Judicial Review of Administrative Action

Judicial Review of
Administrative Action
(Transnational
Perspectives)
Professor Sujith Xavier
Outline
First Hour:
Short Introduction & Class exercise
Approach to JR
Overview of the Syllabus and other admin details
Second Hour
Introductory Lecture
Group Exercise
Pick a partner- someone you DONT know
Ask your partner the following three questions
What did you do before law school (and find out
what they studied)?
Why did you decide to go to law school?
Name a random fact about yourself?
25 minutes
Group Exercise
Present your partner to us
First introduce your partner (name, year,
town/country)
Summarizes their responses to the three
questions
Introduction
Overview of the Syllabus
Teaching evaluation
10% Participation (SHOWING UP for lectures
does not = 10%)
15% Reflection piece
75% Take Home

Materials
Van Harten, Heckman, Mullan: Administrative
Law: Cases and Materials, 6th Edition (Toronto:
Emond Montgomery, 2010) [VHM]
Colleen Flood and Lorne Sossin (eds.),
Administrative Law in Context (Toronto: Emond
Montgomery, 2013) [CFLS]

Email Communication
What is not appropriate
No title
So I need more feedback re. reflection paper.
When can we met? Thanks.
What is appropriate:
Title: Reflection Paper Feedback
Dear Professor Xavier, I would like to meet with
you regarding my reflection paper and discuss my
grade. Thanks, Signed

Late Policy
Law students, like lawyers, must arrive on time.
The course Professor will start the lecture at 10
a.m. Arriving late is extremely disruptive to both
students and the course Professor. If a student is
unable to arrive on time, please inform the course
Professor prior to the lecture.
Course Outline
5 Sections
Introduction to administrative law
Procedural fairness & impartial and independent
decision makers
Substantive standards of review
Remedies
International, comparative and transnational
administrative law
Course Outline
Each section deals with a specific aspect of
Admin Law
Remedies section
Final Section, 2 lectures are on International,
transnational and comparative perspectives
Questions?
Now is the time to ask
Video
Chimamanda Ngozi Adichie
Author (fiction) of Purple Hibiscus (2003), Half of
a Yellow Sun (2006), The Thing around Your
Neck (2009) and Americanah (2013)
Commonwealth Lecture (2012)
TED Talks, The Danger of a Single Story
http://www.ted.com/talks/chimamanda_adichie_t
he_danger_of_a_single_story.html
1st Story: The Nation State

The Emergence of the Nation State
Treaty of Westphalia (1648) or before?
Sovereign Equality
Economic Growth
Self-Interested Nature of the Sovereign

Colonialism and Imperialism
1st Story: Contd

Discovery of the Americas (OR Re-Discovery?)
Two revolutions- Greater Rights (for some?)
Nation State: What does it mean?
Political Science: a nation is any group of people
aspiring to a common political state-like
organization
International law: Montevideo Convention on the
Rights and Duties of States (1933)
1st Story: Contd

organization
2nd Story: Admin Law

Responsible Govt (Canadian Constitution1867)
Effective Control of Territory and Population
Debate about the creation of the first Admin
Agency in 1850 (Railway)
First Admin Agency- Board of Railway

Commissioners (1902)

Contd
Adjudication of Admin Agency Decision
Courts Policing the Boundaries of Agencies
Expansion of the Welfare State
WWI
Inter-War Period
WWII and Now

Contd
NB. Two Points
1: Why the Expansion?
2: Reaction to the Expansion?

Contd
1: Why the Expansion (from govts perspective)?
3 Reasons
Depoliticize Decisions
Specialization and Technical or Subject Matter
Expertise
KEEP OUT Courts

Contd
2: Reaction to the Expansion (from courts and
legal scholars)?
Because of Formalism (4)
Law composed of scientific legal rules that can be
discovered by a careful study and application of
legal principles
Discern Rules from Past Jurisprudence
Interpretation by Judges
Judges ignore Policy Implication

Contd
2: Reaction to the Expansion Contd
Ultra Vires
Concern over the Size of the Public Sector
3rd Story: Globalization (s)

Globalization Defined (dense)
Giddens: [N]ations have lost their sovereignty
they once had and politicians have lost most of
their capability to influence events.
Held and McGrew: simply put, [globalization]
denotes the expanding scale, growing
magnitude, speeding up and deepening impact
of interregional flows and patterns of social
interaction []

Contd
Steger: A set of social processes that transforms
current social conditions of weakening
nationality into one of globality []
de Souza Santos (Santos) : the process of
globalization is selective, uneven and fraught
with tensions and contradictions. But it is not
anarchic.
Santos Two modes of Globalization
1st Mode: globalised localism and localized
globalism

Contd
Santos modes of Globalization Contd
2nd Mode: insurgent cosmopolitanism
Sassen: Rejects the idea that the Nation States

are losing sovereignty

Contd
Sassen:
[t]he heart of this negotiation is the development
inside national states -through legislative acts,
court rulings, executive orders- of the
mechanisms necessary for the reconstitution of
certain components of national capital into global
capital, and necessary to accommodate new
types of rights/entitlements for foreign capital in
what are still national territories in principle under
the exclusive authority of the states
Conclusion
Wednesday:
Some aspects of ROL; the different players
If time permitting; in depth focus on a case
Start remedies
Judicial Review of
Administrative Action
(Transnational
Perspectives)
Professor Sujith Xavier
Introduction
Overview:
Exams:
Video- Chimamanda Ngozi Adichie
Three Stories
State (International Law/History)
Administrative Law (Politics/Institutions/Law)
Globalisation (Sociology/International Relations)
Different Institutions in the Canadian Admin State
Take Home Exam

DONT PANIC!
Two options
Option 1- Dec 9-12 (must pick up and drop off)
Option 2- Dec 19-22 (released on CLEW/Uploaded
on CLEW)
Undertaking- SIGNED and Witnessed: MUST
Inform THUY in writing (email before Dec 01,
2014)
If you have concerns re. two options, come see

me!
We will make it work.
Video
Chimamanda Ngozi Adichie
Author (fiction) of Purple Hibiscus (2003), Half of
a Yellow Sun (2006), The Thing around Your
Neck (2009) and Americanah (2013)
Commonwealth Lecture (2012)
TED Talks, The Danger of a Single Story
http://www.ted.com/talks/chimamanda_adichie_t
he_danger_of_a_single_story.html
1st Story: The Nation State

The Emergence of the Nation State
Treaty of Westphalia (1648) or before?
Sovereign Equality
Economic Growth
Self-Interested Nature of the Sovereign

Colonialism and Imperialism
1st Story: Contd

Creation of the Sovereign- Treaty of Westphalia
Discovery of the Americas OR Re-Discovery?
State: What does it mean?
organization
1st Story: Contd

aspiring to a common political state-like organization
Four Elements- Territory; Population; Govt & Enter into
relationships with other states

Responsible Govt (Canadian Constitution1867
ACT)
Canadian Govts Effective Control of Territory

and Population
Debate about the creation of the first Admin
Agency in 1850 (Railway)
First Admin Agency- Board of Railway
Commissioners (1902)

Contd
Adjudication of Admin Agency Decision
Courts Policing the Boundaries of Agencies
Expansion of the Welfare State
WWI
Inter-War Period
WWII and Now

Contd
NB. Two Points
1: Why the Expansion?
2: Reaction to the Expansion?

Contd
1: Why the Expansion (from govts perspective)?
3 Reasons
Depoliticize Decisions
Specialization and Technical or Subject Matter
Expertise
KEEP OUT Courts

Contd
2: Reaction to the Expansion (from courts and
legal scholars)?
Formalism (4)
Law composed of scientific legal rules that can be
discovered by a careful study and application of
legal principles
Discern Rules from Past Jurisprudence
Interpretation by Judges
Judges ignore Policy Implication

Contd
2: Reaction to the Expansion Contd
Ultra Vires
Concern over the Size of the Public Sector

Globalization Defined (dense)
Giddens: [N]ations have lost their sovereignty
they once had and politicians have lost most of
their capability to influence events.
Held and McGrew: simply put, [globalization]
denotes the expanding scale, growing
magnitude, speeding up and deepening impact
of interregional flows and patterns of social
interaction []

Contd
Steger: A set of social processes that transforms
current social conditions of weakening
nationality into one of globality []
de Souza Santos (Santos) : the process of
globalization is selective, uneven and fraught
with tensions and contradictions. But it is not
anarchic.
Santos Two modes of Globalization
1st Mode: globalised localism and localized
globalism

Contd
Santos modes of Globalization Contd
2nd Mode: insurgent cosmopolitanism
Sassen: Rejects the idea that the Nation States

are losing sovereignty
Institutions of Admin Law

Back to Constitutional Law
Legislatures (Feds/Provinces)
Cabinet & Ministers
Municipalities
Private Bodies
Independent Administrative Agencies

Contd
AND Courts!
Similarities
Independence
Stakeholder Participation
[S]harp end of the administrative process [VHM]
Specialized

Contd
Differences
Formal vs. informal
Caseload
Conclusion
Wednesday:
Some aspects of ROL; the different players
If time permitting; in depth focus on a case
Start remedies
Judicial Review (TR)

Professor Xavier (Lecture 3)
Class Overview
Recap: State; Admin Law & Globalisation
Institutional Players
Rule of Law
Focus on Roncarelli v. Duplessis, [1959] S.C.R.
121
Courts Jurisdiction
Recap
Connection between Canadian Admin and
Globalisation?
CRTC: http://www.crtc.gc.ca/eng/home-accueil.htm
HSARB:
http://www.hsarb.on.ca/scripts/english/default.asp
Formalism? [Flood and Sossin, pps 11-16]
Introductory Remarks
The subject matter of administrative law is the
law governing the implementation of public
programs;
Who creates these programs?
Old Model vs. New Model
Canadian Admin law is about:
Fairness
Reasonable Decision & Correct Interpretation

Back to Constitutional Law
Legislatures (Feds/Provinces)
Cabinet & Ministers
http://www.tatc.gc.ca/index.php?lang=eng
Municipalities
Private Bodies
Independent Administrative Agencies

Contd
AND Courts!
Similarities
Independence
Stakeholder Participation
[S]harp end of the administrative process [VHM]
Specialized

Contd
Differences
Formal vs. informal
Caseload
Rule of Law (ROL)

Chief Justice McLachlin:
Under this traditional model, the executive played a
relatively modest role. Its functions were exercised by
Ministers and their immediate delegates. But this simple
model has increasingly given way to a more complex form
of governance. 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
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada 6th Annual Conference of the
Council of Canadian Administrative Tribunals Toronto,
Ontario May 27, 2013
Rule of Law (ROL)

Operates in the unlit corners of administrative
space
Dicey:
means, in the first place, the absolute supremacy
or predominance of regular law as opposed to the
influence of arbitrary power, and excludes the
existence of arbitrariness, or prerogative, or even
of wide discretionary authority on the part of the
government
Law is supreme
Everyone is subject to Law
Rule of Law (ROL)

Chief Justice McLachlin:
Two important principles emerge from Dicey's vision of the
rule of law.
First, "regular law" is supreme and individuals should not be
subject to "arbitrary power".
Second, the state's officials are as much subject to the "ordinary"
law of the land as other citizens.
As guardians of the rule of law, it is therefore incumbent on

the courts to ensure that any body relying on power delegated
by the legislature abide by the terms and conditions on which
that power was granted. In other words, it is the courts' task
to ensure that administrative tribunals exercised their power in
a manner consistent with its delegated mandated [6th Annual
Conference of the Council of Canadian Administrative
Tribunals Toronto]
ROL Contd
Attack on ROL
Translate policy concerns in to law questions
Specialization
Access to justice
Spread of ROL globally
As part of the democratization trend
ROL Contd
Turn to Canadian jurisprudence
Bedrock of our Constitution
Preamble, Constitution Act 1982: Canada is founded
upon principles that recognize the supremacy of God
and the rule of law
Reference re Manitoba Language Rights [1992] 1

S.C.R. 212:
The rule of law, a fundamental principle of our
Constitution, must mean at least two things. First, that
the law is supreme over officials of the government as
well as private individuals, and thereby preclusive of
the influence of arbitrary power. [Para 59]
ROL Contd
Reference re Secession of Quebec, [1998] 2
S.C.R. 217
At its most basic level, the rule of law vouchsafes
to the citizens and residents of the country a
stable, predictable and ordered society in which to
conduct their affairs. It provides a shield for
individuals from arbitrary state action. [Para 70].
ROL Contd
Roncarelli v. Duplessis
Facts:
R successful restaurant owner
Practicing Jehovah's Witness (JW)
Violent tensions between Catholics and JW
Number of JW arrests
R bailed JWs
Chief Prosecutor complains to Duplessis
ROL Contd
Duplessis contacts Archambault, Chairman of the
Quebec Liquor Commission
R liquor license revoked & has to sell

R brings claim against Duplessis for 118K
SCC (6 to 3) in favour of R
ROL Contd
So where do we start?
An Act Respecting Alcoholic Liquor
Ss. 5, 9 34 & 35
The question of whether or not his acts were

done by him in the exercise of his functions is not
to be determined on the basis of his own
appreciation of those functions, but must be
determined according to law. [near fn. 19]
ROL Contd
No absolute and untrammelled discretion
Disintegration of the rule of law as a fundamental
postulate of our constitutional structure
ROL Contd
SCCs central principles of ROL
Law is supreme over private individuals and
government officials (i.e. one law for all)
Government officials must exercise their power nonarbitrarily and according to law
Requires the creation and maintenance of a

positive order of laws
Requires the relationship between the State and
the individual to be regulated by law
Courts Supervisory Powers

There are generally three sources of review
power
Original jurisdiction;
Statutory right of appeal;
Inherent judicial review jurisdiction.
Structure of our Courts
Conclusion
Three sections
ROL
Remedies
Next week: More on remedies

Introduction
Class Overview
Speluncean Explorers- legal theory
Introduction to Procedural Fairness
Natural Justice to Fairness (Two Strands)
Sources of the Duty of Fairness

Common Law Duty of Fairness
Historical Evolution
Cooper
Ridge v. Baldwin
Nicholson
Is Legal Theory Relevant?

