NCA Administrative Law Outline

Laws of Canada
Administrative Law
Map
Duty of fairness / procedural fairness: Step 1a: Threshold [NOTE Threshold Factors at 1(a)]
Common law: The fact that a decision is administrative and affects the rights, privileges or interests of an individual is sufficient to trigger the application of the duty of fairness (Baker) o What counts as privilege or interest? SEE STEP 1B BELOW o Must approach admin law issues under common law UNLESS it is necessary to engage the charter (Singh). Bill of Rights (BOR): o Applies only to actions derived from federal law If federal legislation conflicts w/ BOR, then inoperative unless explicitly enacted notwithstanding BOR (Authorson) o Two sources of procedural claims in the BOR: S. 1(a) due process right engaged by infringement of life, liberty, security of the person and enjoyment of property S. 2(e) right to fair hearing in accordance w/ Principles of Fundamental Justice (PFJ) engaged by determination of rights and obligations. o Singh: BOR protections engaged in cases of holding of rights jeopardised, and also cases where the entitlement to rights is determined. o NAPO v. Canada (AG) says s. 2(e) has no or restricted application in the context of admin agency making determinations broadly based in impact. Instead, must have individual focus to apply. o Unlike Charter, the Bill of Rights applies to all public bodieshence, would parallel the scope of admin common law. Charter: o Applies to all laws empowering or decisions made by both federal and provincial administrative decision-makers must be w/in ambit of government as defined in s. 32 narrower than application of Administrative law generally (e.g. in McKinney, Charter held not to apply to universities, but administrative CL would clearly apply) o Claims to procedural fairness only under s. 7: Everyone has the right to life, liberty and security of the person (LLSP) and the right not to be deprived thereof except in accordance w/ principles of fundamental justice. o S. 7 threshold: Met by govt action w/ potential to cause danger to physical security of the person (Singh risk of torture upon deportation) 1 1/12/2010
http://thelawsofcanada.info/
Laws of Canada But need prima facie case of risk: Ahani. SP embraces psychological integrity of individual (G.(J.) loss of custody of kids, criminal-like stigma) SP may be engaged outside penal settings or direct bodily effects, BUT psychological stress would have to be (1) stateimposed, and (2) serious (Blencoe) does not protect against ordinary stresses a person of reasonable sensitivity would suffer as a result of government action must interfere with ability to make essential life choices NOTE: violation of s. 7 may be upheld under s.1 as a reasonable limit, BUT administrative convenience will never satisfy the Oakes test and further a s.7 violation will rarely, if ever, be upheld under s.1 (Suresh).
SPPA: o Applies to Ontario statutory powers of decision prescribing legal rights, powers, privileges, immunities, duties or liabilities, and eligibility to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not (s.1) o Further limited to tribunals that are required by their empowering statute or otherwise by law to hold a hearing (s. 3)
Step 1b: Threshold Factors - is the interest within the scope of the duty of fairness? o Interests protected: Fairness applies to more than just rights, but rights usually attract more fairness than privileges, which in turn attract more fairness than benefits Applies to privileges once given, if taking away would have serious consequence (Webb social housing) Applies to interests (benefits) on initial distribution if the decision is final (or subject only to an appeal) (Hutfield hospital privileges) Forfeitures usually attract more fairness than renewals, which in turn attract more fairness than applications Applications for a benefit typically attract no fairness obligations (Webb, Hutfield), BUT some fairness may be required where a denial leads to injury to reputation (Hutfield) or some other grave impact on the individual, such as ability to practice a profession (Hutfield). Decision to renew licenses, employment contracts and other interests will often attract fairness (Knight) depends on the legitimate expectations of party seeking renewal, and time the individual has retained the benefit.
2 1/12/2010
Laws of Canada Forfeitures of rights, interests or privileges usually attract fairness - more severe impact militates in favour of a duty of fairness (Webb). Limitations: legislative and policy decisions: Factors in determining if decision is legislative/policy: Targeted vs. general (# of people affected) Nature of decision (policy vs. dispute btw parties) Nature of decision maker (see below not sole factor) Legislature: no duty of fairness applies to Parliament or provincial legislatures (Authorson, Wells), BUT legislation to expropriate property must be unambiguous (Wells) Administrative Bodies: no duty of fairness applies to administrative decision-makers exercising purely legislative or policy functions (Inuit Tapirisat) Whether an exercise of power is a legislative or policy function can depend on identity of decision-maker (Inuit, Homex), form of decision (Homex) or breadth of application of decision (Inuit). Identity of Decision-Maker: Just because the decision-maker is a legislative actor such as a Cabinet Member (Inuit) or an elected municipal council (Homex) does not mean the decision is legislative and thus not subject to a duty of fairness. Breadth: Powers granted to enable response to broad political, economic and social concerns, and that apply indiscriminately attract no fairness (Inuit). BUT, duty likely attaches if decision is aimed at or impacts a specific individual or group of individuals (Homex) Form: If decision in form of a bylaw, Ministerial decree, or other legislative-type decision it may militate in favour of no fairness. However, where this is a guise for action that is quasi-judicial, settles a specific dispute or impacts private rights of specific individuals, a duty of fairness will apply (Homex). Non-final decisions: Non-final decisions given less fairness The closer the investigative or recommendation stage is to final decision (proximity) and the degree of impact of the decision on the rights, interests and privileges of the individual bear on the claim for procedural fairness (Abel). Legitimate expectations: Subsumed in the Baker analysis for degree of fairness Unclear if an LE could independently entitle an individual to fairness
Once over threshold, you get procedural protections of both:
3 1/12/2010
Laws of Canada audi alteram partem adequate opportunity to present your case and respond to the evidence and arguments of other participants or the decisionmaker o determine degree by looking at Baker factors (Step 2) nemo judex entitled to have case heard by an impartial and independent decision-maker o Look at steps 3 and 4 Both limbs of natural justice at CL provide automatic basis for judicial review. And, you neednt show actual prejudice to prove denial of fairness only need to show that you may have been prejudiced: Khan v. University of Ottawa.
Step 2a: DEGREE of FAIRNESS how much audi alteram fairness do you get? o o o CL duty of fairness content to be decided on specific facts eminently variable (Knight) To determine degree of fairness owed by an administrative decisionmaker, need to consider the 5 Baker factors (non-exhaustive) inquiry basically about how much like a court is it, what interests are at stake, and are there policy rationales for less fairness? 1. Nature of the decision being made and the process followed in making it the more 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 requirement for procedural protections closer to the trial model. o E.g. if fact finding, adversarial presentation of evidence, findings of guilt, then more like court. 2. Nature of the statutory scheme and the terms of the enabling statute greater procedural protections will be required when no appeal procedure is provided within the statute (i.e. when the decision is final). o Look to statute to draw inference re. degree of fairness required. 3. Importance of the decision to the individual(s) affected the more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections. o Profession/employment; deportation; permanent consequences = significant impact
4 1/12/2010
Laws of Canada
4. Legitimate expectations of the claimant if the applicant has a reasonable expectation of certain procedures being followed, they will be required by duty of fairness. o A legitimate expectation to a procedural or to a substantive result can only give rise to greater procedural entitlements, never the substantive result itself (Baker). o Affected individual need to have the knowledge of past practices in order for legitimate expectations to arise (Baker) 5. Choices of procedure made by the agency itself great deference when the statute allows decision-maker to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. Thamotheram additional factors: o Does the procedure allow full statement of case? o Are the claimants particularly vulnerable? Fairness content is the same for Charter, BR and common law. Charter: Suresh (using the Baker framework) Bill of Rights: degree from s. 1(a) due process Unclear how we figure out the content could be Baker, could be Singh
Step 2b: Elucidate the CONTENT of duty of fairness: o Delay: Undue delay of administrative proceedings may be an abuse of process, BUT very high threshold direct psychological harm or stigma to reputation such that system brought into disrepute In considering whether delay in unreasonable, look at complexity of case, facts/issues, purpose and nature of proceedings, whether applicant contributed to or waived the delay, other circumstances (Blencoe) Dissent: need common-sense analysis o Oral Hearing: Used to be required, but Nicholson lowered threshold of procedural fairness. Emphasis now on ability to get your point across may not require oral hearing, as a written hearing or informal discussion may suffice (Webb). SPPA s. 5(1): oral hearing unless (a) tribunal made rules for written hearings or (b) party can show good reason for not having oral hearing. Negotiations enough to constitute hearing in Knight. Demand for in-person confrontation greatest where credibility is at issue (Singh, Khan) or conflicting evidence.
5 1/12/2010
Laws of Canada Open or closed hearing? Left to tribunals discretion, but presumption that open if public at large or significant segment entitled to participate o Right to Counsel: SPPA s.10 provides that parties may have counsel at hearings However, Charter PFJ and perhaps CL may require the provision of state-funded counsel (GJ); need to consider. Seriousness of interests at stake, Complexity of the proceedings, and Capacities of the party o Disclosure: Bedrock principle affected individuals require timely notice of what is at stake in sufficient detail to provide them with reasonable opportunity to participate in a meaningful manner. Greater need for disclosure where decision turns on accuracy of something relied on by decision-maker and there is a great impact on affected party (Haghighi). No disclosure of info protected by solicitor-client privilege provided the communication falls w/in usual scope of the professional relationship (Pritchard). Valid privacy and security concerns militate against full disclosure (Suresh), be can still convey lesser content. o Evidence and Cross-examination: SPPA s.10 allows cross only if reasonably required for fair and full disclosure. Key evidence should generally be tested by cross, especially if hearsay, unless good reason to do otherwise (Childrens Aid Society). Not an absolute right (Armstrong). Factors include: Statutory context (if silent, court should be reluctant to step in) Other avenues to bring challenge Type of evidence (credible vs. conflicting) Exceptions (e.g. vulnerable parties) o Duty to give reasons: SPPA s.18 allows written request for reasons, but no content requirement. Under CL, some form of reasons should be required when important decision for individual, when statutory right of appeal, and in other circumstances (Baker). Only need to provide if requested (Liang). Form of reasons flexible (e.g. officers notes in Baker) Content of reasons must set out key findings of fact, evidence used to reach those findings, and convey reasoning process (Gray) Remedies for failure to provide reasons: Quash decision and remit for reconsideration, or Order provision of reasons w/o quashing original decision o Relevance of intl human rights norms and procedural requirements:
6 1/12/2010
Laws of Canada Values reflected in intl human rights law may help inform the contextual approach to statutory interpretation and judicial review (Baker). S. 7 issue: where legislature established a statutory right to review a decision that could affect SP, it is a PFJ that state cannot unreasonably frustrate that right (Ahani dissent).
