was involved in the Officer making his
decision?
2. What were the factors relied on by Officer Lorenz in his recommendation? Where do they come from?
3. Were there any factors set out in law or policy that provided direction to the decision-maker regarding what H&C
meant/how H&C decisions should be exercised? Are these factors legal – do they bind the decision-maker?
4. Was the case decided on a procedural or substantive ground?
5. Was there a privative clause? Does this/how does this factor into the decision?
6. What does deference mean and why is this concept important in the decision?
 14

7. What did the court decide to do about that decision (remedy)?

8. What do you think of L’Heureux-Dubé’s reliance on Officer Lorenz’ notes as the reasons for the decision (at para
44)? How might this decision impact the practices in the ministry of immigration?

Baker Stands for (A LOT)

• Established the spectrum approach to the content of the duty of fairness
• Established a duty to give reasons (where required) in administrative contexts
• Established that substantive review of discretionary decisions are to be reviewed by the same methodology as
other types of decisions (then, pragmatic & functional analysis; now, the standard of review analysis)
• Established that international human rights norms (from the Convention) may apply as “values” without the
implementation of those norms through statute
 Marked a key moment in the move away from “formalist” approaches to administrative law and brought together
developments into a more coherent, deferential approach. A more “democratic” approach (Dyzenhaus).

Opened the door to review for “fundamental values”:

L’Heureux-Dubé:
“discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law,
the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.” (para.
56)
What other ways/what other grounds of review might have been considered in the case that would have addressed these
“fundamental values” more directly, as law?

I. Procedural Review-In BAKER

1) Was there a duty of fairness owed to Mavis Baker in deciding her H & C application?
 Sources of the duty?
2) If so, was the duty met?
a) What opportunities to participate were owed to Baker?
Prelim (question of pure law): How is the content of the duty of fairness determined?
i) Was the Convention a source of legitimate expectations that gave rise to particular procedural rights?
ii) Was an oral hearing required?
 15

iii) Was notice to the children required?

iv) Was there an obligation to provide reasons for the decision?
b) Did the decision-maker’s notes (the reasons) give rise to a reasonable apprehension of bias?

II. Substantive Review-in BAKER

1. Should the discretionary decision of Officer Caden be upheld?
Prelim (question of pure law): How should discretionary decisions be reviewed?
a) (Having decided that the “pragmatic & functional” approach applies to discretionary decisions) What
standard of review applies to the review of Caden’s decision?
b) Does the decision meet that standard?
i) What rules or principles or values apply to guide or constrain the discretionary decision? Does the
Convention apply?

III. Remedy-in BAKER

1. What is the appropriate remedy (for the breach of procedural fairness that was found)?

What Baker did not Address

• The Charter.
• What Charter rights might have been triggered by the H & C decision?
• Does it seem appropriate for the Court to ignore the implicated Charter rights in favour of review under
administrative law principles? (see para 11)

Baker v Canada (Minister of Citizenship and Immigration) SCC 1999

Introduction
 Decision written by L’heureux-Dube (with 4 judges concurring, and 1 judge dissenting in part)
 Regulations made pursuant to s 114(2) of the Immigration Act empower the minister to facilitate the admission to
Canada of persons where the minister is satisfied that owning to humanitarian and compassionate reasons the
person should be exempt from regulation made under the actThis appeal is about the approach to be taken by a
court to judicial review these decisions, both on procedural and substantive grounds
Facts
 Mavis Baker is a citizen of Jamaica and entered Canada as a visitor in 1981, and has remained there since
 She never received permanent resident status and supported herself illegally as a live in domestic worker for 11
years
 She had 4 children while in Canada (who are all Canadian Citizens
 She was order to be deported in 1992, she applied for exemption from the requirement to apply for a permanent
residence outside of Canada based upon humanitarian and compassionate considerations pursuant to s 114(2) of
the Immigration Act
 She provided documentation in her application which indicated that she was experiencing psychiatric problems
but making progress (yet also noted she might become ill again if returned to Jamaica), documentation also
indicated she was the sole caregiver for two of her children
 A decision came in 1994 signed by immigration officer Caden stating that there were insufficient humanitarian
and compassion grounds to warrant processing her application for permanent residence (the letter contained no
reasons, but counsel requested some and was provided with notes made by immigration officer Lorenz)
 Lorenz notes were fairly harsh (said she was a paranoid schizophrenic on welfare, that she had 4 children in
Jamaica and 4 more in Canada and that she would be a drain on the welfare system)
 Relevant Statutory Provisions
 16

oSection 82.1(1) of the Immigration Act: An application for judicial review under the Federal Court Act
with respect to any decision made, or any matter arising, under this Act or to the rules or regulation
thereunder may be commences only with leave of a judge of the Federal Court-Trial Division.
o Section 83(1) of the Immigration Act-A judgement of the Federal Court may be appealed to the Federal
Court of Appeal only if the Federal Court-Trial Division has at the time of rendering judgment certified
that a serious question of general important is involved and has stated that question
o Section 114(2) of the Immigration Act-the Governor in Council may, by regulation, authorize the minister
to exempt any person from any regulation made under subsection (1) or otherwise facilitate that
admission of nay person where the minister is satisfied that the person should be exempted for that
regulation or that the persons admission should be facilitated owing to the existence of compassionate or
humanitarian considerations2.1 Amended said that the Minister is herby Authorized to do all of the
above
o Convention on the Rights of the Child-Several Articles are listed (pg 34) but the basic jist in that the
interest of a child must be of primary consideration, and that a child should not be separated of their
parents, and that children should be given an opportunity to be heard in and judicial or administrative
proceedings
 Previous Judgements
o Federal Court-Trial Division (1995)
 The judge gave oral reasons dismissing the appellants judicial review application
 She held that since there were no reasons given by officer Caden for his decision and no reasons
were required she would assume in the absence of evidence to the contrary that he acted in good
faith and made the decision based on correct principles
 She rejected that Lorenze notes were not supported by evidence, since it would be reasonable to
conclude that she would not be able to return to work
 Also she noted that the views in the notes were not important because they were not those of the
decision maker (Caden)
 She rejected the argument that the Convention of Rights of a Child mandated that he appellants
interested be given priority in section 114(2) decisions because it did not apply to this situation
and was not part of domestic law
o Federal Court of Appeal (1997)
 The judges held that pursuant to section 83(1) of the Immigration Act the appeal was limited to
the question certified by the Federal Court-Trial Division judge
 They also rejected a request to challenge the constitutional validity of section 83(1)
 The treaty does not have affect on Canada unless implemented through domestic law (which it
had not been adopted by either the provincial or federal government through legislation)
 They held that the doctrine did not create substantive rights, and a requirement that the best
interest of a child be given primacy by a decision maker would be substantive right, thus the
doctrine does not apply
Issues
1. What is the legal effect of a stated question under s 83(1) of the Immigration Act on the scope of the appellate
review?
2. Were the principles of procedural fairness violated in this case?
a. Where the participatory rights accorded consistent with the duty of procedural fairness?
b. Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
c. Was there a reasonable apprehension of bias in the making of the decision?
3. Was the discretion improperly exercised because of the approach taken to the interests of Ms. Bakers children?
*Charter issues were dismissed because the court decided that issues raised could be resolved under the principles of
administrative law and statutory interpretation.
Analysis
Stated Questions under Section 83(1) of the Immigration Act
 17

 In Pushpanathan v Canada the SCC held that s 83(1) does not require the Court of Appeal address only the stated
question and issues related to it: the certification of a ‘question of general importance’ is the trigger by which an
appeal is justified. The object of the appeal is the still the judgment itself, not merely the cerified question.
 In Ramoutar v Canada it was noted that once a question has been certified, all aspects of the appeal may be
considered by the Court of Appeal, within its jurisdiction,The SCC agreed with this
 The wording of section 83(1) suggests that if a question of general importance has been certified this allows for an
appeal from the judgment of the Trial Division which would otherwise not be permitted, BUT does not confine
the Court of Appeal or this court to answering the stated question or issues directly related to itTherefor ALL
issues raised by the appeal may therefore be considered here
The Statutory Scheme and Nature of the Decision
 Before examining the various grounds for judicial review the Court take time to discuses the nature of the
decision made under section 114(2), the role of this decision in the statutory scheme and the guidelines given by
the Minister to immigration officers in relation to it
 Section 114(2) authorizes the Minister to exempt a person from regulations made under this Act or to facilitate the
admission to Canada of any person (the minister power to grant an exemption is based on H & C considerations)
 Application for permanent residence must generally be made from outside of Canada (section 9(1))- one
exception to this is when admission is facilitated based on HC considerations
 In law HC decisions are ones that provide for an exemption from regulations made under the act, but in practice it
is one that determine whether a person who has been in Canada but does not have status can stay in the country or
will be required to leave a place they have become established
 Immigration officer who made HC decisions are provided wit a set of guideline, these are instructions that tell
them how to exercise their discretion that has been delegated to them
 Some Guidelines:
o Officers have a duty to decide which cases should be give a favorable recommendation by carefully
considering all aspects of the case, using their best judgement and asking themselves what a reasonable
person would do in such a situation
o They should attempt to clarity any HC grounds and public policy considerations even if these were nto
articulated well by the person
o There are two different types of criteria that may lead to a positive 114(2) decision- public policy (which
should be considered first), then if these do not exist them the officer should consider if HC
considerations exists
o HC grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person
seeking considering if they are asked to leave Canada
Procedural Fairness
 The appellant argues that the decision made by Caden was not in accordance with procedural fairness because:
there was no oral interview, notice to her children and the other parent, and that she was not given reasons by the
decision maker [She suggests that in cases such as this where a parent has Canadian children these things should
be met]
 Both parties agreed that procedural fairness applied to HC decision (the fact that a decision is administrative and
affects the rights and privileges or interest of an individual is sufficient to trigger the application of the duty of
fairness)
 The existence of this duty does not determine what requirements will be applicable in a give set of circumstances,
the concept of procedural fairness is variable and its content is to be decided in the specific context of each case
 All of the circumstances must be considered in order to determine the content of the duty of procedural fairness
 Factors Affecting the Content of the Duty of Fairness
o NOTEunderlying all the factors is the notion that the purpose of the participatory rights contained
within the duty of procedural fairness is to ensure that administrative decisions are being made using fair
and open procedure, appropriate to the decision being made and its statutory, institutional and social
 18

context with the opportunity for those affected by the decision to put forward their views and evidence
and have it considered by the decision maker.
o The list below is NOT exhaustive
1. The nature of the decision being made and the process that followed in making it
 The more the process if provided for, the function of the tribunal, the nature of the decision
making body and the determination that must be made to reach a decision resemble judicial
decision making the more likely it is that procedural protections closer to the trial model will be
required by the duty to fairness
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates
 Greater procedural protections will be required when eh appeal procedure has been provided
within the statute, or when the decision is determination of the issue and further request cannot be
submitted
3. The importance of the decision to the individual and individuals affected
 The more important the decision is to the lives of those affected and the greater impact on the
person or those persons the more stringent the procedural protections will be
4. The legitimate expectations of the person challenging the decision
 If legitimate expectations are found to exist this will affect the content of the duty owed to the
individuals affected by the decision; if the claimant has a legislation expectation that certain
procedure will be followed this procedure will be required
 If a claimant has a legitimate expectation that certain results will be reached in their case, fairness
may require more extensive procedural rights than would otherwise be accorded
 BUT the doctrine of legitimate expectations cannot lead to substantive rights outside of the
procedural domain
5. The choices of procedure made by the agency itself, particularly when the statute leave the decision
maker the ability to choose its owner procedures or when the agency has an expertise in determining what
procedures are appropriate (this is not determinative but weight must be given to the choice of the
procedures made by the agency itself and its institutional constraints)
 Application of the Principles/Factors
o Legitimate Expectations
 Appellant argued that the article of the Convention and the fact that Canada has ratified it
establish legitimate expectationthe SCC does not agree
 The convention is not equivalent of a government representation about how HC application will
be decided
 Thus this factor will not affect the content of this duty
o Participatory Rights [AKA factors 1,2, 3 and 5 from above)
 Aka- was the failure to have a oral hearing and give notice to Baker or her children inconsistent
with the participatory rights required by the duty of fairness
 Main consideration: considering all the circumstances, did those who interests were affected have
meaningful opportunity to present their case fully and fairly?
 Several Factors enter into this determination
 First, HC decisions are very different than judicial decisions, since it involves a considerable
amount of discretion and requires the consideration of multiple factors
 Second the role is also, within the statutory, as an exception to the general principles of Canadian
Immigration law
 *Both of the above factors militate in favor of a more relaxed requirement under the duty to
fairness
 BUT-there is no appeal procedure, although judicial review may be applied forconsidering that
this decision is exceptionally important to the lives of those it affects this leads to the conclusion
that the duty of fairness should be more extensive
 19

 Looking at the 5th factor, the statute accords considerable flexibility to the Minister to decide on
the proper procedure and immigration officers, as a matter of practice they do not conduct
interviews in all cases
 Therefore, some factors suggest stricter requirements under the duty of fairness, others suggest
more relaxed ones
 Balancing the Factors
 SCC says the circumstances require a full and fair consideration of the issues and the
claimant and others whose important interests are affected by the decision in a
fundamental way must have a meaningful opportunity to present the various types of
evidence
 An oral hearing is not a general requirement for HC decisionsin this case the appellant
had the opportunity to put forward in written form information about her situation, her
children and their emotional dependence on her, documental from a social worker and
psychiatrist.
 These documents were before the decision makers and they contained the information
relevant to making this decision
 The lack of an oral hearing did NOT constitute a violation of the requirements of
procedural fairness to which she was entitled to
 She had an opportunity to produce full complete written documentation in relation to all
aspects on her application, this satisfied her participatory rights.
o The Provision of Reasons
 The appellant submits that the duty of fairness in these circumstances requires that reasons be
given by the decision maker
 The Federal Court of Appeal held that these reasons are unnecessary, it has also been held that
case notes held by a subordinate officer are not to be considered the decision maker’s reasons
 Generally, at common law the position has been that the duty of fairness does not require as a
general rule that reasons be provided for administrative decisions
 ButThese reasons can be very useful!
 Ensures fair and transparent decision making
 Fosters better decision making by ensuring that reasons are well articulated and more
carefully thought through
 The process itself of writing a decision may lead to better results
 They are valuable to decisions that are being appealed
 Those affected are more likely to feel that they were treated fairly
 Possible Concern over Requiring Written Decisions
 May lead to an inappropriate burden on administrative decision makers
 This leads to increased cost and delay
 SCC says that these concerns can be accommodated by ensuring that the reasons requirement
leaves room for flexibility
 In Canada come courts have imposed a duty to give reasons, others have not
 SCCit is appropriate to recognize that in certain circumstances the duty of fairness will require
written explanations for a decision
 There are strong arguments in favor of this, especially in cases such as this where the decision has
important significance to an individual, where there is a statutory right of appeal, or in other
circumstances where reasons should be required
 These circumstances constitute one of the situations where they should be required
 BUTin this case this duty was fulfilled since the appellant was given the officers notes (this
supports to notion that this requirement is flexible and must be in line with the day to day realities
of administrative agencies)
o Reasonable Apprehension of Bias
 20

 Procedural fairness also requires that decisions be made free from a reasonable apprehension of
bias by an impartial decision maker
 Respondent argues that Lorenz’s notes cannot be considered as giving rise to bias because he was
not the decision maker, Caden was
 The duty to act fairly and in manner that does not give rise to a reasonable apprehension of bias
applied to all immigration officers who play a significant role in making decisions, whether they
are subordinate reviewing officers or those who make the final decision
 Test for Reasonable Apprehension of Bias [Committee for Justice and liberty v National Energy
Board]the apprehension of bias must be reasonable one, held by a reasonable and rights minder
persons, applying themselves to the questions and obtaining thereon the required information.
That test is “would an informed person viewing the matter realistically and practically-and having
thought the matter through-conclude. Would be think it more likely than not that the decision
maker, whether consciously or unconsciously would not decide fairly.”
 SCC-the well informed member of the community would perceive bias in the officers comments
(he was making links between her mental illness and having several children to her being on
welfare for the rest of her life)
 Whether intended in this manner or not, the statement gave the impression that he may have been
drawing conclusions based not on evidence but on the fact she was a single mother with several
children and history of mental illness
 The reasonably well informed person of the community would not conclude that he approached
this case with impartiality appropriate to a decision made by an immigration officer
Review of the Exercise of the Minister Discretion
 Although the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does not address
the issues contained in the “serious question of general importance” which was certified by the Federal Court-
Trial Division judge relating to the approach to be taken to childrens interests when reviewing the exercise of
discretion conferred by an act or regulation
 Thus the SCC decided to consider whether as a substantive matter the HC decision was improperly made in this
decision
 Approach to Review of Discretionary Decision Making
o The legislation and regulations delegate considerable discretion to the minister in deciding whether an
exemption should be granted
o The language signals an intention to leave considerable choice to the minister on the question of whether
to grant an HC application
o The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where
the decision maker is given a choice options within a statutorily imposed set of boundaries
o Administrative law has traditionally approach the review of decisions classified as discretionary
separately from those seen as involving the interpretational of rules of law
 The rule has been that decision classified as discretionary may only be reviewed on limited
grounds such as bad faith or decisions makers, exercise of discretion for an improper purpose and
use of irrelevant considerations
 A general doctrine of “unreasonableness” has also been applied to discretionary decisions
 SCC-these doctrines incorporate two central ideasthat discretionary decisions, like all other
administrative decisions must be made within the bounds of the jurisdiction conferred by statute,
but that considerable deference will be given to decision makers by courts in reviewing the
exercise of that discretion and determining the scope of the decision maker’s jurisdiction
o It would be inaccurate to speak of rigid dichotomy of “discretionary” and “non-discretionary”
decisionsmost administrative decisions involve the exercise of implicit discretion in relation to may
aspects of decision making
 21

oThe ‘pragmatic and functional’ approach recognizes that standards of review for errors of law are
appropriate seen as a spectrum, with certain decisions being entitled to more than deference and other
entitled to less
o Three standards of review have been defined: patent unreasonableness, reasonableness (simpliciter) and
correctness
 SCC-the standard of review of the substantive aspects of discretionary decisions is best approach
within this framework
o This approach takes into account considerations such as the expertise of the tribunal, nature of the
decisions being made, and the language of the provisions and surrounding legislation, whether a decision
maker is ‘polycentric’ and the intention revealed by the statutory language, the amount of choice left by
parliament to the administrative decision maker and the nature of the decisions being made
o Incorporating judicial review of decisions that involve considerable discretion into the pragmatic and
functional analysis for errors of law should not be seen as reducing the level of deference given to
decisions of a highly discretionary nature
o The pragmatic and functional approach can taking into account the fact that the more discretion that is left
to a decision maker the more reluctant courts should be to interfere with the manner in which decision
makers have made choices
o However, though discretionary decisions will generally be given considerable respect that discretion must
be exercised in accordance with the boundaries imposed by statute, the principles of the rule of law and
principles of administrative law, the fundamental values of Canadian society and the principles of the
charter
 The Standard of Review in this Case [Pushpanathan Factors]
o The first factor to be examined is the presence or absence of a privative clause and, in appropriate cases
the wording of that clause
 There is no privative clause in the Immigration Act, although judicial review cannot be
commenced without leave to the federal courtan section 83(1) requires the certification of a
“serious question of general importance” by the Federal Court Trial division before it may be
appealed
 The existence of this provision (section 83(1)) means that there should be a lower level of
deference on issues related to the certified question itself
o The Second factor is the expertise of the decision maker (here the minister of Citizenship and
Immigration or their delegate)
 The minister has some expertise relative to courts in immigration matters, particularly to when
exemptions should be given from the normal requirements
o Third factor is the purpose of the provision in particular and the act as a whole
 The decision involves a lot of choice on the part of the minister in determining what HC
considerations warrant an exemption; it also involves applying relatively open textured legal
principlesmitigating in favor of deference
 The purpose is to exempt applicants in certain circumstancesthis signals that greater deference
should be given
 This decision related directly to the rights and interest of an individual in relation to the
government (rather then balancing the interests of various constituencies or mediating between
them)bodes in favor of a stricter standard
o Fourth Factor considers the nature of the problem in question, especially whether it relates to the
determination of law or facts
 Given the highly discretionary and fact based nature of this decision, this is a factor mitigating in
favor of deference
o These factors must be balanced to arrive at the appropriate standard of review.
 SCC-considerable deference should be accorded to the immigration officers exerting their power
conferred by legislation given the fact specific nature of the inquiry, its role within the statutory
 22

scheme as an exception, the fact that the decision maker is a minister, and the considerable
discretion evidences by the statutory language
 YETthe absence of a privative clause, the explicit contemplation of judicial review by the
federal court trial division and federal court of appeal in certain circumstances and the individual
rather than polycentric nature of the decision also suggest that the standard should not be as
deference as “patent unreasonableness:
 The appropriate standard of review=reasonableness simpliciter
 Was the Decision Unreasonable?
o An unreasonable decision is one that in the main is not supported by any reasons that can stand up to a
somewhat probing examinationyou must look to see whether any reasons support it, the defect is there
is one could presumably be in the evidentiary foundation itself or in the logical process by which
conclusion are sought to be drawn from it [Southam]
o The approach taken to the children’s interest shows that this decision was unreasonable in the sense
contemplated in Southamthe officer was completely dismissive of the interest of the children
o The reasons of the immigration officer show that his decision was inconstant with the values underlying
the grant of discretionthey therefore cannot stand up the somewhat probing examination required by the
standard of reasonableness
o Determining whether the approach taken by the immigration officer was intion the boundaries set out by
the words of the statute and the value of administrative law requires a contextual approach, as is taken in
statutory interpretation generally
o A reasonable exercise of power conferred by the section requires close attention to the interests and needs
of the children-childrens rights and attention to there interest are central to HC values in Canada
o The objectives of the Act
 High value on keeping citizens and permanent residents together with their close relatives who
are already in Canada
o International Law
 Another indication of the importance of the interests of the children when making HC decisions is
the ratification of the Convention
 Its provision have no direct application within Canadian law, but the values reflected in
international human rights law inform the contextual approach to statutory interpretation and
judicial review
 The values and principles of the convention recognize the importance of being attentive to the
rights and best interest of the children when decisions are made that relate to and affect their
future
o The Ministerial Guidelines
 The guidelines issues by the Minister to immigration officers recognize and reflect the values and
approach discussed above and articulated in the convention
 They are expected to make the decision that a reasonable person would make, with special
consideration to humanitarian values (such as keeping connections between family members and
avoiding hardship by sending people to places where they lo longer have connections)
 It is emphasized that the decision maker should be alert to possible humanitarian grounds, should
consider the hardship that a negative decision would impose upon the claimant or close family
members, and should consider the connections between family members
 These guidelines are a useful indicator of what constitutes a reasonable interpretation of power
conferred by the section, and the fact that this decision was contrary to their directive is of great
helped in assessing whether the decision was an unreasonable exercise of HC power
 The factors already mentioned emphasize the rights and interest and needs to children
 Because the reasons for this decision did not indicate that they were alive to the interest of the
children it was an unreasonable exercise of power and must therefore be overturned
 23

 In addition the reasons for the decision failed to give sufficient weight or consideration to the
hardship that a return to Jamaica might cause her, given the fact she has been here for 12 years
and was ill
 While deference should be given to officers on section 114(2), decision cannot stand when the
manner of the decisions was made and the approach was in conflict with HC values
 This does not mean the children’s interest always outweigh other considerationsbut if they are
minimalized in a manner inconsistent with HC tradition and the ministers guidelines than the
decision will be unreasonable
Conclusion and Disposition
 Because there have been both a violation of the principles of procedural fairness owing to a reasonable
apprehension of bias and because the exercise of HC discretion was unreasonable the appeal is allowed
 The matter will be returned to the minister for redetermination by a different immigration officer
Dissent (In Part)-Cory J
 He disagrees with the effect of international law on the exercise of ministerial discretion pursuant to section
114(2)
 24

The Rule of Law

Rule of Law
 Principle of legality
 Fundamental justice
 Separation of powers
 Responsible government
 Honour of the Crown
 Judicial independence
 Access to justice
 Others….

A Progression of Thinking…

DICEY =Formalism, Willis =Functionalism.

common law hostility to
policy/discretion – law as
very different and distinct
from politics. Law as
restraint.
Critique of common law view
of law/politics. Supportive of
the welfare state,
redistributive role. Law as
also facilitative, legitimating.
Dyzenhaus =Fundamental
Values. Law, rule of law
through substantive (moral)
evaluation of its content as
well as form.

Functionalism – can think of through the wording – looking at the function of what the decision-maker is doing rather
than the name or “formal” assignment in the separation of powers.
Fundamental values or substantivist approaches – big journey from formalism b/c see admin bodies as contributors to
the rule of law on par with legislatures and courts, but theories provide more grounds for review on the same basis ---
admin DM have to satisfy the substantive parameters of the rule of law, such as adhering to Charter and other fundamental
values.

Separation of Powers: Formalism

Legislatures
“to decide upon and Courts
enunciate policy” “to interpret and
apply the law”

Executive
“to administer and
implement that policy”
 25

Rule of law in a “culture of justification”:

“Where a society is marked by a culture of justification, an exercise of public power is only appropriate where it can be
justified to citizens in terms of rationality and fairness. Arbitrary decisions and rules are seen as illegitimate. Rule by fiat
is unaccepted. But these standards do not just stand as abstract rules. Indeed, most importantly, the ability to call for such
a justification as a precondition to the legitimate exercise of public power is regarded by citizens as their right, a right
which only illegitimate institutions and laws venture to infringe. The prevalence of such a cultural expectation is, in my
view, the definitive marker of a mature Rule of Law.”
Justice McLachlin, "The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law" (1998-99) 12
Canadian Journal of Administrative Law and Practice 171 at 174.

Aside: Critiques of the rule of law…

• Many critiques of the rule of law as “liberal ideology”
– Issues regarding where the rule of law “doesn’t run”:
• “States of exception” for dealing with terrorism. Consider Guantanamo Bay.
 26

• Formation of the state, acquisition of sovereignty – ideas that this is always coercive, a matter of
politics (e.g., Hume). Consider indigenous peoples and issues regarding the Crown’s acquisition
of sovereignty.
– Issues about who gets the benefit of the rule of law….
The Rule of Law and the Administrative State Reading Notes
 The rule of law is an ideal that is regularly invoked by both proponents and critics of regulatory measures and
public programs
 The rule of law has not generally agreed upon meaning as applied to law and administration
 But, it is reject by few people
 The root idea=the government should be subject to the law
 Dicey and the Liberal Idea of the Rule of Law
o The key elements of Diceys definition:
 That no one should be made to suffer except for a distinct breach of the law
 That government and citizens are subject to the general law of the land
 That the law of government should be administered in the ordinary court (aka common law
courts) and not in a specialized system of administrative courts
o Each of these notions is reflected in contemporary administrative law
o The first element has been employed to attack the statutory grant of broad discretion enabling
public officers to restrict individual freedom of contract and property rights (the main objects to
this is that they may be used improperly to discriminate against or in favor of certain individuals,
it is difficult to hold officials democratically accountable for highly discretionary decisions and
individuals should be able to plan their lives in accordance with known rules of general
application
o His definition has also influenced public law in that he insists in the common law world there is
no distinct body of public law that applies to relations between individuals and state and that is
administer outside of the ordinary courts
 This provides justification for the exercise by the supreme courts of their supervisory
jurisdiction over administrative agencies on grounds of procedural unfairness and
illegality, even when the legislature has expressly excluded judicial review
 Also, entrenching in the superior courts as the arbiters of disputes between individuals
and the administrative institutions of the state have given pre-eminent to common law
patters of thought in shaping the legal framework for public programs
 The Functionalist Critique
o Since the 1930s there have been contrary views from the dominant traditions of public law most famously
associated with dicey
o First, some writers challenged the historical accuracy of Dicey’s assertions
 They have asked whether it is true that the rights of English people were subject to general law
and not to official discretion
 They have pointed out that at common law the crown was immune from liability in tort, and wide
discretion was exercised by the local magistrate to dispense of often brutal forms of criminal
punishment
o Second, they have pointed out that Dicey’s disapproval of administrative discretion and his support for
affording to the ‘ordinary courts’ a key position in the resolution of disputes between individuals and the
administrative state could not thwart the implementation of legislative arrangements for regulations and
redistribution in the public interest
 Thus far from offering a neutral prescription for the protection of liberty he designed his version
of the rule of law to put public administration into a straightjacket
 According to functionalists, it was more likely that governments in the face of obstruction from
economic vested interests would take the course of least resistance by curbing the effectiveness of
public programs rather than risking judicial reproach in the name of private rights furthermore
 27

the focus of litigation on the immediate parties to the dispute tend to downplay the interests of
beneficiaries of the program, and wider public interest as components of judicial decision making
o Third, on a philosophical level it was argued that the positivist legal tradition (of which Dicey thought is
part of) have failed to appreciate that law is intertwined with policy
 The specialist agency is more able then reviewing courts to make informed assessments that
would enable the program to be effective
o The functionalist approach also stressed the facultative and legitimizing roles of lawthat as a regulation
and provider the state should be regarded as a source of good
o He courts have limited institution competency on matters which are often not questions of law but rather
public policy and administrationthe courts should have a residual role in overseeing administrative
actions (while insisting on procedural openness and a minimum standard of rationality)
o The functionalist approach has exerted significant influence on administrative law in Canada since the
1930’s by:
 Court have expanded the applicability of the duty of fairness in the exercise of government
powers
 Context has been considered in interpreting enabling legislation so as to give effect to the
legislative purpose
 The courts have also been prepared to defer to an agencies interpretations of the enabling statutes
(rather than assumes the judicial has a monopoly on wisdom)
 Rule of Law, Democratic Values and Fundamental Rights
o There is not doubt that the functionalist analysis has provided an important corrective to the view of rule
of law proposed by Dicey and other opponents of the interventionist role for the state
o The common law does not have satisfactory answers to some of these problems (aka problems unresolved
or created by the operation of the market)however it seems that he functionalist approach tends to
attach insufficient weight to considerations of democratic accountability and fundamental rights and the
to the positive contributions that courts can make to realizing these goals
o It is possible to rework some elements of the liberal version of the rule of law in order to provide a role
for the law of judicial review in advancing these values in the contemporary administrative state
 The apparent dilution of public confidence in the capacity of the traditional political process to
exercise democratic control over the operations of government, it is appropriate for administrative
law (both through statutory reform and judicial review) to ensure procedural openness and
enhance accountability in public administration
 While review courts should normally show a measure of deference to a specialized agency’s
interpretation of its enabling statute, it is appropriate to scrutinize more closely those decisions
that seem contrary to the interest of the intended beneficiaries of the legislation or to that aspect
of the public interest that the legislation was enacted to protect
 We recognize the force of the functionalist claim that it is often futile to imagine that the
legislature had a meaning in mind when it enacted provisions in that statute that has been applied
to a set of facts and was almost certainty not foreseen at the time of enactment
 But the independence and experience of the judiciary make it the appropriate court to
intervene when they are satisfied that the agencies interpretation was unreasonable or
outright wrong
 The rights entrenched in the charter have been identified by parliament and the governments of
the provinces have approved it as deserving special protection
 Infringements on charter rights must therefore be weighted carefully against other competing
publics interests
 Moving Forward
o The contents of this chapter suggest three directions from which administrative law should be
approached:
 28

 The details of the public program for which the particular dispute arises must be appreciated (the
terms of the statute, the nature of the program, the characteristics of the officials and institutions
and the administrative and political contexts within which the statute operates)
 A knowledgeable of the relevant legal principles and rules, both substantive and procedural, is
essential to analyze the dispute and locate it within the elements the comprise our legal system:
the rules and policies of the decision-maker, the common law, legislation and the constitution
 It is important to keep in view that the theoretic dimensions of a problem and be able to consider
it from the perspective of competing concepts of law and government
 29

A Constitutional Basis for Judicial Review [Crevier]

Starting Points
• S. 96 courts are different than courts constituted by statute (inferior courts)
• S. 96 interpretation by courts is aimed at preserving that difference in relation to more recent, statutorily created
courts and tribunals
– “Courts are unlikely to abandon …their concern (which I regard as extravagant) to prevent the erosion of
superior-court jurisdiction” (Hogg, p. 665)
Ending Point
• The constitution, via s. 96, “implicitly guarantees the authority of the courts to review decisions of administrative
agencies for errors of law or jurisdiction and for procedural fairness.” (p. 660)
• Courts are the “guardians of the rule of law”
– Formalist sentiment.
– Area of law needs some updating to keep up with current approach to substantive review!!

Courts and Tribunals: Constitutional Background -READING NOTES

 It is helpful to be familiar with the original context in which questions about the legislative capacity to create
administrative agencies arose
o The context involved the creation by provincial legislatures of tribunals whose members did not and no
not have all of the attributed of s 96-100 judges
o Tribunals were given authority over matters that came within the historical jurisdiction of the courts
presided over by judges
 Peter Hogg (Constitution of Canada)
o Administrative tribunals have decided more cases and probable dispose of more dollars than do ordinary
courts
o Some of the Reasons for this Preference:
 The desire for specialized bodies
 Desire for innovation (tribunals have broad discretion to develop the policies and remedies)
 Desire for initiative (a tribunal can be given power to initiate proceedings, to undertake
investigations do research etc)
 Problem of volume (tribunals can deal with a lot of cases)
 Economy (it can be faster and less expensive than ordinary courts)
o Ordinary courts through their exegesis of s.96 and other judicature sections of the constitution have
assumed the power to review legislation investigating a provincially established administrative tribunal
with adjudicative functions
o The leading case on the impact of s.96 on the creation of provincial administrative tribunals is the
decisions R Residential Tenancies Act (SCC)
 In that case the court suggested a three step approach to the resolution of s.96 challenge ot an
administrative tribunals powers
o First step-historical inquiry
 Involves an investigation of whether the impugned power was one that was within the powers of
a superior, district or county court at confederation
 A negative answer to this will resolve s.96 issues in favor of the validity of the power without the
necessity to proceed to step 2 and 3
 For a tribunals power to be hl dot be a s.96 power at confederation it is clear that the impugned
power must have been within the exclusive jurisdiction of s.96 courts at confederation
o Second Step-the judicial inquiry
 30

 Involves the notoriously elusive task of characterizing the impugned power as judicial (in which
case the s 96 inquiry can proceed) or as administrative or legislative (in which case the s.96
inquiry can stop)
 In Re Residential Tenancies Act the court suggested that a power was judicial if it involved (1) a
private dispute between parties (2) that must be adjudicated through the application of a
recognized body of rules and (3) that must be adjudicated in a manner consistent with fairness
and impartiality
o Third Step-The institutional setting inquiry
 Involves an examination of the power in its institutional setting to see whether it is still broadly
conforms to s. 96 power
o This three step approach is favored by the SCC; but he suggests it is not satisfactory as a constitutional
law doctrine
 An amendment proposal had been circulated for discussion which would specifically grant to the
provinces the power to confer an administration tribunal any function within the provincial
legislative competence, so long as the tribunals decisions remained subject to the superior court
review [What happened with this?]

The Constitutional Limits of Privative ClausesREADING NOTES

 This section is about the doctrine that the constitution implicitly guarantees the authority of the courts to review
decisions of administrative agencies for erodes or law or jurisdiction and for procedural fairness (lead by the
decision in Crevier v AG)
 This issues is of special significance to privative clauses because it restrains the ability of parliament or a
provincial legislature to limit the scope of judicial review
 When talking about the constitutional basis for judicial review the focus is on review of administrative action
where a tribunal or agency allegedly made an error of jurisdiction or where it denied procedural fairness to an
individualultimately these are questions that the courts are most concerned to protect, invoking the constitution
if necessary to do so
 Public statutory authorities have only the powers conferred un them by legislation, their powers are legally limited
and it is the courts role to determine what the limits are
 Put differently, statutory interpretation is informed by the judiciaries owe ideas about the appropriate distribution
of power between courts and administrative agencies
 From Dunsmuir
o The inherent power of superior courts to review administration action and ensure it does not exceed its
jurisdiction stems for the judicature provisions in s 95-101 of the Constitution
o The role of superior courts in maintaining the rule of law is so important this it is given constitutional
protection; in short judicial review is constitutionally guaranteed in Canada
 Question: Does parliament or a provincial legislature have the constitutional capacity to bar any judicial review or
an administrative agency?
o It is now generally agreed that the legislature does not have the authority to oust the courts power to
review administrative agencies decisions or the agencies enabling statute
o Legislatures Cannot take away this right to judicial review
 Outside of constitutional law the situation is not as clearthe constitution acts do not have any explicit provisions
dealing with the courts power to review decisions of administrative agencies
 The Constitution does not outline a general separation of powers doctrine, that id is does not confer on parliament
and provincial legislatures the authority to exercise legislative power; it does not confer on the crown its executive
powers and it does not confer on the courts their judicial power
o But it is possible to argue that what is not expressly provided for in the constitution is nonetheless implicit
within it
 31

Statutory Removal of Judicial ReviewREADING NOTES

 The decision in Crevier identified the limits of a provincial legislatures power to create an administrative tribunal
and give it authority over matters conventionally dealt with by s 96-101 courts
 The case concerned the validity of aspects of the Profession Code, this was a novel statyte in that in created a
professional tribunal that had exclusive jurisdiction, protected by a full privative clause, to hear appeals from the
disciplinary committees of most of the statutory professional bodies of Quebec

Crevier v AG (Qc), [1981] 2 SCR 220

• Complicated privative clauses in a scheme involving:
– Professional disciplinary committees (lawyers in the case)
– Appeals from those decisions to a Professions Tribunal made up of Provincial Court Judges and
excluding review by superior courts
• The Superior Court then quashed (evocation) that decision on the basis of s. 96 of the 1867 Constitution Act
(Professions Tribunal was unconstitutional).
• “It is true that this is the first time that this Court has declared unequivocally that a provincially constituted
statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In
my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation
on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There
may be differences of opinion as to what are questions of jurisdiction, but in my lexicon, they rise above and are
different from errors of law, whether involving statutory construction of evidentiary matters or other matters.” [p.
667, emphasis added, continued on next slide…]
• It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on
questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British
North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere
appointing power, I can think of nothing that is more the hallmark of a Superior Court than the vesting of power
in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.” (at p.
667)

Moves from Crevier to a Constitutional “right” (or basis) for JR

Premise: S. 96 courts are “special” as constitutionally preserved/constituted courts,
 therefore legislatures cannot take away their authority to review decisions of admin DM on grounds related to
“legality” of the decision
 and therefore, there is a constitutional basis to access the courts for JR

Crevier v AG (Quebec), 1981

 S 193 of the Profession code provides for certain immunity for acts done in good faith and in the performance
by a disciplinary committee to the supervisory authority of the Superior Court under certain aspects of the code
 The SCC considered whether a privative clause in the Professional Code could oust all of those review powers,
especially the power to review jurisdictional questions
 Where a provincial legislature purports to insulate of its statutory tribunals from any curial review of its
adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck
down as unconstitutional by reason of having the effect of constituting the tribunal a s96 Court
 This is the first time the court has declared unequivocally that a provincially constituted statutory tribunal
cannot constitutionally be immunized from review of decisions on questions of jurisdiction
 This limitation (arising by virtue of s 96) stands on the same footing as the well accepted limitation on the
power of provincial statutory tribunals to make unreviewable determinations of constitutionality
 It is not unquestioned that privative clauses, may, when properly framed effectively oust judicial review on
questions of law and indeed on other issues not touching jurisdiction
 32

 The court has been content to look at privative clauses in terms of proper construction and no doubt with a
disposition to read them narrowly against the long history of judicial review on questions of law and questions
of jurisdiction
 Where however, questions of law have been specifically covered in a privative enactment, this court has not
hesitated to recognize this limitation on judicial review as serving the interest of an express legislative policy to
protect decisions of adjudicative agencies from external correction
 The same considerations do not apply to issues of jurisdiction which are not far removed from issues of
constitutionality
 It cannot be left to a provincial statutory tribunal (in the face of s 96) to determine the limit of its own
jurisdiction without appeal or review
 Even thought the two sections of the Professional code dealing with the appellate authority of the Professional
tribunal there is not mention of the work ‘law’ or the word ‘jurisdiction’
 When regard is had to the privative terms of theses sections added to the fact that by s 175 the Professionals
Tribunals decisions are final, I see no significant distinction between the present case and the Farrah case in the
fact that in the latter the authority granted to the appeal tribunal was ‘to the exclusion of any other court’
 In both cases there was a purported exclusion of the reviewing authority of any other court, whether by appeal
of by evocation

 Crevier: Context and Criticism

o Before this case there was controversy whether any right of judicial review of administrative agencies
was constitutionally guaranteed
o The narrow point settled here is that a provincial legislature cannot insulate from review on jurisdictional
grounds the decisions of a provincial appellate tribunal
o There were lingering doubts about after this case about the validity of provincial legislation that created
administrative agencies with appellate powers
o Commentators who criticized the courts previous interventions in the administrative process were
dismayed that the SCC entrenched in this case a constitutional right to judicial review of jurisdictional
grounds
o This was seen to reinforce the notion that administrative agencies and courts are part of a single decision
making system which the courts sit at the apex with inferior tribunals at the bottom
o The assessment of the significance of this case depends partly one’s sense of who courts will handle their
authority to review for jurisdictional errorbefore this case privative clauses were presumed to not oust
the courts right to determining whether an agency’s decisions was within its jurisdiction
o Despite the clear language of privative clauses, the courts established themselves as a backstop by
insisting on their power to scrutinize any language in the statute that could be said to raise preliminary
questions, deems in turn to be outside the agency’s jurisdiction
o If this constitutional power of judicial review were confined to guarding against procedural unfairness or
bad faith decision making and the ensuring that the exercise of authority was at least traceable to a
granting power in statute, then this case might be uncontroversial
o One of the criticisms has been that the definition of jurisdictional error has been notoriously elusive and
prone to judicial manipulation
 Crevier: Federalism or Separation of Powers?
o Is this case ultimately about preventing the provinces from encroaching on the federal government power
to appoint judges to the superior courts by the creation of tribunals that have an essential characteristic of
superior courts? OR is it about protecting the individuals right to seek a determination from an
independent judiciary of the legality of administrative action?
o This this case the case law has generally supported the view that courts power to subject tribunals to
jurisdictional review has a constitutional foundation
o If the SCC has endorsed the view that there is a constitutional guaranteed right of an individual to seek
judicial review of administrative action on the grounds of jurisdictional error illegality, two practical
consequences follow:
 33

 The first is that Crevier extents to all administrative decisions makers, including tribunals with
original decisions making authority, as well as public does that are vested with wide statutory
discretion, whether or not they are required to hold a hearing before exercising their power
 The second consequence is that is also applies to judicial review of federal administrative
agencies
o Broadly speaking this decision provides an important background to the Dunsmuir standard of review
analysis by outlining the SCCs rationale for not allowing a privative clause to preclude all judicial review
of administrative actors
 34

Remedies
1. Why go to a tribunal
2. Why go to a court – quick overview of Common law, and now statutory Remedies via JR
3. Scope of JR at Courts – what is “public” enough?
4. Courts discretion to refuse a remedy

Remedies at Tribunals
•Remedies from a court vs remedies from an tribunal
– E.g. employment: damages for wrongful dismissal (court, private law) vs. reinstatement via quashing
illegal decision to dismiss (public law)
• At tribunals:
– Diverse types of decisions  diverse types of remedies
– What remedies are available depends on the statute
– Room for creativity in institutional design
• E.g., Human Rights and attempts to correct systemic discrimination. McKinnon case
**CHECK UNDER THIS SLIDE FOR PROMSILOWS NOTES

Access to Tribunals
Standing
 Depends on statute; basic principle: those directly affected by the admin decision may apply for JR
 Public interest standing may be argued
Where do tribunals hold hearings?
 Oral, written, video (raising new fairness concerns)…
Fees and costs
 Applicability of Trial Lawyers Assoc of BC?
Other concerns – availability of legal counsel/advice, availability of information and agency decisions, ease of
navigation…

Person (or gov’t) unhappy with gov’t/tribunal action/decision

Ombudsperson? Court action? Private law remedy?: Reconsideration and/or

e.g., breach of contract, tort of abuse of appeal mechanism
pub office.. within statute?

Application for Judicial Review

 35

Example: PROCESS: E.g. – EI and Multiple Births challenge (appeal process has since been overhauled)
Mother applies for parental leave benefits under EI for Twin A; Father applies for parental leave benefits for Twin B.
Decision: Father’s claim is denied by the “Employment Insurance Commission” (May 29, 2009)
STATUORTY APPEALS JUDICIAL REVIEW
Father appeals the decision to 3-person “Board of Father applies for judicial review of the Umpire’s decision
Referees” – statutory appeal provided by EI Act. Wins. at the Federal Court of Appeal. Decision reviewed on
“correctness” standards (Charter and statutory
interpretation issues). Loses: 2013 FCA 15
EI Commission appeals to Umpire – a further statutory Father applies for leave to appeal to the SCC. Leave
appeal provided by EI Act. Commission overturns Board refused, June 27, 2013
of Referees decision. (May 31, 2011)

Common Law Judicial Review Remedies

Remedies available through prerogative writs:
 Certiarori: to quash or set aside a decision (based on order to produce the record for review by superior court)
 Prohibition: to order a tribunal not to proceed
 Mandamus: to order the performance of a public duty
 Habeus Corpus: to determine the legality of a person’s detention
 Quo Warranto: by what authority?
Private law/equitable discretionary remedies of:
 Declaration
 Injunction

Judicial Review at Common LawREADING NOTES

 Judicial review of administration action originates in the various prerogative writs by which the monarch (through
the Court of Kings, or Queens Bench) controlled the exercise of authority by officials who acted or purported to
act under royal parliamentary warrantThe most common of these writs was the certiorari
 If the formal record revealed that the body was acting without jurisdiction or that it committed an error of law on
the face of the record the process would be quashed
 In essence, certiorari and other prerogative writs were vehicles for ensuring that the administrative arms of the
government were kept under controlaka it was a system of review aimed at the control of public as opposed to
private bodies
 This sense of judicial review as a public law remedy remains a crucial element even today

Statutory Reform
Judicial Review Procedure Act, RSBC 1996, c 241 (JRPA) (p. 949):
2 (1) An application for judicial review must be brought by way of a petition proceeding.
(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one
or more of the proceedings for:
(a) relief in the nature of mandamus, prohibition or certiorari;
(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported
exercise, of a statutory power.
 36

S. 18 – re quo warranto

Federal Court Act, RSC 1985, c f-7

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected
by the matter in respect of which relief is sought….
Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to
do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with
such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.

Some applications for JR go straight to the Federal Court of Appeal, as per the list in s. 28 (1)

Statutory Provisions
JRPA:
8 (1) If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant
relief on any ground, the court has the same discretion to refuse to grant relief on the same ground.
(2) Despite subsection (1), the court may not refuse to grant relief in a proceeding referred to in section 2 on the ground
that the relief should have been sought in another proceeding referred to in section 2.

The Impact of Statutory Remedial RegimesREADING NOTES

 The Federal Courts Act
o Under the Federal Courts Act the federal courts original jurisdiction is expressed in s.18 in the terms of
the review of a ‘federal board, commission or other tribunal’
Section 2 of the Federal Courts Act
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting
to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made
pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body
constituted or established by or under a law of a province or any such person or persons appointed under or in
accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
o Notable in this definition is the inclusion in 1990 of the prerogative powers, a puzzling omission from the
original 1970s version
o The federal courts have held that direct exercises of the prerogative are included and reviewable in the
Federal Court
o The term ‘by or under an Act of Parliament’ obliviously extends to powers conferred by subordinate as
well as primary legislation
 The Judicial Review Procedure Act of BC
Section 2
2 (1) An application for judicial review must be brought by way of a petition proceeding.
(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to
in any one or more of the proceedings for:
(a) relief in the nature of mandamus, prohibition or certiorari;
(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported
exercise, of a statutory power
Section 1
"statutory power" means a power or right conferred by an enactment
(a) to make a regulation, rule, bylaw or order,
(b) to exercise a statutory power of decision,
 37

(c) to require a person to do or to refrain from doing an act or thing that, but for that requirement, the person
would not be required by law to do or to refrain from doing,
(d) to do an act or thing that would, but for that power or right, be a breach of a legal right of any person, or
(e) to make an investigation or inquiry into a person's legal right, power, privilege, immunity, duty or liability;
"statutory power of decision" means a power or right conferred by an enactment to make a decision deciding
or prescribing
(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or
(b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person
is legally entitled to it,
and includes the powers of the Provincial Court;
o The Scope of the “New” Remedy: Frozen or Evolutionary
 There was some question whether the public law remedies that provide the reference point (the
common law prerogative writs) for the new application for judicial review established in the act
were to be given the content that they had at the time of the creation of the new remedy of
whether their content should be delineated on the basis of the scope that they came to possess in
other jurisdictions
 It is not clear that their content is NOT frozen
o “The Nature of”
 There is an issue about the meaning and impact of the words “in the nature of” because before
theses statutes were enacted, the courts did not issue the prerogative writs
 In BC the courts were not so expansive in interpreting the reach of the Judicial Review Procedure
Act and the meaning of “in the nature of”
 In the same context, the application for judicial review of the expulsion of a member by a trade
union, the BCCA held that relief was unavailable While the court was not confined to the
review of statutory powers under the act, nonetheless the target of the application had been
affecting public rights
o The Relevance of Statutory Power
 This statute framed the new remedy differently in relation to prerogative style relief on the one
hand and injunctive and declaratory relief on the other
It is clear that the availability of declaratory and injunctive relief under the BC act depends on their being an exercise of
statutory power and that this requirement may remove from the ambit of the act some aspects of the modern uses of
declaratory and injunctive relief as public law remedies

Discretionary Nature of Remedies on Judicial Review

Discretion to refuse relief
Remedies on judicial review are discretionary.
This discretion goes to:
– Whether to grant judicial review (threshold question), and
– What remedy to grant/whether to grant a remedy (remedial question)
Court might exercise this discretion when:
1. There are timing and forum concerns
 when application is premature, where applicant has delayed in bringing JR forward (or
acquiesced to decision), where the matter has become moot or there is a lack of practical utility,
or where there are alternate routes available through which relief is more appropriately pursued.
 E.g. Harelkin, Howe – adequate alternative remedies
2. Conduct of the parties is questionable
 Where there are issues in the conduct of the parties: delay in bringing the application,
misconduct/bad faith, or parties waived their rights.
 E.g., Homex Realty v. Village of Wyoming (in readings, but we will take it up when we get to
Procedural Fairness)
3. For reasons of deference
 38

 Balance of Convenience, ideas of public interest:

 E.g., Mining Watch.
 New concerns stemming from deference for administrative decision-making, e.g., Domtar

Forms of Permanent ReliefREADING NOTES

Statutory Appeals
 It should be recognized that the most common way to challenge administrative action is by the huge variety of
statutory appeals that exists in individual statutes creating specific tribunals, agencies and statutory powers.
 The scope of these appellate provisions varies greatly byt at their broadest they authorize judicial reversal of the
decision under attack on both questions of law and fact, sometimes after a complete rehearing of the matter in
issue
 Such an intrusive review of an administrative decision is not a characteristic of common law judicial review
 To the extend that the empowering statute creates a right of appeal, these are viewed by the courts as the
legislatively preferred mode of challenging a decision
 It is important to consult the statute that created the statutory powerit may provide for a more extensive mode
of relief than allowed for under principles of judicial review
Judicial Review
 Collateral Attack
o The bulk of judicial review of administrative action takes place within the legal framework of direct
attackaka proceedings where the challenged administrative action or inaction is the direct focus of the
pleadings and of the remedy sought
o But this is not always the case
o The SCC has made it clear that collateral attack is not a matter of right but should be circumscribed
closely by judicial discretion
 Direct Attack
o Until recently the substantive scope of judicial review of administrative action was largely dictated by the
rules on the availability of the various public law remedies
o The state of affairs at the time created pressure for legislative and judicial reform of the law governing the
scope and availability of judicial review remediesIn particular it created pressures to remove
unnecessary technicalities and to expand the various forms of relief to enable courts to have more
flexibility in fashioning relief that was appropriate to the circumstances in a particular case
o The judge was unable to order any thing but a quash when an application for relief in the nature of
certiorari was madethis was a real impediment to administrative justice
o Fortunately, steps were taken to eliminate impediments to an effective system of administrative law
remedies
o In large measure, the species of relief in modern legislation do more than codify the remedial outcomes of
a successful application for the former remedies
o Putting all theses modes of relief under one judicial review remedy meant that difficulties in choosing the
correct remedy were removed or minimized (provided the acts initial thresholds were crossed)
o Also the ability of the court to refer a matter back for reconsiderations in accordance with specific
findings of the court of with directions is a significant remedial addition to the judicial review power of
the court
o The general availability of interim relief is a major improvement over the situation where interim relief
was thought to be unavailable in support of an application for a prerogative remedy or by way of
declaration and where the only mode of interim relief was by an application for an interim injunction or
stay of proceedings generally restricted to a situation where the applicant was proceedings by way of
action and subject to all the restrictions the limitations of injunctive relief generally
o Note that these statutory reforms have come with some uncertaintiesdispute this courts have been able
to find creative and sensible solutions to remedial dilemmas
 39

o There is an issue in some jurisdictions (including BC) as to whether their statutory regimes of judicial
review would allow a person to seek a bare declaration that an administrative regime violates the charter
**Two specific remedial problems should be addressed on permanent relief
1. Effects of Certiorari Relief
 About the impacts on the continuing jurisdiction of a statutory authority over a matter when a quashing
order has been made against it
 In some instances, the award for relief in the nature of certiorari or prohibition will have the effect of
leaving the authority under attacked with the residual jurisdiction in the matter
 However, judicial review does not always undermine the whole authority of the decision maker
2. Limits of Mandamus Relief
 Mandamus is appropriate to overcome the inaction or misconduct of persons charged with the
performance of duties of a public naturebefore the remedy can be given the applicant must show:
[Karavos v City of Toronto]
i. A clear, legal right to have the thing sought but it done, and done in the manner and by the
persons sought to be coerced
ii. The duty whose performance it is sought to coerce by mandamus must be actually due and
incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the
doing of an act which he is not yet under obligation to perform
iii. The duty must be purely ministerial in nature, plainly incumbent upon an officer by operation of
law or by virtue of his office and concerning which he possesses no discretionary powers
iv. There must be a demand and refusal to perform the act which is it sought to coerce by legal
remedy
 This is sometimes sought together with certiorari
 The remedy of certiorari is sought to quash a decision already taken, maldamus is sought to compel that
the decision be retaken in accordance with the law
 Today, the equivalent under the various judicial review procedure statutes would be quashing and
remission back to redetermination in accordance with the law

Interim and Interlocutory Relief and Stays of ProceedingsREADING NOTES

 Where there is authority that the service of an application or certiorari automatically stays a tribunals proceedings,
until the application has been determined the filing of an application for judicial review generally doesn’t to have
the effect of staying proceedings in the underlying decision-making process
 But the absence of any capacity of the part of the court to provide interim relief in support of an application for
judicial review appears to be inappropriate in some situations
 In the modern judicial review regimes express provision is made for the award of interim relief pending the
disposition of an application for judicial review
 In general the availability of interim relief to halt the administrative process is subject to the same principles that
govern the availability of interim injunctions in the private domain
 A key consideration in the balancing of these various interests involved is the public interest, however in the
efficient and timely exercise of statutory power

The Discretion of the CourtREADING NOTES

Introduction
 The court asserts an overriding distraction to deny relief
 The common grounds for such refusals is to intervene are the existence of alternative avenues of recourse, such as
a statutory right of appeal or a more convenient court remedy; prematurity and its opposites, delay and mootness;
lack of practical unity; the misconduct of the applicant; waiver and occasionally the balance of convenience of the
public interest
 The traditional common law discretion to refuse relief on jurisdictional review concerns the parties conduct, any
undue delay and the existence of alternative remedies
 40

 To the extent that most of these bases for the denial of relief are rooted in concerns for the integrity and the
functioning of the administrative process, the appropriateness of the discretionary denial of relief raises issues, in
particular the extent of the claim that the administrative process has over the courts for deference and institutional
respect
 As with other control mechanisms, the discretionary grounds for the refusal of relief have the potential to
legitimate unlawful administrative action and part of our objective in this chapter is to raise questions as to when
it is appropriate for the courts to take that risk of allowing an unlawful decision or course of action to achieve de
facto legal status
 Even if one accepts that breach of the rules of natural justice renders a decision void for the purposes of evading
the effect of a privative clause, that does not mean that decisions tainted by such errors can achieve legally
impregnable status
Alternative Remedies
 The courts will sometimes regard the existence of a specific remedy in the empowering statute as excluding the
availability of common law judicial review as a matter of jurisdiction
 More frequently, the question of alternative remedies is dealt with be reference to the courts overriding discretion
to refuse relief even when the substance of the applicant’s case may have been made out

Harelkin v Univ of Regina (1979)

**The ISSUE can H take his case directly to the courts for JR? or does he have to exhaust statutory options
first?

Factors in assessing adequate alternative remedy:

• Composition of appeal body (senate committee)
• Powers (i.e., what kind of order can it make? Can it hear evidence? De novo hearing or just appeal? How are
earlier decisions taken into account?)
• Procedures by which those powers are exercised
• Cost, expediencies (balance of convenience, respect for legislative intent)

Harelkin v University of Regina, 1979

Facts: H was kicked out of school. His appeal to the university committee was dismissed without his being given a
hearing. He then applied for certiorari and mandamus, rather than pursuing the available right of appeal to a committee
of the university senate. His application was allowed by the Saskatchewan Queens Bench, then reversed on appeal.
Now it was in front of the SCC. Note-there was no doubt that there was a breach of the rules of natural justice.
 41

Issue
 Should the court judicially review the decision?
Outcome
 Note- he is arguing that the breach of rules of natural justice means there is ‘no decision’ to appeal, thus he
should be able to turn to the courts
 The remedies sought are discretionary by nature
 The beach of rules of natural justice do no nullify a decision (even if the decision was nullified a reading of the
statute should that the appeal provisions allow an appeal)
 There is no general rule that breach of rules of natural justice could not be cured on appeal
 Is the right of appeal to the senate committee an adequate alternative remedy?
 Several factors should be taken into consideration (the procedure of the appeal, the composition of the
senate committee etc)
 There was nothing in the university statute about the procedures to be followed by the senate appeals
committee
 The applicant is not entitled to assume that because of the lack of such bylaws the senate committee
would have denied him a hearing
 He should have assumed that the body of superior jurisdiction would give him justice
 One should expect in the context that an appeal is more likely to take the form resembling that of a trial
de novo than a pure appeal
 It should not be presumed that the senate committee would have erred in law and decided that the
applicant was not entitled to be heard by the council committee
 It must be assumed that they would reach the correct decision, and if not then a court could quash it
 The appellants right of appeal to the senate committee provided him with adequate alternative
remedyAND this remedy was more convenient for him and the university in terms of costs and
expediousness
 He should have looked to the internal mechanisms before turning to the courts
 The courts should not use their discretion to promote delay and expenditure unless there is NO other
way to protect a right
 Even though a re-hearing was denied he could still go to the senate committee
 The provisions in the statute make it clear that the courts should use restraint and be slow to intervene
in university affairs by means of discretionary writ when it is still possible for the university to correct
its errors within its own institutional means
Dickinson [Dissent] (+2)
 There was a breach of the rules of natural justice and such breach amounted to a jurisdictional error
 Where there has been a denial of natural justice, certiorari will issue, notwithstanding a right of appeal to an
administrative or domestic body
 Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but in each
case the courts exercising its discretion must consider the convenience and adequacy of the alternative remedy
 The nature of the error will also be considered (if the loss of jurisdiction derives from a misinterpretation of a
statue, a statutory right of appeal may be adequate, but if the breach of natural justice in all but the rarest cases
will render inadequate remedies)
 The nature of the appellant body is a concern (where a statutory right of appeal is provided directly to the
courts, the reviewing court is more likely to refuse certiorari)
 On the other hand, as one moves away from a right to appeal to the courts to a right of appeal to a statutory
tribunal the alternative remedies are more frequently found to be inadequate
 The capacity of the remedial body is also important, where the body may grant the remedy exercises original
jurisdiction perhaps even hearing the matter de novo the remedy will be more often perceived as adequate
 An appeal is simply not a sufficient remedy for the failure to do justice in the first place
 H should be able to look to the courts for relief is he is treated unfairly by the counsel, regardless of what might
have occurred before the senate, had he pursued that route
 At the time he was faced with a choice of appeal or certiorari he had no assurance he would be heard by the
senate committee
 42

 The fact that the senate has adopted procedural safeguards since theses proceedings were initiated clarifies that
issue for the future, but does not in any way affect the outcome of this appeal

Statutory Appeals to the CourtsREADING NOTES

 In addition to cases where the argument is based on the exhaustion of the administrative process through recourse
to the statutory appeals to higher tribunals, or sometimes applications for reconsideration, claims of a sufficient
statutory right of appeals also surface when someone has commenced an application for judicial review rather
than using a statutory right of appeal (which is provided for in the empowering statute)
 Generally, Canadian courts take the position that if the grounds on which the applicant for judicial review is
relying could have been raised in the context of the statutory appeal, the application will be dismissed
 Matters of appeals to the courts and other statutory bodies are dealing with in the Federal Court Act and also the
BC Judicial Review Procedure Act
Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and Orders
 A somewhat different aspect of the issues of alternative remedies is raised when an attempt is made to use the
courts to vindicate the rights created by or arising under a statue or enforce statutory or administrative
prohibitions
 There may be other methods established to the resolution of such matters
Prematurity
 Prematurity (or an absence of ‘ripeness’ as it is described in the US) involves an assertion by the court that, while
the applicant may potentially have a good cause of action, the matter is inappropriate for judicial intervention at
present
 There are a number of reasons why this might be so
o For instance, there is a possibility that the matter may be resolves internally or without the need for court
intervention
o It also surfaces in contexts of applications to prohibit a tribunal from dealing with an issues in favour of
its resolution by a court
o In such instances the reviewing court will generally take into account the legal questions whether the
statutory regime itself explicitly or implicitly obliges or even permits the tribunal to have a first crack at
resolving the issue in question
 Prematurity has another dimensionaside from questions of comparative expertise with respect to the issues in
question, one of the frequent advantages of allowing the tribunal to proceed to a conclusion on the issue in
question in that it will thereby be building an evidential record that will facilitate subsequent judicial review
 Howe brings together the issue of prematurity and the availability of an adequate right o appeal in that the
applicant for relief was confronted by the dual argument that the tribunal itself had not finally rules on the issue
and that there was a right of appeal from the ultimate decision of the tribunal anyways

Howe v Institute of Chartered Accountants (1994)

• Non-disclosure of investigative report in a professional disciplinary proceeding
• Is the JR application premature (and therefore court should exercise discretion to not provide a remedy)?
– Is this (potential) failure to provide NJ fatal to the disciplinary proceeding?
• Principle: should [not] encourage applications ….which have the effect of fragmenting and protracting the
proceedings except in the clearest of cases.” (p. 1068)
• What is Laskin JA on about? What kind of approach “Rule of law” approach is apparent in his dissent?