Lon Fuller, The Case of the Speluncean Explorers (1949)
62:4 Harvard Law Review 616
Naomi Cahn et all, The Case of the Speluncean

Explorers: Contemporary proceedings (1993) 61:6 George
Washington Law Review 1754
JR is about judging
Judging is about interpretation of specific words &
concepts (i.e judicial & quasi-judicial vs.
administrative decisions)
Objective and neutral possible?
Speluncean Explorers
Justice Cahn on neutral judging:
When judges seek to apply one set of principles
to decide cases or to divine legislative intent, this
has traditionally meant objective, rational
standards that are capable of general application,
regardless of the particular circumstances of the
case and the individuals who have constructed
the case [at 1758].
Formalism?
For Justice Cahn, this is simply NOT TRUE (why
outsider scholarship)
Justice Cahn on neutral judging:
These particular neutral approaches are
designed to ignore context, not to examine
relationships and dependence (one can, of
course, imagine other neutral approaches that
focus on different issues but still claim the title of
neutrality). Instead, we must realize that our acts
of judging depend on context: the context in
which the legislation was enacted, the context of
the litigant, and the context in which we perform
the acts of interpretation [p. 1758]
Other Judges?
Justices Coombs and Stein (Feminist
perspectives)
Justices Calmore and Greene (Critical Race
Theory)
Justice Miller (Law and Economics)
Justice Paul (Corporate Power)
Contrast with real cases

Justice HBD in Baker
Justice Lebel in CUPE 2003 etc
Introduction Fairness
Fairness is concerned with the manner in which
these decisions makers make their decision
Duty of Fairness- Greatest Achievement of the

Common Law
Protection of Property Rights?
Individuals are treated fairly in the process

Protection contingent on the nature of the dispute
(Judicial or Quasi-Judicial vs. Admin)?
Introduction
If Judicial or Quasi- Judicial Principles of
Natural Justice- BUT this changes with Nicholson
Principles of Natural Justice:

Duty to hear the other side of a dispute before
rendering a judgment &
Decision maker cannot be judge in his own
cause.
Introduction
Procedural Rights (Two Themes)
Threshold question
Procedural guarantees once threshold is
breached
Baker (the go to case)
Sources of Procedural
Fairness
Enabling Statute;
Subordinate legislation;
Policies and guidelines;
Procedural Statues (Ontario Statutory Powers
Procedure Act) ;
Procedural Statues
Ontario Statutory Powers Procedure Act R.S.O.
1990, CHAPTER S.22
Application of Act
3. (1) Subject to subsection (2), this Act applies
to a proceeding by a tribunal in the exercise of a
statutory power of decision conferred by or under
an Act of the Legislature, where the tribunal is
required by or under such Act or otherwise by law
to hold or to afford to the parties to the proceeding
an opportunity for a hearing before making a
decision.
Procedural Statues
Where Act does not apply
(2) This Act does not apply to a proceeding,
(a) before the Assembly or any committee of the Assembly; (b) in or

before,
(i) the Court of Appeal, (ii) the Superior Court of Justice, iii) the Ontario
Court of Justice, (iv) the Family Court of the Superior Court of Justice, (v)
the Small Claims Court, or (vi) a justice of the peace;
(c) to which the Rules of Civil Procedure apply; (d) before an

arbitrator to which the Arbitrations Act or the Labour Relations Act
applies; (e) at a coroners inquest; (f) of a commission appointed
under the Public Inquiries Act, 2009; (g) of one or more persons
required to make an investigation and to make a report, with or
without recommendations, where the report is for the information or
advice of the person to whom it is made and does not in any way
legally bind or limit that person in any decision he or she may have
power to make; or (h) of a tribunal empowered to make regulations,
rules or by-laws in so far as its power to make regulations, rules or
by-laws is concerned.
Sources of Procedural
Fairness
From principles of natural justice
i.e. (1) Must hear the other side &
(2) Cannot be a judge in their own case
Cases for today:

Cooper v. Board of Works for Wandsworth
District (1863), 143 ER 414
Nicholson v. Haldimand-Norfolk Regional Police
Commissioners, [1979] 1 S.C.R. 311
Common Law Duty of

Procedural Fairness
Cooper
Chief Justice Earle:
[] but I can conceive a great many advantages
which might arise in the way of public order, in the
way of doing substantial justice, and in the way of
fulfilling the purpose of the statute by the restriction
which we put upon them, that they should hear the
party before they inflict upon him such a heavy
loss.
Common Law Duty of

Procedural Fairness
Byles & Keating JJ:
Was it a judicial decision or quasi-judicial
decision?
Relied on the powers of the Board to: determine
the offence, decide on the punishment as well the
remedy (i.e. judicial or quasi-judicial)
Formalistic distinctions between Admin decisions

and Judicial/Quasi-Judicial
Transnational/historical implications?
Common Law Duty of

Procedural Fairness
Cooper sets the stage
Admin decision No Natural Justice
Judicial/Quasi-Judicial Natural justice
Common Law Duty of

Procedural Fairness
Ridge v. Baldwin (1964)
Chief Constable (corruption allegations)
Pension (Property rights?)
House of Lords affords procedural rights
protection
The Times They Are A-Changin (BD)

Context?
Common Law Duty of

Procedural Fairness
Nicholson v. Haldimand-Norfolk (Regional) Police
Commissioners [1979] 1 SCR 311 (Ont.)
Summary dismissal of a probationary police
constable 15 months into his term
Not given any reason for dismissal;
Not given notice &
Not allowed to make any representations prior to
his dismissal
Common Law Duty of

Procedural Fairness
Nicholson Contd
N. Counsel argued Fairness
Hughes J. (Divisional Court):
Can the services of a police constable be
dispensed with within eighteen months of his
becoming a constable, without observance by the
authority discharging him of the requirements of
natural justice, including a hearing?
[] but this Court should not allow them to
proceed as if the principles of natural justice did
not exist
Common Law Duty of

Procedural Fairness
Nicholson Contd
Arnup J (COA):
[] the board may act as it was entitled to act at
common law, i.e. without the necessity of prior
notice of allegations or of a hearing and, a
fortiori, with no right of appeal by the constable.
Common Law Duty of

Procedural Fairness
Nicholson Contd
Chief Justice Laskin (SCC):
In short, I am of the opinion that although the
appellant clearly cannot claim the procedural
protections afforded to a constable with more than
eighteen months service, he cannot be denied
any protection. He should be treated fairly not
arbitrarily.
Common Law Duty of

Procedural Fairness
Nicholson Contd
Laskin CJ:
From Natural Justice Procedural Fairness
Common Law Duty of

Procedural Fairness
Conclusion:
Duty of Fairness:
Promotes sound public administration
Accountability of public-decision makers by
ensuring that decisions are made with input from
those affected by them;
Well-informed decisions to be better decisions &
Decision made pursuant to transparent
participatory process promote the importance of
the rule of law values.
Next class
Continue with Procedural fairness
Knight v. Indian Head School Division No. 19, [1990] 1
S.C.R. 653
Cardinal v. Director of Kent Institution, [1985] 2 S.C.R.
643
Procedural Fairness: Limits (Threshold)
VHM Chapter 3 (pp. 109-131)

Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735
Homex Realty v. Wyoming, [1980] 2 S.C.R. 1011
Canadian Association of Regulated Importers v.
Canada (Attorney General), [1993] 3 FC 199

Professor Xavier (Lecture 4 (class 5))
Class Overview
KLP/Recap
When is fairness required?
Cardinal v. Director of Kent Institution [1985] 2
SCR 643
Knight v. Indian Head School Division No. 19,
[1990] 1 S.C.R. 653
Constitutional Protection of PF?
S.7
And what are the limits of the Duty of Fairness?

Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307
KLP/Recap
3 points of confusion
Cultural Relativism
How to fix the problems of PF
Judicial & Quasi- Judicial vs. Administrative
KLP/Recap
Privileging perspective(s)?
Judicial & Quasi- Judicial vs. Administrative
Roncarelli v. Duplessis, [1959] S.C.R. 121
A tribunal that dispenses justice, i.e. every judicial
tribunal, is concerned with legal rights and liabilities,
which means rights and liabilities conferred or imposed by
'law'; and 'law' means statute or long-settled principles.
These legal rights and liabilities are treated by a judicial
tribunal as pre-existing; such a tribunal professes merely
to ascertain and give effect to them; it investigates the
facts by hearing 'evidence' (as tested by long-settled
rules), and it investigates the law by consulting
precedents. Rights or liabilities so ascertained cannot, in
theory, be refused recognition and enforcement, and no
judicial tribunal claims the power of refusal.
KLP/Recap
Roncarelli v. Duplessis, [1959] S.C.R. 121
In contrast, non-judicial tribunals of the type called
'administrative' have invariably based their
decisions and orders, not on legal rights and
liabilities, but on policy and expediency. [Justice
Rand]
PROCEDURAL FAIRNESS
Audi Alteram Partem
(to hear the other
side)
Hearing or Participatory
Rights (before, during,
after)
Sources?
Common Law
1. Threshold?
2. Limits?
3. Content?
Procedural Fairness
When is fairness required?
Decisions of public authorities- for example
executive actors, tribunals, and officials acting
pursuant to statutory authority that affect an
individuals rights, privileges or interests
When is Fairness
Required?
Cardinal v. Director of Kent Institution [1985] 2
SCR 643
Justice Le Dain:
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 (para. 14)
When is Fairness
Required?
Knight v. Indian Head School Division No. 19, [1990]
1 S.C.R. 653
L'Heureux-Dub:
(1) Could the respondent be fired only for cause under
the terms of The Education Act or his employment
contract?
(2) In any event, was the respondent entitled to
procedural fairness?
(3) If so, what is the scope of the duty to act fairly in the
context of an employee-employer relationship?
(4) Given there was a duty to act fairly, was it complied
with?
When is Fairness
Required?
L'Heureux-Dub:
The existence of a general duty to act fairly will
depend on the consideration of three factors: (i)
the nature of the decision to be made by the
administrative body; (ii) the relationship existing
between that body and the individual; and (iii) the
effect of that decision on the individual's rights.
When is Fairness
Required?
(i) the nature of the decision to be made by the
administrative body
No distinctions between judicial & quasi-judicial vs
admin
Finality of the decision
Refers to exceptions
When is Fairness
Required?
(ii) the relationship existing between that body
and the individual
Employment (case at bar)
Generally look at the type of agency, role and
function, & statutory scheme
When is Fairness
Required?
(iii) the effect of that decision on the individual's
rights
HDB: There is a right to procedural fairness only
if the decision is a significant one and has an
important impact on the individual. Various courts
have recognized that the loss of employment
against the office holder's will is a significant
decision that could justify imposing a duty to act
fairly on the administrative decision-making body
[p. 677]
When is Fairness
Required?
Constitutional Protection of Procedural Rights:
S. 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
For more details: Reference BC Motors Vehicle
Act
Limits of Fairness
Duty Applies to Decisions;
The Duty of Fairness does not apply to
legislative decisions
Cabinet & Ministerial Decisions
Subordinate Legislation
Policy Decision
Limits of Fairness
Duty Applies to Decisions
Ontario Statutory Powers Procedure Act, s. 3 (2):
(g)
one or more persons required to make an
investigation and to make a report, with or without
recommendations, where the report is for the
information or advice of the person to whom it is
made and does not in any way legally bind or limit
that person in any decision he or she may have
power to make
Commission), [2000] 2 S.C.R. 307
Duty Applies to Decisions

Blencoe
Bastarache J:
I would therefore adopt the finding of Lowry J.
that the delay in this case is not such that it would
necessarily result in a hearing that lacks the
essential elements of fairness. The respondents
right to a fair hearing has not been jeopardized
[para 104].
Limits of Fairness
The Duty of Fairness does not apply to legislative
decisions:
Duty of fairness does not apply to legislative
decisions or functions
Separation of Powers
Limits of Fairness
Re: Resolution to amend the Constitution [1981] 1
SCR 753
How Houses of Parliament proceed, how a provincial
legislative assembly proceeds is in either case a matter
of self-definition, subject to any overriding
constitutional or self-imposed statutory or indoor
prescription. It is unnecessary here to embark on any
historical review of the "court" aspect of Parliament and
the immunity of its procedures from judicial review.
Courts come into the picture when legislation is
enacted and not before (unless references are made to
them for their opinion on a bill or a proposed
enactment). It would be incompatible with the selfregulating - "inherent" is as apt a word-authority of
Houses of Parliament to deny their capacity to pass
any kind of resolution. [At p. 785].
Limits of Fairness
Reference Re Canada Assistance Plan (B.C.),
[1991] 2 SCR 525
The doctrine is part of the rules of procedural
fairness which can govern administrative bodies.
Where it is applicable, it can only create a right to
make representations or to be consulted.
Moreover, the doctrine does not apply to the
legislative process. The government, which is an
integral part of this process, is thus not
constrained by the doctrine from introducing a bill
to Parliament. A restraint on the executive in the
introduction of legislation would place a fetter on
the sovereignty of Parliament itself.
Limits of Fairness
Wells v. Newfoundland [1999] 3 SCR 199
The decision to restructure the Board was
deliberated and enacted by the elected legislature
of the Province of Newfoundland. This is fatal to
the respondents argument on bad faith, as
legislative decision making is not subject to any
known duty of fairness. Legislatures are subject
to constitutional requirements for valid lawmaking, but within their constitutional boundaries,
they can do as they see fit. [Para 59]
Limits of Fairness
What about Cabinet & Ministerial Decisions?
Att. Gen. of Can. v. Inuit Tapirisat et al. [1980] 2
SCR 735
Estey J: The substance of the question before
this Court in this appeal is whether there is a duty
to observe natural justice in, or at least a duty of
fairness incumbent on, the Governor in Council
in dealing with parties such as the respondents
upon their submission of a petition under s. 64(1)
of the National Transportation Act?
Limits of Fairness
Estey J:
The fact that the function has been assigned as
here to a tier of agencies (the CRTC in the first
instance and the Governor in Council in the
second) does not, in my view, alter the political
science pathology of the case. In such a
circumstance the Court must fall back upon the
basic jurisdictional supervisory role and in so
doing construe the statute to determine whether
the Governor in Council has performed its
functions within the boundary of the parliamentary
grant and in accordance with the terms of the
parliamentary mandate.
Limits of Fairness
Subordinate Legislation?
Homex Realty v. Wyoming, [1980] 2 S.C.R. 1011
Policy Decisions?
Martineau v. Matsqui Disciplinary Bd. [1980] 1 SCR
602
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.
[p.629]
Imperial Oil Ltd. v. Quebec (Minister of the
Environment) [2003] 2 SCR 624
Conclusion
Next Class, continue with limits &
Contents

Overview
Continue PF Limits
Duty Applies to Decisions:
Blencoe;
Duty does not apply to legislative process/decisions

Re: Resolution to amend the Constitution; Reference
Re Canada Assistance Plan (B.C.); Wells v.
Newfoundland
Legislative process/decisions (What does it mean?)
Ministerial Decisions
Subordinate Legislation
Policy Decisions
Contents of the Duty of Fairness

Baker
Duty of Fairness- Limits

Applies to Decisions
Blencoe v. BC (Human rights commission) [2000] 2 SCR
307 (BC)
Bastarache J:
With respect to the alleged failure to disclose information
to the respondent, this is not, in my opinion, a case in
which the unfairness is so obvious that there would be a
denial of natural justice, or in which there was an abuse of
process such that it would be inappropriate to put the
respondent through hearings before the Tribunal. I would
therefore adopt the finding of Lowry J. that the delay in
this case is not such that it would necessarily result in a
hearing that lacks the essential elements of fairness. The
respondents right to a fair hearing has not been
jeopardized (para. 104)

Wells v. Newfoundland [1999] 3 SCR 199
The decision to restructure the Board was
deliberated and enacted by the elected legislature
of the Province of Newfoundland. This is fatal to
the respondents argument on bad faith, as
legislative decision making is not subject to any
known duty of fairness. Legislatures are subject
to constitutional requirements for valid lawmaking, but within their constitutional boundaries,
they can do as they see fit. The wisdom and
value of legislative decisions are subject only to
review by the electorate [para 59].