BIAS and INDEPENDENCE = nemo judex considerations: o automatic entitlement to fair and impartial adjudication, once the threshold for fairness is passed o BUT, seems that unless there is an SPPA, Bill of Rights or Charter issue, the entitlement may be negatived by statute generally applies to independence, but could apply to bias as well Doesnt matter if the decision was otherwise just: the right to be dealt with by an unbiased adjudicator is an independent and unqualified right and cannot be remedied by any sense that the outcome was the correct one in any event (Newfoundland Telephone) PROCEDURE: o 1. Is there unacceptable bias of lack of independence based on the CL? o 2. Does the statute permit such bias? Not open to a court to apply a CL standard in the face of clear statutory direction statute is determinative (Ocean Port). o 3. Would it offend the Charter to allow the person to adjudicate? No constitutional right to independence and impartiality for administrative tribunals (Ocean Port, Bell). Step 3: BIAS (a.k.a. Impartiality): o Bias can be pecuniary, attitudinal, relational, political/ideological, situational, or institutional state of mind or attitude of tribunal in relation to issues and the parties o Bias provides automatic basis for JR o Look at all members of Board Taint in one member or one aspect of decision-making = taint all (Baker) o TEST = Reasonable Apprehension of Bias (Committee for Justice and Liberty): For personal bias: Would an informed person, viewing the matter realistically and practicallyand having thought the matter throughconclude that it is more likely than not that the decision-
7 1/12/2010
Laws of Canada maker, whether consciously or unconsciously, would decide unfairly? Apprehension = does not matter whether there is actual bias For institutional bias: Would an informed person in a substantial number of cases? (Regie) Administrative body that investigates and adjudicates the same case is not enough to meet this test legislature may desire the overlap (Gale). BUT test is met where individual employees do or may play multiple roles (Regie). Application of RAB test: Standard of bias dependent on: Function of decision-maker spectrum from adjudicative to legislative o Suggestion that legislative/political decisions insulated from scope of bias and independence evaluations (Imperial Oil). Nature of decision-maker elected vs. appointed Role of decision-maker small to large Stage of decision-making investigative stage vs. hearing stage o Cant indicate closed mind at investigative (Wells) o Must be no RAB at hearing stage Pecuniary interest must be direct (Perlman). Deliberative secrecy may pose a practical obstacle to proving bias (Ellis Don).
Step 4: INDEPENDENCE: o Question about the structure of the tribunal and its capacity to exercise its functions free from the influence of the appointing government. o Factors to consider (Matsqui): Financial security Security of tenure Institutional independence Institutional fettering of discretion does not destroy a tribunals control over administration of justice) o Factors are NOT DETERMINATIVE standards vary by context (e.g. nature of tribunal, interests at stake) o Structural analysis: Examine the factors on an objective basis (Matsqui).
8 1/12/2010
Laws of Canada o Contextual analysis: Look to practical facts (e.g. if board member independently wealthy but receives no salary for tribunal, seems to have financial security).
9 1/12/2010
Laws of Canada Standard of Review / Substantive fairness: No threshold issue youre challenging a decision that has already been made Legislatures cant insulate tribunals from jurisdictional or rule of law review (Crevier). o Rule of law vs. deference to legislative intent, purpose and expertise of body. Two standards of review (Dunsmuir): o Correctness: Court may undertake its own reasoning process to arrive at the result it deems to be correct. o Reasonableness: Reasons in decision must stand up to a somewhat probing examination. Unreasonable only if there is no line of analysis w/in the given reasons that could reasonably lead tribunal from the evidence to its conclusion. o (No longer used) Patent Unreasonableness: Clearly irrational, perhaps due to no basis in evidence or an assumption contrary to evidence. LeBel has problem w/ distinction btw reasonableness and PU (Cupe 79).
Step 1: Characterize the problem/issue. Are there different parts to the questions that need to be broken down (e.g. jurisdictional question, constitutional question)? The issue may simply be was the denial of the appeal reasonable? o Jurisdiction: question of whether the case before the Board or the adjudicator is one of the kind upon which the empowering statute permits that body undertaking an inquiry (C.U.P.E., Local 963 v. NB Liquor Corporation) o Constitutional question is separate matter (Barrie dissent; picked up in ATCO). o Unclear whether the interpretation of the statutory provision needs to be separated from the decision made pursuant to the provision DEBATE throughout jurisprudence on whether interpreting enabling legislation is a matter of expertise for the tribunal, and whether the court uses its pre-eminence in statutory interpretation as a screen to intervene on the merits. Step 2: Apply the pragmatic and functional approach to determine the appropriate standard of review for all administrative tribunal decisions, including discretions (Dr. Q) and questions going to jurisdiction (Pushpanathan). o P&F approach based on idea of statutory interpretationneed to figure out what level of review the legislature intended. 10 1/12/2010
Laws of Canada
1. Presence or absence of a privative clause or statutory right of appeal Presence of privative clause and its strength militate in favour of deference. Presence of broad right of appeal or requirement for a certified question: less deference. Statutory silence is neutral and does not imply a high standard of scrutiny (Pushpanathan). 2. Expertise of the tribunal relative to the reviewing court on the issue Deference warranted where tribunal has expertise relative to courts and when the question under consideration falls w/in scope of this greater expertise. A reviewing court must: o Characterize the expertise of the tribunal Can be garnered directly from statute or indirectly from composition of board, its accumulated experience and institutional features. Looking to individual expertise is questionable. o Consider its own expertise relative to that of the tribunal o Identify the nature of the specific issue relative to this expertise. Militate for deference: Questions of fact tend to be more w/in tribunals expertise (Chamberlain). Questions of law that are very technical and related to the tribunals expertise (Corngrowers, Barrie). Militate against deference: Questions of law generally Charter or constitutional interpretation (Trinity) Idea that expertise of the tribunal is the key factor (Southam). 3. Purpose of the legislation and the provision in particular Consider general purpose of statutory scheme w/in which the administrative decision is taking place the more the legislative purpose deviates substantially from normal role of courts, the more this suggests the legislature intended to leave the matter to the discretion of the administrative decision maker. More deference if statute: o Intended to engage, resolve, and/or balance competing policy objectives or the interests of various constituencies (polycentric issues); o Concerned with protection of the public; o Requires a tribunal to select from a range of remedial choices or administrative responses; o Indicates decision maker should have regard to all the circumstances as it considers relevant or grants broad discretionary power; o Asks tribunal to deal with issues of a broad, specialized and technical or scientific nature Less deference if statute seeks to resolve disputes or determine rights between two parties. 4. Nature of the question law, fact, or mixed law and fact
11 1/12/2010
Laws of Canada
If finding being reviewed is one of pure fact (e.g. what actually took place btw parties) more deference. If issue of pure law (e.g. what legal test to apply; statutory interpretation) less deference, particularly where the decision will be one of general importance and great precedential value. May be distinguished from questions of mixed fact and law by their potential to apply widely to future cases as precedent (Southam). If question of mixed fact and law (e.g. application of legal test to facts) more deference if the question is fact-intensive and less deference if it is law-intensive. Also, jurisdictional or preliminary questions almost always favour no deference (Pushpanathan) and highly discretionary decisions attract high deference (Suresh).
o Trinity Western University suggests that the nature of the question may be criticalcourts have pre-eminence over matters of law, and this may push toward correctness review. HR determinations are reviewed on correctness standard (Mossop) Interpretation of general international law: correctness also (Pushpanathan) Balancing the factors: o If suggests considerable deference patent unreasonableness o If suggests little or no deference correctness o If suggests somewhere in between reasonableness
Step 3: Apply the standards o Correctness: Court reviewing a decision for correctness still requires the court to find an error in tribunals decision before substituting its own (Mossup). A jurisdictional question will be reviewed on correctness (Pushpanathan). Reasonableness: Test: An unreasonable decision is in the main not supported by reasons that can stand up to a somewhat probing examination (Southam). Decision must be supported by reasons unreasonable only if no line of analysis that could reasonably lead the tribunal from the evidence to the conclusion (Ryan). 12 1/12/2010
Laws of Canada Defect can be in the evidentiary foundation or the process by which conclusions are drawn from it (Baker). Motivations outside the scope of the statute, or not considering evidence relating to the key objects of the statute may make decision unreasonable (Chamberlain, BUT LeBel dissents - suggests that looks like PU analysis). DEBATE over whether to defer to the tribunals understanding of the statute, or to interpret the statute on correctness, then give deference to the decision made within that interpretation (see Bastaraches Barrie dissent, later approved by Bastarache for the majority in ATCO) Expertise is the key factor for deference, and interpretation of statute is akin to the administration of statutesomething clearly within tribunals expertise. o Patent Unreasonableness (Made obsolete with Dunsmuir ruling): Tets: A PU decision is one whose defect is immediate, obvious and so flawed in terms of implementing the legislative intent that no amount of curial deference can justify letting it stand (CUPE v. MOL). PU if tribunal misinterprets the Acts provision so as to embark on a question not remitted to it (NB Liquor). PU if finding based on no evidence (Toronto Board of Education) Contradicting evidence alone is not sufficient for finding of PU Inconsistency is not in itself PU (Domtar). Broad remedial discretion (CUPE v. Montreal) will be PU when: Remedy is punitive in nature Remedy infringes the Charter No rational connection w/ breach, its consequences, and the remedy Remedy inconsistent w/ objects and purposes of the legislation. DEBATE over whether to apply PU only to threshold of interpretation of tribunals jurisdiction, or to apply PU to interpretation of the tribunals reasons (National Corn Growers) Gonthier (majority) consider the reasoning to see if its PU (though searching he does would now likely be reasonableness) Wilson insofar as the matter is properly within delegated power and expertise, then dont interfere. o Wilsons reasons later cited in Domtar
13 1/12/2010
Laws of Canada OTHER SHIT: Ultra Vires Principle for Discretionary Decisions o A discretionary decision is one that admits of a choice between equally valid options (Baker). o Default standard of review for broad discretions is PU (Suresh), but this can be augmented to reasonableness when other P&F factors point strongly towards less deference (Baker) or even to correctness where the tribunal is dealing with Charter issues or other questions that take it far out of its relative expertise (Trinity Western). o If tribunal given broad discretion including determination of what factors are relevant for the purposes of the decision, then its decision as to what is relevant is unchallengeable so long as the tribunal acts in good faith (Sheehan). o However, a discretion may be parsed into a decision of jurisdiction/scope of discretion and an intra vires discretionary decision in some circumstances (Nanaimo, CUPE v. MOL). This leads to separate standards of review for each question. BUT careful of undermining deference and allowing a screen for intervention on the merits. Rulemaking and Regulatory Dilemmas Should delegated bodies have power to make laws/rules? Regulations, policies, guidelines = soft law May be possible for court to strike down a Cabinet order, but it would take an egregious case court will not inquire into motives of Cabinet (Thornes Hardware). P&F approach should be applied in case of review of administrative rulemaking power (Enbridge). See notes on soft law if necessary
Jurisdiction, Justiciability and Standing When does a tribunal have jurisdiction to hear Charter challenge? o Must determine legislative intent (trilogy - Cuddy, Tetreault, Weber) o Should consider: Composition and structure of tribunal Appeal route from the tribunal Expertise of the tribunal o Three principles arise from the trilogy: Court will not give any deference to tribunal SOR will be correctness No stare decisis not binding 14 1/12/2010
Laws of Canada Legislative intent is the driving force (not s. 52 of the Constitution) Two part test to determine legislative intent: o Does legislation explicitly or implicitly allow this tribunal to actually deal with questions of law? o If so, can it decide general questions of law? Cooper splits the trilogy in 3 different ways Martin clarifies test for ascertaining legislative intent re. Charter challenges: Step 1: Determine legislative intent (express or implied) for tribunal to decide any questions of law. Express jurisdiction must be found in terms of statutory grant of power. Implied jurisdiction discerned by reference to factors such as: o Statutory mandate of tribunal o Whether deciding questions of law is necessary to fulfilling its mandate o Whether the tribunal is adjudicative o Practical considerations, such as its capacity to consider legal questions (BUT practical considerations never trump clear statutory implications) Step 2: Rebutted only by showing legislative intent to exclude Charter issues. Onus on party challenging jurisdiction to: Show explicit withdrawal of authority over Charter issues, or Convince the court that the statutory scheme clearly shows that the legislature intended to exclude the Charter from the scope of questions of law to be addressed by the tribunal. Appropriate forum: If tribunal finds law violates Charter, can award any remedy within its power (Weber). In case of overlapping jurisdiction, use discretion to find best fit (Morin): Look at what legislation says about jurisdiction, and Look at nature of dispute to see if falls w/in jurisdiction.