Howe v Institute of Chartered Accountants of Ontario, 1994

Facts: There was an investigation into Howes conduct, charges on professional misconduct were laid against him.
Before convening the disciplinary committee, they gave H materials pertaining to his case, but they did not give him
 43

the report of its investigation. H then appealed for judicial review claiming that he was entitled to discovery of this
material under the principles of R v Stinchcombe. He is basically saying the decision is procedurally unfair already
because he didn’t have full disclosure (even though it hadn’t been rendered).
Issue
 Can H appeal for judicial review before a decision is made by the tribunal itself?
Outcome
 H would have a right of appeal to the appeal committee form an adverse decision of the committeeit was
specifically mentioned that allegations of breach of rules of natural justice (aka procedural fairness) could be
raise din such an appeal and there was room for the appeal to proceed by way of de novo hearing
 The court is being asked to rule of the adequacy of the disclosure made, before there are any means of gauging
the significance of what has been disclosed against what was in the report
 Consequently, the court is not in a position to identify and weigh the non-disclosure against the evidence
actually given against the applicant
 This court agrees with the divisional court that the application is premature
 The court will not interfere with a preliminary ruling made by an administrative tribunal where the tribunal
never had jurisdiction or have irretrievable lost it
 It is not clear that the refusal to order the production of the documents goes to jurisdiction, much less that it is a
denial of natural justice or a fatal flaw to the exercise of the tribunal of that jurisdiction
 On the pivotal question of whether the claim of privilege was valid, there is nothing on the record to show that
the decision of the committee was not reasonable
 We should not encourage applicants such as these which have the effect of fragmenting and protracting the
proceedings EXCEPT in the clearest of cases
Dissent [Laskin]
 A breach of natural justice amounts or is akin to jurisdictional errorwhere there is a jurisdictional error
arising from a breach of natural justice during the courts of the proceedings, a court is entitled to intervene to
correct the error through the party affected has a right of appeal
 Assuming that the existence of an adequate alternative remedy by appeal affords a court basis to refuse judicial
review, the question remains whether the applicants right of appeal is an adequate alternative remedy for the
beach complained ofin my opinion it would be more efficient and less costly to determine the issue of
disclosure now
 Refusing judicial review would have the effect of denying the appellants right to two procedurally fair
hearings, one at first instance and the other (if required) on appeal
 There is no valid reason why the appellant should have to go through a lengthy and costly public hearing that is
flawed at the onset when this court can correct the flaw now

Homex Realty v Wyoming, 1980

Misconduct of ApplicantREADING NOTES
 On occasion the court will deny a remedy because of the way in which the person seeking relief has behaved
 This is well known grounds for refusal of equitable relief invoking the old maxim those who come to equity must
some with clean hands
 The courts imposed the same type of considerations into the law relating to public law judicial review
Homex Realty v Wyoming, 1980
Facts: The courts determined that H had an right to an opportunity to be heard and they did not recieve this opportunity
before the passing on a by-law. In all the circumstances they are entitled to the remedy sought (quashing of the by law).
Issue
 What remedy, if any, should the court award?
Outcome
 Remedies are discretionary in nature, the court can use its discretion to deny certiorari to an applicant
 The conduct of the party much be such that it has no disentitled them to relief
 The court may, because on the conduct of the applicant deny to grant relief
 Application
 44

In this case looking at all the evidence H tried to put their lands beyond the reach of municipal bylaws,
they were doing shady things
 Because of the conduct of H the court denied to impose a remedy

WaiverREADINGS
 On occasion relief may be denied to an applicant on the basis on waiver or acquiescence
 Most commonly this occurs where the defect complained of is breach of rules of natural justice of bias
 There are some limits to the extent that waiver will be operative
 AT time, breach of natural justice has been regarded as a category of jurisdictional error and this raises some
theoretical problems with using waiver or acquiescence as a basis for the denial of relief in such cases
Balance of ConvenienceREADINGS
 In a very direct sense, the refusal of relief because the applicant has other avenues of recourse available, or on the
basis that there was a chance that the completion of the proceedings by the tribunal would eliminate the applicant
concerns, is based on the premise that it is more convenient to use alternative means of solving the problem
before or as a substitute for seeking judicial review
 Discretionary grounds that focus on the conduct of the applicant generally involve a balance on convenience
considerations
 Balance of consideration sometimes surfaces as an independent basis on which judicial review is denied and other
avenues of relief effectively foreclosed, notwithstanding the fact that the applicant has made out the merits of the
case for judicial review

Mining Watch, 2010 SCC

• Federal EA of open pit mine in BC “down-scoped” to only a screening. Mining Watch JRs this decision to down
scope as having no basis in the statute (illegal).
• Court agrees but exercises discretion to not quash decision to approve project (and therefore not require additional
federal EA)
• What factors were involved in SCC’s exercise of discretion here?
Mining Watch Canada v Canada, 2010
Facts: the feds decided that a comprehensive federal environmental assessment was not necessary (BC had already
done one). They decided that all that was required was screening. Mining Watch, a public interest group applied for
judicial review of this decision. The SCC concluded that the department had acted without statutory authority, they
went on the assess what relief should be awarded.
Issue
 What relief should be awarded?
Outcome
 There should be no re-do of the environmental assessment
 Mining Watch has brought his case to judicial review as a test case for the federal governments obligations
under s.21
 The court will take this at face value, a declaration to the proper interpretation of section 21 and the obligations
of the federal government achieves Mining Watches stated objectives and grants its substantial portion of the
relief asked for
 The appropriate relief would be to allow the application for judicial review and declare that there was an error
in failing to conduct t comprehensive studyBut not further relief should be granted
 The court has the power to exercise discretion to not grant a remedy or alter the remedy sought
 This situation does not justify requiring Red Chris to repeat an environmental assessment process
 45

Scope of Judicial ReviewWhat is Public Enough?

QUESTIONWHAT IS PUBLIC ENOUGH?

Prerogative Powers of the Crown

What are they?
Generally highly political, highly discretionary
– Also, government sometimes acts as a “private” actor to carry on the business of government; e.g.,
leasing, hiring janitorial services, procurement
JR is generally available with respect to exercises of Prerog Powers.
– Why?
When will JR not be available?
– Operation Dismantle, decision to allow review of decision to allow cruise missile testing for breach of s.
7
– The citizenship of “Sir” Conrad Black was not reviewable but not (simply) b/c bestowing honours is a
prerog authority: Black v Chretien (2001) – see p. 949: “[T]he source of the power – statute or
prerogative – should not determine whether the action complained of is reviewable” (at para 44) (see
critical comment by Lorne Sossin: http://lawjournal.mcgill.ca/userfiles/other/448826-47.2.Sossin.pdf)
– Hupacaseth First Nation v. Attorney General, 2015 FCA 4; Review of decision to enter bilateral trade
agreement allowed (but challenge fails -see paras 59-70.)

The Reach of Public Law RemediesREADING NOTES

 The basic question: where an entity is public, such that it is subjected to judicial review? [this can be difficult to
answer]
 In recent times the expansive approach to what constitutes public and the recognition that some authorities
possess both public and private role makes the distinction much harder
 There are some contexts where it wont matter if the litigation it technically public or private (the remedy would be
the same and the allegations may be located in either the private or public domain)
 Butthere are some occasions where the private-public distinction is crucial
o For instance, the principle statutes of judicial review remedies (Federal court act and Judicial review
procedure act) of BC contains formulas that force the issue of whether the matter in dispute falls within
the statutes conception of the reach of public law remedies
 It is also significant in situations where the issue of whether the body or function is significantly public to qualify
for review by way of public law remedies is in reality an issue as to the extent to which courts can interfere with
the decision in question
 Although the distinction between government and the private sector is not maintained as rigidly in the
jurisprudence, the different conceptions of their roles and obligations often lead to disputes about the availability
of judicial review
Dunsmuir v New Brunswick, SCC decided that not employees under the statute are entitled to a fair hearing
2008 before they were dismissedthose excluded had not access to public law remedies
(only contractual ones) such that they may have no entitlement to a hearing before
dismissal and not possibility of restatement as a remedy
Quebec v Cyr, 2008 SCC concluded that public law remedies were available to allow an automobile
mechanic to challenge the SAAQ’s decisions to revoke his accreditation (dispute the
SAAQ having contracted out of the duty to inspect automobiles to the mechanic’s
employer)public law remedies were available pursuant to An Act Respecting
Administrative Justice which places procedural requirements on an administrative
authority prior to making an unfavorable decisions concerning a permit or licence
 46

*SAAQ had not insulted itself from the requirements of administrative law by
implementing a contract-based scheme to meet its statutory duties
R v Church Assembly The remedies of certiorari and prohibition where available whenever any body of
Legislative persons have legal authority to determine questionsthis was interpreted
subsequently as confirming the reach of public law remedies to bodies that were
genuinely statutory

Volker Stevin NWT (‘92) Ltd v NWT

• Decision re status as a Northern Business
– Authority for this decision?
• Reviewable.
• How is this decision different from a procurement decision? (such that JR applies)
• “Machinery of government”
Volker Stevin NWT Ltd v Northwest Territories, 1994
Facts
An advisory committee of civil servants and business representatives was established under a directive attached to a
policy document of the government of NWT. Its purpose was to designate businesses as Northern Businesses (that were
then eligible for various government incentives). The directive also set out the criteria for qualifying as a northern
business and provided for an appeal process. The advisory committee revoked the applicant’s designation and the
applicant applied for an order in certiorari to quash the decision.
Issue: Was judicial review available here?
Outcome
 Trial Judgedecisions under the policy document were not amendable to judicial review. He said that in the
context of this case judicial review is available only to review the exercise of statutory authority. The adoption
of the policy and its administration were not an exercise of statutory authority but rather governments
procurement of goods and servicesbeing commercial decisions theses were not subject to review.
 On AppealThe judge disagreed!
 Judicial review is available to review decisions, not only of public bodies exercising statutory duties but also of
those administrative bodies which obtain authority from prerogative powers; their decisions affect rights or
other who come under their direction.
 The committees, the business incentive policy and authority exercised by virtue of the policy go beyond mere
decisions by civil servants regarding procurement of goods and services.
 While the court must be careful not to assume jurisdiction where none exists, the ability of judicial review has
expanded over the years
 Exact limits on the remedy by way of certiorari have never been, and ought not be specifically defined.
 Decisions of administrative bodies are reviewable on certiorari if an analysis of their functions discloses a duty
of procedural fairness
 The business incentive policy monitoring office, its officers and the committees created by the policy are part
of the machinery of government decision makingwhile the source of the power is not statutory the policy is
recognized in the government contract regulations and must be applied by all government departments in
assessing tenders submitted to the government
 Purely commercial decisions relating to the procurement of government goods and services generally do not
fall within the class of cases which would be subjected to judicial review, the decisions here go beyond that
 List a number of facts that lead to this conclusion [Page 934]
 There are aspects that bring in the public duty and fairness component
 Decisionthe decisions was amendable to review for procedural unfairness in an application for certiorari; the
court remitted the matter to the chambers judge for consideration of whether there was a denial of procedural
fairness in the revocation of the applications designation.
 47

Air Canada v Toronto Port Authority

• JR remedies are “available only against exercises of power that are public in character.” (at para 55)
– Note context: Interpreting s. 18(1) of the Federal Courts Act
• What is public?
– Principles in para 60.
Air Canada v Toronto Port Authority, 2011 FCA
Facts
At issue in this cases was the reviewability of bulletins issues by the Toronto Port Authority respecting the allocation of
landing sports at Billy Bishop Airport in Toronto, and its actions in grand parenting the existing landing spots allocated
to Porter Airlines. Important in this case is the list of criteria to be considered when issues arise as to whether a
particular decision or decision maker was amenable to public law judicial review.
Issue: are the actions and bulletins of the authority sufficiently public to attract judicial review under section 18.1 of the
Federal Court Act? Aka was the Toronto Port Authority acting as a “federal board, commission or other tribunal”
when it engaged in the conduct described in the bulletins?
Outcome
 An application for judicial review under the Federal Courts Act can ONLY be brought against a federal board,
commission or other tribunalthis is mandatory
 What is a Federal Board, Commission or other Tribunal?
 It is defined in subsection 2(1) of the Federal Courts Actonly those that exercise jurisdiction or
powers conferred by or under an Act of Parliament or an order made pursuant to crown prerogative can
be federal boards, commissions or other tribunals
 These words require us to examine that particular jurisdiction of power being exercised in a particular
case and the source of that jurisdiction or power
 This will turn on whether or not there is a particular federal act or prerogative underlying the
administrative decision makers power or jurisdiction (example: in Anisman the source of the
administrative decision makers power was provincial legislation, and so judicial review under the
Federal Court act was not available)
 In this case all parties accept that the actions disclosed in the bulletins find their ultimate source in
federal law
 BUTthe port authority argues this alone is not enough to satisfy the requirement; that to support this
the conduct or power exercised must be of a public character
 Every significant federal tribunal has public powers of decision making, but alongside theses are
express or implied powers to act in certain private ways (such as reneging and managing premises,
hiring staff)in a technical sense each of these powers finds its ultimate source in federal statute, but
many of those powers cannot be reviewable
 This then begs the question of what is public and what is private? perhaps there can be no comprehensive
answer
 In determining public-private issues ALL circumstances must be weighed
 There are a number of relevant factors to determine if a matter is colored with a public element sufficient to
bring it into the purview of public law. Whether or not any one factor or combination of particular factors tips
the balance and makes a matter public depends on the facts of the case and the overall impression registered
upon the court
 Relevant Factors:
 The Character of the Matter for Which Review is Sought
o Is it a private, commercial matter or is it of broader import to members of the public?
 The Nature of the Decisions Maker and its Responsibilities
o Is the decision maker public is nature, such as a crown agent or a statutorily-recognized
administrative body and charged with public responsibilities?
o Is the matter under review closely related to those responsibilities?
 The Extent to which the decision is founded in and shaped by law as apposed to private discretion
o If the particular decision is authorized by or emantes directly from a public source of law such
as statute, regulation or order, a court will be more willing to find that the matter is public
 48

o This is all the more the case if that public source of law supplied the criteria upon which the
decision is made
o Matters based on a power to act that is founded in something other than legislation, such as a
general contract of law or business considerations, are more likely to be viewed as outside of
the ambit of judicial review
 The Body’s relationship to other statutory schemes or other parts of government
o If the body is woven into the network of government and is exercising a power as part of that
network, its actions are more likely to be seen as a public matter
 The extent to which a decision maker is an agent of government or is directed, controlled or
significantly influenced by a public entity
o For example: private persons retained by government to conduct an investigation into whether
a pubic official misconducted himself may be regarded as exercising an authority that is public
in nature
o A requirement that policies, by-laws or other matters be approved or reviewed by government
may be relevant
 The suitability of public law remedies
o If the nature of the matter is such that public law remedies would be useful courts are more
inclined to regard it as public in nature
 The existence of compulsory powers
o The existence of compulsory power over the public at large or over a defined group such as
professionals, may be an indicator that the decision is public in nature
o This is to be contrasted with situations where parties consensually submit to jurisdiction
 An ‘exceptional’ category of cases where the conduct has attained a serious public dimension
o Where a matter has a very serious, exceptional effect on the rights or interests of a broad
segment of the public, it may be reviewable
 Application
 Conclusion=the matters set out in the bulletins (the matters subject to review here) are private in
naturein dealing with these matters the port authority was not acting as a federal board, commission
or other tribunal
 They were not acting as a crown agent
 The letters of patent of the authority draw a distinction between matters on which it acts as a crown
agent and matters which is does notsubsection 7.2 says the authority is authorized to manage and
operate the city airport, for this purpose it is not a crown agent
 The private nature of the port authority is another relevant factorthey receive letters of patent, one
conditions of this is that the authority was and would remain financially self-sufficient (they may
purpose private purposes such as revenue generation)
 In no way is it woven into the network of government or exercising a power as part of that network
 This is no statute or regulation that constrains the authority discretion, or that supplies criteria for
decision making concerning the subject matter discussed in the bulletins
 There is no evidence showing that the matters described in the bulletins are significantly influenced by
government or another public entity
 There is no legislative provisions that would lead to any such finding of instructions, direction or
influence
 There is no evidence that in particular instance that the matters described in the bulletin fall within the
exceptional category of cases
judicial review does not lie in these circumstances

Application
Are decisions of University appeal bodies (e.g., procedural or substantive appeals of grades) subject to JR?
– E.g., Khan v University of Ottawa
Are decisions of sports bodies (e.g., eligibility of a player to compete) subject to JR?
– E.g., West Toronto United Football Club v Ontario Soccer Assoc., 2014 ONSC 5881
 49

PROCEDURAL FAIRNESS: DUTY OF FAIRNESS

The Duty of Fairness

READING NOTES
 Parliament and provincial legislatures have prescribed detailed procedural requirements in statutes (or have
delegated this task to cabinet or to the administrative decision makers themselves)
 The Enabling Statute
o To ascertain whether it is required by law to afford an affected individual procedures and, if so what
procedures, a public authority must first look to the terms of its enabling statute
o Enabling statutes may set out a detailed list of procedural requirements that decision-makers must follow
in making specific decisions
 Subordinate Legislation: Administrative Policy and Practice
o Rather than prescribing specific procedures in an administrative boards enabling statute, legislatures may
choose to statutorily delegate to the executive the powers to enact regulations or rules that establish
procedural requirements
o Regulations and rules made pursuant to statutory authority, known as “subordinate legislation” are
binding on those party’s subject to them
o The main reason motivating delegation of this power includes expertise and efficiency
o The delegation by legislatures of this rule making power to the executive branch, including administrative
tribunals, raised a “principle-agent” problem (a risk that those who are making the rules are not following
the wishes and expectations of those who delegated the power
 To minimize this risk, delegated legislation is subjected to various mechanisms of accountability
and scrutinymany jurisdictions in Canada have enacted laws providing for legislative scrutiny
of subordinate legislation
 50

 At the federal, the Minister of Justice is also statutorily required to verify that statutes and
regulations comply with the Charter and Bill of Rights
o Another accountability mechanism is public consultation
 The most common form of public consultation is achieved by requiring regulatory bodies or
departments, by policy or statute, to provide public notice of regulatory initiatives, including draft
regulations as well as giving an opportunity to those parties affected to comment
o Finally, a measure of accountability may be achieved through the judicial review of subordinate
legislation.
 The validity of rules regulations may be challenged where statutorily prescribed mandatory stops
for their effective enactment were not followed
 Subordinate legislation may also be challenged on substantive grounds [just like any other statute,
regulations and rules must comply with the charter etc.]
 They are also subject to judicial review if ultra vires [regulations must fall within the scope of and
respect the limits prescribed by the regulating-making or rule making authority conferred in the
delegating statute]
 There is a strong presumption that those statutory powers that authorizes the making of rules
establishing the procedure of adjudicative bodies require the subordinate legislator to comply
with the principles of procedural fairness
 There is an implied requirement in the delegating statute that procedural regulations and rules
made under the statutory power comply with the common law, and the vires of non-compliant
subordinate legislation is open to challenge.
 Policies and Guidelines
o Public authorities will frequently issue guidelines and policies, sometimes regarding the procedural
aspects of decision-making, which do not set down legally binding requirements
o The power to make these soft law instruments may, but need not be provided for in the authorities
enabling statute
o While not strictly law, soft law instruments, like guidelines often play a dominant role in public
authorities decision-making
 General Procedural Statutes
o Some Canadian jurisdictions have enacted general procedural statutes, which constitute an additional
source of procedural requirements (BC Administrative Tribunals Act)
o Once triggered, these codes prescribe common procedural standards for the decision-makers falling
within their ambit
o The scope of the application of these procedural codes may be modified or limited by a public authorities
enabling statue and delegated legislation, and great care must be taken to read these legislative procedural
sources together to determine procedural entitlements in a given case.
o These general procedural statues, when they apply, provide for procedural standards of varying
specificity, including rights to reasons for decision and the right to make representations
 Common Law and Procedural Fairness
o If a particular procedure is not required by a public authorities enabling statute, valid delegated legislation
or general procedural statute, or if the procedure is required only to a limited extent, the authority may
nonetheless be obligated to provide an affected party with fuller procedural protection under the
principles of common law procedural fairness
o Under these judge make principles, a party affected by a public authority’s decision is entitled to be hard
by the authority in an impartial independent hearing
o The concept of procedural fairness descends from the rules of natural justice

Copper v Board Works for Wandsworth District, 1863

Cooper v Board Works for Wandsworth District, 1863
 51

Facts: The Metropolish Local Managements Act section 76 requires anyone intending to build a new house to give
notice to the board seven days before beginning construction, and gave the board power in default of such notice to
cause such houses or buildings to be demolished or altered. Cooper was a builder and employed to build a house, he
claimed he gave notice to the board, the board denied getting notive. Cooper admitted be began construction within 5
days from when he said he gave notice. He built a substantial part of the home and the board tore it down without
giving him any notice.
Issue
Outcome
 Cooper argued that the powers of the board are subject to qualifications; no man is to be deprived of property
without having an opportunity to be heard
 The board ought to have given notice to the plaintiff, and to have allowed him to be heard
 There is no harm that could happen to the board from hearing the party before they subjected him to a loss so
serious
 On the other hand there are many advantages in him being heardthey would be fulfilling the purpose of the
statute
 Many exercises of power of the board would be in the nature of judicial proceedings, certainly whent hey are
appealed form the appellant and respondent are to he heard as parties
 The board is not justified under the statute because they have not qualified themselves for the exercise of their
power by hearing the party to be affected by their decisions

Pre-Nicholson:
• Cooper, 1863
• In spite of Cooper, test for the application of “natural justice”, i.e. what was “judicial” or “quasi-judicial:
‘Where the administrative decision-maker had “legal authority to determine the rights of subjects” and the
“superadded” characteristic of “a duty to act judicially.”’
Lord Hewart, in R. v. Legislative Committee of the Church Assembly, [1928] 1 K.B. 411
• Differences between natural justice (NJ) and procedural fairness (PF) ?

Nicholson – NJ ≠ PF
• Establishes general duty of fairness in administrative decision-making:
Laskin J.
“[I]n the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive
field there is a general duty of fairness.”
This duty of fairness involves “something less than the procedural protection of traditional natural justice.”

Finding the common law duty of fairness in legislative silences – 3 theories of interpretation: [Nicholson]
1. The legislature was forgetful
– Supplying omission
2. The legislature spoke indirectly
3. Common law constitutionalism/common law bill of rights
– Idea of presumption that leg intended all powers to be exercised fairly (as part of the rule of law)

Nicholson v Norfork Police Commissioners, 1979

The Police Act, RSO 1970, c 351; Regulation 680, s 27(b):
27. No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and
final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein
affects the authority of a board or council,…
b) to dispense with the services of any constable within eighteen months of his becoming a constable.
(p. 78)
 52

• Statutory interpretation Q – how does majority fit duty of fairness into these provisions?

• How is Nicholson a key point of departure for a more deferential (functionalist) model of JR?
• How might it be argued that it is not an example of a deferential (functionalist) model of JR?
– How does this decision impact the Court’s scope of review of administrative decision-makers?

Modern Common Law Doctrines: Dimensions and Limitations of Procedural FairnessREADING NOTES
o Following Cooper, the courts willingness to impose hearing requirements on decisions makers became
contingent on how they characterized the nature of their decision-making power
o Decisions makers exercising judicial or quasi-judicial functions were required to comply with natural
justice, while ministers, public servants, or tribunals exercising so called administrative functions were
not
o In a series of decisions from 1964-1970 the English courts decided that they would also review
administrative decisions for breach of implied procedural protections
Nicholson v Haldimand-Norfolk Regional Police Commissioners, 1979
Facts: N was a constable for 15 months and was discharged by the board without being given an opportunity to make
submissions. The Police Act section 27 allowed for this for employees who were within 18 months of becoming a
constable. N sought a review and succeeded in the divisional court, an appeal by the board was allowed. N then
appealed to the SCC.
Issue: Can the board arbitrarily fire him?
Outcome
 A constable who has served more than 18 months is afforded protection against arbitrary discipline or
discharge through the requirements of notice and hearing and appellate review But there is no protection at
all between the observance of natural justice and the arbitrary removal in that case of a constable who has been
working less and 18 months
 The old common law rule that an officer holder may be put out without reasons or prior notice ought to be re-
examined
 Although N clearly cannot claim the procedural protections afforded to a constable who has worked more than
18 months service, he cannot be denied any protectionhe should be treated fairly no arbitrarily
 The done of a power must “act fairly” is a long settled principle governing the exercise of discretion, though its
meaning is inevitably imprecise
 What rightfully lies behind this emergence is the realization that the classification of statutory functions as
judicial, quasi-judicial or administrative is often very difficult
 To endow someone with procedural protections, while denying others any at all would work injustices when
the results of statutory decisions raise the same serious consequences for those adversely affected
 In the present case the consequences are serious
 The appellant should have been told why his service was no longer required and given an opportunity, whether
orally or in writing to respond
 The board itself, would wish to be certain that it had not made a mistake in some fact or circumstance which it
deemed relevant to its determination
 Once it had the appellants response, it would be for the board to decide on what action to take, without it being
reviewable elsewhere
 Status is office deserves this minimal protection, however brief the officer is held
Martland (Dissenting)
 His statute was that of a constable on probation
 The very purpose of the probationary period was to enable the respondent to decide whether it wished to
continue his service beyond the probationary period
 Its decision was purely administrative this being so it was under no duty to explain to the appellant why his
services were not longer required or give him an opportunity to respond
 53

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

The Duty of Fairness is a ‘stand alone’ ground of review.

“[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a
reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be
regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which
any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of
justice on the basis of speculation as to what the result might have been had there been a hearing.” (para 23)

Structure of Analysis
1. Has the the threshold for the application of the duty been met?
– The duty of fairness attaches to the exercise of statutory authority (primarily) and other exercises
of public authority (e.g., under Crown prerogative).
– What is exempted from the duty? Why not all public decisions/actions?
2. What is the content of the duty in the given context?

Knight v Indian Head School Division, 1990

1. Threshold test in three parts:
i. The nature of the decision (i.e., admin or leg? sufficiently determinative?)
ii. The relationship between the decision-making body and the individual
iii. The effect of the decision on the individual’s rights (privileges, interests..)
2. Duty of fairness applies to public office holders, including those held ‘at pleasure’

Office at Pleasure
 54

P. 86 – 3 categories of employment relationships

1) Master & Servant
2) Office at Pleasure
3) Removal only for cause
Why does majority apply a public duty of fairness to the 2nd category?

Elaborations on the Modern DoctrineREADING NOTES

 Canadian case law following Nicholson was marked by the gradual expansion of the duty of fairness to areas of
administrative decision making, including the decisions of correctional authorities affecting the rights, privileges
and interests of inmates that had previously escaped judicial sanction for compliance with the rules of natural
justice
 The four majority in Knight embraced the conception of procedural fairness as a free-standing common law right,
thus eschewing the need to find in the decisions makers enabling statute any provision that expressly or impliedly
conferred on the office holder a right to be heard (this Conception has been reiterated by a unanimous SCC since
then)
 The General Rule= is that the duty of fairness applies, but the general rule will yield to clear statutory language or
necessary implication to the contrary.

Knight v Indian Head School Division No 19, SCC 1990

Facts: The appellant board of education dismissed the respondent director of education after he refused to accept a
renewal of his contract for a shorter term that the original. He brought an action for wrongful dismissal. The SCC held
that the board did not need to show cause for the dismissal either under the contract of employment or the Education
Act. The respondent then argued that he was entitled to procedural fairness before being dismissed.
Issue: Was the respondent entitled to procedural fairness? [Is procedural fairness due to an office-holder at pleasure?]
Holding
 Majority-Procedural fairness was due BUT the requirements of procedural fairness had been satisfied
 Dissent [3]-Held the appellant owed no duty of fairness.
Analysis
 Procedural Fairness
 There may be a general right of procedural fairness, autonomous of the operation of any statute,
depending on considers of three factors which have been held by the court to be determinative ot such a
right
 Note-the duty to act fairly does not depend on doctrines of employment law, but stems from the fact
that the employer is a public body whose powers are derived from statutepowers that must be
exercised in accordance with administrative law
 Three Factors [Whenever these three elements are found, there is a general duty to act fairly on a public
decision making body]
1. The nature of the decision
o There is no longer a need to distinguish between judicial and quasi-judicial
administrative decisions [unless the statute mandates it]
o The distinction is less important and is not helpful [after Nicholson]
o But not all administrative bodies are under a duty to act fairly, decisions of a
legislative and general nature can be distinguished in this respect from act of more
administrative and specific natures (which do no entail such a duty)
o The finality of the decision will also be a factor to considera decision of a
preliminary nature will not in general trigger the duty to act fairly, while a decision of
a more final nature may
o In this case, the decision by the board was final and specific in natureas such the
decision to dismiss could possibility entail the existence of a duty to act fairly on the
part of the appellant board
2. The relationship between employer and employee
 55

o Lord Reid has classified the possible employment relationships into three categories:
(1) the master and servant relationship, where there is no duty to act fairly when
decision to terminate the employment (2)the office held at pleasure, where no duty to
act fairly exists, since the employer can decide to terminate the employee for no other
reason than his displeasure (3) the office from which one cannot be removed, except
for cause where there exists a duty to act fairly on the part of the employer
o In this case the relationship is not one of pure master and servant (since it encompasses
some element of a public nature)
o The SCC notes that the categories are kind of archaic and that the second category
does not automatically exclude procedural fairness for employment falling into that
class
o The justification for offer the office holder at please the right to procedural fairness is
that, whether or not just cause is necessary to terminate the employment, fairness
dictates that the administrative body making the decision be cognizant of all relevant
circumstances surrounding the employment and its termination
o The power exercise by the appellant board are delegated statutory powers, which as
much as the statutory powers exercised directly by government should be put only to
legitimate use
o The public has an interest in the proper use of delegated powers by administrative
bodies
o Since the SCC concludes that both of the last two classes required an administrative
body to act fairly, the necessity of characterizing the employment into one of the two is
unnecessary
o The characterization is into incompatible with the imposition to act fairly on the part of
the board
3. The impact of the decision on the employee
o There is a right to procedural fairness only is the decision is a significant one that has
an important impact on the individual
o Various cases have recognized that the loss of employment against an office holder is a
significant decision that could justify imposing a duty to act fairly on the
administrative decision making body
 On the whole the nature of the decision, the relationship existing between the respondent and appellant and the
impact on the respondent of the impugned decision lead to the conclusion that there was a general duty to act
fairly on the party of the board in this case.
 The SCC then looked the relevant statutes to see if there are any provision which might override this
presumption that procedural fairness applies
 The SCC looked at the Education Act and the Employment contract but found that there is no explicit
provision overriding the presumption that the parties intended procedural fairness to apply
 The Content of the Duty to Act Fairly
 Like the principles of natural justice, the concept of procedural fairness is variable and its content must
be decision in the specifics of each case
 The closeness of the administrative process to the judicial process should indicate how much of those
governing principles should be imported into the realm of administrative decision making
 In this case the Sask. Court of Appeal found that he basic requirements of the duty to act fairly are the
giving of reasons for the dismissal and a hearing (adding that the content will vary case to case).
 Since the respondent could be dismissed at please, the content of the duty of fairness would be
minimal, and notice of reasons for the appellant of the Boards dissatisfaction with the respondent’s
employment and affording him with an opportunity to be heard would be sufficient to meet the
requirements of fairness
 Compliance with the Duty to Act Fairly
 Through the negotiation sessions between the respondent and the board, the respondent was made fully
aware of the grievances of the board and had ample opportunity to present his side of the story
 Every administrative body is a master of its procedure and need not assume the trappings of a court
 56

 The aim is not ‘procedural perfection; but to achieve a certain balance between the need for the
efficiency and predictability of outcome
 Therefore, in this case it the respondent had knowledge of the reasons for his dismissal and had an
opportunity to be heard even if there was no structures hearing then procedural fairness was satisfied
 He knew the reasons; the requirements of formal reasons would achieve no more than impose on the
board a purely procedural requirement (which go against the states principles of flexibility in the
administrative procedure)
 The board made itself sufficient available for discussion through meetings with the respondent and his
lawyers, each party’s concerns were made fully aware to the other
DISSENT [Sopinka]
 Do not agree that the board owed a duty of fairness
 The appellant was entitled to dismiss the respondent without cause
 The relationship falls into the second category
 The general rule in this category is that it does not attract a duty of procedural fairness because the employer
can terminate the employment without cause and without giving any reason
 It would be inconsistent with the above to require the employer to give reasons for terminating the employee’s
employment in order to comply with the dictates of procedural fairness
 It a duty arises, it would be of a limited nature
 The door is not completely shut on the existence of a duty of fairness in relation to the termination of an office
held at pleasure, an exception may be made in special cases where a sound basis for an exception is put forward
 In order to bring oneself into the exception to the general rule, an employee is the position of the respondent
must identify the statute, regulations or contractual provisions governing the relationship, provisions which
expressly or by necessary implicitly infer upon the employee a right to be heard or to make representations
 To do so the provision of the governing instruments must be identified with specifically or by implication point
to a duty of fairness
 There is nothing in the Education Act that would impose a requirement of fairness

Dunsmuir v New Brunswick, 2008

Dunsmuir was court clerk and legal officer
– Statutory element -- Position established in statute
– Contractual element -- Statute set out that termination of employment will be governed by contract (s. 20,
Civil Service Act)
“A public authority cannot contract out if its statutory duties. But where a dismissal decision is properly within the public
authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for
imposing a duty of fairness.” (para 106)
Why not?

The Dunsmuir ExceptionREAIDNG NOTES

o In Dunsmuir v New Brunswick, 2008 SCC, the SCC changed the law in relation to the application of
procedural fairness to the dismissal of public office holders as laid down in Knight
o It held that where a public office-holder’s employment is governing by an employment contract, disputes
arising to his or her dismissal should be resolved according to the express or implied terms of the contract
and any applicable statutes and regulations, just like any contractual employee
o In other words, a public authority that dismisses an employee pursuant to an employment contract is not
subject to an additional public law duty of fairness and the public employee seeking to challenge the
dismissal is limited to ordinary contractual remedies
o The court justified this change on several grounds:
 It noted it was difficult to determine in practice whether a position had a sufficiently strong
‘statutory flavour’ to be considered an office and attract the application of the duty of fairness
 57

 The public law remedy for violation of procedural fairness in this context (the quashing of the
termination decisions, leading to the employee’s reinstatement and an entitled to accrued salary
and benefit) was less principles that the private law remedy of adequate notice or pay in lieu of
notice because the amount of relief depended not on the employee’s situation but on the length of
time it took for resolution of their judicial review application
o The court also noted that a public law duty of fairness may still apply in the following three
circumstances:
1. Where a public employee is not protected by contract of employment (judges, ministers, officers
who fulfil constitutional defined roles)
2. Where an officer holder is expressly subject to summary dismissal
3. Where a duty of fairness “flows by necessary implication from a statutory power governing the
employment relationship (including for example, a statute that provides for notice to employees
of motion to dismiss)
o In Canada v Mavi, the SCC emphasized the limited nature of the Dunsmuir exception when it rejected the
governments argument that no procedural fairness obligations were owed to individuals who had
sponsored relatives for permanent residency where the state sought to recover, pursuant to undertakings
signed by the sponsors, the cost of social assistance benefits provided to the sponsored relatives because
the undertaking established a contractual relationship between sponsors and the state.

SUMMARY OF DEVLOPMENTS
Pre Nicholson
 Only NJ, applied to quasi-judicial decision
Post Nicolson/Pre-Cardinal
 NJ applied to quasi-judicial, PF applied to admin decision
Post-Cardinal
 Duty of fairness across all administrative decision making, subject to threshold….

Post-Cardinal
 Duty of fairness across all administrative decision making, subject to threshold (i.e., no
legislative decision at stake, and decisions are sufficiently determinative)
Post-Knight
 Duty of fairness extended to public office holders, including those appointed “at pleasure”
Post-Dunsmuir
 Duty of fairness no longer applies to public office holders who have contracts governing terms of
employment

More Reading Notes

 The Baker Synthesis
o By the time the SCC rendered its judgement in Baker, the leading case on procedural fairness, the basic
features of the duty has been set
o Whether the duty of fairness applies to a particular decision depends on a variety of contextual factors,
including the nature of the decision being made and the process followed in making it; the nature of the
statutory scheme and the terms of the statute pursuant to which the decision making operates, the
importance of the decision to the individual affected, and the legitimate expectations of the person
challenging the decision
 58

o The degree of fairness required for a particular decision and the specific procedural content of the duty
also hinge on an assessment of these and other factors, including deference to the procedural choices
made by the decision maker
 Constitutional and Quasi-Constitutional Sources of Procedures
o Procedural rights also receive constitutional protection under the Charter and other quasi-constitutional
instruments (including the Bill of Rights)
o From the perspective of a public authority seeking to determine the procedures it is legally obligated to
provide to a party wishing to ascertain what procedures they are owed in a given decision-making
context, resort to constitutional and quasi-constitutional procedural sources because necessary in three
main circumstances
1. Legislation may expressly certain procedural safeguards or provide a lower level of safeguards,
leaving room for common law supplementation. In such cases only constitutional and quasi-
constitutional norms may override the statute and mandate a more significant procedural
protection
2. The constitutional and quasi-constitutional provisions may establish procedural claims in
circumstances where none existed previously at common law
3. These provisions may mandate a high level of procedural protections than would the application
of the common law
o The Canadian Bill of Rights
 This area of application is confined to the federal domain [no relevant to provincial statutes or
decision making under provincial justification]
 The Bill of Rights purports to be applicable to both prior and subsequent legislation in that it
declares its primacy over other legislation unless the legislation expressly provides that it
overrides it
 This is generally treated as being effective in giving it a quasi-constitutional status
 For the purposes of administrative law the principal procedural protections are found in section
1(a) and 2(e)BELOW
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist
without discrimination by reason of race, national origin, colour, religion or sex, the following human
rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and
the right not to be deprived thereof except by due process of law;
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it
shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate,
abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or
freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or
applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice
for the determination of his rights and obligations

o The Charter
 The main source of procedural protections in the Charter is section 7
7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
 As opposed to section 2(e) of the bill of rights (which has been held to be restricted to procedural
claims), this section is not conditioned by any reference to a hearing
 As a consequence, it was held in 1985 by the SCC to have a substantive as well as a procedural
component
 59

Administrative Tribunal Act, SBC 2004, c 45 (ATA)

General power to make rules respecting practice and procedure
11 (1) Subject to an enactment applicable to the tribunal, the tribunal has the power to control its own processes and may
make rules respecting practice and procedure to facilitate the just and timely resolution of the matters before it.
(2) Without limiting subsection (1), the tribunal may make rules as follows:
(a) respecting the holding of pre-hearing conferences, including confidential pre-hearing conferences, and
requiring the parties and any interveners to attend a pre-hearing conference;
(b) respecting facilitated settlement processes;
(c) respecting receipt and disclosure of evidence, including but not limited to pre-hearing receipt and disclosure
and pre-hearing examination of a party on oath, affirmation or by affidavit;
(d) respecting the exchange of records and documents by parties;
(e) respecting the filing of written submissions by parties;
(f) respecting the filing of admissions by parties;
(g) specifying the form of notice to be given to a party by another party or by the tribunal requiring a party to
diligently pursue an application and specifying the time within which and the manner in which the party must
respond to the notice;
(h) respecting service and filing of notices, documents and orders, including substituted service;
(i) requiring a party to provide an address for service or delivery of notices, documents and orders;
(i.1) requiring an intervener to provide an address for service or delivery of notices, orders and other documents;
(j) providing that a party's address of record is to be treated as an address for service;
(j.1) providing that an intervener's address of record is to be treated as an address for service;
(k) respecting procedures for preliminary or interim matters;
(l) respecting amendments to an application or responses to it;
(m) respecting the addition of parties to an application;
(n) respecting adjournments;
(o) respecting the extension or abridgement of time limits provided for in the rules;
(p) respecting the transcribing or tape recording of its proceedings and the process and fees for reproduction of a
tape recording if requested by a party;
(q) establishing the forms it considers advisable;
(r) respecting the joining of applications;
(s) respecting exclusion of witnesses from proceedings;
(t) respecting the effect of a party's non-compliance with the tribunal's rules;
(u) respecting access to and restriction of access to tribunal documents by any person;
(v) respecting witness fees and expenses;
(v.1) respecting filing and service of a summons to a witness;
(w) respecting applications to set aside any summons served by a party;
(x) requiring or allowing that a process be conducted electronically, with or without conditions.
(3) In an application, the tribunal may waive or modify one or more of its rules in exceptional circumstances.
(4) The tribunal must make accessible to the public any rules of practice and procedure made under this section.
(5) Rules for the tribunal may be different for different classes of disputes, claims, issues and circumstances
 60

Threshold Test

Threshold for a Duty of Fairness: The Legislative Limit

The Legislative Limit

• Legislative in function/legislative decision- maker (by legislative or other bodies)
• Legislative in nature (character of decision

Are Cabinet decisions subject to a duty of fairness?

What does Cabinet do?
 In some functions, Cabinet is formulating a legislative proposal, in others they are acting under authority
delegated by statute.
Inuit Tapirisat vs. Courtoreille
 Principle – W. Bagehot: “A cabinet is a combining committee --- a hyphen which joins, a buckle which fastens,
the legislative part of the state to the executive part of the state.”
Criticism of not applying the duty of fairness to Cabinet in its role in preparing legislative proposals:
 “It does not follow from the fact that executive action is required to initiate legislation that that kind of executive
action is legislative. That a device is needed to ignite an internal-combustion engine does not make the ignition’s
function that of an engine.”

Fairness-ThresholdsREADING NOTES
 Whether general procedural codes, common law procedural fairness, and constitutional and quasi-constitutional
sources are available to supplement these procedures, will depend on whether the threshold for their application
has been met
 The judge made threshold for the application of the duty of fairness has been to a varying extent incorporated into
the thresholds for some general procedural codes
 61

The Common Law Threshold

 Historical Overview
o Following the courts acceptance in Nicholson that in some circumstances administrative decision-makers
owed affected parties a duty of fairness, the highly formalistic judicial/administrative classification
exercise lost much of its importance in administrative law
o Following Nicholson, it remained unclear whether there were two district levels of procedural protection:
natural justice for decision-makers exercising judicial and quasi-judicial functions and procedural fairness
for those exercising administrative functions; and whether there were any decisions to which procedural
protections did not extend
 In other words, was there still a threshold, and if so how was it defined? These questions were
explored by the SCC shortly after Nicholson
Martineau v Matsqui Inmate Disciplinary Board, 1980
Two Important Features of the Case:
 This case involved prison discipline, which was a domain prior to Nicholson the courts
showered little or not sympathy to the procedural claims of inmates
 The primary concern here was with a preliminary issue, the allocation of original judicial
review jurisdiction between the Trial and Appeal divisions of the Federal Courts
FACTS: Two inmates were disciplined, and alleged that they were not given a hearing. The made an
application for review to the Federal Court of Appeal, which was dismissed because the court did not
have jurisdiction. They also made an application for certiorari in the Trial Division, which has
jurisdiction to grant the usual remedies for review (except in cases were the court of appeal had
jurisdiction).
OUTCOME
 SCC appeared to expand the limits of certiorari to include enforcement of procedural
requirements generally.
 The fact that a decision maker does not have a duty to act judicially, with observance of formal
procedures which that characterization entails, does not mean that there may not be a duty to
act fairly which involves importing something less that the full panoply of conventional natural
justice rules
 In General, the courts ought not to seek to distinguish between the two concepts, because
drawing a distinction between the duty to act fairly and a duty to act in accordance with the
rules of natural justice yields unwieldy conceptual; frameworks
 An inmate disciplinary board it not a court, it is a tribunal which has to decide rights after
hearing evidence, even though they are not obliged to conduct a judicial proceeding (observing
the procedural and evidential rules of a court of law) it is still subject to a duty of fairnessand
a person aggrieved through a breach of that duty is entitled to seek relief from the Federal
Court trial division for certiorari
o With the 1992 amendments to the Federal Court Act, that particular need to make a distinction between
judicial and administrative functions disappeared
o The cause of prisoners procedural rights was further advanced in Cardinal v Director of Kent Institution,
1985
 It was decided that a hearing was required for a decision by a prion official to keep a prisoner
dissociated for security reasons
 This is because of the serious effect on the prisoner
 “The court has affirmed that there is a general common law principle, a duty of procedural
fairness lying in every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests of the individual”
 But the court held that holding a hearing in this cause would have been futile because there was
no possibility that the penitentiary authorities would have been persuaded to change their minds
 Here we saw the courts almost creating a new threshold legislative vs all other fuctions (which
was further elaborated on by the SCC in Knight)
 62

 Although all this was dicta, it does suggest the emergence of a new classification, replacing the
old administrative-judicial standoff
 Decisions of a Legislative and General Nature
o A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no
procedural protection, and any attack upon such a decision will have to be founded upon abuse of
discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial
supervision. [Martineau]
 This statement provides some warrant for the statements in Knight that it is not simply legislative
functions that fail to attract a duty of fairness in a procedural sense, but also decisions of a
‘general’ nature
o The decision of a government to introduce a bill into the legislature and the legislatures to enact such
legislative is once class of legislative decisions to which a common law duty of procedure clearly does
not applysuch truly legislative decisions must fall below the procedural fairness threshold to ensure
respect for the principle of the constitutional separation of powers
o Cabinet and Cabinet AppealsSee Canada v Inuit Tapirisat of Canada
o By-Laws and Rulemaking See Homex Realty v Wyoming
o Policy Making

Inuit Tapirisat (1980, SCC)

1. Legislative nature of the decision
“Let it be said at the outset that the mere fact that a statutory power is vested in the Governor in Council does not
mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that
power, the court can declare that such purported exercise is a nullity.” (p 108)
“It is clear that the orders in question in … the case at bar [is] legislative in nature….. no hearing is required in
such cases.” (p. 111) “[T]he dividing line between legislative and administrative functions is not always easy to
draw.” (p. 111)
2. Approach to statutory in (compare to Nicholson; a good point to notice how admin law is about statutory interpretation,
and how unpredictable it can be)
(64(1)) and Fed Ct of Appeal (s. 64(2)) routes Nicholson - The Police Act, RSO 1970, c 351, s 27(b):
27. No chief of police, constable or other police officer is subject to any penalty under this Part except after a
hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has
expired, but nothing herein affects the authority of a board or council,…
b) to dispense with the services of any constable within eighteen months of his becoming a constable;….
Inuit Tapirisat: s. 64 of the National Transportation Act (bottom of p. 107-108) – contrast Gov in Council
petition/review on own motion

Updating Inuit Tapirisat

Canadian National Railway Co v Canada (AG), 2014 SCC 40 at para 38+ 39:
[38] In Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, this Court described s. 64 of
the National Transportation Act, the predecessor provision to the current s. 40 , as providing for an “unlimited or
unconditional” right to petition the Governor in Council, a “quite different” avenue of review from the right of appeal on
questions of law or jurisdiction to the Federal Court of Appeal (p. 745). Section 64 was substantially the same as the
current s. 40 .
[39] As Estey J. explained, “[t]here can be found in s. 64 nothing to qualify the freedom of action of the Governor in
Council, or indeed any guidelines, procedural or substantive, for the exercise of its functions under subs. (1)” (p. 745)
(Although Estey J.’s conclusion, at p. 759, that the trappings of procedural fairness could not be implied into the
provision may not represent the current view of how natural justice operates in an administrative context, the issue
of procedural fairness owed by the Governor in Council is not before this Court.) Of course, the Governor in Council
is “constrained by statute” and cannot, in the course of exercising its authority under s. 40 , enact or change a law of
 63

Parliament (Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194, [2011] 3 F.C.R. 344, at para. 29; see Inuit
Tapirisat, at p. 752). [emphasis added]
Canada (AG) v Inuit Tapirisat of Canada, 1980
FACTS: The Canadian radio-television and telecommunications commission had power to regulate the rates of
utilities, including Bell Canada. The crucial statutory provision for these purposes was section 64(1) of the National
Transportation Act (said the governor could at any time vary or rescind any order, decision, rule or regulation of the
commission). In 1976 Bell made an application for approval of a rate increase, the Inuit Tapirtsat intervened to oppose
parts of the application. They wanted the CRTC to condition Bell’s rate increase on an obligation to provide better
services for northern communities. After an unfavorable decision they appealed to the governor in council (the cabinet).
The cabinet heard submission from the CRTC and Bell. IT was only given Bell’s submissions, and at the Cabinet
meeting where the appeal was discussed the minister of communications made a recommendation to dismiss the appeal,
which was accepted. IP then made a motion to the Federal Court for a declaration that a hearing should have been
given, or that if a hearing was given it did not comply with the principles of natural justice. The government applied for
an application to dismiss the action (which was granted), an appeal by the IT succeed, then it went to the SCC.
ISSUE
 Is there a duty to observe natural justice, or at lead a lesser duty of procedural fairness on the Governor in
Council when dealing with parties such as IP upon their submissions of a petition under section 64(1)?
OUTCOME
 The mere fact that a statutory power is invested in the Governor in Council does not mean that it is beyond
reviewIf that body has failed to observe a condition precedent to the exercise of that power, the Court can
declare that such purported exercise is a nullity
 BUT, not failure to observe a condition precedent is alleged here, that it is contented that once validly seized of
the respondents petition the Governor in Council did not fulfil the duty to be fair implicitly imposed upon him
 The existence of such a duty no longer depends on classifying the power involved as “administrative” or
“quasi-judicial” it is still necessary to examine closely the statutory provision in question in order to discern
whether it makes the decision maker subject to any rules of procedural fairness
 The commission is empowered to approve all charges for Bell Canada, in doing so they determine whether the
proposed tariff or toll is just and reasonable and whether they are discriminatory
 Therefor, the statute delegates the CRTC the function of approving telephone services tolls with a directive as
to the standards to be applied
 The power rests in the Governor in Council to establish rates for telephone service by the variation of that
order, decision, rule or regulation of the CRTCWhile the CRTC must operate within a certain framework
when rendering their decision, there is no burden on the executive branch (pursuant to section 64(1)) with any
standards or guidelines in the exercise of its rate review function [procedural standards were not imposed or
implied in that section]
 The very nature of the body must be taken into account in assessing the technique of review which has been
adopted by the Governor in Council
 Section 64 places no limitation of the GC in the adoption of procedures for the hearing of petitions
 In the past the GC has proceeded by way of an oral hearing in which a petitioner and contending parties could
participateBut the size our of country now makes that impractical
 While it is true that the duty to observe procedural fairness will not be implied in every case, is it always a
matter of statutory interpretation and construing the statue as a whole in order to see to what degree if any the
legislators intended the principle to apply
 The wording of this statute makes it clear that the GC may act at any time, he may rescind or vary any decision,
rule or regulation in his discretionThe guideline mandated by parliament to the CRTC are not repeated
expressly or by implication to section 64
 The discretion of the GC is complete provided he observes the jurisdictional boundaries of section 64
 Parliament has reserved the final application of this policy to the executive government (GC)given this
interpretation there is not need for the GC to give reasons for his decision, or hold any hearing or even
acknowledge the receipt of a petition
 The drawing between legislative and administrative functions is not always clear
 BUTWhere the executive branch has been assigned a function performable in the past by the legislature itself
and where the subject matter is not an individual concern or a right unique to the petitioner or appellant,
different considerations may arise.
 64

The Fact that the function has been assigned to a tier of agencies (CRTC and then the GC) does not alter the political
science pathology of the casein such circumstances the court may fall back on the basic jurisdictional supervisory
role and in doing so construe the statue to determine whether the GC has performed its functions within its boundaries
that parliament has granted

Courtoreille v Canada
Argument that Mikisew Cree should have been consulted (s. 35 duty) prior to introduction of Omnibus Bills that gutted
federal environmental protections (e.g., fisheries habitat, and # of navigable rivers under enviro assessment)
Main Issue: Can DTC apply to “legislative decisions”?
• Won at Trial
• Lost on Appeal (FCA, 2016)

IssueDoes the Crown have a duty to consult when contemplating and introducing legislation that may adversely impact
aboriginal rights?
HoldingIn its recent decision in Canada (Governor General in Council) v. Courtoreille, the Federal Court of Appeal
(Court) said no
Background Facts
 Chief Steve Courtoreille, on behalf of himself and the members of the Mikisew Cree First Nation (Mikisew Cree),
filed a judicial review application seeking declarations that the federal government had a duty to consult the
Mikisew Cree when it developed and introduced two omnibus bills that reduced federal environmental oversight
of projects that had the potential to negatively affect the Mikisew Cree’s treaty rights
 The omnibus bills reduced the types of projects that were subject to federal environmental assessment and the
federal government’s legal oversight of various activities.
 Mikisew Cree argued that the reduction in federal environmental oversight could adversely affect their treaty
rights to hunt, fish and trap, and therefore the federal government should have consulted with them during the
development of the legislation
 At TrialIn the Federal Court Trial Division, Justice Hughes rejected the majority of the Mikisew Cree’s
arguments. However, he still found that certain provisions of the Navigation Protection Act and the Fisheries Act
triggered the duty to consult. As a result, Justice Hughes found that the federal government had a duty to give
notice to the Mikisew Cree and to provide them with a reasonable opportunity to make submissions on these
proposed provisions.
Federal Court of Appeal Decision
 Mikisew Cree were careful to frame their application as a request for judicial review of the process undertaken by
various ministers prior to the drafting and presentation of Bills C-38 and C-45 to Parliament
 Framing the application in this way was important to ensure that the Court would have jurisdiction over the
application.
o Under section 18 of the Federal Courts Act, the Court has exclusive jurisdiction to grant declaratory relief
against any “federal board, commission or other tribunal.”
o However, under subsection 2(2) of the Federal Courts Act, a “federal board, commission or other
tribunal” does not include the Senate, House of Commons, or any committee or member of either House.
 The Mikisew Cree argued that a distinction can be drawn between ministers acting as policy-makers and ministers
acting as legislators, and that the legislative process can be divided between a policy development phase and a
purely legislative phase of the process.
 They sought judicial review of the ministers’ policy-making decisions, they argued that their application was not
barred by the provisions of the Federal Courts Act
 65

 the federal government argued that the legislative process is indivisible, such that every step that precedes the
introduction of a bill into Parliament is an aspect of the legislative process and therefore immune from judicial
review
 The majority of the Court (Justices De Montigny and Webb) agreed with the position of the federal government
and found that section 18 of the Federal Courts Act precluded the Court from judicially reviewing the legislative
process, including any policy development aspect of that process.
 Separation of Powers
o if “there is one principle that is beyond any doubt, it is that courts will not supervise the legislative
process and will provide no relief until a bill has been enacted.” On this basis, while the majority
expressed that it is good politics to engage stakeholders such as First Nations on legislative initiatives that
might affect them, and that, following the formal adoption of a statute, consultation prior to the adoption
of that statute might be a key factor in determining whether the infringement of an aboriginal or treaty
right is justified, imposing a duty to consult would constitute “undue judicial interference on Parliament’s
law-making function, thus compromising the sovereignty of Parliament.”
SCC? Will they hear the case?
 the doctrine of the separation of powers is well-recognized and has been relied on by the SCC before. However,
as also recognized by the majority, there is a clear tension in the case law between the doctrine of the separation
of powers and the duty to consult that has developed as a result of section 35 of the Constitution Act, 1982

Canadian Doctors for Refugee Care v Canada (AG), (2014, FC)

Changes to the Interim Federal Health Insurance Program (IFHP), which provided health insurance to non-citizen
newcomers as bridge till eligible for Provincial heath insurance
No duty of fairness b/c decision was legislative
• How was decision made? Who made it?
• How did FC characterize the decision as legislative? What mattered?

Homex Realty v Wyoming (Village) (1980)

How is the bylaw in issue legislative
in character?
How is it not legislative in character?
Note: Another example of Cts remedial discretion being exercised based on the conduct of the parties (Homex)

Homex Realty v Wyoming, 1980 SCC

FACTS: the municipality and H quarrelled about the obligation to instil services into a subdivision owned by H.
Without giving notice to H the municipality made a bylaw under the Planning Act designating the plan as a plan
deemed not be a registered plan of a subdivision. The effects of this was that the lots in the subdivision could not be
conveyed unless a new plan was registered, or consents were obtained from the committee of adjustments of the
municipality (an in either way the municipality would be able to impose conditions). H made an application for review
to quash the bylaw and succeeded. An appeal by the municipality also succeeded. H appealed to the SCC
ISSUE

OUTCOME
Dickson (DISSENT)
 There is a long line of authority which establishes that before a public body can limit the property rights of
citizens it must first give the individual concerned an opportunity to be heard
 Where statutory bodies seek to limit property rights, the courts will imply a right to be heard, unless there is an
express declaration to the contrary
 66

 Where the bylaws in question directly affect the land or property of specified individual the courts have implied
a common law right to be heard, in this case the by laws directly and detrimentally affected H
 A legislative function?
 The CA emphasised the legislative character of the actions performed by the Wyoming, they held that
the municipality is dealing with the public interestand the function is legislative in nature and not
right to a hearing can be implied
 SCC does not accept this
 The right to an hearing does not spring from that fact that there were competing groups or individuals,
it resulted from the fact that the by law interferes with private property rights on one owner
 The presence of a compelling public interest does not alone abrogate or diminish a citizen right to
procedural protection
 The private property interest of H was at stake, the public interest can be served by affording the
private interest full disclosure and a fair opportunity to be heard
 There is no reason by the private interest should yield to the public one
 One cannot label something as legislative for the purposes of dispensing with fairness
 Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard
that must be met by the statutory body
 Flexibility is required here, it is a spectrum
 A purely ministerial decision on broad grounds of public policy will typically afford the individual little or no
procedural protection
 On the other hand, a function the approaches the judicial end of the spectrum will entail substantial procedural
safeguards, particularly when personal or property rights are targeting
 You must look to the facts of each case
 The CA noted that the municipality was acting in what is conceived to be the public interest, but the bylaws do
not have a general wide application, it affects H directly and was aimed at limiting H’s rights
 H was entitled to some procedural safeguards in these circumstances
 At a minimum they were under a duty to give H notice of the proposed bylaws and the opportunity to be heard
 Dickinson found that the hearing requirement had not been satisfied
MAJORITY
The majority found that H was not entitled to relief because of the inconsistent and evasive conduct of its
principles

SUMMARYTHE LEGISLATIVE LIMIT

Legislative in function (by legislative bodies)
– Cabinet’s role in introducing legislation to legislative assembly: re CAP, Mikisew Cree (duty to consult
rather than duty of fairness)
– School Board (delegated law-maker) closing schools in Bezaire
Legislative in nature (character of decision)
– Policy-based decision of cabinet is leg in nature: Inuit Tapirisat (query: admin decision seen as leg b/c
cabinet is decision-maker?)
– Leg body making non-leg decision: Homex Realty

Does we need a threshold test?

“The ultimate goal of crafting the procedural framework appropriate to each decision made can be better achieved if we
totally abandon the threshold stage. The presumption would be that, in the case of legislative silence, fairness applies to
all decisions made by the administration, unless specifically modified by statute or contract, and then the remaining task
is the determination of the specifics of procedure in any given case, from full procedural protection to ‘nothingness.’…
Dropping the threshold stage would ensure asking the real question: in the circumstances of the case and given, notably,
the consequences of the decision for the individual, what is the appropriate set of procedures to be adopted?”
 67

Genevieve Cartier, “Procedural Fairness in Legislative Functions: The End of Judicial Abstinence?” (2003) 53 U.T.L.J.
217

Should the duty of fairness apply to legislative decisions? (or do we need a threshold test)
Argument against extending the duty:
- This limit is necessary to the preservation of the integrity of legislative process under formal model of separation
of powers.
- Maintaining formal separation of powers critical to democratic legitimacy.
Argument for extending the duty:
- Classification doesn’t work; institutions are not amenable to formal definitions.
- - Classification is a source of injustice:
“To endow some with procedural protection while denying others any at all would work injustice when the results
of statutory decisions raise the same serious consequences for those adversely affected, regardless of the
classification of the function in question.” (Laskin in Nicholson, text p. 110)
- Democracy better served by contextual approach, i.e. Did the decision-maker act fairly in the circumstances?

Threshold for a Duty of Fairness-Finality of Decision

Re Abel and Advisory Board (1979, ONCA)

Advisory Board (in BC, currently, the Mental Health Review Board) conducts annual reviews of patients held in
psychiatric facilities after being found not guilty of criminal charges by reason of mental illness.
 Who is the decision maker? What is the decision? (Decision in the statute, decision under review in the case)
 A duty of fairness is applied. Why? And what is the effect/what does a duty of fairness get the patients?
 What is the “rule” regarding the duty of fairness applying to “non-dispositive” decisions?

Re Abel and Advisory Review Board, 1978-81

FACTS: The advisory board was created by order in council under the Mental Health Act. Its major function was to
review annually all patients who ere confined in psychiatric institutions under warrant of the lieutenant Governor after
being charged with criminal offences and then found not guilty by reason on insanity. It made a report about each
patient to the lieutenant governor, which included any recommendations for release. The lawyers of some patients
request disclosure of the files kept by the institutions about the patients, especially those submitted to the board. The
request was refused. At the hearing the lawyers asked for disclosure of the reports, the chairman refused on the grounds
that it had no authority and an application for review was made.
ISSUE
OUTCOME
 The LG is not bound to act upon the recommendations in the report, but a patient’s hopes of release lies in a
favourable recommendation by the board
 There is no question that the board will have influence, and if counsel seeks to represent their clients properly it
is understandable why they want the reports
 This is definitely a case where even though only recommendations are made the rules should be applied,
because a good recommendation if virtually a patient’s only hope of release
 The chairman failed to consider the question of whether the reports should be released and answer it according
to the proper principles
 The application must be granted, the decision of the chairman to refuse to order production of the reports is
quashed, and this matter is remitted to the board for reconsideration in accordance with set out above (I didn’t
see what principles he is talking about…?)
The obligation to act fairly lacks precision in its definition, and it no doubt involves something less than the strict
application of natural justice but it may in some circumstances involves the application of some or all of those rules
 68

A couple of other contexts where “non-dispositive” decisions are common

Commissions of Inquiry
 E.g., Gomery inquiry into the “sponsorship scandal”
Environmental assessment
 Standardly set up as an assessment done by an arm’s length (sometimes co-management) board that recommends
decision with conditions to cabinet.
 Usual approach (PF applies) changed under 2012 changes to federal EA (omnibus bills). See Northern Gateway
JR

INSPECTIONS AND RECOMMENDATIONS (Reading Notes)

 In the traditional doctrine, two functions were distinctive: investigating and recommending
 Until the late 1970’s the doctrine was clear, no hearings were required, thus proposition was a product of the
general doctrine about the threshold (the functions were not judicial)
 Guay v Lafleaur, 1965
o L was authorized under the Income Tax Act to investigate the financial affairs ofa number of taxpayers,
including G
o L began to examine witnesses, and G requested to be present and represented by counsel during these
examinations, L refused and G sought an injunction
o The SCC held that G had no right to a hearing because the function was purely administrativeL was not
deciding or adjudicating
 Re Training Schools Advisory Board, 1971
o The Training Schools Advisory Board was established by regulations to give the minister or correctional
services advice about the exercise of a power to order termination of wardship
o After the board refused to recommend termination of the wardship of a girl her mother sought disclosure
of reports from the board
o Her claim failed because the board did not decide anything
 We also saw lingering effects of this jurisprudence in Knight, where the SCC states that the decision of
preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may
have that effect

EMERGENCIES (Reading Notes)

 On occasion, dispute the fact that the basis for action will be the conduct on an individual and the consequence of
that action the imposition of sanctions or diminution in property rights there will be no requirements of a prior
hearingThat is in the case of emergencies
 The Queen v Randolph, 1966
o The could held that an interim order withdrawing the provisions of mail services to an individual could be
made without hearing when the statutory basis for making that decision was a belief that the mails were
being used for criminal purposes
 Note that the court is not sanctioning a general rule of after-the-event hearings in administrative segregation cases
 Whether initial action without a hearing is justified depends on an assessment of whether there is genuine a need
for such an action
 Still, it is highly likely that the court will pay considerable deference to the relevant authority’s judgement as to
the urgency of the situation
 On occasion the provision of a subsequent hearing after the taking of emergency action may be redundant, for
example where property is destroyed
 There may also be occasions on which emergency action is taken on the basis on information that cannot be
revealed to the affected person either before or after the event
 69

Legitimate Expectations
Legitimate Expectations Building on Doctrinal Developments in England
Conduct-based source of due process.
2 branches of application:
– Situations between application for a privilege and process to remove of a privilege; e.g. long-standing
license holder has a ‘legitimate expectation’ of renewal.
– Expectations of procedural rights based on representations made by/conduct of public officials
(undertakings):
L. Denning in R. v. Liverpool Taxi (1972) (p. 148-9):
• Promises made by muni officials not to increase # of taxi licenses without a hearing. And then not
to establish increase unless by way of private Act of Parliament.
• And then municipality did just that.
• Denning implied procedural protections. No legislative foundation.