Are cabinet and Ministerial Decisions covered by the
legislative exemption?
Att. Gen. of Can. v. Inuit Tapirisat et al. [1980] 2 SCR

735
The fact that the function has been assigned as here
to a tier of agencies (the CRTC in the first instance and
the Governor in Council in the second) does not, in my
view, alter the political science pathology of the case.
In such a circumstance the Court must fall back upon
the basic jurisdictional supervisory role and in so doing
construe the statute to determine whether the
Governor in Council has performed its functions within
the boundary of the parliamentary grant and in
accordance with the terms of the parliamentary
mandate [Below FN 14].

Subordinate Legislation?
Homex Realty and Development Co. v Wyoming
Policy Decisions?
Martineau v. Matsqui Disciplinary Bd. 1980] 1
SCR 602
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. [p. 629]

Canadian Association of Regulated Importers [1993]
3 F.C. 199
Justice Reed (Federal Court)
1. [T]raditionally, a decision has been classified as
being of a legislative nature if it sets out general rules
which apply to a large number of persons. This is
counterpoised to a decision respecting one specific
individual. In the present case, the decision which is
challenged sets down rules which govern a very limited
segment of the populace. I am not convinced that even
under the pre-Nicholson jurisprudence, where
classification according to function was a primary
consideration, that the present decision would have
been characterized as being legislative in nature.

Canadian Association of Regulated Importers [1993]
3 F.C. 199
Reed J. (Federal Court)

2- I am not convinced that classifying a decision as
being of a "policy" nature necessarily immunizes it from
judicial review; see, for example, Regina v. Liverpool
Corpn., supra. For the same reasons that I do not think
classifying the decision as "legislative" is useful in the
present case, equally I do not think that classifying a
decision as a policy decision is helpful either. What is
important is an assessment of the effects which
actually follow from the decision.

Canadian Association of Regulated Importers (FCOA)
Linden J: I can see no reason to differentiate the
situation where, as here, it is a Minister rather than a
board that is establishing the quota. Some may be
damaged while others may gain by such a quota, but
the exercise is essentially a legislative or policy
matter, with which Courts do not normally interfere.
Any remedy that may be available would be political,
not legal. It might have been a considerate thing for
the Minister to give the respondents notice and an
opportunity to be heard, but he was not required to do
so.

The duty of Fairness does not apply to public
office holders employed under contract;
The duty of procedural fairness can be

suspended or abridged in the event of an
emergency
Contents of the Duty of

Fairness
Desire to make the duty more flexible and
content-specific (Nicholson)
Generally fairness requires compliance with

some but not all principles of natural justice
Fairness is a minimum duty that must be meta floor for procedural protection rather than a
ceiling
Courts ask: whether it was adequate, not ideal

Fairness
Baker v. Canada (Minister of Citizenship and
Immigration) [1999] 2 SCR 817
Arrived in Canada in 1981;
Four children who were Canadian-born, but she
also had 4 older children who lived in Jamaica
Order to be deported in December 1992
She applied for Permanent Residency while in
Canada (Ministers discretion under Immigration
Act, R.S.C., 1985 s. 114)

Fairness
Immigration Officer G. Lorenz's notes:
[] is unemployed - on Welfare. No income shown no assets. Has four Cdn.-born children- four other
children in Jamaica- HAS A TOTAL OF EIGHT
CHILDREN
Says only two children are in her "direct custody". (No
info on who has ghe [sic] other two).
There is nothing for her in Jamaica - hasn't been there
in a long time - no longer close to her children there no jobs there - she has no skills other than as a
domestic - children would suffer - can't take them with
her and can't leave them with anyone here. Says has
suffered from a mental disorder since '81 - is now an
outpatient and is improving. If sent back will have a
relapse.

Fairness
Letter from Children's Aid - they say PC has been
diagnosed as a paranoid schizophrenic. - children
would suffer if returned Letter of Aug. '93 from psychiatrist from Ont. Govm't.
Says PC had post-partum psychosis and had a brief
episode of psychosis in Jam. when was 25 yrs. old. Is
now an out-patient and is doing relatively well deportation would be an extremely stressful
experience.
Baker v. Canada
This case is a catastrophy [sic]. It is also an indictment
of our "system" that the client came as a visitor in Aug.
'81, was not ordered deported until Dec. '92 and in
APRIL '94 IS STILL HERE!
The PC is a paranoid schizophrenic and on welfare.
She has no qualifications other than as a domestic.
She has FOUR CHILDREN IN JAMAICA AND
ANOTHER FOUR BORN HERE. She will, of course,
be a tremendous strain on our social welfare systems
for (probably) the rest of her life. There are no H&C
factors other than her FOUR CANADIAN-BORN
CHILDREN. Do we let her stay because of that?
Baker v. Canada
I am of the opinion that Canada can no longer
afford this kind of generosity. However, because
of the circumstances involved, there is a potential
for adverse publicity. I recommend refusal but you
may wish to clear this with someone at Region.
There is also a potential for violence - see charge
of "assault with a weapon" [Capitalization in
original.]
Lawyer says PS [sic] is sole caregiver and single
parent of two Cdn born children. Pc's mental
condition would suffer a setback if she is deported
etc.
Baker v. Canada
LHeureux-Dube J:
[t]he purpose of the participatory rights contained
within the duty of procedural fairness is to ensure
that administrative decisions are made using a
fair and open procedure, appropriate to the
decision being made and its statutory,
institutional, and social context, with an
opportunity for those affected by the decision to
put forward their views and evidence fully and
have them considered by the decision-maker.
(para 22)
Baker v. Canada
LHeureux-Dube J:
References back to Knight v. Indian Head School
Division:
It must not be forgotten that every administrative body
is the master of its own procedure and need not
assume the trappings of a court. The object is not to
import into administrative proceedings the rigidity of all
the requirements of natural justice that must be
observed by a court, but rather to allow administrative
bodies to work out a system that is flexible, adapted to
their needs and fair. As pointed out by de Smith
(Judicial Review of Administrative Action (4th ed.
1980), at p. 240), the aim is not to create "procedural
perfection" but to achieve a certain balance between
the need for fairness, efficiency and predictability of
outcome. (para 62)
Baker v. Canada
LHeureux-Dube J:
5 factors that are relevant to determining the content
of the duty of fairness in particular circumstances:
Nature of the decision being made and the process
followed in making it;
Nature of the statutory scheme and the terms of the
statute pursuant to which the body operates;
Importance of the decision to the individuals or
individuals affected;
Legitimate expectation of the person challenging the
decision &;
Choices of procedure made by the agency itself
Baker v. Canada
Not meant to be exhaustive;
All factors are equal in importance;
Court will make an overall assessment based on
the circumstances.
Baker v. Canada
Factor 1: Nature of the decision being made and the
process followed in making it
One important consideration is the nature of the decision
being made and the process followed in making it. In
Knight, supra, at p. 683, it was held that 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. The more the process provided for, the function
of the tribunal, the nature of 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 model will be
required by the duty of fairness. (para 23)
Baker v. Canada
Factor 2: The nature of the statutory scheme
and the terms of the statute pursuant to
which the body operates
Factor 3: the importance of the decision to
the individuals or individuals affected
Kane v. Board of Governor (Dickson J): a high
standard of justice is required when the right to
continue in ones profession or employment is at
stake
Baker v. Canada
Factor 4: Legitimate expectation of the person
challenging the decision
Legitimate expectation of procedural requirements may
arise out of conduct such as representations, promises or
undertakings or past practice or current policy of a
decision-maker.
Canada (AG) v. Mavi [2011] 2 S.C.R. 504
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 said to give rise to the legitimate
expectations are clear, unambiguous and unqualified, the
government may be held to its word, provided the
representations are procedural in nature and do not conflict
with the decision makers statutory duty. Proof of reliance is
not a requisite. (para 68)
Read Mt. Sinai & CAF
Baker v. Canada
Factor 5 Choices of procedure made by the
agency itself
LHeureux-Dube J:
The analysis of what procedures the duty of fairness
requires should also take into account and respect
the choices of procedure made by the agency itself,
particularly when the statute leaves to the decisionmaker the ability to choose its own procedures, or
when the agency has an expertise in determining
what procedures are appropriate in the
circumstances. While this, of course, is not
determinative, important weight must be given to the
choice of procedures made by the agency itself and
its institutional constraints.
Conclusion
Finished up Limits;
Started Contents: Baker
Next time, please read CAF, Mavi and Mt Sinai
Keep reading the materials (NO matter what
happens!)
Thus far (Sep 29 2014), we need to reschedule
one (1) lecture.

Procedural Fairness: Overview

Recap: Threshold; Limits
Contents of Procedural Fairness
Baker Factors
Contents
Notice
Timeliness & Delay
Disclosure
Oral Hearings
Right to Call Evidence and Witnesses
The Duty to Give Reasons (Wednesday)
Procedural Fairness:
Contents
Baker HDB:
[] the duty of procedural fairness is to ensure
that administrative decisions are made using a
fair and open procedure, appropriate to the
decision being made and its statutory,
institutional, and social context, with an
opportunity for those affected by the decision to
put forward their views and evidence fully and
have them considered by the decision-maker.
5 Factors
Contents
Recap:
Baker Factors (summary):
The nature of the decision being made and the
process followed
The nature of the statutory scheme and the terms
of the statute pursuant to which the admin body
operates;
The nature of the statutory regime
The importance of the decision to the individual
Legitimate expectation
The choice of procedure
Contents
Factors are context specific
HDB: I should note that this list of factors is not
exhaustive. These principles all help a court
determine whether the procedures that were
followed respected the duty of fairness. Other
factors may also be important, particularly when
considering aspects of the duty of fairness
unrelated to participatory rights. [Para 28]
Application on para 31
Contents
1) Notice
The most basic component of the duty of fairness
Notice must be adequate in all circumstances
in order to afford to those concerned a
reasonable opportunity to present proofs and
arguments, and to respond to those presented
in opposition
It involves such questions as: Who is proposing

to make a decision? What is the nature of the
decision to be made? When will the decision be
made? Where will the decision be made? Why is
the decision being made? How is the decision to
be made?
Contents
5 Factors are a methodology
Helps lower Courts determine the appropriate
content of the fairness that is owed to the
individual concerned
Contents can be divided into Prehearing rights &
Hearing Rights
Contents
1) Notice
It involves such questions as:
Who is proposing to make a decision?
What is the nature of the decision to be made?
When will the decision be made?

Where will the decision be made?
Why is the decision being made?
How is the decision to be made?
OSPPA (see notice)
Contents
Notice: Reasonable?
General Rule: Notice must be adequate in all
circumstances in order to afford those
concerned a reasonable opportunity to
present proofs and arguments, and to
respond to those presented in opposition
Contents
Canada (AG) v Canada (Commission of Inquiry on
the Blood System in Canada- Krever Commission)
[1997] 3 SCR 440
As long as the notices are issued in confidence to the
party receiving them, they should not be subject to as
strict a degree of scrutiny as the formal findings. This
is because the purpose of issuing notices is to allow
parties to prepare for or respond to any possible
findings of misconduct which may be made against
them. The more detail included in the notice, the
greater the assistance it will be to the party. In
addition, the only harm which could be caused by the
issuing of detailed notices would be to a partys
reputation. (para. 56)
Contents
Canada (AG) v Canada (Commission of Inquiry on
the Blood System in Canada- Krever Commission)
[1997] 3 SCR 440
These procedures were adopted on a consensual
basis, after a meeting with all parties to determine
which protections would be required. I am not sure
what further protections the appellants could have
realistically expected. The procedure adopted was
eminently fair and any objections to it must be
rejected. Nor can I accept that the appellants could
have been misled or that they suffered prejudice as a
result of any misunderstanding about the type of
findings which would be made by the
Commissioner. That submission as well must be
rejected. [para 67]
Contents
2) Timeliness and Delay
Commission) [2000] 2 SCR 307
Minority Decision (Para 160):
As indicated above, the central factors toward which
the modern administrative law cases as a whole
propel us are length, cause, and effects.
Approaching these now with a more refined
understanding of different kinds and contexts of
delay, we see three main factors to be balanced in
assessing the reasonableness of an administrative
delay:
Contents
Blencoe Contd:
(1) the time taken compared to the inherent time
requirements of the matter before the particular
administrative body, which would encompass
legal complexities (including the presence of any
especially complex systemic issues) and factual
complexities (including the need to gather large
amounts of information or technical data), as well
as reasonable periods of time for procedural
safeguards that protect parties or the public;
Contents
Blencoe Contd:
2) the causes of delay beyond the inherent time
requirements of the matter, which would include
consideration of such elements as whether the affected
individual contributed to or waived parts of the delay
and whether the administrative body used as efficiently
as possible those resources it had available; and
(3) the impact of the delay, considered as
encompassing both prejudice in an evidentiary sense
and other harms to the lives of real people impacted by
the ongoing delay. This may also include a
consideration of the efforts by various parties to
minimize negative impacts by providing information or
interim solutions.
Contents
3) Disclosure & Discovery
R. v. Stinchcombe, [1991] 3 S.C.R. 326
The crown must disclose all relevant materials to the
defence in a criminal prosecution
But May v. Ferndale Institution [2005] SCC 82