Standing: o If you can grant public interest standing in constitutional cases, can you grant it in cases of administrative law as well? Concerns about proper role of courts and scarce judicial resources 15 1/12/2010
Laws of Canada o Test from Finlay: Justiciability issue must be appropriate for judicial determination Refers to the what, whereas standing refers to the who Sossin article Serious issue Genuine interest No other reasonable & effective manner to bring matter before court Standing will not be granted if likely that a private litigant will step forward (CCC). Standing to a tribunal? Must find a balance between the helpfulness of the tribunal and concern for the integrity of the process (Childrens Lawyer Office).
o o
Granting Remedies: o Upon a successful application for judicial review of an administrative decision, a court has discretion to choose among several remedial options: certiorari quashing decision and sending back to body for rehearing, mandamus order to the administrative body to do something, prohibition order to an administrative body not to do something, and habeus corpus compelling the release of an individual held in custody.
16 1/12/2010
Laws of Canada
The Administrative State and the Rule of Law

Judicial Remedies of Administrative law The courts exercised this supervisory jurisdiction through remedies that were available only in respect of public duties or powers. They were known as the prerogative writs. Three prerogative writs:
Certiorari to quash or set aside a decision.
A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete or if there has been an error of law.
Prohibition to order a tribunal not to proceed in a matter.
Mandamus to order the performance of a public duty.
means "we command" in Latin, is a writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Habeas corpus issues to determine the legality of a persons detention, whether by a private person or public official, with a view to ordering the release of the unlawfully imprisoned
http://thelawsofcanada.info/ 17 1/12/2010
Laws of Canada
Because of its specialized nature, habeas corpus stands somewhat out of the main stream of administrative law.
Grounds of Review Procedural impropriety: before taking action that may adversely affect the interests of individuals, administrators are generally under a legal duty to act in a manner that is procedurally fair. Judges have developed much of what is defined as fair. Legislation may prescribe the procedures to be followed. This requires them to give prior notice to those likely to be affected and a reasonable opportunity to respond. Impartiality in the decision maker is an attribute of procedural fairness.
Illegality: strong presumption that is the function of the courts to determine the limits of the legal powers of governmental institutions. The courts must determine the scope of the legal powers and duties of the agency by interpreting the relevant legislation.
Unreasonableness: an administrative agencys interpretation of its enabling legislation must not be patently unreasonable. There must be some evidence to support material findings of fact on which an agency bases its decision. NOTE, when administrative action infringes a Charter right, it may be justified under section 1 as a reasonable limit prescribed by law.
Unconstitutionality: particularly since the adoption of the Canadian Charter of Rights and Freedoms, it has become increasingly common for lawyers to frame court challenges to administrative action in terms of both the common law and the Constitution. i.e. a refusal by the Immigration and Refugee Board of a claim to refugee status might be impugned both on the ground that it was made in breach of the common law duty of fairness and amounted to a denial of liberty or security of the person, other than in accordance with the principles of fundamental justice, contrary to section 7 on the Charter (p.26).
18 1/12/2010
Laws of Canada
regardless of whether it is authorized by statute, administrative action may always be impugned in court on the ground that it breaches either the division of powers or the individual rights provisions of the Constitution.
The Constitutional Basis of Judicial Review

Re Residential Tenancies Act (1981) 1 SCR 714 (Ont) Dickson J suggested a three step approach to the resolution of a s.96 challenge to an administrative tribunals powers (see. p.39).
A-G Que. V. Farrah (1978) 2 SCR 638 (Que) The sole function of the Quebec Transport Tribunal was to sit on appeal from a tribunal of first instance and decide any question of law. Held: this was an unconstitutional s.96 function. The privative clause was unconstitutional. To give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to create a s. 96 court.
Statutory Removal of Judicial Review (CANNOT OUST JURISDICTION OF COURT)
Crevier v A-G Que (1981) 2 SCR 220 (Que) PRINCIPLE: a provincially-constituted statutory tribunal could not constitutionally be immunized from review of decisions on questions of jurisdiction. Thus, the right to judicial review on jurisdictional grounds is entrenched in the Constitution (p.48). Held: a provincially constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. The legislation must be struck down as unconstitutional because it constitutes, in effect, a s. 96 court. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. Thus, the privative clause was unconstitutional. The fact that the sole function of the Quebec Professions Tribunal was that of a general tribunal of appeal was a fatal flaw by itself. Privative clauses may, when properly framed, oust judicial review on questions of law and on other issues not touching jurisdiction.
19 1/12/2010
Laws of Canada
This Court has hitherto been content to look at privative clauses in terms of proper construction and, no doubt, with a disposition to read them narrowly against the long history of judicial review on questions of law and questions of jurisdiction. The present case is no different than Farrah in principle, even though in ss. 162 and 175 of the Professional Code, dealing with the appellate authority of the Professions Tribunal, there is no mention of the word "law" or the word "jurisdiction".
UES, Local 298 v. Bibeault (1998) 2 SCR 1048 When an administrative tribunal exceeds its jurisdiction, the illegality of its act is as serious as if it had acted in bad faith or ignored the rules of natural justice. The role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection: Crevier.
United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd., (1993) 2 SCR 316, 333 (Nfld.) In the presence of a full privative clause, judicial review exists not only by reason of the wording of the statute (which is, of course, fully preclusive) but because as a matter of constitutional law judicial review cannot be ousted completely.
There is not considerable support for the proposition that Parliament is subject to precisely the same limitations as provincial legislatures and may not create tribunals with traditional superior court jurisdiction, unless they conform to sections 96-99: Canadian Imperical Bank of Commerce v Rifou (1986) 3 FC 486 (CA) Held: the constitutional principle of an independent judiciary would be seriously eroded if Parliament were free to assign to federal agencies jurisdiction over matters historically falling within the jurisdiction of superior courts.
20 1/12/2010
Laws of Canada
The Role of Judicial Review Baker (1999)

Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 (Can.) Facts: Mavis Baker, Jamaican who entered Canada as a visitor in 1981 and has remained since. She never received permanent resident status, but supported herself illegally as a domestic worker for 11 years. She has 4 children in Canada and 4 in Jamaica. She was ordered deported in 1992. In 1993 she applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate (H & C) considerations, pursuant to s.114(2) of the Immigration Act. In 1994 she was denied stating in the letter that there were insufficient H & C grounds. This letter contained no reasons for the decision. Held: the appropriate standard of review is reasonableness simpliciter. Both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the humanitarian and compassionate (H&C) discretion was unreasonable. The matter was returned to the Minister for redetermination by a different immigration officer.
Relevant Statutory Provisions and Provisions of International Treaties

21 1/12/2010
Laws of Canada Immigration Act, R.S.C., 1985, c. I-2 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division. 83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. 114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the
Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to [page829] Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3 Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Article 9; Article 12
Issues
22 1/12/2010
Laws of Canada
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? (see. p.63) (2) Were the principles of procedural fairness violated in this case? (i) Were the participatory rights accorded consistent with the duty of procedural fairness? (ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness? (iii) Was there a reasonable apprehension of bias in the making of this decision? (3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children? Note: In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration The Statutory Scheme and the Nature of the Decision Immigration officers who make H&C decisions are provided with a set of guidelines, contained in Chapter 9 of the Immigration Manual Officers have a duty to ask: themselves what a reasonable person would do in such a situation. ... to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Humanitarian and compassionate grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada.
Procedural Fairness Ms Baker argued that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.
Factors Affecting the Content of the Duty of Fairness: The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness (Knight).
23 1/12/2010
Laws of Canada
Factors relevant to determine the common law duty of procedural fairness in a given set of circumstances (non-exhaustive list):
(1) The nature of the decision being made and the process followed in making it. 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 (Knight). o i.e. if there is a right of appeal this is a factor illustrating that the procedure was designed to be more judicial, thus a factor is favour of greater procedural protections. Thus, the more rights for the appellant usually.
(2) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. Greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. o i.e. if there are no procedural protections in the statute, this is a factor illustrating that the procedure was designed to be more judicial, thus a factor in favour of greater procedural protections.
(3) The importance of the decision to the individual(s) affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. Kane A high standard of justice is required when the right to continue in ones profession or employment is at stake. ... A disciplinary suspension can have grave and permanent consequences upon a professional career. R v Higher Education ... Dental Surgery (1994) The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.
(4) The legitimate expectations of the person challenging the decision. Old St. Boniface this doctrine is part of the doctrine of fairness or natural justice, and it does not create substantive rights. Qi v Canada if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.
24 1/12/2010
Laws of Canada
If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights. Nevertheless, the doctrine of LE cannot lead to substantive rights outside the procedural domain.
(5) Take into account and respect the choices of procedure made by the agency itself. This is particularly so when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
Legitimate Expectations No legitimate expectation based upon the articles of the Convention. The Convention is not the equivalent for a government representation about how H&C applications will be decided.
Participatory Rights Was the failure to accord an oral hearing and give notice to Ms. Baker or her children inconsistent with the participatory rights required by the duty of fairness in these circumstances? Court evaluated this question based on the above 5 considerations of procedural fairness. Answer Baker v Canada: it cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different way in different situations. ... I agree that an oral hearing it not a general requirement for H&C decisions. ... Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances. The opportunity which was afforded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
The Provision of Reasons: The appellant submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker. She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision ... be taken to be a breach of the principles of fairness. Shah The Federal Court of Appeal held that reasons are unnecessary. Tylo (1995) the case history notes prepared by a subordinate officer are not to be considered the decision-makers reasons.
25 1/12/2010
Laws of Canada
Gheorlan (1995) and Chan (1994) the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists. Marques (1995) an H&C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision. Traditional position at common law: the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions Northwestern Utilities [1979]. Importance of giving reasons: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given.
Concerns about giving reasons: Osmond A reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers. That it may lead to increased cost and delay. It might induce a lack of candour (being frank and open) on the part of the administrative officers concerned.
However, some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant Orlowski v British Columbia (AG) (1992) reasons would generally be required for decisions of a review board ... RDR Construction (1982) because of the existence of a statutory right of appeal, there was an implied duty to give reasons. Boyle (1996) Bastarache emphasized the importance of adequate reasons when appealing a decision.
26 1/12/2010
Laws of Canada
Answer Baker v Canada 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. ... It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. HOWEVER ... the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.
Reasonable Apprehension of Bias: The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. ... the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself. Newfoundland Telephone Co and Old St. Boniface the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness.
Test for Reasonable Apprehension of Bias: Committee for Justice and Liberty v National Energy Board (1978) ...The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... 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 [the decision-maker], whether consciously or unconsciously, would not decide fairly.
Answer Baker v Canada the well-informed member of the community would perceive bias when reading Officer Lorens comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. ... the conclusion drawn was contrary to the psychiatrists letter. ...
Laws of Canada
His use of capitals to highlight the number of Ms. Bakers children may also suggest to a reader that this was a reason to deny her status. Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
Review of the Exercise of the Ministers Discretion The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations. In my opinion, these doctrines incorporate two central ideas: (i) that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but (ii) that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121) The Standard of Review in Baker The "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less. Three standards of review have been defined: patent unreasonableness, reasonableness simpliciter, and correctness: Southam.