Legitimate Expectations in CANADA

• A “stop-gap” where procedural protections not provided for in legislation, or through general duty of fairness
(Baker)
• Gives rise only to procedural rights as opposed to substantive rights, even when LE is about a substantive
outcome (CAP, Baker)
• Although a distinct source of procedural rights (based on conduct of public officials), it is part of the analysis of
the content of the duty of fairness (Baker).

Conduct of public officials giving rise to a LE may include:

 Express promises and representations that do not conflict with statutory duties (Mavi at para 68. Also Apotex and
Agraira)
 Regular practices (i.e., if CIC always held an oral hearing for H&C decisions..)
 Agency choices & “soft law” (i.e., policy guides) (Agraira)
 Expressions of gov’t policy by the executive such as signing international agmnts (e.g. Baker – at para 29, not
decided; Suresh)

READING NOTES
 In certain circumstances, procedures will be required by reason of expectations generated in an affected person
and not be entirely contingent on a detached analysis of the statutory power in question
 One particular reason can be located in the doctrinal position of the British courts following Ridge v Baldwin
o The British courts appeared to maintain the position that such protections attached tot eh statutory power
in question, as opposed to particular exercises of it
o In other words, procedural fairness was an all or nothing propositioneither it applied every time a
power was being exercised of not at all
 Legitimate expectations began to emerge in the English case law
 “the speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a
person who is affected by their decision an opportunity of making representations. It all depends on whether he
has some right or interest, or I would add, some legitimate expectation of which it would not be fair to deprive
him without hearing what he had to say” Schmidt v Secretary State for Home Affairs, 1969
 Initially, the concept was one that was treated as just another meaning of expressing the notion that the applicants
stake in the outcome was one that indicated the need for procedural fairness
 But, shortly after Schmidt Lord Denning gave the concept a rather different content
o R v Liverpool Corporation
 70

 In this case municipal officials have given express undertakings to the association that the number
of taxi licenses would not be increased without a hearing, and subsequently following a hearing
that there would be no increase unless a private Act of Parliament was procured
 This was the kind of policy decision where even after the emergence of the procedural fairness
doctrine, courts were unlikely to require the affording of participatory opportunities to affected
constituencies
 But, lord Denning grounded an entitlement for such opportunity on the particular factual
circumstances and thereby laid the foundation for the modern doctrine of legitimate expectations
 An expectation of hearing arising out of express representations, a practice of holding such hearings or a
combination of the twoWhen the doctrine is applied
 This doctrine has been acknowledged by the SCC in 7 cases, and successful invoked in the two most recent ones
 It affords a party affected by the decision of a public official the opportunity to make representations in
circumstances in which there otherwise would be no such opportunitythe court supplied the omissions
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
 If the doctrine of legitimate expectations is to play a significant role in Canadian law, it will most obviously be as
a surrogate to the failure of the conventional common law principles to provide for the imposition of procedural
entitlements in the context of rule making and broadly based policy decisions

LEGITIMATE EXPECTATIONS AND LEGISLTIVE DECISIONS

Reference re Canadian Assistance Plan (BC), 1991

What is the decision challenged? What is the type of decision is it (characterization)?
Why doesn’t the court apply a LE to require consultation with the provinces before introducing the bill to Parliament?

Reference re Canada Assistance Plan (BC), 1991 SCC

FACTS: The Canadian Assistance Plan (a federal statute) authorized the government of Canada to enter into
agreements with the province for sharing the costs of provincial social assistance and welfare programs. Section 8 of
the plan provided that these agreements would continue in force for as long as the relevant provincial law was in
operation, subject to termination of consent, or unilaterally by either party on one year’s notice. The federal government
introduced a bill that limited the increase in his financial contributions to BC, Alberta and Ontario to a figure below that
provided for in the plan. No prior notice has been given. BC referred a question to the court.
ISSUE: Whether the government was precluded from introducing the bill by virtue of the legitimate expectation that
amendments would only be made to the agreements by consent?
OUTCOME
 If the doctrine of legitimate expectation required consent, and not merely consultation then it would be the
source of a substantive right (in this case a substantive right to veto the proposed federal legislation)
 There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations
can create substantive rights
 When it is applicable, it can create a right to make representations or be consulted
 The rules governing procedural fairness doe not apply to a body exercising purely legislative functions
 The formation and introduction of a bill are part of the legislative process with which the courts will not
meddle
 Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to
prevent the government from introducing legislation
 Such expectations might be created by statements during an election campaign
 The business of government would be stalled while the application of the doctrine and its effect was argued in
court
 It is fundamental to our system of government that a government is not bound by the undertakings of their
predecessor
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 A restraint on the executive in the introduction of legislation is a fetter on the sovereignty of parliament itself
 This is particularly true when the restrain relates to the introduction of a money bill (by virtue of
section 52 of the constitution, such a bill only be introduced on recommendation of the Governor
General who by convention acts on advice from cabinet
 The legal effect of what the respondent is attempting to impugn is of not consequence to the obligations
between Canada and BC
The recommendation and introduction of the bill is a legislative process

Apotex, [2000] 4 FCR 264 (CA)

What is the decision challenged? What is the type of decision is it (characterization)?
– Contrast Re CAP, Courtoreille
Evans JA (own reasons, agrees in result):
What is the difference between the law (rule) making function of cabinet in this case vs. Re CAP
How is a LE different from a duty of fairness? What is the difference of the values promoted?
Why does the LE argument fail for even Evans JA?

Apotex Inc. v Canada (AG), 2000 FC

FACTS: A is a manufacture of a generic drug, they sought permission under the Patent Act to manufacture a drug “N”.
Before it had received its permission, the federal cabinet made regulations under the Patent Act that enabled the patent
holder for the drug to seek an order prohibiting the minister of national health and welfare from issuing such permission
before the patent expiry. On judicial review A challenged the validity of the new regulation on several grounds
including that it had a legitimate expectation of consultation prior to the promulgation of the regulation. The federal
minister of consumer and corporate affairs had said in a letter that “rest assured you will be consulted before any such
regulations are established.”
A majority of the FCA dismissed this argument on the basis that the ministers undertaking in the circumstances
could not bind the government in council. BUTthe following obiter comments expressed serious reservations.
Evans J held that the legitimate expectation doctrine could in principle apply to the Cabinet promulgation of
regulations.
EVANS J
 In the absence of any statutory requirement of consultation prior to the promulgation of regulations, the duty of
fairness is the only legal source for a legal obligation to consult
 The duty of fairness does not apply to the exercise of powers of a legislative nature (which would include the
regulations impugned in this case)
 However, it does not necessarily follow that subordinate legislation can lawfully be made in breach of a
categorical and specific assurance of prior consultation given to an individual by a responsible minister of the
crown in the course of discharging department business
 In the case the court has said the doctrine of legitimate expectations is based on the premise that it is generally
unfair for the decision-makers to go back on a procedural undertaking this statement was not limited to
instances where the effect of applying the legitimate expectations doctrine is simply to enhance the content of
the duty of fairness in a situation where it would otherwise have imposed some, but lesser, participatory rights
 There are decisions that hold that the doctrine of legitimate expectations may apply to a public authority that
represents that it will follow certain procedure before exercising that power to which the duty of fairness would
probably not otherwise extend, including those of a policy or legislative nature
 Note that not all decisions point in this direction
 Other common law jurisdictions have been prepared to apply the legitimate expectations doctrine in its
procedural sense to the exercise of rule making powers, especially where (as it is here) the delegated legislation
applies more immediately to a defined group
 The interests protected by this doctrine are not the same as those protected by a general duty to afford an
opportunity to those affected to participate in the rule-making exercise
 Holding government to a procedural undertaking that was solemnly given on its behalf to an individual is more
a matter of individual justice
 72

 Where the legitimate expectation arises from a promise or undertaking, categorically and specifically given to
an individual or a defined group, the rationale for holding the government to it derives from the individuals
reliance that in the absence of compelling reasons for not doing so the government will act with the basic
decency of keeping that promise
 The interest underlying the doctrine are the non-discriminatory application in public administration of the
procedural norms established by past practice or published guidelines, and the protection of the individual from
abuse of power through the breach of an undertaking
 The doctrine is not simply a branch of the duty procedural fairnesshence there is no reason to limit its reach
to the exercise of statutory powers to which the duty applies
 On the other hand, as with the duty of fairness, a beach will lead to the imposition of procedural duties,
generally of a particaptory nature, on the person or body empowered to take some administrative actionrather
than requiring a particular substantive outcome to the exercise of power
 The doctrine applied in principle to delegated legislation powers as to create participatory rights when none
would otherwise arise (provided that honoring that expectation would not breach some other legal duty, or
unduly delay the enactment of regulations for which there was a demonstrably urgent need)
 A court say set aside, or declare invalid subordinate legislation made in breach of a legal duty to consult
**the duty of legitimate expectation did not arise on the facts of this case
 In this case the cabinet had already approved the regulations
 Thus the minister’s assurance did not create a legitimate expectation
DECARY J
 He is reluctant to have the judiciary move in and impose procedural restrictions of its own creation on the
process leading to the making of regulations
It would be an extraordinary remedy to struck down regulations made by the Governor in council solely because of a
failure of a minister of the crown to fulfil a promise of consultation

LEGITIMATE EXPECTATIONS AND ADMINISTRATIVE DECISIONS, AND LINE BETWEEN

PROCESS & SUBSTNACE

Canada v Mavi, 2011

Standard required to rely on a LE as a source of procedural rights:
– Representations must be” clear, unambiguous, unqualified” (para 68)
– Government representations will give rise to an LE when “had they been made in the context of a private
law contract, they would be sufficiently certain to be capable of enforcement.” (para 69)
• What was the significance of finding an LE in the decision?

Canada (AG) v Mavi, 2011 SCC

FACTS: M and several others had sponsored relatives for permanent residency in Canada. They had signed
undertakings that required them to reimburse the government for the costs of benefits provided as social assistance to
the sponsored family member. The government of Ontario undertook proceedings against the sponsors to recover the
costs of social assistance provided to the sponsored relatives, the sponsors argued they were owned procedural fairness;
in particular notice of the governments intention to collect on the debt and an opportunity to make representations of
whether collected might be waived or delayed. The SCC determined that although the impugned decision was a
straightforward debt collections and that the statute clearly indicated parliament intended to avoid a complicated
administrative review process, the decision was still final and specific in nature and given the significant amount of
sponsorship debt had a considerable effect on the sponsors.
ISSUE
 Does the doctrine of legitimate expectations apply?
OUTCOME
Binnie
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 In theses circumstances the content of the duty of procedural fairness does not require an elaborate adjudicative
process, but it does oblige the government prior to filing a certificate of debt to:
1. Notify the sponsors at their last known address
2. Offord the sponsor an opportunity within a limited time to explain in writing their relevant personal
financial circumstances
3. To consider any relevant circumstances brought to its attention
4. To notify the sponsor of the governments decision
 In this case there is no duty to give reasons
 Did the sponsors have a legitimate expectation of notice and consultation based on the language of their
undertaking?
 The Doctrine of Legitimate Expectations
 Where a government official makes representations within the scope of his or her authority to an
individual about an administrative process that the government will follow, and the representations the
gave rise to the legitimate expectations are clear and unambiguous the unqualified, the government
may be held to its wordprovided its representations are procedural in nature and do not conflict with
the decision maker’s statutory duty (proof of reliance is not a requisite)
 Generally speaking, the governments representations will be considered sufficiently precise for the
purposes of the doctrine if they have been made in the context of a private law contract, they would be
sufficiently certain to be capable of enforcement
 Application
 It is clear that no representations where made that the debt will be cancelled, even when the minister
exercises their discretion to defer enforcement
 The terms of the IRPA undertakings support the position of the AG that the debt is not forgiven, they
also support the sponsors contention of a government representation to them that there exists a
discretion not to take enforcement action in a situation of abuse or in other appropriate circumstances
 Such representations do not conflict with any statutory duty and are sufficiently clear to preclude the
government from denying the sponsors the existence of discretion to defer enforcement.
 Legitimate expectations were created by the wording of these undertakings
 It is not open to the bureaucracy to proceed without notice and without permitting the sponsors to make
a care for deferral
 The SCC held that the policies adopted by Ontario in respect of the collection of sponsorship debts, which
allowed for notice and representations by the sponsors satisfied their legitimate expectations and met the basic
requirements of procedural fairness.
NOTE
 The SCC had determined that the duty of procedural fairness applies because the final and specific nature of the
decision to enforce sponsorship debt as well as the significant impact on the sponsors
 They decided to elaborate on legitimate expectations in this judgement
 Accordingly, its finding that the sponsors had a legitimate expectation of notice and an opportunity to make a
case for deferral appears to play to role of confirming the procedures that the could had already determined
were required by the duty of fairness

Agraira (2013, SCC)

Minister’s decision letter (reasons) (at para 13):
“After having reviewed and considered the material and evidence submitted in its entirety as well as specifically
considering these issues: [applicant was involved with Libyan National Salvation Front, which was known to be involved
in terrorist violence…]. It is not in the national interest to admit individuals who have had sustained contact with known
terrorist and/or terrorist-connected organizations. Ministerial relief is denied.”
– Is it clear that humanitarian & compassionate grounds were considered by the Minister?
 What procedural steps were taken in the decision under review?
 What was the basis for the LE claims? Were LE established? And were any LE satisfied?
 Had LE not been satisfied, what might have been the increased content of the duty of fairness?
 74

Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC

FACTS: A was found to be inadmissible to Canada under section 34(1)(f) of the Immigration and Refugee Protection
Act because he had once been a member of the Libyan National Salvation Front, which was considered by immigration
Canada to be a terrorist organization. Under section 35(2) the minister of public safety and emergency preparedness
may make an exception if the permanent resident or foreign national found to be inadmissible satisfies the minister that
their presence in Canada would not be detrimental to Canada ‘national interest’a term no defined in the statute. The
citizenship and immigration Canada had prepared guidelines setting out the process by which applications for
ministerial relief were to be evaluated and setting out relevant factors. The minister rejected A’s application for relief
and provided written reasons that focused on this involvement then the LNSF. A sought a judicial review. He argued
the guidelines had created an expectation that factors extrinsic to national security would be considered.
ISSUE
 Was the decision unfair, and did it fail to meet the applicant legitimate expectations?
OUTCOME
Lebel J
 The doctrine (legitimate expectations) was given a strong foundation in Canadian administrative law in Baker,
in which is was held to be a factor to be applied in determining what is required by the common law duty of
fairness
 It s public authority has made representations about the procedure it will follow in making a particular decision,
or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope
of the duty of procedural fairness, owed to the fact that the affected person will be broader than it otherwise
would have been.
 The practice or conduct said to give rise to the reasonable expectation must be clear unambiguous and
unqualified!
 In Mavi, Binnie explained what is meant by clear and unambiguous and unqualified
 “Generally speaking, government representations will be considered sufficiently precise for the
purpose of the doctrine of legitimate expectations if, had they been made in the context of a private
common law contract, they would be sufficiently certain to be capable of enforcement”
 BUT it cannot give rise to substantive rights
 On other words, where the conditions for its application are satisfied, the court may only grant appropriate
procedural remedies to respond to the legitimate expectation
 In this case, the guideline creates a clear and unambiguous and unqualified procedural framework for the
handling of relief applications, and thus a legitimate expectation that the frame-work would be followed
 They were published in the CIC, they were used by employees, they were publicly available
 Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the
process set out in them [The process is listed on page 166]
 The appellant has NOT shown that his application was not dealt with in accordance with this process outlined
in the guidelines
 Thus, his legitimate expectations were fulfilled
 In addition, the minister’s interpretation of national interest encompassed the factors referred to in the
guidelines [thus he considered them when making his decision]
There was no failure on the appellant’s legitimate expectations or to discharge the duty of procedural fairness owed to
him.

Mt Sinai Hospital Center v QC, 2001, SCC

• Confirms that LE in Canada goes only to procedural obligations (not substantive ones).
• Why? What is Binnie J’s reasoning?
– What is more important that the process/substance divide?

Mount Sinai Hospital Center v Quebec, 2001 SCC

FACTS: The hospital was functioning in violation of its license for many years. Discussions with the minister took
place and it was agreed that if the hospital relocated its licence would be regularized. They raised money and moved the
 75

hospital, but then it sought its license update a different minister is a different government refused. The hospital sought
mandamus to compel the minister to issue the licence. The Quebec Superior court refused to make such an order, and
the basis that the doctrine of legitimate expectations could not be used to achieve substantive outcomes. QCA accepted
this but ruled that the hospital was entitled to a revised license on the basis on the public law estopppel. The SCC held it
was not necessary to deal with the issue of public law estoppel and legitimate expectationsthe case turned on the fact
that the earlier minister had already made a decision conditional on the hospital relocating, and this decision could not
be overturned by the current minister.
ISSUE
 Does the doctrine of legitimate expectations apply?
OUTCOME
Binnie J
 The respondents argue that the doctrine of legitimate expectations can be used to compel not only the
procedural protections but a substantive result provided such a result is not contrary to law and its otherwise
within the power of the minister (which in this case it would be)
 There was then a discussion on how England treats this
 Canadian cases tend to differ for analytical purposes the related concepts of procedural fairness and the
doctrine of legitimate expectations
 The content of procedural fairness is generally driven by the nature of the applicant’s interest and the
nature of the power exercised by the public authority
 The doctrine of legitimate expectations looks at the conduct of the public authority in the exercise of
that power
 An applicant who relied on legitimate expectations does not have to show that they were aware of such conduct
or that it was relied on detrimentally (this is to promote regularity, predictability and certainty in government
when dealing with the public”
 It is difficult to argue that we should lower the bar to the application of legitimate expectations and also expand
its potency for overruling the Minister or other public authority on matter of substantive policy
 If the courts give substantive relief, more demanding conditions precedent must be fulfilled that are presently
required
 The doctrine of legitimate expectations in limited to procedural relief, but it must be acknowledged hat in come
cases it is difficult to distinguish the procedural from substantive
RATIO- court reaffirms that substantive relief is not available under the doctrine of substantive expectations

Fault as an Element in Procedural Fairness Assessments (Reading Notes)

 On occasion hearing do not happen or are flawed because of the intervention of external agents (example notices
did not arrive due to the negligence of postal employees, lawyers etc)
 In Canada there is no definitive answer to the question of whether fault or responsibility on the part of the
decision-maker is always a necessary ingredient in establishing a reviewable absence of procedural fairness
 76

PROCEDURAL FAIRNESS: HEARING RIGHTS

Introduction-Content of the Duty

 77

Baker & Knight– values and objectives:

"The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected
should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or
privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of
the decision." (Baker, L’Heureux-Dube, para. 28)
“[T]he aim is not to create “procedural perfection” but to achieve a certain balance between the need for fairness,
efficiency and predictability of outcome.” (Knight v Indian Head School Division, L’Heureux-Dube, text p 167)
(See also text p. 162, footnote 50.)

Fairness in an adversarial model – is there another way?

“To this day, the key question in an analysis of fairness remains: how much procedural fairness needs to be provided in
order to render an adverse decision legitimate? Fairness as a legal principle, therefore, arises in the negative.… As long as
fairness is seen as a means of justifying adverse findings, relationships of mutual trust and recognition between
bureaucrats and citizens are unlikely to emerge. Within a framework of intimacy, the exchange of knowledge (i.e.
fairness) is not a means to the end of legitimating adverse decisions. Rather, this exchange is the basis for justifying
decisions, both to the parties affected and to the public at large.”
Lorne Sossin, “An Intimate Approach to Fairness, Impartiality and Reasonableness in Administrative Law”
(2001-2002) 27 Queen’s L. J. 809

Carrying out the analysis of content

1. Apply the Baker factors to “place” or “contextualize” the decision at stake
2. Identify what the duty would require in the circumstances in terms of procedural steps and/or in terms of whether
there was an adequate opportunity to know the case against and respond to it (Audi Alteram Partem generally)
3. Assess whether that content was satisfied
SMELL TEST
Good examples: Mavi, Khela, Baker

The Baker Spectrum

Factors that situate the decision along a spectrum of more or less procedural content

Baker - The 5 factors

The content of procedural fairness is "flexible and variable, and depends on an appreciation of the particular statute and
the rights affected“ (L’Heureux-Dube, para 22).
Content is determined through consideration of 5 (non-exhaustive – see Mavi at para 42) factors:
1) The nature of the decision and process followed in making it.
– How close to judicial type of decision and process? The more judicial, the greater the procedural
protections required.
2) The nature of the statutory scheme and the statutory provisions under which the agency operates
– i.e., greater procedural protections where no right of appeal.
3) The importance of the decision to the individual or people affected
– more important  more procedural protections; i.e., threats to personal security.
4) Did the challenger have legitimate expectations regarding procedure based promises, practices or representations
of the decision-maker?
– Presence of legitimate expectations (LE) may increase procedural protections required
– More on LE on next slides…
5) The agency’s own choice of procedures, particularly where statutory regimes allows the agency to define own
procedures.
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CONTENT REQUIRED IN BAKER?

• Notice – was it adequate?
• Why not an oral hearing?
• Notice to affected kids, other parents – considered adequate. Why?
• Written hearing. Considered adequate. Why not an oral hearing?
• Duty to give reasons found, and met. Why?

INTRODUCTION-The Level and Choice of Procedures (READING NOTES)

 In Nicholson the SCC expanded the reach of the common law in the procedural realm
o Whereas natural justice had previously required procedural safeguards only where a decision-makers
exercised judicial or quasi-judicial functions, common law procedural fairness requirements extended
beyond these to administrative decisions
o This case made it clear that what constitutes sufficient procedural fairness protections (the level or content
of the procedural fairness by the common law) depends on the context in which a specific decision was
made
 The procedural fairness obligations of decision makers lie on a spectrum between:
o the trial type procedures (in person hearing, full disclosure rights)-more informal procedures (such as
written notice and opportunity to comment)
o At the low end of the spectrum lies a lower threshold where no procedural fairness is owed
 In Baker the SCC sought to lay out for the first time a methodology to determine the appropriate content of
procedural fairness. It set out a non-exhaustive list of 5 factors:
1. The nature of the decision and the process followed in making it
 “The more the process provided for, the function of the tribunal, and the nature os the decision-
making body and the determinations that must be made to reach a decision resemble judicial
decision-making, the more likely it is that procedural protections closer to the trial mode will be
required”
 Decisions that involve adjudication between parties, directly or indirectly affect their rights and
obligations or require that decision maker to apply substantive rules to individual cases, will
require more extensive procedural protections than regulatory decisions bearing on the
implementation of social and economic policy
2. The nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker
operates
 Courts are very attentive to the terms of the legislation the authorize officials to act
 Where a statute provides an official with investigatory or fact finding powers as a preliminary
step to a hearing before a decision-maker with the power to make a dispositive decision,
minimum procedures may be owed at this initial stage
 When is appeal procedure is provided within the statute, or when the decision is determinative of
the issue and further requests may not be submitted greater procedural protections will be owed
 The relevance of the statutory scheme is not limited to the dispositive nature of decision or the
existence of an appeal
3. The importance of the decision to the affected individuals
 The more important the decision is to the lives of those affected the higher the level of procedural
protections mandated by the common law procedural fairness
 Example: Baker (affects of an unfavourable HC ruling on her family etc)
4. The legitimate expectations of the person challenging the decision
 By including LE in its framework for determining the level of procedural fairness, the Baker
court confirmed the procedural focus of the doctrine
 LE may be raised by the decision-maker’s representations about available procedures or
substantive results
 79

 When a claimant has a LE that a certain procedure will be followed, then that procedure will be
required by procedural fairness
 When a claimant has a LE that a certain result, in his or her case “fairness may require a more
extensive procedural rights than would otherwise accord”
 Example: In Baker the court was not convinced that the Canadian Governments ratification of the
convention was sufficient to raise LE
5. The choices of procedure made by the agency itself
 The deign of appropriate procedures is situation-sensitive
 An agency will fuller awareness of the nature of the issues that are likely to arise, the problems of
getting at the trust in the area it is regulating, and its own person and budgetary limitations, may
have a far better appreciation than the courts of what represents an appropriate compromise
among the competing claims of fairness, efficiency, effectiveness and feasibility
 This is particularly compelling in the case of agencies engaged in high volume decision making
(example: refuges status determination)
 Courts should sometimes be deferential, and give important weight to agencies procedural
chocies
 80

Particular Hearing Rights

Pre Hearing Issues

 Notice
 Disclosure
Hearing Issues
 The Form of Hearing (Oral?)
 Cross-Examination
Post-Hearing Issues
 Duty to Give Reasons

PRE-HEARING ISSUES
 This includes issues of notice, claims to pre-hearing disclosure or discovery of the evidence to be relied on, and
delay in the processing of administrative proceedings

Notice – Form, service, timing, content

Krever Inquiry, 1997 SCC

• Nature of Commissions of Inquiry, and their conclusions
– Potential findings of “misconduct”(s. 13 of Inquiries Act) but not a “legal binding” standard “such that the
finding amounts to a conclusion of law pertaining to criminal or civil liability”
– How do we characterize this proceeding, this decision, and its impact? (Baker factors)
– Note: importance of reputation as the “interest” affected by the decision (Baker factor #3)
Notice:
• Content issue?
• Timing issue?
Bottom line – what do you
need for notice to be fair? (ss. Para 56, p. 289)

NoticeREADING NOTES
 Notice is necessary simply because without notice the other rights cannot be exercised effectively or at all
 Most of the problems about notice can be put into one or other of four groups:
o Problems about form
o Problems about he manner of service
o Problems about time
o Problems about the contents
 Two forms of notice are commonwritten and oral
o Written notice is more usual, and probably the norm that courts will require, unless the context permits
some different form
 Personal service (a notice handed to or told to the party in some person way) is another norm the courts will
probably require, unless the context permits giving notice in some other way
 If no legislative specifications is made, presumably the courts will permit notice to be given in some public way
(for example an ad in a newspaper)
 Giving notice by mail creates the possibility that it will not be received in time, or not at all
 Although administrative decision-makers must take reasonable efforts to provide notice of a hearing, they are
entitled to rely on the address provided by the parties and the regulatory regime governing mail delivery
 81

 The notice must be given long enough before the date of the hearing to give the party enough time to decided
whether to participate and to prepare
o Clearly the length of time needed will depend on the nature of the interest and the issues involved
o Where notice is inadequate because it was received on too short of a notice, the defect can be cured
through an adjournment long enough to allow the party to prepare
 The notice must also give enough information about he issues to enable the party to prepare to respond
 Issues about notice are not confined to pre-hearing notice, but also arise in the court of a hearing

Canada (AG) v Canada (Commission of Inquiry on the Blood System, aka Krever
Commission), SCC 1997
FACTSin the 1980’s 1000 Canadians were affected with HIV and 12,000 were infected with hepitis C from blood
and blood products. This promoted the government to convene a public inquiry under the Inquires Act, it was presided
over by Krever. Twenty-five parties were granted standing in the inquiry. The commissioner adopted rules of procedure
and practice agrees by all parties, including several procedural protections (including, parties and witnesses had a right
to counsel to cross-examine witnesses, parties could apply to have witnesses called, they could introduce documentary
evidence and receive copies of all documents entered into evidence, hearings were public). The commissioner assured
participants that the inquiry would not be concerned with criminal or civil liability. Under section 13 of the inquires act
the commissioner is required to give notice to any person against whom he intends to make a finding of misconduct. He
gave these notices to certain individuals, corporations and governments on the final days of the scheduled hearing.
ISSUE Did the notices follow procedural fairness?
OUTCOME
 The notices were confidential
 There recipients had the right to respond as to whether the commissioner ought to reach these conclusions, they
were given about 20 days to decide how they would respond
 NOTE
o The judge pointed out that the commission was not a court or tribunal and dad no authority to
determine legal liability
o The commission has the power to make all relevant findings of fact necessary to explain their
recommendations
o They may make findings that there was failure to comply with certain standards
o The commissioner had to ensure procedural fairness in the conduct of the inquiry
 Procedural fairness is essential for the findings of the commissions because those findings may damage the
reputation of a witness
 The same principle of fairness is extended to the notices of misconduct
o As long as they are issued in confidence they should not be subject to a strict degree of scrutiny as
formal findings
o The purpose of the notices is to allow parties to prepare to respond
o The more detailed the notice, the more helpful it will be
o It the notices are issued privately there is no risk of the parties reputation because if it is released it
would be by them
o The notices should be as detailed as possible
o Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of
the commissioner, that does not mean that the actual final, publicized findings will do so
o It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed
their jurisdiction
 Application
o Remember the challenge was triggered by the notices (NOT the findings of the commission)
o There reasons are not concerned with any challenge to the contents of the commission report or any
specific findings
o The questions then is whether the commissioner exceeded his jurisdiction in the motives? NO
o The potential finding of misconduct cover areas that were within the commissioner’s responsibility to
investigate, it mandate was very broad
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o The content of the notices do not indicate the commissioner investigated or contemplated things
outside of this mandate
o The commissioner clearly said he would not make findings of legal liability
o Procedural Protections?
 All the parties who brought this claim were involved in the proceedings, and should have not
been surprised to get a notice
 The procedural protections afforded to the parties were extensive and exemplary
 The commissioner with full consent of the parties offered a wide range of protectionsthese
procedures were adopted on a consensual basis after meeting with all the parties to determine
what protections should be required
 The procedural was fair and any objections are rejected
o Timing of the Notice
 The appellants submit that because the commissioner waited until the end of the hearing to issue
the notices their ability to cross examine was compromised
 There is not statutory requirement that the commissioner give notice as soon as they foresee the
possibility of an allegation of misconduct
 Broad inquiries are not focused on individuals and whether they committed a crime, but rather
they are concerned with institutions and how to improve them
 Although notices should be give as soon as it is feasible, it is unreasonable to insist that notices
of misconduct always be given early (there will be some inquires, such as this one, where the
commissioner cannot know until near the end what findings might be made)
 So long as adequate time is given to the recipients of notices to allow them to call evidence and
make submissions they deem necessary, then the delivery of notice will be fair
 The timing of the notice always depends on the circumstances (in light of the nature and purpose
of inquiry it is impossible to give adequate detailed notices before all the evidence has been
heard)
The appellants were give adequate opportunity to respond to the notices, adduce additional evidence etc

Disclosure: How much Information is enough? And what are the opportunities to refute
that information?

Disclosure and Official Notice (READING NOTES)

 Imagine than an agency hears oral evidence or documentary evidence and representations from one party in the
absence of the other party and does not disclose this evidence to the other party to give an opportunity to respond
to it
 RULE: a party is entitled to both be allowed an adequate opportunity to respond and know what evidence and
representations have been made
 Kane v Board of Governors of UBC, 1980 SCC
o K was suspended by the president for improper use of his computer. He appealed to the board of
governors, of which the president was a member. The board held a hearing attended by K and the
president. After the hearing they board had dinner and met without K to discuss the case. The evidence
about the role the president played at this meeting was slim and not clear. A member of the board said the
president did not participate in the discussion or vote, but gave the board necessary facts.
o K made an application for review which was dismissed, and he appealed all the way to the SCC
o The SCC ruled that the board was under an obligation to postpone further consideration of the matter until
such time as K might be present and hear the additional facts adduced, at the very least they should have
made K aware of those facts and afforded him an opportunity to correct or meet any adverse statements.
o The board heard further facts, deliberated and ruled against Kin doing so they made a fundamental
error
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o The danger against which the courts must be on guard is the possibility of further information could have
been put before the board for its consideration which affected the disposition of the appeal
 Disclosure is the disclosure to parties of information that the agency has about the decisions to be made
 Official notice is the extent and manner in which an agency may, in making its decisions, use material that tis not
introduced into evidence.
 These two topics overlap and are considered together
 Disclosure is a basic element of the common law of natural justice and is usually required unless some competing
interest prevails
 The justification for the requirement is simply to enable a party to know and respond to information that the
agency has that might influence its decision
 Issues surrounding confidentiality are at play here
 Access to Information Statues
o Many jurisdictions in Canada have freedom of information and privacy laws
o But just because information is exempted from disclosure under freedom of information legislation does
not necessarily mean that its disclosure will also be denied in proceedings to which the rules of natural
justice or procedural fairness apply
 Crown or Executive Privilege
o At the federal level in Canada, the common law of the Crown or executive privilege has been codified in
provisions in the Canada Evidence Act
o As opposed to situations which the Access of Information Act, these privileges are applicable to
proceedings before administrative agencies
 Other Common Law Evidential Privilege
o The common law also provides for various other forms of privilege all of which have the potential to
becomes relevant in the context of administrative proceedings and attempts to secure information
o But most of these issues transcend administrative law and are dealt with in Evidence courses
 The difficulties in deciding about he existence and extent of a right to disclosure are usually the effect of
competing interests, the typical difficulties can be demonstrated in four groups of situations
1. An agency may have collected information about an individual, and the individual may wish disclosure of
this information
2. An agency may have collected information about an individual from other persons, and the individual
may wish to know their identity
3. An agency may have collected information about a business, usually as a required part of an application,
and other parties, often competitors, may wish disclosure
4. An agency may have material that it has created itself-for example staff reports about particular
corporations or about general economic conditions etc-Any party may wish disclosure of this information
 Access to Agency Information
o The problems in the first group has arises in the work of income support agencies
o Claimants of benefits seek access to the files about themselves to prepare to present a claim or appeal or
simply to know what the agency knows about them
o The best known problem is access to the files of worker’s compensations boards, especially disclosure of
the medical reports in these files
o Three major arguments can be made for disclosure:
 The basic and powerful belief that individuals should have the right to know what the government
knows about them
 Disclosure would increase the effectiveness of the participation of workers in the decision making
process (because it would enable them to respond for information)
 Disclosure would tend to improve the quality of the reports by exposing carelessness and
vagueness
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Basic principle: Kane v Board of Governors of UBC, 1980 SCC

Disclosure: “enable[s] a party to know and respond to information that the agency has and that may influence its decision”
(p. 341)
What wasn’t disclosed in Kane? Why was Audi Alteram Partem not satisfied?
 closely related to rights of x-exam during oral hearings

Mission Institution v Khela (2014, SCC)

s. 27 of Corrections and Conditional Release Act (CCRA) required that information or a summary thereof be shared with
Khela (27(1)) but allowed exceptions when, the Commissioner has reasonable grounds to believe the disclosure would
jeopardize safety, security, and or an investigation.
• Non-disclosure rendered decision procedurally unfair
• Was the non-disclosure a breach of the duty of fairness? The statute? What about s. 7?
Mission Institution v Khela, SCC 2014
FACTS: K is a federal inmate serving life for first degree murder. He started his sentence at a maximum security
facility then was transferred to a medium security facility (Mission Instituion). Later he was involuntary transferred
back on an ‘emergency’ basis after the warden reassessed his security classification. K claims that the transfer was both
unreasonable and procedurally unfair, therefor unlawful.
Background-There had been a prison stabbing, K was suspected of being involved. The prison said they had evidence
he planned the attack, and gave him notice of “Emergency involuntary transfer recommendation.” K submitted a
written rebuttal in response to the transfer, has asked that the scoring matrix, security report and information on why the
sources were reliable be disclosed to him. K received a response to his rebuttal that the wardens decision to transfer was
final. He made a habeas corpus application.
ISSUE: Was the transfer fair and reasonable?
OUTCOME
 The SCC determined that the provincial superior court had jurisdiction to review an inmate transfer decision for
reasonableness on an application for habeas corpus with certiorari in aid
 An unreasonable or unfair transfer decision would be unlawful
 Discipline and Disclosure
o Under section 13(2)(a) of the CCRR, if the commissioner or any designated staff member determines
that an inmate must be transferred immediately on an emergency and involuntary basis the imate is still
entitled to make representations regarding the transfer
o Section 27(1)-provides that when an inmate is entitled by the regulations to make such representations,
the decision make must give them all the information considered in taking a final decision regarding the
transfer Subject to section 27(3)
 This requirement can be satisfied by providing him with summary information
 Disclosure must be made in a reasonable time before the final decision is made
 The onus is one the decision maker to show that 27(1) was complied with
 They do not have to produce evidence in their possession that was not taken into account, only
evidence that was considered
 Section 27 provides that a summary with suffice
o Section 27(3)when the commissioner has reasonable grounds to believe that disclose of information
under section 27(1) would jeopardize the safety of (1) any person (2) the security of the penitentiary or
(c)the conduct of a lawful investigation, they may authorize withholding form the inmate information.
[EXCEPTION TO SECTION 27(1)]
 A decision to withhold information under 27(3) is reviewable
 The onus is on the decision maker to invoke this provision and prove there were reasonable
grounds to believe the information would jeopardize one of the listed interests
o In this context it is the inmate residual liberty at stake
o NOTE-section 27 serves as a statutory guide to procedural protections that have been adopted to ensure
that decisions under section 29 are taken fairly, when a transfer decision is made under section 29 and an
inmate is entitled to make representations then section 27 is engaged and decisions made under it are
reviewable
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o Habeas corpus is structured in such a way that so long as the inmate has raised a legitimate grounds
upon which to question the legality of the deprivation, the onus is on the authorities to justify the
lawfulness of the determine
o Even if section 27(3) is invoked, upon review all information should go to the judge
 When prison authorities rely on informants they need to explain in sealed affidavits why they
are reliable
o Some deference is owed to the commissioner and their representativesthey are often in the best
position to determine whether such a risk could materialize (risk under 27(3)) and they are in the best
position to determine if a give sources information in reliable.
 APPLICATION
o It is clear that the warden in making the final transfer decision considering information she did not
disclose to K
o She did not give him an adequate summery of the missing information
o The withholding of this information was not justified under section 27(3)thus the warden’s decision
did not meet the statutory requirements to the duty of procedural fairness
o The warden failed to disclose information about the reliable sources, the specific statements made and
the scoring matrix
o Although some of this information may have been justifiably withheld under section 27(3) the appellants
did not invoke this section or lead any evidence to suggest the withholding of information related to
concerns under section 27(3) [if this section is never invoked, pleased to proven then there is no basis for
the court to find the warden was justified in withholding information]
o To be lawful a decision to transfer an inmate to a higher security penitentiary must, among other things
be procedurally fair
o To ensure this the authorities must meet the statutory disclose requirements (there they were not met)
The transfer was unlawful

Canada v Mavi, 2011

Canada v Mavi, 2011

**Same facts are earlier
 While the content of procedural fairness varies with circumstances and the legislative and administrative
context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal
unfairly with people subject to their decisionsGENERAL RULE: Duty of fairness applies
 the general rule will yield to clear statutory language or necessary implication to the contrary
 Once the duty of procedural fairness has been found to exist, the particular legislative and administrative
context is crucial to determining its content.
o We are dealing here with ordinary debt, not a government benefits or licensing program
 NATURE OF THE DECISION
o Here the nature of the administrative decision is a straightforward debt collection.
 NATURE OF THE STATUTORY SCHEME
o Parliament has made clear in the statutory scheme its intention to avoid a complicated administrative
review process.
o Nevertheless, as the Court of Appeal correctly observed, the nature of the decision in this case is final
and specific in natureIt may result in the filing of a ministerial certificate in the Federal Court which is
enforceable as if it were a judgment of that court.
o The IRPA does not provide a mechanism for sponsors to appeal the enforcement decision
o absence of other remedies militates in favour of a duty of fairness at the time of the enforcement
decision
 EFFECT ON INDIVIDUALS
o Here the effect on the sponsors is significant
 CHOICE OF PROCEDURES BY THE AGENCY
o The legislation leaves the governments with a measure of discretion in carrying out their enforcement
duties
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 In these circumstances I believe the content of the duty of procedural fairness does not require an elaborate
adjudicative process but it does (as stated earlier) oblige a government, prior to filing a certificate of debt with
the Federal Court,
1. (i) to notify a sponsor at his or her last known address of its claim;
2. (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant
personal and financial circumstances that are said to militate against immediate collection;
3. (iii) to consider any relevant circumstances brought to its attention keeping in mind that the
undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter
Canada in the first place; and
4. (iv) to notify the sponsor of the government’s decision.
 Given the legislative and regulatory framework, the non-judicial nature of the process and the absence of any
statutory right of appeal, the government’s duty of fairness in this situation does not extend to providing
reasons in each case (Baker, at para. 43).
 This is a situation, after all, merely of holding sponsors accountable for their undertakings so that the public
purse would not suffer by reason of permitting the entry of family members who would otherwise not qualify
for admission

HEARING ISSUES
 What is the nature of the actual hearing itself?
o Should it be oral or written, or both?
o Are the parties entitled to representation?
o If there is an oral hearing, if there a right to cross-examination?

The form of the Hearing – when is an oral hearing required?

Oral Hearings (Reading Notes)

 The phrase oral hearing can have different meaningsin this section the term is used in the sense of a face-to-
face encounter with the actual decision maker (or something formally and legally deputed by that decision-maker
to hear and receive evidence), and the other party or parties
o It can be contrasted with hearings that take place in writing
 While in many contexts the concept of an oral hearing also assumes the presence of other procedural entitlements,
such as a formal presentation of evidence ad an entitlement to counsel, we will make no such assumptions in this
section
 Traditionally, and oral hearing is usually required as an element of natural justice
 With the emergence of the procedural fairness doctrine, the presumption in favour of oral hearings as the norm
disappeared in the expanded common law procedural terrain
 In NicholsonSCC left discretion on whether to proceed by way of oral hearing or written hearing in the hands
of the Board of Commissioners of Police
 In BakerThe need for deference to the procedural choices of certain decisions makers achieved even stronger
affirmation
 Claims to an oral hearing are ones that a situation sensitive, in the sense their necessity may depend on the matters
that are at issue in a particular proceeding as opposed to being a feature of all exercises of the relevant statutory
power
o This is clear from the fact that the SCC did not purport to be laying down a general rule in Baker
 The conventional view has always been that the claim to an oral hearing is at its highest when credibility is an
issue in the proceedings
 Masters v Ontario is an example of where a sexual harassment complaint was dealt with by methods of inquiry
other than a regular hearing
 87

 Khan v University of Ottawais an example of how claims to an oral hearing (and procedural claims generally)
are affected by the way the courts characterize the issue before the decision maker and the nature of the interest
that is at stake

Masters v Ontario, 1994

Characterization of decision?
– Would a duty of fairness apply after Dunsmuir?
Why is an oral hearing not required? What procedural safeguards were missing (according to Masters) in the process
followed? Why were they not required?
Fair in all the circumstances?
Masters v Ontario, 1994 OR
FACTS: M was the Ontario agent general in New York. He had been appointed by the premier in the exercise of
prerogative power. Following complaints of sexual harassment against M, the premier requested a term of external
investigation to ascertain the facts. Ultimately this produced a report to the effect that Masters had sexually harassed
seven women. Following a response by M, the premier determined that M should not long be agent general and be
reassigned. Rather than accept reassignment, M resigned on the basis of a financial settlement. He then applied for JR
of the investigators report alleging various breaches of the rules of natural justice in the conduct of the investigation.
Among concern were the ‘45’ witnesses that had been interviewed by investigators without M or his counsel being
present, and being refused access to the list of questions asked, and copies of notes etc. M was allowed to interview
witnesses himself, but few agreed to meet him.
ISSUE: Did M had a right to cross-examine witnesses from the investigation process?
OUTCOME
 M’s Lawyer arguedWhere credibility will determine the main issue before a government decision maker,
particularly where the main issue is vital to an interested party’s professional career, the general duty of
fairness and the rules of natural justice require that an impartial decision maker first be designed to determine
credibility by way of a full trial-type hearing permitting witnesses to be subject to cross-examination.
 M occupied a politically sensitive position representing Ontario outside of Canada, he understood his
employment was at the discretion of the premier and was specifically subject to the continuing confidence of
the premierthe nature of the employer and employee relationship in these circumstances involves complete
ministerial discretion
 Premier was not acting pursuant to a statute, but was rather exercising a prerogativethis and the nature of the
employment distinguishes this case from Knight or Nicholson placing this decision more towards the
discretionary or legislative end of the spectrum
 One the other hand, neither the decision-making nor the investigation focused on ‘broad grounds of pubic
policy’ rather the issue was whether M could be said by his employer to have engaged in sexual harassment
 M’s employment and reputation were at stake
 BUT also the well-being of the women involved and the fundamental need for an harassment free workplace, is
also pressing concerns
 The premier on advice decided to apply the investigatory procedure of the directive to the accusations against
M, because those procedures could be adapted to the situation
 Procedures were tailored to the peculiar nature of the allegations in order to permit a more information
assessment
 The duty of fairness, in these circumstances should have its content influences by the directive which the
government itself chose to apply
 The submission from M’s lawyer that he was entitled to a trial-type hearing before an impartial decision maker,
including the right to cross examine his accusers is without merit
 The duty of fairness did not require the government to use its coercive powers as employer and direct witnesses
to subject themselves to questioning
 The statutory powers procedure Act does not apply in the circumstances
 This was not a hybrid dispute resolution process, combining investigatory and adjudicatory responsibilities
 The witness’s responses to M’s denials and counter accusations to not amount to material changed in the
allegations against him
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 M was given the opportunity by the premier to make legal arguments and respond to all additional details, an
opportunity he and his lawyer exercised fully in their reply
 There was no need to provide the applicant with all the witness statementsdisclosure of the substance of the
accusations against him was sufficient
 The premier considered the applicant’s submissions together with the investigators report and concluded, in
light of the number and pattern of informal complaints, that M could be brought back to Toronto
 M was given an adequate opportunity to know the allegations against him and to state his case before the
premier considered the matterthe directives requirements were substantially complied with
 The procedures adopted were adequately tailored to the distinctive nature of harassment allegations having
regard to all the circumstances
 For the applicant’s benefit, however it must be emphasized again that the premier was not conducting a trial
 The allegations against M were never adjudicated The investigatory process deployed to inquire into his
alleged conduct by its very nature, did not afford him all the safeguards of a trial (and the case law does not
require otherwise)
The requirements of the duty to act fairly in the scope of the employer-employee relationship in this case were met

Khan v Univ of Ontario, 1997 ONCA

Majority decision: Why was an oral hearing required?
– Factors important to this decision?
– What turns on the decision?
– Differences of characterization between the majority and dissent?
Khan v University of Ottawa, 1997 OR
FACTS: K was a second year law student who failed her evidence exam, this caused her grade point to drop below the
faculty minimum and meant she would have to complete an additional semester of courses. K appealed her grade to the
Faculty Examinations Committee on the grounds she submitted a fourth booklet that had not been graded. The
committee met without providing K with notice of the meeting or asking her to appear. They dismissed the appeal.
After an unsuccessful appeal to the University Senate Committee K sought JR of the decisions denying her appeal.
ISSUE: Was K entitled to a oral hearing?
OUTCOME
 The only record of the Examinations Committees reasons is a memorandum from the chair of the committee to
the Senate Committee dated almost a month following the examinations committee’s decision, it said:
o They were unable to grant the claim, the committee took into account to following factors: the strict
procedures and extremely careful efforts made by the exam invigilators, the fact that the alleged
situation had never occurred before, the fact that K indicated in her first exam booklet that she had
completed 3 booklets, the fact that little was written in the third exam booklet which was graded.
 The Dean of the Law school wrote a covering letter in which he said “it is my understanding that the committee
is not convinced that a fourth booklet existed”
 A university student threatened with the loss of an academic year by a failing grade is entitled to a high
standard of justice
 The effects of a failed year may be very serious for the university student it was certainly delay their career
 The procedural fairness before the Examinations Committee in this case required the following:
o First (and more important) the committee should have given K an oral hearing because her credibility
was a critical issue on her appeal (by an oral hearing the court means a hearing where she has the
opportunity to appear in person before the committee and to make oral representations)
o Second, the committee should have considered the procedures followed during and after the Evidence
exam and made reasonable inquires to determine whether theses procedures were proper
o Third, the committee should have given K an opportunity to correct or contradict the three ‘factors’
relied on in its decision
 **the examinations Committee did NOT observe these requirements and therefor denied K procedural fairness
 K was entitled to an Oral Hearing
o The faculty of law regulations say that a student is entitled to have a grade reviewed where it appears
the grade assigned to the student’s work may be the result of a significant error or injustice
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o The chair of the examinations committee acknowledged on behalf of the university that a grade given
without considering the fourth booklet would amount to a significant error or injusticehe also
acknowledged that if the fourth booklet had not been graded she was entitled to rewrite the exam
o The question before the examinations committee was whether K had written the fourth bookletthe
only direct evidence that she did write it was her word. If they committee members did not believe her
then her appeal could be dismissedThe committee had to decide it K was telling the truth
o K’s credibility was the central issue for the committee
o In many academic appeals, procedural fairness will not demand an oral hearingan opportunity to
make a written submission may suffice
o Example: students appealing their grades because they believed they should have recieved a higher
grade would not ordinarily be entitled to an oral hearing
o BUT in this case it was different because the main issue was her credibility, the committee should have
given her an in person hearing
o Because this appeal turned on her credibility and because of the serious consequences on her of an
adverse finding, fairness required an oral hearing
o The committee disbelieved K’s explanation of a fourth booklet without even hearing from herthis
amounted to procedural fairness
 K need not show actual prejudice to prove that she has been denied procedural fairness, she need only show
that the committee’s breach of its duty of fairness may reasonable have prejudices herthis burden was met
here
 DISSENT
o The court must ensure that its judgement is not premises on a state of facts that accepts in full and
without caveat every claim made by the appellant and her supporters at every stage of the proceedings
o K insists on a right to attend and assert in person that there was a fourth booklet as if establishing that it
existed would be conclusive, But the committee were aware of the quality of her work in the first three
books and her professor said “more of the same wouldn’t have been beneficial”
o This is an attempt to place the burden on the two committees to demonstrate affirmatively that the
fourth book did not existthis imposes upon the respondents a standard of response that is entirely out
of keeping with the issue actually before them
o She was given an opportunity to provide a full and detailed written account, she took advantage of this
opportunity (she never indicated this written brief was not complete)
o This was not a matter which turned on credibility, there were not allegations against K and the
proceedings were not adversarial in nature
o She has not been charged with cheating, or any other disreputable conduct, she is not expelled and did
not lose a full year of school
o There is not authority that a student is entitled to a right to be heard in person when they are asking for
review their marks
o She was only entitled to a full opportunity to be heard so that her position could be fairly put and
consideredthe record shows she was allowed to make submissions (written) and did so
o An oral hearing is not required to satisfy the demands of natural justice
In determining if natural justice had been denied, the circumstances of the case must be considered

Cross-Examination

Remember statutory sources:

E.g., ATA, s. 38:
(1) Subject to subsection (2), in an oral or electronic hearing a party to an application may call and examine witnesses,
present evidence and submissions and conduct cross examination of witnesses as reasonably required by the tribunal for a
full and fair disclosure of all matters relevant to the issues in the application.
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(2) The tribunal may reasonably limit further examination or cross examination of a witness if it is satisfied that the
examination or cross examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the
application.
(3) The tribunal may question any witness who gives oral evidence in an oral or electronic hearing.

Cross Examination (Reading Notes)

 One of the majority founding cases on cross examination is Re Toronto Newspaper Guild and Globe Printing
(1951)
o The guild applies to the Labour Relations Board to be certified as bargaining agent for the employees of
Globe Printing Company. In support of its contention that it represented a majority of employees, an
official of the guild submitted membership cards. The company, suspecting that some employees had left
the union after the application was made sought cross-examination. The board refused. It certified the
union and the Globes application for certiorari succeeded.
o “The most effective way in which the company could have tested the merits of the application was to
cross-examine the person who was presenting it. The company was improperly excluded from a cardinal
privilege which it enjoys under our jurisprudence, that exclusion itself was tantamount to a denial of basic
justice.”
 The principle is enshrined in s 10.1(b) of the SPPA, although it is conditioned on the cross-examination bring
“reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding

Innisfil Township v Vespra Township, 1981 SCC

• Important statement of the principles and interests at stake in a right to cross-examine: p. 415.
• Pre – Baker Discussion of the spectrum of decision-making and its relevance to procedural rights (pp. 415-416)
Why is cross-examination contentious in this case?
Innisfil Township v Vespra Township, 1981 SCC
FACTS: In the course of an application made by the city of Barrie to the Ontario Municipal board for permission to
annex land in adjacent townships, B claimed that it needed the land to accommodate a projected population of 125, 000.
This figure had been recommended by a government-appointed task force on the regions future and had been approved
by the government. A letter from the minister of treasury, economics and intergovernmental affairs stating this
government policy was introduced to the Municipal board hearing. When it reached the SCC, the issue of whether the
board was obliged to accept the letter had been settled (it was admissible) and the policy was relevant to evidence, But
the board had a duty to make up its own mind.
ISSUE: Whether the opposing municipalities were entitled to cross examine the official to the ministry who presented
the letter?
OUTCOME
 The SPPA does not assist the respondent in this opposition to cross examination of the minister on the
latterSection 3 of the act clearly makes that statute applicable to the hearing under s14 of the Municipal Act.
 Section 10(c) [now 10.1(b)] is directly applicable to the issue at hand
 Here the ministry volunteered a witness and at one stage or another the board and all the parties before it
assumed cross-examination of that witness should and would take placethere is no exception in favour of a
member of the executive
 Cross-examination is a vital element of the adversarial system applies and followed in our legal system,
including in many instances before administrative tribunals
 This does not mean administrative tribunals will apply all the same techniques
 Where the rights of a citizen are involved and the statute affords him the right to a full hearing, including a
hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the
citizens rights to meet the case made against him by cross examination
 The procedural format adopted by the administrative tribunal must adhere to the provisions of the parent statute
of the board
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o The process of interpreting and applying statutory policy will be the dominant influence in the working
of such and administrative tribunal
o Where the board proceeds in the discharge of its mandate to determine the rights of the contending
parties before it on the traditional basis wherein the onus falls upon the contender to introduce the facts
and submissions upon which he will rely, the board technique will take on something of the appearance
of a traditional court
o Where on the other hand, the bard by its legislative mandate or the nature of the subject matter assigned
to its administration is more concerned with community interests at large, and with technical policy
aspects of a specialized subject, one cannot expect the tribunal to function in the manner of the
traditional court
 We are here concerned with that sector of the common law sometimes referred to as the principles of natural
justice, fairness and audi alteram partemthese principles are of diminished impact in stances such as we have
here where the constituting statutes themselves outlines the necessity for a hearing and established the
procedure to be followed in the conduct of such hearings
 If the appellant here ahs the right to cross-examine the representative of the Ministry it is not for the appellate
court to withhold such a right because in its judgement it is doubtful, or even impossible, in the view of the
court for the appellant to advance its case by cross-examination (the decision to exercise that right is solely that
of the holder of the right)
 The relationship of ‘independent’ agencies to the executive branch is so far as that relationship affects the
procedural rights of parties before the tribunal can only be determined by reference to the agency’s parent
statute, and other relevant or common law prescribing procedural norms
o If, on its face the agency is held out in the constitute legislation as ‘independent’ of the executive, that
is with functions independent of the executive, it remains that way for all purposes until the Legislature
exercises its right to alter the position and procedure of the agency
 A court will require the clearest statutory direction along the lines, for example, of the Broadcasting Act to
enable the executive branch to give binding policy directions of an administrative tribunal to make such
directions immune from challenge by cross examination
 This is not the case of the right to cross-examination being used to challenge the policies of the executive
branch in such a way to bring the administrative tribunal into the political arenait is merely the exercise by a
party properly before the Board on an annexation application of a right accorded to that party by the Legislature

Djakovic v BC (Workers’ Comp), 2010 BCSC

• Application of the Baker factors
• Why was x-examination important in this case?
• Could the procedural problem be solved without x-examination/compelling the witness to attend?
Djakovic v BC (Workers Compensation Appeal Tribunal), BCSC 2010
FACTS: D claimed compensation for a lower back injury that allegedly occurred during a session of physical
rehabilitation. D said that at the clinic a staff member instructed him to do an exercise that caused a sharp pain in his
back. Two staff members allegedly witnessed the incident and moved him to a bed. D’s claim was denied and he
appealed the decision. His counsel indicated that he wished to have the two staff members attend the hearing to be
cross-examined. The vice chair decided to elicit their evidence in writing and asked to clinic manager to have his staff
clarify the notes. D again requested the staff members be subpoenaed and was denied. The vice chair said a oral hearing
would have little value and were unlikely to elicit an opposing opinion etc. D sought JR.
ISSUE: Was D entitled to cross examine the witness?
OUTCOME
 Central to the duty to be fair is the maxim audi alteram partem
 This requirement had two separate components
1. A party it entitled to know or understand the case that is has to meet
2. It is further entitled to respond to that case before the decision make reaches a decision
o Notice of a hearing and various obligations of disclosure pertain to the first requirement, and the nature
of the hearing (in particular the right to cross examine) are relevant to the second
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 The fact that a tribunal, in this case the WCAT, has the jurisdiction to control its hold process and to establish
the form in which it chooses to accept evidence is not determinative of these issuesthus the fact that the
WCAT has its own Rules of Procedures does not ought the courts considerations of whether the
implementation of such rules conforms with the requirements of the duty of fairness
 In applying the various Baker Factors, the following was relevant:
o The process of the WCAT bear relatively strong similarities to the processes of the courts
o The role of the WCAT within the statutory scheme also supports the need for a significant level of
procedural fairness, in particular there are no further appeals
o The importance of the WCAT decisions are important to the individuals (D)
o The issue of legitimate expectations are not directly engaged here
o The fact that the Act and WCAT’s rules provide it with the ability to choose the procedures it wishes to
follow and that it has expertise in making such decisions requires the court to ‘give weight’ to the
choice to procedures it had selected
 In this case, the Appeal Tribunals failure to allow counsel for D to cross-examination the witnesses constituted
an unacceptable impairment of the petitioners right to procedural fairness
 Application of the Baker factors (above) on balance supports D a significant degree of procedural fairness
 The issue for counsel to cross-examination is not only relevant but central to this case
 If one eights the burden as opposed to the benefit of allowing cross examination which D sought, the scale tip
in favour of allowing it (significant rights of D were at stake, questions of credibility were at issue, and issue
raised was not peripheral but a central one)
 In preventing D’s counsel from cross examination, the appeal tribunal foreclosed the prospect that D’s case
might be advanced it further impaired D’s ability to meet his case
 Question: was D given the opportunity to fully and fairly present his case?
In denying him the opportunity WCAT took the unacceptable risk that not all information that could affect its decision
was placed before it.

POST-HEARING ISSUES
Duty to Give Reasons
Reasons are important because:
– Provide basis for appeal
– Allows an individual see why decision was made. May increase legitimacy of the decision in the eyes of
the person affected (justification)
– Protection against arbitrary or unfair exercises of public power
– Increases public confidence in administrative justice
– Supports better decision-making (requires more thought, effort)
Concerns regarding a duty to give reasons in admin contexts/reasons to apply the requirement ‘flexibly’ because:
• Cost, burden
• Slows things down
• Might “induce a lack of candour”
• Increases formality, legal overtones of otherwise informal processes
• Addressed by “variable standard” in administrative context;
• BUT…. is there an inevitable creep of formality where there is a duty to give reasons? Does
procedural review of reasons push for that formality?
Duty to Give Reasons Development
• Established as part of the common law duty of fairness in Baker, 1999
– Issue: Is there a duty to give reasons or duty to give “adequate” reasons? When does review for a breach
of a duty to give reasons become review on the merits (i.e., cross the line from procedural to substantive
grounds)?
• Nfld & Labrador Nurses Union, 2011: Questions of adequacy or reasons are issues of substance not process
 93

Duty to Give Reasons (READING NOTES)

 BC Administrative Tribunals Act
51 The tribunal must make its final decision in writing and give reasons for the decision.
 Until recently the court was reluctant to impose on statutory and prerogative decision makers the obligation to
give reasons for their decisionsthis all changed in Baker
 In Baker the SCC did not hold that all exercises of statutory of prerogative powers involved the duty to give
reasons
o In the case of Baker it was triggered by the importance of the interests at stake
 There also seems to be an acceptance that there if there exists a statutory right of appeal from the decisions then
this will normally generate an entitlement to reasons
 It is the tendency of the court since Baker to require the provision of reasons (but this is not universally the
caseExamples below)
o In Service Corp. International v Burnaby (1999) it was held that municipalities were not obliged (even
after Baker) to give reasons for its decisions in planning matters
o Gigliotti v Consil… (2005) a minister’s decision to close a college was a policy decision an not reasons
were required
o MaviSCC found no duty to give reasons
 The Content of the Duty to Give Reasons
o When an administrative body is legally required to give reasons for its decisions, what are the content of
that duty?
o Dunsmuir v New Brunswick (2008)The SCC stated that a court conducting the reasonableness review
of a tribunals decision was concerned not only with whether the decision fell within the range of possible
acceptable outcomes, but whether the tribunal met requirements of justification, transparency and
intelligibility in articulating reasons for the decision
 There followed conflicting case law on whether the adequacy of reasons should be assessed on
the correctness standing as part of judicial review for breach of the duty of procedural fairness or
as a dimension of (substantive) reasonableness review
o The SCC resolved that question in Newfoundland and Labrador Nurse’s Union v Newfoundland and
Labrador (2011)
o “Where there are no reasons in circumstances where they are required, there is nothing to review.
But where, as here, there is reasons, there is no such breach. Any challenged to the
reasoning/result of the decision should therefor be made within the reasonableness analysis.”
o Therefor the quality of reasons is NOT a question of procedural fairness

Baker (1999)
• Establishes a duty to give reasons in administrative contexts (where required via spectrum analysis). Expansive.
• 2 possible procedural fairness arguments:
– Reasons are required (where no reasons were given)
– Reasons are inadequate/so inadequate that basically no reasons were given (where reasons are given)
• The latter argument pushes the line between procedure and substance (we’ll come back to this….)