Per LeBel and Fish JJ: It is important to bear in mind that
the Stinchcombe principles were enunciated in the
particular context of criminal proceedings where the
innocence of the accused was at stake. Given the
severity of the potential consequences the appropriate
level of disclosure was quite high. In these cases, the
impugned decisions are purely administrative. These
cases do not involve a criminal trial and innocence is not
at stake. The Stinchcombe principles do not apply in the
administrative context. (para 91)
Contents
The requirement is that the individual must know
the case he or she has to meet
The question is not whether disclosure is

required in admin proceedings but how much
disclosure is required
Tribunals that are required to hold oral hearings
are likely to have greater disclosure requirement
Contents
What about Security Certificate cases?
Charkaoui v. Canada (CIC) [2007] 1 SCR 350
National security concerns vs. individual rights?
Context?
http://www.justiceforharkat.com/files2/Almrei2005.
jpg
Contents
Similarities between other cases? Baker?
Charkaoui v. Canada (Citizenship and
Immigration), [2008] 2 S.C.R. 326
DOJ Counsel disclosed to the FC Judge that they
failed to provide C with a summary of two
interviews that he had with CSIS officers in 2002
Contents
Charkaoui v. Canada (Citizenship and
Immigration), [2008] 2 S.C.R. 326
CSIS destroyed the notes based on internal policy
C requested the notes
C alleged that his procedural rights had been
infringed and sought to stay the proceedings
Contents
Charkaoui v. Canada LeBel and Fish JJ:
But whether or not the constitutional guarantees
of s. 7 of the Charter apply does not turn on a
formal distinction between the different areas of
law. Rather, it depends on the severity of the
consequences of the states actions for the
individuals fundamental interests of liberty and
security and, in some cases, the right to life. By
its very nature, the security certificate procedure
can place these rights in serious jeopardy, as the
Court recognized in Charkaoui. To protect them,
it becomes necessary to recognize a duty to
disclose evidence based on s. 7. [Para. 53]
Contents
Suresh [] concerned the nature of the right to procedural
fairness in a context where a person had been deprived of
rights protected by s. 7 of the Charter. This Court
emphasized the importance of being sensitive to the
context of each situation:
[D]eciding what procedural protections must be provided
involves consideration of the following factors: (1) the
nature of the decision made and the procedures followed
in making it, that is, the closeness of the administrative
process to the judicial process; (2) the role of the
particular decision within the statutory scheme; (3) the
importance of the decision to the individual affected; (4)
the legitimate expectations of the person challenging the
decision where undertakings were made concerning the
procedure to be followed; and (5) the choice of procedure
made by the agency itself . . . . [Para 57]
Contents
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 a security certificate and to its
implementation. As we mentioned above, these
procedures may, by placing the individual in a
critically vulnerable position vis--vis the state, have
severe consequences for him or her. [Para 58]
Contents
4) Oral Hearings
Singh v. Minister of Employment and Immigration [1985] 1
SCR 177
Wilson J:
In particular, I am of the view that where a serious issue
of credibility is involved, fundamental justice requires that
credibility be determined on the basis of an oral hearing.
Appellate courts are well aware of the inherent weakness
of written transcripts where questions of credibility are at
stake and thus are extremely loath to review the findings
of tribunals which have had the benefit of hearing the
testimony of witnesses in person. I find it difficult to
conceive of a situation in which compliance with
fundamental justice could be achieved by a tribunal
making significant findings of credibility solely on the
basis of written submissions. [Para 59]
Contents
R. v. Khan, [1990] 2 S.C.R. 531
5) Right to call evidence & Cross-examine
witnesses
The guiding principle is that the parties must be
afforded a reasonable opportunity to present
their case
Contents
6) Right to Counsel
NO right to counsel in the context of admin proceedings
British Columbia v Christie [2007] 1 SCR 873

The general right to be represented by a lawyer in a court or
tribunal proceedings where legal rights or obligations are at
stake is a broad right. It would cover almost all if not all
cases that come before courts or tribunals where individuals are
involved. Arguably, corporate rights and obligations would be
included since corporations function as vehicles for individual
interests. Moreover, it would cover not only actual court
proceedings, but also related legal advice, services and
disbursements. Although the respondent attempted to argue
otherwise, the logical result would be a constitutionally
mandated legal aid scheme for virtually all legal proceedings,
except where the state could show this is not necessary for
effective access to justice. (Para 13)
Contents
We conclude that the text of the Constitution, the
jurisprudence and the historical understanding of
the rule of law do not foreclose the possibility that
a right to counsel may be recognized in specific
and varied situations. But at the same time, they
do not support the conclusion that there is a
general constitutional right to counsel in
proceedings before courts and tribunals dealing
with rights and obligations. (Para 27)
Contents
Conclusion
Monday Continue with Contents- look at Duty to
give reasons
Impartiality/Bias

Overview
Recap
Right to Counsel (contd)
Duty to give reasons
Bill of Rights (1960)
Charter of Rights and Freedoms

Impartiality, Independence and Bias
Recap
Notice
Question re. literacy
Procedural Fairness
Right to call evidence and cross-examine
witnesses
Right to Counsel
Although the respondent attempted to argue
otherwise, the logical result would be a
constitutionally mandated legal aid scheme for
virtually all legal proceedings, except where the
state could show this is not necessary for effective
access to justice (Para 13)
Procedural Fairness
We conclude that the text of the Constitution, the
jurisprudence and the historical understanding of
the rule of law do not foreclose the possibility that
a right to counsel may be recognized in specific
and varied situations. But at the same time, they
do not support the conclusion that there is a
general constitutional right to counsel in
proceedings before courts and tribunals dealing
with rights and obligations (Para 27)
Procedural Fairness
Re Mens clothing Manufacturers Association of
Ontario and Toronto Joint Board, Amalgamated
Clothing and Textile Workers Union (1979), 22
LAC (2d) 328
Professor Harry Arthurs
It would not be accurate to say that the gains in the
informality, speed and cheapness of the arbitration
process in this industry are entirely attributable to
the absence of lawyers. But equally one cannot
imagine that the introduction of lawyers could be
accomplished without paying a substantial price in
terms of the efficiency -- and industrial relations
effectiveness -- of arbitration [Para 39]
Procedural Fairness
Re Mens clothing Manufacturers Association of
Ontario
Justice Southey: Arbitrator erred in law.
Right to counsel is part of Natural justice
New Brunswick v. G. (J) [1999] 3 S.C.R. 46
Procedural Fairness
New Brunswick v. G. (J) [1999] 3 S.C.R. 46
Lamer J: [i]n proceedings as serious and complex
as these, an unrepresented parent will ordinarily
need to possess superior intelligence or education,
communication skills, composure, and familiarity
with the legal system in order to effectively present
his or her case.
Procedural Fairness
Lamer contd:
I would like to make it clear that the right to a fair
hearing will not always require an individual to be
represented by counsel when a decision is made
affecting that individuals right to life, liberty, or
security of the person. In particular, a parent need
not always be represented by counsel in order to
ensure a fair custody hearing. The seriousness and
complexity of a hearing and the capacities of the
parent will vary from case to case. Whether it is
necessary for the parent to be represented by
counsel is directly proportional to the seriousness and
complexity of the proceedings, and inversely
proportional to the capacities of the parent.
Procedural Fairness
Duty to give reasons
Baker LHeureux-Dube Justice:
In my opinion, it is now appropriate to recognize that,
in certain circumstances, the duty of procedural
fairness will require the provision of a written
explanation for a decision. The strong arguments
demonstrating the advantages of written reasons
suggest that, in cases such as this where the
decision has important significance for the individual,
when there is a statutory right of appeal, or in other
circumstances, some form of reasons should be
required. This requirement has been developing in
the common law elsewhere. (Para 43)
Procedural Fairness
Scope of the duty is limited
Reasons are not required for all decisions
Rather they are required in certain circumstances
Two rationales that underlie the duty of fairness:
Reasons are required if:
the decision has important significance to the
individual &
an appeal process exists
Procedural Fairness
Adequate reasons?
Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board)
2011 SCC 62
Abella J:
[] the purpose of reasons, when they are
required, is to demonstrate justification,
transparency and intelligibility. (quoting
Dunsmuir) (Para 1)
Procedural Fairness
Baker stands for the proposition that in certain
circumstances, the duty of procedural fairness will
require some form of reasons for a decision (para.
43). It did not say that reasons were always required,
and it did not say that the quality of those reasons is a
question of procedural fairness. In fact, after finding
that reasons were required in the circumstances, the
Court in Baker concluded that the mere notes of an
immigration officer were sufficient to fulfil the duty of
fairness (para. 44). (para 20)
It strikes me as an unhelpful elaboration on Baker to
suggest that alleged deficiencies or flaws in the
reasons fall under the category of a breach of the duty
of procedural fairness and that they are subject to a
correctness review. (para 21)
Procedural Fairness
Charter: discussed throughout the lectures
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;
[]
Procedural Fairness
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;
[]
Procedural Fairness
Authorson v. Canada (Attorney General), [2003]
2 S.C.R. 40, 2003 SCC 39
The submission that a court can compel
Parliament to change its legislative procedures
based on the Bill of Rights must fail. The Bill of
Rights purports to guide the proper interpretation
of every law of Canada, which s. 5 of the Bill of
Rights defines to mean an Act of the Parliament
of Canada enacted before or after the coming into
force of this Act (emphasis added). Court
interference with the legislative process is not an
interpretation of an already enacted law [Para
40].
Charter and PF
Narrow application
Where applicable, the duties are considerable
S. 7. Everyone has the right to life, liberty and
principles of fundamental justice.
Threshold: the claimants must meet the
threshold of establishing that their life, liberty or
security interests affected by the relevant
decision
Charter and PF
Life
Liberty
Security of the person
Contents?
Oral Hearing
Disclosure
Counsel etc
PROCEDURAL FAIRNESS
Audi Alteram Partem
(to hear the other
side)
after)
Sources?
Common Law
1. Threshold?
2. Limits?
3. Content?
S.7 of the Charter
1. Threshold?
2. Content?
1. Oral H.
2. Etc
Impartiality, Independence and

Bias
Overview
Introduction (Impartiality, independence and bias)
3 Jurisprudential waves for Impartiality and
Independence
Wave 1: Independence of the judiciary to mould
the concept of admin tribunal independence;
Wave 2: Ocean Port Hotel: No guarantee of
independence
Wave 3: Push Back
Impartiality &
Independence
Introduction
Impartiality, Independence and Bias at the center
of the of the notion of PF
PF: Was the process fair? Was the decision
maker providing preferential treatment or be
driven by preconceived notions?
Why does this matter?
Affects the parties
Public confidence in the system
Impartiality &
Independence
If bias is the evil, impartiality refers to the ideal
state of the decision-maker or decision-making
institution (L. Jacobs)
Today, focus on Impartiality and Independence;
Bias on Wednesday
Impartiality and Independence:

Common law and constitutional &
Constitutional & Quasi-Constitutional principles
Impartiality &
Independence
Common Law (natural justice) two ideas:
decision maker should neither judge her own
case or have any interest in the outcome of a
case before her;
decision-maker must hear and listen to both sides
of the case
Unwritten constitutional principles and the rule of

law

Overview
Continue with PF (Bill of Rights & Charter)
Cases: Authorson; Singh
Procedural Fairness
Charter: discussed throughout the lectures
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;
[]
Procedural Fairness
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;
[]
Procedural Fairness
Authorson v. Canada (Attorney General), [2003]
2 S.C.R. 40, 2003 SCC 39
The submission that a court can compel
Parliament to change its legislative procedures
based on the Bill of Rights must fail. The Bill of
Rights purports to guide the proper interpretation
of every law of Canada, which s. 5 of the Bill of
Rights defines to mean an Act of the Parliament
of Canada enacted before or after the coming into
force of this Act (emphasis added). Court
interference with the legislative process is not an
interpretation of an already enacted law [Para
40].
Charter and PF
Narrow application
Where applicable, the duties are considerable
S. 7. Everyone has the right to life, liberty and
principles of fundamental justice.
Threshold: the claimants must meet the
threshold of establishing that their life, liberty or
security interests affected by the relevant
decision
Charter and PF
Life
Liberty
Security of the person
Contents?
Oral Hearing
Disclosure
Counsel etc
PROCEDURAL FAIRNESS
1) Duty of Fairness
(to hear the other
side)
after)
Sources?
Common Law
1. Threshold?
2. Limits?
3. Content?
S.7 of the Charter
1. Threshold?
2. Content?
1. Oral H.
2. Etc
PROCEDURAL FAIRNESS
2) Mindset of the
Decision Maker
Impartiality &
Independence
Bias

Bias
Overview
Independence
independence
Wave 3: Push Back
(NOT IN THE CASEBOOK)
Impartiality &
Independence
Introduction
Affects the parties
Impartiality &
Independence
Bias on Wednesday, October 15 2014

Impartiality &
Independence
of the case (PF, (1) Duty of Fairness)
case before her (PF, (2) Decision Makers
independence & impartiality and bias)

law
& Charter and other legislations
Impartiality &
Independence
Tribunal/Court Independence: Why is it
important?
Pp 528-529 Casebook
Rationale for Admin agencies?
ROL:
-Law is supreme over private individuals and
government officials = one law for all
-Government officials must exercise their power
non-arbitrarily and according to law
Independent & Impartial

When we speak of tribunal independence &
impartial, what do we mean?
Tribunals ability to decide matters free of
inappropriate influence or interference.
Interference can stem from different sources
(other than government) & range from the parties
to the dispute, members of the tribunal (for
example someone who is not sitting in judgment
but works for the tribunal) and tribunal staff etc.

Developed in three waves (NOT IN CASEBOOK)
WAVE 1: Used the independence of the judiciary
to mould the concept of admin tribunal
independence
WAVE 2: Ocean Port Hotel Ltd. v. British
Columbia (General Manager, Liquor Control and
Licensing Branch), [2001] 2 S.C.R. 781, 2001
SCC 52
WAVE 3: Retrenchment

WAVE 1:
Beauregard v Canada [1986] 2 SCR 56]
Pelletier v. Canada (Attorney General) 2008 FC
803 [517-525 VHM]

Facts: Appointment of judges & pension
Dickson CJ : Historically, the generally accepted core

of the principle of judicial independence has been the
complete liberty of individual judges to hear and
decide the cases that come before them: no
outsider--be it government, pressure group, individual
or even another judge--should interfere in fact, or
attempt to interfere, with the way in which a judge
conducts his or her case and makes his or her
decision. This core continues to be central to the
principle of judicial independence. Nevertheless, it is
not the entire content of the principle [Para 21].