Applying the Pragmatic and Functional approach in Baker v Canada to determine the appropriate standard of review for decisions under s.114(2) of the Immigration Act and Regulation 2.1 of the Immigration Regulations Pushpanathan: First factor the presence or absence of a privative clause, and in appropriate cases, the wording of that clause. There is no privative clause contained in the Immigration Act.
28 1/12/2010
Laws of Canada
Second factor the expertise of the decision-maker. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference. The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
Third factor the purpose of the provision in particular, and of the Act as a whole. This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference (Pushpanathan). The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister.
Fourth factor considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
Answer Baker v Canada I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. (These four factors aid in determining what standard of review is required. Then, it must be decided whether that standard was upheld).
Laws of Canada
Was This Decision Unreasonable? Southam: An unreasonable decision is one that, is not supported by any reasons that can stand up to a somewhat probing examination. Answer - Baker v Canada the approach taken to the childrens interests shows that this decision was unreasonable in the sense contemplated in Southam. The officer was completely dismissive of the interests of Ms. Bakers children. ... I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. ... In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual H&C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations.
International law Francis v The Queen (1956) International treaties and conventions are not part of Canadian law unless they have been implemented by statute.
Answer Baker v Canada I agree with the respondent and the CA that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law (Francis and Capital Cities). Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. Iacobucci (dissent): ... I do not share my colleagues confidence that the Courts precedent in Capital Cities, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
The Ministerial Guidelines

30 1/12/2010
Laws of Canada
Baker v Canada Held: Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. ... I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Bakers children ... it was an unreasonable exercise of the power conferred by the legislation and must be overturned.
31 1/12/2010
Laws of Canada
Fairness: The Threshold
Dr. Bentleys Case (1723) not even God failed to provide Adam and Eve with a hearing before casting them out of the Garden of Eden.
Natural Justice two branches: (1) Audi Alteram Partem hearing the other side o Gives other party right to be heard (2) Nemo Judex Causa no one should be judge of their own cause o Need for independent and unbiased adjudicators Cooper v Wandsworth (1863) Facts: Builder must give 7 days notice before starting construction of a house. If no application is made, the Board could demolish the house. But, nothing in statute that notice had to be given to the builder to demolish. Cooper sued for trespass. Board claimed it was ultravires. Board said they acted in accord with the statute. Held: Board could not rely on lawful authority, Cooper should have had the opportunity to be heard, entitled to natural justice. No good reason why board could not give a hearing, it would have been no harm to the Board if they would have waited. I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many disadvantages which might arise in the way of public order, in the doing of substantial justice, ... although there are no positive words in a statute requiring that the party shall be heard, the justice of the common law will supply the omission of the legislature.
Ridge v Baldwin (1963) 2 All E.R. 66 Facts: That case involved the dismissal of the chief constable of a borough police force. Under the relevant statute the watch committee was empowered to dismiss a borough constable "whom
32 1/12/2010
Laws of Canada
they think negligent in the discharge of his duty". The dismissal was made without informing the chief constable of the charges against him and without giving him an opportunity to be heard. HL Held: the watch committee was bound to observe the principles of natural justice and that, in view of the failure to do so, the dismissal was a nullity. The chief constable's dismissal was a nullity on the grounds that the administrative body which had dismissed him had failed to provide the reasons for his dismissal or to accord him an opportunity to be heard in violation of the rules of natural justice. Central to the reasoning in the case was Lord Reid's distinction between (i) masterservant relationships (i.e. contractual employment), (ii) offices held "at pleasure", and (iii) offices where there must be cause for dismissal, which included the chief constable's position. According to Lord Reid, only the last category of persons was entitled to procedural fairness in relation to their dismissal since both contractual employees and office holders employed "at pleasure" could be dismissed without reason.
The principles established by Ridge v. Baldwin were followed by the Canadian Courts in Nicholson. Nicholson, like its U.K. predecessor, marked the return to a less rigid approach to natural justice in Canada: Nicholson (1979) 1 SCR 311 (Ont.) PRINCIPLE: The more serious the consequences of the dismissal, the more need for greater fairness. AND. The existence of a duty of fairness no longer depends on classifying the power involved as administrative or quasi-judicial. Facts: Nicholson served as a constable for 15 months and was discharged by the board without being given an opportunity to make submissions. s.27 Police Act (1970) required an officer to be employed for 18 months before being entitled to a hearing and final disposition. SCC Held: (5-4 decision). Laskin declared the dismissal void on the ground that the officer fell into Lord Reid's third category and was therefore entitled to the same procedural protections as in Ridge v. Baldwin. The SCC says that the Board should have told him why his services were no longer required and given him an opportunity whether orally or written to be heard. In doing this, the court is trying to be deferential to allow Board to function how they wish, but wants to ensure procedural fairness. Although the appellant clearly cannot claim the procedural protections afforded to a constable with more than 18 months service, he cannot be denied any protection. He should be treated fairly not arbitrarily. The existence of a duty of fairness no longer depends on classifying the power involved as administrative or quasi-judicial. o i.e. the nature of the Board who dismissed him, it did not matter whether it was acting in an administrative or quasi-judicial fashion.
The present case is one where the consequences to the appellant are serious indeed in respect to his wish to continue in a public office, and yet the respondent Board has thought it fit and has asserted a legal right to dispense with his services without any
33 1/12/2010
Laws of Canada
indication to him of why he was deemed unsuitable to continue to hold it. In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. ... Status in office deserves this minimal protection, however brief the period for which the office is held.
Bates v Lord Hailsham (1972) (UK) that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. o Judicial and quasi-judicial decisions are subject to natural justice, all admin decisions are subject to fairness. o Fairness is a lower threshold to natural justice. Maybe not right to oral hearing, but maybe written.
Pearlberg v Vaty (1972) (UK) Fairness, however, does not necessarily require plurality of hearings or representations and counter representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed.... Russel v Duke of Norforlk (1949) (UK) ... the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration. Selvarajan v. Race Relations Board (1976) (UK) In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
Martland (dissenting): Its decision was purely administrative. This being so, it was under no duty to explain to the appellant why his services were no longer required, or to give him an opportunity to be heard. It could have taken that course as a matter of courtesy, but its failure to do so was not a breach of any legal duty to the appellant.
34 1/12/2010
Laws of Canada
Distinctions between judicial and administrative functions: Martineau v Matsqui (1980) 1 SCR (Can.) PRINCIPLE: courts need not distinguish between a duty to act fairly, and a duty to act in accordance with the rules of natural justice when applying to Administrative or Judicial/quasijudicial decisions. Sliding scale with natural justice at the top (greater protection/rights) and duty to act fairly (less protection/rights). (Pre-Nicholson, the SC had shown little or no sympathy to the procedural claims of inmates). Facts: Martineau and Butters, inmates in a federal jail who committed a disciplinary offence, were disciplined, and alleged that they were not given a hearing. They made an application for certiorari (quash or set aside). The application was essentially based on the fairness requirement. They were met with the argument that certiorari can be used to review only judicial or quasijudicial functions. This argument was rejected by the SC, which appeared to expand the limits of certiorari to include enforcement of procedural requirements generally. SCC Held: (1) SCC expanded the limits of certiorari to include enforcement of procedural requirements generally (not just judicial and quasi-judicial). The order may go to any public body with power to decide any matter affecting the rights, interests, privileges or liberty of any person. The reason for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers (2) The courts should not treat natural justice and procedural fairness as two different standards dependent for their respective application on whether the function in issue was judicial or quasijudicial on the one hand, or administrative on the other. Rather, procedural entitlements are on a spectrum or sliding scale.
The fact that a decision maker does not have a duty to act judicially, with observance of formal procedure which that characterization entails, does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. The Federal Court Act, however, compels classification for review of federal decision makers. With the 1992 proclamation of the amendments to the Federal Court Act, that particular need to make distinctions between judicial and administrative functions disappeared.
Although the courts will not readily interfere in the exercise of disciplinary powers, whether within the armed services, the police force or the penitentiary, there is no rule of law which necessarily exempts the exercise of such disciplinary powers from review by certiorari. There is something special about the corrections setting decisions may have to be made quickly for safety to be restored (Jess notes).
35 1/12/2010
Laws of Canada
Cardinal v Director of Kent Institution (1985) 2 SC 643 (BC) PRINCIPLE: a duty of fairness (right to be heard and receive reasons) was required to prisoners who were denied release from segregation. AND any admin decision which is not legislative and effects rights of individuals, attracts fairness AND even if it is predicated that a certain result would incur, a fair hearing must still occur. Facts: Appellants were prisoners who were allegedly involved in a hostage-taking incident in Matsqui Institution. Criminal charges of forcible seizure and attempted escape were laid against them. They were transferred to Kent Institution where they were placed, on the Director's oral instructions, in administrative dissociation or segregation, pursuant to s. 40 of the Penitentiary Service Regulations, on the ground that it was necessary for the maintenance of good order and discipline in the institution. The Director did not make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident but relied on what he had heard from the warden of Matsqui Institution and personnel at regional headquarters. The Segregation Review Board, which reviewed the appellants' segregation monthly in accordance with s. 40 of the Regulations, recommended that they be released from administrative segregation into the general prison population. The Director refused to follow the Board's recommendation on the ground that the appellants' release from segregation before the disposition of the criminal charges pending against them would "probably" or "possibly" introduce an unsettling element into the prison population. The Director did not inform the appellants of his reasons for refusing to follow the Board's recommendation and did not give them an opportunity to be heard as to whether he should act in accordance with the recommendation. SCC Held: a hearing was required for a decision by prison officials to keep a prisoner dissociated for security reasons (based on a common law duty of fairness). In this case, procedural fairness required that prisoners are heard from, and that they get reasons for the decision. The Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. o Any admin decision which is not legislative and effects rights of individuals, attracts fairness. Board argued that the hearing would have been futile because the director already made up his mind. o The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.
Knight v. Indian head School Division (1990) SCR (Sask) Facts: The appellant board of education dismissed the respondent director of education when he refused to accept a renewal of his contract for a shorter term than the original. The respondent
36 1/12/2010
Laws of Canada
brought an action against the appellant alleging wrongful dismissal. The SCC held that the board did not need to show cause for the dismissal either under the contract of employment or under The Education Act. The respondent then argued that he was entitled to procedural fairness before being dismissed and that he had not been fairly treated. The court had to decide whether procedural fairness was due to an officeholder at pleasure. Held: procedural fairness was due, but the requirements of procedural fairness had been satisfied. The appellant owed no duty of fairness to the respondent. The board of educations appeal was therefore allowed. In my view, the appellant Board has made itself sufficiently available for discussion through meetings with the respondent and his lawyer so that each party's concerns were made fully known to the other. This can only lead to the conclusion that the respondent knew the reasons for his dismissal and was provided with every opportunity to be heard. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar have been met. I therefore conclude that the respondent was properly dismissed and that his action must fail. The main issue was whether the director's employment relationship with the school board was one that attracted a public law duty of fairness. Held: it did attract such a duty on the ground that the director's position had a "strong statutory flavour'" and could thus be qualified as a public office. In doing so, she specifically recognized that, contrary to Lord Reid's holding in Ridge v. Baldwin, holders of an office "at pleasure", were also entitled to procedural fairness before being dismissed. The fact that the director's written contract of employment specifically provided that he could be dismissed with three months' notice was held not to be enough to displace a public law duty to act fairly (quoted from Dunsmuir check). OVERRULED on:
(1) office holders at pleasure were also entitled to a public law duty of procedural fairness
before being dismissed, contrary to Ridge v Baldwin (Dunsmuir: office holders at pleasure are not).