Implications of procedural vs substantive review of reasons

Procedural review
 reviewed on a correctness standard
 reasons must make the basis for the decision ‘intelligible’
Substantive review
 reviewed on a reasonableness standard, as per Dunsmuir
 is “justification, transparency and intelligibility” in the reasons more important than reasonableness of the
outcome? (or vice versa)
 94

What happened after Baker, before Nfld & Labrador Nurses Union
Dunsmuir (2008)
• “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. …[R]easonableness is concerned
mostly with the existence of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law.” (at para 40)

What happened between…: Differences of approach at the lower courts

Nfld & Labrador Nurses Union – Nfld CA rejected the distinction between procedural review & substantive review of the
adequacy of reasons:
– “a failure to give reasons, or inadequate reasons, would be decisive in the reasonableness assessment. A
complete lack of or inadequate reasons could not be said to provide the justification, transparency and
intelligibility in the decision-making process required to satisfy reasonableness under the Dunsmuir
analysis” (at para 12)
Versus
Clifford v Ontario Municipal Employees Retirement System, 2009 ONCA 670 - Preserved procedural review as distinct
from substantive review:
– Procedural review proceeds “from a functional perspective to see if the basis for the decision is
intelligible” and that “reasons must be sufficient to fulfill the purposes required of them” (at paras 29, 31)

Nfld & Labrador Nurses Union (2011)

• On what basis did the union argue that the arbitrator’s reasons were effectively “no reasons”?
– Because it was not apparent that the arbitrator addressed their arguments.
• What is the missing piece of the arbitrator’s reasoning that the SCC is willing to assume/supply as a matter of
deference?
• Shut down the expansiveness of Baker
• Shut down procedural review of the adequacy of reasons  The adequacy of reasons is a substantive question.
Inadequate reasons may be unreasonable but gaps in the reasoning/not addressing each element will not
necessarily render the reasons inadequate.
• Standard for reasons, as a matter of substantive review for reasonableness:
“Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the
reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the
result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion.” (para 16)
– Courts may “supplement” the reasons (quote from Dyzenhaus, para 12)
Newfoundland and Labrador Nurses’ Union v. The Queen, 2008 NLTD & SCC
FACTS: This is a judicial review of a labour arbitrator’s award concerning the calculation of vacation entitlement under
a collective agreement between the Newfoundland and Labrador Nurses’ Union and the Newfoundland and Labrador
Health Boards Association. Four permanent registered nurses employed at the hospital in St. Anthony filed a group
grievance claiming that the employer was improperly excluding from years of service (for purposes of vacation
entitlement) hours worked as a casual nurse – that is, hours worked before obtaining permanent employment status. The
grievance proceeded to arbitration; the arbitrator denied the grievance, concluding that the collective agreement did not
contemplate the use of casual hours in the calculation of length of service for the purpose of determining the vacation
entitlement of permanent employees. The Union claims that the arbitrator’s decision is unreasonable; in particular the
Union asserts that there is no chain of reasoning in the award that can reasonably support the conclusion of the arbitrator.

ISSUE: whether the arbitrator’s reasons in this case satisfied these criteria and whether the reasons engaged procedural
fairness?
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HOLDING
NLTDFor the reasons that follow, I have concluded that the award should be quashed and the grievance remitted to a
new arbitrator. [result was unreasonable, and set aside]
SCCIn this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well
within the range of reasonable outcomes

OUTCOME
NLTD
 A reasonable decision on a question of collective agreement interpretation requires the demonstration of a chain
of reasoning that leads to the conclusion
 when only issues of interpretation are engaged, and the range of possible outcomes is narrow, reasonableness of
the decision requires more cogency of reasons than might otherwise be the case.
 The conclusion that permanent employees are not entitled to include hours worked while they were casual
employees is not supported by the reasoning given.
 The arbitrator repeats the support for his conclusion three times – that casual employees are not entitled to
Article 17 vacation benefits. But the grievance was directed to the entitlement of permanent employees, not the
benefits available to casual employees. As noted earlier, the arbitrator’s focus – as initially presented in the
paragraph immediately preceding his considerations – was on the entitlement of casual employees.
SCC
 the purpose of reasons, when they are required, is to demonstrate “justification, transparency and intelligibility”
 From Dunsmuir:
o Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a decision reasonable
o In judicial review, reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process
o that the concept of “deference as respect” requires of the courts “not submission but a respectful
attention to the reasons offered or which could be offered in support of a decision
 “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is,
even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek
to supplement them before it seeks to subvert them
 I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for
quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the
reasons and a separate one for the result
 the reasons must be read together with the outcome and serve the purpose of showing whether the result falls
within a range of possible outcomes
 In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show
“respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” 
This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome.
 Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the reasons or the result under a
reasonableness analysis In other words, if the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
 The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does
not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in
the realm of reasonable outcomes
 It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in
circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is
no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the
reasonableness analysis.
 96

After Newfoundland Nurses

What is the standard that reasons must meet to satisfy the procedural obligation to provide reasons? When are the reasons
so inadequate/poor that effectively no reasons are provided?
• London Limos v Unicity Taxi confirms flexibility in understanding what constitutes reasons:
– Context includes record; no requirement for formal written reasons where record demonstrates sufficient
understanding of basis for decision and basis for JR

Wall v Independent Policy Review Director, 2013

Decision letter: “The OIPRD is aware of your concerns. S. 60(2)…permits the Director not to deal with a complaint if the
complaint is made more than six months after the facts on which it is based occurred. Taking all the information into
consideration,m I have decided not to proceed with the complaint as it was made more than six months after the facts on
which it is based occurred.” (para 46)
ONCA: “in its brevity and lack of explanation, the letter is devoid of any reasons adequate to allow for judicial review of
the Director’s decision to screen out Mr. Wall’s complaint…” (at para 54)
• Consistent with Nfld & Labrador Nurses Union?
• Compare with reasons in Agraira
Aside: Query whether ONSC is correct in calling the s. 60(7) requirement for reasons a basis for a “legitimate
expectation” (at para 42)
– Lower decision a good one for thinking about the relationship between statute and the duty of fairness.

Wall v Independent Policy Review Director, 2013 ONSC/ONCA

FACTS: W was arrested in Toronto on the weekend of the G20 summit, he was later released without charge. He made a
complaint of police misconduct with the Ogive of the Independent Police Review Director [OIPRD] which lead to that
office having disciplinary charges. Later W learned that the officers may have acted under instruction from senior officers
and filed a further complaint. Under section 60(2) of the Police Services Act the director may decide to not deal with the
complaint made by a member of the public if the complaint made if more than six months after the facts on which it is
based occurred. Section 60(3) requires that the director in making a determination under 60(2) consider three things (page
430). The director dismissed W’s complaint because it had been filed more than six months after the event. W was given a
letter stating that. W sough judicial review of the decision on the grounds that the director had breached his statutory and
common law duty to provide reasons for this decision.
ISSUE: Did the director breach a statutory or common law duty to give reasons?
HOLDING
 The director failed to comply with the requirements to provide reasons (which was required under the legislation)
OUTCOME
 The duty to give reasons
 The SCC drew a distinction between adequacy of reasons and the absence of reasons (Newfoundland
Nurses)
o The adequacy of reasons is not a stand alone basis for quashing a decision, where reasons are
given those reasons should be considered along with the outcome in determining whether the
decision can be said to be reasonable
o A complete absence of reasons where such reasons are required would constitute a breach of
procedural fairness
 A breach of an applicable standard of natural justice or procedural fairness required of a particular
tribunal in respect of a particular decision making process will result in that decision being quashed
 Reasons are important!
o They can focus the decision maker and remind them of the relevant factors and evidence to be
taken into account
o They also reassure the individual involved that their concerns have been considered, and the
process is fair and transparent
o Reasons are necessary for there to be a meaningful judicial review of the decision in question
 97

 The decision in this case in a SCREENING DECISION, which does not attract the highest degree of
procedural fairness (but it does terminate the ability of the complainant to pursue a complaint of
mistreatment against the police, thus effects their rights)
 Since the director is required by the legislation to take into account certain factors, providing reasons
would serve to focus the directors mind on those factors as well as reassure both the individual and the
public that hey have been taken into account
 Since these decisions are reviewable on judicial review it is essential for the court to see the reasoning
process of the director and factors he took into account in making his decision
 If there is a specific legislative requirement to give reasons there is a legitimate expectation that reasons
will the provided [WRONGThis is an INCORRECT STATEMENT]
 Based on the factors reviewed, the court finds that at the very least procedural fairness imposes a duty of
the Director to provide reasons for any decisions not to deal with a complaint
 The director breached the Statutory Requirement to Give Reasons
 The director is required by section 60(7) to advise the complainant in writing with reasons if he decides to
not deal with a complaint
 Counsel argues that the letter sent to W complies with section 60(7)the court does not agree
 What will constitute reasons in any given situation will vary widely depending on the context and the
nature of the decision being made
 There are some general guidelines [Gray]
o The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and
evidence of the parties and stating a conclusion
o The decision maker must set out its findings of fact and the principal evidence upon which those
findings were based
o The reasons must address the major points in issue
o The reasoning process followed by the decision maker must be set out a reflect considerations of
the main relevant factors
o At a MINIMUM, the reasons of a decision maker must answer the question of WHY?
 The director failed to provide reasons for his decision, thus breached section 60(7) (he did not answer the
question of why)
 The Director Breached Principles of Procedural Fairness
 The failure to provide reasons is not only a breach of the requirements of the legislation, it also violates
principles of procedural fairness and natural justice
 In this case W received no information whatsoever before the director made his decision, all he had was
the one letter
 Therefore, it is not possible to supplement the actual reasons with any other material indicating the basis
of the director’s decision
 The director breached principles of procedural fairness by failing to provide W with any reasons for
dismissing his complaint without investigation
 Remedy
 The director failed to comply with the requirements of his empowering legislation that he provide reasons
for his decision
 By failing to provide reasons, he also breached fundamental principles of natural justice
 His decision cannot standthe decision is quashed
 The matter is remitted to the Director for his consideration
 ONCA
The court of appeal agreed with the Divisional Courts conclusion, the decision was unreasonable because it failed to meet
the Dunsmuir criteria of justification, transparency and intelligibility
 98

# Manitoba Ltd London Limos v Unicity Taxi Ltd et al., 2012 MBCA
FACTS: London Limos applies to the Taxicab board for a taxicab business license. The appellant taxicab dispatch
companies filed oppositions to the application. Although the ‘objectors’ are not parties to the proceedings, they are
provided with summary information regarding the application and given an opportunity to present the reasons for their
opposition to the board. The board issued its disposition with respect to the application, granting LL’s application in part.
However, it did not issue written reasons for the order. The objectors appealed the decision to the Court of Appeal,
arguing that the board had breached its duty of fairness to provide them with sufficient disclosure of the materials
supporting LL’s application and failing to provide reasons.

ISSUE: Did the board fail to provide reasons? [was there a duty to provide reasons?]
HOLDING
 Although no formal reasons were provided (assuming that there was any duty to provide reasons to objectors), the
basis for the decision was evident from the recordThis was sufficient
OUTCOME
 Must the appellant request reasons before they can complain of a breach of natural justice?
 It is not necessary to decide this case on the basis that reasons were not requested
 A failure to request reasons does not bar appellate review in all cases
 If the duty of procedural fairness and natural justice has been breached, then the failure to request reasons
should not prevent one from receiving a remedy
 However, when determining whether reasons were required in any particular circumstances, surely the
failure of a person complaining to ask for reasons may indicate that the rationale for the order is
understood without written reasons
 At a MINIMUM, it is a factor for the court to take into account on an application for judicial review
 It must be remembered that the duty of fairness normally only requires reasons to be provided to the
person whose interests are being directly affected.
 Lack of written reasons
 In this case, the record acted as a sufficient surrogate for formal, written reasons, so that a person could
understand the rationale before the Board’s decision
 A simple order issues by the board may be sufficient to fulfil the purpose of reasons and admit of
effective appellate review depending on the context of the proceedings that gave rise to the
orderContent includes many things but most certainly includes the nature of the issues raised before the
tribunal, the evidence adduced and the submissions made
 In this case, context would include information contained in the disclosure summary, the information
made public at the board hearing and in part confidential business information
 As well in this case, the entire proceedings were recorded and transcribed, the test applied by the board
for considering whether to grant new licenses is clear from the transcript of the hearing
 The record discloses that the objectors understood the test to be applied
 They did not present any evidence to support their objections that additional limousine licenses were not
need to fulfil public convenience or necessity
 Conclusion
 With respect to the reasons, the history of correspondence makes clear that the objectors real grievance
was lack of disclosure. They never requested reasons from the Board until the notice of appeal was filed
(this is assuming that a duty to give reasons was owed to the objectors who were not parties to the hearing
 Even given the absence of formal written reasons in the context of this case and the nature of this
question, there is a sufficient understanding of the rationale of the Board to allow for judicial review
The Boards decision was REASONABLE and should not be interfered with
 99

Constitutional Sources of Procedural Rights

INDIVIDUAL
• Charter, s. 7
• Unwritten constitutional principles: judicial independence
• Charter, ss 8-14
COLLECTIVE
• Constitution Act, 1982, s. 35(1)/Honour of the Crown
• Charter, s. 2(d) (limited protection of collective bargaining)
• [Language rights?]

SECTION 7 OF THE CHARTER

Section 7-Charter
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.

BILL OF RIGHTS
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared,
and in particular, no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations;

**KEEP IN MIND THE DIFFERENT REMEDIES AVAVILABLE HERE

The courts can strike down legislation that violates a person’s charter rights
Contrast this with administrative law remedies

The Charter and the Bill of RightsISSUES OF APPLICABILTY

 The Bill of Rights applies to the “laws of Canada” a term specified to include not only Act of Parliament and “any
order, rule or regulation thereunder” but also “any law in force in Canada”
o This is presumptively broad enough to encompass decision and actions taken by those deriving their
powers from Federal law
o There is an argument that unlike the Charter, the reach of the Bill of Rights corresponds generally to that
of judicial review under the Federal Courts Act
 In contrast to the Bill of Rights, the Charter Applies throughout Canada
o By virtue of section 32(1) the charters application is restricted to the parliament and government of
Canada and the legislatures and government of the provinces
o This has been held by the SCC to be the controlling provision in terms of the reach of the charter and to
have the effect of restricting the charters application in the administrative law arena to bodies or at least
activities that can be brought within the concept of government
o The charter does not reach those bodies such as corporations the existence of which depends on the
operations of which are facilitated by statutes, there are a range of other bodies such as professional
governing authorities and their disciplinary arms which controversy still remains
 100

o NOTE-bodies that are not generally directly subject to the charter may still be affected by it
o There many be an issue about the extent to which a statutory body, which enjoys varying degrees of
independence from government or act at arms length from government are subject to the charter

The Bill of Rights: Specific Procedural Thresholds

 After the advent of the Charter the Bill of Rights came into its own as a source of procedural protections, its
relevance is really in situations where it provides guarantees that the charter does not
 There are three threshold dimensions to the Bill of Rights that promise a more extensive reach in terms of
procedural protections than provided by the key charter provision section 7
 The three potentially significant differences between the reach of the relevant provisions in the Bill of Rights and
Charter
o The use of the term “individual” and “person” in the Bill of Rights as opposed to “everyone” in the
Charter
o The inclusion of “enjoyment of property” in section 1(a) of the Bill of Rights
o The attachment in section 2(e) of procedural guarantees to the “determination of …rights and obligations”
 NOTE-there is not equivalent to section 1 in the Bill of Rights
 The SCC has held that section 7 does not include corporations, whereas whether the same holds true for section
1(e) of the Bill of Rights remains unresolved

NOTE ON SEURITY CERTIFICATES

 The point of them is to get people who otherwise don’t have a right to be in Canada to get them and deport them,
because they are a security threat to Canada
 Why don’t we see other legal rights coming into play? (like section 8?, whey is it just section 7?)BECAUSE
THEY ARE NOT CHARGED
o We don’t end up in a criminal court
o They are detained on this special procedure applying only to non-citizens (it does apply to permanent
residents)
 You end up with a really long process here
 There is a lot of things around determining if the certificate is ‘reasonable’
 The named persons on the certificate get access to certain information (but only some that is considered non-
serious, and often summaries)
 Think about what would happen if this wasn’t in the national security contextthere would be full disclosure and
an oral hearing, but the fact that there are national security issues complicates it
 Federal courts review the certificates
 The Security Certificate RegimeIRPA
o Security certificates introduced in
o Canadian law in 1978
o According to Pub Safety Canada, 27
o individuals have been subject to
o certificate proceedings since 1971
o Meant primarily as a way of detaining and quickly deporting persons deemed a security threat. Applies to
non-citizens. Post 2001, becomes important tool for counter-terrorism.
o Earlier version of scheme challenged in Chiarelli v. Canada (1992) and upheld – but did not focus on
secrecy, i.e. issues in Charkaoui. (C convicted of serious crime)
o Where deportation would be to countries with a likelihood of torture (following Suresh), certificates result
in extended detentions or house arrest with limited opportunities to challenge those detentions
 Summary of certificate regime before Charkaoui
o acting on info from CSIS, RCMP, Ministers of Immigration and Public Safety sign certificate declaring
person “inadmissible” on security grounds (suspected involvement in terrorism, or simply being “a danger
to the security of Canada” [s.34]).
 101

o certificate acts as warrant for arrest and detention pending deportation.

o can be reviewed in Federal Court within 48 hours for permanent resident, or 120 days for foreigners.
o detainee provided only a very brief summary of allegations (“of the most general sort”).
o court can admit a wide range of info, hearsay, etc., with part of or all of hearing in camera and ex parte.

Reach of Section 7 for the Purposes of Administrative Law

 Question: Whether involuntary subjection to the administrative process in general generates a “life, liberty and
security of person” claim?
 New Brunswick v G(J)
o The SCC held that at least some dramatic administrative proceedings may affect a person’s security of
person
o In this case the minister sought to extend a judicial order granting the minister custody of the appellants
three children for an additional three months
o Did fundamental justice require she be provided with legal aid? BUT before this issue could be
determine the court had to determine if the custody affected her security of person
o The SCC concluded that given the nature of the custody proceedings and their impact, she crossed the
threshold
 While the court as a whole emphasized that state action must have a SERIOUS and PROFOUND effect on a
persons psychological integrity in order to trigger the Charter, this judgement does suggest a potentially wider
role for fundamental justice in administrative law, especially now that s. 7 is no longer associated exclusively with
criminal law

Section 7 and Common Law Compared

Singh v Canada (Minister of Employment and Immigration), 1985 SCC

• Why 3 under Charter (Wilson J), 3 under Bill of Rights (Beetz J)?
• Process in statute. What did it provide for? What didn’t it provide for? (p. 185-187)
• S. 7 Analysis:
– Threshold: “Everyone”
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– Threshold: “right to life, liberty and security of person”

– Content: Fundamental Justice
• Issue of credibility at stake, important interests (as defined by s. 7 context)  implies oral
hearing required
• Idea of Fundamental Justice requiring “more” procedural protections:
– If “the right to life, liberty and security of person” is properly construed as relating only ot matters such as
death, physical liberty and physical punishment, it would seem on the surface at least that these are
matters of such fundamental importance that procedural fairness would invariably require an oral
hearing” (at p. 191)
• Idea that s. 1 has a limited role in relation to justifying breaches of s. 7 rights
• Ideas revisited respectively in Suresh, Charkoui…

FACTS: The appellants were all convention refugee claimants who were landed in Canada. Under the procedures then in
place the minister acting on advice of the Refugee Status Advisory Committee had determined that there were not
convention refugees. They all then applied to the Immigration appeal board for a redetermination of their status, but their
applications were not referred to an oral hearing because the board determined on the strength of the material submitted
by the applicants that there was no reasonable grounds for believing they could establish their claims at a hearing.
They then applied to JR for a review of the boards decision, alleging the statutory scheme infringed section 7
ISSUE: Do the procedural mechanisms in the Immigration act violate section 7?
HOLDING
 The procedures set out in the act were complied with
 The procedures for the determination of refugee status set out in the Immigration Act DO NOT accord refugee
claimants fundamental justice in the adjudication of those claims, and are thus not compatible with section 7 [And
cannot be saved by section 1]
OUTCOME
**WILSONDecided the Case on the basis of the Charter
 The court first notes that he court should not in general resort to constitutional basis for resolving cases unless
necessary
 A convention refugee who does not have a safe haven elsewhere is entitled to rely on this country’s willingness to
live up to the obligations it has undertaken as a signatory to the UN convention Relating to the Status of Refugees
 Procedures for Determining Convention Refugees Status
 The procedures for determining whether an individual is a convention refugee are set out in sections 45-
48 and 70-71 [Immigration Act]
 The act does not envisage an opportunity for the refugee to be heard other than through his claim and the
transcript of his examination under oath
 The courts cannot import into the duty of procedural fairness procedural constraints on the committee’s
operation which as incompatible with the decision making scheme set up by Parliament
 Where the board determines, pursuant to section 71(1) that he application should be allowed to proceed,
then a hearing would take place pursuant to section 72(2)it would be quasi-judicial one which full
natural justice would apply
 The board is not empowered by the terms of the statute to allow a redetermination hearing to proceed in
every caseit may only do so if it they are of the opinion that there are REASONABLE grounds to
believe that a claim could, upon the hearing of the application, be established
 Thus they only get a hearing if they make it base the threshold question (set out in section 71(1))
 On the facts there is not basis for suggesting the procedures set out in the Act were not
followedtherefor any claim can only succeed if there is a basis that the Charter requires the court to
override parliaments decision to exclude the kind of procedural fairness sought by the appellant
 Are the Appellants Entitled to the Protection of s.7 of the Charter?
 Everyone includes the appellantsthis term encompasses everyone human being who is physically
present in Canada
 BUTdo the rights they seek to assert fall within the scope of section 7?
o Here the right not to be returned to a country where his life or freedom is threatened
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o A convention refugee is a person who has a well-founded fear of persecution in the country from
which they are feeingto deprive this person of avenues open to them under the Act at least a
minimum impair his right to life, liberty and security of person in the narrow sense advanced
o “Security of person” must encompass freedom from the threat of physical punishment or
suffering as well as freedom from such punishment itself
o The appellants are not at this stage entitled to assert rights as Convention refugees; their claim is
that they are entitled to fundamental justice in the determination of whether they are convention
refugees
o The rights the appellants are seeking to assert are ones which entitle them to protection of section
7it is necessary to then consider whether the procedures for the determination of refugee status
as set out in the Act accord with fundamental justice
 Is fundamental justice denied by the procedures for the determination of convention refugee status set out in the
act?
 Does the procedures set out in the Act for the adjudication of refugee status claims meet the test for
procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and
know the case he has to meet?
 Procedural fairness may demand different things in different contextsit is possible that an oral hearing
before the decision maker is not required in every case in which section 7 of the charter is called into play
 If the right to life, liberty and security of person is properly construed as relating to only matters such as
death, physical liberty and physical punishment it would seem on the surface at least that there are matters
of such fundamental importance that procedural fairness would require an oral hearingBut the court is
prepared to accept that written submission for the present purposes may be an adequate substitute for an
oral hearing in the appropriate circumstances
 Even if a hearing based on written submissions are consistent with the principles of fundamental justice
for some purposes, they will not be satisfactory for all purposes
 There a serious issue of CREDIBILTY is involved fundamental justice requires an oral hearing
 The proceedings before the Immigration Appeal Board were quasi-judicial and the Board was not entitled
to rely on materials outside the record which the refugee claimant himself submitted on this application
for redetermination
 The applicant is entitled to submit whatever relevant material he wished to the Board, but he still
faces the hurdle of having to establish to the Board that on the balance of probability the Minister
was wrong (moreover, he must do this without any knowledge of the minister’s case beyond the
rudimentary reasons which the minister has decided to give him in rejecting his claim)it is this
aspect which the court finds impossible to reconcile with the requirements of fundamental justice
set out in section 7
 Because section 71(1) requires the Board to reject an application for redetermination unless it is of the
view that more likely than not the applicant will succeed, it is apparent that an application will usually be
rejected before the refugee claimant has had an opportunity to discover the Ministers case against him in
the context of a hearing
 The procedures for the determination of refugee status set out in the Immigration Act DO NOT
accord refugee claimants fundamental justice in the adjudication of those claims, and are thus not
compatible with section 7THEREFOR we must go the third step of the inquiry and determine
whether these shortcomings constitute a reasonable limit which can be demonstrably justified in a
free and democratic society (Section 1)
 Can the Procedures be Saved by Section 1? NO
**BEETZ CONCURRINGBUT DECIDED THE CASE ON THE BASIS OF THE BILL OF RIGHTS
 The appeals should be allowed, but on the basis of the Bill of Rights
 Does the procedures followed in this case for the determination of Convention refugee status conflict with the Bill
of Rights, particularly section 2(e)?
 I have no doubt that the appellants were not afforded a fair hearing in accordance with the principles of
fundamental justice
 The principles of fundamental justice will not impose an oral hearing in all casesthe most important factor in
determining the procedural content of fundamental justice is a given case are the nature of the legal rights at issue
and the severity of the consequences to individuals
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The decision of the Immigration Appeal Board was set aside, application for determination of refugee status
remanded to the

Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC

• Application of Baker framework in s. 7 context
– Para 119 re LE: “It is only reasonable that the same executive that bound itself to the CAT [Convention
Against Torture] intends to act in accordance with CAT’s plain meaning.”
– Art 3 of CAT: “No State Party shall expel, return or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.” (emphasis
added)
• Standard for reasons – para 126
– fit with recent changes in the common law (Nfld & Labrador Nurses Union)? S. 7 specific?
• “Barring exceptional circumstances, deportation to torture will generally violate the principles of fundamental
justice protected by s. 7 of the Charter”
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC
FACTS: S was an applicant for landed immigrant status. The minister issued a certificate under s 53(1)(b) of the
Immigration Act to the effect that S was a danger to the security of Canada. This certificate was to preclude an order
deporting S from Canada. While S had an opportunity to make written submissions and file material with the minister,
he did not have a copy of the immigration officers report, based on which the certificate was issued, and as a
consequence was unable to respond to it orally or in writing.
ISSUE: Are the procedures for deportation set out in the Immigration Act constitutionally valid?
HOLDING
 S lacked the basic procedural protections afforded to him by the duty of fairness and principles of fundamental
justiceNot saved by section 1
OUTCOME
 This appeal requires the court to determine the procedural protections to which an individual is entitled under
section 7 of the Charter
 In doing so, it is helpful to consider the common law approach to procedural fairness articulated in Baker
 This should always be applied in a manner sensitive to the context of specific fact situations
 The principles of fundamental justice of which s. 7 speaks, though no identical to the duty of fairness in Baker,
are the same principles underlying that duty
 The principles of fundamental justice demand, at a minimum, compliance with the common law requirements
of procedural fairness [section 7 protects substantive and procedural rights]
 In so far as procedural rights are concerned, the common law doctrine summarized in Baker properly
recognizes the ingredients of fundamental justice
 It is appropriate to look at the Baker factors in determining not only whether the common law duty of fairness
has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7
 We look to the common law factors not as an end in themselves, but to inform s.7 procedural analysisat the
end of the day he common law is not constitutionalized, it is used to inform the constitutional principles that
apply in this case
 the nature of the decision being made and process followed in making it;
 the nature of the decision here bears some resemblance to judicial proceedings
 The decision is of a serious nature and made by an individual on the basis of evaluating a weighing
risksit is also a decision to which discretion must attach
 The minister must evaluate not only past actions and present dangers but also future potential behavior
of the individual
 The nature of the decision mitigates neither in favor of particularly strong nor particularly weak
procedural safeguards
 the nature of the statutory scheme and the term of the statute pursuant to which the body operates;
 The nature of the statutory scheme suggests the need for strong procedural safeguards
 Greater procedural protections will be required where there is no appeal process
 105

 This is particularly so, whereas here, parliament elsewhere in the statute has constructed fair and
systematic procedures for similar measures
 the importance of the decision to the individual or individuals affected;
 The appellants interest in remaining in Canada is highly significant
 There is a risk of torture
 The greater the effect on the life of an individual by the decision, the greater the need for procedural
protections to meet the common law duty of fairness and the requirements of fundamental justice
 This factors mitigates in favor of higher procedural protections
 the legitimate expectations of the person challenging the decision;
 Article 3 of the CAT explicitly prohibits the deportation of persons to states where there are substantial
grounds to believe the person would be in danger of being subjected to tortureit is only reasonable
that the same executive that bound itself to the CAT intends to act in accordance with the plain
meaning of CAT
 the choices of procedure made by the agency itself.
 The minister is free under the terms of the statute to choose whatever procedures she wishing in
making section 53(1)(b) decisions
 This factors suggest a degree of deference to the Minister’s choice of procedures
 At the same time, the need for deference must be reconciled with the elevated level of procedural
protections mandated by the serious situation refugees like S face
 Weighing the Factors
 The procedural protections reqruied by section 7 in this case did not extend to the level of reqruing the
minister to conduct a full oral hearing or complete judicial processhowever they require more than
the procedures required under the act (and require more than S received)
 Procedural Protections
 A person facing deportation to torture must be informed of the case to be met
 This means the materials on which the minister is basing their decision must be provided to the
individual
 Fundamental justice requires that an opportunity to be provided to respond to the case presented to the
minister
 S and his counsel had no knowledge of which factors they specifically needed to address, nor any
chance to correct any factual inaccuraciesfundamental justice requires that written submissions be
accepted from the subject of the order after the subject has been provided with an opportunity to
examine the material being used against him or her
 Not only must the refugee be informed of the case to be met, they must also be given an opportunity to
challenge the information of the Minister where issues as to its validity arise
 The minister must provide reasons for their decision
o These reasons must be articulated and rationally sustain a finding that there are no substantial
grounds to believe that the individual who is subject to a section 53(1)(b) declaration will be
subjected to torture etc.
o The reasons must also articulate why, subject to privilege or valid legal reasons for not
disclosing detailed information the minister believes the individual to be a danger to the
security of Canada
o The reasons must come from the decision maker
 These procedural protections need not be invoked in every case of deportation under section 53(1)(b)
 It is for the refugee to establish a threshold showing the risk of torture or similar abuse before the minister is
obliged to consider fully the possibilityThey must make out a prima facie case
 If they establish that torture is a real possibility the minister must provide the refugee with the relevant
information and provide the refugee with the opportunity to address that evidence in writing and after
considering all relevant information issue responsive written responses
 This is a minimum requirement to meet the duty of fairness and fulfil the requirements of the principles of
fundamental justice under section 7
 The lack of procedural protections in this case in not saved by section 1
 106

Charkaoui v Canada (Citizenship and Immigration), 2007 SCC [#1]

Challenge to the legislative regime.
Hearing rights:
• Right to know and answer the case against
• “[A] person whose liberty is in jeopardy must know the case to meet. Here that principle has not
merely been limited; it has been effectively gutted. How can one meet a case one does not
know?” (para 64)
Relationship between s. 1 and s. 7
• Para 22

Charkaoui v Canada (Citizenship and Immigration), 2007 SCC [#1]

FACTS: C a permanent resident of Canada (along with Almrei and Harkat who were both foreign nationals recognized
as convention refugees) were each named in a certificate of inadmissibility or “security certificate” issued by the
minister of public safety and emergency preparedness and the minister of citizenship and immigration under the
Immigration and Refugee Protection Act (IRPA). After the issuance of this certificate which deemed them to be threats
to Canada’s national security, all were detained pending completing of proceedings for their removal. The IRAP
specified that he first step required each individual on the certificate to be reviewed by a federal judge to determine
whether it was reasonable.
The Review-it was conducted in camera and ex parte, and the named individuals had no right ot see the material on the
basis of which the certificate was issued (non-sensitive material could be disclosed but not sensitive materials, which
the minister and reviewing judge could rely on). The reviewing judge was required to disclose to the named individual
a summary of the case against thembut again that summery could not include sensitive information. The reviewing
judge’s decision that the certificate was reasonable was final. (no appeals)
The appellants challenged the constitutional validity of the security certificate process saying it violated their section 7
rights. After determining that their security of person’s interest was engaged (by their detention and the potential
removal to places their lives would be threatened) the court considered next if the states interference with their section
7 rights conformed with the principles of fundamental justiceand also defined fundamental justice in this context.
ISSUE: Does the interference with their section 7 rights conform to the principles of fundamental justice?
HOLDING
 The IRPA’s procedures for determining whether a certificate is reasonable does not conform to the principles
of fundamental justice as embodies in section 7 [and are NOT saved by section 1]
OUTCOME
 How do security considerations affect the section 7 analysis?
 Section 7 requires that laws that interfere with life, liberty and security of person conform to the
principles of Fundamental justice (the basic principles that underlie our notions of justice and fair
processIncluding guarantees of procedural fairness
 Section 7 requires not a particular type of process, but a FAIR PROCESS having regard to the nature
of the proceedings and interests at stake
 It is not concerned with whether a limit of life, liberty and security of person is justifiedbut whether
the limit has been imposed in a way that respects the principles of fundamental justice
 The questions at the s.7 stage is whether the principles of fundamental justice relevant to the case have
been observed in substance, having regard to the context and the seriousness of the violationthe issue
is whether the process is fundamentally unfair to the affected person
o If so the deprivation of life, liberty or security of person simply does not conform to the
requirements under section 7the issue then shifts to section 1
 Security concerns cannot be used to excuse procedures that do not conforms to fundamental justice at
the s.7 stage of the analysisif the context makes it impossible to adhere to the principles of
fundamental justice in their usual form, adequate substitutes may be found
o BUT the principles must be respected to pass the hurdle of section 7 (this is the bottom line)
 In this case, full disclosure of the information relied on may not be possible
 At the same time, it is context that may have important, indeed chilling consequences for
detaineesthe seriousness of the individual interests at stake forms part of the contextual analysis
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o The greater effect on the life of the individual by the decision, the greater the need for
procedural protections to meet the common law duty of fairness and requirements of
fundamental justice under section 7 [suresh]
o Factual situations that are closer or analogous to criminal proceedings will merit greater
vigilance by the courts
 The procedures required to conform to the principles of fundamental justice must reflect the exigencies
of the security contextYET they cannot be permitted to erode the essence of section 7
 To satisfy section 7 meaningful and substantial protections must be there
 Relevant Principles of Fundamental Justice
 The overarching principles of fundamental justice that applies here isbefore the state can detain
people for significant periods of time, it must accord them a fair judicial process
 The basic principles has a number of facets [for section 7 to be satisfied each of these must be meet in
substance]
o It comprises that right to a hearing
o It requires the hearing be before an independent and impartial magistrate
o It demands a decision by the magistrate on the facts and the law
o It entails the right to know the case put against one, and the right to answer that case
 The first requirement of a hearing was meet here and the requirements of independence and
impartialitybut there are questions surrounding the other ones
 In the “case to meet” Principles satisfied
 Fair hearings require the affected person to be informed of the case against them and permitted to
respond
 Under the IRPA’s certificate scheme, the named person ay be deprived of access to some of all of the
information put against them, which would deny them the ability to know the case to meet
 This problem is very serious
 The right to know the case to be met is not absoluteCanadian statues sometimes provide for ex parte
or in camera hearings, in which judges must decision important issues after hearing from only one side
 The court has repeatedly recognized that national security considerations CAN limit the extent to
disclosure of information to affected individuals
o In come circumstances substitutes for full disclosure may permit compliance with section 7
 Where limited disclosure or ex parte hearing have been found to satisfy the principles of fundamental
justice, the intrusion on liberty and security of person has typically been less serious then that affected
by the IRPAit is one thing to deprive a person of full information where fingerprinting is at stake and
quite another to deny them information where the consequences are removal from the country or
indefinite detention
 In the context of national security, non-disclosure, which may be extensive, coupled with the grave
intrusions on liberty imposed on a detainee makes it difficult, BUT not impossible to find substitutes
that will satisfy section 7
 IF section 7 is to be satisfied either the person must be given the necessary information or a substantial
substitute for the information must be found [neither is the case here]
o The only protection the IRPA accords the named person is a review by a designated judge
whether the certificate is reasonable
 Remember, the issue at the section 7 stage is not whether the government has struck the right balance
between the need for security and individual liberties (that is the issue at the section 1 analysis)The
questions here is where the basic requirements of procedural justice have been met!!
 Reviewing Judge
o The judge here only sees what the ministers put before him, they know nothing else of the case
and are not in a position to identify errors, find omissions or assess the credibility and
truthfulness of information in the way a named person would be
o If the judge cannot provide the named person with a summary of the information that is
sufficient to enable to person to know the case to meet, then the judge cannot be satisfied that
the information before them is reliable
 Conclusion on Section 7
 108

 The secrecy required by the scheme denies the named person the opportunity to know the case put
against them, and hence to challenge to government’s casethis is turn undermines the judges ability
to come to a decision based on the relevant facts and law
 It fails to assure the fair hearing that is required by section 7
 The IRPA’s procedure for determining whether a certificate is reasonable does not conform to the
principles of fundamental justice, as embodies in section 7
 Is the Limit justified under section 1?
 Oakes test requires a pressing and substantial objective and proportional means
 A finding of proportionality means:
o Means rationally connected to the objective
o Minimal impairment rights
o Proportionality between the effects of the infringement and the importance of the objective
 The protection of Canada’s national security and related intelligence sources is a pressing and
substantial objective, the provisions regarding disclosure are rationally connected to this objective
BUTThere are alternatives that demonstrate the IRPA did not minimally impair the names persons
rights
 The court declared the IRPA procedures unconstitutional, but suspended this declaration for one year.
 It was amended and parliament provided to the appointment of a special advocate who could challenge
government claims to the confidentially of evidence as well as relevance, reliability, sufficiency, and weight,
make submissions, cross-examine witness and with the judges permission exercise any other powers to protect
the interest of the names person
CLASS NOTES
 Remember in a section 7 context we have manage to challenged the legislation and strike it down (unlike under
the common law)
 The legislative regime is being challenged here
 Hearing Rights at StakeRight to know and answer the case against
 The named person doesn’t have the opportunity to challenged to information
 The testing of the credibility of the information is at issue here
 The court points out that there are other way to protect the named persons interestThird party special
advocate, which was eventually adopted in Canada
o As it stood here, it was not minimally impairing
 The court is really thinking about what else is possible here? they are looking for a substantial substitute
 Relationship between section 1 and section 7 [para 22]
o Note it pretty hard to justify a breach of fundamental justice
o You still have to go through the section 1 analysis
 At the end of this case the government is given a year to respond (suspended declaration)

Charkaoui v Canada (Citizenship and Immigration), 2008 SCC [#2]

Charkoui #2: Challenge to implementation of existing regime (pre-changes to legislation)
– Disclosure requirements
Where are the Baker factors (both cases)?
Are these cases applicable to non-s. 7 contexts? Non-national security contexts?

Charkaoui v Canada (Citizenship and Immigration), 2008 SCC [#2]

FACTS: In this case centered around disclosure issues. C requested complete notes of interviews dislosed to him, and
the ministers informed the judge those notes had been destroyed pursuant to CSIS policy. The SCC decided the CSIS
was required to keep their notes. They then turned to the issue of C’s right to disclosure of notes.
ISSUE: Does C has a right to disclosure of the notes? [Duty to disclosure relating to security certificate cases]
HOLDING

OUTCOME
 Review of Criminal Law Principles Governing Disclosure
 109

 A police forces investigation file must be as complete as possible, so that all evidence might be
relevant to the defence can be eventually disclosed to counselotherwise the right of the accused to
make full answer and defence could be impaired
 There is no question that the original notes and records are the best evidence
 Distinguishing the Context of Security Certificates
 No charges were laid against the person named in the certificate
 A form of disclosure of all the information goes beyond the mere summaries which are currently
provided by CSIS ministers and the designated judges is required to protect the fundamental rights
affected by the security certificate process
 In this case, the Federal Court of Appeal refused to impose a duty to disclose on CSIS on the basis that
duty did not apply in administrative law
 Whether or not the constitutional guarantees of section 7 apply does not turn on a formal distinction
between different areas of law, rather it depends on the security of the consequences of the states action
for the individual’s fundamental interests of liberty and security, and in some cases right to life
 Investigations by CSIS play a central role in the decision on the issuance of a security certificate and
the consequent removal orderthe consequences of certificates are often more severe than those of
criminal charges
 Duty to Disclosurebased on section 7 and related to the severity of the consequences of the procedures for
the named person
 The court has confirmed that the duty to disclose is included in the rights protected by section 7
 The issuance of a certificate and the consequences of them (such as detention) demand a great respect
for the named person’s right to procedural fairnessin this context procedural fairness includes a
procedural for verifying evidence adduced against them
 In the context of information provided by CSIS to the ministers and the designated judge, the factors
considered in Suresh confirm the need for an expanded right to procedural fairness, one which requires
the disclosure of information, in the procedures relating to the review of the reasonableness of the
security certificate and its implementation
 It is not enough to say there is a duty to disclosewe must determine exactly how that duty is to be
discharged in the context of the procedures relating to the issuance of a security certificate and the
review of its reasonableness
 Duty Adapted to the Nature of the Procedures Designed to Ensure the Proper Performance of the Mandate of
the Minister, and in Particular of the Designated Judge
 Only the ministers and the designated judge have access to all the evidence
 In C this court noted the difficulties that the Act then in force caused to the review of reasonableness of
the certificate
 The destruction of the original documents only makes those difficulties greaterif the original
evidence is destroyed the designating judge has access only to the summaries prepared by the state
 The destruction of CSIS officers of their operational notes compromises the very function of JR
 CSIS should be required to retain all information in its possession and to disclose to the ministers and
the designated judge
 It the ministers have access to all the undestroyed original evidence, they will be better positioned to
make appropriate decisions on issuing a certificate, the designated judge who will have access to all the
evidence will then exclude any evidence that might pose a threat to national security and summarize
the remaining evidence
 Duty to the Individual Adapted to the Requirements of Confidentially of the Information in Question that is
being Reviewed by the Judge
 The destruction of the operational notes is a breach of CSIS duty to retain the disclose information
 CSIS Is required to retain all its operations notes and disclose them to the ministers for the issuance of
a security certificate and subsequently to the designated judge for the review of the reasonableness of
the certificate
 This conclusion flows from the seriousness of the consequences the investigation will have on the s.7
rights of the named person
 The court determined the by adjourning the detention review to allow C time to prepare his testimony and
defence the designated judge had adverted and prejudice that might have resulted from the delay in disclosing
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the interview summaries, particularly given that C had himself participated in the interviews and knew what he
had said on these occasions
CLASS NOTES
 Challenge to the implementation of the existing regimes (pre-changes to the legislationDisclosure
requirements
 This time they are interpreting what is required by the statute, rather then actually changing the statute again
 Where are the Baker factors (in both #1 and #2)?
o They don’t really explicitly use the factors but you can definitely find them in there
o They talking about he nature of the decision (comparing it to other regimes)
o There is a huge emphasis on factor threeinterest at stake for the individual
o There is also a lot of factor 5, which looks at legislative regime and procedural choices
 These cases are good as a point of contrastyou can use them outside of the context of section 7
 USE THEM TO CONTEXTUALIZEcontrast and compare with theses cases
 POST THIS CASE
o We see regime changes (use of special advocated)
o His case finally ended

Charkaoui Postscript: Parliament’s response

-earlier and more frequent reviews of certificate
-use of special advocates
-includes a provision stating that the prohibition in section 269.1 of Criminal Code on the use of evidence obtained by
torture or ‘inhuman or degrading treatment’ also applies to security certificate hearings.

Canada (Citizenship and Immigration) v Harkat, 2014 SCC

Challenge to new regime, with special advocates.
• new regime does not violate s. 7 (special advocates satisfy requirements of procedural fairness).
• and for good measure, the scheme survives s. 1 analysis.
Harkat now trying to challenge the removal order (implementation of the regime)
• What is main argument on the challenge?
• Special advocates process – Lawyers obligations?

Canada (Citizenship and Immigration) v Harkat, 2014 SCC

FACTS:(relating to C #1) H says the public summaries of the closed record are too vague and general. He argues that
the essence of the right to know a case and meet it is the ability to meet detail with detail.
ISSUE: Does the scheme provide the named person with sufficient disclosure?
HOLDING
 The IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant
 SCC held that only information that raised a SERIOUS risk of injury to national security or danger to the safety
of a person should be withheld from a named persondesignated judges should be vigilant and skeptical with
respects to its claims
OUTCOME
 At first look the IRPA scheme appears to give precedence to confidentiality of information over the named
persons right to know the meet the case
 Section 83(1)(e)says the judge does not have to include anything that in their opinion would be injurious to
national security or endanger the safety of any person if disclosed
 Thus, the content of the summaries must be tailored to satisfy the overriding provisio that no information or
evidence injurious to national security or to the safety of any person may be disclosed
 C #1 makes it clear that there is an incompressible minimum amount of disclosure that the named person must
receive in order for the scheme to comply with section 7they must receive sufficient disclosure to know and
meet the case against them
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 Parliament amended IRPA scheme with the intent of making it compliant with section 7it should be
interpreted in light of this intention
 The IRPA scheme requirements that the named person be reasonably informed of the ministers case should be
read as a recognition that the named person must receive incompressible minimum amount of disclosure
 The named person need not only be give sufficient information about the allegations against him, but also the
evidence on the record
 The level of disclosure required for a named person to be reasonably informed is case-specific, depending on
the allegations and the evidence against the named person
 Ultimately the judge is the arbitrator of whether this standard has been met
 At the very least the named person should know the essence of the information and evidence
supporting the allegations
 This excludes the scenario where the named person receives no disclosure whatsoever
 The IRPA is silent on what happening is there in an irreconcilable tension between the requirement that a
named person be reasonably informed on the one hand, and the importance of sensitive information not being
disclosed
 It does not say the reasonably information standard can be compromised
 But it also does not provide that sensitive information can be disclosed where this is absolutely
necessary in order for the reasonably informed standard to be met
 The necessary outcome in these situations is that the minister must withdraw the information or
evidence whose non-disclosure prevents the named person from being reasonably informed
 To hold that the minister can rely on essential information and evidence of which the named person cannot be
reasonably informed would force the judge to violate the responsibility expressly places on them by the
statuteie the duty to ensure the named person remains reasonably informed throughout the proceedings
 It cannot have been parliaments intent to design a scheme that would require a judge to violate their
responsibilities
 The IRPA scheme must be interpreted as precluding the minister from bringing a case in repsect of
which the named person cannot be kept reasonably informed
 SCC held that only information that raised a SERIOUS risk of injury to national security or danger to the safety
of a person should be withheld from a named persondesignated judges should be vigilant and skeptical with
respects to its claims
CLASS NOTES
 Challenges the new regime, with special advocates
 The regime is found to no violate section 7, but they did do a section 1 analysis anyways
 What is the main argument on this challenge?
o The new regime does not change that information the judge considered a threat to national security
does not have to be disclosed
o The court just says the judge should be skeptical of any claims that information is a threat to ‘national
security’
o H still doesn’t get to know who told the government what
 Think about this and the rule of law!
o They are balancing different values here
o Fundamental justice, procedural requirements and national security
 Special advocateWhat is the lawyer’s obligation?
o It becomes challenging because there is not full disclosure
o The special advocate might know who the person is but they can’t ask their client

S. 7 in Other Administrative Contexts – Security of Person

S. 7 reminder: Security of Person threshold
Morgentaler: includes psychological stress and physical integrity
Rodriguez: includes personal autonomy
G(J): Impact of state action must be “serious and profound” (para 60, p. 215 in book)
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Blencoe v British Columbia (Human Rights Commission), 2000 SCC

• Inordinate and undue delay could trigger s 7

• Where s. 7 claim fails, there may still be a breach of the duty of fairness at common law
• Undue delay may be a breach of fairness in 2 distinct ways (at common law):
1. By causing prejudice to hearing rights
2. By causing the administration of justice to fall into disrepute (abuse of process, unfair process)
Blencoe v British Columbia (Human Rights Commission), 2000 SCC
FACTS: B was accused of sexual harassment while serving as a Minister in BC. He was dismissed. The hearing with
the Human Rights Commission took place over 30 months after the initial complaints were made. Media attention
surround this issue was intense, H suffered from depression. B commenced a JR proceeding to have the complaints
stayed. He claimed the commission had lost jurisdiction due to the unreasonable delay in processing the complaints. He
said this delay caused serious prejudice to him and him family and it amounted to an abuse of process and a denial of
natural justice.
ISSUE: Has B’s section 7 rights been violated by state caused delay? If no, did the delay violate administrative
principles of a fair hearing? Is B entitled to a stay of proceedings?
HOLDING
 It cannot be said that his section 7 rights were violated, nor did the conduct of the commission amount to an
abuse of due process
OUTCOME
 First the court looked at whether the charter applied here, is so had section 7 been violated. Then the court went
on to consider whether there had a been a violation of common law principles of administrative law
 Does the Charter Apply to the Actions of the BC Human Rights Commission?
 The mere fact that a body is independent from government is not determinative of the Charter’s
application, not is the fact that a statutory provision is not impugned
 Being autonomous or independent from government is not a conclusive basis upon which to hold that
the charter does not apply
 Bodies exercising statutory authority are bound by the charter even though they may be independent
from government
 There is no doubt the commission was created by statute and all its actions are pursuant to that
statutory authority
 The commission in this case cannot escape Charter scrutiny merely because it is not part of government
or controlled by government
 In EldridgeA court said a hospital was bound by the charter since it was implementing specific
government policy or programthe commission in this case is both implementing a specific
government program and exercising powers of statutory compulsion
 The ultimate source of authority of the commission is government
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The commission must act within the boundaries of its enabling statute, there is clearly a government
quality to its functions, and it was created by government
 Notwithstanding that the commission may have adjudicative characteristics, it is a statutory creature
and its actions fall under the authority of the Human Rights Code [To hold otherwise would allow the
legislative branch to circumvent the Charter by establishing statutory bodies that are immune to the
Charter]
 Has the Respondents Section 7 Rights been Violated by State Caused Delay?
 Section 7 is not confined to the penal context [aka applies outside of criminal law]
o It can extend beyond criminal law, at least where there is state action which directly engages
the justice system and its administration
o It a case arises in the Human Rights Context, there is no specific bar against such a claim and
s.7 may be engaged
o The question to be addressed in not whether delays in human rights proceedings can engage
section 7BUT whether the respondents section 7 rights were actually engaged in the
circumstances of this case
 Liberty Interest
o The liberty interest in section 7 is not restricted to mere freedom from physical
restraintliberty is engaged where state compulsions or prohibitions affect important and
fundamental life choices
o Liberty in section 7 protects the individuals right to make inherently private choicesThis
only encompasses matters that can be properly characterized as fundamentally or inherently
personal such that by their very nature they implicate basic choices going to the core of what it
means to enjoy individual dignity and independence
o The circumstances in this case do not show the state preventing the respondent from making
any ‘fundamental personal choices’Therefore liberty is not engaged
 Security of Person
o Security of person has been held to protect both physical and psychological integrity of the
individual
 Not all state interferences with an individual’s psychological integrity will engage
section 7it is restricted to “serious state-imposed psychological stress
 This can be delineated into two requirements: first the psychological harm must be
state imposed [meaning the harm must result from the actions of the state] and second
the psychological prejudice must be serious.
o State Caused Delay?
 The respondent has suffered serous prejudice in connection with the allegations aginst
him, BUT there must be sufficient causal connection between the state caused delay
and the prejudice suffered by him to trigger section 7
 Most of the consequences occurred before there was even any delay
 The court then goes on to ‘assume’ this part is satisfied (because it will fail at the next
part)
o Quality of Interference?
 This begs the question of whether section 7 includes a generalized right to dignity?
[aka the be free from stigma associated with a human rights complaint]NO
 Dignity is not a free standing constitutional rightbut rather an underlying value
 State interference with psychological integrity? In order to trigger security of person
here the impugned state action must have a serious and profound effect on the
respondent’s psychological integrityit is only exceptional cases where state
interference in profoundly intimate and personal choices of an individual state caused
delay in human rights proceedings could trigger section 7 security of personhere the
state has not interfered with the respondent and his family’s ability to make essential
life choices
o Importing the Notion of Stigma from the Criminal Law Context
 The 11(b) guarantee of a right to an accused person to be tried within a reasonable time
cannot be imported into section 7there is no analogous provision to section 11(b)
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which applies in administrative proceedings, nor is there any constitutional right

outside the criminal context to be tried within a reasonable time
 In contrast to the criminal realm, the filing on a Human Rights complain implies to
suspicion of wrongdoing on the part of the statethe purpose of human rights
proceedings it not to punish but to eradicate discrimination, tribunals are compensatory
rather than punitive
o The Stress and stigma and anxiety suffered by the respondent did not deprive him of section 7
rights
o The respondent is unable to cross the first threshold of the section 7 analysis in these
circumstances
o BUT this case should not be construed as holding that state caused delays in human rights
proceedings never trigger an individuals section 7 rightsthe possibility is still left open
 Was the Respondent Entitled to a Remedy Pursuant to Administrative Law Principles?
 QUESTIONdid the delay amount to a denial of natural justice even where the respondents ability to
have a fair hearing has not been compromised?
 Prejudice to the Fairness of the Hearing
o There are appropriate remedies available in the administrative law context to deal with state
cause delay in human rights proceedings
o BUT a delay without more will not warrant a stay of proceedings as an abuse of process at
common law
o In the administrative law context there must be proof of significant prejudice which results
from an acceptable delay
o It is thus accepted that principles of natural justice and the duty of fairness include the right to
a fair hearing and that undue delay in the processing of an administrative proceedings that
impairs the fairness of the hearing can be remedied
o The delay in this case is not such that would necessarily result in a hearing that lacks the
essential elements of fairness
o Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the
fairness of the hearing
o The QUESTIONwhether the delay in this case could amount to a denial of natural justice or
an abuse of process even where the respondent has not been prejudice in an evidentiary sense
 Other Forms of Prejudice
o It would be prepared to recognize that unacceptable delay may amount to an abuse of process
in certain circumstances even where the fairness of the hearing has not been compromised
o It must be emphasized that few lengthy delays will meet this threshold
o It must be a delay that would, in the circumstances of the case bring the human rights system
into disrepute What is “acceptable delay” then?
 Abuse of Process-Principles
o There is no support for the notion that a stay is the only remedy available in administrative law
proceedings a stay accords very little importance to the interest of implementing the Human
Rights Code and giving effect to the complaints’ right to have their cases heard
o Other remedies are available for abuse of process
o If a respondent asks for a stay they have to bear a heavy burden
o In order to find an abuse of process the court must be satisfied that “the damage to the public
interest in the fairness of the administrative process should the proceedings go ahead would
exceed the harm to the public interest in the enforcement of the legislation if proceedings were
halted”
o For there to be an abuse of process the proceedings must be “unfair to the point that they are
contrary to the interests of justice”cases of this nature will be very rare
 Was the delay unacceptable?
o There is no abuse of process in delay per se
o The respondent must demonstrate that he delay was unacceptable to the point of being so
oppressive as to taint the proceedings
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o While stress and stigma resulting from an inordinate delay may contribute to an abuse of
processin this case it is not convincing that the delay was inordinate
o The determination of whether a delay has become inordinate depends on the nature of the case
and its complexity, the facts and the issues, the purpose and nature of the proceedings, whether
the respondent contributed to the delay or waived the delay, and other circumstances of the
caseaka it is not based on the delay alone but on contextual factors
o With respect to this case, there was no extended period without any activity
o The commission seems to have handles the complaints against B in the same manner it handles
all complaints
 In Saskatchewan v Kodellas the SCA held that a determination of whether delay is
unreasonable is, in part, a comparative one whereby one can compare the length of
delay in the case at bar with the length normally taken for processing in the same
jurisdiction and in other jurisdictions in Canada
 The delay in this case should be compared to that in analogous cases
 A review of the facts demonstrated that although there was 5 months of inactivity, this
is not unacceptable considering the time that elapsed was nothing more than time
requires to process complaints
o It should not be too difficult to recognise inordinate delay when it occurs a 5 months delay
or even a 24 month one period is not too inordinate or inexcusable to amount to an abuse of
process
 Conclusions
 It cannot be said that the respondents section 7 rights were violated, not did the conduct of the
commission amount to an abuse of due process
 But the court is still concerned with the lack of efficiency of the commission in dealing with
complaints, and they order mandamus (in other words the commissions should hear the case now)
CLASS NOTES
 One of the reasons this case takes to long is because there is an investigation first
 The challenge is not the regime itself
 He is trying to prohibit this from going forwardthe court gives the remedy of mandamus (aka they must hear
it now)
 Partial Dissent
o Said you don’t go to the charter we go to administration law!
o Why don’t they do to the charter? If the question of whether the charter applies in a case is
controversial maybe this a good reason to NOT apply the charter. ALSO admin law might allow you
more flexibilities, the court can make order remedies under admin law that don’t have such a major
impact on government (as opposed to Charter analysis, where if you find a breach a regime change will
have to be in place or the government will have to put more people in place to make the process faster
etc)
 Majority goes through charter then administration law
o The majority said you do the charter first
o Where is a section 32 discussiondoes the charter apply? [this was important here because the charter
doesn’t apply to everything, and what the trial is doing is adjudicative and independent from
government], but the court says this can’t be way for the government to escape their charter obligations
 In the end the court doesn’t clear up what we should do when there are potential admin law issues and potential
charter violations
 Section 7 Claim
o Inordinate and undue delay COULD trigger section 7 (it doesn’t here but it could)
o Remember that section 7 claimants are against government! The government is not responsible for
that claim being made
o The harm caused here is complicated in terms of its causes
o Be aware that the harm caused by delay isn’t just about witnessesand it is a contextual analysis
o In this case we have a different characterization of delay and harm by the majority and the dissent

**Understand at that a section 7 argument can challenge a statute where the common law can’t
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**we have different threshold issuesbut are relying on the same factors (Baker)
**Be aware that the cases about the security certificates seem to be uniquegenerally we can’t probably get further under
the common law

S. 35 procedural rights – the Duty to consult and accommodate (DTC&A)

DUTY TO CONSULT
 This is important because it is important to understand our constitution as a whole
 The duty to consult and accommodate Aboriginal peoples has been recognized by the SCC
 The consultation element under section 35 is NOT completely distinctive! The courts have made this clear
 The duty of fairness, section 7 and duty to consult should all be understood together
 The idea that section 35 is separate is not accurateit is all connected
o These ideas have a long history (example: royal proclamation)
 Consultation has also been an element of the justification of infringement on a right
 Keep in Mind how Different JR is
o When we have a rights case (such as an aboriginal right) happen either have a defence to regulatory
charges, or more recently they bring forward claims of rights to seek a declaration of the courts
o Duty to consult and accommodate cases come forward as challenges to government decisions
 PetitionsStatutory reform of the common law prerogative writs (KEEP THIS IN MIND)from
the beginning of the classJUDICIAL REVIEW PROCEDURES ACT!!
 This is how these cases some forward
 We are asking the courts to review legality
 Is this different significant?
 YESthis about the time it takes to actually take something to a trial, and the duty to
consult does not require proof of rightsso its MUCH faster (also different records etc)
 The content of the duty to consult is very similar to the duty of fairness

The Framework
1. Is there a duty? (Threshold or trigger)
2. Where is the content of the duty?
3. Has the duty been met?

Procedure and Aboriginal rights

• DTC&A was always part of framework
– Justification test under Sparrow, Delgamuukw, Tsilhqot’in
– Due process in removal of Aboriginal lands (by “consent) also has a long history
– 1763 Royal Proclamation and surrender requirements

DTC&A cases versus Rights cases

• Rights cases: Proof of rights as defence to regulatory or criminal charges (e.g., Van der Peet) or pursuit of a
declaration of rights (e.g., Delgamuukw, Lax Kw’alaams, Tsihlqot’in Nation)
• DTC&A cases: JR of government decisions (e.g., Haida Nation, Mikisew Cree)
Is this difference significant? Why?

The Trigger
Rio Tinto – breaks this down into 3 elements:
1. The Crown has real or constructive knowledge of the potential existence of an aboriginal right
2. The Crown contemplates conduct
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3. With potential adverse affects

The Source
 Haida Nation arose from long standing title claims by the Haida Nation, which claimed that BC was required to
consult with them about he use of their aboriginal title lands
 The objected to the logging operations on their land
 The SCC found in favour of the Haida Nation and, in the process, expanded the scope of procedural obligations
owned to Aboriginal peoples in relation to their constitutional right beyond those previously recognized in
Sparrow.