Complete liberty?
Security of tenure
The Constitution Act, 1867, 30 & 31 Vict, c 3
S.99
Financial Security
S. 100
Admin or institutional control

Adjudicative independence (Pelletier)

Pelletier v. Canada (Attorney General) 2008 FC 803 [517-525 VHM]
Facts?
[] the Commissioner was not in a position to conclude that

the program was mismanaged before having heard from
government officials of all levels who were set to testify. This
is especially so given that the Commissioner ultimately
concluded that the Sponsorship Program was run out of the
Prime Minister's Office under the direct supervision of the
Applicant (who had yet to testify), who "for all practical
purposes, assumed the role, the functions and the
responsibilities of a Minister of a department charged with the
implementation of a program." Without having heard the
testimony of all witnesses who were to appear before the
Commission, especially those whom he found to be in charge
of the program, the Commissioner was not and could not be
in a position to conclude that the Program was "run in a
catastrophically bad way." [para 84]

Pelletier v. Canada (Attorney General) 2008 FC 803 [517525 VHM]
The Commissioner had a duty not to reach

conclusions about the management of the
sponsorship program until having heard all the
evidence, and he was not in a position to do so until
then. The objective of the Inquiry was to get to the
truth of the matters that were the subject of chapters
3 and 4 of the Auditor General's Report. By stating
that he "was coming to the same conclusion" and that
he "simply confirmed the findings that Sheila Fraser
had made" after only three months of hearings would,
in my view, leave the reasonable person with the view
that the Commissioner had prejudged some of the
very matters he was tasked to investigate before
hearing all the evidence. [para 84]

Overview
Exam Question
Continue with Impartiality and Independence (1st
hour)
Bias (2nd Hour)
Sample Exam Question

Marks breakdown:
Language, grammar, punctuation, style, citation &
structure
Identification of legal issues
Relevant cases (accuracy, synthesis etc)
Legal Analysis (Apply the jurisprudence to the
legal issues and facts)
Novel Insights
Sample Exam Question

IRAC/ILAC
What are the legal issues?
Etc
Students are encouraged to see course
Professor with sample answer.
PROCEDURAL FAIRNESS
2) Mindset of the
Decision Maker
Impartiality &
Independence
Bias

Bias
Overview
Independence
independence
Wave 3: Push Back
(NOT IN THE CASEBOOK)
Impartiality & Independence

Introduction
Affects the parties
Impartiality &
Independence
Bias on Wednesday, October 15 2014

Impartiality &
Independence
of the case (PF, (1) Duty of Fairness)
case before her (PF, (2) Decision Makers
independence & impartiality and bias)

law
& Charter and other legislations
Impartiality &
Independence
Tribunal/Court Independence: Why is it
important?
Pp 528-529 Casebook
Rationale for Admin agencies?
ROL:
-Law is supreme over private individuals and
government officials = one law for all
-Government officials must exercise their power
non-arbitrarily and according to law

When we speak of tribunal independence &
impartial, what do we mean?
Tribunals ability to decide matters free of
inappropriate influence or interference.
Interference can stem from different sources
(other than government) & range from the parties
to the dispute, members of the tribunal (for
example someone who is not sitting in judgment
but works for the tribunal) and tribunal staff etc.

Developed in three waves (NOT IN CASEBOOK)
WAVE 1: Used the independence of the judiciary
to mould the concept of admin tribunal
independence
WAVE 2: Ocean Port Hotel Ltd. v. British
Columbia (General Manager, Liquor Control and
Licensing Branch), [2001] 2 S.C.R. 781, 2001
SCC 52
WAVE 3: Retrenchment

WAVE 1:
Pelletier v. Canada (Attorney General) 2008 FC
803 [517-525 VHM]

Facts: Appointment of judges & pension
Dickson CJ : Historically, the generally accepted core

of the principle of judicial independence has been the
complete liberty of individual judges to hear and
decide the cases that come before them: no
outsider--be it government, pressure group, individual
or even another judge--should interfere in fact, or
attempt to interfere, with the way in which a judge
conducts his or her case and makes his or her
decision. This core continues to be central to the
principle of judicial independence. Nevertheless, it is
not the entire content of the principle [Para 21].

Complete liberty?
Security of tenure
S.99
Financial Security
S. 100
Admin or institutional control

Adjudicative independence (Pelletier)

Pelletier v. Canada (Attorney General) 2008 FC 803 [517-525 VHM]
Facts?
[] the Commissioner was not in a position to conclude that

the program was mismanaged before having heard from
government officials of all levels who were set to testify. This
is especially so given that the Commissioner ultimately
concluded that the Sponsorship Program was run out of the
Prime Minister's Office under the direct supervision of the
Applicant (who had yet to testify), who "for all practical
purposes, assumed the role, the functions and the
responsibilities of a Minister of a department charged with the
implementation of a program." Without having heard the
testimony of all witnesses who were to appear before the
Commission, especially those whom he found to be in charge
of the program, the Commissioner was not and could not be
in a position to conclude that the Program was "run in a
catastrophically bad way." [para 84]

Pelletier v. Canada (Attorney General) 2008 FC 803 [517525 VHM]
The Commissioner had a duty not to reach

conclusions about the management of the
sponsorship program until having heard all the
evidence, and he was not in a position to do so until
then. The objective of the Inquiry was to get to the
truth of the matters that were the subject of chapters
3 and 4 of the Auditor General's Report. By stating
that he "was coming to the same conclusion" and that
he "simply confirmed the findings that Sheila Fraser
had made" after only three months of hearings would,
in my view, leave the reasonable person with the view
that the Commissioner had prejudged some of the
very matters he was tasked to investigate before
hearing all the evidence. [para 84]
Impartiality &
Independence
WAVE 2:
Applying Beauregard v Canada to admin
agencies?
Valente v. The Queen [1985] 2 SCR 673
Judicial independence may be applied to admin
tribunals
Impartiality &
Independence
Test for adequate tribunal independence:
[w]hether a reasonable, well informed person
having thought the matter through would
conclude that an administrative decision maker is
sufficiently free of factors that could interfere with
his or her ability to make impartial decision (AKA
Bias Test, more later on)
Flexible approach for admin agencies
Impartiality &
Independence
Canadian Pacific Ltd. Matsqui Indian Band [1995] 1
SCR 3
CJ Lamer writing for the Majority states:

Therefore, while administrative tribunals are subject to
the Valente principles, the test for institutional
independence must be applied in light of the functions
being performed by the particular tribunal at issue.
The requisite level of institutional independence (i.e.,
security of tenure, financial security and administrative
control) will depend on the nature of the tribunal, the
interests at stake, and other indices of independence
such as oaths of office. [Para 83]
Impartiality &
Independence
2747-3174 Qubec Inc. v. Quebec (Rgie des
permis d'alcool) [1996] 3 SCR 919 followed
Matsqui
What about at pleasure appointments?
Ocean Port Hotel Ltd. v. British Columbia
(General Manager, Liquor Control and Licensing
Branch) 2001 SCC 52
Impartiality &
Independence
McLaughlin in Ocean Port Hotel:
Ultimately, it is Parliament or the legislature that
determines the nature of a tribunals relationship
to the executive. It is not open to a court to apply
a common law rule in the face of clear statutory
direction. Courts engaged in judicial review of
administrative decisions must defer to the
legislators intention in assessing the degree of
independence required of the tribunal in
question. [Para 22]
Impartiality &
Independence
McLaughlin in Ocean Port Hotel
Administrative tribunals, by contrast, lack this constitutional
distinction from the executive. They are, in fact, created
precisely for the purpose of implementing government
policy. Implementation of that policy may require them to make
quasi-judicial decisions. They thus may be seen as spanning the
constitutional divide between the executive and judicial branches
of government. However, given their primary policy-making
function, it is properly the role and responsibility of Parliament
and the legislatures to determine the composition and structure
required by a tribunal to discharge the responsibilities bestowed
upon it. While tribunals may sometimes attract Charter
requirements of independence, as a general rule they do
not. Thus, the degree of independence required of a particular
tribunal is a matter of discerning the intention of Parliament or
the legislature and, absent constitutional constraints, this choice
must be respected (para 24).
Impartiality &
Independence
Wave 3: Retrenchment
For example McKenzie v. Minister of Public
Safety and Solicitor General et al., 2006 BCSC
1372
Newfoundland Telephone Co. v. Newfoundland
(Board of Commissioners of Public Utilities)
[1992] 1 SCR 623
Impartiality &
Independence
Cory J.
It can be seen that there is a great diversity of administrative
boards. Those 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. [page 638]
Impartiality &
Independence
McKenzie v. Minister of Public Safety and
Solicitor General et al., 2006 BCSC 1372
McEwan J: judicial independence should apply to

residential tenancy arbitrators
Bias: General Intro

RAB preserves the appearance of impartiality in
the decision-making process;
VHM: Paine (overview/context)

Today, more caselaw & concepts
RAB: General Intro

Committee for Justice and Liberty et al. v. National
Energy Board et al. [1978] 1 SCR 369
RAB Test set out by De Grandpre J (dissent):

[T]he apprehension of bias must be a reasonable one,
held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the
required information. In the words of the Court of
Appeal, that test is what would an informed person,
viewing the matter realistically and practicallyand
having thought the matter throughconclude. Would
he think that it is more likely than not that Mr. Crowe,
whether consciously or unconsciously, would not
decide fairly.[At page 395].
RAB: General Intro

RAB (Nb):
Reasonable person with an informed
understanding of how the tribunal functions
perceives that the decision making is biased
Bias must be substantial
Real likelihood or probability should be
demonstrated
A mere suspicion of bias is not enough and the
courts often discuss the likelihood of bias on a
balance of probabilities
The reasonable person is not someone who is
oversensitive (R. v. S (R.D) [1997] 3 SCR 484 )
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 48
Facts: Caucasian police officer arrests two young
black men
Judge relied on social science evidence and
personal experience (Judge was black)
Crown argued bias; NS COA agreed
SCC: 4 to 3
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
LHeureux-Dub and McLachlin JJ.
In our view, the test for reasonable apprehension of
bias established in the jurisprudence is reflective of the
reality that while judges can never be neutral, in the
sense of purely objective, they can and must strive for
impartiality. It therefore recognizes as inevitable and
appropriate that the differing experiences of judges
assist them in their decision-making process and will
be reflected in their judgments, so long as those
experiences are relevant to the cases, are not based
on inappropriate stereotypes, and do not prevent a fair
and just determination of the cases based on the facts
in evidence [29 ]
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
The person postulated is not a very sensitive or
scrupulous person, but rather a right-minded person
familiar with the circumstances of the case. [para 36]
As discussed above, judges in a bilingual,
multiracial and multicultural society will undoubtedly
approach the task of judging from their varied
perspectives. They will certainly have been shaped
by, and have gained insight from, their different
experiences, and cannot be expected to divorce
themselves from these experiences on the occasion
of their appointment to the bench [38].
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
In fact, such a transformation would deny
society the benefit of the valuable knowledge
gained by the judiciary while they were members
of the Bar. As well, it would preclude the
achievement of a diversity of backgrounds in the
judiciary. The reasonable person does not expect
that judges will function as neutral ciphers;
however, the reasonable person does demand
that judges achieve impartiality in their judging.
[38]
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
It is axiomatic that all cases litigated before judges are, to a
greater or lesser degree, complex. There is more to a case
than who did what to whom, and the questions of fact and
law to be determined in any given case do not arise in a
vacuum. Rather, they are the consequence of numerous
factors, influenced by the innumerable forces which impact
on them in a particular context. Judges, acting as finders of
fact, must inquire into those forces. In short, they must be
aware of the context in which the alleged crime occurred.
[41]
Judicial inquiry into the factual, social and psychological
context within which litigation arises is not unusual. Rather,
a conscious, contextual inquiry has become an accepted
step towards judicial impartiality. [42]
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
Reasonable person: an informed and right-minded member
of the community, a community which, in Canada, supports
the fundamental principles entrenched in the Constitution by
[Charter]. Those fundamental principles include [equality and
human rights]. The reasonable person must be taken to be
aware of the history of discrimination faced by disadvantaged
groups in Canadian society protected by the Charter s
equality provisions. These are matters of which judicial notice
may be taken.
In Parks, supra, at p. 342, Doherty J.A., did just this, stating:
Racism, and in particular anti-black racism, is a part of our
communitys psyche. A significant segment of our community
holds overtly racist views. A much larger segment
subconsciously operates on the basis of negative racial
stereotypes. Furthermore, our institutions, including the criminal
justice system, reflect and perpetuate those negative
stereotypes. [46]
RAB: General Intro

R. v. S (R.D) [1997] 3 SCR 484
The reasonable person is not only a member of the
Canadian community, but also, more specifically, is a
member of the local communities in which the case at
issue arose (in this case, the Nova Scotian and Halifax
communities). Such a person must be taken to possess
knowledge of the local population and its racial dynamics,
including the existence in the community of a history of
widespread and systemic discrimination against black and
aboriginal people, and high profile clashes between the
police and the visible minority population over policing
issues. The reasonable person must thus be deemed to be
cognizant of the existence of racism in Halifax, Nova
Scotia. It follows that judges may take notice of actual
racism known to exist in a particular society. Judges have
done so with respect to racism in Nova Scotia [47]
RAB: General Intro

RAB includes institutions: R.v Lippe [1991] 2
S.C.R
Standard for bias varies and is highly contextual

(i.e. Baker)
Compare and contrast: Committee for Justice
and Liberty et al. v. National Energy Board et al.
[1978] 1 SCR 369 [which we looked at earlier] &
Environment) [2003] SCC 58 [which we looked
at earlier]
RAB: General Intro

Individual Bias
1. A pecuniary or material interest in the outcome
of the matter being decided;
2. A personal relationship with those involved in
the dispute;
3. Prior knowledge or information about the
matter in dispute; or
4. An attitudinal predisposition toward an
outcome.
Individual Bias
of the matter being decided
Dimes v. Grand Junction Canal Co. [1852] Eng.

R. 789
Energy Probe v. Canada (Atomic Energy Control
Board) [1985] 1 F.C. 563
pecuniary interest must be direct and certain
Individual Bias
the dispute
Re. Pinochet [1999] U.K.H.L. 52

Man OWar Station Ltd. v. Aukland City Council
(Judgment No. 1) [2002] 3 NZLR 577
This is a corner of the law in which the context,
and the particular circumstances, are of supreme
importance.
Individual Bias
matter in dispute
Wewaykum Indian Band v. Canada [2003] 2 SCR

259
focus on the nature and extent of the decisionmakers previous involvement
Individual Bias
outcome
Law Society of Upper Canada v. Licio Edward

Cengarle
Far too many interventions gave rise to RAB (16
to 56)
Contrast with Es-Sayyid v. Canada (Public Safety

and Emergency Preparedness) [2012] FCA 59
Individual Bias
Justice Shore biased given 54 judgments?
Opinion/Research by Prof. Scott
Es-Sayyid argued:
(1) The judge is unconsciously biased in cases such as
this (relied on Scott).
(2) The judge created a reasonable apprehension of bias
by copying into his reasons dismissing the stay motion
most of the Ministers written submissions, without
attribution;
and (3) The judge created a reasonable apprehension of
bias by delving far too deeply into the merits of the matter,
rather than engaging in the normally cursory examination
done under the arguable case branch of the test for
granting a stay
Individual Bias
FCA:
calls into question not simply the personal
integrity of the judge, but the integrity of the entire
administration of justice
The opinion [by Scott] offered in support of this
allegation of bias falls well short of the mark
The opinion is a statistical analysis by someone
with no statistical expertise of 54 cases decided
by the judge between 2005-2010 involving cases
in which criminality was a relevant feature of the
immigration or refugee law issues in the case.
[etc etc]
Individual Bias
# 4 Contd
Comments outside the hearing?
Closed Mind Test (for example CAF)
What is central is whether the decision maker is
amenable to persuasion or whether his or her
comments indicate a mind so closed that any
submission would be futile [Newfoundland
Telephone]
Old St. Boniface Residents Assn. Inc. v. Winnipeg
(City) [1990] 3 S.C.R. 1170
Institutional Bias
Consistency? Public confidence?
Iwa v. Consolidated-bathurst packaging ltd [1990]
1 SCR 282 (Board Meetings)
SCC acknowledged importance of policy but
Institutional Bias
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. It also goes without saying that a
formalized consultation process could not be used to force
or induce decision makers to adopt positions with which
they do not agree. Nevertheless, discussions with
colleagues do not constitute, in and of themselves,
infringements on the panel members' capacity to decide
the issues at stake independently. A discussion does not
prevent a decision maker from adjudicating in accordance
with his own conscience and opinions nor does it constitute
an obstacle to this freedom. Whatever discussion may
take place, the ultimate decision will be that of the decision
maker for which he assumes full responsibility. [Para 80]
Institutional Bias
Lead cases?
Geza v. Canada (Minister of Citizenship and
Immigration) (F.C.), [2005] 3 F.C.R. 3

Overview
RAB Contd
Individual
Four components
Institutional
NB. STUDENTS ARE ENCOURAGED TO READ:
McKenzie v. Minister of Public Safety and Solicitor
General et al., 2006 BCSC 1372
Standards of Review
Introduction
RAB: General Intro

RAB includes institutions: R.v Lippe [1991] 2
S.C.R
Standard for bias varies and is highly contextual

(i.e. Baker)
Compare and contrast: Committee for Justice
and Liberty et al. v. National Energy Board et al.
[1978] 1 SCR 369 [which we looked at earlier] &
Environment) [2003] SCC 58 [which we looked
at earlier]
RAB: General Intro

Individual Bias
of the matter being decided;
the dispute;
matter in dispute; or
outcome.
Individual Bias
of the matter being decided
Dimes v. Grand Junction Canal Co. [1852] Eng.