(2) Employees under an employment contract are subject to a public law duty to act fairly
before being dismissed (Dunsmuir: the law of contract governs employment contracts, not subject to the public law duty to act fairly). Neither the statute nor the contract accords a right to procedural fairness. The duty to act fairly does not form part of employment law but stems from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law. The existence of a general duty of fairness depends on: (i) The nature of the decision to be made by the administrative body A decision of preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such effect o In this case the decision was final therefore need to act fairly (ii) The relationship existing between that body and the individual, and
37 1/12/2010
Laws of Canada
The classifications of the nature of the employment is no longer necessary (between at pleasure or employee that must be removed with cause) because the administrative body is required to act fairly in both cases o In this case the office was held at pleasure and this implied a duty to act fairly (not true anymore after Dunsmuir) (iii) The effect of that decision on the individuals rights There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual o In this case, the loss of employment is a significant decision that justifies imposing a duty to act fairly Dunsmuir v New Brunswick (2008) SCC 9 PRINCIPLE: where a public employee is employed under a contract or employment, regardless of his or her status as a public office holder, the law of contract (pay in lieu of notice) is invoked, not public law AND office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin). In Knight it was held that the holder of an office at pleasure was entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed OVERRULED BY DUNSMUIR. We are of the view that the principles established in Knight relating to the applicability of a duty of fairness in the context of public employment merit reconsideration. ... Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law. In our view, the existence of a contract of employment, not the publics employees status as an office holder, is the crucial consideration. ... he was also a civil servant and, pursuant to s. 20 of the Civil Service Act, his dismissal was governed by the ordinary rules of contract. If his employer had dismissed him without notice and without cause he would have been entitled to claim damages for breach of contract. Even if he was dismissed with notice, it was open to him to challenge the length of notice or amount of pay in lieu of notice given. On the facts, the respondent gave the appellant four months' worth of pay in lieu of notice, which he was successful in having increased to eight months before the grievance adjudicator. It is true that the remedy of reinstatement is not available for breach of contract at common law. In our view, the distinction between office holder and contractual employee for the purposes of a public law duty of fairness is problematic and should be done away with. The distinction is difficult to apply in practice and does not correspond with the justifications for imposing public law procedural fairness requirements. What is important in assessing the actions of a public employer in relation to its employees is the nature of the employment relationship. Where the
38 1/12/2010
Laws of Canada
relationship is contractual, it should be viewed as any other private law employment relationship regardless of an employee's status as an office holder. The starting point, therefore, in any analysis, should be to determine the nature of the employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies. However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who "fulfill constitutionally defined state roles.
EMERGENCIES
Criminal purposes: R v Randolph (1966) SCR 260 (Can.) Held: an interim order withdrawing the provision of mail services to an individual could be made without hearing when the statutory basis for making that decision was a belief that the mails were being used for criminal purposes. The action is interim only and is open to reassessment in the context of a subsequent hearing.
Cardinal v Director of Kent Institution (1985) 2 SC 643 (BC) Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision. ... it is likely that the court will pay considerable deference to the relevant authoritys judgment as to the urgency of the situation. DECISIONS OF A LEGISLATIVE AND A GENERAL NATURE Martineau v. Matsqui Institution 1980 1 SCR 60 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. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards.
Laws of Canada
review by certiorari was available whenever a public body has power to decide "any matter affecting the rights, interests, property, privileges, or liberties of any person".
CABINET AND CABINET APPEALS
What counts as a legislative decision? Does a purely ministerial decision have to be taken by a Minister? Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) 2 SCR 735 PRINCIPLE: Generally, the rules of natural justice are not applicable to Cabinet (legislative) or policy decisions (since greater deference and to Cabinet). Facts: Bell Canada seeking approval for a rate increase, CRTC approves the new rate structure for Bell. Tapirisat appeal the CRTC decision to the Governor in Council b/c they believed that an increase in rates should be accompanied by better service to the Inuit communities. There are two paths that Tapirisat could have taken to appeal the decision, 64(1) which is a Cabinet petition, or 64(2) which is an appeal with leave to the Federal Court of Appeal on a question of law or jurisdiction (National Transportation Act). The Cabinet ruled against Tapirisat, they then made a fairness claim (not treated fairly, written submissions not presented, nothing shared with Tapirisat) at the Federal Court trial division because it is a question of judicial review. They couldnt go through 64(2) in the first place b/c there was no question of law before. SCC Held: ...The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. If that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity. BUT, I am unable to conclude that the issue of fairness arises in these proceedings on a proper construction of s. 64(1). It is obvious that parliament intends Cabinet to act in a different way than an administrative board there are no standards or guidelines imposed or implied parliament does not want to restrict Cabinet. It is a very broad power that the Cabinet has, they can hear petitions, but can also review on their own motion which is a very pure form of legislative action. The CRTC has a whole bunch of constraints on how they do their work which come from the legislature. In contrast, there are no constraints on the cabinet in 64(1) there are no standards or guidelines on how they have to make their decision. This illustrates the legislature giving the Governor in Council discretion. BUT court says there is some sort of minimum standard: o If they didnt consider the petition at all, then the court would have said that was not fair.
40 1/12/2010
Laws of Canada
o HOWEVER, because they did consider it, they read submissions, etc... that was sufficient. There is no requirement to hold a hearing so that subscribers to Bell can be heard this is obviously not practical b/c of the volume of people that subscribe and the fact that it was done in the past simply shows the growth of the Canadian community.
o This does not prevent the Governor in Council from holding an oral hearing if they want to, but the court does not want to convert past practice into rigid, invariable administrative procedures when a body is taking on delegated legislative functions and the subject matter is not an individual concern or right specific to the petitioner, it is most likely legislative decision making. where the decision is directed at a specific individual and is based on factors particular to that individual, the function in issue will not be classified as legislative despite the political nature of the decision maker. Policy reasoning for allowing Cabinet to occupy this role this provides govt with a quick and easy way to respond to changing public policies. How do we know its a legislative decision? If it is a function performed in the past by government and legislature itself. Historically, this was a function determined by government. If it isn't of interest specifically to the petitioner, but affects a broad range of people (i.e. everyone with a phone), thus it looks like a policy decision. BYLAW AND RULEMAKING Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) SCC PRINICPLE: if a decision affects a private individual in particular, it will not be considered legislative and the duty of fairness will apply (if the decision affected many people as do legislative decisions of general significance, then the duty of fairness would be less likely to be required since it has the potential of applying to a large amount of individuals). Facts: Homex owns a subdivision and municipality wants Homex to service the new lots. Homex refuses to pay and the municipality introduces a bylaw which has the effect of deregistering the plan for the subdivision without giving prior notice to Homex. To have it registered, you need to go to the committee of adjustment for each individual lot, and this committee is able to impose conditions (such as making Homex pay). Homex claims they didnt have the opportunity to be heard when council pass the bylaw which was a breach of the DOF. SCC Held: Because the bylaw was aimed at limiting the rights of one individual (and not overwhelmingly in the public interest), there is a duty of fairness which would have been satisfied had the municipality given Homex the opportunity to be heard. the right to a hearing results from the fact that the by-law interferes with the private property rights of this one owner.
41 1/12/2010
Laws of Canada
one cannot label an act legislative for the purpose of dispensing with fairness. A bylaw may, in the public interest, operate to the detriment of particular individuals but not without giving those individuals a right of hearing. A purely ministerial decision, on broad grounds of public policy, will typically afford the individual little or no procedural protection. ... On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targeted, directly, adversely and specifically.
Spectrum Legislative Judicial Broad range of interest Individual Rights Polycentric Full DoF No Duty of Fairness (DoF)
POLICY MAKING Where the impact of the decision is being made is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (unless the legislation contains some indication of public participation or obligations of consultation).
Canadian Association of Regulated Importers v. Canada (Attorney General) (1993) Federal Court and CA
42 1/12/2010
Laws of Canada
PRINCIPLE: The rules of natural justice are not applicable to legislative or policy decisions. Parliament could have inserted the duty to give notice and consult with the public, but it did not. The Minister could consult to be considerate, but no obligation. Facts: A ministerial decision changed the quota distribution system for the importation of hatching eggs and chicks and based the decision on a companys market share instead of historical data. Certain importers were to be disadvantaged from the new scheme and brought a challenge saying that they should have been consulted before the decision was made. Federal Court decision (Reed) Held: although the Minister was exercising a statutory power which had been delegated to him, the general decision that he was making was applicable only to a very small segment of the population. Thus, some form of notice to the respondents was required as well as an effective opportunity to be heard. just a general notice b/c it was such a small group in one industry. Federal Court of Appeal (Linden) Held: principles of natural justice are not applicable to the setting of a quota policy although they may be to individual decisions respecting grants of quotas.
Generally, the rules of natural justice are not applicable to legislative or policy decisions (quoting Inuit and Martineau). 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. although it bring harm to the group, it is a legislative or policy exercise and as such, courts will not interfere. 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.
o
In essence, what the respondents are seeking here is to impose a public consultation process on the Minister when no such thing has been contemplated by the legislation. o Parliament could have inserted the duty to give notice and consult with the public, but it did not. o cannot impose consultation on the minister when this has not been imposed by legislature
DECISIONS AFFECTING RIGHTS, PRIVILEGES, OR INTERESTS
43 1/12/2010
Laws of Canada
The threshold no longer depends on a distinction between rights on the one hand and privileges and mere interest on the other, the extent of the procedures to be accorded clearly can (this is prior to Cardinal (1985)).