Haida Nation v BC (Minister of Forests), 2004 SCC

FACTS: The government hold legal title to the land, in exercising that legal title it granted W the right to harvest the
forest in Block 6 of the land. The Haida people claim title to the landtitle which they are in the process of trying to
prove (they object to the harvesting)
ISSUE: In this situation what duty (if any) does the government owe to the Haida people?
 AKA are they required to consult with them about the decision to harvest and accommodate their concerns
OUTCOME
 Their claim is strong, but it is also complex and will take many years to prove
 The government has a legal duty to consult with the Haida people about the harvesting of timber
 Good faith consultation may in turn lead to an obligation to accommodate Haida concerns
 Consultation must be meaningful
 There is not duty to reach an agreement
 The duty to consult, and where appropriate accommodate cannot be discharge by delegation to Wand W does
not owe any independent duty to consult or accommodate
 The government’s duty to consult with aboriginal peoples and accommodate their interest is grounded in the
HONOUR OF THE CROWN
 The honour of the crown is always at stake when dealing with aboriginal peoples
 The honor of the crown gives rise to different duties in different circumstances

Threshold
 The Threshold QuestionWhether a duty to consult and accommodate exists in a given context?
 It exists where the Crown has knowledge of an existing or potential Aboriginal or treaty right and contemplates
conduct that potentially affects that right adversely
 Crown knowledge can be constructive, and the potential Aboriginal or treat right is assessed under a “credible
claim” standard
 Similar to the common law duty of fairness, the threshold is not difficult to cross
 Haida Nation and Rio Tinto refined and clarified the issues at the threshold stage
Haida Nation v BC, 2004 SCC
FACTS: Same as above
ISSUE: When does the duty to consult and accommodate arise?
OUTCOME
 The government argues:
o They are under no duty to consult and accommodate prior to a final determination of the scope and
content of the right claimed
o Prior to proof of the right there exists only a broad common law “duty of fairness” based on the general
rule that an administrative decision that affects the “rights, privileges or interests of an individual
“triggers the application of the duty of fairness
o They say that beyond general administrative law obligations, the duty to consult and accommodate
arises only where the government has taken on the obligation of protecting a specific aboriginal interest
or is seeking to limit an established interest
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o They say there would be practical difficulties in the enforcement of a duty to consult or accommodate
unproven claims
 The government arguments do not withstand scrutiny
 Neither the authorities nor practical consideration support that view that the duty to consult and, it appropriate
accommodate, arises only upon a final determination of the scope and content of that right
 When does the duty arise?
o The foundation of the duty in the Crown’s honour and the goal of reconciliation suggests that the duty
arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal
right or title and contemplates conduct that might adversely affect it
o There is a distinction between knowledge sufficient to trigger a duty to consult and if appropriate
accommodate and the content or scope of the duty is a particular case
o Knowledge of a credible, but unproven claim suffice to trigger a duty to consult and accommodate
o The content of the duty varies with the circumstances
o What is demanded of the government may vary with the strength of the claim and the circumstances,
but at a minimum but be consistent with the honour of the crown

Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, SCC 2010
FACTS: this case concerns the sale of electricity from a power plan that supplied an aluminum smelter on the Nechako
River in BC
ISSUE
 When does the duty to consult arise?
OUTCOME
 TESTcan be broken down into three elements [Haida]
1. The Crown’s Knowledge, actual or constructive of a potential Aboriginal Claim or right
 To trigger the duty to consult the crown must have real or constructive knowledge of acliam to
the resource or land to which it attaches
 The threshold, informed by the need to maintain the honour of the crown, is not high
 Actual knowledge-arises when the claim has been filed in court or advanced in the context of
negotiations, or when a treaty right may be impacted
 Constructive Knowledge-arises when lands are known or reasonably suspected to have been
traditionally occupied by an Aboriginal community or an impact on rights may reasonably be
anticipated
 While the existence of a potential claim is essential, proof that the claim will succeed later is
notwhat is required is a credible claim
2. Contemplated Crown Conduct
 There must be crown conduct or a crown decision that engages a potential aboriginal right
 What is requires is conduct that may adversely impact the claim or right in question
 Such action is not confined to government exercise of statutory powers
 Government action is not confined to decisions or conduct which have an immediate impact on
lands and resources
 A potential adverse impact suffices
 Thus the duty to consult extend to “strategic, higher level decisions” that may have an impact
on Aboriginal claims and rights
3. The Potential that the contemplated conduct may adversely affect an aboriginal claim or right
 The claimant must show a casual relationship between the proposed government conduct or
decision and a potential for adverse impacts on pending Aboriginal claims or rights
 Past wrongs, including previous breaches of the duty to consult, do not suffice
 There must be an appreciable adverse affect on the first nations ability to exercise their
aboriginal right
 The adverse effect must be on the future exercise of the right itself, an adverse affect on a first
nations future negotiating position does not suffice
 Adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right
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 An underlying or continuing breach, while remediable in other ways, is not an adverse impact
for the purposes of determining whether a particular government decision gives rise to a duty
to consult
 The duty to consult is designed to prevent damage to Aboriginal claims and rights while claim
negotiations are underway
 The question of whether there is a claim or right that potentially may be adversely impacted by
the current government conduct or decision in question
 Prior and continuing breaches, including prior failures to consult, will only trigger a duty to
consult if the present decision has the potential of causing a novel adverse impact on a present
claim or existing right
 The duty to consult is grounded in the honour of the crown
 The duty has both legal and constitutional character
 The nature of the duty varies with the situation; the richness of the required consultation increases with the
strength of the prima facie
 The remedy for a breach of the duty to consult varies with the situation
o The crowns failure to consult can lead to a number of remedies ranging from injunctive relief against
the threatening activity altogether, to damages, to an order to carry out the consultation prior to
proceedings further with the proposed government conduct
 The court found that the evidence supported to Commission’s conclusion that there were no adverse physical
effects here

Content
Content (Haida, paras 39-42, 47)
• A spectrum: “the scope of the duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right
or title claimed.” (Haida, para 39)
Procedural Aspects:
• E.g., providing affected communities with notice, holding meetings, sharing information, responding to
community concerns.
• Can be fulfilled through existing public consultation processes (e.g., environmental assessment) in appropriate
circumstances (Taku River Tlingit (2004))
• Aboriginal communities have an obligation to participate in good faith (para 42)

 The content of the common law duty of fairness in a given circumstance is measured against the concept of
fairness that is well entrenched in our legal system
 In contrast, the content of the duty to consult is measured against what the honour of the crown requires in a given
context
o This standard demands that the consultation be meaningful and contribute to the process of reconciliation,
and may mean that the crown must make changes to its proposed action in light of information obtained
through consultations
o The crowns efforts do not need to result in a perfect process, rather the process must be reasonable
 Under both standards, a highly contextual case specific analysis giving rise to a spectrum of procedural
obligations is used to determine the required content
 Under the duty to consult and accommodate, the content is determined in relation to the strength of the rights
claim and the seriousness of the potential adverse impact
 Weaker claims and lower levels of impact are owed duties at the lower end of the scale, which have been
described as including
o To the party to be consulting, notice of a matter to be decided in sufficient form and detail to allow that
party to prepare its views on the matter
o A reasonable period of time, in which the party to be consulted may prepare its views on the matter, and
an opportunity to present such views to the party obliged to consult AND
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o Full and fair consideration by the party obliged to consult of any views presented
 This content is strikingly similar to the consent of a duty of fairness at the lower end of the spectrum
 There is a greater potential for differences between the duty of fairness and the duty to consult at the higher end of
the consultation spectrum
o At this end of the spectrum the duty most likely requires responsive action or adaption of the proposed
government conduct to meet the standard of meaningful consultation
o At the high end, the duty also potentially requires the consent of the affect aboriginal parties
Haida Nation v BC, SCC 2004
FACTS: Same as above
ISSUE : What is the content of the duty?
OUTCOME
 The Scope and Content of the Duty to Consult and Accommodate
o The content of the duty to consult and accommodate varies with the circumstances
o What duties arise in different situations will be defined as the case law in this area develops
o In general terms, the scope of the duty is proportionate to the a preliminary assessment of the strength
of the case support the existing of the right or title, and to the seriousness of the potentially adverse
effects upon the right or title claimed
o It is not useful to classify situations into watertight compartments, different situations requiring
different responses can be identified
o In all cases, the honour of the crown requires the crown to act with good faith and to provide
meaningful consultation appropriate to the situation
o Good fair is required by both side
o The Crownhas no duty to agree, the commitment is to meaningful process of consultation
o Aboriginal ClaimantsThey must not frustrate the crowns reasonable good faith attempts, nor should
they take unreasonable positions to thwart governing from making decisions or acting in cases where,
despite meaningful consultation, an agreement was not reached
o The scope of duties can be thought of on a spectrum
 At one endcases where the claim to title is weak, the aboriginal right is limited, or the
potential for infringement is minorin these cases the only duty the crown may be to give
notice, disclose information and discuss any issues raised in response to the notice
 At the Other Endcases where a strong prima facie case for the claim is established, the right
and potential infringement is of high significance to the Aboriginal peoples and the risk of non-
compensable damages is highhere the consultation required may entail an opportunity to
make submissions, formal participation in the decision-making process and provision of
written reasons to show that Aboriginal concerns were considered and to revel the impact they
had on the decision [note these lists are not exhaustive]
 Between these two extremes will lie other situationseach must be approached with flexibility
o Meaningful consultation may oblige the crown to make changes to its proposed action based on
information obtained through consultation
o Accommodation
 Where a strong prima facie case exists for the claim and the consequences of government
proposed decision may adversely affect it in a significant way, addressing the Aboriginal
concern may require steps to avoid irreparable harm or to minimize the effects of infringement
pending final resolution of the underlying claim
 Where accommodation is requires in making decision the crown must balance Aboriginal
concerns reasonable with the potential impact of the decision on the asserted right or title with
other societal interests
 APPLICATION
o Existence of the duty
 Does the crown have knowledge, real or constructive of the potential existence of Aboriginal
rights or title and contemplated conduct that might adversely impact them? on the evidence
YES
o Scope of the Duty
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 The scope of the duty of consultation required will be proportionate to a preliminary

assessment of the strength of the case supporting the existence of the right or title, and to
the seriousness of the potentially adverse effect upon the right or title claimed
 Strength of the CaseThe evidence here is voluminous. The Haida claim goes beyond a mere
assertion, their claims are supported by a good prima facie case
 Seriousness of Potential ImpactThe evidence indicates the red cedar has long been integral
to Haida culture
 The crown does have a duty to consult, and perhaps accommodate here
 The Province failed to meet its duty to engage in something significantly deeper than mere consultationit
failed to engage in any meaningful consultation at all
CLASS NOTES
 At the threshold levelThe relationship of the duty to consult to legislative decision (it sits somewhere
between the duty of fairness and section 7)
 Think about the competing dutiesseparation of power (aka can’t constrain legislature) and the duty to consult
 Duty to consult creates problems for this “formalist” idea
 The duty to consult is different that other “legislative” end decisions
 This all seems confusing BUT its because this is not all mutually exclusivethis is how you should look at
itit is flexible!!
o You can go down multiple routes at the same time

Points of cross-fertilization and tension

The legislative limit (Courtoreille)
– Is this exclusion from the scope of the DTC sustainable?
– If it isn’t sustainable under the duty to consult, how can it be sustainable under the duty of fairness?
• Is the s. 35 basis for the DTC distinguishable as a matter of principle? If the separation of powers
is not threatened by consultation on legislative decisions in the DTC context, why would it be in
the context of a duty of fairness?
Duty to consult as a freestanding basis to invalidate legislation?
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PROCEDURAL FAIRNESS-INDEPENDENCE AND

IMPARTIALITY
**Constitutional SourcesSection 96(independence of the judiciary) and rights to fair trial (constitutional context)
 Do we transfer judicial independence of administrative agencies?

SOURCES
 COMMON LAW (We will focus on this)
 STATUE
 INTERNATIONAL SOURCES

THE GOALIMPARTIALITY
Components:
• Independence (institutional)
• Lack of bias:
– Personal
– Institutional
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Bias: principles and variation of the standard in administrative contexts

GOALImpartial decision maker
Always keep in mind why we care about this!! what does independence and impartiality mean to our system?
 Note how our administrative system moves away from these ideas
 We must think about what is fair in administrative contexts! how is our perception of fairness here different?

BASIC TESTRESONABLE APPREHENSION OF BIAS

 Key concept: justice should not only been done, it should be seen to be done (aka perception)

The standard for a “reasonable apprehension of bias”:

“[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded people, applying themselves
to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “What
would an informed person view the matter realistically and practically – and having through the matter through –
conclude.” (Grandpre J., Committee for Justice and Liberty v. Nat’l Energy Board)
 Its about perceptions:
“It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be
seem to be done.” (Lord Heward, R. v. Sussex Justices, ex party McCarthy
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TYPES OF PERSONAL BIAS

1. Pecuniary/material interests
 “archetypal” bias concern: financial, personal benefit from outcome of adjudication is not permitted.
 Definitions of “conflict of interest” may be in policy or statute
 If interest is too remote, indirect, it won’t give rise to a RAB (Energy Probe, CP v. Matsqui)
2. Relationships (assoc of parties and decision-maker)
 Union certification with Board member who had previous role as Union lawyer vs. disciplinary panel including
competitor and acrimonious former business partner (girlfriend of)
 Gets tricky in relation to advocacy, in small communities, or small pools of experts from whom tribunal
adjudicators may be drawn
3. Prior knowledge, involvement of decision maker
 Wewaykum (2003, SCC) – Binnie J was ADM in Dept. of Justice while case was in play, then became SCC judge
and participated in the appeal 15 years later. No RAB
 Committee for Justice and Liberty v NEB
 There may be statutory authorization for prior involvement (e.g., a role in both investigation phase and hearing)
4. Attitudinal, including antagonism during hearing
 shown through questioning (inquisitorial processes esp)
 shown through content of statements, positions (before hearing, during hearing, after). E.g. Baker,
Chrétien/Pelletier
*can overlap; not a “closed” list
*these types emerge from the cases and help identify the problem. They are not “part of the test.” The test is always RAB,
as applicable to the administrative context.
- But see distinction btwn type #1 and type #4 in Old St Boniface, where context dictates that a different
standard applies in relation to type #4 than in relation to type#1
*always subject to express legislative sanction (esp relevant in relation to overlapping roles and prior
knowledge/involvement) [next class: Brosseau]

Introduction
 Next, we will consider the second limb of the rules of natural justice or procedural fairnessthe principle that
decision-makers should be unbiased
 Everyone has biases in the sense of preferences, preconceptions, or predispositions
 THUSthe issue is not disqualification of any form of bias, but identification of impermissible bias
 No one ought to be a judge in his or her own cause
o This maxim envisages a situation where an adjudicator is called on to decide a matter where he or she will
benefit directly from one of the possible outcomesthe common law clearly prohibits this type of
decision makers ‘cause’
 Bias as a disqualifying concept is about more than cause or causes in either of these sensesit is also concerned
with associations likely to produce predispositions
 The association in question means that the “cause” of others are attributed to the adjudicator in a positive (one
favours one’s friends) or negative (one does not help one’s enemies) sense
 The rigorous standard for a superior court judge, operating in a system of strict separation of functions and
deciding cases in the solidary splendour of the adversary system, may not be appropriate for all administrative
agencies that are subject to the dictates of procedural fairness
 There is something of sliding scale, with more leniency or tolerance in the domain of discretionary decision
making having a high policy content then in the case of a more judicialized proceedings to determine objective
facts and questions of law and focusing on an individual or a narrow range of individuals
 The issue of bias has been determined mostly by common law standards
o An exception has been situations where the empowering statute has spoken to the question of bias,
especially by authorizing the participation of those who under the common law would be disqualified
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o Also, the common law has been supplemented in some context by constitutional and quasi-constitutional
norms, which may lead a court not only to disqualify individuals but also to disregard statutory
authorizations, or indeed to strike down regimes
 A decision is tainted by bias if it is based on illegitimate interests or irrelevant considerations, such as the decision
makers pecuniary interests, relationships with parties and preconceived attitudes towards the issues at stake in the
proceedings
 An impartial decision maker, in other words, approach a decision with an open mind without bias (actual or
perceived)
 Judicial independence
o In Contract, judicial independence has as its core “the complete liberty of individual judges to hear and
decide the cases that come before them. No outside, government, pressure groups, individual or another
judge, should interfere in face, or attempt to interfere with the way in which a judge conducts their case of
makes their decisions
o Independence then connotates a status or relationship to others, particularly to the executive branch of
government that rests on the objective conditions or guaranteesincluding financial security, security of
tenure, and administrative control
o The objective of judicial independence is to ensure the publics perception of impartiality

Bias: The General Test

 The General test applies by the Canadian courts for the determination of whether an adjudicator or other decision
maker should be disqualified is that of a REASONABLE APPREHENSION OF BIAS
 The test was elaborated in Committee for Justice and Liberty et al v. National Energy Boardwhile contained in
a dissenting opinion has since achieved general acceptance
o “The apprehension of bias must be a reasonable one, held by reasonable and right minded people,
applying themselves to the question and obtaining theron the required information. In the words of the
court of appeal, that test is “What would an informed person, viewing the mater realistically and
practically-and having thought the matter through-conclude.”
o Any variation in the expressions should not generally be treated as involving any substantial difference in
the approach (ake these all mean the same-reasonable apprehension, real likelihood, reasonable likelihood
and reasonable suspicionthey all amount to the same standard)
 There are certain interests that traditionally have been seen as giving rise to disqualifying bias, they are classified
into four categories:TYPES OF BIAS (check these, on her slides she calls them different things)
1. Antagonism during a hearing by a decision maker towards a party (or his or her counsel or
witnesses)
 This ground for challenging a decision is sometime categorized as an issue of fair procedures on
the basis that the victim has been denied the opportunity to present his or her case
 However, the jurisprudence also classifies such behaviour by a decision maker as giving rise to a
reasonable apprehension of bias
 Most common manifestations-unreasonably aggressive questioning or comment about testimony
 This requirement of proper behaviour during a hearing is not confined to the designated decision
maker, it also reaches lawyers who are employed to assist a tribunal at the hearing
2. An association between one of the parties and the decision maker [RELATIONSHIP]
 Various forms of direct or indirect associations between decision-makers and a party to a
proceeding may give rise to a reasonable apprehension of bias
 Admin law values come into tension with natural justice values
 Cases illustrate how this is problematic in small communities etc.
 This might arise when:
 Where the decision maker had a past profession relationship with a party to the
proceedings
 Where there is a personal relationship
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 Fraternization between the decision0maker and a party

 Whether the apprehension is reasonable depends on the form and the context of interactions
3. An involvement by a decision maker in a preliminary stage of the decision
 Committee for Justice and Liberty v National Energy Board
 This was a situation of an alleged bias because of association with a party and
involvement in an earlier stage of the process
 FACTS-an application was made to the National Energy Board by Canadian Artic Gas
Pipeline for construction of a natural gas pipeline. The chairman of the board at the time
of the application was Marshall Crowe, who has been president of Canada Development
Corporations before his appointment to the National Energy Board. The applicant (artic
gas) was formed by a ‘study’ group of companies interested in constructing a pipeline.
Canada Development Corporation became a member. Crown was involved in the study
group discussions and planning from the time Canada Development Corporation became
a member until he left to join the National Energy Board
 HOLDINGCrowe’s apparent commitment to a pipeline created a reasonable
apprehension of bias
 The more usual situations of prior involvement are ones in which a decision maker has in the
same or another capacity heard the matter before the tribunal, or has been involved in the
investigation and decision to proceed with the matter
4. An attitude of a decision maker towards the outcome
 Pelletier v Canada

**NOTE THESE TYPES ARE NOT PART OF THE TESTIT JUST HELPS ORGANIZE THE CASES

Pelletier v Canada (AG), 2008 FC

Gomery inquiry re the “sponsorship scandal”
Chretien’s response to Gomery’s “small town cheap” comment about golfballs with his signature on them (youtube)
Was Gomery’s mind closed? Consider standard expected of Gomery in the context (will contrast with Wells in Nfld Tel
later…) – para 99

Pelletier v Canada (AG), 2008 FC

FACTS- a Retired judge (John Gomery) was appointed as commissioner of a politically contentious inquiry into the
alleged misuse of government funds as part of a federal sponsorship program aided at enhancing federal visibility in
Canada and especially Quebec. Two parties to the inquiry who were criticized in the inquiry’s report (Jean Cretien and
Jean Pelletier) claimed an apprehension of bias on the part of the commissioner to the media during the inquiry.
ISSUE-Was there an apprehension of bias?
HOLDING
 YES the commissioners conduct gave rise to an apprehension of bias
DECISION
 There is more than sufficient evidence to find that an informed person, viewing the matter realistically and
practically and having thought the matter through would find a reasonable apprehension of bias on the party of
the Commissioner
 The comments he made not only indicate he prejudged issues, but also that he was not impartial towards the
applicant
 The commissioner formed conclusions about issues before having heard all the evidence
 Part of the commissioner’s mandate if he was to investigate and report on the “management of the sponsorship
programme and advertising activities of governing officials at ALL levels”thus he was not in a position to
conclude that the program was mismanaged until having heard from government officials in all levels that were
set to testify
 What he said:
o He said that the “programme was run in a catastrophically bad way”
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o He was not able to say this before hearing all evidence

o Saying this before the hearing as done undermined the very purpose of the commission of
inquirycreating a sense that the proceedings were perfunctory in nature
o He also made comments about Chrétien’s answers being the only ones that counted
o He said there was “juicy stuff” to somethis trivialized the proceedings, it gave the impression that
evidence of wrongdoing was forthcoming
 A reasonable, well informed person viewing the statements would conclude that instead of sitting as a
dispassionate decision-maker presiding over the hearings with to pre-established ideas regarding the
conclusions he would eventually reach after hearing all the evidence, the commissioner had a plan or checklist
of the evidence that was expected and which was required to support pre-determined conclusions
 The commissioner became preoccupied with ensuring the spotlight of the media remained on the commission’s
inquiry
 It is not a function of the commissioner to grant press interviews nor to express during such interviews an
opinion of what the evidence showed, particularly before all evidence had been heard
 The commissioners conduct outside of the hearing room had a detrimental effect on the fairness of the
proceedings in that the applicant was put in a position where he was before a commissioner who had publicly
questioned his conduct and integrity
 This is sufficient to instill doubt in the mind of the reasonable person as to the fairness of the inquiry process
 The media is not an appropriate forum in which a decision maker is to become engagedeven when the
proceedings are purposed on educating and informing the public
 It is only when all the evidence is heard and after deliberation of the evidence that the decision maker is to form
conclusions that finally to issue a judgement or report based on these conclusions
CLASS NOTES
 Note that when there is bias it should be challenged right away, they did in this case (Cretien and Pelltier)
 Remedy-portions of his final report are struck
 Note this is about ‘apprehension’
 Which standard of bias applied in this casereasonable apprehension of bias, ‘reasonably informed observer’
 Remember the context: it’s an inquiry here
 The standard expect of Gomery was higher here than in the investigative stage

*Note that because we have this standard of a reasonability informed observer this can be challenged (aka you
could have evidence showing that he was in fact not actually bias)
*To whom does this rule against the apprehension of bias apply?
 We often see a panel of decision makers (think of Baker)in that case the whole body was taken into
consideration to taint the proceedings
 Under the SCC: they are independent decision makers (so even if one was bias it wouldn’t taint the whole
panel)note how this goes against our general principles (Wewaykum)

Parameters of the rule against bias/some issues:

1.Can we answer an apprehension of bias with evidence of no actual bias?
“The reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish
the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. As was
said by Lord Goff in Gough,…, “there is an overriding public interest that there should be confidence in the integrity of
the administration of justice”. (Wewaykum v Canada, 2003 SCC 45, at para 64)
– Who is the “informed” observer? How does evidence that suggests “no real danger of biased appraisal
influence this observe and the public interest in the appearance of justice? (pp. 443-4 in textbook)
2,To whom does the rule apply?
• All those substantially involved in the decision (e.g., Baker).
3.Does apprehension of bias on the part of one decision maker taint the whole panel?
– Usually (Great Atlantic). But might depend on decision-making structure, and how much we know about
it.
– Wewaykum, paras 92-93, re SCC decision making process: RAB of 1 judge wouldn’t taint the other 8.
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– Its all about what constitutes a “reasonable apprehension”.

4.Parties who want to allege bias should do it as soon as the issue arises.
– E.g., Pelletier and Cretien re Gomery’s statements.

Pecuniary and Other Material Interests

 The common law has long treated direct pecuniary and other interests in the outcome of a matter as disqualifying
a decision makerwe may understand this as a type of attitudinal bias
 If a pecuniary interest is too remote it would give rise to a reasonable apprehension of bias [Energy Probe]
 Energy Probe Canada, 1984
o The Atomic Energy Control Board had proposed to renew the license of a nuclear facility operated by
Ontario Hydro. Energy Probe objected to participation by one board member, Mr. Olson, on the basis that
he was president of a company that supplied cables to nuclear power plants and was an official or member
of several organizations that supported nuclear power
o AECB rejected this objection and renewed the licence. Energy Probe then challenged the decision
(unsuccessfully) based on the alleged material interest
o At the Federal Courtthey concluded in effect that the material interest was too remote
 “I can find no direct pecuniary interest…held my Mr. Olson at the date of hearings in
question…there was no contract conditionally in effect pending the outcome of the new licences
to Ontario Hydro. There was no certainty that Mr. Olson would sell additional cables to Ontario
Hydro for the Pickering units. The most that could be said of Mr. Olson as of the sate of the
hearing was that he could entertain a reasonable expectation of pecuniary gain as a result of he
approval of the license.”
 This was a tendering processthere was no direct interest in the licencing he is deciding on
o Federal Court of AppealUpheld the Federal Court decision
 “The word “direct” should not be given such a strict and narrow interpretation that any indirect or
uncertain advantage would not have to be considered; the word is used in the sense of not too
remote or too contingent or too speculative.”
 “There is not reason to draw a strict distinction between direct and indirect or certain and
uncertain as regards to the monetary benefit the adjudicator could expect from his determination.
The only rational requirements are that the benefit come from the decision itself and that it be
likely enough effect to “colour” the case in his eye.”
 “The mere possibility that a profit could be realized in the future out of other contracts awarded is
the court of construction of other units was not doubt too alien, contingent and remote to
constitute pecuniary bias with respect to the decision to be made tat that time.”
 Pearlman v Manitoba Law Society Judicial Committee, 1991 SCC
o The court rejected the argument that a professional discipline committee composed of fellow members
was structurally biased because of the self interest of the committee members in reducing competition by
way of suspending or expelling other professions
 As with other forms of bias, a pecuniary or other material interest may be statutorily authorized

Variations Depending on Context [Variations of the Standard of Bias]

 The courts have recognized that the standard of disqualifying bias may vary widely in the context
 This is particularly so in the are of prior involvement with, and attitude toward, the matter to be decided
 Sometimes a court will use the Baker factors to guide its characterization of the standard of disqualifying bias to
apply, or what will constitute a reasonable apprehension of bias in a particular context.
 The Court of Appeal’s use the Baker analysis can be traced to Newfoundland TelephoneHere the SCC noted
that the application of the reasonable apprehension of bias standard, where it applied must be flexiblethat is the
standard is less strict for a board dealing with policy matters than it is for an adjudicative board.
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Variable standard in administrative contexts

Old St Boniface
- municipal context
- articulation of “closed mind” test:
“The party alleging disqualifying bias must establish that there is prejudgment of the matter, in fact, to the extent
that any representations at variance with the view, which as been adopted, would be futile.”
Aside: if this is a legislative decision, why is there a duty of fairness in the first place?
Save Richmond Farmland
La Forest (minority, concurring) – prefers different test:
At legislative end of spectrum, test for bias allows for closed mind so long as the “closed mind is the result not of
corruption, but of honest opinions strongly held.” (quoted at p. 475)

Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), 1992

SCC
Boards “that are primarily adjudicative in their functions will be expected to comply with the standard applicable to
courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable
apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members
such as those dealing with planning and development whose members are municipal councillors. With those boards, the
standard will be much more lenient. In order to disqualify the members a challenging party must establish that there
has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile.
Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal
councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very
role which has been entrusted to them by the legislature.” (para 27)

What standard best promotes the values of the rule of law and/or administrative law, the “closed mind” test (Old St
Boniface, Nfld tel) or the “honest opinion” test (La Forest in Save Richmond Farmland, Dyzenhaus)?

Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), 1992 SCC

FACTS: This case arose from a decision by Newfoundland and Labrador public utilities board in its responsibility for
regulating Newfoundland Telephone (the provinces then monopoly telephone service provider). The boards
commissioners were appointed by the provincial cabinet. The parent statute for the board provided that only the
commissioners could not be employed by, or have an interest in the public utility. One commissioner (Wells) was an
advocate for consumer rights. When appointed to the board her said that he intended to play an adversarial role as a
champion of consumer rights. The statute did not provide for or prohibit the appointment of commissioners as
representatives of any specific group and Well’s appointment was not challenged.
Five commissioners of the board (including Wells) conducted a public hearing into the accountants report to the
commission about Newfoundland Telephones costs etc. Well described that pay and benefit packaged of the executive
of Newfoundland Telephone as ludicrous. When the hearing began Newfoundland Telephone objected to Well’s
participation on the panel on the grounds that his statements created an apprehension of biasthe board rejected this
and ruled the panel could continue. Well’s critical comments continued during the hearings. He made a number of
statements to the media etc. All of these statements were made before the board released its decision, in which the
board disallowed the costs of an enhanced pension plan for certain senior executives.
ISSUE: Was there a reasonable apprehension of bias in these circumstances?
HOLDING
 Well’s statements did not indicate a “closed mind” before the haring BUT they did create a reasonable
apprehension of bias after the hearing was announced (which at that point a high standard of procedural
fairness applied)
DECISION
 The composition of the board can and should often reflect all aspects of society
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 There is not reason why advocates for the consumer or ultimate used of the regulated product should not, in
appropriate circumstances, be members of the board
 There should not be any undue concern that a board which draws its membership frm a wide spectrum will act
unfairly
 It can be seen that there is a great diversity of administrative boards
o Those that are primarily adjudicative in their functions will be expected to comply with the standard
applicable to the courts that is to say the conduct of the members of the board should be such that
there could be no reasonable apprehension of bias with regard to their decision
o At the other end of the scale are boards with popularly elected members such as those dealing with
planning and development whose members are municipal counsellorsin that case the standard will be
much more lenient (in order to disqualify the members a challenging party must establish that there has
been a pre-judgment of the matter to such an extent that any representations to the contrary would be
futile.
 A member of the board which performs a policy formation function should not be susceptible to a charge of
bias simply because of the expression of strong opinions prior to the hearingthis does not mean there is no
limits to the conduct of board members (it is simply a confirmation of the principle tha the courts must take a
flexible approach to the problems so that the standard which applies varies with the role and function of the
board which is being considered.
 It can be seen that he board has been given a general supervision role over provincial public utilities
 The board when it believe any charges or expenses of a utility are unreasonable, may of its of volition
summarily investigate the charges or expenses as a result of the investigation it may order a public hearing
regarding the expenses
 In turn at the hearing there must be fundamental rights to procedural fairness
 When determining whether any rate or charge is “unreasonable” the board will assess the charges and rates in
economic terms in those circumstances the board will not be dealing with legal questions but rather policy
issuesThe decision making process of the board will come closer to the legislative end of the spectrum of
administrative boards then to the adjudicative end
 INVESTIGATION STATGECLOSED MIND TEST
 Certainly it would be open to a commissioner during an investigative process to make public statements
pertaining to the investigationalthough it might be more appropriate to say nothing
o During the investigation stage a wide license must be given to board members to make public
commentsas long as those statements do not indicate a mind so closed that any submission would be
futile
o The statements make by Well’s before the hearing do not indicate a closed mind
o The comments were no more than a colourful expression of an opinion of the salaries and pensions of
the executives
o Should a commissioner state that no matter what evidence might be disclosed as a result of the
investigation their position would not close, then this would indicate a closed mind
 HEARING STAGEREASONABLE APPREHENSION OF BIAS
 Once the matter reaches the hearing stage a greater degree of discretion is required of a member
o Although the standard for a commissioner sitting in a hearing of the board (in these contexts) need not
be as strict as that expected of a judge presiding over a trial, there are still procedural fairness
requirements
o While the hearing was already in progress Wells was making statements that might be understood by a
reasonable observer that he had made up his mind what his judgements would be before the board
heard all the evidence
o These statements taken together give a clear indication that not only was there a reasonable
apprehension of bias, but that Mr. Wells has demonstrated that he had a closed mind on the subject
o Once the order directing the holding of hearing was given the Utility was entitled ot procedural fairness
o At that stage something more could and should be expected of the conduct of board members
o At the investigation stage the “closed mind” test was applicable
o Procedural fairness than required the board members to conduct themselves so that there could be no
reasonable apprehension of biasthis application must be flexible
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o This standard of conduct will not of course inhibit the most vigiourous questioning of witness and
counsel by board membersWell’s statements however were such that so long as he remained a
member of the board hearing a reasonable apprehension of bias existedand the hearing proceeding in
an unfair way
 In these circumstances there is no alternative but to declare that he Order was void
CLASS NOTES
 We have an extension of the closed mind standard beyond municipal councillors [at the investigation stage
here]
 The pecuniary interest here probably isn’t strong enough to raise those bias issues (aka the boards is making
decision on their own rates)
 Just think about this realistically-how can the same person at the investigation stage saying all these things
(“fat cats” etc) then on the hearing panel…how does that look? Does it actually make any sense?

Old Boniface Residents Assn Inc v Winnipeg City, 1990 SCC

Old Boniface Residents Assn Inc v Winnipeg City, 1990 SCC

FACTS: This judgement arose after Winnipeg city council approved a proposal to build to condominium towers in the
community of Old Boniface. A resident’s association attempted to block the decision on the basis that a municipal
counsellor has been involved from the start in moving the proposal through the municipal approval process. He
represented the city in discussion the project with the developer and appeared as an advocate for the project at in
camera meetings of the council’s finance committee, which made a key decision in allowed the proposal to proceed. An
election occurred during the process and the counsellor was re-elected although at the public meetings he did not
disclose his earlier involvement in the approvals process.
ISSUE: Was there a reasonable apprehension of bias?
HOLDING

DECISION
 The content of the rules of natural justice and procedural fairness were formerly determined according to the
classification of the functions of the tribunal or other public body of officialsthis is no longer the case and the
content of these rules is based on a number of factors including the terms of the statute pursuant to which the
body operates the nature of the particular function of which it is seized and the type of decision it is called upon
to make
 Both the rules of natural justice and duty of fairness are variable standards
 The court decided the content of these rules by reference to ALL the circumstances under which the tribunal
operates
o It is therefore necessary to examine all the factors under which a committee of council operates
o Stating with the statuteprovides for a hearing before a committee of members of council, there is
nothing in the legislation to indicate that they are to act in a capacity other than municipal officers
o With respect to enactments of zoning by-laws it is well known that numerous committees are involves
at which member’s of the council are expected to cote before being called upon to hear representations
and decide the questionin the predation and processing of a development, a municipal counsellor is
often involves in assisting parties supporting and opposing the development with respect to their
presentations
o A councillor will often take a stand on either sidethis may ordinarily run afoul the rules BUT it could
not have been intended by the legislature that this rule apply to members of council with the same force
as other tribunals whose character and functions more closely resemble that of a court
 The test that is consistent with the function of the a municipal counsellor and enables him or her to carry out
the political and legislative duties entrusted to the counsellor is one which requires that the objectors or
supporters be heard by members of council who are capable of being persuaded
 The party alleging disqualifying bias MUST established that there a prejudgment of the matter, to the extent
that any representations at ariacne with the view which have been adopted will be futile
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 Statements by individual members of the council while they may very will give rise to an apprehension of bias
will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter,
which cannot be dislodged
 It is important to keep in mind that support in favour of a measure before a committee and a vote in favour will
not constitute disqualify bias in the absence of some indication that the position taken in incapable of change
 APPLICATION
o In this case the disqualifying conduct relied on consists of the councillor appearing before the Finance
Committee and speaking on behalf of the developer
o This in itself would not necessarily lead to the conclusion that ones mind would not be changed
o It is suggested that this places him in the role of advocate for the developer and thus gives him an
interest in the issue which goes beyond the public interest
o This submission would have substance if there was something to suggest that the counsellor support
was motivated by some relationship with or interest in the developer rather than in the developer rather
than in the development
o The evidence should that he had previously supported the development on its merits, thus there is no
evidence that suggest that any relationship with the developer exists
CLASS NOTES
 Classic municipal type of decision (zoning by-law to pass that would allow the development)
 The ones opposing says the counsellor was going to vote in favour from the beginningand the allege this is
bias, and the vote to re-zone should be quashed
 If you apply a reasonable apprehension of bias testthen it would be met (he was continually articulated how
he could vote etc)
 The court looked at different test/standard-”Closed mind” test
o He is only held to this standard of a closed mind because the context is very different. Municipal
counsellors run of certain platforms and policies
 Even though we don’t see the baker factors here directly (baker hasn’t happened yet), they certainly
applycontextualization
 If this is a legislative decision why is there even procedural fairness here?- are you stuck at the legislative
decision?
o There are a lot of processes in this decision
o The process for making a by-law is in the legislationso legislatively there is clearly a duty under
legislation
o The legislation makes a duty of fairnesswhich is then interpreted based on common law etc

Save Richmond Farmland Society v Richmond (Township), 1990 SCC

Save Richmond Farmland Society v Richmond (Township), 1990 SCC

FACTS: The Richmond Farmland Society had challenged the township’s approval of a rezoning bylaw. At a closely
split municipal council reflecting known divisions of opinion from an earlier election campaign, based on allegations of
bias directed at one of the counsellors. Previously the councillor campaigned in favour of the rezoning and gave a
media interview where he allegedly said that, although he would listen attentively at public hearings into the matter, he
would not change his mind. While the public hearings were underway he appeared on a TV show and advocated the
rezoning saying it would take something significant for him to change his mind, though he would be interested to see
what emerged in the balance of the hearings.
ISSUE: Was there bias?
HOLDING
 A decision maker is entitled to bring a closed mind to this decision making process provided that he closed
mind is the result not of corruption but of honest opinions strongly held
DECISION
 Both judgments of the BCCA in this case are premised on the notion that it is an error, in the context of a
rezoning application to imply bias from the fact that a municipal counsellor holds very firm and strongly states
views on a matter
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 It must be assumed that the legislature would have been well aware of the fact that the very aldermen who are
called on by the statute to make the final decision on zoning by-laws initiated by municipalities themselves will
often have run for office on the strength of their support or opposition to these measures
 If this seemingly guarantees that zoning application of this nature are decided before every reaching the hearing
stage, this inconsistency should be for the legislature to iron out, not the courts
 Clearing in this instance, the decision making process is to be located at the legislative end of the spectrum
 Accordinglythe threshold test for establishing bias should be a very high one
 A decision maker is entitled to bring a closed mind to this decision making process provided that he closed
mine is the result not of corruption but of honest opinions strongly held
CLASS NOTES
 You have a different articulation of the standard that could be appliedat the legislative end of the spectrum it
allowed them to bring a closed mind (as stated above)
 This articulation DOES NOT WIN THE DAY (its just an articulation present by a dissent here)
 This test guards against corruptionaka conflicts of interest
o So you have types of bias that could be caught by this test
 This test is more lenient (you can have a closed mind)
 The judges here think that the test articulated in Old Bonifice makes people just bite their tongues, we would
rather have people state their opinions flat out

Statutory Authorization
 The common law response to an allegation of bias, especially due to the prior involvement of an individual in the
decision-making process, is statutory authorization
o That is the statute may be sufficiently clear and direct to oust the common law, including any
requirements on impartiality or independence as a component of procedural fairness
 Statutory authorization may justify the participation in decision-making of person who have a firm point of view,
a relationship with one of the parties or a stake in the outcome

Brosseau v Alberta Securities Commission, 1989 SCC

Basic principle: “In some cases, the legislator will determine that it is desirable, in achieving the ends of the statute, to
allow for an overlap of functions which in normal judicial proceedings would be kept separate. In assessing the activities
of administrative tribunals, the courts must be sensitve to the nature of the body created by the legislator. If a certain
degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be
subject to the doctrine of “reasonable apprehension of bias” per se….” (p. 478)

Would the case be better described as one of the “variation of the standard of bias” in administrative contexts than
statutory authorization for what would constitute a RAB in a judicial context?
Did L’H-D apply a different approach to statutory interpretation than we’ve seen in other PF cases (i.e., Nicholson)? Is
it more or less deferential to look for implied statutory authority (as L’H-D did here) than to look for express exclusion of
common law?

Brosseau v Alberta Securities Commission, 1989 SCC

FACTS: it was alleged that the chair of a securities commission was disqualified from sitting in an adjudicative
capacity. At the request of a senior government official, the chair had instruction commission staff to investigate a
company. B was the company’s solicitor. The chair also received the staff’s investigative report. An adjudicative
hearing was called to resolve allegation that B made false or misleading statements in the company’s prospectus filed
with the commission. The chair was designated to sit on the panel and B argued that this gave rise to an apprehension
of bias.
ISSUE: Is there an apprehension of bias?
HOLDING
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 So long as the chairman did not act outside his statutory authority, and so long as there is no evidence to show
involvement above and beyond the mere fact of the chairman’s fulfilling his statutory duties, a reasonable
apprehension of bias affecting the commission as whole cannot be said to exist
DECISION
 As with most principles there are EXCEPTIONS, one exception is where the overlap of the functions which
occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue
 In order the disqualify the commission from hearing the matter in the present case, some of the act of the
commission going beyond its statutory duties must be found
 In some cases the legislators will determine that is desirable, in achieving ends of the statute, to allow to an
overlap of functions which in normal judicial proceedings would be keep separatein assessing the activities
of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator (if a
certain degree of overlap of functions is authorized by statute then to the extent that it is authorized, it will not
generally be subject to eh doctrine of reasonable apprehension of bias per se)
 Section 28 of the securities actprovides authority for the commission to carry out a full scale investigation
which includes a wide range of powers
o Because of the formalities surrounding the section 28 investigation and because of the broad powers it
conferred the courts agree that the commission must have implied authority to conduct a more informal
review
 Section 11 of the Securities Actprovides that the chairman of the commission in its Chief Executive Officer,
as such it appears that it would necessary to have the authority to receive information for the Assistant Deputy
Minister form the RCMP and pass that material along to the director of the commission
 Securities commission by their nature undertake differ functions
 Given the circumstances, it is not enough for the appellant to merely claim bias because the commission, in
undertaking its preliminary internal review did not act like a court
 It is clear from the empowering legislation that, in such circumstances that commissioner is not meant to act
like a court, and that certain activities which might otherwise be considered bias form an integral part of its
operations
 Securities acts in general can be said to be aimed at regulating the market and protecting the general public
 This protective role, common to all securities commissions gives a special character to such bodies which must
be recognized when assessing the way in which their functions are carried out under their acts
 So long as the chairman did not act outside his statutory authority, and so long as there is no evidence to show
involvement above and beyond the mere fact of the chairman’s fulfilling his statutory duties, a reasonable
apprehension of bias affecting the commission as whole cannot be said to exist
CLASS NOTES
 Procedural fairness is common law…statues are statuteISSUE: how do they interact?
 Securities commission often have functions of investigative, hearings etc
 Why are the overlapping functions a problem?
o You will see a broach rang of evidence in the investigation, not all the evidence will be admissible in
the hearing this may result in prejudgement
o They aren’t coming the hearing with fresh eyes, they may have an opinion already in mind (even if the
same evidence is shown)
 Was there statutory authorization?
o If the statute authorizes an overlap of function, then even if a bias is present it will be okay
o This was kind of a problem here
o Even though the type of investigation in issue was not the one under section 28, she still found the
authority by looking at the broader roles of the commission she implies this statutory authority
o This approach to statutory interpretation may be at odds with others we have seen in the course, where
the language had to be much more clear to preclude duty of fairness (Nicholson)
o They didn’t require express language here to preclude the duty of fairness
o This may just be about variation of the standardaka a relaxed standard in the case there the
legislature gives overlapping functions, saying the common law recognizes variations in the standard of
bias would support that a strict apprehension of bias shouldn’t be applied here
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Institutional Independence: adjudicative contexts [Tribunal Independence]

 There are Three Prongs
1. Security of Tenure
 Judicial context is our measuring stickaka life (unless removed from a disciplinary committee)
 We don’t really see anything like the judicial standard in the administrative one, more common is
appointments for a certain amount of years
 “The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an age of
retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference
by the executive or other appointing authority in a discretionary or arbitrary manner.”
2. Financial Security
 “the right to salary and pension should be established by law and not be subject to arbitrary
interference by the executive in a manner that could affect judicial independence.”
3. Institutional (administrative) independence
 “the institutional independence of the tribunal with respect to matters of administration bearing
directly on the exercise of its judicial function.”
* Recall: Judicial Independence is an “unwritten” constitutional principle (but grounded in ss. 96-101 of 1867 Act), that
has been applied to inferior courts (i.e., provincial courts); Provincial Judges Ref.
 Note that the provincial superior courts are created by statute and are not governed by section 96but the
principle is extended as an unwritten constitutional principle
 The SCC has accepted that bias could be institutional as well as individual.
o If a tribunal were set up in a way that created a reasonable apprehension of bias, the court could se aside
the tribunals decision on the basis of institutional bias
o Where institutional problems were the result of internal choices about modes of operation, this
intervention was based on the common law
o Where the structures were established by statute, the court would need constitutional or quasi-
constitutional basis on which to intervene

2747-3174 Quebec Inc v Quebec (Regie des permis d’lcool), 1996 SCC
Standard at common law (from R v Lippé):
“a well-informed person, viewing the matter realistically and practically – and having through the matter through – would
have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but
the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must
be given special attention” (at para 44, p. 483)
What is wrong with the way the Régie operates according to the SCC? Are these concerns ones of Independence and/or
bias? And what is required to correct the concerns?
What were the challenges to the Régie on the grounds of independence?
Can a salary structure include annual bonuses (based on annual evaluations of Chair – see p. 484) and satisfy the
principle of independence?

2747-3174 Quebec Inc v Quebec (Regie des permis d’lcool), 1996 SCC
FACTS: A company whose liquor permits were revoked challenged various provisions of the Quebec liquor licencing
statute. The provisions dealt with both the operation and structure of the Regie.
ISSUE
HOLDING

REASONING
 Impartiality like independence, has an institutional aspect
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o The objective status of the tribunal can be as relevant for the “impartiality” requirement as for the
“independence”
 In this case the respondent’s concerns are related first to the Regies multiple functions and to the impact of that
multiplicity of functions on the duties of its various employees
o The determination of institutional bias presupposes that a well informed person, viewing the matter
realistically and practically (and having thought the matter through) would have a reasonable
apprehension of bias in a substantial number of cases.
o Whether appearing before an administrative tribunal or a court of law, a litigant has a right to expect
that an impartial adjudicator will deal with his or her claims
o The informed person assessment will always depend on the circumstancesfor instance the nature of
the dispute to be decided, and other duties of the administrative agency and the operational context as a
whole
 The arguments against the Regie relate primarily to its role at various stages in the liquor permit cancellation
process the act allows employees of the Regie to participate in the investigation, filing of complaints, the
presentation of the case to directors
 Although overlapping functions are not always a group for concern, it must nevertheless not result in
excessively close relations among employees involved in different stages of the process
 In practice, employees of the Regie are involved at every stage of the process leading up to the cancellation of a
permit (from investigation to adjudication)
o If the Regie decides to hold a hearing, a notice of summons drafted by a legal services lawyer is sent to
the permit holder- in this case the notice was signed by the chairman of the Regie
o A hearing is then held before at least two different directors designated by the chairman, one of the
legal services lawyers acts as counsel for the Regie at the hearing
o The proceedings are complete with the publication of written reasons
 A detailed description of the Regie’s structure and operations shows that the issue of the role of the lawyers
employed by legal services is at the heart of this appealan informed person having thought the matter through
would in this regard have reasonable apprehension of bias in a substantial number of cases
 The annual report and the silence in the act and regulations leaves open the possibility of the same jurist
performing various functions in the same matter
o The report mentions no measures taken to separate the lawyers involved at different stages of the
process
o Yet it seems that such measures would be essential in the circumstances
o The possibility that a jurist who has made submission to the directors might then advise them in respect
of the same matter is disturbing, especially since some of the directors have no legal training
 In this case, the Regie’s lawyers could not advise the directors and make submissions to them without there
being a reasonable apprehension of bias [this does not mean that jurist in the employ of an administrative
tribunal can never play any role in the preparation of reasons]
o The function of prosecutor and adjudicator cannot be exercised together in this manner
 A lack of evidence makes it difficult to assess the Regie’s operations-it must be noted however that the act and
regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that
is to head the case and include themselves on the panel if they desire
 The fact that the Regie, as an institution participates in the process of investigation, summoning and
adjudication is not it itself problematic-however the possibility that a particular director could, following an
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

SECOND EXTRACT
 The directors conditions of employment meet the minimum requirements of independencethese do not
require all administrative adjudicators (like judges in a court of law) to hold officer for life
o A fixed term appointment (which are common) are acceptable
o But the removal of adjudicators must not simply be at the pleasure of executives
 In this case the orders of appointment provide expressly that the directors can be dismissed only for certain
specific reasons
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 In these circumstances, the directors have sufficient security of tenure (since sanctions are available for any
arbitrary interference by the executive during a directors term of office
 In light of the evidence as a whole, I do not consider these carious factors sufficient to raise a reasonable
apprehension with respect to the INSTITUTIONAL INDEPENDENCE of the regie
o It is not unusual for an administrative agency to be subject to the general supervision of a member of
the executive with respect to management
o The essential elements of institutional independence may be summer up as judicial control over the
administrative decision that bears directly and immediately on the exercise of the judicial function (it
has not been shown here how the minister might influence the decision making process)
o The fact that the minister of Public Security is ultimately responsible for both the Regie and various
police forces conducting investigations would not in my view cause an informed person to have a
reasonable apprehension with respect to the independence of the directors
o The directors swear an oath requiring them to perform the duties of their office honestly and fairly
**It seems that the court accepted that for administrative tribunals as long as members do not serve purely at pleasure
there will be sufficient security of tenure (an office as short as 2 years will do)

CLASS NOTES
 Standard at common law (from R v Lippe)
 Reqie is the liquor licensing branch in Quebec Note what the consequences would be of having a liquor
license removed (it has a very big effect on business)
 What is wrong with the way the Regie is operating according to the SCCoverlapping functions etc
 At the end of the day here if there is statutory authorization they have legislation that overcomes it
 At lot of the problem they focus on is what the lawyers are doing and their involvement, how can we correct
this overlapping?
o Have separate departments handle different things
o Have separate roles for people
 We want to look for something in the legislation that might tell us the overlapping functions are intended by the
legislature
 There was also challenged on the grounds of independence
o They are “good behaviour” office holders
o Note there is always a potential for removal for cause (which isn’t really problematic because even
judges can be removed for cause, although it’s a bit harder)
o There is a variance in the term of the appointment (2-5 years)
o How are ppl reappointed? People could get bonuses (for efficiency probably, maybe getting through
more cases etc, this could encourage them to cut corners etc), you have a minister with a fair bit of
oversight, if they are going to be reappointed it have something to do with this bonus evaluation
process,
 Note that when we are talking about institutional bias we are talking about the full process of the administration
(as opposed to saying the people specifically handing your file had overlapping functions you are saying the
whole process which allows overlapping functions is problematic)
 Always think about who the chair is answering to? What does the statute say?

 Katz v Vancouver Stock Exchange, 1995

o Members of the disciplinary committee of the Vancouver Stock Exchange were not appointed for any set
term, and aside from the external legal members, were not paid. Nonetheless, the SCC endorsed the BCA
decisions that these institutional aspects did not pose a problem for independence
o In the Tribunals Practice, the members seems to continue to serve until voluntary resignation or death,
also the fact that that members did not depend financially on their work at the committee was seen, in the
circumstances to contribute to their independence
 A related concern about tribunal independence involves the relationship between individual tribunal members and
the tribunals full membership in the context of pending adjudications
 As in other situations of bias, a lack of institutional independence, based on the common law can be authorized by
statute
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o If the relevant state clearly authorizes the existence of a statutory scheme, there will be no remedy
available unless those affected can point to a constitutional or quasi constitutional argument for
independence
o See Ocean Port

Ocean Port Hotel Ltd. v BC (General Manager, Liquor Control and Licensing Branch), 2001 SCC
Does the constitutional principle apply in admin contexts?
 No.
 Paras 23-24: Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required
to possess objective guarantees of both individual and institutional independence…. Historically, the requirement
of judicial independence developed to demarcate the fundamental division between the judiciary and the
executive…. Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They
are, in fact, created precisely for the purpose of implementing government policy…[T]he degree of independence
required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent
constitutional constraints, this choice must be respected.”

Judicial Independence principle serves two objectives; only 2nd one is constitutional (outside of Charter ss. 7, 11(d)):
1. Rule against bias  perceptions of justice being done
2. Upholding the rule of law and separation of powers  a constitutional principle, not relevant to admin
tribunals (at least not this one….)
• How are tribunals the same and how are they different from Inferior (provincial) courts (which are protected by
the constitutional principle of judicial independence)?
• The SCC’s decision in Ocean Port is formalist not functionalist. Can you explain this statement?

Ocean Port Hotel Ltd. v BC (General Manager, Liquor Control and Licensing Branch), 2001 SCC
FACTS: a challenge was brought to the structure of the BC Licensing Board. It was argued that the members of the
board lacked sufficient security of tenure to ensure their independence. In particular, the board functioned through part
time, fixed term appointments and its members could be removed at pleasure.
ISSUE: Where members of the Liquor Appeal Board are sufficiently independent to render decisions on violations of
the act and impose penalties?
HOLDING
 The Regime was statutorily authorized
REASONING
 It is well established that absent, constitutional constraints, the degree of independence required of a particular
government decision maker or tribunal is determined by its enabling statute
 It is the legislatures or Parliament that determines the degree of independence required of tribunal members
 The statute must be construed as a whole to determine the degree of independence that the legislature intended
 Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature
intended the tribunals process to comport with principles of natural justice In such circumstances
administrative tribunals may be bound by the requirement of an independent and impartial decision maker, one
of the fundamental principles of natural justice
 Like all principles of natural justice, the degree of independence required of the tribunal members may be
ousted by express statutory language or necessary implication
 It is NOT open to the courts to apply a common-law rule in the face of clear statutory directioncourts engage
in JR of administrative decision must defer to the legislator’s intention in assessing the degree of independence
required of the tribunal in question
 Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess
objective guarantees of both individual and institutional independence (the same constitutional imperative
applies to the provincial courts)
o By CONTRASTadministrative tribunals lack this constitutional distinction from the executive, they
are in fact created precisely for the purpose of implementing government policy
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oImplementation of that policy may require them to make quasi judicial decision, they that may be seen
as spanning the constitutional divide between the executive and judicial branches
o Given their primary policy making function, it is properly the role and responsibility of Parliament and
the legislatures to determine the composition and structure required by a tribunal to discharge the
responsibilities bestowed upon it
o While tribunals may sometimes attract Charter Requirements of independence, as a general rule they
do not
o Thus the degree of independence required of a particular tribunal is a matter of discerning the intention
of parliament or the legislatures and absent constitutional constraints this choice must be respected
 In this case, the legislatures of BC spoke directly to the nature of the appointments of the Liquor Appeal Board
(section 30(2)(a) the chair and members serve at the pleasure of the lieutenant governor in council)
 The legislatures intention that the board members should serve at pleasure, as expressed in the statute, is
unequivocal
o It does not permit the argument that the statute is ambiguous and hence should be read as imposing a
higher degrees of independence to meet the requirements of natural justice
 In each case, one must face the question “What did the legislature intend?”
 Where the intention of the legislature, as here, in unequivocal there is no room to import common law doctrines
of independence, however inviting it may be for the court to do so
 The board it not a court, nor does it approach the constitutional role of the courts. It is first and foremost a
licensing body. The suspension complained of was an incident of the board’s licensing function. Licenses are
granted on condition of compliance with the Act, and can be suspended for non-compliance. The exercise of
power here at issue falls squarely within the executive power of the provincial government.
CLASS NOTES
 DOES THE CONSTITUIONAL PRINCIPLES OF JUDICIAL INDPENDENCE APPLY IN
ADMINISTRATIVE CONEXT? NO
 Here they were “at pleasure” appointment? Can an at pleasure appointment ever be sufficiently independent?
o They have no security of job, the government does not have to have a reason to dismiss
o So this then raises the questions of what the government would be looking for in their appointments?
What kind of political issues might come up in appointments?
 The liquor appeal board is quasi-judicial-they hear appeals and can issue sanctions
 The court says that the statute says very clearly the appointees are at pleasure, there is nothing we can do about
it
 This appeal tribunals are still part of the executive, as part of the executive they do NOT have access to the
unwritten constitutional principles of judicial independencethe executive can decide on their structure
including removing people at pleasure
 Note there is a criminal flavour herethe BCCA did say the principles applied, the SCC revered that
 We are just looking at the rules of how they are paid, appointed and run their businessthis is different than
when we are looking at the reasonable apprehension of bias
 Aka no you can’t use the common law to trump a statute
 The argument for the extension of the principles to the tribunalsbecause they have been extended to
provincial courts, and both are created by statute AND administrative tribunals are doing what courts do in
some instances (so why wouldn’t we apply the principles in these casesshould that same protection be
required? Maybe not as high, but appointments are pleasure would not be okay etc)
o Example: residential tenancy board (they do what courts used to do, adjudicate disputes between
people etc)
 This decision is rather formalistWHY?
o They are drawing lines between the separation of powers
o This case is a marker of the continuation of formalist approaches
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Two more attempts to apply the constitutional principle in administrative contexts:

McKenzie, 2006 BCSC
Res tenancies adjudicator; principle applied. Why? How was Ocean Port Hotel distinguished?
Sask Fed of Labour v Sask (2013, Sask CA)
Chair and vice-chairs of Labour Relations Board dismissed by new government; principle not applied. Attempt to
characterize LRB as more adjudicative (like McKenzie; supposedly in contrast to Ocean Port) failed.

Mckenzie v Minister of Public Safety and Solicitor General, 2006 BCCA

 A case involving a residential tendency adjudicator whose appointment was rescinded mid term
 The court decided that the unwritten constitutional guarantees of judicial independence, as a reflection of the
rule of law, extended to residential tenancy adjudicators
 By analogy, the court held that these adjudicators whose functions were highly adjudicative had been taken
directly from courts of civil jurisdiction, should also enjoy unwritten guarantees of independence
 The BC court of appeal dismissed an appear from the trial judgement as moot because the provincial legislature
had since amended the statute on which the government relied to rescind M’s appointment
 The SCC denied leave to appeal
CLASS NOTES
 This is the only authority where the unwritten principle of judicial independence is applied in administrative
context, this is distinguished from Ocean Port because of the nature of the residential tenancy board
 This is the only successful time it was appliedand hasn’t been applied to succeed in other cases

Saskatchewan Federation of Labour v Saskatchewan, 2010 SKCA

 A newly elected government issues an order in council that terminated the terms of office of the chair and two
vice-chairs of the Saskatchewan Labour Relations Board. According to the new premier, the decision was
unnecessary because his government lacked confidence in the willingness of the chair and vice-chairs to give
effect to the policy choices embodies in proposed amendments to the Saskatchewan labour legislation
 Several unions sought an order quashing the order in council
 The Saskatchewan court of appeal decided that it was clearly authorized by section 20 of Saskatchewan’s
interpretation act
 The court dismissed the possibility that the legislature intended to exclude quasi-judicial tribunals, lie the
Labour Relations Board from the application of section 20 because an amendment to that effect had been
proposed and defeated
 The unions then brought a new proceeding making arguments based on that principles which the court declined
to extent to the labour board after applying Ocean Port
CLASS NOTES
 Dispute what the statute said, the Interpretation Act said that when a new government they could change
peopleNo security
 They try to characterize it as adjudicative (pulling from Mackenzie)BUT this argument failed

Keen v. Canada (Attorney General), 2009 FC

• What was Keen’s/the Commission’s responsibility under the Nuclear Safety and Control Act in relation to
medical uses of nuclear products? What was the scope of Cabinet’s authority to issue directives? What
responsibility did the Commission have to the Minister in relation to its decisions on a particular license?
• Interaction with Dunsmuir – what problems does an “at pleasure” appointment pose for tribunal independence?
• Did Hughes J get the decision right? Should such appointments attract more hearing rights, and how might such
protections support independence where an appointment is “at pleasure”?

Keen v. Canada (Attorney General), 2009 FC

FACTS: The Applicant Linda Keen was, until January 15, 2008, the President of the Canadian Nuclear Safety
Commission as well as a member of that Commission. On that day the Governor in Council by Order in Council (OIC),
terminated her designation as President. She was not terminated as a member of the Commission. Later, by a letter
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addressed to the Prime Minister dated September 22, 2008, Ms Keen advised that she could no longer continue in a
position as member of the Commission. Between those two dates she was pursuing an action for relief (alleging the
OIC was unlawful etc). Counsel for the Respondent, Attorney General of Canada, by way of a preliminary objection,
sought to have the Court refuse to entertain the application on the basis of mootness. Given Ms. Keen's resignation as a
member of the Commission, it was argued, she would no longer be eligible for appointment as President in any event.
**MORE FACTS BELOW IN REASONING
ISSUE: Did she hold her office “at pleasure” or “good behaviour” ? [which informs the procedural rights she is entitled
to]
HOLDING
 Ms. Keen's designation as President of the Commission was "at pleasure". Therefore the circumstances of her
termination as President were sufficient to satisfy the requirements of fairness and natural justice as set out in
Dunsmuir supra.
REASONING
 Relevant Legislation-Nuclear Safety and Control Act
o Section 10 of the Act provides that the Commission shall comprise not more than seven permanent
members and an unstated number of temporary members to be appointed by the Governor in Council.
One of the permanent members is to be the President. A member holds office "during good behaviour".
o No special provision as to "good behaviour" or otherwise is made in respect of the President.
o Section 12 of the Act deals specifically with the President who is to be the chief executive officer and
has supervision over and direction of the work of the members, officers and employees of the
Commission. Subsection (4) requires the President to provide to the Minister of National Resources
certain reports as required
o Section 19 of the Act provides that the Governor in Council may issue "directives" to the Commission
which are binding on the Commission:
o In brief, the Commission grants licences to operate nuclear facilities and is to hold hearings in that
regard. Those licences, even at the Commission's own initiative may be revisited
 The Isotope Facility
o Among the nuclear facilities subject to licence by the Commission is a reactor (National Research
Universal-NRU) located in Chalk River, Ontario operated by a Crown corporation
o The licence granted by the Commission respecting this reactor required that two pumps be suitably
connected to an emergency power supply so as to ensure safe operation. In November 2007 it was
discovered, during a routine plant shutdown, that the two pumps were not connected to the emergency
power supply as required by the licence. AECL confirmed in writing that this was the case. They
suggested just having one pump, which was shot down by the commission, who told them the reactor
had to remain shut down until there were two pumps
o On Dec 10th a directive was issues by the Governor in Council (but Keen didn’t get it until after 11 the
next day)
o Then Bill C-38, assented to December 12, 2007 as S.C. 2007, c. 31, permits the re-opening of the
AECL reactor for a period of 120 days despite any conditions of the licence granted by the
Commission
 Removal of Keen
o On December 27, 2007 the Minister wrote a letter to Ms. Keen expressing deep concern with respect to
the actions of the Commission and advising that he was considering making a recommendation to the
Governor in Council that her designation as President be terminated while maintaining her as a full-
time member of the Commission.
o The letter said a bunch of stuff including-that her failure to immediately take the actions in the directive
promoted the legislature to take the drastic measures of making Bill C-38
o Ms. Keen replied on January 8, 2008 by an eight page letter to which was attached a twenty-seven page
detailed narrative of the events and actions in question.
o The Minister did not reply to Ms. Keen's letter of January 8. Instead on January 15, 2008 the Governor
in Council, on recommendation of the Minister, issued an Order in Council terminating the designation
of Ms. Keen as President of the Commission without affecting her status as full-time permanent
member of that Commission
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oOn September 22, 2008 Ms. Keen sent a letter to the Prime Minister advising that, effective
immediately, she would no longer serve as a Member of the Commission.
 On the basis of this letter, the Respondent requested that the Court decline to hear the matter
on the grounds of mootness. The court discussed the doctrine of mootness and, applying it to
the facts of this case, determined that the matter was not moot
 Nature of Keens Appointment
o Appointments to judicial or senior administrative positions made by the federal government fall into
two general categories, those that are made "at pleasure" and those that are made "during good
behaviour".
o The Interpretation Act, R.S.C. 1985, c. I-21 provides in section 23 that every public officer is deemed
to hold office "during pleasure" unless otherwise expressed in the relevant enactment, commission or
instrument of appointment
o In Cosgrove the Federal Court of Appeal stressed the nature of judicial independence and the concern
that judges may deal with and decide their cases free from inappropriate scrutiny by the legislative and
executive branches of government.
o Turning to the scheme of the Nuclear Safety and Control Act, section 10, provides that the Commission
shall comprise not more than seven permanent members who may be either full-time or part-time. Sub-
section 10(5) states that each member holds office "during good behaviour". The President is
designated by the Governor in Council according to sub-section 10(3) from the group of permanent
full-time members. The Act is silent as to whether the designation as President is "during good
behaviour" or "at pleasure".
o If that designation was "at pleasure" the evidence shows that Ms. Keen was afforded the procedural
fairness contemplated by DunsmuirI am, therefore, satisfied that, if the designation of Ms. Keen as
President of the Commission was "at pleasure", then the requirements of procedural fairness have been
satisfied and the dismissal cannot be set aside.
o On the other hand, if the designation of Ms. Keen as President was "during good behaviour", it is quite
clear that neither the Minister nor the Governor in Council have provided Ms. Keen adequate
information setting out the grounds upon which it was believed that she lacked good behaviourMs.
Keen's letter of January 8 2008 adequately rebuts any suggestion of lack of good behaviour. The failure
of the Minister to enter into further dialogue or hold some form of independent inquiry demonstrates a
clear lack of fairness
o Ms. Keen's counsel argues that her designation as President was "during good behaviour", for a
number of reasons:
1. She was told by certain government officials during interviews at the time of her
appointment that she would be designated as President during good behaviour. the court is
unsatisfied with any evidence that support this
2. The position of President is intertwined with that of a member such that both are during
good behaviour. Court rejects this (says that since the legislation is silent this means it is
an office held “at pleasure”)
3. Chairs and Presidents of quasi-judicial tribunals are generally appointed during good
behaviour.
4. Members of the predecessor entity held their offices during pleasure. The new Act provides
for a stipulated term of office which implies removal only for cause. No, only her position
as a member had a term, not as president
5. Canada's international obligations require an independent supervisory body. An appointment
of a President on good behaviour is more consistent with these obligations. At best, Baker
says that international law or obligations may "help inform" a decision of the Court
 Ms. Keen, while remaining as a member of the Commission "during good behaviour" must be considered to
hold her designation as President, as her commission from Her Majesty says "during Our Pleasure". The
decision of this Court in Houle affirmed by the Federal Court of Appeal in respect of a statute almost identical
in the wording of the relevant sections to that under consideration here is binding, and if not binding,
persuasive such that the result must be the same here.
CLASS NOTES
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 A facility was shut down by Keen for security reasons and it was producing a lot of the isotopes used in Cancer
diagnosis (although this is a by-product of the facility)so shutting down the facility will case a market
disaster
 The government issues a directive (about policy), they end up removing her as president
 There is a question of interpretation of her appointmentthey court finds it was at pleasure so they could
dismiss her without reasons
o Low level of procedural fairness applying
 On the law he didn’t have a lot of room to go the other way, perhaps just where there was ambiguity in the
legislation could he read more independence principles into it
 Note how the legislature can re-legislate (like they did here)

Statutory Provisions
ATA indicates robust protections of independence (where it applies) – Part 2
• What in the statute supports this statement?