R. 789
Energy Probe v. Canada (Atomic Energy Control
Board) [1985] 1 F.C. 563
pecuniary interest must be direct and certain
Individual Bias
the dispute
Re. Pinochet [1999] U.K.H.L. 52

Man OWar Station Ltd. v. Aukland City Council
(Judgment No. 1) [2002] 3 NZLR 577
This is a corner of the law in which the context,
and the particular circumstances, are of supreme
importance.
Individual Bias
matter in dispute
Wewaykum Indian Band v. Canada [2003] 2 SCR

259
focus on the nature and extent of the decisionmakers previous involvement
Individual Bias
outcome
Law Society of Upper Canada v. Licio Edward

Cengarle
Far too many interventions gave rise to RAB (16
to 56)
Contrast with Es-Sayyid v. Canada (Public Safety

and Emergency Preparedness) [2012] FCA 59
An attitudinal
predisposition toward an
outcome
Es-Sayyid v. Canada (Public Safety and
Emergency Preparedness) [2012] FCA 59
Facts?
The opinion offered in support of this allegation
of bias falls well short of the mark. In fact, in these
circumstances, for the reasons set out below, the
opinion is inadmissible and, in any event, no
weight can be accorded to it [40] .
WHY?
Individual Bias
Justice Shore biased given 54 judgments?
Opinion/Research by Prof. Scott
Es-Sayyid argued:
(1) The judge is unconsciously biased in cases such as
this (relied on Scott).
(2) The judge created a reasonable apprehension of bias
by copying into his reasons dismissing the stay motion
most of the Ministers written submissions, without
attribution;
and (3) The judge created a reasonable apprehension of
bias by delving far too deeply into the merits of the matter,
rather than engaging in the normally cursory examination
done under the arguable case branch of the test for
granting a stay
Individual Bias
FCA:
calls into question not simply the personal
integrity of the judge, but the integrity of the entire
administration of justice
The opinion [by Scott] offered in support of this
allegation of bias falls well short of the mark
The opinion is a statistical analysis by someone
with no statistical expertise of 54 cases decided
by the judge between 2005-2010 involving cases
in which criminality was a relevant feature of the
immigration or refugee law issues in the case.
[etc etc]
Individual Bias
# 4 Contd
Comments outside the hearing?
Closed Mind Test (for example CAF)
What is central is whether the decision maker is
amenable to persuasion or whether his or her
comments indicate a mind so closed that any
submission would be futile [Newfoundland
Telephone]
Old St. Boniface Residents Assn. Inc. v. Winnipeg
(City) [1990] 3 S.C.R. 1170
Institutional Bias
Consistency? Public confidence?
Iwa v. Consolidated-bathurst packaging ltd [1990]
1 SCR 282 (Board Meetings)
SCC acknowledged importance of policy but
Institutional Bias
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. It also goes without saying that a
formalized consultation process could not be used to force
or induce decision makers to adopt positions with which
they do not agree. Nevertheless, discussions with
colleagues do not constitute, in and of themselves,
infringements on the panel members' capacity to decide
the issues at stake independently. A discussion does not
prevent a decision maker from adjudicating in accordance
with his own conscience and opinions nor does it constitute
an obstacle to this freedom. Whatever discussion may
take place, the ultimate decision will be that of the decision
maker for which he assumes full responsibility. [Para 80]
Institutional Bias
Lead cases?
Geza v. Canada (Minister of Citizenship and
Immigration) (F.C.), [2005] 3 F.C.R. 3
PROCEDURAL FAIRNESS
1) Duty of Fairness
(to hear the other
side)
after)
Sources?
Common Law
1. Threshold?
2. Limits?
3. Content?
S.7 of the Charter
1. Threshold?
2. Content?
1. Oral H.
2. Etc
PROCEDURAL FAIRNESS
2) Mindset of the
Decision Maker
Impartiality &
Independence
Bias
Development of Standard
of Review
What are standards should courts use when they
have to review the substance of the decision (an
error)?
JR asks unique questions:
is there only one correct answer?
who is better situated to determine this particular
answer (i.e. the specialist decision maker or the
generalist judge)?
what criteria can assist in assessing the
expertise?
of Review
Deference to the original decision?
Deference = Respect for the original decision
maker (based on expertise, evidence etc)
Historically, deference/Standards of Review
contested
Go back to the evolution of the admin state- early
1900s
of Review
Why admin agencies?
Challenges to formalism- courts & formalism?
Courts did not interfere with admin agencies (at
the outset/Historically)
But as the admin state grew the courts started

taking an active role
of Review
Types of ERRORS
Go back to the central question:
What are the various grounds upon which a
decision of an administrative decision-maker be
challenged?
Error of fact; Error of law; Lack of jurisdiction
JR may be set out in the enabling legislation
For example
Types of Error
IRPA: 72. (1) Judicial review by the Federal Court with respect to any
matter a decision, determination or order made, a measure taken
or a question raised under this Act is commenced by making an
application for leave to the Court.
(2) The following provisions govern an application under subsection
(1):
(a) the application may not be made until any right of appeal that
may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice of the application shall be
served on the other party and the application shall be filed in the
Registry of the Federal Court (the Court) within 15 days, in the
case of a matter arising in Canada, or within 60 days, in the case
of a matter arising outside Canada, after the day on which the
applicant is notified of or otherwise becomes aware of the
matter;
[]
Error of Fact
Argument that tribunal was wrong in its factual
findings;
If no right of appeal contained in the statute re

fact, then have to go to common law or to Fed Ct
Act, or if in BC or Ontario
Judicial Review Procedure Act R.S.O. 1990,
CHAPTER J.1
Error of Law
Agreed that the board or tribunal has the authority to
be deciding this issue, but the question is whether the
decision-maker in deciding the question interpreted or
applied the language of the statute incorrectly
What is the record? At common law:
documents initiating proceedings
Pleadings
decision itself
reasons if given
evidence not part of the record unless specifically
incorporated into it.
Error of Jurisdiction
Decision-maker interprets its enabling legislation
in such a way that the decision-maker thinks it
has the jurisdiction/authority to act in this
particular situation or that it has certain powers but it is wrong
of Review
Governments frustrated PRIVATIVE CLAUSE
Limit the role of Courts through Privative Clauses
BUT Privative Clauses challenges to rule of law.
Macklin:
A legislative grant of authority is always circumscribed
by the terms of the statute. The common law presumes
that citizens retain access to the ordinary courts in
order to ensure that creatures of the state do not
exceed or abuse the power granted to them. Making
government actors accountable to the ordinary (and
independent) courts is a principle that Dicey noted as
being essential to the rule of law.
of Review
Macklin:
But on the other hand, the doctrine of parliamentary
supremacy dictates that the legislator enacts the law
and the court must interpret and apply the law in
accordance with the legislative intent.
Deference- Evolution
CUPE v. New Brunswick Liquor Corporation
of Review
SCC- New Era
Pragmatic and functional test
Underlying Themes:
Greater respect for decision maker
Greater attention to legislative signposts
Awareness of the expertise of many statutory
regimes
Courts own lack of working familiarity with the
detailed working

Overview
Recap
NB. Law Society of Upper Canada v. Licio Edward
Cengarle, [2010] L.S.D.D. No 61 (QL)
Types of Errors
Standard of Review
History
Three standards: Patent Unreasonable;
Reasonable Simpliciter; Correctness
Development of Standard of
Review
Types of ERRORS
Go back to the central question:
What are the various grounds upon which a
decision of an administrative decision-maker be
challenged?
Error of fact; Error of law; Lack of jurisdiction
JR may be set out in the enabling legislation
For example
Types of Error
IRPA: 72. (1) Judicial review by the Federal Court with respect to any
matter a decision, determination or order made, a measure taken
or a question raised under this Act is commenced by making an
application for leave to the Court.
(2) The following provisions govern an application under subsection
(1):
(a) the application may not be made until any right of appeal that
may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice of the application shall be
served on the other party and the application shall be filed in the
Registry of the Federal Court (the Court) within 15 days, in the
case of a matter arising in Canada, or within 60 days, in the case
of a matter arising outside Canada, after the day on which the
applicant is notified of or otherwise becomes aware of the
matter;
[]
Error of Fact
Argument that tribunal was wrong in its factual
findings;
If no right of appeal contained in the statute re

fact, then have to go to common law or to Fed Ct
Act, or if in BC or Ontario
Judicial Review Procedure Act R.S.O. 1990,
CHAPTER J.1
Error of Law
Agreed that the board or tribunal has the authority to
be deciding this issue, but the question is whether the
decision-maker in deciding the question interpreted or
applied the language of the statute incorrectly
What is the record? At common law:
documents initiating proceedings
Pleadings
decision itself
reasons if given
evidence not part of the record unless specifically
incorporated into it.
Error of Jurisdiction
Decision-maker interprets its enabling legislation
in such a way that the decision-maker thinks it
has the jurisdiction/authority to act in this
particular situation or that it has certain powers but it is wrong
Review
What are standards should courts use when they
have to review the substance of the decision (an
error)?
JR asks unique questions:
is there only one correct answer?
who is better situated to determine this particular
answer (i.e. the specialist decision maker or the
generalist judge)?
what criteria can assist in assessing the
expertise?
Review
Deference to the original decision?
Deference = Respect for the original decision
maker (based on expertise, evidence etc)
Historically, deference/Standards of Review
contested
Go back to the evolution of the admin state- early
1900s
Review
Why admin agencies?
Challenges to formalism- courts & formalism?
Courts did not interfere with admin agencies (at
the outset/Historically)
But as the admin state grew the courts started

taking an active role
Review
Governments frustrated PRIVATIVE CLAUSE
Limit the role of Courts through Privative Clauses
BUT Privative Clauses challenges to rule of law.
Macklin:
A legislative grant of authority is always circumscribed
by the terms of the statute. The common law presumes
that citizens retain access to the ordinary courts in
order to ensure that creatures of the state do not
exceed or abuse the power granted to them. Making
government actors accountable to the ordinary (and
independent) courts is a principle that Dicey noted as
being essential to the rule of law.
Review
Macklin:
But on the other hand, the doctrine of parliamentary
supremacy dictates that the legislator enacts the law
and the court must interpret and apply the law in
accordance with the legislative intent.
Deference- Evolution
CUPE v. New Brunswick Liquor Corporation
of Review
SCC- New Era
Pragmatic and functional test
Underlying Themes:
Greater respect for decision maker
Greater attention to legislative signposts
Awareness of the expertise of many statutory
regimes
Courts own lack of working familiarity with the
detailed working
Pragmatic and Functional

Test
C.U.P.E. v. N.B. Liquor Corporation, [1979] 2
SCR 227
New Brunswick Public Service Labour Relations

Act
102(3) Where subsection (1) and subsection (2)
are complied with employees may strike and
during the continuance of the strike
(a) the employer shall not replace the striking
employees or fill their position with any other
employee, and
(b) no employee shall picket, parade or in any
manner demonstrate in or near any place of
business of the employer.

Test
Dickson J:
I would take the position that the Board decided
a matter which was plainly confided to it, for it
alone to decide within its jurisdiction. It is
contended, however, that the interpretation placed
upon s. 102(3)(a) was so patently unreasonable
that the Board, although possessing "jurisdiction
in the narrow sense of authority to enter upon an
inquiry", in the course of that inquiry did
"something which takes the exercise of its powers
outside the protection of the privative or
preclusive clause". [para. 15]

Test
Macklin, three important sources of the SCCs
doctrinal changes
1. SCC situates the case in a broader reappraisal

of the respective roles assigned to by the
legislature to the courts and to admin bodies in
the implementation of regulatory regimes

Test
Dickson J:
The usual reasons for judicial restraint upon review of
labour board decisions are only reinforced in a case such
as the one at bar. Not only has the Legislature confided
certain decisions to an administrative board, but to a
separate and distinct Public Service Labour Relations
Board. That Board is given broad powersbroader than
those typically vested in a labour boardto supervise and
administer the novel system of collective bargaining
created by the Public Service Labour Relations Act. The
Act calls for a delicate balance between the need to
maintain public services, and the need to maintain
collective bargaining. Considerable sensitivity and unique
expertise on the part of Board members is all the more
required if the twin purposes of the legislation are to be
met. Nowhere is the application of those skills more
evident than in the supervision of a lawful strike by public
service employees under the Act [Para 15]

Test
2. SCC admits no single correct interpretation
Who is better equipped to make the choice- the
board or the court?
3. Finally, Dickson states:
The question of what is and is not jurisdictional
is often very difficult to determine. The courts, in
my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial
review, that which may be doubtfully so [Para 9]

Test
U.E.S., Local 298 v. Bibeault Pragmatic and
Functional Test (used for the first time)
Pushpanathan v. Canada (Minister of Citizenship

and Immigration) [1998] 1 SCR 982
SCC clarifies..