Re Webb and Ontario Housing Corporation (1978) Ont. CA PRINCIPLE: a privilege holder is entitled to a DOF, like a holder of a right, however, to a lesser degree than a right holder. Facts: Ontario Housing Corporation (OHC) owned an apt building rented for low market rent and was managed by Meridian. Webb and kids were tenants. In 1973, Meridian recommended to OHC that they should terminate Webbs lease on the basis that her children were causing problems. Webb was provided with 2 letters that detailed the complaints against her and children, and although she could not read, someone came to her apartment to discuss the letters with her. The OHC brought an application to terminate lease under Landlord and Tenant Act and Webb applied for review of the OHC decision. Held: Webb was treated fairly because she was advised of the case against her and was permitted to give an answer or remedy. The removal of such benefits did not attract the full panoply of natural justice protections, only more limited procedural fairness obligations. Webb was granted a benefit when she became a tenant due to her being on welfare and the OHC, in exercising its power of termination and thereby depriving the appellant of the benefit of the lease, was required, under the circumstances, to treat the appellant fairly by telling her of the complaints or case against her and giving her an opportunity, if she wished to make an answer to those complaints o If no notice is given, procedural fairness would not be met. If no notice is given to a person who, as a result of an investigation by a public corporation in carrying out a public obligation, is in danger of losing an important benefit, and no opportunity is afforded to answer the "case" against him, such a procedure, in my view, would be unfair. Beyond that factual situation it may be that what constitutes fairness is, like beauty, to be found in the eye of the beholder. Once the appellant became a tenant she acquired a very real and substantial benefit because of her reliance on and eligibility for welfare. The determination to grant her this benefit was made when she was accepted as a tenant. That decision was one which, in my view, could be made by O.H.C. without any intervention of a rule or principle of procedural "fairness". However, once she became a tenant and thus "qualified" for and received the very real benefit of a reduced and subsidized rent, the situation changed. o Distinction that still stands is between the HOLDER of privilege, and APPLCIANT of privilege. The procedural entitlements in this case is restricted to people who already have the privilege to housing, NOT to those who are still applying for public housing. Once the threshold for DOF is crossed, still need to characterize if it is a right, privilege or interest in order to determine the type of DOF. A privilege will get less DOF than a professional license. There is also a distinction between the holders of the benefits and the applicants for the benefits (applicant may not have the same DOF protection). Privilege can be looked at in three situations: 1) applicant for privilege, 2) expectation of
44 1/12/2010
Laws of Canada
the privilege, and 3) forfeiture of the privilege (these have right to hearing b/c they will be stripped of benefit they already hold). o Note: Hutfield modifies this by holding that even a privilege seeker can have DOF attached to decision. o Note: Nicholson and Re Webb reaffirmed and perhaps extended the duty of fairness required of all persons or bodies exercising power even though the exercise of that power might be classed as administrative rather than judicial or quasi-judicial. Importance: This case involved a decision about a privilege, but this is as big a deal that a decision affecting a right would have. Hutfield v. Board of Fort Saskatchewan General Hospital District No.98 (1986) AB QB PRINCIPLE: a minimal DOF may be owed to an applicant for privilege if the decision affects the applicants reputation. Facts: Doctor applies to be appointed to medical staff at hospital so that he can obtain hospital privileges. An application for appointment is sent to the Board and is reviewed by the College of physicians, who make a recommendation and then a committee is set up which includes the Chief of Staff. The committee investigates the doctor and they make a recommendation to the Board. The first time the doctor applied the process was followed and the college recommended him but the committee denied him. In the second application, it went straight to the committee. Hutfield asked to appear before the board when it considered the application, but he was refused, and again the board rejected him and refused to give reasons. He sought certiorari to quash its decision and mandamus to compel consideration (Doctor is trying to get hospital privileges, i.e. he wants to work there). Held: the decision was invalid because the second application was not sent to the college and the Board should have provided reasons for the denial of application. Even though the doctor was seeking to obtain a privilege, it was determined that a duty of fairness was owed to him. Factors contributing to the finding/situations in which DOF will be found: (1) where a refusal of a licence casts a slur on the applicants reputation or financial stability the duty to act fairly may well require that the body should offer an opportunity for a hearing. i.e. it is an inference that Hutfield does not possess the credentials slur on his reputation i.e. to be called to the bar you have to be person of good character, if you dont get called to the bar that can be seen as slur on reputation (2) the general interests of the public may be, and in the present case, are affected by the decision of the Board to grant or not to grant hospital privileges to the doctor. This process isn't in the public interest because its not transparent. In this case, at minimum you have to provide him with reasons thus he could know what the deficiency in his application was and address it next time. o Dont have to go as far as having a hearing, but you have to give reason for his rejection. NON DISPOSITIVE DECISION (preliminary/investigative stage/not final decisions)
45 1/12/2010
Laws of Canada
Non-dispositive decisions are preliminary decisions that do not actually decide the matter but help to decide it in some way. Knight first introduced the discussions on this topic by saying that a decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have that effect. However the preliminary decisions are often what the final decision is based upon, therefore it seems counter-productive to not hold the preliminary decision maker to a high standard as well. Abel re-examines what LHeureux-Dube stated in Knight and modifies the principle.
In general, if it is an investigative stage, DoF will not apply. If you wanted to object to this rule, what would you say? Prelim decision has a great impact on the final decision (ex. Brd has never disagreed with the committee). In the eyes of the public, decision to investigate is the same as a final decision (ex. Decision to investigate sexual harassment) the damage is done at the prelim stage.
Re Abel and Advisory Review Board (1979) Ont Div Ct affirmed (1981) Ont CA PRINCIPLE: if a non-dispositive decision or recommendation vitally affects/influences the final decision (rubber stamp decision) then a DOF applies. The key in determining whether a DOF applies: (1) the degree of proximity between the investigation and the decision. (2) the exposure of the person investigated to harm are matters of paramount concern. Facts: Advisory Review Board is set up to annually review detentions of people who are found to be not guilty by reason of insanity. Process as per 29(1): Chair receives application, ARB conducts inquiry or can hold hearing to receive testimony, patient/representative may attend hearing, patient may call witnesses and cross examine, ARB may receive reports, and can interview people. In this case, lawyers requested disclosure from the ARB wanted to see reports and other info on which ARB was going to make its decision. The ARB refused. Question can the duty of fairness apply to these nondispositive, recommendation type hearings? ARB doesnt have final say in this they make recommendation to the Lieutenant Gov. Council is saying that this is a rubber stamp situation, and the LG is not going to disagree with the ARB. Held: the Board failed to meet the legal test of fairness. Not giving the applicant a chance to meet the case against him goes against the DOF, needed to give some form of disclosure. Although the chairman is not bound to follow the recommendations, it is most unlikely that he would go against the recommendation, therefore, the court says that the only chance to have the application granted is through the officer performing investigation. Test whether natural justice will apply: (1) degree of proximity (2) exposure of the person being investigated to the harm. this application is virtually the only chance (albeit an annual chance) that the applicants have of avoiding a lifetime of incarceration. The effect of the recommendation of the ARB is for the applicants of the most vital concern. The key in determining whether a DOF applies: (3) the degree of proximity between the investigation and the decision.
Laws of Canada
(4) the exposure of the person investigated to harm are matters of paramount concern. (1) the degree of proximity between the investigation and the decision. here the proximity is great. How many things could potentially intervene between the investigation and the decision? o In this case, they said there was close proximity not very many things could intervene to change the decision. o If there were various things that the LG could take into acct when making their decision, then that would be a different case. o Test of proximity need to look at the connection between the decisions, if it is simply rubberstamping the courts will not disregard this, who has the practical authority to make the decision. o It is important for counsel to look and see where the decision making power lies: (i) if you are in front of the decision maker who has the power to make the decision to take away rights, privileges or interest, the DOF applies, and (ii) if you are not in front of the decision maker, but you are in front of a body that has the practical ability to make the determination, the DOF also applies.
(2) the exposure of the person investigated to harm are matters of paramount concern here there is significant harm to the person investigated. In practice, where is the actual determination being made? If you can argue that most of the decision is being made at the investigation stage then you can make an argument that DoF should apply. Irvine v Canada (Restrictive Trade Practices Commission) (1987) 1 SCR 181 (Can.) 3 factors to consider if fairness is required
(1) Character proceeding
(2) Nature of report and whether it is made public

(3) Penalty that will result when report is received.
Basically, what degree of procedural fairness needs to be done in order to render the rest of the decision fair.
LEGITIMATE EXPECTATION
47 1/12/2010
Laws of Canada
In certain circumstances, procedures will be required by reasons of expectations generated in an affected person and not be entirely contingent on a detached analysis of the statutory power in question. Legitimate expectation arises in situations where an expectation of a hearing arising out of express representations, a practice of holding such hearings or a combination of the two. Legitimate expectation is important because it reflects the need for a regular, predictable and certain government dealings with the public (Mount Sinai Hospital).
Doctrine has been affirmed by SCC but arguments made under it are very rarely
successful. R v. Liverpool Corporation (1972) QB CA (UK) Facts: municipal officials had given express undertakings to the association that the number of taxi licences would not be increased without a hearing, and, subsequently, following a hearing, that there would be no increase unless a private Act of Parliament was procured. Held: Denning was prepared to make promises of the officials binding but did not do so because it was a policy decision to mandate public participation. Denning did ground an entitlement on the factual situation which laid the groundwork for legitimate expectation. Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) 3 SCR 1170 (Man.) PRINCIPLE: Doctrine of LE is an extension of the rules of natural justice and procedural fairness. Not required in this case. Ruling gave recognition of the doctrine. Facts: residents were told that no new developments would be allowed without consulting the residents Held: The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. The planning and zoning process is an elaborate structure designed to enable all those affected not only to be consulted but to be heard. The appellant availed itself of this process by making representations before the Community Committee. Even if the conduct of this Committee raised expectations on the part of the appellant, I am of the opinion that this would not justify this Court in mounting onto the elaborate statutory scheme yet another process of consultation. St. Boniface gave the hope that fairness could be used in a legislative decision making case, however Canada Assistance Plan draws a distinction between these decisions and legislative decisions: Reference re Canada Assistance Plan (1991) 2 SCR 525 (BC) PRINCIPLE: no procedural or substantial LE applied to Parliament implementing legislation. Government should not be bound (i.e. by its predecessor).
48 1/12/2010
Laws of Canada
Facts: A cost sharing program was entered into by Federal and provincial governments to share costs of provincial social assistance and welfare programs. Section 8 said the agreement would continue in force so long as provincial law was in effect subject to the termination by consent or unilaterally by either party on one years notice. The federal govt capped their level of funding through the passage of bill due to deficit policy decisions. BC sues them on the grounds that they had a LE. Issue whether provinces can expect a legitimate expectation from the government? Held: Legitimate expectation does not extend to such agreements. Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to prevent the government from introducing legislation in Parliament. Such expectations might be created by statements during an election campaign. The business of government would be stalled while the application of the doctrine and its effect was argued out in the courts. Furthermore, it is fundamental to our system of government that a government is not bound by the undertakings of its predecessor. The doctrine of legitimate expectations would place a fetter on this essential feature of democracy. ... A restraint on the executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself. Federal govt power is held in check by the political and democratic devices and not the courts Baker PRINCIPLE: Legitimate expectation never generates a claim to a substantive outcome, only to hearing entitlements. In Canada substantive expectations can generate an entitlement not to substantive outcomes but procedural protections if the decision maker is of a mind to defeat those substantive expectations. This is where we diverge from UK authorities. Legitimate expectations can only guarantee more fairness, it cannot guarantee a particular result. Post Baker, it has been confirmed that legitimate expectations will not create substantive rights but will create procedural rights when certain outcomes are expected. If a certain outcome is expected, then you may have a greater guarantee of procedure.
Furey v. Roman Catholic School Board for Conception Bay Centre (1991) NF court
49 1/12/2010
Laws of Canada
PRINCIPLE: LE will apply to an administrative decision (i.e. school board) affecting procedure. Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply. Legitimate expectation creates procedural, not substantive rights. AND There must be actual reliance, i.e. must have knowledge to rely on it. Facts: In 1989, the school Board notified parents and discussed with parents changes to schools in the area and followed a set of guidelines for those interactions and the parents voted at the end of the discussions. The end result of the discussion was to leave open the school currently in consideration in this case. In 1991 a board member brought a motion to close the school based on discussions that the parents were not involved in. The guidelines were not observed in this case, opposed to the 1989 discussions, and the parents were not notified. Held: this was an administrative decision and attracted a duty of fairness which was not satisfied. Court granted certiorari and the matter to be reconsidered. ... the decision of the school board in closing Assumption Elementary was an administrative decision, and not in any sense legislative. My understanding of the authorities is that legislative decisions are usually general decisions of broad application. Administrative decisions usually deal with specifics, as was the case here. The 1989 procedure, and subsequent communications, could not do otherwise than raise in the minds of the parents the expectation that there would be procedural fairness in future decision making with respect to school closure.
On Appeal (parents not represented): court reversed the judgment on the basis that they did not find any evidence that the parents had believed that past practices would be followed in this instance (no affidavit was submitted).
Example of SCC making effort to limit the doctrine of legitimate expectation and public law estoppels: Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) (2001) SCC PRINCIPLE: a new Minister not abiding by what the old Minister had promised does not give rise to LE, but the original guarantee must be abided by the new Minister (court trying to avoid LE terminology). Facts: A hospital had been functioning in violation of its license. It was operating under permit for long term care beds, but was providing short term care beds. Discussions took place with the minister and it was agreed that, if the hospital relocated to Montreal, its licence would be regularized. The hospital engaged in extensive fund-raising efforts and relocated. When it sought to have its licence updated, a different minister in a different government refused, primarily on the basis that he did not want to commit the government financially to this. Hospital sought mandamus to compel the minister to issue the revised licence. Quebec Superior Court: refused to make such an order on the basis that the doctrine of legitimate expectation could not be used to achieve substantive outcomes.