Clustering – Tribunal Reform ATA Part 3

Clustering or bundling - definitions:
“brings together a specific group of adjudicative tribunals within a single organization, but maintains each tribunal’s
distinct statutory jurisdiction and membership.” (Gottheil, at 2)
“grouping together …different tribunals that work in related areas and deal with related subject matter” with a goal of
“improve[ing] the quality of services offered to the public by sharing resources, expertise and administrative and
professional support.” (Whitaker report, cited in Sossin & Baxter at 7)

ADMINISTRATIVE TRIBUNALS ACT

Part 2 — Appointments
Chair's initial term and reappointment
2 (1) The chair of the tribunal may be appointed by the appointing authority, after a merit-based process, to hold office
for an initial term of 3 to 5 years.
(2) The chair may be reappointed by the appointing authority, after a merit-based process, for additional terms of up to
5 years.
Member's initial term and reappointment
3 (1) A member, other than the chair, may be appointed by the appointing authority, after a merit-based process and
consultation with the chair, to hold office for an initial term of 2 to 4 years.
(2) A member may be reappointed by the appointing authority, after a merit-based process, as a member of the tribunal
for additional terms of up to 5 years.
Appointment of acting chair
4 (1) If the chair expects to be absent or is absent, the chair may designate a vice chair as the acting chair for the period
that the chair is absent.
(2) If the chair expects to be absent or is absent and there is no vice chair or if there is a vice chair and the vice chair is
not willing or able to act as chair, the chair may designate a member as the acting chair for the period that the chair is
absent.
(3) Despite subsections (1) and (2), if the chair is absent or incapacitated for an extended period of time, the appointing
authority may designate a vice chair as the acting chair for the period that the chair is absent or incapacitated.
(4) Despite subsections (1) and (2), if the chair is absent or incapacitated for an extended period of time and there is no
vice chair or if there is a vice chair and the vice chair is not willing or able to act as chair, the appointing authority may
designate a member, or appoint an individual who would otherwise be qualified for appointment as a member or as the
chair, as the acting chair for the period that the chair is absent or incapacitated.
(5) If the tribunal has no chair, the appointing authority may appoint an individual, who is a member, or appoint an
individual who would otherwise be qualified for appointment as a member or as the chair, as the acting chair for a term
of up to 6 months.
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(6) In exceptional circumstances an individual may be appointed as the acting chair under subsection (5) for an
additional term of up to 6 months.
(7) Subsections (3), (4) and (5) apply whether or not an individual is designated, under the Act under which the chair is
appointed, to act on behalf of the chair.
(8) An individual designated or appointed under any of subsections (1) to (5) has all the powers and may perform all
the duties of the chair.
Member's absence or incapacitation
5 (1) If a member is absent or incapacitated for an extended period of time or expects to be absent for an extended
period of time, the appointing authority, after consultation with the chair, may appoint another person, who would
otherwise be qualified for appointment as a member, to replace the member until the member returns to full duty or the
member's term expires, whichever comes first.
(2) The appointment of a person to replace a member under subsection (1) is not affected by the member returning to
less than full duty.
Member's temporary appointment
6 (1) If the tribunal requires additional members, the chair, after consultation with the minister responsible for the Act
under which the tribunal is established, may appoint an individual, who would otherwise be qualified for appointment
as a member, to be a member for up to 6 months.
(2) Under subsection (1), an individual may be appointed to the tribunal only twice in any 2 year period.
(3) An appointing authority may establish conditions and qualifications for appointments under subsection (1).
Powers after resignation or expiry of term
7 (1) If a member resigns or their appointment expires, the chair may authorize that individual to continue to exercise
powers as a member of the tribunal in any proceeding over which that individual had jurisdiction immediately before
the end of their term.
(2) An authorization under subsection (1) continues until a final decision in that proceeding is made.
(3) If an individual performs duties under subsection (1), section 10 applies.
Validity of tribunal acts
7.1 An act of the tribunal is not invalid because of a defect that is afterwards discovered in the appointment of a chair,
vice chair or member.
Termination for cause
8 The appointing authority may terminate the appointment of the chair, a vice chair or a member for cause.
Responsibilities of the chair
9 The chair is responsible for the effective management and operation of the tribunal and the organization and
allocation of work among its members.
Remuneration and benefits for members
10 (1) In accordance with general directives of the Treasury Board, members must be reimbursed for reasonable
travelling and out of pocket expenses necessarily incurred in carrying out their duties.
(2) In accordance with general directives of the Treasury Board, the minister responsible for the tribunal's enabling Act
must set the remuneration for those members who are to receive remuneration.

Part 3 — Clustering
Designating clusters
10.1 (1) The Lieutenant Governor in Council may, by regulation, designate 2 or more tribunals as a cluster if, in the
opinion of the Lieutenant Governor in Council, the matters that the tribunals deal with are such that they can operate
more effectively and efficiently as part of a cluster than alone.
(2) The Lieutenant Governor in Council may, by regulation, do one or both of the following:
(a) remove a tribunal from a cluster;
(b) add a tribunal to a cluster.
(3) If a tribunal is in a cluster, this Part applies to the tribunal despite any other enactment.
Executive chair
10.2 (1) The Lieutenant Governor in Council may, after a merit-based process, appoint an executive chair to be
responsible for the effective management and operation of all of the tribunals in a cluster.
(2) The executive chair has all the powers, duties and immunities of the chair of each tribunal in the cluster under an
enactment.
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(3) To the extent necessary to give effect to subsection (2), and subject to this Part, if a tribunal is in a cluster, any
reference to the chair of the tribunal in an enactment is deemed to be a reference to the executive chair of the cluster.
(4) The executive chair holds office for an initial term of 3 to 5 years.
(5) The executive chair may be reappointed by the Lieutenant Governor in Council, after a merit-based process, for
additional terms of up to 5 years.
(6) The executive chair must have all the qualifications required of a chair of any tribunal in the cluster under any
enactment.
(7) The executive chair is a member of each of the tribunals in the cluster for which he or she is responsible.
Tribunal chairs
10.3 (1) Subject to section 10.6 [transition], the appointing authority may, after a merit-based process, appoint a
tribunal chair for a tribunal in the cluster under the direction of the executive chair of that cluster.
(2) The term of appointment of a tribunal chair is the same as the term of appointment of the chair of the tribunal under
the tribunal's enabling Act.
(3) A tribunal chair may be reappointed, after a merit-based process, on the same basis as the chair of the tribunal under
the tribunal's enabling Act.
(4) The executive chair may delegate to a tribunal chair a power or duty of the chair of the tribunal under an enactment,
including a power under the enactment to delegate a power or duty to another person.
(5) The tribunal chair has all the immunities of the chair of the tribunal under an enactment.
(6) The appointing authority may appoint the executive chair of a cluster to also be the tribunal chair of a tribunal in the
cluster.
(7) The tribunal chair is a member of the tribunal for which he or she is appointed.
Alternate executive chair
10.4 (1) The Lieutenant Governor in Council may designate a member of a tribunal in a cluster, other than the
executive chair of the cluster, as an alternate executive chair.
(2) If the executive chair of a cluster is absent or incapacitated, the alternate executive chair has all the powers and
immunities and may perform all the duties of the executive chair.
Validity of tribunal acts
10.5 An act of a tribunal is not invalid because of a defect that is afterwards discovered in the appointment of an
executive chair or tribunal chair.
Transition
10.6 (1) On the designation of a tribunal as part of a cluster under section 10.1 (1) or (2) (b) [designating clusters], the
individual appointed as chair under the tribunal's enabling Act is no longer appointed under the tribunal's enabling Act
and is deemed to be appointed as tribunal chair under section 10.3 [tribunal chairs].
(2) The term of the deemed appointment as tribunal chair under subsection (1) ends on the date the individual's
appointment under the tribunal's enabling Act would have ended if the tribunal had not been designated as part of a
cluster.
(3) On a tribunal in a cluster ceasing to be in any cluster, the individual appointed as tribunal chair is deemed to be the
chair under the tribunal's enabling Act for the remainder of the term of his or her appointment as tribunal chair.
(4) On an individual appointed as tribunal chair being appointed as executive chair of a cluster, the individual remains
the tribunal chair until his or her appointment as tribunal chair expires or is terminated.
(5) This section applies despite any other provision in this Part.

Institutional decision making

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Tribunal practices that challenge Judicial model

Examples:
• Consultation amongst decision-makers beyond the panel on the given case (e.g., full board meetings)
– Consolidated Bathurst
• Agency guidelines (policy-making, soft law)
– Helpful in filling in statutory gaps, developing policy, but…
– Might they pre-decide the case? Improperly “fetter” discretion of decision-maker re procedure or
substance?
• Thamotharem
• Also, Test case (Geza)
 147

 Consider the number of situations where lawyer’s traditional notions of procedural fairness seem to be at odds
with the ability of some administrative agencies to efficiently deliver consistent and high quality decisions
 The difficulties of adhering to an essentially judicial model of procedure are particularly acute for agencies that
decide thousands or even hundreds of thousands of claims each year
 The Paradigm of the legal concept of procedural fairness was developed in the context of the judicial decision
making processIn which judges decide cases personally
o Some decisions of administrative agencies are made in the same personal way (aka an identified
individual official, or small group of officials, makes a decision and take responsibility for it
o However, other decisions are the product of INSTITUTIONS and institutional processes, and they can
usefully be described as INSTITUITONAL DECISIONS
 Two Dominant Themes:
1. The sheer volume of the decisions to be made may demand a larger staff and some arrangement for
dispersal of authority, specialization and control
2. The range and complexity of the issues may make it impossible for any individual or small group of
individuals to have the time, expertise and perspective to make an intelligent decision
 Institutional decision making has many potential advantages
o It can facilitate the process of a large volume of cases, the creation of internal checks and balances, the
development of specialization on the part of the members and stuff, and the provision of a forum for
sharing of expertise, opinions and perspectives
 Disadvantages of institutional decision making
o Bring dangers common to bureaucracies, anonymous of faceless decision making, loss of personal
responsibility on the part of individual decision makers, and a diminution in concern for the particular
merits of individual cases
 There is no discrete legal doctrine about institutional decision making, although some aspects of the duty of
fairness have proved particularly relevant: the rule restricting the delegation of legal powers and duties, the
principles that only those who heard the evidence and argument may participate in making the decision, the duty
of disclosure, and the impartiality and independence of the decision-maker

DELEGATION
 When a statute confers a power on a designated official or group of officials, the Latin maxim delegatus non
potest delegare (the delegate it not able to delegate) comes into play
 Sometimes either as part of the empowering statute or other more general legislation (for example statutory
interpretation legislation) it will be clear that the maxim has not purchase; the legislatures selected decision-maker
or delegate will be authorized specifically to delegate his ot her powers to subordinate officials or others
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 There is also an operating common law presumption that ministers of the crown are entitled to act through
officials in their department

Vine v National Dock Labour Board, 1957 HL

FACTS: the national dock labour board was responsible for allocating dock labourers to stevedoring companies, and
had express power to delegate its functions to local dock labour boards. V was assigned to work but did not report, the
company complained and a discipline committee of the local labour board ordered V discharged. V brought an action
for damages from wrongful dismissal and for a declaration that the action of the discipline committee was void because
the local board had not power to delegate its disciplinary powers. He succeeded at trial and before the CA on the
delegation issues, it went to the House of Lords.
ISSUE: Can the board delegate its disciplinary power?
HOLDING
 This power to discipline here cannot be delegated by the board
REASONING
 In deciding if a person has the power to delegate one has to consider the nature of the duty and character of the
person
 Judicial authority normally cannot be delegated
 There are many administrative duties that cannot be delegated
 The disciplinary powers, where judicial or not cannot be delegated
 The non entitlement of pay, the suspension, the notice of dismissal must be a step take by the board not the
delegate
 The penalties in some cases may by slight but in others very great (impact on the individual?)
 The constitution of the board supports this conclusion
 It is necessary to consider the importance of the duty which is delegated and the people who delegate
 In this case, the duty is to consider if a man will be outlawed from the occupation of a lifetime
 This duty is placed on the board

DECIDING WITHOUT HEARING

 An aspect of the duty of fairness that we have not seen so part is the general principles that only those members of
an agency who hear a particular case may decide it
 The rationale of this requirement is that the person who is denied an adequate opportunity to influence the
decision if unable to address directly those who make or participate in making it
o A simple illustration is that it will normally be a breach of the duty of fairness for a member of a hearing
panel who is unable to attend for part of the hearing to subsequently resume sitting and participate in
making the decisionthe decision much be made by the member who heard all of the evidence and
argument, provided of course that hey constitute a quorum (if they do not the proceedings must be
abandoned and started over)

Delegating the Duty to Hear Cases

Local Government Board v Arlidge, 1914 HL

FACTS: The Housing and Town Planning Act gave the council the authority to make orders closing down dwelling
houses that were unfit for habitation, and to terminate such orders if the council was satisfied that changes were made.
The owners were given a right of appeal to the Local Government Board, the board was given the power to determine
its own procedure for these appeals (provided it did not dismiss any appeals without holding a public local inquiry).
The council made a closing order against a house owned by A. The board appointed an inspector who held a public
inquiry and made a report, A made an application to present his case before the actual decision make in the board and
was refused. A then under took repairs and applied to have the closing order terminated, the application was refused
and A appealed again to the board.
DECISION
 The minister at the head of the board is directly responsible to Parliament
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 The volume of work entrusted to him is very great and he cannot do that great bulk of it himselfhe is
expected to obtain his material vicariously though his officials and he has discharged his duty if he sees that
they obtain these materials for him properly
 To try to extend his duty beyond that and to insist that he and other members of the board should do everything
personally would be to impair his efficiency
 Unlike a judge in a court he is not only at liberty but is compelled to rely on the assistance of his staff
 NOTE: the reasoning in this case must be understood within its wider doctrinal contextthe reluctance of the
courts to apply the non-delegation principle to the exercise by civil servants of statutory powers conferred on
their minster [In Canadawhile our courts do not require powers to be delegated expressly by the minister to
the civil servants in the department, they continue to find that some decision exceptionally require the
minister’s personal decision]

Jeffs v New Zealand Dairy Production and Marketing Board, 1967

FACTS: The board had a general power to govern the production and marketing of milk, including the power to
establish zones for exclusive supply arrangements. When an informal agreement between two dairy producers
regarding the supply of whole milk from local producers was due to expire, the board resolved that a zoning committee
consisting of three members of the board should be set up to investigate the question of supply and report back to the
board. The committee decided to proceeds with a public hearing of zoning applications that had previously been made
to the board. Following a two day hearing, at which the committee heard witnesses and received written evidence the
committee prepared a written report to the bard setting out its recommendations on zoning between the two producers.
The board accepted the recommendations without alternation and passes resolutions to give effect to them.
DECISION
 The appellants contend that the board had improperly delegated its judicial test of hearing evidence and
submissions to the committee; and its duty to consider al the evidence, notes and submissions relative to the
zoning application and it should not have relied on the report of the committee and so it have failed to comply
with the requirements of natural justice
 The board did not delegate to the committee the duty of deciding zoning applicationsthe committee was
appointed by the board to investigate the question of supply between the two companies and to report back to
the board
 It did not expressly authorize to hold a public hearing it appears to have done so on its own initiative when
there was lack of sufficient support for amalgamation
 The only material the board had before it when reaching its decision was the report of the committeein
discharging of its duty to act judicially it was the boards duty to hear interested parties
 In this case the board did not hear the persons interested orally nor did it see their written statements
 Its members, other than the members of the committee, where not informed of the evidence given
 On the facts of this case it does not appear that the board asked the committee to hold the public hearing or
delegated to the committee any part of its duties
 Whether the board heard the interested parties orally or reviewed written submissions is a matter of procedure
 In some circumstances, it may suffice for the board to have before it and to consider an accurate summary of
the relevant evidence and submissions if the summary adequately discloses the evidence and submissions to the
boardUnfortunately no such procedures were followed in this case
 The committees report did not state what the evidence was and the board reached its decision without
consideration of and in ignorance of the evidence
 The board thus failed to hear the interested parties as it was under an obligation to do in order to discharged its
duty to act judicially in the determination of zoning applications

Consultation Among Agency Members [Full Board Meetings]

 The question is whether, and is so to what extent, the duty of fairness precludes members of an agency panel who
heard a case from discussing it with other members of the agency, most commonly after the hearing has ended but
before they have rendered their decision, but also before and during the hearing.
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International Woodworkers of American Local 2-69 v Consolidated-Bathurst Packaging ltd., 1983

• What was the Labour Board’s practice in issue?
– Parameters of the practice?
• What were the problems for the breach of the duty of fairness?
• What was the nature of the decision at stake?
– Law vs. Policy vs. Fact
– Sopinka vs Gonthier – who was more functionalist who was more formalist?
Protecting “impartiality” of decision-maker:
• Consultation cannot be imposed by superior authority within the agency; can only be requested by decision-
makers themselves
• Consultation has to be limited to questions of law or policy; no reassessment of evidence by people who did not
hear it. (also protects hearing rights)
• Decision-makers must remain free to make final decision
Protecting hearing rights:
• Parties should be given a chance to address any new points of policy or law that come up in the course of
institutional consultations.
Implications?
• Should tribunals publish their decision-making processes? Do they have to?

International Woodworkers of American Local 2-69 v Consolidated-Bathurst Packaging ltd., 1983

FACTS: The Union made an application to the Ontario Labour Relations Board (OLRB) for a determination that the
employer had failed to bargain in good faith, and raised a issue about the extent of the employers duty to disclose its
business affairs during negotiations for a collective agreement (in particular when there were plans to close on of their
plants). Previously, the board had developed a test that imposed a duty of disclosure on the employer when it had taken
a hard decision to close a plant prior to the bargaining process.
Three members of the board held a hearing and in the course of that hearing both the employer and union argued that
the current test should be changed. After the hearing, these members discussed the case with other members of the
board at a “full board” meeting and then gave a decision upholding the existing test, but in favour of the unions
application of the facts. The employer requested the board reconsider this decision and argued that if any evidence
given at the hearing was discussed with other members or if any opinions of other members were considered the
decision had been improperly made.
DECISION
 To perform its job effectively the board needs all the insight it can muster to evaluate the practical
consequences of its decisions, for it lacks the capacity to ascertain by research and investigation just what
impact its decisions have on labour relations and the economy generally
 The meeting impugned by the respondent must be seen as only part of the internal administrative arrangements
of the board which have evolved to achieve a maximum regulatory effectives in a labour relations setting
 In the absence of a formalized full board meeting, board members and vice-chairmen would be driver to
discuss their cases with each other informally in order the better appreciate the issues involved and to develop a
level of understanding and insight consistent with the large measure of deference the labour relations system
needs to be paid to render its decisions.
 The full board meeting here institutionalizes these discussions the full board meetings are merely reflective
of the institutional setting in which these individual decisions are made
 The respondent’s submissions is really attempting to probe the mental processes of the panel which rendered
the decision in question and in doing so ignores the inherent natures of judicial decision-making and
administrative law making

IWA v Consolidated-Bathurst Packaging Ltd, 1990 SCC

FACTS: Appeal from above (?). Additional facts: Full board consists of 48 members (but it doesn’t seem like everyone
was at the meeting in question), no evidence was introduced at this full board meeting (but it is not clear from the
record what was discussed), there is no evidence that the procedures in that meeting departed from the norm (aka
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discussion is limited to policy implications of a draft decision), no vote or consensus is taken, no minuets are kept, no
attendance is recorded.
ISSUE: Have the rules of natural justice been violated? [he who decided must hear and the right to know the case to be
met?
HOLDING
 The consultation process adopted by the board formally recognizes the disadvantages inherent in full board
meetingsthe safeguards attached to this consultation process are sufficient to allay and fear of violation of the
rules of natural justice provided as well that parties be advised of any new evidence or grounds and given an
opportunity to respond.
REASONING [Majority: Gonthier etc.]
 Things the court notes:
o The chairman says the purpose of the full board meeting is not to achieve absolute uniformity in
decisions
o The methods used at those meeting to discuss policy reflect the need to maintain an atmosphere where
each member has the freedom to make up their own mind
o Discussions at the full board meetings at limited to policy issues (the facts are taken as presented and
no votes are taken)
o There is no evidence that this meeting was used to impose any given opinion upon the members of the
panel
 Introduction
o The appellant argues that the practice of holding full board meetings on policy issues constitutes a
breach of a rule of natural justice appropriately referred to as “he who decided must hear”
o The appellants position is that the panel member must be totally shielded from any discussion which
may cause them to change their mind even if this change of opinion is honest, because the possibility of
undue pressure by another board member is too ominous to be compatible with principles of natural
justice
o The appellants argument raises issues with two important distinct rules of natural justice:
1. The an adjudicator be disinterested and unbiased
2. That the parties be give adequate notice and an opportunity to be heard
o While the appellant does npt claim that the panel was biased, it does claim the full board meeting may
prevent the panel from deciding the topic of discussion freely and independently from the opinions
voiced at the meeting
o The respondent union argues that the practice of holding a full board meeting on important policy
issues is justified
o Note the different between a full board meeting and full board hearing
 Full board hearing is simply a normal hearing where representations are made by both parties
in from of an enlarged panel comprised of all members of the board
 A full board meeting does not entail representations by the parties since they are not invited or
notified about the meeting
o The court agrees with the respondent union that rules of natural justice must take into account the
institutional constraints faced by an administrative tribunalthese tribunals are created to increase
efficiency of the administration of justice and are often called upon to handle heavy caseloads, it would
be unrealistic to expect an administrative tribunal such as the board to abide strictly by the rules
applicable to court of law
o The main issuewhether given the important of the policy issue at stake in this case and the necessity
of maintaining a high degree of quality and coherence in board decisions, the rules of natural justice
allow a full board meeting to take place subject to the conditions outlined by the court of appeal, and if
not whether a procedure which allows the parties to be present such as a full board hearing is the only
acceptable alternative?
 The Consequences of the Institutional Constraints Faced by the Board
o The Labour Relations Act has entrusted the board with the responsibility of fostering harmonious
labour relations through collective bargaining
o The board has been granted the powers thought necessary to achieve this task, not the least of which is
the power to decide in a final and conclusive manner all matters which fall within its jurisdiction
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oIt is apparent from the size of the boards caseload and from the number of persons which would sit on
such an enlarged panel that holding full board hearings is a highly impractical way of soling important
policy issues
o Rationales for holding full board meetings on important policy issues:
 The importance of benefiting from the acquired experience of all the members (the rules of
natural justice should not discourage administrative bodies from taking advantage of the
accumulated experience of its members)
 The fact that the large number of persons who participate in Board decisions creates the
possibility that different panels will decide similar issues in a different manner (it is obvious
that the administrative decision making must be fostered to be coherentthus the board is
justified in taking measures to ensure conflicting results are not inadvertently reached in
similar cases)
o Note that full board meetings do have some imperfectionsespecially with respect to the opportunity
to be heard and the judicial independence of the decision maker
o BUTwe must ask whether these disadvantages are sufficiently important to warrant holding that it
constitutes a breach of the rules of natural justice, or whether full board meetings are consistent with
these rules provides that certain safeguards are observed?
 The Judicial Independence of Panel Members in the Context of Full Board Meetings
o The appellant argues that persons who did not hear the evidence or the submission of the parties should
not be in a position to influence those who will intimately participate in the decision
o As a general rules, the members of a panel who actually participate in the decision must have heard all
the evidence as well as all the arguments presented by the parties
o The court is unable to agree with the proposition that ANY discussion with a person who has not heard
the evidence necessarily violates the resulting decision because this discussion might influence the
decision maker
o The appellants main argument against the practice of holing full board meetings is that these meetings
can be used to fetter the independence of the panel members (aka violate the long standing principle of
judicial independence)
o It is obvious that no outside interference may be used to compel or pressure a decision maker to
participate in discussions on policy issues raised by a case on which he must render a decision
o Nevertheless, discussions with colleagues do not constitute , in and of themselves, infringements on the
panel members capacity to decide the issues at stake independently
o A discussion does not prevent a decision maker from adjudicating in accordance with his own
conscience and opinions nor does it constitute an obstacle of this freedomThe ultimate decision will
be that of the decision maker
o The relevant issue in this case is not whether the practice of holding full board meetings can cause
panel members to change their minds, but whether this practice impinges on the ability of the panel
members to decide according to their opinions
o The danger that full board meetings may fetter the judicial independence of panel members is not
sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the
meaning of the test stated by this court
o A full board meeting set up in accordance with the procedures described by the Chairman is not
imposed, it is called at the request of the hearing panel or any of its members, it is carefully designed to
foster discussion without trying to verify whether a consensus has been reached, no minuets are kept,
no votes taken, attendance is voluntary and attendance is not taken, the decision is left entirely to the
hearing panel
o On the other hand, it is trust that a consensus can be measured without a vote and this
institutionalization of the consultation process carries with it a potential for greater influence on the
panel membershowever the criteria for independence is not absence of influence but rather the
freedom to decide according to ones own conscience
o The boards practice of holding full board meetings or the full board meeting held on the day in
question would NOT be perceived by an informed person viewing the matter realistically and
practically-and having thought the matter through-as having breached his right to a decision reached by
an independent tribunal thereby infringing this principle of natural justice
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 Full Board Meetings and the Audi Alteram Partem Rule

o Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of
the audi alteram partem rule because the parties are not aware of what is said at those meetings
o In addition there is always the danger that the persons present at the meeting will discuss the evidence
o For the purposes of this application of the audi alterman partem rule, a distinction must be drawn
between discussions on factual matters and discussions on legal or policy issues
o The determination and assessment of facts are delicate tasks which turn on the credibility of the
witnesses and an overall evaluation of the relevancy of all the information presented as evidenceas a
general rule these tasks cannot be properly performed by persons who have not heard all the evidence
and the rules of natural justice do not allow such persons to vote on the results
o The appellant does not claim that new evidence was adduced at the meting and the record does not
show it was
o The defined practice of the board at the full board meeting is to discuss policy issues on the basis of the
facts as they were determined by the panel
o In this case, the record contains no evidence that factual issues were discussed by the board
o It is possible to discuss the policy issues arising from the body of evidence filed before the panel even
though this evidence may give rise to a wide variety of factual conclusions
o It is possible to outline the various tests which would be adopted by the panel and to discuss their
appropriateness from a policy point of view these discussions can be segregated from the factual
decisions which will determine the outcome once the test is adopted
o Policy issues must be approached in a different manner because they have an impact that goes beyond
the resolution of the dispute between the parties
o It is not necessary to consider the conditions under which full board meetings must be held in order to
abide by the audi alterman partem rule
 In this respect the only possible breach of this rule arises when a new policy or new argument
is proposed at a full board meeting and a decision is rendered on the basis of this policy or
argument without giving the parties an opportunity to respond
 Parties must be informed of any new groups on which they have not made any
representationsin such cases they must be given a reasonable opportunity to respond
 But in this case there was no new policy introduced or applied
o Since its earliest development, the essence of the audi alteram partem rule has been given parties the
fair opportunity of answering the case against themit is true that his must be given on factual matters
BUT with respect to legal or policy arguments no raising issues of fact this is somewhat more lenient
o The consultation process by the chairman in reconsidering decision does not violate his rule provided
that factual issue are not discussed at the full board meeting and that parties are given a reasonable
opportunity to respond to any new grounds arising from such a meeting
o On the facts, there is no evidence that anything new was put forth, thus the appellant has failed to prove
the rule was violated here
 Conclusions
o The advantaged of an institutionalized consultation process are obvious, and the court does not agree
that this practice necessarily violates the rules of natural justicethese rules of natural justice must
have a flexibility required to take into account institutional pressures faced by modern administrative
tribunals as well as the risks inherent in such a practice
o The consultation process adopted by the board formally recognizes the disadvantages inherent in full
board meetingsthe safeguards attached to this consultation process are sufficient to allay and fear of
violation of the rules of natural justice provided as well that parties be advised of any new evidence or
grounds and given an opportunity to respond.
CLASS NOTES
 This is a pretty big board
 The policy issues herethe issue of disclosure [when it has to happen]
o In the middle of collective bargaining when employer may be shutting down a plant, when and if does
the employer have to disclose this in the course of bargainingthere was a policy but both the
employer and union wanted this changed (probably each in their favour)
o This might be called a mixed fact and law
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o Here you might just call this a ruleit can be described in a way that is divorced from the facts of the
case
o Why don’t they just call it a law/rule as opposed to calling it policy? because stare decisis does not
apply [the obligation by the statute is that they decide each case, anything else is not what the statute
requires]
 This means the board is not bound by previous decisions
 BUT decisions of the SCC about the content of procedural fairness would be binding
 Functionally if this was a court you wouldn’t think twice about calling this a rule of law
 There is a lot of discussion about he nature of tribunal decision making [aka what is different about the
administrative law world than the court]
 Sopinka did not agree
o He characterizes this thing has an inescapable factual element in itit in anchored in fact
o He is saying that what the board is deciding is factual
o Gontier in response to this says in the practice of the full board meeting there is sufficient protection
(they are not talking about the facts)
 This case is important for how much scope of SCC allows for these full board meetings-think about this as
opposed to what judges might do (aka discuss things with other judges)
 The consultation can’t be imposed, they don’t take notes, the panel is the decision maker (there are all of these
well thought out procedures)
 At the end of the day we can to trust that they wont talk about the facts of the case, and that there wont be some
undue influence
 Protecting the hearing rightsif something new comes up then the parties should be given a chance to address
any new points that came up in the course of institutional consultation [Institutional consultationwhat is
going on here with the full board meetings]
 This case implied that we should know when there is a full board meeting (but on the facts there and in reality
often lawyers for parties will find out about these board meetings by chance)

Agency Guidelines
 Some administrative agencies make extensive use of guidelines on the interpretation of their enabling legislation
and the exercise of their statutory discretion
 Guidelines can provide valuable assistance to agency members sitting on a panel that will hear and decide a
particular case
 They can be an effective way of maximizing coherence of the agency decisions and of transmitting to individual
members the benefit of the agency’s collective experience with and thought about he subject matter of the
guidelines
 Guidelines are proactive and can be used to formulate a general and comprehensive approach to a problem
without being confined by the facts of a particular dispute
 They should be published and made available to those appearing before the agency
 Immigration Refugee Board
o IRB chair released Guideline 7”concerning preparation and conduct of a hearing in the refugee
protection division” The most controversial aspect of the guidelines was its directions regarding the
property order of questioning at the hearing
o Traditionally they had allowed claimants to be examined in chief by their counsel before being questioned
by the members of the RPO, but guidelines 7 reversed this order of questioning. Only in exceptional
circumstances would this vary. The validity of this guideline was challenged here.

Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FC

• Procedural guideline (Guideline 7) issued to promote efficiency & consistency in refugee claim processing
• Why is the order of questioning important?
– How does it introduce an RAB? How might it breach PF?
• What is the status of the guideline? Can common law duty of fairness “trump” the guideline?
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• What about guidelines as a source of a legitimate expectation? If a LE, aren’t guidelines then a fetter on discretion
too??
Thamotharem v Canada (Minister of Citizenship and Immigration), 2007 FC
FACTS: This case concerns the Immigration Refugee Board guidelines. IRB chair released Guideline 7”concerning
preparation and conduct of a hearing in the refugee protection division” The most controversial aspect of the guidelines
was its directions regarding the property order of questioning at the hearing Traditionally they had allowed claimants to
be examined in chief by their counsel before being questioned by the members of the RPO, but guidelines 7 reversed
this order of questioning. Only in exceptional circumstances would this vary. The validity of this guideline was
challenged here.
ISSUE: Is the Guideline authorized?
HOLDING
 Guideline 7 is valid but the fact that the guideline is intended to established how discretion will normally be
exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the
decision maker may deviate from the normal practice in life of particular facts
 In addition, the fact that the board may monitor when an adjudicator says a situation is exception does not
establish that a reasonable person would think their independence was unduly constrained by guideline 7
REASONING
 Rules, Discretion and Fettering
o Legislative instruments (including ‘soft law’ guidelines etc) can assist a member of the public to
predict how an agency is likely to exercise its statutory discretion and to arrange their affairs
accordingly, and enables an agency to deal with a problem comprehensively and proactively, rather
than incrementally and reactively on a case by case basis
o Because ‘soft law’ instruments may be put in place relatively easily and adjusted in light on day to day
experience, they may be preferable to formal rules requiring external approach and, possibly drafting
appropriate for legislation
o The use of guidelines and other soft law techniques to achieve an acceptable level of consistency is
administrative decisions is particularly important for tribunals exercising discretion, whether on
procedural, evidential or substantive issues, n the performance of adjudicative functions
o It is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts,
strive to ensure that similar cases receive the same treatment
o Nonetheless, while agencies may issue guidelines or policy statements to structure the exercise of
statutory discretion in order to enhance consistency, administrative decision-makers may not apply
them as it they were law
o Thus a decision made solely by reference to the mandatory prescribed guidelines may be set aside on
the grounds that the decision makers exercise of discretion was unlawfully fettered
o This level of compliance can only be achieved through the exercise of statutory power to make “hard
law”
 Guideline 7 and the Fettering of Discretion
o The guidelines do not have the same legally binding effect as statutory rules
o Question: Whether in the language and effect Guideline 7 unduly fetters RPD members discretion to
determine for themselves case-by-case the order of questioning [Language will be a the more important
consideration here]
o Since the language of the guideline expressly permits members to depart from the standard order of
questioning in exceptional circumstances, the court should be slow to conclude that members will
regard themselves as bound to follow the standard order, in the absence of clear evidence to the
contrary, such as that members have routinely refused to consider whether the facts of a particular case
requires an exception to be made
o The Board’s Policy on the Use of Chairperson’s Guidelines states that guidelines are not legally
binding on members
o The intro to guideline section says “the guidelines apply to most cases”however in compelling or
exceptional circumstances the members will use their discretion to not apply some guidelines or apply
them less strictly
o Claimants who believe that exception circumstances exist in their case must apply to the RPD before
the start of the hearing
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o The language of section 7 is more than “a recommended by optional process”but the fact that the
guideline is intended to established how discretion will normally be exercised is not enough to make it
an unlawful fetter, as long as it does not preclude the possibility that the decision maker may deviate
from the normal practice in life of particular facts
o The fact that some members may erroneously believe that Guideline 7 removes their discretion to
depart from the standard practice does not warrant invalidating itin such cases the appropriate
remedy for unsuccessful claimants is to seek JR to have the RPD’s decision set aside
o In short, those challenging the validity of guideline 7 did not produce evidence establishing on a
balance of probabilities that members rigidly apply the standard order of questioning without regard to
the appropriateness in particular circumstances
o The arrangements made for discussions within an agency with members who have heard a case bust
not be so coercive to raise a reasonable apprehension that the members ability to decide cases free from
improper constraints has been undermined
o Evidence that the Immigration and Refugee’s Board “monitor” members deviations from the standard
order of questioning does not create the kind of coercive environment which would make guideline 7
an improper fetter on members exercise of their decision making powers
o There was not evidence that any members have been threatened with a sanction for non-compliance
and given the boards legitimate interest in promoting consistency it is not sinister that he board
attempts to monitor the frequency of member’s compliance with the standard practice
o Note is it an infringement on the members independence that they are expected to explain in their
reasons why a case is exceptional and warrants departure from the regular standard
o The evidence here does not establish that a reasonable person would think the RVD member’s
independence was unduly constrained by guideline 7
o Adjudicative independence is not an all or nothing thing, but a question of degree
o The independence of members of administrative agencies must be balanced against the interests of the
agency in the quality and consistency of decisions, from which there are normally only limited rights of
access to the courts, rendered by an individual member in the agency’s name
CLASS NOTES
 Why do we care about the ordering of questions?
 Tactical advantaged-they party who questions firsts gets to frame the issues
 For efficiency-it might be better to have the opposing party lead because they will just right to the main
issues (aka cut to the chase)
 Refugee claimants are people from other countries-they may have had a negative interaction with law
enforcement etc in the past so to start off being questioned by those people may be challenging for
them
 Ultimately the refugee is allowed to apply to vary the order (the outcome may have been different if this didn’t
happen)
 This is a common law challenge to a guideline
 The guideline is soft law not law, so you can challenge the guideline using the common law
 Note-if it was a rule/statutory then you cant challenge a guideline with the common law (because it sits
higher)
 What about the argument that he guideline is a legitimate expectation?
 The claimant would argue that there is not clear and unambiguous language about the exception (not
clear on when an exception would be granted etc)
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SUBSTANTIVE REVIEW
HOW IS THIS DIFFERENT THAN PRODECURAL FARINESS?
 This is about the MERITS OF THE DECSION
 Procedural fairness is about how the decisions was made (hearing rights, bias etc)
 BUT the problem is a lot of cases will really fall under both (example: Baker)

IntroductionSUBSTANTIVE REVIEW
What is the standard of review analysis about?
"The standard of review doctrine … raises a deceptively simple question - on what grounds may a court interfere
with the [merits of a] decision of an administrative body? The answer to this question must start first from the principled
position that no administrative act may fall absolutely outside the purview of judicial interference or there would be no
mechanism by which to ensure the rule of law is respected by the executive, and second, from the practical proposition
that courts do not have the institutional competence, capacity or legitimacy to intervene in any administrative setting as
they wish. The standard of review, thus, represents the search for a constructive relationship between courts and
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administrative decision-makers which reflects respect for the rule of law, Parliamentary supremacy, judicial
capacity, administrative expertise and the complex decision-making environments of the modern state."

 For over 75 years there has been serious issues about the scope of JR on substantive grounds
 Historically, JR Of the substance of statutory decision-making was very confinedpretty much just checking for
statutory authority
o When operating within their jurisdiction or home territory, statutory authorities were left pretty much
alone provided they did not act in bad faith or for purposes not contemplated by the empowering Act
o For a while there was a claim of an entitlement to JR for all errors of law, at least in the case of
adjudicative bodies that kept formal record of their proceedingsthis lapsed for a considerable time in
the face of various legislative devices aimed at squelching this challenge to the autonomy of specialist
bodies
 Privative clauses (provision intended to limit the scope of JR of tribunals) were one such device
o Beyond that, JR of a tribunals finding of fact was extremely rareit was confined to situations where
there was absolutely no evidence to support the tribunals conclusion
o This model didn’t really require deference because all the judges are doing is establishing the boundary of
the tribunals
 Canadian courts developed a much less tolerant attitude in response to increasing governing intervention and new
social programs
o While they still showed great deference to cabinet prerogatives and ministerial decision-making, they
were far less hospitable to the new role of many administrative tribunals
o This was especially so in the courts response to those charged with administering the new regime of
labour relations based on collective bargaining instead of traditional employment law and on
administrative substituted for the restrictive tort law that had applied to workplace injuries
o Privative clauses were interpreted in a very restricted fashion to limit their effect of judicial power
o The concept of judicial error was distorted and expanded to such and extend as to subject almost any
determination of law that a statutory decision maker might make to full correctness review
o Also, frequently courts have a “right” on their said that the legislature in may instances conferred a right
of appeal to the courts from tribunals or other statutory authority the presence of such a right invited
intrusive judicial scrutiny of legal determination but also where the terms of the right of appeal were
sufficiently broad, of the decision by the relevant decision maker
 “Modern Approach”
o The modern approach the SCC has to administrative decision makers is an approach that is more
respectful of the relative strengths of tribunals and other non-judicial actors and of the legislative
intentions regarding their expanded role
o Reviewing courts were instructed by the SCC to assess their engagement with the administrative process
from a ‘pragmatic and functional perspective’this required respect for the legislatures choice as to
while decision maker should be the primary vehicle for carrying out a statutory mandate
o The outcome of this pragmatic and functional approach is that he courts arrive at a “standard of review”
to determine the intensity with which they review an administrative decision
o This approach to substantive review was reaffirmed and renovated in Dunsmuir
 The pragmatic and function approach applied in the past by the courts to determine the
appropriate level of deference to an administrative actor was renamed the “standard of review
analysis”
 All of the factors in the analysis remained, although the role of each factor was clarified and
recalibrated
 The possible standards of review was narrowed from three to two [(1) an intrusive correctness
standard and (2) a deferential reasonableness standard]
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 Dunsmuir clarified that where existing jurisprudence determine in a “satisfactory manner” the
applicable standard of review, it should be applied without further consideration of carious factors
in the standard of review analysis
 In the absence of such guidance from the past, Dunsmuir clarified also that it was sometimes
unnecessary for the court to review all of the factors that he standard of review may be
determined based, for example on the nature of the question at stake
 Perhaps more importantly while Dunsmuir simplified the process to decide the appropriate
standard of review, it has created perplexing questions about how a court should apply the newly
unified deferential standard of reasonableness

Standard of Review Analysis

Introduction-The Standard of Review

 Focus-The standard of review that a court should apply in exercising its review powers over a statutory authority
charged with implementing the mandate of an administrative scheme created by statute
o Aka when a court is asked to review a determination of law, fact or mixed law and fact, or discretion by a
statutory decision maker, how should the court approach the task and what tests should it apply?
 The Framework of the Standard of Review Analysis incorporates the same factors that applied previously under
the pragmatic and functional approach:
1. The presence and terms of a privative clause or right of appeal in the statute
2. The nature of the question that is under review
3. The expertise of the decision maker, AND
4. The statutory purpose and context in which the decision making took place
 Dunsmuir did not radically alter the courts commitment to judicial deference for administrative decision-making,
yet it did change how that commitment was implemented by:
o By reducing the number of standards of review
 It went from 32
 The highly deferential “patent unreasonableness” standard did not disappear entirely, but it
survived only rarely where its usage is dictated by past decision or by an express statutory
provision
 The new standard of reasonableness is not necessarily the same as the old standard of
reasonableness simplicitor and conveys and adaptable approach to deference in different
circumstances
 The standard of correctness has retained pretty much the same meaning
 STAGES IN SUBSTANTIVE REVIEW
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1. Determine the Appropriate Standard of Review

 Standard of Review established by precedence, OR
 Via Analysis of the factorsBuilt on the 4 factors from Dunsmuir
2. Apply that Standard in the Circumstances of the Case at hand to decide the
outcome of the Judicial Review
 Correctness OR
 Correctness applies to issues of procedural fairness, so we have
already seen this (this can get a little messy)
 Reasonableness

Premises of Reasonable Review

• That there is more than one possible interpretation of a statute/a law (or exercise of discretion) (e.g., CUPE v NB)
• The rule of law then does not require the decision-maker to be “correct” but rather to respect legislative intent to
make that decision-maker the final interpreter
• But the rule of law does require that the interpretation rest within the universe of “reasonable”
interpretations/exercises of discretion (e.g., Roncarelli, Baker….)

The StoryThree Approach to Substantive Review

Period 1 - Pre-CUPE (1979):
– Review for jurisdiction. No deference required.
– Correctness standard
Period 2 – CUPE (1979) to Dunsmuir (2008):
– Pragmatic & Functional approach to determine standard of review. Deference required.
– 2 standards (Correctness & Patent Unreasonableness: 1979-1997), and then 3 (Reasonableness simpliciter
added 1997-2008)
Period 3 -- Current, post-Dunsmuir (2008)
– Standard of review analysis. Deference required.
– 2 standards (Correctness & Reasonableness). The default rule is reasonableness applies.

Dunsmuir v New Brunswick, 2008 SCC

FACTS: D was a court official with the DOJ. He was both a provincial public servant and legally a statutory office holder
at pleasure. He was dismissed after being reprimanded on 3 occasions. The Government relied on s 20 of the Civil Servant
Act, saying this meant they could dismiss D simply by providing him with reasonable notice or salary in lieu of notice,
and they didn’t have to establish cause or give him a hearing. Bu section 100.1 of the Public Service Labour Relations Act
extended grievance rights to non-unionized employees such as D. Section 97(2.1) of the PSLRA provided that “where an
adjudicator determined that the employees has been discharged or otherwise disciplined FOR CAUSE…the adjudicator
may substitute such other penalty for the discharge or the discipline as to the adjudicator seems reasonable.” To avoid the
effect of this provision the Government said he was not suitable for the position, but D argued he was dismissed for cause
and that if the government actually didn’t have cause he was entitled to seek reinstatement.
A mutually agreed upon PSLRA adjudicator heard the case and concluded that an employer could not avoid an inquiry
into its real reasons for dismissing an employee by stating that cause was not alleged. He then held that on his view the
evidence the termination was not disciplinary but based on the appellants performance and suitability for the position,
based on the law from Knight D should have been informed of the reasons for this dissatisfaction and given an
opportunity to respond. He declared the termination void and ordered the D was reinstated.
ON JR [Queens Bench]applied the pragmatic and functional approach and concluded that the appropriate standard of
review was correctness and that the court need not show deference to the adjudicators interpretation of the PSLRA. They
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said the act was wrongly interpreted and thus the adjudicator lacked the jurisdiction to review the circumstances of D’s
dismissal.
Court of Appealsaid the appropriate standard of review was reasonableness simpliciter and that it was unreasonable
based on the relevant statutes, for the adjudicator not to accept the employers portrayal of the dismissal as not for cause.
ISSUE: What approach should be taken in the JR of a decision of administrative tribunals?
Notethe second issue about whether the appellant who was an office holder at pleasure had the right to procedural
fairness is not addressed here
HOLDING
 This case reconfigured the test for the appropriate standard of review
 The appropriate standard of review is reasonableness
REASONING
 Judicial Review
o JR is connected with the preservation of the rule of law
 Courts, while exercising their constitutional functions of JR must be sensitive not only to the need
to uphold the rule of law, but also to the necessity of avoiding undue interference with the
discharge of administrative functions in respect of the matters delegated to administrative bodies
by Parliament and legislatures
 By virtue of the rule of law principle, all exercises of public authority must find their source in
the lawall decision makers have legal limits, derived from the enabling statute itself, the
common law or the constitution
 The functions of JR is therefore to ensure the legality, reasonableness and the fairness of the
administrative process and its outcomes
 A decision maker may not exercise authority not specifically assigned to him or her, but acting in
the absence of legal authority the decision maker transgresses the principle of the rule of
lawthus when a reviewing court considers the scope of a decision making power or the
jurisdiction conferred by a statute, the standard of review analysis strives to determine what
authority was intended to be given to the body in relation to the subject matter
o In addition to the role JR plays in upholding the rule of law, it also performs an important constitutional
function in maintaining legislative supremacy
 Legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction
should be narrowing circumscribed and described according to the intent of the legislature in a
contextual and purposeful way
 Legislative supremacy is affirmed and the court-centric conception of the rule of law is retained
in by acknowledging that the courts do not have a monopoly on deciding all questions of law
o In essence the rule of law is maintained because the could have the last word on jurisdiction, and
legislative supremacy is assured because determining the applicable standard of review is accomplished
by establishing legislative intent
o The legislative branch of government cannot remove the judiciary’s power to review actions and
decisions of administrative bodies for compliance with constitutional capacities of the government
 Even a privative clause, which provides a strong indication of legislative intent cannot be
determinative in this respect
o The inherent power of the superior courts of review administrative action and ensure it does not exceed its
jurisdiction stems from the judicature provisions section 96-101 of the constitution
 In should JR is constitutionally guaranteed in Canada
o Despite the clear and stable constitutional foundations of the system of JR, the operation of JR in Canada
bas been in a constant state of evolution over the years, as the courts have attempted to devise approaches
to JR that are both theoretically sound and effective in practice
o The time has arrived to re-examine the Canadian approach to JR of administrative decision and develop a
principled framework that is more coherent and workable
 Reconsider the Standards of Judicial Review
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o
The current approach the JR involved three standards of review, which range from correctness (where no
deference is shown) to patent unreasonableness (which is more deferential to the decision maker) and the
standard of reasonableness simpliciter lying in the middle of the other two
o The court concludes that there ought to just be two standards of reviewcorrectness and reasonableness
 Two Standards of ReviewDetermining the Appropriate Standard of Review
o Where is needed is a test that offers guidance, is not formalistic or artificial and permits review where
justice requires it, but not otherwisea simpler test is needed
o Questions of fact, discretion and policy as well as questions where the legal issues cannot be easily
separated from the factual issues generally attract a standard of reasonableness while many legal issues
attract a standard of correctnesssome legal issues however will attract the more deferential standard of
reasonableness
o The existence of a privative clause or preclusive clause give rise to a strong indication of review pursuant
to the reasonableness standard
 This conclusion is appropriate because a privative clause if evidence of parliament or a
legislatures intent that an administrative decision maker be given greater deference and that
interference by reviewing courts be minimized
 This does not mean that the presence of a privative clause is determinative
o Guidance with regard to the question that will be review on a reasonableness standard can be found in the
existing case law
 Deference will usually result where a tribunal is interpreting its own statute or statutes closely
connected with its function which it will have particular familiarity [CBC v Canada]
 Deference may also be warranted where an administrative tribunal has developed a particular
expertise in the application of a general common law or civil law rules in relation to specific
statutory context [Toronto v CUPE]
 Adjudication in labour law remains a good example of the relevance of this approach
o A consideration of the following factors will lead to the conclusion that the decision maker should be
given deference and a reasonableness test applied:
 A privative clause: this is a statutory direction from parliament or a legislature indicating the need
for deference
 A discrete and special administrative regime in which the decision make has special expertise
(labour relations for example)
 A nature of the question of law: a question of law that is of “central importance to the legal
system and outside the specialized areas of expertise” of the administrative decision maker will
always attract a correctness standard. On the other hand, questions of law that does not rise to this
level may be compatible with the reasonableness standard where the two factors above indicate.
o If these factors considered together point to a standard of reasonableness, the decision makers decision
must be approached with deference in the sense of respect already discussed
o An exhaustive review is not required in every case to determine the proper standard of reviewexisting
jurisprudence may be helpful in identifying some of the question that generally fall to be determined
according to the correctness standard
 For example: correctness standard review has been found to apply to constitutional questions,
regarding the division of powers between parliament and the provinces in the Constitution Act
 Such questions, as well as other constitutional issues are necessarily subject to correctness review
because of the unique role of section 96 courts as interpreters of the constitution
o Administrative bodies must also be correct in their determination of true questions of jurisdiction or vires
 It is important here to take a robust view of jurisdiction
 Jurisdiction is intended in the narrow sense of whether the tribunal has the authority to make the
inquiry
 True jurisdiction questions arise where the tribunal must explicitly determine whether its statutory
grant of power gives it the authority to decide a particular mater
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 The tribunal must interpret the grant of authority correctly or its action will be found to be ulta
vires or to constitute a wrongful decline of jurisdiction
o Court must also continue to substitute their own view of the correct answer where the question at issue is
one of general law “that is both of central importance to the legal system as a whole, and outside the
adjudicators specialized area of expertise”because of their impact on the administration of justice as a
whole, such questions require uniform and consistent answers
o Questions regarding the jurisdictional lines between two or more compelling specialized tribunals have
also been subject to review on a correctness basis
o In summery, the process of JR involves two steps
1. Courts ascertain whether the jurisprudence has already determined a satisfactory manner the
degree of deference to be accorded with regard to a particular category of the question
2. Where there first inquiry proves fruitless, courts must proceeds to an analysis of the factors
making it possible to identify the proper standard of review [The analysis must be contextualit
is dependent on a number of relevant factors including:]
a) The presence or absence of a privative clause
b) The purpose of the tribunal as determined by interpretation of the enabling legislation
c) The nature of the question in issue
d) The expertise of the tribunal
**NOTE: in many cases it will not be necessary to consider all of the factors, as some of them
may be determinative in the application of the reasonableness standard in a specific case
 Application
o We must determine the standard of review applicable to the adjudicators interpretation of the PSLRA
o The specific question here is whether the combined effect of section 97(2.1) and s 100.1 of the PLSRA
permits the adjudicator to inquire into the employers reasons for dismissing an employee with notice or
pay in lieu of noticethis is a question of law
o The questionwhether is light of the privative clause, the regime under which the adjudicator acted, and
the nature of the question of law involved, a standard or correctness should apply
o The adjudicator was appointed and empowered under the PSLRA
 Under that statute is a full privative clause stating in no uncertain terms that “every order, award,
direction, decision, declaration or ruling of..an adjudicator is final and shall not be questioned or
reviewed by any court
 The inclusion of a full privative clause in the PSLRA gives rise to a strong indication that the
reasonableness standard of review will apply
o The Nature of the regime also favours a standard of reasonableness
 This court has often recognized the relative expertise of labour arbitrators in the interpretation of
collective agreements, the counselled that he review of their decision should be approached with
deference
 The adjudicator in this case was in fact interpreting the enabling statuteadjudicators acting
under the PSLRA can be presumed to hold relative expertise in the interpretation of the
legislation that gives them their mandate, as well as related legislation that hey might often
encounter in the course of their functions
 This factor also suggests a reasonableness standard of review
o The legislative purpose confirms this view of the regime
 The PSLRA established a time and cost effective method of resolving employment disputes
 The remedial nature of section 100.1 and its provisions for timely and binding settlements of
disputes also imply that a reasonableness review is appropriate
o The nature of the legal question at issue is not one that is of central importance to the legal system and
outside the specialized expertise of the adjudicator
 This also suggests the standard of reasonableness should apply
 The appropriate standard of review is reasonableness
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CLASS NOTES
 D was dismissed without cause, but he thinks there was some cause. He is a public employee and askes for an
adjudicator and the adjudicator reads the statute and says he can inquire into cause and concludes that D was
wrongfully dismissed
o If the dismissal was without cause then he is screwedhis contract meant he was an employee at pleasure
and can be dismissed without cause.
o The adjudicator takes it upon himself ot inquire into causethis is really the question that is going on
here (an interpretation issue)
 The court said the adjudicator was unreasonable
 But the court disagrees: they changed the law but couldn’t even agree on what they are doing (look into the
differences-they went in different directions)
o MajoritySays reasonableness applied, decision is unreasonable (because this is outside the parameters
of the adjudicator)
 The adjudicator has the authority to inquire into cause when cause is given as a reason for
dismissal but not when the employer says there is no cause
o Binnie (concurring)also applies reasonableness
o Deschampsapplied correctness
 This brings up the issue of having a wide range of administrative issues and how do we really have uniform
principles? [Theme]
 CorrectnessNo deference
o The administrative decision maker must be correct and what is correct is what the court determines is
correct
 ReasonablenessDeference
o This is the default standard of review
o Justification, transparency and intelligibility
o Must fall within the reasonableness of outcome here the adjudicator was not within the reasonable
range of outcomes when he made decisions on cause
 NOTEstatutes may preserve different standards of review this is important in BC where the ATA prescribed
“patent unreasonableness” as a standard of review in come cases
o What patent unreasonableness will mean will still be calibrated against when is happening in the common
law
o The ATA attempts to define what patent unreasonableness means, and there are some court
interpretations
 The STANDARD OF REVIEW POST DUNSMUIR
o Default-reasonableness
o Categories are also given where correctness will be applies
 What do these categories have in question? They all go back to the foundation/core ideas about
the rule of law [recognize this in the exceptions carved out in Dunsmuir]
 These examples push the lineyou try to argue into these categories to rebut that the default
position of reasonableness applies
o We are left with a two step process
o Look to jurisprudencebut if it is a pre-2008 decision it should probably be revisited because
Dunsmuir altered everything
o With no precedence apply the Dunsmuir factors
o Basically we use the factors to decide if the presumption of reasonableness should be rebutted
 DUNSMUIR FACTORS
o Note that the factors are often articulated in different waysits the nature of the question that is
important
 But not quite a consensus on the Court about that change or how it applies:
o Majority (Bastarache + LeBel)
 165

 Reasonableness applies, decision is unreasonable

 Simplify, simplify, simplify…
 Single form of reasonableness
o Concurring (Binnie)
 Reasonableness applies, decision is unreasonable, but different views on what the change in the
analysis will make
 It wasn’t so bad, but OK, simplify
 Complexity transferred…
o Concurring (Deschamps)
 Correctness applies, decision was incorrect
 Simplify via using same approach as appellate review, slightly adapted
 Reasonableness is “more like a rainbow than a black and white situation” (para 120)

THE STANDARD OF REVIEW POST-DUSMUIR

Correctness
no deference
or
Reasonableness
deference
Usually deference will be owed; i.e., the default standard of review is reasonableness (as per factors at para 51)
Correctness is the appropriate standard of review when (paras 57-61):
– “true” questions of jurisdiction
– Questions of law of “central importance” outside of expertise of the admin DM
– Constitutional questions
– Questions regarding jurisdictional lines between tribunals
Note: The correctness standard also applies to review for procedural fairness. But…..[we will come back to this]
Standard of Review - Two step process (at para 62):
“In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of
question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it
possible to identify the proper standard of review.”

DUNSMUIRStep #2 analysis of factors

Factors that apply (at least in regards to whether
reasonable-ness should apply to questions of law):
1. Privative clause
2. “A discrete and special administrative regime in
which the decision maker has special expertise”
Nature of the question of law: of central
importance to the legal system? Outside of
expertise?
Factors that apply at step 2 generally/ renaming P&F
approach:
1. Presence or absence of privative clause
2. Purpose of the tribunal as per interp of enabling
leg
3. Nature of the question at issue
4. Expertise of the tribunal
(para 64)

Problems with understanding and applying Dunsmuir

• When do we have a “precedent” that establishes the standard of review at step 1?
– Subsequent cases suggest that pre-Dunsmuir precedents are suspect and should be revisited.
– Good advice on p. 646
• The relationship between the factors and the “categories” of questions that rebut the presumption of deference?
 166

– Factors are used to understand whether the presumption should be rebutted

– More on the factors in the next two classes…

Pushpanathan – The Factors as understood under the Pragmatic & Functional approach
1. Presence or absence of a privative clause or statutory right of appeal
• Neither stat. right of appeal nor privative clause is determinative of std of review (i.e., absence not
automatically correctness std., presence not automatically a Patent Unreasonableness (PU) std.)
• strong privative clause  greater deference.
2. Expertise of tribunal relative to the reviewing court on the issue in question
• May derive from specialized knowledge of a topic, “institutional capacity/knowledge” gained from
experience and skill in the determination of particular issues; from specialized procedures or non-judicial
means of implementation.
• 3 steps to analyzing expertise (para 33)
• Relative expertise in tribunal  greater deference
3. Purpose of the legislation as a whole and the provision in particular;
• Do the statute and particular decision in issue present ‘polycentric’ purposes (balancing of multiple
interests, policy issues, protection of public, choice of administrative response or remedies)?
• How does the specific provision fit within the legislative scheme?
• Where ‘polycentric’ purposes  greater deference
4. Nature of the question (law, fact, mixed).
• Generality of a question to be decided is indicative of a more ‘legal’, less factual question
• Factual questions  greater deference; legal questions  less deference.