Test
Bastarache J.
Reformulated the pragmatic and functional
question in to: Did the Legislator intend this
question to attract judicial deference?
Presence of a private clause
Expertise of the decision maker
Relevant provisions and purpose of the statute
Nature of the question: fact, law or mixed fact and
law?
P&F Test
Recap: Pushpanathan v. Canada (Minister of
Citizenship and Immigration) [1998] 1 SCR 982
Factors relevant to discerning this legislative

intent into four categories:
Presence of a privative clause
Expertise of the decision maker
Relevant provisions and purpose of the statute
Nature of the question: fact, law or mixed fact and
law?
P&F Test
Privative clause
Presence of a privative clause weighed in favour
of curial deference.
A statutory declaration of by the legislator
(imagine the idea of a stop sign).
Simultaneously courts have the authority to
define and demarcate the scope of the admin
agencies expertise.
P&F Test
Expertise (3 step determination)
1. the court must characterize the expertise of the
tribunal in question;
2. it must consider its own expertise relative to
that of the tribunal;
3. and it must identify the nature of the specific
issue before the admin decision-relative to this
expertise.
P&F Test
Expertise contd
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. Nevertheless,
expertise must be understood as a relative, not
absolute concept. [Para 32]
P&F Test
3. Purpose of the Statute as a whole and the
Provision in Particular
These considerations are all specific articulations

of the broad principle of polycentricity well
known to academic commentators who suggest
that it provides the best rationale for judicial
deference to non-judicial agencies. A
polycentric issue is one which involves a large
number of interlocking and interacting interests
and considerations [Para 36]
P&F Test
4. The Nature of the Problem
Questions of law; questions of mixed law and
fact; and questions of fact
But
P&F Test
Canada (Director of Investigation and Research) v. Southam
Inc. [1997] 1 SCR 748
Briefly stated, questions of law are questions about what the
correct legal test is; questions of fact are questions about
what actually took place between the parties; and questions of
mixed law and fact are questions about whether the facts
satisfy the legal tests. A simple example will illustrate these
concepts. In the law of tort, the question what negligence
means is a question of law. The question whether the
defendant did this or that is a question of fact. And, once it
has been decided that the applicable standard is one of
negligence, the question whether the defendant satisfied the
appropriate standard of care is a question of mixed law and
fact. I recognize, however, that the distinction between law on
the one hand and mixed law and fact on the other is
difficult. On occasion, what appears to be mixed law and fact
turns out to be law, or vice versa.
Chronology post CUPE Key moments

in the development of the Std of Rev
analysis:
1)
1979
Development of the Pragmatic & Functional approach

C.U.P.E. v. N.B. Liquor Corporation DEFERENCE
1988
Bibeault introduces the pragmatic and functional
approach language, and elaborates on this
approach. Still about jurisdictional line.
1994 Pezim application of P&F approach to statutory appeals,
expanding P&F approach and applying deference factors
beyond analysis of jurisdiction.
1998 Pushpanathan consolidates standard of review
jurisprudence into 4 factor approach; attempts to reconcile
P&F with older approach focussed on jurisdiction.
1999 Baker extends P&F approach to review of discretionary
decisions
Chronology post CUPE Key

moments in the development of
the Std of Rev analysis:
2) Addition of a third standard of review:
Reasonableness Simpliciter
1997 Canada v. Southam establishes that P&F

approach involves a spectrum of standards
of review, adds the middle standard of
reasonableness simpliciter.
2003 Dr. Q. and Ryan v. Law Society of New
Brunswick summary and restatement of
the P&F approach; Ryan confirms 3
standards of review.
2003 LeBel Js cri de coeur in Toronto (City) v
CUPE, Local 79 plea to simplify the
standard of review analysis and go back to 2
Prior to Dunsmuir- 3
Standards of Review
Patent Unreasonable
Reasonableness simpliciter
Correctness
****** NB: NO LONGER APPLICABLE
***** NEXT SLIDES ARE MEANT TO BE

ILLUSTRATIVE
Correctness
Toronto (City) v. C.U.P.E., Local 79, [2003] 3
S.C.R. 77, 2003 SCC 63
Lebel J Dissent:
As I noted in brief above, certain fundamental
legal questions for instance, constitutional and
human rights questions and those involving civil
liberties, as well as other questions that are of
central importance to the legal system as a whole,
such as the issue of relitigation typically fall to
be decided on a correctness standard. [67]
Reasonableness simpliciter
Ryan v. Law Society of New Brunswick [2003] 1
SCR 247
Iacobucci J: The standard of reasonableness

basically involves asking After a somewhat
probing examination, can the reasons given,
when taken as a whole, support the decision?
[] Deference is built into the question since it
requires that the reviewing court assess whether
a decision is basically supported by the
reasoning of the tribunal or decision-maker,
rather than inviting the court to engage de novo
in its own reasoning on the matter. [Para 47]
Patent Unreasonableness
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R.
77, 2003 SCC 63
This Court has set out a number of definitions of

patent unreasonableness, each of which is intended
to indicate the high degree of deference inherent in
this standard of review. There is some overlap
between the definitions and they are often used in
combination. I would characterize the two main
definitional strands as, first, those that emphasize the
magnitude of the defect necessary to render a
decision patently unreasonable and, second, those
that focus on the immediacy or obviousness of the
defect, and thus the relative invasiveness of the
review necessary to find it. [Para 78]
Judicial Review
Professor Xavier (Lecture 13, Oct 27 2014)
Overview
Reflection paper
In the news?
CUPE (2003, Lebel J)
Dunsmuir
Reflection Paper/In the

news
Three cases; Use TWO (Only)
NO Outside research
Changes to the Immigration laws and Evidence
Standards of review
gathering?
Chronology post CUPE Key moments

in the development of the Std of Rev
analysis:
1)
Development of the Pragmatic & Functional approach
1988 Bibeault introduces the pragmatic and functional

approach language, and elaborates on this
approach. Still about jurisdictional line.
1994 Pezim v. BC application of P&F approach to statutory
appeals, expanding P&F approach and applying
deference factors beyond analysis of jurisdiction.
1998 Pushpanathan v. Canada (MCI) consolidates standard

of review jurisprudence into 4 factor approach; attempts
to reconcile P&F with older approach focussed on
jurisdiction.
1999 Baker extends P&F approach to review of
discretionary decisions
Chronology post CUPE Key

moments in the development of
the Std of Rev analysis:
2) Addition of a third standard of review:
Reasonableness Simpliciter
1997 Canada v. Southam establishes that P&F

approach involves a spectrum of standards
of review, adds the middle standard of
reasonableness simpliciter.
2003 Dr. Q. and Ryan v. Law Society of New
Brunswick summary and restatement of
the P&F approach; Ryan confirms 3
Chronology post CUPE

Key moments in the
development of the Std of
LeBel Js cri
de coeur
in Toronto (City) v CUPE,
Rev
analysis:
Local 79 plea to simplify the standard of
review analysis and go back to 2 standards of
review.
Dunsmuir (2008)
TWO STANDARDS instead of THREE (NB!!!!)
New Standard of Review Analysis
Standards of review
Miller v. Workers Compensation Commission
(Nfld.) (1997), 154 Nfld. & P.E.I.R. 52 (Nfld.
S.C.T.D.)
In attempting to follow the courts distinctions
between patently unreasonable, reasonable
and correct, one feels at times as though one is
watching a juggler juggle three transparent
objects. Depending on the way the light falls,
sometimes one thinks one can see the objects.
Other times one cannot and, indeed, wonders
whether there are really three distinct objects
there at all (para. 27)
Standards of review
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R.
77, 2003 SCC 63
Lebel J:
The purpose of judicial review is to uphold the
normative legal order by ensuring that the decisions of
administrative decision makers are both procedurally
sound and substantively defensible [...]
In short, the role of a court [] is to be faithful to the
intent of the legislature that empowered the
administrative adjudicator to make the decision, as well
as to the animating principle that, in a society governed
by the rule of law, power is not to be exercised
arbitrarily or capriciously (Para 128)
Standards of review
Lebel J on ROL:
1. [] first, that the rule of law provides that the law is
supreme over the acts of both government and private
persons. There is, in short, one law for all.
2. the rule of law requires the creation and maintenance
of an actual order of positive laws which preserves and
embodies the more general principle of normative order
3. the exercise of all public power must find its ultimate

source in a legal rule. Put another way, the relationship
between the state and the individual must be regulated by
law. Taken together, these three considerations make up a
principle of profound constitutional and political
significance (Para 129).
Standards of review
Lebel J on ROL:
[] the exercise of power must be justifiable
. . . societies governed by the Rule of Law are
marked by a certain ethos of justification. In a
democratic society, this may well be the general
characteristic of the Rule of Law within which the
more specific ideals . . . are subsumed. 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.
Standards of review
Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, 2008 SCC 9
Facts?
Lowers Courts on JR?
COA on JR?
Standards of review
Dunsmuir
Importance of JR vis--vis democracy
Judicial review seeks to address an underlying tension
between the rule of law and the foundational
democratic principle, which finds an expression in the
initiatives of Parliament and legislatures to create
various administrative bodies and endow them with
broad powers. Courts, while exercising their
constitutional functions of judicial review, 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 (Para 27)
Standards of review
Dunsmuir JR defined:
By virtue of the rule of law principle, all exercises
of public authority must find their source in
law. All decision-making powers have legal limits,
derived from the enabling statute itself, the
common or civil law or the Constitution. Judicial
review is the means by which the courts
supervise those who exercise statutory powers, to
ensure that they do not overstep their legal
authority. The function of judicial review is
therefore to ensure the legality, the
reasonableness and the fairness of the
administrative process and its outcomes (Para
28)
Standards of review
Dunsmuir v. New Brunswick [2008] 1 SCR 190
In addition to the role judicial review plays in
upholding the rule of law, it also performs an
important constitutional function in maintaining
legislative supremacy [] (Para 30)
In our view, it is necessary to reconsider both the
number and definitions of the various standards of
review, and the analytical process employed to
determine which standard applies in a given
situation. We conclude that there ought to be two
standards of review - correctness and
reasonableness [Para 34].
Standard of review
analysis
Determine the degree of deference based on
jurisprudence. If unfruitful, then
Reasonableness
Correctness
To determine which standard, must use the

standard of review analysis.
Standard of review
analysis
ALSO KNOW AS?
The analysis must be contextual. As mentioned
above, it is dependent on the application of a number
of relevant factors, including:
(1) the presence or absence of a privative clause;
(2) the purpose of the tribunal as determined by
interpretation of enabling legislation;
(3) the nature of the question at issue, and;
(4) the expertise of the tribunal. 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. [Para 64]
Is judicial review available?

If so, what standard of review
applies? )(Two Steps)
1. Ascertain whether
jurisprudence has
already determined the
degree of deference to
accorded to a question
(If not move to step 2)
2. Reasonableness &
Correctness
Step 1. Standard of review
analysis
as per Dunsmuir (PR,
etc)
either correctness or
reasonableness
Step 2. Apply the
appropriate standard of
review
Statutory Interpretation
Two theories: Positivist/Formalist & Contextual
Positivist:
[] there is one principle or approach to
statutory interpretation, namely the words of an
act are to be read in their entire context and in
their grammatical and ordinary sense,
harmoniously with the scheme of the Act, the
object of the Act and the intention of parliament
[Driedger, Construction of Statutes, 2nd ed.
(Butterworths, 1983) at 87].
Statutory Interpretation
Contextual:
Implies a conception of rule of law in which
legitimacy of state action is contingent not on
strict adherence to legislative or majority will, but
on consistency with the important public values
inscribed in our social and legal traditions. This
approach reflects a traditional understanding of
judges as the exclusive arbiters of foundational
legal values.
Correctness
[I]t is also 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. When applying the correctness standard, a
reviewing court will not show deference to the
decision makers reasoning process; it will rather
undertake its own analysis of the question. [Para
50]
Correctness
-including those that raise constitutional
questions;
-true questions of jurisdiction or vires

- questions about the relative jurisdiction scope
of different tribunals
-questions of law that are of central importance
to the legal system as a whole and outside the
adjudicators specialized area of expertise.
Correctness
questions
[] correctness review has been
found to apply to constitutional
questions regarding the division of
powers between Parliament and the
provinces in the Constitution Act,
1867 [Dunsmuir, para 58]
Correctness
Administrative bodies must also be correct in their
determinations of true questions of jurisdiction or vires. We
mention true questions of vires to distance ourselves from
the extended definitions adopted before CUPE. 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 [Para 59]
Correctness
Questions regarding the jurisdictional lines
between two or more competing specialized
tribunals have also been subject to review on a
correctness basis. [Dunsmuir, para 61]
Correctness
- questions of law that are of central importance to the legal
system as a whole and outside the adjudicators
specialized area of expertise.
As mentioned earlier, courts 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
(Toronto (City) v. C.U.P.E., at para. 62, per LeBel
J.). Because of their impact on the administration of
justice as a whole, such questions require uniform and
consistent answers. Such was the case in Toronto (City)
v. C.U.P.E., which dealt with complex common law rules
and conflicting jurisprudence on the doctrines of res
judicata and abuse of process _ issues that are at the
heart of the administration of justice (see para. 15, per
Arbour J.). [Dunsmuir para 60]
Correctness
Dunsmuir has reduced the reach of correctness
review by:
lending increased specificity to the broad category
of questions of general law previously attracting
this standard;
indicating that a narrow approach should be taken
to the category of jurisdictional questions.
Correctness
Correctness standard implies getting it right?
Ryan: At the outset it is helpful to contrast judicial review
according to the standard of reasonableness with the
fundamentally different process of reviewing a decision
for correctness. When undertaking a correctness review,
the court may undertake its own reasoning process to
arrive at the result it judges correct. In contrast, when
deciding whether an administrative action was
unreasonable, a court should not at any point ask itself
what the correct decision would have been. Applying the
standard of reasonableness gives effect to the legislative
intention that a specialized body will have the primary
responsibility of deciding the issue according to its own
process and for its own reasons. The standard of
reasonableness does not imply that a decision-maker is
merely afforded a margin of error around what the court
believes is the correct result. [Para 50]
Correctness
Dunsmuir
As important as it is that courts have a proper
understanding of reasonableness review as a
deferential standard, it is also 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. When applying the
correctness standard, a reviewing court will not show
deference to the decision makers 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 tribunals decision was correct.
[Dunsmuir, 50]
Correctness
Dunsmuir
understanding of reasonableness review as a deferential
standard, it is also 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. When applying the correctness
standard, a reviewing court will not show deference to the
decision makers 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 tribunals decision was correct.
[Dunsmuir, 50]
Correctness
3 Rationales:
Jurisdiction
Expertise
Predictability & Consistency
Reasonableness
Reasonableness is a deferential standard animated by the
principle that underlies the development of the two
previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they
may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A
court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring
both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are
defensible in respect of the facts and law. [Para 47]
Reasonableness
The majority builds the standard on deference
from Southam, Ryan and CUPE (NB Liquor
Corp)
These judgments focused on the idea that judges
applying the reasonableness standard should be
closely attentive to admin reasoning &
The decision should stand unless it cannot be
rationally supported by the relevant legislation or
the evidence
Reasonableness
Deference as Respect:
Deference is both an attitude of the court and a requirement of
the law of judicial review. It does not mean that courts are
subservient to the determinations of decision makers, or that
courts must show blind reverence to their interpretations, or that
they may be content to pay lip service to the concept of
reasonableness review while in fact imposing their own
view. Rather, deference imports respect for the decision-making
process of adjudicative bodies with regard to both the facts and
the law. The notion of deference is rooted in part in a respect
for governmental decisions to create administrative bodies with
delegated powers (Canada (Attorney General) v. Mossop,
[1993] 1 S.C.R. 554, at p. 596, per LHeureux-Dub J.,
dissenting). We agree with David Dyzenhaus where he states
that the concept of deference as respect requires of the courts
not submission but a respectful attention to the reasons offered
or which could be offered in support of a decision. [Dunsmuir,
para 48]
Reasonableness
Deference in the context of the reasonableness
standard therefore implies that courts will give
due consideration to the determinations of
decision makers. As Mullan explains, a policy of
deference recognizes 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 (Dunsmuir, para 49)
Reasonableness
[] In short, deference requires respect for the
legislative choices to leave some matters in the
hands of administrative decision makers, for the
processes and determinations that draw on
particular expertise and experiences, and for the
different roles of the courts and administrative
bodies within the Canadian constitutional system.
(Dunsmuir, para 49)
Reasonableness
Targets: Reasons and Outcomes
A court conducting a review of reasonableness
inquires into the qualities that make a decision
reasonable, referring both to the process of
articulating the reasons and to outcomes.
In judicial review, reasonableness is concerned
mostly with the existence of justification,
transparency and intelligibility within the decisionmaking 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. [para
47]
Reasonableness
Targets: Reasons and Outcomes
Newfoundland and Labrador Nurses' Union v. Newfoundland
and Labrador (Treasury Board) [2011] 3 SCR 708
Abella J: Read as a whole, I do not see Dunsmuir as standing
for the proposition that the adequacy of reasons is a standalone 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 (Donald J. M. Brown
and John M. Evans, Judicial Review of Administrative Action in
Canada (loose-leaf), at 12:5330 and 12:5510). 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 (para. 47). [Nurses, para 14]
Reasonableness
Criteria/Criterion of Dunsmuir Reasonableness
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. [para 47]
Justification; transparency; and intelligibility
Reasonableness
Montral (City) v. Montreal Port Authority [2010]
1 SCR 427
Lebel J: The concept of reasonableness relates
primarily to the transparency and intelligibility of
the reasons given for a decision. But it also
encompasses a quality requirement that applies
to those reasons and to the outcome of the
decision-making process [para 38]