50 1/12/2010
Laws of Canada
Quebec Court of Appeal: accepted this, but ruled that the hospital was entitled to a revised licence on the basis of the doctrine of public law estoppels. SCC Held: (Bastarache J) it is not necessary to deal with public law estoppels and legitimate expectation. The case turned on the fact that earlier ministers had already made a decision conditional on the hospital relocating and this was a decision that the current minister did not have any basis for overturning. As a consequence, the hospital had an entitlement to the formal issuance of a licence in terms of that initial decision. Per McLachlin C.J. and Binnie J.: The current minister had made a patently unreasonable decision and failed to act in a procedurally fair manner in refusing the licence. In this case, as stated earlier, the Minister's decision will be set aside through the application of the ordinary rules of procedural fairness. There is no need to expand either the availability or content of procedural fairness because of the conduct of successive Ministers which amounts, in this respect, only to an aggravating circumstance. There is, in short, no need to resort to the doctrine of legitimate expectations to achieve procedural relief and, as explained, substantive relief is not available under this doctrine. Summary court tried to manoeuvre around the doctrine of legitimate expectation and estoppel. Council argued for LE to be extended to this case, the court refused (trying to limit it). The court also refused to allow an estoppels argument, it appeared because it would enable one government to bind the next.
CONSTITUTIONAL DIMENSIONS The Charter and the Bill of Rights: Issues of General Applicability
The Canadian Bill of Rights (The 1960 or Diefenbaker Bill of Rights) It is a federal statute. Its area of application is confined to the federal domain (s.5(2) and s.3). It has no relevance to provincial statutes or decision making under provincial jurisdiction. It is applicable to both prior and subsequent legislation in that it declares primacy over all other legislation unless that legislation contains an express provision to effect that it overrides the Bill of Rights (s.2). Only after the advent of the Charter in 1982 that the Bill of Rights came into its own as a source of procedural protections.
The Charter of Rights and Freedoms The Charter applies throughout Canada, in contrast to the Bill of Rights.
51 1/12/2010
Laws of Canada
The Charters applicability is restricted to the Parliament and government of Canada and the legislatures and governments of the provinces (s.32(1)). o McKiney v University of Guelph (1990) held that, notwithstanding their statutory status, universities (at least as currently constituted) were not government and therefore not generally amenable to the Charter with respect to actions and decisions that would expose them to judicial review. o Stoffman v Vancouver General Hospital (1990) BC hospital boards are not considered government, thus not subject to the Charter. o Doublas/Kwantlen Faculty Assn. v. Douglas College (1990) BCs community colleges are not government, thus not subject to the Charter. o Eldridge v British Columbia (1997) a hospital board performing a government function is subject to the Charter (providing translation facilities for hearing impaired patients). Essentially if you can make a path from a statute to a decision maker, there can be judicial review under Charter
Sources of Procedural Protections
Bill of Rights The Bill of Rights is a federal statute, applicable only to federal law. Although the Bill of Rights remains in force, it has received little judicial notice since its passage in 1960. This is so in spite of the fact that it has been referred to as quasi-constitutional. Where federal legislation conflicts with the protections of the Bill of Rights, unless the conflicting legislation expressly declares that it operates notwithstanding the Bill of Rights as required by s. 2, the Bill of Rights applies and the legislation is inoperative; R. v. Drybones. If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating that the legislation in question operates notwithstanding (regardless or despite what it says) the Bill of Rights. The Bill of Rights protects only rights that existed in 1960, prior to passage of the Bill of Rights. o i.e. Miller v. The Queen (1977) no absolute right to life existed prior to the Bill of Rights, so a death penalty statute was not inoperative.
s.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;
Laws of Canada
Section 1(a) protects the enjoyment of property, the deprivation of which must occur through the due process of law.
s.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; Section 2(e) guarantees a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
Charter Section 7 is the principal source of procedural protections. 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.
s.15 equality before and under the law. o Andrews established s.15 was essentially an anti-discrimination provision with its protections only benefiting discrete and insular minorities.
53 1/12/2010
Laws of Canada
s.11 guarantees of an independent and impartial tribunal , of no unreasonable delay in the conduct of proceedings, and of presumptions of innocence ... o R v Wigglesworth confined s.11 to criminal proceedings and those with true penal consequences. s.13 protection against self-crimination s.14 guaranteeing access to an interpreter s.8 protections against unreasonable search and seizure s.9 arbitrary detention or imprisonment s.12 right not to be subjected to any cruel and unusual treatment or punishment has potential benefits for those who are incarcerated in penitentiaries or mental institutions.
Differences between the Bill of Rights and the Charter: (1) Irwin Toy v Quebec (1989) SCC held that life, liberty and security of the person in section 7 are attributes possessed only by natural persons, hence everyone does not include corporations. (2) Deliberately, section 7 did not include protection for property rights. (3) While the Canadian Bill of Rights does not contain an equivalent to section 1 of the Charter, it was held that, in determining the demands of the principles of fundamental justice for the purposes of section 2(e), the court should engage in a section 1 style balancing process akin to that set out in R v Oakes (Air Canada c. Canada...) Authorson v Canada (Attorney General) (2003) 2 S.C.R. 40 PRINCIPLE: No procedural rights (specifically notice and hearing) are guaranteed by s.2(e), Bill of Rights regarding the passage of an Act of Parliament (all that is guaranteed is that the Bill is read three times) AND s.1(a), Bill of Rights does not guarantee any substantive rights to property (money). (although this decision affected a specific group, veterans, it was considered a legislative decisions and thus no duty of fairness is owed (Wells) and (Canada Assistance Plan)). Facts: In 1990, the DVA began paying interest on the veteran accounts, which it had been authorized to do for decades, pursuant to the Financial Administration Act, however, only began to do so post-1990. However, Parliament chose to try and limit the Crown's liability for past interest by enacting s. 5.1(4) of the Department of Veterans Affairs Act: 5.1(4) No claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act. While the DVA had administered the funds, they had not been invested, nor had they accrued interest. Authorson, on behalf of the class action, sued the federal Crown alleging breach of fiduciary duty and sought
Laws of Canada
the interest lost on the funds. He also claimed procedural rights (notice and hearing) to contest the passage of s.5.1(4). Issue: The respondent claimed a right to notice and hearing to contest the passage of s. 5.1(4) of the Department of Veterans Affairs Act. Answer: In 1960, and today, no such rights of notice and hearing to legislative action exists. Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable. A taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him. Wells v. Newfoundland (1999) ... legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate. Reference re Canada Assistance Plan the rules governing procedural fairness do not apply to a body exercising purely legislative functions.
The submission that a court can compel Parliament to change its legislative procedures based on the Bill of Rights must fail. Procedural rights: Section 2(3), Bill of Rights s.2(3) does not impose upon Parliament the duty to provide a hearing before the enactment of legislation. Its protections are operative only in the application of law to individual circumstances in a proceeding before a court, tribunal or similar body. applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations. Substantive due process rights in property: Section 1(a), Bill of Rights - Parliament has the right to expropriate property if it made its intention clear. Here, to the disadvantage of the respondent, Parliament's expropriative intent was indeed clear and unambiguous. The provision, s. 5.1(4) leaves no doubt that the respondent has no claim for interest. Since he would have had no substantive right against a clear and unambiguous expropriation in 1960, the Bill of Rights can offer him no such protection today. Manitoba Fisheries Ltd. v. The Queen (1979) Although the Court ordered compensation in that case, Ritchie J. made clear that Parliament could effect a taking without just compensation if it did so specifically. o Thus, no guarantee of substantive due process. Held: The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of
55 1/12/2010
Laws of Canada
legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue in this appeal. s.5.1(4) of the Department of Veterans Affairs Act is not inconsistent with s.1(a) or s.2(3) of the Bill of Rights.
The impact of section 7 on administrative proceedings was first considered by the SCC in Singh: Singh v. Canada (Minister of Employment and Immigration) (1985) SCC PRINCIPLE: s.7 applies to everyone in Canada (claimant refugees) AND s.7 does not always require an oral hearing. Facts: The appellants were all convention refugee claimants who were landed in Canada (do not yet have Convention refugee status). Under the procedure then in place, the minister, acting on the advice of the Refugee Status Advisory Committee, had determined that they were not convention refugees. They all then applied to the Immigration Appeal Board for a redetermination of their status. However, their applications were not referred to an oral hearing because the board determined on the strength of the material submitted by the applicants that there were no reasonable grounds for believing that they could establish their claims at a hearing. The appellants then applied to the Federal Court of Appeal for review of the boards decision alleging that the statutory scheme infringed section 7 of the Charter. The applications failed and the appellants secured leave to appeal to the SCC. Issues: (1) the appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not. (2) the appellants claim they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. SCC Held: The adjudication procedures of the Immigration Act were inconsistent with s.7 of the Charter. A case with such a serious consequence should have an oral hearing and give claimants reasons for denial in order for them to respond appropriately on appeal. Utilitarian reasons (economic or time constraints) will not justify s.7 to be limited by s.1 on this occasion. Decision of the Immigration Appeal Board set aside and application remanded to the Board. Wilson J Are the Appellants entitled to the protection of s.7?: I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7 of the Charter. It is necessary therefore to consider whether
56 1/12/2010
Laws of Canada
the procedures for the determination of refugee status as set out in the Act accord with fundamental justice. everyone in s.7 includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law. For purposes of the present appeal it is not necessary, in my opinion, to consider whether such an expansive approach to "security of the person" in s. 7 of the Charter should be taken. It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, "security of the person" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.
Do the procedures set out in the Immigration Act for the adjudication of refugee status claims meet the test of procedural fairness (test in Duke v The Queen (1972) SCR)?: Concept of judicial fairness set out in Duke v The Queen without attempting to formulate any final definitions of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case. procedural fairness may demand different things in different contexts. Thus it is possible that an oral hearing before the decision-maker is not required in every case in which s. 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s. 7. If "the right to life, liberty and security of the person" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances. 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. As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. o problem in this statutory scheme is that applicant does not have a chance to state their case and does not know the case he has to meet. o it is an adversarial proceeding and applicant is in unfair position because he must establish on balance of probabilities that Minister was wrong without having knowledge of Ministers case. Opportunity to know the case they had to meet?:
57 1/12/2010
Laws of Canada
The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister's case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of "fundamental justice" as set out in s. 7 of the Charter. Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister's decision to reject his claim. Because s. 71(1) requires the Immigration Appeal Board to reject an application for redetermination unless it is of the view that it is more likely than not that the applicant will be able to succeed. I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are thus incompatible with s. 7 of the Charter. It is therefore necessary to go forward to the third stage of the inquiry and determine whether the shortcomings of these procedures in relation to the standards set out by s. 7 constitute reasonable limits which can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. Can the procedures by saved under s.1 of the Charter?: Council for the Minister argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim has been made would constitute an unreasonable burden on the Board's resources. Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. Even if the cost of compliance with fundamental justice is a factor to which the courts world give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. o Balancing of interests individuals interests and the governments. Beetz J Canadian Bill of Rights: Like my colleague Madame Justice Wilson, whose reasons for judgment I have had the advantage of reading, I conclude that these appeals ought to be allowed. But I do so on the basis of the Canadian Bill of Rights more particularly with s.2(e).