Privative Clauses and Statutory Rights of Appeal

Dunsmuir
Bastarache & LeBel JJ (majority): PC as “strong indication of review pursuant to the reasonableness standard”; as
evidence of legislative intention that decision-maker “be given greater deference and that interference by reviewing courts
be minimized.” But presences of a PC is not determinative. (para 52)
Binnie J: PC as not conclusive as “more than just another “factor” in the hopper of pragmatism and functionality.” PC
should “presumptively foreclose judicial review” on the merits unless applicant can show a legal reason why this should
not be so. (at para 143)

 Here we are concerned with specific provisions in the statute (or statutes) under which a decision-maker acts and
with statutory provisions that address the relationship between the courts and the relevant decision-maker or
decisionthis involved statutory interpretation
 Parliament or a provincial legislature only rarely indicates precisely in a statute what standard of review a court
should apply, even when the legislature does the meaning of the words used to described the relevant standard
may evolve over time.
 On the other hand, legislatures have for decades included provisions in statute that direct the courts not to review
the decisions not taken under the statutethese provisions are referred to as privative clauses
o The inclusion of such clauses is always taken to signal deference by the courts
 Where a privative clause or right of appeal (or both) are present in a statute, they will influence, but not determine
outright, the standard of review
 PRIVATIVE CLAUSES
o Privative clauses are statutory provisions by which a legislature purports to limit the scope of intensity of
JR of a statutory decision maker
o Generally courts distinguished between “full” or “strong” privative clause and “weak” ones
o Full/Strong Onestypically use broad language to preclude any form of review by a court, while also
establishing that the decisions of the relevant actors are final and conclusive
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 The clearest form of a privative clause (according to Pasiechnyk v Saskatchewan) is “one that
declares the decisions of the tribunal are final and conclusive from which no appeal lies and all
forms of JR are excluded” although “where the legislature employees words that purport to limit
review bu fall short of the traditional wording of a full privative clause, it is necessary to
determine whether the words were intended to have full private effect or a lesser standard of
deference.”
 As such privative clauses can be full in its effect even where it does no satisfy clear definition of
a full private clause as laid out in Pasiechnyk
o Weak Privative Clausesfall short of this broad language
 Typically they state simply that the decision of the decision-maker are final and conclusive or that
a decision maker has the “sole” or “exclusive jurisdiction in certain matters without expressly
precluding the role of the courts from any “review” or the decision maker
o The interpretation of a privative clause may also depend on whether other provisions of the statute
provide for an appeal to the court from the decision-maker
o A statutory right of appeal may be available on questions of law, fact and mixed law and fact, or another
category of decisions
o Notably, a privative clause cannot oust the authority of the superior courts to carry out JR on
constitutional issues or its authority to ensure that an administrative actor has the statutory authority that
is claims and that it is acting within the bounds of (or intra vires as opposed to ultra vires this authority
 In light of the variation in privative clauses and rights of appeal it is important to examine the statue under which
a decision have been taken to determine the appropriate route for any statutory appeal and to assess the likelihood
that a court will show deference to the decision maker
 Privative Clauses in the Standard of Review Analysis
o Generally in determining whether judicial deference should be shown to an administrative decision-
maker, a court will accept that the presence of a privative clause calls for the court to show defence
o There is an unfortunate history of judicial restraint to privative clauses
 At time, cases arise where the court appear to have contorted its reasoning on the standing of
review to justify an interventionist stance dispute the presence of a strong privative clause
o Despite the presence of a full privative clause the superior courts retain a constitutional authority to
review administrative action to ensure that a statutory decision maker has not exceeded its delegated
authority
o Differences of view of privative clauses are about more than technical issues of statutory interpretation,
they arises within a wider debate about the appropriate role of the courts in the regulation of property and
contract rights where the legislatures has assigned responsibilities for economic regulation and social
affairs to non-judicial bodies
o Where do we stand on privative clauses in the current doctrine?
 On the one hand, privative clauses retain their importance in the standard of review analysis as a
signal of deference
 On the other hand, the Dunsmuir framework suggest a turn away from the view that privative
clauses provide a clear message about legislative intent on judicial deference
 Dunsmuir leaves room to maintain the effect of a privative clause in areas like labour relations
based on the role of existing jurisprudence and on the context-driven nature of the reasonableness
standard
Hibernia Management and Development Company Ltd v Canada-Newfoundland and Labrador
Offshore Petroleum Board, 2008
 In this case the CA analyzed a complex set of privative provisions in the Canada-
Newfoundland Atlantic Accord Implementation Act
 The purpose of this legislation was to implement the 1985 Accord between Canada and
Newfoundland by which the Canada-Newfoundland and Labrador Offshore Petroleum Board
were established
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 The board had the authority to issue license and approve of development plans for offshore oil
projects
 In 2004 the board issue guideline on research and development expenditures by the companies
that operate such projects, the purpose of the guidelines was to enhance value added benefits of
local resource exploitation for the provincial economy
 The boards authority to issue and apply guidelines was challenged by Hibernia
 In its standard of review analysis the court examined the privative provisions under the Act
 H argued that there was no privative clause in the legislature protected the Boards
decisions from review by the court
 The board said that section 30 constituted a privative clause because it provides “the
exercise of a power or the performance of a duty by the board pursuant to this Act is
final and not subject to the review or approval of either government or minister”
 Thusat issue was whether section 30 was a privative clausethe courts have to look
to the language of the provision
 They characterized the clause as a partial privative clausewhich would support
review by the courts on the standard of reasonableness
 Even if this section did not constitute a partial privative clause, the absence of such a
clause is not determinative, in the circumstances lead to the conclusion that the courts
should show deference to the Boards decision by applying the reasonableness standard
CLASS NOTES
 Ultimately apply a reasonableness standard
 The idea of what you are asking about the authority of the board to do somethingjurisdiction,
this might make you think correctness should be applies
 They are using statutory interpretation to determine if this is a privative clause
 Is section 30 a
 privative clause?
 Does it matter to the court’s conclusion? Should it matter? Should PCs be determinative of std
of rev or just another factor in the “hopper”?

 Rights of Appeal in the Standard of Review Analysis

o Check in – What are the appellate standards of review?
o At time of Dunsmuir, state of the law was that statutory rights of appeal on questions of law was an
indicator of legislative intent (to allow freer court intervention) but still only one factor in the
analysis of standard of review (i.e., deference could apply)
o Still the case. Latest words:
o Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, paras 35-44
o Edmonton East….
o But, dissent in Edmonton East….

o Many statutes provide a right of appeal to a specific court on questions of law or fact that have been
determined by the statutory decision maker
o A right of appeal is broadest when it encompasses all of the possible questions that a decision maker
might make
o The inclusion of such a clause in a statute weights against deference by a court
o Where no right of appeal is included, by default the common law reserves JR for the superior courts of the
respective province
o Often legislatures provide in statutes for a right of appeal to a court that is itself established by statute in
connection with a particular real of decision making
o Before Dunsmuir:
 Where questions of fact fell within the scope of the right of appeal, there was a tendency to defer
to the findings of the trier of fact
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 Where the issue was one of law, the assumption was that the right of appeal indicated a
legislatures intend for the court to feel free to intervene on the basis of its own conclusions on the
relevant legal issues
o In Dunsmuir the majority says the decisions of a tribunal or agency on the interpretation of its own
statute, or closely related statutes are “usually” entitled to deference and that questions of law (where not
of central importance to the legal system and outside the decisions makers expertise) “may” be
compatible with the standard of reasonableness
o Some carefully framed statements by the court allow for the application of the correctness standard of
questions of law where there is a full statutory right of appeal
 But they also suggest the deference may be appropriate where the question of law arises from the
decisions makers home statute or from closely related statutesThus the more important the
issues appears to be, not the presences a right of appeal on questions of law, but rather the context
in which a questions of law arose and the degree to which it engages the mandate and expertise of
the decision maker
Appellate standards of review
 Questions of lawcorrectness
 Deference to the trier of cat
 Questions of factpalpable and overriding error
 Mixed fact and lawdeference (palpable and overriding error)

Canada (Citizenship and Immigration) v. Khosa 2009 SCC

We will look at several points from the case:

1) Reading statutory and common law stds of rev together (Binnie);
2) Reading leg intent about expertise (via privative clause, or via creation of agency generally) (Binnie vs Rothstein)
[TODAY];
3) Applying the reasonableness standard (Binnie vs Fish in dissent).

expertise or the privative clause?

Binnie, paras 21-26:
• With or without privative clause, tribunals entitled to some deference if legislature intended to allocate question to
tribunal
• Might be more than one right answer, even on legal questions
Rothstein, paras 76-98:
• Without (strong) privative clause, Std of rev on questions of law is correctness. Court’s view of “expertise”
irrelevant
• Rejects Pezim, Pushpanathan, Dunsmuir for not taking legislative intent seriously enough
• See paras 111, 112 contrasting types of privative clauses

Canada (Citizenship and Immigration) v. Khosa 2009 SCC

FACTS: K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found
guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid
removal order was issued to return him to India. K appealed the order, but the majority of the Immigration Appeal
Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied
“special relief” on humanitarian and compassionate grounds pursuant to s. 67(1) (c) of the Immigration and Refugee
Protection Act (“IRPA ”). A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard
and set aside the IAD decision.
ISSUE: At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of
judicial review governed by the common law principles lately analysed by our Court in Dunsmuir?
HOLDING
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 The SCC allowed the appeal (upheld the decision of the IAD)
 In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , there was no proper basis for
the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be
said that this decision fell outside the range of reasonable outcomes.
REASONING
BINNIE [MAJORITY]
o This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case,
recognized that, with or without a privative clause, a measure of deference has come to be accepted as
appropriate where a particular decision has been allocated to administrative decision-makers in matters that
relate to their special role, function and expertise. A measure of deference is appropriate whether or not the
court has been given the advantage of a statutory direction, explicit or by necessary implication. These general
principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with
grounds of review of administrative action, not standards of review.
o A legislature has the power to specify a standard of review if it manifests a clear intention to do so However,
where the legislative language permits, the court
(a) will not interpret grounds of review as standards of review,
(b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular
situation, and
(c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a
restrained approach to judicial intervention in administrative matters.
o The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant
relief.  The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes
the general principles dealt with in Dunsmuir.
o Dunsmuir establishes that there are now only two standards of review: correctness and reasonablenessNo
authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under
s. 67(1) (c) of the IRPA , and the relevant factors in a standard of review inquiry point to a reasonableness
standard.
o These factors include:
(1) the presence of a privative clause;
(2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of
appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence
judicial review;
(3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1) (c) a power to grant
exceptional relief and this provision calls for a fact-dependent and policy-driven assessment by the IAD itself;
and
(4) the expertise of the IAD dealing with immigration policy.
**These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant
for every single case.
o Where, as here, the reasonableness standard applies, it requires deference Reviewing courts ought not to
reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within a range of reasonable outcomes.
 In this case, the question whether K had established “sufficient humanitarian and compassionate
considerations” to warrant relief from his removal order was a decision which Parliament confided to
the IAD, not to the courts
 The IAD was required to reach its own conclusions based on its own appreciation of the evidence and
it did so.
 Where the reasonableness standard applies, it requires deferenceReviewing courts cannot
substitute their own appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are defensible in respect
of the facts and law"
o ON PRIVATIVE CLAUSES
 Dunsmuir stands against the idea that in the absence of express statutory language or necessary
implication, a reviewing court is "to apply a correctness standard as it does in the regular
appellate context"
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 I would reject my colleague's effort to roll back the Dunsmuir clock to an era where some
courts asserted a level of skill and knowledge in administrative matters which further
experience showed they did not possess.

ROTHSTEIN
o I think he is saying that when there are provisions about JR the court cannot stray from what is saidwhile
Binnie interpreted the provisions in light of the Common law (?)
o Where a legislature has expressly or impliedly provided for standards of review, courts must follow that
legislative intent, subject to any constitutional challenge.
o With respect to s. 18.1(4) of the Federal Courts Act , the language of para. (d) makes clear that findings of fact
are to be reviewed on a highly deferential standard Courts are only to interfere with a decision based on
erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in
a perverse or capricious manner or without regard for the material before it”.
o By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any
of the other criteria in s. 18.1(4) .
o Where Parliament intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous
language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not
provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the
regular appellate context
o While recourse to the common law is appropriate where Parliament has employed common law terms or
principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions
expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal
Courts Act .
o Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law
analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative
clause. Excepting such cases, it does not apply to s. 18.1(4) .
o The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual
and jurisprudential origins of the standard of review analysis
o Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions
through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted
o Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The
remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional
common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and
the existence of alternative remedies which is wholly distinct from the common law of standard of review
analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the
Dunsmuir standard of review analysis is inappropriate
o PRIVATIVE CLAUSES
 Rothstein adopts the perspective that in the absence of a privative clause or statutory direction
to the contrary, express or implied, judicial review under s. 18.1 is to proceed "as it does in the
regular appellate context"AKA A CORRECTNESS STANDARD
 In the absence of a privative clause an a question of law there will be a correctness standard
CLASS NOTES
 We essentially have a discretionary decisionsreasonableness applies
 Binnie says that privative clauses are another factor
 Recognize that what Rothstien is saying is pretty much against Dunsmuir
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Expertise and Statutory Purpose

“Respect for statutory purpose is another way of saying that courts respect the substantive choices of the legislator and
those to whom the legislature has delegated public powers.” (p. 685)
With expertise, these factors ask us to consider the context in relation to decision/question under review (the next factor
we will look at) and consider whether the matter is central to the tribunal’s mandate (a matter within the “home statute” or
core of the Tribunal’s mandate) or not (then possibly correctness)

 EXPERTISE IS ABOUT THE INSTITUIONnot the individual

 Here we examine two factors in the standard of review analysis:
o Expertise of the Administrative Decision Maker
 As measured by the court in light of relevant statutory provisions and relative to the courts
understanding of its own expertise
 Indicators of expertise may be present in the statute itself, but may also emerge from the courts
understanding of the legislatures aim when it created a statutory regime
 An administrative actor’s expertise may be shown in different ways:
 It may be traced to the background of an individual member of the tribunal
 It may be recognized as part of the history and institutional memory of the decision
maker and its membership
 It may relate to a superior technical capacity or understanding in a particular subject
matter or it may follow from “field sensitivity” that a decision maker acquires from years
of operations in its assigned area
 A consideration of expertise requires a court to put itself into the mind of the legislature at the time
that the legislature creates or subsequently endorsed a statutory regime
 The court must look for explicit markers in the statute, they may also find indirect indicators of the
legislatures intention (such as a requirement that a tribunal include members who are lawyers or
judges, or more general statements about the statutes aims and purpose)
 The existence of a discrete and special administrative regime in which the decision maker has special
expertise is a consideration that may lead to deference based on the reasonableness standard
 In Dunsmuirthe court concluded that deference will usually extend to the resolution of questions of
law “where a tribunal is interpreting its own statute or statutes closely connected to its function, with
which it will have particular familiarity” or “where an administrative tribunal has developed
particular expertise in the application of a general common law or civil law rule in relation to a
specific statutory context
 Since Dunsmuirthe SCC has increasingly treated expertise as a presumption in the standard of
review analysis
o In creating administrative tribunals legislatures confer decision making authority on certain
matters to decision makers who are assumed to have specialized expertise with the assigned
subject matter
o Purpose of a Decision Maker
o As determined by its enabling legislation
o This factor is not examined in great detail in Dunsmuir but has along history in the pragmatic and
functional approach
o An assessment of statutory purpose does not itself determine the standard of review without resort
to other factors, however it can provide support for the assessment of other aspects of the decision
making process and for the courts characterization of the role of the decision-maker in its
regulatory field
o A reviewing judge must consider the precise nature and function of the decision maker including
its expertise and the terms and objectives of the governing statute conferring the power of
decision
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o The courts may refer to the factor of a statute’s (or decision makers purpose) when characterizing
the context for a decision that is under review
o Respect for statutory purpose is another way of saying that the courts respect the substantive
choices of the legislature and those to whom the legislature has delegated public powers
o The framing of statutory purpose interacts with all the other factors in the standard review
analysisit informs and is informed by the terms of the statute, the nature of the question, and
the decision makers relative expertise
o The interpretation of the statute where it carries a range of possible meanings should not be at the
expense of the statute as a whole and its regulatory aims; such other factors in the analysis should
support, not contradict that framing of purposeultimately all are supposed to reveal legislative
intent
o See Bell Canada v Bell Aliant Regional Communications

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 SCC

Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 SCC

FACTS: In 1985, the appellant claimed refugee status under the UN Convention Relating to the Status of Refugees
(“Convention”), as implemented by the Immigration Act, but his claim was never adjudicated as he was granted
permanent residence status in Canada under an administrative program. The appellant was later arrested in Canada and
charged with conspiracy to traffic in a narcotic. He pleaded guilty and was sentenced to eight years in prison. In 1991,
the appellant, then on parole, renewed his claim for Convention refugee status. Employment and Immigration Canada
subsequently issued a conditional deportation order against him under ss. 27(1)(d) and 32.1(2) of the Act deportation
pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, the
appellant’s claim was referred to the Convention Refugee Determination Division of the Immigration and Refugee
Board. The Board decided that the appellant was not a refugee by virtue of the exclusion clause in Art. 1F(c) of the
Convention, which provides that the provisions of the Convention do not apply to a person who “has been guilty of acts
contrary to the purposes and principles of the United Nations”.
ISSUE: What standard of review should be applied for the decision of the IRB?
HOLDING
 Correctness standard
REASONING
 Factors to Take into Account:
o Privative Clause
 the presence of a “full” privative clause is compelling evidence that the court ought to show
deference to the tribunal’s decision, unless other factors strongly indicate the contrary as
regards the particular determination in question
 a partial or equivocal privative clause is one which fits into the overall process of evaluation
of factors to determine the legislator’s intended level of deference, and does not have the
preclusive effect of a full privative clause
o Expertise
 If a tribunal has been constituted with a particular expertise with respect to achieving the aims
of an Act, whether because of the specialized knowledge of its decision-makers, special
procedure, or non-judicial means of implementing the Act, then a greater degree of deference
will be accorded
 expertise must be understood as a relative, not an absolute concept
 a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as
compared with the reviewing court is a ground for a refusal of deference
 Making an evaluation of relative expertise has three dimensions: the court must characterize
the expertise of the tribunal in question; it must consider its own expertise relative to that of the
tribunal; and it must identify the nature of the specific issue before the administrative decision-
maker relative to this expertise.
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 Once a broad relative expertise has been established, however, the Court is sometimes prepared
to show considerable deference even in cases of highly generalized statutory interpretation
where the instrument being interpreted is the tribunal’s constituent legislation
 In short, a decision which involves in some degree the application of a highly specialized
expertise will militate in favour of a high degree of deference, and towards a standard of
review at the patent unreasonableness end of the spectrum
o Purpose of the Act as a Whole, and the Provision in Particular
 purpose and expertise often overlap
 . Where the purposes of the statute and of the decision-maker are conceived not primarily in
terms of establishing rights as between parties, or as entitlements, but rather as a delicate
balancing between different constituencies, then the appropriateness of court supervision
diminishes
o The “Nature of the Problem”: A Question of Law or Fact?
 even pure questions of law may be granted a wide degree of deference where other factors of
the pragmatic and functional analysis suggest that such deference is the legislative intention
 Where, however, other factors leave that intention ambiguous, courts should be less deferential
of decisions which are pure determinations of law
 The Proper StandardCorrectness
o the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial
review here. A clear majority of this Court has found in a number of cases that deference should not be
shown by courts to human rights tribunals with respect to “general questions of law”
o the Board’s expertise in matters relating to human rights is far less developed than that of human rights
tribunals
o The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been
met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned
to his or her country of origin
o Only 10 percent of the members of the Board are required to be lawyers (s. 61(2)) and there is no
requirement that there be a lawyer on every panel
o Nor is there any indication that the Board’s experience with previous factual determinations of risk of
persecution gives it any added insight into the meaning or desirable future development of the
provision in question here
o Here, the legal principle is easily separable from the undisputed facts of the case and would
undoubtedly have a wide precedential value
CLASS NOTES
 This is a good example of a pre-dunsmuir decision where they apply correctness, and it a good examples of
where they apply the factors
 Privative clauses/right of statutory appealare not determinative of the issues, but strong ones lean towards
more deference
 Expertise of tribunal relative to the courtit isn’t about the individual or who the chair is, its about if the board
in any given questions has the combined expertise Relative expertise in tribunalgreater deference
 Purpose of the legislation as a whole and the provision in particular
 Nature of the questionwhere its legal it is more general

Bell Canada v Bell Aliant Regional Communications, 2009 SCC

• Our concern: Paras 23-38 esp (Paras 39-76  application of the reasonableness std)
• Para 38: “issues raised… go to the very heart of the CRTC’s specialized expertise. …[T]he core of the quarrel …
is with the methodology for setting rates, a polycentric exercise with which the CRTC is statutorily charged and
which it is uniquely qualified to undertake.”  reasonableness applies
• In contrast to what? What is the alternative characterization of the issues at stake and std of review applied at
lower courts? Why?
Bell Canada v Bell Aliant Regional Communications, 2009 SCC
FACTS: In May 2002, the Canadian Radio-television and Telecommunications Commission (“CRTC”), in the
exercise of its rate-setting authority, established a formula to regulate the maximum prices to be charged for certain
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services offered by incumbent local exchange carriers, including for residential telephone services in mainly urban non-
high cost serving areas (the “Price Caps Decision”). Under the formula established by the Price Caps Decision, any
increase in the price charged for these services in a given year was limited to an inflationary cap, less a productivity
offset to reflect the low degree of competition in that particular market.
The CRTC ordered the carriers to establish deferral accounts as separate accounting entries in their ledgers to record
funds representing the difference between the rates actually charged and those as otherwise determined by the
formula. At the time, the CRTC did not direct how the deferral account funds were to be used.
In December 2003, Bell Canada sought approval from the CRTC to use the balance in its deferral account to expand
high-speed broadband internet services in remote and rural communities. The CRTC invited submissions and
conducted a public process to determine the appropriate disposition of the deferral accounts.
In February 2006, it decided that each deferral account should be used to improve accessibility for individuals with
disabilities and for broadband expansion. Any unexpended funds were to be distributed to certain current residential
subscribers through a one-time credit or via prospective rate reductions.
Bell Canada appealed the CRTC’s deferral accounts decisions (about the credits). The Federal Court of Appeal
dismissed the appeals, finding that the Price Caps Decision regime always contemplated that the disposition of the
deferral accounts would be subject to the CRTC’s directions and that the CRTC was at all times acting within its
mandate
ISSUE: Was the CRTC within its authority to order the deferral account remainder was to be used as a credit to
consumers?
HOLDING
 The CRTC did exactly what was mandated to it under the Telecommunication Actit had a statutory authority
to set just and reasonable rates to establish the deferral accounts and to direct the disposition of the funds in
those accounts
REASONING
 The Arguments
o Bell Canadasay the CRTC has not statutory authority to order was it claimed amounted to
retrospective “rebates” to consumers
o The CRTC says that is broad mandate to set rates under the Telecommunications Act includes
establishing and ordering the disposal of funds from deferral accounts
o Both of these arguments bring us directly to the statutory scheme at issue
 The Telecommunications Act
o Sets out the basic legislative framework of the Canadian communications industry
o The Guiding objectives are set out in section 7the CRTC MUST consider these objectives in the
exercise of ALL of its powers
o The CRTC relied on these provisions to arguing that it was required to take into account a broad
spectrum of considerations in the exercise of its rate setting powers, and that the deferral accounts
decisions was simply an extension of this approach
o This act grants the CRTC the general power to set and regulate rates for telecommunications services
o The guiding rule of rate setting is that the rates must be “just and reasonable”
o The CRTC has a wide discretion which is protected by a privative clause
o The CRTC also has the authority under section 37(1) to order a carrier to adopt “any accounting
method or system of accounts” in view of the proper administration of the Telecommunications Act
o The CRTC has other broad powers, which wile not at issue here demonstrate the comprehensive
regulatory powers parliament intended to grant
o This statutory overview assists in dealing with the preliminary issue of applicable standards of review
 Bell and Telus concede that the CRTC ha the authority to approve of disbursements from the deferral accounts
for initiative to improve broadband expansion and accessibility to telecommunications services for persons
with disabilitiesBUT they do not think they have the authority to extend this to the “rebates” so it all
comes down to whether the CRTC has the authority and discretion to order credits to customers from the
deferral accounts.
 A central responsibility of the CRTC is to determine and approve just and reasonable rates, together with this
rate setting power the CRTC has the ability to impose ANY condition on the provision of a service, adopt ANY
method to determine whether a rate is reasonable and just and require a carrier to adopt ANY accounting
method
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 The CRTC’s authority to establish the deferral accounts is found through a combined reading of section 27 and
27(1)
 It is self evidence at the CRTC has considerable expertise with respect to this type of question, this observation
is reflected in its extensive statutory power in this regard ad in the strong privative clause in section 52(1)
protecting its determinations on questions of fact from appeal, including whether a carrier has adopted just and
reasonable rates
 The issues here go right to the heard of the CRTC’s specialized expertise
o This would be in favor of a more deference standard of review
 The court then looks at previous versions of the act
o Even before the present act regulatory agencies had enjoyed considerable discretion in determining
factors be to considered and the methodology that could be adopted for assessing whether rates were
just and reasonable
o The present act is even more broad, it says the CRTC can adopt “any method” which is language that
was absent is previous versions
 The CRTC is not required to confirm itself to balancing only the interests of subscribers and carries with
respect to particular service
 Here we are dealing with the CRTC setting rates that were required to be just and reasonable, an authority fully
supported by unambiguous statutory languagein doing so the CRTC was exercising a broad authority which
according to section 47 they are required to do with a view to implement the Canadian telecommunications
policy objectives
 The CRTC is statutorily authorized to adopt any method of determining just and reasonable ratesfurthermore
it is required to consider the statutory objectives in the exercise of its authority
 The Deferrals Accounts
o No party objected to the CRTC’s authority to established the deferral accounts themselves
o Deferral accounts enable the regulator to defer consideration of a particular item of expense or revenue
that is incapable of being forecast with certainty for the test year
o While the CRTC’s creation and use of deferral accounts for broadband expansion and consumer credits
may have been innovative, it was support supported by provisions in the Act
o Deferral accounts were created in accordance with both the CRTC’s rate-setting authority and with the
goal that all rates charged by carries were and would remain just and reasonable
o A deferral account will not serve its purpose if the CRTC was not also allowed to have the power to
order the disposition of the funds contained in itthe court takes the view that the CRTC had the
authority to order the dispose of the accounts in the exercise of its rate setting powers (provided that
exercise was reasonable)
 Bell says that the CRTC order of the one time credit amounted to a retrospective rate setting
o In the courts view, this case concerns encumbered revenues in deferrals accounts, we are not dealing
with the variation of final rates
o The credits ordered out of the deferral accounts in this case are neither retroactive nor
retrospectivethey do no vary the original rate as approved nor do they seek to remedy a deficiency in
the rate order through later measuressince those credits or reductions were contemplated since the
beginning
o The deferral account decision was the cumulation of a process undertaken in the Price Caps
decisionin the price caps decisions the CRTC indicated that the amounts of the deferral accounts
were to be used in a manner contributing to achieving the CRTC’s objectives
o The allocation of the deferral account funds to consumers was not strictly speaking a rebatethese
were a one time disbursement to CURRENT subscribers
o Nothing in the deferral accounts decisions undermined the financial stability of the affected carriers,
the amounts at issue were always treated differently for accounting purposes and the regulated carriers
were aware of the fact that the portion of the revenues going into the deferral accounts remained
encumbered
 The Court dismissed the Appeal
o The CRTC properly considered the objectives set out in s.7 when it ordered expenditures for the
expansion of broadband infrastructure and consumer creditsin doing so they considered the
objectives as guiding principles in the exercise of its rate-setting authority
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o
The CRTC did exactly what was mandated to it under the Telecommunication Actit had a statutory
authority to set just and reasonable rates to establish the deferral accounts and to direct the disposition
of the funds in those accounts
CLASS NOTES
 This polycentric nature of the CRTC mattered here

The Nature of the Question

Dunsmuir
“Questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the
factual issues generally attract a standard of reasonableness while many legal issues attract a standard of
correctness. Some legal issues, however, attract the more deferential standard of reasonableness.” (para 51)
”[I]t is without question that the standard of correctness must be maintained in respect of jurisdictional and some other
questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law.” (para 51)
Questions of jurisdiction or “vires”:
• Set against important CUPE v NB case (1979)
“ It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the
jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is
intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true
jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be
found to be ultra vires or to constitute a wrongful decline of jurisdiction” (at para 59)

 Before Dunsmuir the most important factor in the pragmatic and functional approach appeared to be expertise
o But Dunsmuir shifted the focus to the nature of the question by emphasizing that a determination of the
nature of the question may create a strong presumption in favour of deference
 Conventionally, the court distinguish the decisions of administrative actors based on whether they engaged
questions of LAW, FACT or MIXED LAW AND FACT
o Questions of Lawabout what the correct legal test is
o Questions of Factquestions about what actually took place between the parties
o Mixedquestions about whether the facts satisfy the legal test
o ExampleNegligence in Tort
 What negligence means? -questions of law
 Whether the defendant did this or that-question of fact
 Once it has been decided that the applicable standard is negligence, the question of whether the
defendant satisfied the appropriate standard of care is a question of mixed law and fact
 Dunsmuir instructed that in come cases an assessment of the nature of the question will presumptively determine
the standard of review
o This is especially true where the question is of constitutional importance or where it involves general
issues of law such as the resolution of apparent conflicts of jurisdiction between tribunalsleading to a
correctness standard
o Other questions of law usually result in a reasonableness standard
 Noteit is not always straightforward o characterize the nature of the question before the court

 Dunsmuir asks us to draw lines between questions of law that are within the home statute and ones that arnt (aka
that are of central importance, of constitutional issues etc)
 Discretion
o A questions of discretion under Dunsmuir requires a reasonableness analysis
 178

o Understand the words of the statute!

 NOTE that when Dunsmuir says “many legal issues attract a standard of correctness” is really not what we
seeits really an exception
 Why do we have a correctness standard?
o There is a push to just go to a reasonableness standard
o Can it carry the weight of the rule of law? (in Dunsmuir they didn’t think so)

Jurisdictional Questions and the Origins of the Standard of Review Analysis

 A subcategory of the question of law is the jurisdictional question
 The concept of jurisdiction lends itself to a range of meanings, some of which drift far from the root meaning of
the terms as simple a statutory authority to enter into an inquiry
o As a result the concept of jurisdiction is central to both judicial review and is also full of controversies
 At the heart of the controversies is a different view over the circumstances in which an
administrative decision maker can have jurisdiction to decide the scope of its own jurisdiction
 At one endrestrictive view that an administrative actor cannot act unless a court has determined
that it has to jurisdiction to act, or at least its action are always subject to the courts review of its
ability to decide its own authority to act
 At the other endpermissive view that a court has no greater right to interpret the terms of a
statutory grant of power than does the grant holder, and so the courts should not question the
conclusions reached by administrative decision-makers
 In Dunsmuir a majority of the court reiterated the position that the courts, through JR, play a constitutional role in
ensuring that administrative tribunals exercise only authority that they have been granted by statute
 CUPE Decision
o It is important because it marked a major turning point in the jurisprudence of the SCC away from earlier
expansive approaches to the concept of Jurisdiction
o In Dunsmuir the court took care to preserve the sprite of CUPE by characterizing jurisdiction in a narrow
sense of the authority to make inquiry
o The position from CUPEDunsmuir reflects an approach by which a reviewing court must determine
whether the governing statute implies that the legislatures intended the decision maker to decide for itself
whether to answer a question or engage in an activity connected to its statutory authority. So long as the
statute implies that he decision maker has the authority to decide the scope of its own authority, a court
should be satisfied that the decision makers interpretation of its own parent statute has not engaged a
question of jurisdiction but rather (at most) a question of law
 After Dunsmuir there remained questions about how far the concept of “true” questions of jurisdiction extends
o For along time, the theory and practice of substantive review was dominated by the concept of
jurisdiction
o Courts deemed statutory authorities to have only as much jurisdiction or authority as the legislatures
conferred on them, and the primary task of the court was the ensure that the tribunal or agency stayed
within those boundariesthis meant reviewing on a correctness basis all of the determinations of law and
fact that affected or “went to” to statutory authority’s jurisdiction
 Since Dunsmuir, the SCC has confirmed repeatedly that jurisdictional review is a narrow concept

Alberta (Information of Privacy Commissioner) v Alberta Teachers Association, 2011 SCC

“True Jurisdictional” Questions:Alberta Teachers’ Assoc (ATA) (2011)
Rothstein J (majority):
“[I]t may be that the time has come to reconsider whether, for the purposes of judicial review, the category of true
questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.” (at para 34, p. 746)
 179

 Approach is to presume that a question of statutory interp of the home statute should be reviewed deferentially (i.e.,
reasonableness std applies).
Cromwell J, concurring:
• Home statute rule “does not trump a more thorough examination of legislative intent when a plausible argument is
advanced that a tribunal must interpret a particular provision correctly” (at para 99, p. 749)
• “I remain of the view that true questions of jurisdiction or vires exist…. However, for the purposes of the standard
or review analysis, I attach little weight to these terms. They add little to the analysis and can cause problems.”
(para 95, p. 748)
 Need to revisit Crevier????

Alberta (Information of Privacy Commissioner) v Alberta Teachers Association, 2011 SCC

FACTS: None given.
HOLDING
 See the debate between Rothstein and Cromwell about jurisdiction in JR
DECISION
Rothstien J
 Experience has shown that the category of true questions of jurisdiction is narrow
 The direction that the category of questions of jurisdiction should be interpreted narrowly takes on particular
importance when the tribunal is interpreting its home statute
 It is sufficient in these reasons to say that unless a situation is exceptional (which we have not seen since
Dunsmuir) the interpretation by the tribunal of “its own statute closely connected to its functions, with which it
will have particular familiarity” should be PRESUMED to be a question of statutory interpretation subject to
deference on JR
 “True” Questions of Jurisdiction
o This category has lead to a lot of confusionand unnecessarily increased costs to clients before getting
to the actual substance of a case
o Our objective should be to get the parties away from arguing about standards of review to arguing
about the substantive merits of a case
o Questions of jurisdiction are narrow and will be exceptional!
o As long at the “true” questions of jurisdiction category remain, the party seeking to invoke it must be
required to demonstrate why the court should not review a tribunals interpretation of its home statute
on the deferential standard of reasonableness
o The court is unable to provide a definition of what might constitute a true question of jurisdictionbut
say it might be possible and they will know it when they see it, at the moment to say they only exist in
EXCEPTIONAL cases might be helpful
 Aka they arise so rarely this begs the questions of whether they even exist
o He is really calling into question whether true questions of jurisdiction exist now, or perhaps that future
cases might prove it does not
o He is in opposition with Cromwell [Below]
Cromwell J
 He has problems with Rothstein calling into question the existence of true questions of jurisdiction, and also
with his statement that the interpretation of a tribunals of its own statute or statute closely connected to its
functions, with which it will have particular familiarity should be presumed to be a questions of statutory
interpretation subject to deference on JRCromwell takes issue with the fact that there is no indication how
this presumption can be rebutted
 Creating a presumption without providing guidance on how it can be rebutted does not give reviewing courts
any guidance
 The assertion that true questions of jurisdiction may not exist would undermine the foundation of JR of
administrative action
o Dunsmuir was clear that the heart of JR is a balance between legality and legislative supremacy
o Although the term “jurisdiction” or “vires” is often unhelpful, this should not distract us from the
fundamental principles: as matter of either constitutional law or legislative intent, a tribunal must be
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correct on certain issues in the sense that courts and not the tribunal have the last work on what is
“correct”
o He thinks that questions of jurisdiction or vires exist
CLASS NOTES
 This comes out of a privacy issue, that the teachers association violated a persons privacy. Those complaints
are referred to in adjudicator for an inquiry. The issue that went forward of JR was a timeline issues
 The timelines issue were not raised before the adjudicator originally
 There was a 90 day timeline that the commissioner had to extend their decision, it was extended after the 90
days ruleso the party is arguing about whether the commissioner lost authority (aka jurisdiction)
 This is a question of statutory interpretation in the home statuteand the commissioner is the best position to
interpret it
 Cromwell-has a conceptual problem with getting rid of questions of jurisdiction, but agree contextually it give
little help to the analysis
 Confining decisions makers to their jurisdiction is so fundamental to the rule of law

NotePreliminary Question “Doctrine”

 Dunsmuir warned against a return to the preliminary questions doctrine that preceded the CUPE decision
 Th Doctrine
o For a long time the courts allocated decision-making power between courts and administrative agencies
(that were protected by a privative clause) by attempted to distinguish between those questions of law that
were within the area of the decision making authority, or jurisdiction, of the agency, on the one hand and
those that were either ‘preliminary’ to the exercise of jurisdiction or collateral to the merits of the
decision, on the other hand
o Despite the presence of the privative clause the courts was entitled on this theory to intervene in the
administrative process if it found some condition precedent to the agency’s exercise of its jurisdiction as
not satisfied
o The agency’s determination of preliminary questions were subject to review by the courts on the basis of
correctness
 This doctrine was unsatisfactory and after Dunsmuir the preliminary approach is not longer a part of Canadian
administrative law
 It was to define a questions of jurisdiction before going on to look at the decision of a caseDunsmuir said they
are not going to do this
 This now related to this ‘segregation’

The Origins of the Standard of Review AnalysisCUPE (1979)

 Dunsmuir called for caution on the concept of jurisdiction by referring to Dickson’s decision in CUPE
 The CUPE decision marked a turning point in Canadian administrative law
o Past approached to substantive review permitted virtually any question of law to be approached as a
question of jurisdiction and thus reviewed on a correctness standard
o On the other hand, when a question was not treated as jurisdictional and was protected by a full privative
clause, it would be entirely immune from review
o CUPE initiated a move away from this On/Off approach

CUPE v NB Liquor Corporation, 1979 SCC

S. 102(3)(a) – during the continuance of the strike the employer shall not replace the stricking employees or fill their
position with any other employee

CUPE v NB Liquor Corporation, 1979 SCC

 181

FACTS: During the course of a strike the Union laid a complaint with the Public Services Labour Relations Board.
They complained that the employer was replacing striking employees with management personnel contrary to section
102(1)(a) of the Act (Public Service Relations Act). At the center of the controversy here was the interpretation of this
section which said “(a) the employer shall not replace the striking employees or fill their position with any other
employee.” The Board's view was that when the Legislature granted the right to strike to public employees it intended
through s. 102(3) to restrict the possibility of picket—line violence by prohibiting both strike breaking and
picketingSo the board sided with the Union.
On Appealallowed an application by the employer for certiorari and quashed the decision of the Board, holding not
only that s. 102(3) did not prevent management from performing the functions of striking employees but also
considering the interpretation of s. 102(3) as a preliminary or collateral matter wrongly decided by the Board which
thereby assumed a jurisdiction that it did not have.
HOLDING
 Allowed the Appeal (aka said the board was right)

DECISION
 This section is drafted very poorly, and leaves open the possibility of many different interpretations
 The employer saysthey were not in violation of the act because management personnel are not “employees”
as defined by the Act, they also said that the intent of this section was to ensure that jobs remained open after
the strike this interpretation was rejected by the board
o The board has ruled that the employer refrain from the use of management personnel to do the work
normally doe by the members of the bargaining unit
 Before the SCC talks about the conflicting interpretations they talk about whether the interpretation of section
102(3) is a preliminary or collateral matter
o They say that the language or preliminary or collateral matter does not assist in the inquiry of the
boards jurisdiction
o Here the board was asked to answer a question and neither party questioned their jurisdiction to decide
that issueso we can’t say now that they did not have jurisdiction
 The question of what is and what is not jurisdiction is very often difficult to determinehere the public service
relations board acquires their jurisdiction to consider the complaints in light of section 19(1)(a)says they can
examine and inquire into complaints
 Privative ClauseSection 101
o Protects the decision of the board made within its jurisdiction
o Section 101 constitutes a clear statutory direction on the part of the legislature that public sector labour
matters be promptly and finally decided by the board
 The board is given broad powers, broader than those typically vested in a labour board, the expertise of the
board is required to meet the purposes of the act (which are to balance public services and to maintain
collective bargaining)
 The Board clearly decided on a matter that was within its jurisdiction
 Was the boards interpretation so patently unreasonable that its construction cannot be rationally supported by
the relevant legislation and demands intervention by the court upon review?
o The boards interpretation cannot be characterized as patently unreasonable
o The ambiguity of this section has been acknowledgedthere is not one interpretation that is “right”
o Clearly section 102(3) is an attempt to maintain the balance of powerit is to avoid picket lines
outside government buildings for two reasons (1) to avoid picket violence (2)to avoid to impact of
picket lines for one bargaining group upon the remainder of government operations in a given building
o The boards interpretation cannot be branded as patently unreasonablethere interpretations are at least
as reasonable as the court of appeal’s

 CUPE clearly sought to restrict judicial scrutiny of administrative interpretations of enabling statutes
 An important feature of CUPE is its emphasis on statutory context and purpose rather than common law concept
or presumptions as the key to interpreting administrative statuteshowever the decision also illustrates two key
insights into the functionalist approach to statutory interpretation
o The first involves recognition that the meaning of statutory language may be ambiguous
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o The courts determination of the meaning of an ambiguous word or phrase involves an institution choice
about who is best positions to make that determinationshould it be on the specialized agency or the
courts?
 CUPE’s key doctrinal importance is that it shifted the focus of jurisdictional review by a directing attention to the
rationality of the agency’s interpretation of its enabling statute rather than to a prior classification of the statutory
provision in dispute

Questions of Law

Alberta v Alberta Teachers Association, Rothstein J applied the reasonableness standard to the
2011 SCC commissioners interpretations of a provision in the Personal
Information Protection Act relating to statutory timelines.
 An attempt to rebut the presumption He rejected Binnie’s opinion that correctness should be used,
fails here even when a tribunal was interpreting its home statute, if the
relevant issue “raised matter of legal importance beyond
administrative aspects of the statutory scheme under review.”
Rogers Communications v Society of Majority of the SCC applied a correctness standard in a focused
Composers, Authors and Music review of the copyright Board’s interpretation of what it meant to
Publishers of Canada, SCC 2012 “broadcast to the public” in section 3(1)(f) of the Copyright Act.
The board had interpreted this term in the context of a dispute
Class Notes over whether online downloads and steams were subject to
 Example of rebutting the copyright, and to an obligation to pay communication royalties to
presumption from ATA (re the copyright holder.
reasonableness standard for The majority justified the correctness standard on the basis that
interpreting home statutes) the Copyright Act allowed both the tribunal and the court to
 They talk about this being a question
apply the statute in the first place.
of law (correctness) vs question of
mixed fact and law (reasonableness) “It would be inconsistent for the court to review a legal question
 Think about itwhat is the decision on JR of a decision of the board on a deferential standard and
about whether streaming is “public” decide exactly that same legal question de novo if it arose in an
in the sense it could attach royalties infringement action in the court at first instance.”
 This was probably actually mixed “The concurrent jurisdiction of the board and the court at first
fact and law instance in interpreting the copyright act rebuts the presumption
 It is the signal in the legislation of reasonableness in the JR of the boards decisions on questions
that courts are equally in the of law under its home statute.”
position to interpret thisthus the “In these circumstances the court must be assumed to have the
signal in the legislation gives the same familiarity and expertise with the statute as the board.”
court concurrent jurisdiction
 Why under Dunsmuir is it okay to
apply correctness hereif there is
concurrent jurisdiction the courts
are equally well situated to decide
this
 Why wouldn’t it be okay? Aka if
you have concurrent jurisdiction
why would it be okay for the
court to apply reasonableness.
 How is it okay to have different
interpretations by the copyright
board and the court of law?
 183

McLean v BC (Securities Commission), SCC took a modified deferential approach to the review of a
2013 SCC tribunals interpretation of its home statute.
The BC security commission had interpreted section 161(6)(d) of
the Securities Act as allowing the commission to calculate a six
year limitation period for initiating a proceedings against a
person (who entered into settlement agreement with a securities
commission in another jurisdiction) form the day of the
settlement instead of the date of the persons underlying
misconduct.
Moldaver J applied a reasonableness standard and upheld the
commission interpretation as reasonable. However, in applying
the reasonableness standard he introduced a new level of
assessment by asking whether there was “sufficient ambiguity” I
the statute to justify accepting the tribunals decision as
reasonable.
This is important because it might have a future impact on the
Dunsmuir and CUPE principle of deference ot a tribunals
interpretation of its home statue .

Discretionary and Policy Questions in the Standard of Review Analysis

 In the post-Dunsmuir era it is clear that questions of discretion are to be identified as such and dealt with using the
standard of review analysis
o We therefore introduce discretionary questions here based on the Dunsmuir Framework
 All types of questions involve discretionLaw, fact or mixed
 It is best to approach this topic (the identification of discretionary questions in the standard of review analysis) as
an inquiry into the foremost or pre-eminent nature of a question, based on the terms of the statute that bestow
authority on the decision maker
 To identify discretionary questions, the key is to look to the relevant statute in order to determine whether the
statute frames the decision-makers authority in very general terms (such that is requires choices to be made from a
wide range of options, usually involving broadly framed policy considerations)
 Various indicators in a statute point to the discretionary nature of a particular authority
o To bestow wide discretion, the legislature might use phrases such as “in the public interest” “in the
circumstances” or “in the opinion of”
o Although such phrases might suggest there is no limits to the discretionary activities of a decision maker,
it is always the case that the decision maker must use its powers in good faith and for the purpose that the
legislature connected to the statue in question [Think of Roncarelli v DuplessisThere is not such thing
as absolute or untrammelled discretion]

Revisit Khosha**

Disaggregation Dilemma
Why should courts (and litigants) “segment” or “disaggregate” a decision into more than one question/finding by a
tribunal?
– Para 19, Levis (City) (p. 736)
Why should courts (and litigants) not do this?
• Para 19 again, “The possibility of multiple standards should not be taken as a license to parse an administrative
decision into myriad parts in order to subject it to heightened scrutiny” (p. 737)
Abella against Segmentation
for majority, Via Rail
• Para 96-100, pp. 738-739
 184

Concurring, Rogers Communication –paras 87-88 (p. 736) (next slide)

 We do not have rule that tell us when you can segment and when you cannot
 This is a question of framing the problem
 You need disaggregation if:
o There are different standards to apply
o Why will the courts accept this? Maybe someone appeals to the courts sensibility, something is really
unjust/problematic
o Why should courts not do this? Para 19
ROGERS COMMUNICATION
Abella J’s warning against “segmentation”– paras 87-88:
“Segmenting the definition of each word or phrase in a statutory provision into discrete questions of law is a re-
introduction by another name – correctness – of the unduly interventionist approach championed by the jurisdictional and
preliminary question jurisprudence, jurisprudence which this Court definitively banished in ATA….
Pulling a single legal thread from this textured piece [i.e., the Copyright Board’s conclusion re music downloads as
communication to the public] and declaring it to be the determinative strand for deciding how the whole piece is to be
assessed strikes me, with great respect, as an anomalous jurisprudential relapse.” (at para 87-88)

 In some cases, a court may explicitly disaggregate an aspect of the overall decision under review, typically but not
always a question of law, in order to subject that discrete question to a different standard of review from that
applies to the overall decision
 Before Dunsmuir, disaggregation (or segmentation or segregation) become a thorny issue for the SCC
o It may be difficult to distinguish a question of law or fact from the convenient catch all of questions of
mixed law and fact
 The choice to isolate a question of law often leads to a correctness standard and to the courts substitution of its
answer for the tribunals
o As such the decision to extract an issue of legal principles from a tribunals ruling and then review it on a
correctness basis may be seen as a sleight of hand by which the court can avoid the purpose of deference
doctrine
 In Dunsmuir, the issue of disaggregation was not discussed by the majorityrather the adjudicators interpretation
of provisions in the Public Service Labour Relations Act and Civil Service Act was treated as a question of law
that fell within the adjudicators expertise in highly specialized context, justify deference
 Despite its silence on the issue, Dunsmuir implies that disaggregation is appropriate in case where the nature of
the question calls presumptively for the correctness standard
 Before Dunsmuire, two prominent cases on segmentation were Levis (SCC 2007) and VIA Rail (SCC 2007)
o In these two cases the SCC sought to clarify when and why it was appropriate to isolate a question of law
from a tribunals ruling in order to subject that question to greater judicial scrutiny
 Levis, 2007 SCC
o A majority found that the decision of a Quebec labour arbitrator should be disaggregated because it
involved an apparent conflict between two statute (Police Act and Cities and Towns Act)
o The arbitrator’s resolution of the conflict was reviewed on a correctness standard while the rest of the
decision attracted a reasonableness standard
o “It is clear that the pragmatic and functional approach may lead to different standards of review
for separate findings made by an arbitrator in the course of his or her decision…this will most
frequently be the case when an arbitrator is called upon to construe legislation. The arbitrators
interpretation of the legislation (a question of law) MAY be reviewable on a different standard than the
rest of the decision
o “Of course it is not always be easy or necessary to separate individual questions from the decision taken
as a whole. The possibility of multiple standards should not be taken as a license to parse an
administrative decision into myriad parts in order to subject it to heightened scrutiny. However reviewing
 185

courts must be careful not to subsume distinct questions into one broad standard of review. Multiple
standards of review should be adopted when there are clearly defined questions that engage different
concerns under the pragmatic and functional approach.”
o “The questions of whether these sections are in conflict, and if so which one should prevail clearly raises
separate concerns from the question of whether the arbitrator properly interpreted and applied a section”
o “In this case the privative clause suggests greater deference in general, but doesn’t shed light on whether
this level of scrutiny should be different for each question.”
o DISSENT (Abella)concluded that the arbitrator’s decision as aw hole should be subjected to the highly
deferential standard of paten unreasonableness. She disagreed especially with the majority’s approach to
segmentation in the face of a strong privative clause
 VIA RAIL, 2007 SCC
o In this case Abella’s approach to disaggregation won the daythe majority of the SCC reviewed and
upheld a decision of the Canadian Transportation Tribunal on a single deferential standard
 The tribunal ordered (pursuant to the Canada Transportation Act) that VIA Rail implement a
series of remedial measures to address undue obstacles to the mobility of persons with disabilities
in their train cars
o She said the decision as a whole was entitled to deference on a single standard
 “By attributing jurisdiction-limiting such as “statutory interpretation” or “human rights” to what
is in reality a function assigned and properly exercised under the enabling legislation, a tribunals
expertise is made to defer to a courts generalism rather than the other way around”
 “The allegedly jurisdictional determination the agency was being asked to make, like the
undueness inquiry falls squarely within its statutory mandate. It did not involve answering a legal
question beyond its expertise.”
 “The agency, and not a reviewing court, is best placed to determined whether the agency may
exercise its discretion to make a regulation for the purpose of eliminating an undue obstacle to the
mobility of persons with disability.”
o She basically argue that segregation is like preliminary questions under another name
 In its post-Dunsmuir decision in Workers Compensation Act and O’Donnellthe Yukon court of appeal
considered and rejected the option of disaggregating a question of law from the decision as a whole.
o The case involved an appeal from a Yukon Supreme Court decision that had quashed a decision of the
Yukon Workers Compensation Appeal Tribunal
o The YSC based his decision to quash on the conclusion that the tribunal-in rejecting the claim for
compensation by O’Donnell-decided incorrectly a number of pure legal questions arises from the
Workers Compensation Actand in turn that the tribunals finding was flawed and unreasonable
o This decision was appealed by O’Donnell’s employer (the government of Yukon)

Workers Compensation Art (Re) and O’Donnell, 2008 YKCA

Workers Compensation Art (Re) and O’Donnell, 2008 YKCA

 The essential basis of the employers appeal is that he chamber judge failed to properly apply the reasonableness
standard of review
o The employer contends that the chambers judge re-weighed the evidence, doubted the factual findings
of the Tribunal, unfairly criticized their reasons, and generally accorded the tribunal no deference
 The tribunal has under section 25(2) exclusive jurisdiction to determine whether Ms O’Donell’s disability was
work relatedthe tribunal asked itself two questions (1) did she suffer a work related disability (2) was there
an adjustment disability that constituted a work related disability?
 Subsection 25(3) protects the tribunals decisions on any matter within its jurisdiction from review in any
courtexcept in circumstances where the tribunal errs in law or in jurisdiction (25(11))
o Thus the privative clause in respect of the tribunal, while not full it is still robust
 There is no doubt that the tribunal in this case was acting in their jurisdiction
 186

 The objects of the Act and the powers of the tribunal suggest a speedy, efficient and final process that is fair to
both the employer and workersfrom this is can be taken that the legislature intended that the tribunal hold
relative expertise in the interpretation of the Act that creates it mandate and in the application of the policies of
the Board which the tribunal is bound to consider
 The questions at issue (whether the disability was work related) is a question of mixed law and factin this
case the legal and factual issues are intertwined and not readily separated
 This care warrents one standard of review, not multiple
 It is questionable whether the “pure legal question” identified by the chambers judge in this case were in fact all
questions of lawwhat is certain is that they were not readily separated from the general question in issue and
were not of “central importance to the legal system outside the specialized expertise” of the tribunal
 Considering all the relevant factors, there can be no doubt that the appropriate standard of review in this case
was one of reasonableness
 The appeal is allowed, the tribunals decision was restored.

Types of Questions of law?

 No rules. A question of framing in light of the direction of the law and the policy behind the law.
Rogers Communication
• E.g. of rebutting the “presumption” from ATA (re reasonableness std for interpreting home statute)
– an indication of the type of exception that might rebut the presumption
• Rothstein (question of law, correctness) vs Abella (question of mixed fact & law, reasonableness)
– Matter being reviewed is the interpretation of point-to-point transmission of a musical work (streaming
from the internet) as a public (rather than private) communication by the Copyright Board in the
determination of tariffs that apply.
– Compare to ATA, Pushpanathan: are questions of stat interp similarly “legal”? Do any or all have factual
elements involved in the question?
Contrast Alberta Teachers Assoc – attempts to rebut fail
ATA – q of law was application of timelines:
– Statute provided that Commissioner must determine the issue in 90 days OR Extend the time allotted and
provides an anticipated completion date for the inquiry/review (s. 50(5) of PIPA)
– Facts of the case illustrate that Commissioner was well beyond 90 days time limit before he provided the
notice and estimated completion date required by s. 50 (5)

QUESTIONS OF LAW CATEGORIES

1. One of central importance
2. Law arising from the home statute
3. Mixed fact and law
Issue: Questions of central importance When do we have this?
 187

Edmonton East, 2016 SCC

Edmonton East, 2016 SCC

FACTS: Alberta residents may dispute their municipal property assessment before a local assessment review board.
When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had
disputed. The taxpayer appealed, submitting that when a taxpayer disputes an assessment the Board lacks the statutory
power to increase the assessment and may only lower or confirm it.
The Alberta Court of Queen’s Bench agreed with the taxpayer, as did the Court of Appeal. The City of Edmonton now
appeals to this Court.
ISSUES
1. What is the appropriate standard of review for the Board’s implicit decision that it could increase the
assessment?
2. Does the decision withstand scrutiny on that standard?
HOLDING
 The standard of review for the Board’s decision is reasonableness and that it was reasonable for the Board to
find it had the power to increase the assessment.
REASONING
 The Statutory Scheme and Provisions
 Alberta’s MGA regulates property assessments in the province.
 The scheme operates on an annual basis, with municipalities preparing assessments each year (s. 285).
Property assessors are subject to an overarching duty to prepare assessments “in a fair and equitable
manner” (s. 293(1)).
 The MGA permits any “assessed person” or “taxpayer” to contest a municipal property assessment
before an assessment review board (s. 460).
 After hearing a complaint, an assessment review board may “change” the assessment or “decide that no
change is required” (s. 467(1)).
 A decision of an assessment review board may be appealed to the Court of Queen’s Bench, with
permission, on “a question of law or jurisdiction of sufficient importance to merit an appeal” (s. 470(1)
and (5) MGA)
 The Assessment Boards Decision
 Implicit in the Board’s analysis was a decision that it had the authority to increase the assessment
should it so choose.
 On the merits of the assessment, the Board agreed in part with the City: it found that the mall was
“something more” than a community centre, though not quite a power centre.
 It assessed the value of the rent from Wal-Mart at $10.50 per square foot, reasoning in part that it
would be inequitable for the assessed value to be as low as $3.50 per square foot when other nearby
Wal-Marts had been assessed at $10.50 or $11.50 per square foot.
 Standard of Review
 The Dunsmuir framework balances two important competing principles: legislative supremacy, which
requires the courts to respect the choice of Parliament or a legislature to assign responsibility for a
given decision to an administrative body; and the rule of law, which requires that the courts have the
last word on whether an administrative body has acted within the scope of its lawful authority
 Presumption of Reasonableness
 Unless the jurisprudence has already settled the applicable standard of review (Dunsmuir, at
para. 62), the reviewing court should begin by considering whether the issue involves the
interpretation by an administrative body of its own statute or statutes closely connected to its
function. If so, the standard of review is presumed to be reasonableness
 Why have the presumption of reasonableness (deference)respects the principles of legislative
supremacy (aka choice made to leave it in the hands of the tribunal), and fosters access to
justice (to the extent that legislatures choice to delegated the matter to a tribunal)
 The Dunsmuir framework provides a clear answer in this case. The substantive issue here —
whether the Board had the power to increase the assessment — turns on the interpretation of s.
467(1) of the MGA, the Board’s home statute. The standard of review is presumed to be
reasonableness.
 188

Categories the rebut the presumption of reasonableness

 The four categories of issues identified in Dunsmuir which call for correctness are:
(1) constitutional questions regarding the division of powers,
(2) issues “both of central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise”,
(3) “true questions of jurisdiction or vires”, and
(4) issues “regarding the jurisdictional lines between two or more competing specialized
tribunals”
 When the issue falls within a category, the presumption of reasonableness is rebutted, the
standard of review is correctness and no further analysis is require
 Is this a true questions of jurisdiction or vires?
 The chambers judge found, and the Company submits, that whether the Board had the
power to increase the assessment is a true question of jurisdiction reviewable on
correctnesss
 This category is “narrow” and these questions, assuming they indeed exist, are rare
 It is clear here that the Board may hear a complaint about a municipal
assessmentThe issue is simply one of interpreting the Board’s home statute in the
course of carrying out its mandate of hearing and deciding assessment complaints.
 No true question of jurisdiction arises.
 Is a statutory right of appeal a new category of correctness?
 The Court of Appeal concluded that when the decisions of a tribunal are subject to a
statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary
judicial review, the standard of review on such appeals is correctness
 Slatter J.A. reasoned that the existence of a statutory right of appeal is a strong
indication that the legislature intended the courts to show less deference than they
would in an ordinary judicial review
 I disagree. In my view, recognizing issues arising on statutory appeals as a new
category to which the correctness standard applies
 Contextual Analysis
 The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal
responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing.
 Expertise
 Expertise arises from the specialization of functions of administrative tribunals like the Board
which have a habitual familiarity with the legislative scheme they administer: “. . . in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise or field
sensitivity to the imperatives and nuances of the legislative regime”
 Expertise may also arise where legislation requires that members of a given tribunal possess
certain qualifications. However, as with judges, expertise is not a matter of the qualifications or
experience of any particular tribunal member. Rather, expertise is something that inheres in a
tribunal itself as an institution: “. . . at an institutional level, adjudicators . . . can be presumed
to hold relative expertise in the interpretation of the legislation that gives them their mandate,
as well as related legislation that they might often encounter in the course of their functions”
 The presumption of reasonableness is NOT rebutted here
 189

Applying the Standard of Review

Methodology
Presumption of reasonableness may be rebutted by:
• Demonstrating question falls within “categories”
– By precedent
– By applying factors (contextual analysis) to determine that a question falls in one of the categories (esp Q
of central/general importance outside of expertise)
• By doing applying factors (contextual analysis)…

Correctness
 Camp CorrectnessMoldaver, Brown, Côté:
o Expressing “classic” rule of law concerns in Wilson v Atomic Energy, Edmonton East (joined by
McLachlin in Edmonton East)
o Consistency in the law required (Edmonton East, headnote in Wilson v Atomic Energy)
o Not afraid to use the word “jurisdiction”
ISSUES RE CORRECTNESS
Rationale: to “promot[e] just decisions and avoi[d] inconsistent and unauthorized application of law” (Dunsmuir, para
50)
• Is there room for deference in the correctness standard? Or is the correctness standard obsolete?
– Possible “renaissance” of correctness building??
• What methodology should the Court follow in conducting correctness review?
– Dunsmuir suggests “de novo”, but what values, purposes are served by determining correctness in relation
to the tribunal’s reasoning?
Dunsmuir:
“When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it
agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct
answer. From the outset, the court must ask whether the tribunal’s decision was correct.” (para 50)

 NOTEPROCEDURAL REVIEW AND CORRECTNESS: PF is assessed on a correctness standard

o WHY? Because its about natural justice and the exercise of public authority. The idea of procedural
fairness is very much anchored in the old ideas of jurisdiction etc. Natural justice is looked at as a
question of law (of central importance).
o Think about what may be different about procedural fairness? why is it not moving towards a
reasonableness analysis? Should it be?
 Rationale: to promote just decisions and avoid inconsistent and unauthorized application of the law
 Dunsmuir on Correctness
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o Correctness must be maintained in respect of jurisdictional and some other questions of law
o This promotes the decisions and avoids inconsistent and unauthorized application of law
o When applying the correctness standard, a reviewing court will not show deference to the decision makers
reasoning process, rather if will undertake its own analysis of the question
o The analysis will bring the court to decide whether it agree with the determination of the decision maker,
if not the court will substitute its own view and provide the correct answer
o From the outset the court will ask whether the tribunals decision was correct
Edmonton East CaseDissent
The aim is not for you to know the statutory regime in issue but rather to have one example of the methodology. In
other words, you do not need to read this deeply but rather notice what the judges do in the dissent to reach their
conclusion and how different the exercise is from the application of reasonableness
 They look at the whole schemetake everything into account
 It is basically statutory interpretation!
 Its about constructing a statute
 They tell you what is correct
 NOTE-just because you are applying correctness doesn’t mean everyone will agree on what is “correct”
 Methodology of the review?
o An exercise of statutory interpretation.

Reasonableness
Rationales:
There may be more than one reasonable interpretation/decision (CUPE v NB Liquor)
 Court should not substitute its decision for the tribunal’s
Rule of law requires an assumption that “a legislature does not intend the power it delegates to be exercised
unreasonably…” (Catalyst, para 4; Roncarelli)
 Brings in the logic of patent unreasonableness, tensions with correctness
Tension:
Judicial supremacy vs Judicial abdication
REASONABLNESS PRE DUNSMUIR
Reasonableness review demanded:
• appropriate methodology (how to conduct the review), and
• appropriate indicia of reasonableness (what to look for content-wise)
Debate centered on depth of probing/magnitude of error (related to the need to distinguish btwn Reasonableness
Simpliciter and Patent Unreasonableness)
DUNSMUIR REASONABLENESS
“A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both
to the process of articulating the reasons and to outcomes. …[R]easonableness is concerned mostly with the existence of
justification, transparency and intelligibility [JTI] within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts
and the law.” (at para 47)
Post-Dunsmuir: Does the application of this standard vary in different contexts? If so, how? And do you need both JTI
and a reasonable outcome? Does one matter more than the other?
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 Rationales
o There may be more than one reasonable interpretation/decision
o The court should not substitute their decision for the tribunal’s if there is a reasonable reasons for the
tribunals decision
 Rule of law requires an assumption that “a legislature does not intent the power it delegates to be exercised
unreasonably.”
o This brings into tensions with correctness
 There is a tension about whether we are dealing with judicial supremacy or judicial abdication (aka basically the
courts not doing enough)
o You may argue that sometimes the judges are not doing enough, they are abdicating the role of keepers of
the rule of law
o Have they done too much vs have they not done enough
 JTIin a lot of our cases we see problems with JTI (aka no reasons)
o Really a lot of the time it just comes down the reasonableness of outcome
 There are different methodologies and different ones are appropriate in different situations!! [keep this in mind]
 Note the tensions between the desire of judge to develop a jurisprudence that is both principled and sufficiently
flexible to address a broad range of administrative decision making and the desire of administrative law
practitioners to operate in a legal environment that enables them to achieve a practical solution to their problems
 It appears that the court is usually inclines to accept a broad leeway for decision makers involved in discretionary,
policy and fact-laden determinationsbut they are frequently not in agrees on whether and how to defer when
reviewing questions of law and statutory interpretation
 Applying a “Contextual” Standard of Reasonableness
o There is not a categorical different when it comes to question of discretion vs questions of statutory
interpretation
 CampOne Standard (Abellla)
o Still too much time, effort on SOR analysis means we need reform (para 20): : “[W]e still find the merits
waiting in the wings for their chance to be seen and reviewed.” (para 25
o . Difference between correctness and reasonableness is rhetorical:
“Are we not saying essentially the same thing when we conclude that there is only a single “reasonable”
answer available and when we say it is “correct”? And this leads to whether we need two different names
for our approaches to judicial review, or whether both approaches can live comfortably under a more
broadly conceived understanding of reasonableness. “ (para 24)
Revisit after McLean: involves a Q of stat interp about which the Court suggests only 1
reasonable interp exists
 Concerns about reasonableness review as “disguised” review for correctness (para 27)
o One standard (reasonableness) is robust enough to uphold the rule of law; can encompass idea of a single
“reasonable” answer:
 Nothing Dunsmuir says about the rule of law suggests that constitutional compliance dictates how
many standards of review are required. The only requirement, in fact, is that there be judicial
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review in order to ensure, in particular, that decision-makers do not exercise authority they do not
have. I see nothing in its elaboration of rule of law principles that precludes the adoption of a
single standard of review, so long as it accommodates the ability to continue to protect both
deference and the possibility of a single answer where the rule of law demands it, as in the four
categories singled out for correctness review in Dunsmuir. (para 31)

Correctness vs Reasonableness recent law and (very informed) opinion

CORRECTNESS REASONABLNESS
Khela v Mission Institute, para 79 Stratas JA: current approach is incoherent; apply the same
SCC judges insisting on correctness (on substance) where approach (Dunmuir) to procedural questons as they too
the “rule of law” requires it (does this still include the duty come in “all shapes and sizes”
of fairness?): Daly: SCC is going to have to address the question;
• Brown, Moldaver and Côté in Edmonton East “third” category of cases where Cdn courts have applied
and Wilson v Atomic Energy deference to questions of PF already exists.