Professor Xavier (Lecture 14, Oct 29 2014)
Correctness
[I]t is also 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. When applying the correctness standard, a
undertake its own analysis of the question. [Para
50]
Correctness
questions;

-questions of law that are of central importance
to the legal system as a whole and outside the
adjudicators specialized area of expertise.
Correctness
[] Including those that raise
constitutional questions
[] correctness review has been
found to apply to constitutional
questions regarding the division of
powers between Parliament and the
provinces in the Constitution Act,
1867 [Dunsmuir, para 58]
Correctness
[] True questions of jurisdiction or vires
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 [Para 59]
Correctness
[] Questions about the relative jurisdiction
scope of different tribunals
Questions regarding the jurisdictional lines
between two or more competing specialized
tribunals have also been subject to review on a
correctness basis. [Dunsmuir, para 61]
Correctness
- questions of law that are of central importance to the legal
system as a whole and outside the adjudicators
specialized area of expertise.
As mentioned earlier, courts 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
(Toronto (City) v. C.U.P.E., at para. 62, per LeBel
J.). Because of their impact on the administration of
justice as a whole, such questions require uniform and
consistent answers. Such was the case in Toronto (City)
v. C.U.P.E., which dealt with complex common law rules
and conflicting jurisprudence on the doctrines of res
judicata and abuse of process _ issues that are at the
heart of the administration of justice (see para. 15, per
Arbour J.). [Dunsmuir para 60]
Correctness
Dunsmuir has reduced the reach of correctness
review by:
lending increased specificity to the broad category
of questions of general law previously attracting
this standard;
indicating that a narrow approach should be taken
to the category of jurisdictional questions.
Correctness
Correctness standard implies getting it right?
Ryan: At the outset it is helpful to contrast judicial review
according to the standard of reasonableness with the
fundamentally different process of reviewing a decision
for correctness. When undertaking a correctness review,
the court may undertake its own reasoning process to
arrive at the result it judges correct. In contrast, when
deciding whether an administrative action was
unreasonable, a court should not at any point ask itself
what the correct decision would have been. Applying the
standard of reasonableness gives effect to the legislative
intention that a specialized body will have the primary
responsibility of deciding the issue according to its own
process and for its own reasons. The standard of
reasonableness does not imply that a decision-maker is
merely afforded a margin of error around what the court
believes is the correct result. [Para 50]
Correctness
Dunsmuir
[] When applying the correctness standard, a
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 tribunals decision
was correct. [Dunsmuir, 50]
Correctness
Dunsmuir
understanding of reasonableness review as a
deferential standard, it is also 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. [Dunsmuir, 50]
Correctness
3 Rationales:
Jurisdiction
Expertise
Predictability & Consistency
Reasonableness
Reasonableness is a deferential standard animated by the
principle that underlies the development of the two
previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they
may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A
court conducting a review for reasonableness inquires into
outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are
defensible in respect of the facts and law. [Para 47]
Reasonableness
The majority builds the standard on deference
from Southam, Ryan and CUPE (NB Liquor
Corp)
These judgments focused on the idea that judges
applying the reasonableness standard should be
closely attentive to admin reasoning &
The decision should stand unless it cannot be
rationally supported by the relevant legislation or
the evidence
Reasonableness
Deference is both an attitude of the court and a requirement of
the law of judicial review. It does not mean that courts are
subservient to the determinations of decision makers, or that
courts must show blind reverence to their interpretations, or that
they may be content to pay lip service to the concept of
reasonableness review while in fact imposing their own
view. Rather, deference imports respect for the decision-making
process of adjudicative bodies with regard to both the facts and
the law. The notion of deference is rooted in part in a respect
for governmental decisions to create administrative bodies with
delegated powers (Canada (Attorney General) v. Mossop,
[1993] 1 S.C.R. 554, at p. 596, per LHeureux-Dub J.,
dissenting). We agree with David Dyzenhaus where he states
that the concept of deference as respect requires of the courts
not submission but a respectful attention to the reasons offered
or which could be offered in support of a decision. [Dunsmuir,
para 48]
Reasonableness
Deference in the context of the reasonableness
standard therefore implies that courts will give
due consideration to the determinations of
decision makers. As Mullan explains, a policy of
deference recognizes 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 (Dunsmuir, para 49)
Reasonableness
[] In short, deference requires respect for the
legislative choices to leave some matters in the
hands of administrative decision makers, for the
processes and determinations that draw on
particular expertise and experiences, and for the
different roles of the courts and administrative
bodies within the Canadian constitutional system.
(Dunsmuir, para 49)
Reasonableness
A court conducting a review of reasonableness
inquires into the qualities that make a decision
reasonable, referring both to the process of
articulating the reasons and to outcomes.
mostly with the existence of justification,
transparency and intelligibility within the decisionmaking 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. [para
47]
Reasonableness
Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board) [2011] 3
SCR 708
Abella J: 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 (Donald J. M. Brown and John M.
Evans, Judicial Review of Administrative Action in
Canada (loose-leaf), at 12:5330 and 12:5510). 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
outcomes (para. 47). [Nurses, para 14]
Reasonableness
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. [para 47]
Justification; transparency; and intelligibility
Reasonableness
Montral (City) v. Montreal Port Authority [2010]
1 SCR 427
Lebel J: The concept of reasonableness relates
primarily to the transparency and intelligibility of
the reasons given for a decision. But it also
encompasses a quality requirement that applies
to those reasons and to the outcome of the
decision-making process [para 38]
Standard of Review
Analysis
Two Step Process:
(1) [] 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.
(2) [] 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. [Para 62]
Standard of Review
Analysis
How to determine the appropriate standard:
[] 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]
Standard of Review
Analysis
Presence of three (3) factors = Reasonableness
1. A privative clause: this is a statutory direction
from Parliament or a legislature indicating the
need for deference.
2. A discrete and special administrative regime in
which the decision maker has special expertise
(labour relations for instance).
3. The nature of the question of law.
Standard of Review
Analysis
Binnie J (partial Dissent):
The need for such a re-examination is widely recognized,
but in the end my colleagues reasons for judgment do not
deal with the system as a whole. They focus on
administrative tribunals. In that context, they reduce the
applicable standards of review from three to two
(correctness and reasonableness), but retain the
pragmatic and functional analysis, although now it is to be
called the standard of review analysis (para. 63). A
broader reappraisal is called for. Changing the name of
the old pragmatic and functional test represents a limited
advance, but as the poet says: Whats in a name? that
which we call a rose
By any other name would smell as sweet; [para 121]
Standard of Review
Analysis
Thus the law (or, more grandly, the rule of law)
sets the boundaries of potential administrative
action. It is sometimes said by judges that an
administrator acting within his or her discretion
has the right to be wrong. This reflects an
unduly court-centred view of the universe. A
disagreement between the court and an
administrator does not necessarily mean that the
administrator is wrong. [Para 125]
Standard of Review
Analysis
Privative Clause signals Reasonableness?
Why?
Standard of Review
Analysis
Privative Clause:
[] a privative clause is 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, however, that
the presence of a privative clause is determinative. The
rule of law requires that the constitutional role of superior
courts be preserved and, as indicated above, neither
Parliament nor any legislature can completely remove the
courts power to review the actions and decisions of
administrative bodies. This power is constitutionally
protected. Judicial review is necessary to ensure that the
privative clause is read in its appropriate statutory context
and that administrative bodies do not exceed their
jurisdiction. [para 52]
Standard of Review
Analysis
Privative Clause
Dunsmuir:
privative clause is evidence of Parliament or a
legislatures intent that an administrative decision
maker be given greater deference and that
interference by reviewing courts be minimized
Standard of Review
Analysis
Privative Clause
Courts (historically) reluctant to accept the will of
parliament
Court have Constitutional authority to review
But that does not mean that judges can twist the
will of parliament to overturn a decision where
they should be deferential
Standard of Review
Analysis
Privative
Clause
Dunsmuir
Caution to Courts:
should not be alert to brand as jurisdictional, and
therefore subject to broader curial review, that
which may be doubtfully so [Dickson CJ]
Standard of Review
Analysis
Privative
Clause
Just another
factor?
Binnie J:
[] Chief Justice Laskin during argument once

memorably condemned the quashing of a labour board
decision protected by a strong privative clause, by saying
whats wrong with these people [the judges], cant they
read? A system of judicial review based on the rule of law
ought not to treat a privative clause as conclusive, but it is
more than just another factor in the hopper of pragmatism
and functionality. Its existence should presumptively
foreclose judicial review on the basis of outcome on
substantive grounds unless the applicant can show that the
clause, properly interpreted, permits it or there is some
legal reason why it cannot be given effect.
Standard of Review
Analysis
Privative
Clause
Why do Parliaments create Privative Clauses?
To avoid delays
Reduce costs
Avoid Courts (Remember Re Men's Clothing
Manufacturers Association of Ontario and Toronto
Joint Board, Amalgamated Clothing & Textile
Workers' Union)
Standard of Review
Analysis
Privative
Clause
Central question: whether the legislator has the
constitutional capacity to exclude all judicial
review of an admin agency?
Courts can review (implicitly)
Ss. 96-101 Constitution Act, 1867
Standard of Review
Analysis
Privative
Clause
Three part test to determine whether an admin
tribunal is actually acting like a s. 96 court:
Historical Inquiry
Judicial versus legislative or administrative power
Contemporary character
Standard of Review
Analysis
Privative
Clause
Crevier v. A.G. (Qubec) et al. [1981] 2 SCR 220
Was the Quebec Professions Tribunal acting like
a s.96 Court?
But if the wording of a privative clause tried to
oust review by the courts over even strict
jurisdictional questions, then the clause was not
constitutionally valid because the province had
created a de facto s. 96 court.
Standard of Review
Analysis
Privative
Clause
U.E.S., Local 298 v. Bibeault [1988] 2 SCR 1048
Beetz J:
The role of the superior courts in maintaining the
rule of law is so important that it is given
constitutional protection [para 126]
Standard of Review
Analysis
Privative Clause
MacMillan Bloedel Ltd. v. Simpson [1995] 4 SCR 725
Lamer CF:
The superior courts have a core or inherent
jurisdiction which is integral to their operations. The
jurisdiction which forms this core cannot be removed
from the superior courts by either level of government,
without amending the Constitution. Without this core
jurisdiction, s. 96 could not be said either to ensure
uniformity in the judicial system throughout the country
or to protect the independence of the
judiciary. Furthermore, the power of superior courts to
fully control their own process is, in our system where
the superior court of general jurisdiction is central,
essential to the maintenance of the rule of law itself.
[para 15].

Judicial Review of Administrative Action

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Judicial Review of Administrative Action

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Judicial Review of

Overview of the Syllabus

Overview of the Syllabus

Overview of the Syllabus

1st Story: The Nation State

Self-Interested Nature of the Sovereign

1st Story: Contd

1st Story: Contd

2nd Story: Admin Law

First Admin Agency- Board of Railway

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

3rd Story: Globalization (s)

3rd Story: Globalization (s)

3rd Story: Globalization (s)

Sassen: Rejects the idea that the Nation States

3rd Story: Globalization (s)

Different Institutions in the Canadian Admin State

Take Home Exam

If you have concerns re. two options, come see

1st Story: The Nation State

Self-Interested Nature of the Sovereign

1st Story: Contd

1st Story: Contd

2nd Story: Admin Law

Canadian Govts Effective Control of Territory

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

2nd Story: Admin Law

3rd Story: Globalization (s)

3rd Story: Globalization (s)

3rd Story: Globalization (s)

Sassen: Rejects the idea that the Nation States

Institutions of Admin Law

Institutions of Admin Law

Institutions of Admin Law

Judicial Review (TR)

Formalism? [Flood and Sossin, pps 11-16]

Institutions of Admin Law

Institutions of Admin Law

Institutions of Admin Law

Rule of Law (ROL)

Rule of Law (ROL)

Rule of Law (ROL)

As guardians of the rule of law, it is therefore incumbent on

Spread of ROL globally

As part of the democratization trend

Reference re Manitoba Language Rights [1992] 1

R liquor license revoked & has to sell

The question of whether or not his acts were

Requires the creation and maintenance of a

Courts Supervisory Powers

Structure of our Courts

Next week: More on remedies

Judicial Review (TR)

Sources of the Duty of Fairness

Is Legal Theory Relevant?

Naomi Cahn et all, The Case of the Speluncean