Dunsmuir
 The Majority in Dunsmuir explained the reasonableness standard
 Reasonableness is a deferential standard animated by the principles that underlies the development of the two
previous standards of reasonableness: certain questions that come before administrative tribunals do not lend
themselves to one specific particular resultinstead they may give rise to a number of possible reasonable
conclusions
 Tribunals have a margin of appreciation within the range of acceptable and rational solutions
 In JR reasonableness is concerned mostly with the existence of justification, transparency and
intelligibility within the decision making process. BUT it is also concerned with whether the decision falls
within a range of possible acceptable outcomes which are defensible in respect of the facts and law
 The move towards a single reasonableness standard does not pave the way for amore intrusive review by courts
and does not represent a return to pre-southam formalism
 Deference is both an attitude of the court and a requirement of the law of JRit does not mean the court are
subservient to the determinations of decision makers, or that the courts must show blind reverence to their
interpretations, or that they may be content ot pay lip service to the concept of reasonableness review while in
fact imposing their own view
 Rather, deference imports respect for the decision making process of adjudicative bodies with regard to bother
the facts and the law
 The concept of “deference as respect” requires the courts not submission but a respectful attention to the
reasons offered or which could be offered in support of a decision [Dyzenhaus]
 Deference in the context of reasonableness standard therefore implies that courts will give due consideration to
the determinations of decision makers
 A policy of deference recognized the reality that in many instances those working day to day in the
implementation of frequently complex administrative schemes have or will develop a considerable degree of
expertise or field sensitivity to the imperatives and nuances of the legislative regime
 Deference requires respect for the legislative choices to leave some matters in the hands of the administrative
decision makers, for the process and determinations that draw on particular expertise and experiences, and for
the different roles of the courts and administrative bodies within the Canadian Constitutional System

APPLICATIONKeeping in mind whether under the reasonableness standard the court can convey little deference to
a decision makerin such cases is reasonableness really just a disguised version of correctness?
 The interpretation of the Adjudicator was unreasonable
 The reasoning process was deeply flawed, and led to a construction of the statute that fell outside the range of
admissible statutory interpretations
 The interpretation of the law is always contextualthe law does not operate in a vacuum, the adjudicator was
required to take into account he legal context which he was to apply to law
 The grievance process cannot have the effect of changing the terms of a the contract of employmentthe
adjudicators reasoning process was inconsistent with the employment contract and thus flawed
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 The combined effect of s 97(2.1) and 100.1 cannot, on any reasonable interpretation remove the employers
right under contract law to discharge an employee with reasonable notice or pay in lieu of notice
 The interpretation was simply unreasonable in the context of the legislative wording and the large labour
context in which it is embedded
CLASS NOTES
 See how reasonableness looks like correctness here
 Here they look at the adjudicators reasons, but don’t really test if they are reasonable, we just see their
explanation as to why its is wrongnote the methodology difference here
 They don’t ask what did he do and who did he get there?
 The dissent who applies correctness used the fact that a contractual elements was present as the reason to apply
correctnessbecause contractual elements are outside the adjudicators expertise

Khosa
 Binnie (Majority) vs Fish (Dissent)Class Notes
 We see Binnie saying the IAD is the final decision maker, remorse doesn’t have to mean the same
thing is HC context as it does in criminal law context
 Fish-Goes with reasonableness. He says this is not enough to not grant the HC.
 Think about how the rule of law interacts herethe criminal court found something different that this
court. Things mattered a lot here that didn’t in the criminal courts.
 Where the reasonableness standard applies it requires deference
 Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather
determine if the outcome falls within a “range of possible and acceptable outcomes which are
defensible in respect of the facts and law”
 There might be more than one reasonable outcome
 As long as the process and the outcome fit comfortably with the principles of justification, transparency
and intelligibility it is not open to a reviewing court to substitute its own view to a preferable outcome
 The majoritythere is considerable deference owed to the IAD and the broad scope of discretion conferred by
the IRPA, thus there was no basis for the federal court to interfere with the IAD decision to refuse special relief
in this case
 This view is predicated on:
 The role and function of the IAD
 That K does not contest the validity of the removal order made against him
 Is seeks exceptional and discretionary relief that is only available if the IAD itself is satisfied that
“sufficient humanitarian and compassionate considerations warrant special relief”
 The IAD was not satisfied HC was warranted in this case
 Whether the court here agrees with the IAD is not what is to be decided here
 Reasons
 Dunsmuir reinforced in the context of adjudicative tribunals reasons are important
 In this case both the majority and dissenting reasons of the IAD disclose with clarity and considerations
in support of both points of view, and the reasons for the disagreement of the outcome
 At the factual level, the are dived in large part of the differing interpretations of K’s expression of
remorse
 Majority IADHe is relatively remorseful, and remorsefulness is a factor for the exercise of relief, the
are not convinced this is a compelling factor here (aka don’t believe he is that remorseful)
 Dissent IADthey found him remorseful and contrite
 This sort of factual dispute should be resolved by the IAD in the application of immigration policy,
NOT reweight in the courts
 In terms of transparency and intelligible reasons, the majority considered each of the rubic factors
they reviewed the evidence and decided that in this case most of the factors did not mitigate strongly
in favor of relief
 The IAD was required to reach its own conclusions based on their appreciation of the evidence, which
it did
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 As was noted in Dunsmuir, certain questions that come before administrative tribunals do not lend themselves
to one specific particular result, instead they may rise to a number of possible reasonable conclusions.
Tribunals have a margin of appreciation within the range of acceptable and rational solutions
 In light of the deference properly owed to the IAD, this court finds that the decision of the IAD fell within the
range of reasonable outcomes
 DISSENT-K’s denial of street racing may well evidence some lack of insight into his conduct, but it cannot
reasonably said to contradict all the evidence in his favor on the issues of remorse, rehabilitation and likelihood
of reoffence
 In response, the majority says it is not the job the reviewing court to re-weigh the evidence

Catalyst Paper, 2012 SCC

FACTS: C is a large speciality paper company, one of the factories was located in Cowichan on Vancouver Island. It
was a small community when they first came, and has since grown. More people cam and residential property values
skyrocketed, while the values of C’a property remained pretty much the same. The district was concerned that taxing
residential property at a rate that reflected its actual value relative to the value of other classes of property in the district
would result in unacceptable tax increased to existing residents. They responded by keeping residential property taxes
low and increasing the tax rate on C’s property. C was unhappy (they were in a very bad position, losing money etc).
The district acknowledged the problem and embarked on a gradual program to reduce C’s rates. C still didn’t think this
was enough, so having exhausted recourse to the district their only alternative was to seek relief from the courts.
ISSUE: When can courts review municipal taxation bylaws and what principles guide that review?
HOLDING
 The power of the courts to set aside municipal bylaws in narrow, and cannot be exercised simply because a
bylaw imposes a greater share of tax burden on some ratepayers than others.
OUTCOME
 C’s argument-the courts can set aside municipal bylaws
 The district argues-the judicial power to overturn municipal bylaws is very narrow, and it cannot overturn a
bylaw simply because it places a disproportionate burden on a taxpayer
 The BCSC and BCCA upheld the impugned bylaw
 The parties agree that the reasonableness standard applies here
 The question is whether the bylaw at issue is reasonable having regard to process and whether it falls
within a range of possible reasonable outcomes
 What factors should to court consider in determining what lies within the range of possible reasonable
outcomes?
 The answer lies in Dunsmuir’s recognition that reasonableness must be assessed in the CONTEXT of
the particular type of decision making involves and all relevant factorsit is an essentially contextual
inquiry
 A fundamental question is the scope of the decision making power conferred on the decision maker by
governing legislation
 The case law suggest that municipal bylaws must reflect the broad discretion provisional legislators
have traditionally accorded to municipalities engaged in delegated legislation
 Bylaws are not quasi-judicial decisionsthey involve an array of social, economic, political and non-
legal considerations
 In this context reasonableness means courts must respect the responsibility of elected representatives to
serve the people who elected them and whom they are ultimately accountable
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 The decided cases support the view of the trial judge that, historically court have refused to overturn
municipal bylaws unless they were found to be “aberrant” “overwhelming” or if “no reasonable body
could have adopted them
 This deferential approach to JR of municipal bylaws have been in place for over a century
 Unreasonable? if they were found to be partial and unequal in their operations as between different
classes, they were manifestly unjust, if they disclosed bad faith, if they involved such oppressive or
gratuitous inferences with the rights of those subject to them as could find no justification in the minds
of reasonable menthese are the general indicators of unreasonableness in the context of municipal
bylaws
 BUT remember what is unreasonable will depend of the applicable legislative framework
 C argues that Dunsmuir changed the law and that the traditional deferential approach to review of
municipal bylaws no longer holdsbut this would be a misreading of Dunsmuir
 Reasonableness is a flexible deferential standard that varies with the context and the nature of the
impugned administrative acthere the context is the adoption of municipal bylaws
 The courts reviewing bylaws for reasonableness must approach the task against the backdrop of a wide
variety of factors that elected municipal councillors may legitimately consider in enacting bylawsthe
applicable test is this: only if the bylaw is one no reasonable body informed by these factors could
have taken will the bylaw be set aside
 Reasonableness limits the municipal councils in the sense that he substance of their bylaws must
conform to the rationales of the statutory regime set up by the legislature
 Here the relevant legislation is the Community Chartersection 197 gives municipalities a broad and virtually
unfettered legislative discretion to establish property tax rates
 Another limitation on municipalities passing bylaws flows form the need for reasonable process
 In determining if a particular bylaw falls within the scope of the legislative scheme, factors such as
failure to adhere to required processes and improper motives are relevant
 Municipal counsils are to adhere to appropriate processes and cannot act for improper purposes
 It is important to remember that requirements of process, like the range of reaosonable outcomes,
carries with the context and nature of the decision making process
 Formal reasons may be required for decisions that involve quasi-judicial adjudication by a
municipality, BUT that does not apply to the process of passing bylaws
 The reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and
statements of the policy that give rise to the bylaw
 The municipality here is not required to formally explain the basis of the bylaw
 APPLICATION
 Remember-ultimate question=whether the taxation bylaw falls within a reasonable range of outcomes
(this must be judged on the approach the courts have traditionally adopted in reviewing bylaws passed
by municipal councils.
 Municipal councils passing bylaws are entitled to consider not merely the objective considerations
bearing directly on the matter, but broader social, economic and political issuesit is appropriate to
consider bother process and content of the bylaw
 Process
o C does no allege the voting procedure of the District were incorrect, not doe sit allege bad
faithit contends that the districts process is flawed because it provided no formal reasons
o This contention cannot succeed
o Municipal councils are not required to give formal reasons or lay out a rationale basis for the
bylaws
o The reasons for the bylaws were clear to everyone here
o Discussions and correspondence between the district and C left little doubt as to the reasons for
the bylaw
 Content
o The impact of the bylaw on C is harsh
o But there are countervailing considerations-the council was entitled to consider the impact of
long term fixed income residents
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o The council is working over a period of years towards the goal of more equitable sharing of the
tax burdenits approach complies with the Community Charter (which permits municipalities
to apply different tac rates to different classes of property)
 Taking all the factors into account, the bylaw fell within a reasonable range of outcomes
 CLASS NOTES
 There is not charter anchor, or constitutional one. This is a classic polycentric decision at the legislative
end.
 They did a contextual application of the reasonableness standardfundamental questions is the scope
of decision making power conferred on the decision maker by the governing legislation
 What do they use as reasons? here there were no reasons but the court used the record, it was clear
why the decision was being made and catalyst knew the reasons, so there is no problem of TJI here.
This isn’t “gap” filling, they don’t have to supply reasons, it is clear from the record.
Contextual approach to reasonableness review
The context of what reasonableness requires is defined by the scope of the decision-making power:
Para 18 – “The fundamental question is the scope of decision-making power conferred on the decision-maker by the
governing legislation. The scope of decision-making power is determined by the type of case at hand.”
Methodology of review? (Compare to ATA, Agraira)
• What are the “reasons” reviewd in the case?

McLean v BC (Securities Commission), 2013 SCC

FACTS: involved the review of a decision by the BC Securities Commission, based on its interpretation of language in
its home statute (the securities act) to allow the commission to calculate a limitation period for initiating proceedings
against a person from the date of the person’s settlement with a securities commission in another jurisdiction rather than
from the date of the persons underlying misconduct. The issue is around pursuing sanctions in BC. (was it based on the
original conduct or settlement agreement)
HOLDING
 SCC applied a reasonableness standard presumptively (on the basis that he commission interpreted its own
statute) and upheld the commission’s decision as reasonable.
REASONING
 The court is satisfied that the commissions interpretation is a reasonable construction of the relevant statutory
languagethe commissioners conclusions supports the legislative objective facilitating interjurisdictional
cooperation in secondary proceedings and does so without undercutting the crucial role of limitation periods
 What was happening
 The OSC order barred the appellant for 5 years from trading in securities, and banner her for 10 years
from acting a officer or director for certain entities the reach of these sanctions did not extend
beyond Ontario’s boarders (no one challenged the proprietary of these orders)
 Nothing happened for 15 months, then she was notified by the Executive Director of the BC’s security
commission that he was applying to the commission under s 161(1) of the Act for public interest order
against her based on section 161(6)(d)
 161(6)(d)allows the executive director to make an order if the person has agreed with a securities
regulatory authority, a self regulatory body or exchange, in Canada or elsewhere to be subject to
sanctions, conditions and restrictions or requirements [the commissioner was relying on her settlement
agreement with the OSC]
 She says that this is untenable because the plain wording of the section says nothing about decisions, orders or
settlement agreements being admissble as evidencealso that under her interpretation the limitation period
could expire before the event referred to in section 161(6)(d) even occurs
 The court conclude that BOTH interpretations are reasonablethe statutory language here is not clear
 It will not always be the case that a particular provision permits the multiple reasonable interpretations
 Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the
administrative decision maker adopts a different interpretation, its interpretation will necessarily be
unreasonable
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 Between two possible interpretations put forward with respect to the meaning of s 159 as it applies to
161(6)(d), both find some support in the text, context and purpose of the statute
 Aka both are reasonable
 The litmus testis that if the commission had adopted the other interpretation the court would be hard
pressed to reject its decision as unreasonable
 The bottom line, the commission holds the interpretive upper handunder a reasonableness
review the court defers to ANY reasonable interpretation adopted by an administrative decision
maker, EVEN IF other reasonable interpretations may exist
 Because the legislature has charged the administrative decision maker rather than the courts with
administering and applying its home statute, it is the decision maker first and foremost that has the
discretion to resolve a statutory uncertainty by adopting any interpretation that the language can
reasonably bear
 Thus the appellants burden here is not to show her competing interpretation is reasonable BUT that the
commissions interpretation is unreasonable (she has not done this)
CLASS NOTES
 Note that this is also a case where the court is dealing with implicit decision makingthe order does not have
reasoning about the timeline (because the commission assumed they were within the timeline)
 The court relied on the commissions submissions on JR to explain either interpretation
 Does reasonableness always mean that there is more than one reasonable interpret of a statute?
 It will not always be the case that provision permits multiple reasonable interpretations
 Are they talking about correctness then? and if so does it matter if the methodology looks the same?
The only difference may be that the decision makers interpretation gets more deference
 In this case the majority said both interpretations were possible here (the minority said the only reasonable
interpretation was that the clock starts running after the settlement agreement in order to satisfy the statutory
purpose [aka the commissions interpretation])
 Maybe statutory language is not always ambiguousIn those cases there is only one reasonable interpretation

Interpretation of s. 159 (vis-à-vis s. 161(6)(d)):

Proceedings under this Act…. must not be commenced more than 6 years after the date of the events that give rise to
the proceedings.
Question of interpretation: what are the events that start this clock? The underlying misconduct (2001)? Or the Ontario
settlement agreement?
1) Issue of lack of reasons from Sec. Commiss on the point
– How does the Court handle this?
2) Does reasonableness always mean there is more than one reasonable interp of a statute?

“It will not always be the case that a particular provision permits multiple reasonable interpretations. Where the
ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker
adopts a different interpretation, its interpretation will necessarily be unreasonable — no degree of deference can justify
its acceptance….. In those cases, the “range of reasonable outcomes” (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single reasonable interpretation — and
the administrative decision maker must adopt it” (Moldaver J, para 38)
An invitation to bring correctness review back in through reasonableness review?
Burden of proof: “The bottom line here, then, is that the Commission holds the interpretative upper hand: under
reasonableness review, we defer to any reasonable interpretation adopted by an administrative decision maker, even if
other reasonable interpretations may exist…. Accordingly, the appellant’s burden here is not only to show that her
competing interpretation is reasonable, but also that the Commission’s interpretation is unreasonable. “ (Paras 40-41)
Karakatsanis J says only one reasonable interpretation here.

Alberta Teaches Association, 2011 SCC

FACTS: here the SCC outlines how the courts should conduct the reasonableness review of an adjudicators “implicit”
decision (ie a decision for which the adjudicator has supplied no reasons). In that case the adjudicator appointed by
Alberta’s information and privacy commissioner under the Personal Information Protection Act decided that the
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Association had violated its member’s privacy rights by disclosing personal information. The Association sought JR of
the order on the basis that he commissioner failed to extend the deadline within which an inquiry could be held under
the PIPA and lost jurisdiction for failing to comply with timelines prescribed in section 50(5) of the act. This issue was
not raised before the original adjudicator by any of the parties and not addressed in her reasons
HOLDING
 In the Case of Implicit Decision (aka decision for which there are no reasons) on issues not raised at the first
hearing:
 When a reasonable basis for the decision is apparent to the reviewing court, it will generally be
unnecessary to remit the decision to the tribunal, instead the decision should simply be upheld as
reasonable
 On the other hand, a reviewing court should show restraint before finding that an implied decision on
an issue not raised before the tribunal was unreasonable it will generally be inappropriate to find that
there is no reasonable basis for the tribunals decision without first giving the tribunal an opportunity to
provide one
REASONING
 Had the issue been raised before the adjudicator it would have been subject to review on a reasonableness
standard
 Where reviewing court finds that the tribunal has made an implicit decision on a critical issues, the deference
due to the tribunal does not disappear because the issue was not raised before the tribunal
 The adjudicator implicitly decided that extending the 90 day period for completing of an inquiry after the
expiry of that period did not result in the automatic termination of the inquiry
 The adjudicator provided no reasons for her decision, it is therefor necessary to address how a reviewing court
is to apply the reasonableness standard in such circumstances
 Obviously where a tribunals decision is implicit, the reviewing court cannot refer to the tribunals process of
articulating reasons, nor to justification, transparency and intelligibility within the tribunals decision making
process
 The reviewing court cannot give respectful attention to the reasons offered because there are not reasons
 It may well be that the administrative decision maker did not provide reasons because the issue was not raised
and it was not viewed as contentiousif there exists a reasonable basis upon which the decision maker
could have decided as it did, the court must not interfere
 The court should still give due regard to reasons when they are givenand this should not dilute the
importance of giving proper reasons
 Deference under the reasonableness standard is best given effect when administrative decision makers provide
intelligible and transparent justification for their decisions, and when courts ground their review of the decision
in the reasons providedthis is when they are subject to a duty to give reasons
 But where there is no duty, or when only limited reasons are required, it is entirely appropriate for courts to
consider the reasons that could be offered for the decision when conducting a reasonable review
 The point is that parties cannot gut the deference owned to a tribunal by failing to raise the issue before the
tribunal and thereby mislead the tribunal on the necessity of providing reasons
 In some cases, it may be that a reviewing court cannot adequately show deference to the administrative
decision maker without first providing the decision maker the opportunity to give its own reasons for the
decision
 In such a case, even tough there is an implied decision, the court may see fit to remit the issue to the tribunal to
allow the tribunal to provide reasons
 However, remitting the issue to the tribunal may undermine the goal of the expedient and cost-efficient
decision making
 Accordingly, remitting the issue to the tribunal is not necessarily the appropriate option available to a court
when it is asked to review a tribunals implied decision on an issue that was not raised before the tribunal
 When a reasonable basis for the decision is apparent to the reviewing court, it will generally be unnecessary to
remit the decision to the tribunal, instead the decision should simply be upheld as reasonable
 On the other hand, a reviewing court should show restraint before finding that an implied decision on an issue
not raised before the tribunal was unreasonable it will generally be inappropriate to find that there is no
reasonable basis for the tribunals decision without first giving the tribunal an opportunity to provide one
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 Care must be taken to not give parties an opportunity for a second hearing before a tribunal as a result of their
failure to raise at the first hearing all of the issues they should have raised
CLASS NOTES
 We still see Binnie not really letting go of his approach from Dusmuirthe idea of possibility different
approach to reasonableness (saying we wont escape complexities by applying one standard)
 Binnie and the Majority have slightly different approach, but both are still good one is saying it is a matter of
context one is saying it is a matter of scrutiny
 We see a concern that if you can see that a decision/outcome is reasonable it would not be efficient to go back
and have the tribunal to make a decision/justify the decision they already made
 We must also remember that there is a duty to give reasons (procedural fairness) BUT that duty can be satisfied
in a variety of ways so we have to have an approach to reasonableness that allows for variation in what
reasons are
2 points:
– Is reasonableness a variable standard?
– How do you apply reasonableness when the reasons of the decision maker do not address the
issue at hand? (i.e., gap in the reasons)
ATA –Binnie vs Rothstein on contextual vs variable application of reasonableness
Rothstein J, ATA:
“The majority reasons in Dunsmuir do not recognize variable degrees of deference within the reasonableness standard
of review ….Once it is determined that a review is to be conducted on a reasonableness standard, there is no second
assessment of how intensely the review is to be conducted. A review of a question of statutory interpretation is
different from a review of the exercise of discretion. Each will be governed by the context. But there is no
determination of the intensity of the review with some reviews closer to a correctness review and others not.” (at para
47)
Binnie J
Pre ATA, in Khosa (2009): “Reasonableness is a single standard that takes its colour from context” ( at para 59, for
majority)
In ATA:
“’Reasonableness’ is a deceptively simple omnibus term which gives reviewing judges a broad discretion to choose
from a variety of levels of scrutiny from the relatively intense to the not so intense.” (at para 87)

reasonableness review with a “gap” in the reasons

Recall that principle of deference requires “respectful attention to the reasons offered or which could be offered in
support of a decision (at para 52, emphasis added)
Note also:
Assuming it is appropriate for the court to allow a new issue to be raised on JR, “[i]t will generally be inappropriate to
find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunity to
provide one.” (at para 55)
How does the Court find a reasonable basis for the adjudicator’s implied decision? i.e., How is the gap filled?
How is the method of review in this case the same or different from correctness review?

Agraira, 2013 SCC

 FACTS: A was the Libyan citizen who wanted to become a permanent residence, refugee status failed after a
credibility issue. Association with the possible terrorist organization.
 QUESTIONWas the ministers decision reasonable?
 From Newfoundland and Labrador Nurses’ Union
 Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons
is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two
discrete analyses — one for the reasons and a separate one for the result
 It is a more organic exercise — the reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me,
is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that
make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”
 Meaning of “National Interest” Under Section 34(2) of the IRPA
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 The meaning of the term “national interest” in s. 34(2) of the IRPA was central to the Minister’s
exercise of discretion in this case.
 The Minister, in making his decision with respect to the appellant, did not expressly define the term
“national interest”.
 We are therefore left in the position, on this issue, of having no express decision of an administrative
decision maker to review.
 We are therefore left in the position, on this issue, of having no express decision of an administrative
decision maker to review.
 It is evident from the Minister’s holding that “[i]t is not in the national interest to admit individuals
who have had sustained contact with known terrorist and/or terrorist-connected organizations” that the
Minister made a determination of the meaning of “national interest”.
 . In these circumstances, we may “consider the reasons that could be offered for the [Minister’s]
decision when conducting a reasonableness review” of that decision
 Accordingly, I now turn to consider, what appears to have been the ministerial interpretation of
“national interest”, based on the Minister’s “express reasons” and the Guidelines, which inform the
scope and context of those reasons. I will then assess whether this implied interpretation, and the
Minister’s decision as a whole, were reasonable.
 The Ministers Interpretation of “National Interest”
 the Minister placed particular emphasis on matters related to national security and public safety in the
reasons he gave for his decision
 Taking all the above into account, had the Minister expressly provided a definition of the term
“national interest” in support of his decision on the merits, it would have been one which related
predominantly to national security and public safety, but did not exclude the other important
considerations outlined in the Guidelines or any analogous considerations
 , I am of the view that the Minister is entitled to deference as regards this implied interpretation of the
term “national interest”. As Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has
made an implicit decision on a critical issue, the deference due to the tribunal does not disappear”
 In my view, the Minister’s interpretation of the term “national interest is reasonable. It is
reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7,
[2011] 1 S.C.R. 160, it “accords . . . with the plain words of the provision, its legislative history, its
evident purpose, and its statutory context” (para. 46). That is to say, the interpretation is consistent
with Driedger’s modern approach to statutory interpretation:
 Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I
should also confirm that the decision as a whole is valid
 The Minister’s reasons were justifiable, transparent and intelligible. Although brief, they made clear the
process he had followed in ruling on the appellant’s application.
 reviewed and considered all the material and evidence before him.
 Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent
accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the
appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had
sustained contact with the LNSF.
 The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions
as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued
presence in Canada would not be detrimental to the national interest
 the Minister’s decision falls within a range of possible acceptable outcomes which are defensible in light of the
facts and the law. The burden was on the appellant to show that his continued presence in Canada would not be
detrimental to the national interest
 a court reviewing the reasonableness of a minister’s exercise of discretion is not entitled to engage in a new
weighing process
CLASS NOTES
 Clearly this is a decision of the ministers discretionbut the court treats it as a separate question of statutory
interpretation
 But this case hives off what “national interest” meansso in order to determine if someone should get the
exception he would first have to decide what national interest means
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 Here the court separates the twois this really correct though?
 What is the nature of this question? they treat the question of the meaning of national interest separate from
the application
 What is the gap in the reasons?
 A argues that the HC factors are not talked about as relevant
 Definition of national interest
 What is the range of reasonable outcomes? he is in or he is not
 Really the only questions is whether there was enough in the reasons to uphold the rule of lawthe
court said yes!
 What does reasonableness require in the process of reasons

What gap (or gaps) is there in the reasons?

How does the Court fill the gap?
How is the idea of reasonableness as “justification, transparency and intelligibility” satisfied in this case? Do you
agree with the Court’s approach?

Edmonton EastMajority Applying Reasonableness

ISSUE Was it Reasonable for the Board to Find It Could Increase the Assessment?
 Reasonableness Review in the Absence of Reasons
 When a tribunal does not give reasons, it makes the task of determining the justification and
intelligibility of the decision more challenging
 When procedural fairness requires a tribunal to provide some form of reasons, a complete failure to do
so will amount to an error of law
 However, when a tribunal’s failure to provide any reasons does not breach procedural fairness, the
reviewing court may consider the reasons “which could be offered” in support of the decision
 In appropriate circumstances, this Court has, for example, drawn upon the reasons given by the same
tribunal in other decisions and the submissions of the tribunal in this Court
 Here the company seemed to have ceded to the submission that the board has the authority to make
changes (increase or decrease)And a party “cannot gut the deference owed to a tribunal by failing to
raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing
reasons”
 Accordingly, I shall review the Board’s decision in light of the reasons which could be offered in
support of it
 Was the Boards Decision Reasonable?
 The Board proceeded on the basis that s. 467(1) allowed it to increase the assessment at the City’s
request. In my view, this was a reasonable interpretation of the legislation.
 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make
a change to an assessment roll or tax roll or decide that no change is required.
 On its face, the language of s. 467(1) empowers the Board to “change” an assessmentas a matter of
ordinary language change could include “increase”
 This is also consistent with the purpose of the MGA, a contrary interpretation may run against the
MGA
 Within the complaints process, the Board’s role is to determine whether the assessment is fair and
equitable (s. 467(3))Interpreting “change” in this way is consistent in ensuring assessments will be
fair and equitable
 The Board’s view that s. 467(1) allows it to increase an assessment is also consistent with the scheme
of the MGA
 A complaint does not really belong to anyone, it is simply the process through which the Board, with
assistance from the taxpayer and municipality (and potentially other persons at the Board’s request),
determines the correct, fair and equitable value for the assessment.
 To conclude, it was reasonable for the Board to interpret s. 467(1) to permit it to increase the
assessment at the City’s request
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 The alternative would permit taxpayers to use the complaints process to prevent assessments
made in error from being corrected, thereby frustrating the MGA’s purpose.
CLASS NOTES
 This is a helpful statutory interpretation of how the court applies the reasonableness standard
 The majority is looking at the implied decision and can it be supported (reasonableness), and dissent is looking
at it from a fresh perspective (like you would on correctness)
Methodology of review?
What is different from the dissent’s methodology?
How is majority deferential?

Charter Rights and Discretionary Decisions

 Whether an administrative tribunal has the authority to deal with constitutional questions or is a court of
competent jurisdiction has traditionally been considered a jurisdictional question on which the tribunal had ot be
correct [Martin]
 Since Dunsmuir, the concept of jurisdiction has been significantly narrowed
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 Dunsmuir confirmed that correctness applies to constitutional questions, with out requiring any standard of review
analysis on this point because of the unique role of s. 96 courts as interpreters of the Constitution
 BUTthis simple “rule” does not apply to all types of constitutional issues that arise at the administrative level
and may be reviewed by a court. Types of Constitutional questions that arise on JR:
1. The review of a tribunals decision with respect to its jurisdiction over constitutional challenges to it
enabling legislation and over remedies,
2. The review of the tribunals determination of the constitutional validity of legislation or award of a
constitutional remedy, and
3. The review of an administrative decision that allegedly violates a charter (or aboriginal) right
 Distinguishing the different types of constitutional questions is important for determining the standard of review
o The first and second type of issueStandard of review=Correctness
o The Third issuethe SCC determined to Dore that applicable standard of review=Reasonableness
 The standard of review also points to the methodology that is used to determine whether the infringement of a
right can be justified
o If the issue arises form a challenged to the legislation as a whole, then the use of a correctness standard
requires that the Oakes test apply in conducting a section 1 analysis
o If the issue arises from a challenge to the exercise of administrative discretion, then the reasonableness
standard allows for deference (adjusted to incorporate the question of “proportionality” as set out in Dore)
 In Dore, the court move decisively toward an administrative law approach, using a reasonableness standard
(infused with charter values) to review discretionary decisions that impact charter rights

PRE DORE
• Inconsistency in approaches at the SCC
– Apply full Charter analysis (incl s. 1) to decisions? Or analyze via reasonableness (no s. 1)?
• Concerned methodology of review – s. 1 or not? Oakes as poorly suited to review of admin decisions:
– “Prescribed by law”?
– Articulation of “pressing and substantial objective” behind the decision?
– Should admin agencies/decision-makers have to justify their decisions under s. 1 as part of their way of
doing business?

Dore v Barreau du Quebec, 2012 SCC

FACTS: D was a lawyer in Quebec. He was before a judge who was a real jerk, he made detorgatory comments
towards D. D then wrote a letter to the judge critizing him etc. He also requested to not go before that judge again and
filed a complaint against the judge. The judicial panel found that the judge behaved improperly. After the letter D wrote
was forwarded to the professional governance body of lawyers in Quebec, which initiated a complaint against him. The
board suspended him for 21 days, he appealed the decision to a tribunal (before which is agued against the
constitutionality of that decision). The tribunal reviews the conditionality of the boards decision and found that it was a
minimal restriction of his freedom of expression. D then applied for JR of the tribunals decision (the Superior Court of
Quebec upheld the decision)
ISSUE: What is the standard of review for administrative decisions that are challenged on the basis of a charter
violation?
HOLDING
• The discipline committees decision to reprimand that lawyer reflected a proportionate balance of its public
mandate to ensure that lawyers behave with “objectively, moderation and dignity” with the lawyers expressive
rightsthus it was reasonable
REASONING
• D is challenging the constitutionality of the decision itself, claiming that it violated his freedom of expression
under the Charter
• This raises squarely the issue of how to protect Charter rights and the value they reflect in the context of
adjudicated administrative decisions
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• Normally, if a discretionary administrative decision is made by an adjudicator within their mandate, that
decision is judicially reviewed for its reasonablenessthe question is whether the presence of a charter issue
calls for the replacement of this administrative law framework with the Oakes test, the test traditionally used to
determine whether the state has justified a law’s violation of the Charter as a “reasonable limit” under section 1
• Abella seems it seems possible to reconcile the two regimes in a way that protects the integrity of each:
• By recognizing that the Oakes test may not be workable in the context of an adjudicated decision, distilling its
essence works the same justificatory musclebalance and proportionality
• The notion of deference in administrative law should not more be a barrier to effective charter protection than
the margin of appreciation is when we apply a full section 1 analysis
• In assessing whether a law violated the charter, we are balancing the governments pressing and substantial
objectives against the extent to which they interfere with the Charter right in issue
• In assessing whether an adjudicated decision violated the Charter we are engaged with balancing somewhat
different, but related considerations. namely that the decision make disproportionality (and therefor
unreasonably) limited a charter right
• In both cases we are looking for whether there was an appropriate balance between rights and objectives, and
the purpose of both exercises is ot ensure that the rights at issue are not unreasonably limited
• The nature of the reasonableness analysis is always contingent on its contextin the charter context the
reasonableness analysis is one that centre of proportionality (that is on ensuring that the decision interferes with
the relevant charter right no more than necessary given the statutory objectives)
• If the decision maker is disproportionately impairing a charter right, it is unreasonableif on the other hand it
reflects a proper balance of the Mandate of the charter protection, it is a reasonable one
• Analysis
• In this case there is confusion about the appropriate framework to be applies in reviewing administrative
decision for compliance with charter values
• The SCC goes through the history of how these decisions have been treated [Page 880-881]
• Today the court has two options for reviewing discretionary administrative decisions that implicate charter
values
• to adopt the Oakes framework, developed for reviewing laws for compliance with the constitution (this protects
charter rights, but it does so at the risk of undermining a more robust conception of administrative law)
• For the court to embrace a richer conception of administrative law, which wish discretion is exercised in light
of constitutional guarantees and the values they reflect (under this approach it is unnecessary to use section 1,
the decision makes are ALWAYS required to consider fundamental values)
• The administrative law approach recognizes the legitimacy that this court has given to administrative decision
making in cases such as Dunsmuirthe court has emphasized that administrative bodies are empowered, and
indeed required to consider Charter values within the scope of their expertise
• When charter values are applies to an individual administrative decision they are being applies in relation to a
particual set of factsDusmuir tells us this should attract deference
• When a particular “law” is being assessed for charter compliance, on the other hand, we are dealing with
pricniples of general application
• The more flexible administrative approach to balancing Charter values is also more consistent with the nature
of discretionary decision making
• This court has recognized that difficult of applying Oakes beyond the context of reviewing a law or other rules
of general application
• The court then revisits some of the decisions where they found applying the Oakes framework would not work
• This then is used to support the argument that the Oakes framework may not work in all contexts involving
charter rights
• The same seems to be true in the administrative law context where decision makers are called upon to exercise
their statutory discretion in accordance with charter protectionsthat Oakes may not be the best vehicle here
• There is no doubt that when a tribunal is determining the constitutionality of a law the standard of review is
CORRECTNESS
• BUTit is not clear that correctness should be used to determine whether an administrative decision maker has
taken sufficient account of Charter values in making a discretionary decision
• It seems that applying Dunsmuir principles, results in reasonableness remaining the applicable review standard
for disciplinary panelsthe fact that Charter interests are implicated does not argue for a different standard
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• Reasons for judicial restraint in reviewing agency decision on matter in which their expertise is relevant does
not lose their cogency simply because the question in issue also has a constitutional dimension
• An administrative decision maker exercising a discretionary power under his or her home statute has by virtue
of their expertise and specialization, particular familiarity with the competing considerations at play in
weighting charter values
• Many cases have shown the SCC recognition of the distinct advantage that administrative bodies had in
applying the charter to specific sets of facts in the context of their enabling legislation
• In the alternative, if correctness applies then every case that implicates charter values would transform things
that would normally be reviewed on a reasonableness standard, into one reviewing on a correctness one
• So every time a party would argue a charter values on JR correctness would applythis would ignore the
specialized expertise tribunals have in exercising discretionary powers in the areas where charter values are
being balanced
• Exampleevery time some was disciplined by a body the party would argue charter rights, and that JR would
be transformed from a reasonableness assessment to a correctness one
• Even where charter values are involves, the administrative decision maker will generally be in the best position
to consider the impact of the relevant Charter values on the specific facts of the casebot the decision maker
and reviewing courts must remain conscious to the fundamental importance of Charter values in the analysis
• How does the administrative decision maker apply Charter values in the exercise of statutory discretion? they
balance the Charter values with the statutory objectives. In balancing the decision maker should (1)consider the
statutory objectives (2)should ask how the Charter value at issue will best be protected in view of the statutory
objectivesthis is at the core of PROPORTIONALITY (requires the decision maker the balance the severity of
the interference of the Charter protection with statutory objectives [this is where the role of judicial review for
reasonableness aligns with the one applies in the Oakes context]
• In the context of a review of a administrative decision for reasonableness, where the decision makers are
entitled to a measure of deference so long as the decision “falls within a rang of possible acceptable outcomes”
• On JR, the question becomes whether in assessing the impact of the relevant Charter protection and
given the nature of the decision and the statutory and factual context, the decision reflects a
proportionate balance of the Charter protections at play
• When a court is faced with reviewing an administrative decision that implicates charter rights the issues
becomes one of proportionality and calls for integrating the spirit of section 1 into JR
• Through this JR is conducted within the administrative framework, there is still conceptual harmony between a
reasonableness review and the Oakes framework, since both contemplate giving a margin of appreciation of
deference to administrative and legislative bodies in balancing Charter values against broader objectives
• If in exercising statutory discretion, the decision maker has properly balanced the relevant charter value with
the statutory objectives, the decision will be found to be reasonable
• Application
• The charter value at issue hereexpression (specifically, how should it be applies in the context of a lawyers
professional duties)
• The determination of whether the actions of a lawyer violate section 2.03 is an given case is left entirely to the
disciplinary councils discretion
• No part is challenging the importance of professional discipline to prevent incivility in the legal profession
• We are balancingfundamental importance of open criticisms of public institutional with the need to ensure
civility in the profession
• This balancing is fact dependent, and a discretionary exercise
• In the context of a disciplinary hearing, criticism will be measured against the publics reasonable expectation of
a lawyers professionalismthe council found that the letter was outside those expectations (his displeasure
with the judge was justified, but the response was not)
• In the circumstances, the disciplinary council found that D’s letter warranted a reprimand this conclusion
was a reasonable balance of D’s expressive rights with statutory objectives
CLASS NOTES
3 Points:
• What it stands for: clarification or statement of new approach to review of admin decisions for compliance with
Charter rights
• Applying reasonableness as proportionality
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• Implications, issues going forward (after Loyola, LSBC v TWU, Blood Tribe v Alberta)
Adds another dimension or approach to reasonableness when Charter values, interests (rights?) are at stake:
proportionality
“[T]here is nonetheless conceptual harmony between a reasonableness review and the Oakes framework since
both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing
Charter values against broader objectives.” (para 57)
 How to apply reasonableness as proportionality? – see paras 55-57
 Application in the case? – see paras 59-72, esp para 70

 **NOTE they use the language “implicated” charter valuenot a violation of a charter right
 Remember the importance of the discretionary element
 The methodology we take to reasonableness in this context takes elements from oakes test
 Reasonableness of proportionality
 Loyola shows that Dore hasn’t really sunk in yet, we still see the court using different methodology
 Correctness exists with challenges to the law itselfreasonableness when we are challenging a decision
 Why does the argue for reasonableness
 Tribunals have expertise and correctness and doesn’t respect that
 Respecting legislative intention
 Inefficiencies
 The shift was already therethink back to Baker (it may not have been express there but this is what was going
on)
 Applicationyou look at statutory objective then whether the decision maker balanced the severity with
statutory objectives
 Reasonableness and proportionality here is more of a fluid discussion about he issues( as opposed to an
application of a defined test)

Note on Loyla High School v Quebec, 2015 SCC

 Post Dore the SCC remains divided on the methodology and standard of review, particularly when there are
difference regarding the scope of the charter right in issue
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 In this case, the court agreed that a ministerial decision not to exempt a private catholic school from teaching a
mandatory secular program on ethics and religious culture must be overturned, but the judges were divided on
whether the apply an administrative law or charter analysis
 The majority in applies Dore to find that decision unreasonable because it did not “strike a proportionate balance
between the charter protections and statutory objectives at stake in this case”
 The minority held that Loyola’s freedom of religion was infringed by the ministered decision, and conducted an
abbreviated analysis under s.1
 The majority also further explained the approach to a proportionate analysis under a reasonableness standard of
review that was briefly described in Dore
o It explained that charter value analysis under administrative law requires a preliminary step of identifying
whether the decision limits charter rights followed by the proportionality analysis
o This analysis involves considering whether the decision stakes a proportionate balance “that gives effect,
as fully as possible to the Charter protections at stake given the particular statutory mandate

Freedom of religion case, discretionary decision of the Minister of Education, scope of the right is in issue.
4:3 split on std of review/methodology of review
– Majority: applies Doré
– Concurring minority: applies Charter and s. 1 analysis
Minority (McLachlin CJC):
“[h]owever one describes the precise analytic approach taken, the essential question is this: did the Minister’s decision
limit Loyola’s right to freedom of religion proportionately --- that is, no more than was reasonably necessary?” (at para
114, p. 890).
Abella J (Majority) – further direction on methodology and “proportionality as reasonableness” (p. 890):
Step 1: identify whether the decision limits a Charter right (para 39)
Step 2: proportionality
“A Doré proportionality analysis finds analytic harmony with the final stages of the Oakes framework used to
assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. … The
Doré analysis is also a highly contextual exercise. As under the minimal impairment stage of the Oakes analysis,
under Doré there may be more than one proportionate outcome that protects Charter values as fully as possible in
light of the applicable statutory objectives and mandate…” (at paras 40-41).

Compare: s 1 & standard of reasonableness

S. 1: Rights & Freedoms are subject “only to such Dunsmuir:
reasonable limits prescribed by law as can be Inquiry involves both “the process of articulating
demonstrably justified in a free and democratic society” the reasons and to outcomes.”
Oakes: pressing & sub. objective weighed against rational “justification, transparency and intelligibility within the
connection; min impairment; final balance decision-making process.” + a decision that “ falls within
a range of possible, acceptable outcomes”

Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423
 Our purposes for this case will be to consider the application of the Doré analysis more than the reasoning on
freedom of religion
 Consistency with Statutory Duties [Para 78-97]
o The Benchers were cognizant of the fact that Charter values were implicated in the decision as to
whether TWU should be an approved law faculty
o decision required them to consider TWU’s concerns for religious freedom, as well as opponents’
concerns for equality on the basis of sexual orientation.
o Where Charter values are implicated in an administrative decision, and the decision might infringe a
person’s Charter rights, the administrative decision-maker is required to balance, or weigh, the
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potential Charter infringement against the objectives of the administrative regime where an
administrative tribunal undertakes such a balancing, it is entitled to deference.
o however, that many tribunals have limited contact with the Charter and may have considerable
difficulty interpreting it There is also a real possibility that a tribunal’s preoccupation with its own
statutory regime will lead it to value the statutory objectives of that regime too highly against Charter
values.
o While Doré requires a court to grant tribunals a “margin of appreciation” in determining whether they
have properly balanced matters, the tribunal’s decision will, in all cases, have to fall within the bounds
of reasonableness. Where a tribunal has failed to appreciate the significance of a Charter value in the
balancing, its decision will be found to be unreasonable
o In making their October 31, 2014 declaration, the Benchers did not engage in any exploration of how
the Charter values at issue in this case could best be protected in view of the objectives of the Legal
Profession Act. They made no decision at all, instead deferring to the vote of the majority in the
referendum.
o A tribunal’s function, in other words, is always to make the decision that it considers correct. The
“reasonableness” standard is not one to be applied by the tribunal, but by a court on judicial review.
o In the case before us, it was up to the Benchers to weigh the statutory objectives of the Legal
Profession Act against Charter values, and to arrive at the decision that, in their view, best protected
Charter values without sacrificing important statutory objectives. They could not fulfill their statutory
duties without undertaking this balancing process. In deciding that either result on the referendum
would meet the reasonableness standard, and therefore be acceptable, the Benchers were conflating the
role of the courts with their own role.
 Basically the benchers were saying they would take the referendum decision then decide it was
reasonablethis is not their role
o In our view the judge’s decision to quash the Benchers’ resolution cannot be reached on the
administrative law issues alone. Although the decision of the Benchers is not entitled to deference, it
can be upheld if the Court is able to find that it represented the only reasonable balancing of statutory
objectives with Charter value [so they proceed to a substantive charter analysis]
 The Decision-Maker’s Exercise of Authority When Charter Rights and Values Are Engaged
o It is instructive to note that even in the case of a standard of review calibrated at “reasonableness”, the
range of “reasonable” outcomes can be exceedingly narrow indeed, effectively amounting to one
correct answer
o The balancing exercise that Doré and Loyola call for in the case before us can be expressed this way:
did the decision of the Law Society not to approve TWU’s faculty of law interfere with freedom of
religion of at least the faculty and students of that institution no more than is necessary given the
statutory objectives of the Law Society?
 The Law Society Did Not Balance Charter Rights
o A number of the opinions the Law Society considered are important because they demonstrate that the
Law Society at and before its April 2014 meeting was very much alive to the Charter issues presented
by the case and the proper legal approach to the Law Society’s consideration of a decision exercising
its administrative discretion not to approve TWU’s law school.
o The discussion at the Benchers meeting of April 11, 2014 makes it clear that some Benchers considered
the issue in the context of the balancing exercise mandated by Doré (decided the previous month) and
Loyola (yet to be decided). Others viewed TWU v. BCCT as dispositive
o These recitals suggest that what motivated the resolution adopted at the Special General Meeting was a
concern that a law school “premised on principles of discrimination and intolerance” would not
promote and improve the standard of practice by lawyers. No mention is made of the concerns with
equality of access to TWU’s faculty of law now advanced by the Law Society and its allied intervenors
as more particularly discussed above. More importantly, no reference is made to freedom of religion.
o we conclude that the Benchers improperly fettered their discretion by binding themselves to
adopt the decision of the majority of members on whether “not to approve”. It appears they did
so altruistically in the sense of letting “democracy” dictate the result, and letting the members
have their say. But in so doing, the Benchers abdicated their duty as an administrative
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decisionmaker to properly balance the objectives of the Legal Profession Act with the Charter
rights at stake.
CLASS NOTES
ON JR
• Law Society fettered discretion by binding themselves to the result of the referendum (para 65, 91)
 Therefore did not engage in balancing of Charter values required by Doré (para 85)
 Therefore no deference owed/correctness applied
• Analysis of proportionality then carried out for whether result was reasonable (proportional) in any event
 Balancing of Charter values in decision to not accredit was unreasonable.
What is the decision to review? What is the decision record here that the Court should assess for reasonableness?
– Why doesn’t the LSBC’s careful consideration of the issue in prior moments of decision-making count?
Contrast Catalyst Paper, Baker even McLean re what is considered as the record of reasoning on JR
– What does Doré require in terms of reasons/reasoning process? Does proportionality require a higher
standard for reasons (JTI)? SEE: Blood Tribe v Alberta
• If the Court applied correctness, why did it review for reasonableness? (paras 191-192)
“Unlike many Charter cases, this case does not involve a direct contest …[A direct denial of the right to practice law to
evangelical Christians] would obviously infringe at least s. 2 of the Charter and would have to be justified under s. 1.”
(at para 115)
– Huh???? Why would Dore proportionality analysis apply in that circumstance: a decision delegated to
LSBC by law and not prescribed by law…
– A “right” to practice law?
My somewhat considered opinion:
What was the LSBC thinking?? Decision on a violation of Charter rights by majoritarian vote??? Recall Charter rights
are to protect minorities from the tyranny of the majority. So not reasonable…. (note decision I’m analysis here is 26
Sept, not ultimate decision. Decision on how to decide)
But – if after 12 months, might s. 13(2) [Referendum procedure in the Act] require this decision process? And if so, is
this decision process itself potentially ill-considered if not unconstitutional itself?

Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 10

FACTS: Basically you have a band, they got rights to a parcel of land, and they want the subsurface rights to that land
too (from the government). They approached the government to get these rights, consultation lasted many years, the
minister of energy said Alberta was not willing to transfer the subsurface rights.
REASONING
 Relevant Legislation
o The Minister’s authority to approve a transfer of subsurface property derives from the Mines and
Minerals Act, RSA 2000, c M-17 (the “Act”). Under s 9 of the Act, the Minister has the authority to
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dispose of mineral rights. Under s 11(2)(b), the Minister has the authority to transfer subsurface rights
to the Crown in right of Canada
 The Standard of Review
o The Band argues that I am to review the Minister’s refusal for correctness because the Minister’s
decision deals with constitutional questionIn particular, the Band argues that the Minister failed to
properly account for the Crown’s constitutional obligations with respect to Treaty 7, the NRTA and the
honour of the Crown
o Alberta argues that I am to review the decision on the more deferential reasonableness standard, saying
the existing jurisprudence, notably Muskoday First Nation v Saskatchewan, 2016 SKQB 73 (CanLII),
has established that reasonableness is the standard of review of a Minister’s decision of whether to
transfer subsurface rights
o Is there Precedence? NO
o The “administrative body” exercising delegated statutory authority is the Minister of Energy. His
authority derives from the Act. In exercising that authority he must interpret the Act, that is, his home
statute. Reasonableness is therefore the presumptive review standard.
o Section 35 of the Constitution Act, 1982 “recognized and affirmed” existing treaty rights. These treaty
rights are constitutionally protected, subject to justifiable infringements
o Decisions involving “Charter values” are generally reviewed on a standard of reasonableness
o In this case, the questions engaging the constitution pertain more to the interpretation of a
constitutional agreement and of a constitutional enactment, than to their impact for which the Minister
of Energy might be better positioned to appreciate
o This case involves determining the scope of constitutional principles rather than applying them
o In deciding here whether Alberta had a constitutional obligation to transfer the subsurface rights to the
Band as a consequence of Treaty 7, the NRTA or the honour of the Crown, the Minister had to be
correct
o However, if the Minister has no such legal obligation to authorize the transfer or sale of the requested
property to the Band, he nevertheless has the authority to do so. His discretionary decision in that
regard is subject to review on a reasonableness standard. Such a discretionary decision involves the
Minister acting under his home statute, and the presumptive reasonableness standard is not rebutted.
 The Minister’s Discretionary Decision
o Was the Minister Correct Constitutionally?
 Yes
o Was the Minister’s Decision Reasonable?
 In a review for reasonableness of the Minister’s discretion to nevertheless authorize the
transfer, the Court cannot replace the administrative decision with its own
 In this case, the power to decide has been delegated to a Minister of the Crown without any
statutory limitations, guidance, criteria or considerations. The range of acceptable outcomes
therefore is very broad
 The Crown owns the property at issue here and has all the rights of ownership that a private
owner would enjoy. Therefore, in this context of almost unfettered discretion, involving
whether to relinquish property rights, a priori the range of acceptable outcomes is extremely
broad, easily encompassing both approving and denying a request.
 the Band must show that the Minister’s reasons, read together with the outcome, do not fall
within a range of possible outcomes. At a minimum, though, those differences between what
the Minister himself earlier wrote and what was later attributed to him in the ADM’s email to
the Premier, impair my ability to find the requisite transparency in the process of articulating
the reasons and outcomes
 the deficiencies in those reasons (itemized in para’s 122 to 125 above) materially undermine a
finding of the requisite intelligibility of the decision and its reasons, of finding a sufficient
rational connection between the reasons given and the outcome.
 it does not appear that the Minister’s deliberations at any time considered the role the decision
could play for the Band in the ongoing process of reconciliation between Aboriginal peoples
and the CrownOpportunities to advance and promote this ‘process of reconciliation’ warrant
attention and consideration with that in mind. It is constitutionally mandated by Section 35
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Therefore, even though the Act contains no mandatory considerations by the Minister for such
decisions, or limitations on the breadth of his discretion, the broader law does
 The failure to turn his mind to a mandatory consideration may alone have rendered his
decision unreasonable, but I need not go that far. The combination of the diminished
intelligibility and rationality of the decision and reasons and his failure to consider how
his decision might affect the process of reconciliation, results in my finding his decision
unreasonable
 Conclusion I therefore quash the decision and return the Band’s request to the Minister for reconsideration.

LSBC v TWU & Blood Tribe

• Show application, what difference the Charter/Constitutional value context makes to the application of the
reasonableness standard
• Issue of reasons, how proportionality and concern for constitutional values plays out.
• Extension beyond Charter to Aboriginal issues (and back again? Reasoning point in Blood Tribe unique to honour
of the Crown?)

Statutory Standards of Review

 What happens when the statutes preserve standards of review that have effectively been ousted by Dunsmuir

David Mullan’s response to Karakatsanis’ plea for legislated stds of Rev in Edmonton East (CLEBC, Admin Law,
Nov 2016)
Administrative Tribunals Act, ss 58-59 specifying standard of review
• Not by any stretch a codification of standard of review for all prerogative and statutory decision-making in BC
• Only apply to the extent that decision is that of a body that is subject to those provisions of the ATA
• For example, do not apply to ministerial or other forms of executive decision-making; by-law making
• More particularly, do not generally apply to bodies subject to review by way of statutory appeal as opposed to
petition for jr
• In other words, without specification, would not have applied to appellate regime that was in play in Edmonton
East
See McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895

**NOTE THE APA DEFINED PRIVATIVE CLAUSE!!

1. When does the ATA apply to determine standards of review?

 Step 1 - Read the enabling statute to know if ATA applies and/or look at charts (linked from moodle)
 General rule – ATA applies to “adjudicative” tribunals in BC
 If the ATA applies it replaces the Dunsmuir analysis
 The act might say the ATA applies except section 59, this then means section 58 applies (which is more
deferential)
2. How do we determine whether s. 58 (more deferential) vs s. 59 applies and then which standard
applies under each section?
 Step 2 – If ATA applies, read the enabling statute to determine whether s. 58 or s. 59 applies
 Can be done at the same time as step 1!
 E.g., again, from Fraser Health Authority): Workers Compensation Act, s. 245.1
 Note that 245.1 excludes the application of s. 59
 In case you weren’t sure you were reading that properly (?!!), can you find the privative clause
and does that privative clause satisfy the definition of a privative clause in the ATA (see s. 1,
definitions)
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3. How do we apply these standards? i.e., what do these definitions relative to the common law?
Focus on PU relative to reasonableness
 applying the standard Khosa: the common law & statutory stds (BC ATA specifically)
 Binnie, paras 19, 50-51:
 Procrustean beds = bad
 Even “PU” in BC continues to evolve through broader admin law cases
 “The expression ‘patently unreasonable’ did not spring unassisted from the mind of the legislator.
It was obviously intended to be understood in the context of the common law jurisprudence,….”
The content of PU “will continue to be calibrated according to the general principles of
administrative law.” (para 19)
 ATA specifies std of review but not content of that std. ecept for in relation to discretionary
decisions

Key issue in determining SOR under s. 58 and s. 59 under the ATA: Characterizing the nature of the question. And
noticing the gaps.
s. 58 (2)(c): “all matters other than those identified in paragraphs (a) and (b), the stnard of review… is correctness”
And what isn’t named in s. 59 either?
What doesn’t fit under (a) (fact, law, or exercise of discretion) or (b) common law rules of natural justice and
procedural fairness?
See Lavendar Coop, 2011 BCCA 114
It depends on the nature of the question, this is subject to characterization so it may be disputed

Approach to applying a statutory std of PU: BC and Ont

e.g. BC v Mzite, 2014 BCCA 220
• Applies PU under ATA:
“The reasonableness standard of review in the case under
appeal ought to have been expressed by the judge by
asking: is there a reasonable basis, in law or on the
evidence, for the Tribunal’s conclusion…?” (at para 48)
Ont: e.g., Shaw v Phipps, 20120 ONSC 3884 (note on p.
830)
• HR Code, s. 45.8 indicates PU standard is the
only one available on JR (pre-Dunsmuir drafting)
• Interpreted the PU standard via Dunmuir, and so
treated as reasonableness

Tribunal Act
Standard of review with privative clause
58 (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the
tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has
exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be
decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the
tribunal's decision is correctness. [NOTE THIS MEANS MIXED FACT AND LAW, OR QUESTIONS OF
JURISDICTION IS CORRECTNESS]
(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion [NOTE-this
isn’t for when we are talking about questions of fact, it when we are dealing with discretion]
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
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Standard of review without privative clause

59 (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for
all questions except those respecting the exercise of discretion, findings of fact and the application of the common law
rules of natural justice and procedural fairness.
(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all
the evidence, the finding is otherwise unreasonable.
(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having
regard to whether, in all of the circumstances, the tribunal acted fairly.

KhosaBinnie (Writing for the Majority)



British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC
FACTS: H, S and M (the “workers”) were among seven technicians at a single hospital laboratory who were diagnosed
with breast cancer. Each of them applied for compensation under the Workers Compensation Act on the basis that the
cancer was an occupational disease. The Act provides that where a worker is disabled from an occupational disease that
is due to the nature of his or her employment, compensation is payable as if the disease were a personal injury arising
out of and in the course of that employment. In accordance with the applicable policy, the payment of benefits is
conditional upon the employment having been of “causative significance” in the development of the worker’s illness.
The medical experts who provided evidence concluded that there was a lack of a sufficient scientific basis to causally
link the incidence of breast cancer to the workers’ employment in the laboratory. A review officer of the Workers’
Compensation Board denied each of the workers’ claims. The workers each appealed the Board’s decision to the
Workers’ Compensation Appeal Tribunal. A majority of the Tribunal found that the workers’ breast cancers were
indeed occupational diseases.
The employer’s application for judicial review of the Tribunal’s original and reconsideration decisions was allowed:
both decisions were set aside and the matter was remitted back to the Tribunal. On appeal by the workers, the majority
of the Court of Appeal dismissed the appeal, holding that the Tribunal’s reconsideration decision was a nullity and that
the Tribunal’s original decision was patently unreasonable
ISSUE: Was the decision patently unreasonable?
HOLDING
 The appeal by the workers should be allowed. The appeal by the Tribunal should be dismissed.
REASONING
 The standard of review applicable to the Tribunal’s original decision requires curial deference, absent a finding
of fact or law that is patently unreasonable.
 Because a court must defer where there is evidence capable of supporting a finding of fact, patent
unreasonableness is not established where the reviewing court considers the evidence merely to be insufficient.
 The presence or absence of opinion evidence from an expert positing or refuting a causal link is not
determinative of causation. Causation can be inferred — even in the face of inconclusive or contrary expert
evidence — from other evidence, including merely circumstantial evidence.
 Subject to the applicable standard of review, the task of weighing evidence rests with the trier of fact.
In the instant case, the Tribunal’s original decision cannot be said to have been patently unreasonable.
 While the record on which that decision was based did not include confirmatory expert evidence, the
Tribunal nonetheless relied upon other evidence which, viewed reasonably, was capable of supporting
its finding of a causal link between the workers’ breast cancers and workplace conditions
 Standard of Review
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 the applicable standard of review requires curial deference, absent a finding of fact or law that is
patently unreasonable (Administrative Tribunals Act, s. 58(2)(a)).
 The Tribunal’s conclusion that the workers’ breast cancers were occupational diseases caused by the
nature of their employment was a finding on a question of fact
 That finding is therefore entitled to deference unless Fraser Health demonstrates that it is patently
unreasonable — that is, that “the evidence, viewed reasonably, is incapable of supporting a tribunal’s
findings of fact”
 patent unreasonableness is not established where the reviewing court considers the evidence merely to
be insufficient
 this standard precludes curial re-weighing of evidence, or rejecting the inferences drawn by the fact-
finder from that evidence, or substituting the reviewing court’s preferred inferences for those drawn by
the fact-finder.
 the issue that the Tribunal decided was precisely the sort of issue that the legislature intended that it
should decide. Section 254 of the Act provides that, on appeals from decisions of the Board, the
Tribunal has exclusive jurisdiction to determine all questions of fact. While, in doing so, the Tribunal
may choose to draw from the expert evidence put before it (as it drew here from expert evidence of
historical exposures and of a statistically significant cluster of breast cancer cases among laboratory
workers), the decision remains the Tribunal’s to make.
 the Tribunal’s original decision cannot be said to have been “patently unreasonable”. While the record
on which that decision was based did not include confirmatory expert evidence, the Tribunal
nonetheless relied upon other evidence which, viewed reasonably, was capable of supporting its finding
of a causal link between the workers’ breast cancers and workplace conditions
DISSENT (Cote)
 There is no evidence — and certainly no positive evidence — capable of supporting a causal link between the
workers’ employment and the development of their respective diseases.
 . The Tribunal is not presumed to possess medical expertise. As a result, while the Tribunal is not bound by the
medical experts’ findings, it cannot simply disregard their uncontradicted conclusions
 The Tribunal disregarded the consensus view of the medical experts, in spite of its own lack of expertise in
medical matters.
 The Tribunal also ignored the applicable policy, which states that there must be sufficient positive evidence
capable of supporting a finding of causative significance, failing which the only possible option is to deny the
claim