58 1/12/2010
Laws of Canada
What remains to be decided is whether in the cases at bar, the appellants were afforded "a fair hearing in accordance with the principles of fundamental justice". I have no doubt that they were not. What the appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer. I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases. The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.
Notes: one consequence of Singh was that it rendered the system of refugee claim determinations immensely expensive and unworkable. o Is this the kind of consideration one that should at all affect courts in their judgments as to the protections afforded by section 7? Now, Canada will no longer accept as refugee claimants those who arrived here by way of a third safe country. o Does Singh provide any basis for a claim that this provision is a violation of the Charter? Can Canada turn away a refugee claimant without a hearing in such circumstances? Wilson J emphasized that life, liberty and security of the person are three distinct interests, and that it is incumbent on the Court to give meaning to each of these elements.
Chiarelli v. Canada (Minister of Justice) (1992) 1 SCR 711 (Can) PRINCIPLE: Balance of interest under section 7 an individual has an interest in a fair procedure, however, the state also has an interest in conducting national security and criminal intelligence investigations and in protecting police sources. Facts: Chiarelli, a permanent resident of Canada, was deported because of a conviction for an offence that carried with it the possibility of a term of imprisonment for five or more years. In such cases, a deportation order was automatic, however there was a right of appeal to the Immigration Appeal Board. C commenced an appeal, but before it could be heard a report was made to the Security Intelligence Review Committee (SIRC) that if C is allowed to remain in Canada, he would be involved in serious organized crime. Part of the Security Intelligence Service Act provided that, while persons were entitled to a hearing, they were not entitled to be present during, to have access to or to comment on the representations of any person. SCC Held: section 7 rights not violated on a balance of interests calculation under section 7. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used
Laws of Canada
to acquire the information (interest in protecting how the police received information to base their decision on). Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.
Note: Would it have been more appropriate to have dealt with the issue of access to relevant information in the context of a section 1 justification exercise rather than as part of a balancing of interests calculation under section 7? Wilson v British Columbia (Medical Services Commission) (1988) (BC CA) PRINCIPLE: Liberty, in s.7, is not confined to mere freedom of bodily harm. Section 7 does not protect property or pure economic rights, however, will cover livelihood which may have an incidental economic component. Facts: BC wanted to limit the total number of practicing doctors and places where they could work. The practitioners were assigned a number in order to bill for services under the health care plan. New doctors had to apply to commission in order to receive a number and paid for services. The plaintiffs were doctors whose personal circumstances presented different elements of the claim; for example, some sought to come from outside the province and had been denied practitioner numbers, while others had been granted numbers subject to geographic restrictions. The appellants case is that the government has deprived them of the opportunity to pursue their profession, or has restricted their mobility in such a way as to deprive them of liberty in the broad sense in which that freedom is to be interpreted under the Charter. Issue: The question then arises whether liberty in s.7 is broad enough to encompass the opportunity of a qualified and licensed doctor to practice medicine in BC without restraint as to place, time or purpose, even though there is an incidental economic component to the right being asserted (i.e. the doctors bill the government for each patient). Held: the scheme is so procedurally flawed that it cannot stand. Liberty within the meaning of s.7 is not confined to mere freedom from bodily restraint. It does not, however, extend to protect property or pure economic rights. It may embrace individual freedom of movement, including the right to choose ones occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals. Reason why this issue is not economical: In considering the economic interests involved we must not overlook the fact that the plan does not guarantee an income to doctors. It ensures that a percentage of the bills submitted by physicians for medical services performed for insured patients will be paid.
60 1/12/2010
Laws of Canada
Furthermore, we are not persuaded that the appellants are pursuing a mere economic interest in the nature of an income guaranteed by the government. The impugned enactments go beyond mere economic concerns or regulation within the profession.
Section 6 Mobility rights or section 7?: It may be argued that if movement within the province is a protected freedom that such right must be found in s.6. We do not agree. The Charter is not a statute containing a number of watertight compartments. It is not a document which is to be given a narrow and legalistic interpretation. We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in BC constitute a violation of the right to liberty protected by s.7 unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s.1 of the Charter. o Therefore there is a right to practice ones chosen profession. o the court says that the govt needs to provide reasons for denying applications and needs to distribute information about other doctors locations in the province cannot be arbitrary deprivation which is what court was upset about.
Critique this decision is coming from another self-regulated profession therefore the courts could be protecting them. New Brunswick (Minister of Health and Community Services) v. G(J.) (1999) SCC PRINCIPLE: security of the person under s.7 is protects physical and psychological interference (i.e. separation of child from parent). Facts: Administrative proceeding in which mother was at risk of losing custody of children for another 6 months. The question is whether fundamental justice requires her to be provided with legal aid? However for this to be determined, it had to be found that custody affected her security of the person. SCC Held: the threshold for violation of security of person had been crossed because separation of parent and child has profound effects on both. A hearing which may allow a parent to lose their child is serious. Right to security of person protects both the physical and psychological integrity of the individual (Morgentaler). Thus, she is entitled to state funded council. Removing children from parent would constitute a serious interference with the psychological integrity of the parent.
SCC found she should be provided with state funded council. 3 factors to be considered: (1) Seriousness of interests at stake o Here they say 6 months is long time to be separated from parents o This is definitely a serious issue at stake
Laws of Canada
(2) Complexity of the proceedings o She wouldnt be able to represent herself (3) Parents capabilities o Would they be able to put the case together on their own? o This case was adversarial and complicated everyone else was represented by council and interveners were also involved Minority: agreed that security threshold had been breached, and argued that liberty as well had been breached b/c it denied the parent the right to make decisions on behalf of children and guide their upbringing. Note: Remedy ultimately leaves this as a discretionary choice of the trial judge. They dont have to give council if the costs are too extreme.
Blencoe v. British Columbia (Human Rights Commission) (2000) 2 SCR 307 BC Facts: Blencoe was minister in BC govt and accused of sexually harassing women. He was removed from Cabinet and women filed complaint with BC Council of Human Rights. The investigation into claims didnt conclude for 30 months, and Blencoe applied for judicial review to have the complaints stayed because he claimed the Commission had lost jurisdiction due to unreasonable delay in processing the complaints. The respondent alleged that the unreasonable delay caused serious prejudice to him and his family that amounted to an abuse of process and a denial of natural justice. He argued that there was unreasonable delay and their process prejudiced him and his family, and was therefore a violation of s.7 rights Held: the respondents s.7 rights were not violated nor did the conduct of the Commission amount to an abuse of process. (A)Does the Charter apply to the actions of the British Columbia Human Rights Commission? The Charter applies to the actions of the commission. The mere fact that a body is independent of government is not determinative of the Charter's application nor is the fact that a statutory provision is not impugned. Bodies exercising statutory authority are bound by the Charter even though they may be independent of government (confirmed in Eldridge - hospital). With respect to the claim that the Commission exercises judicial functions and is thereby not subject to the Charter rejected. Slaight Communications Inc. held that the Charter applies to the orders of a statutorily appointed labour arbitrator. The facts in Slaight and the case at bar share at least one salient feature: the labour arbitrator (in Slaight) and the Commission (in the case at bar) each exercise governmental powers conferred upon them by a legislative body.
62 1/12/2010
Laws of Canada
(B) Have the respondent's s. 7 rights to liberty and security of the person been violated by statecaused delay in the human rights proceedings? The court treats life, liberty and security of the person as three different rights. The protection of security of the person extends beyond the criminal law (New Brunswick (Minister of Health and Community Services) v G(J)). Section 7 can extend beyond the sphere of criminal law, at least where there is state action which directly engages the justice system and its administration. Liberty interest the autonomy protected by section 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence The state in this case has not prevented Blencoe from making any fundamental personal choices. Thus, the interests sought to be protected do not fall within the liberty interest protected. Thus, liberty argument fails, government is not preventing him from making life choices.
Security of the person - security of the person has been held to protect both the physical and psychological integrity of the individual and where psychological integrity of person is at issue security of the person is restricted to serious state imposed psychological stress (R v Morgentaler). Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even civil action, regardless of whether the trial or process occurs within a reasonable time. While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7 to be triggered. doesnt really matter what is found here b/c of next finding. Thus, publicity is what caused his prejudice which is NOT a state action. o Bastarache J detailed the impact of the complaints and proceedings on Blencoes life and that of his family but noted that these were mostly consequences that had occurred before there was any delay. Serious psychological stress the stress, stigma and anxiety suffered by Blencoe did not deprive his right to security of the person. The framers of the Charter chose to use LLS which limits s. 7 to these interests.
Summary of Liberty/Security interest:

63 1/12/2010
Laws of Canada
Few interests are as compelling as, and basic to individual autonomy than, a woman's choice to terminate her pregnancy, an individual's decision to terminate his or her life, the right to raise one's children, and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed. Such interests are indeed basic to individual dignity (note: these are all individual choices which the government is restricting). But the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere. The state has not interfered with the respondent's right to make decisions that affect his fundamental being. The prejudice to the respondent in this case, as recognized by Lowry J., at para. 10, is essentially confined to his personal hardship. He is not "employable" as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically. However, the state has not interfered with the respondent and his family's ability to make essential life choices. To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right. (C) If the respondent's s. 7 rights were not engaged, or if the state's actions were in accordance with the principles of fundamental justice, was the respondent entitled to a remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing? In admin law, there must be proof of significant prejudice which results from an unacceptable delay and in this case, proof of prejudice has not be demonstrated to be of sufficient magnitude to impact on the fairness of the hearing (does not impact getting a fair hearing). Need to balance the personal claim and the general public interest not fair to the original complainants to cease the proceeding, there is a public interest in having the claims heard and adjudicated.
(D) If the respondent is entitled to Charter or admin law remedy, was the stay of proceedings an appropriate remedy for this case? / Was the delay unacceptable? The Commission handled this complaint in the same way that it handles other complaints. B had to show that delay was unacceptable to the point of being so oppressive as to taint the proceedings he did not do this. o The basic finding was that there was continuous movement on the file Dissent: should have first looked to admin law delay as opposed to Charter but agree that stay of proceedings was not warranted. Wanted to come up with a remedy, but ran into the same problem as majority. o Wanted to grant him stay of proceeding but this would be unfair to the plaintiffs bringing the claim. The delay affected the procedural fairness, however even if this was found, what type of remedy could have been awarded b/c it is not fair to stay the proceeding. o delay affected not only the proceeding, but Bs life which is wrong. An expedited hearing is the most that they could have ordered.
64 1/12/2010
Laws of Canada
The Choice of Procedures

We move now to a consideration of the content of procedural entitlements once the threshold to the assertion of any procedural claims has been crossed. At this stage we have covered threshold analyses and are now looking at how much fairness is due in any situation. As described in Knight, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. The requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.
Generally, the legislature decides the content of the duty of fairness in setting up the tribunals and their governing statutes and the tribunals then further decide the specific contents of the duty of fairness in setting up the specific rules. Baker (again) Factors to look at when deciding how much fairness is needed (i.e. what procedure is needed): (1) Nature of decision being made The more the procedure and the more it looks like a judicial type-decision/closer to trial model, the more a DoF will be required. (2) Nature of the statutory scheme If its the final decision it requires more fairness than a preliminary decision. o When the decision is determinative of the issue and further requests cannot be submitted. If there is right to appeal, there will be less fairness owed. o Greater procedural protections when no appeal procedure is provided within the statute. (3) Importance of decision to individual affected
65 1/12/2010
Laws of Canada
More important = more fairness required. o The more important the decision is to the lives of those affected and the greater its impact on that person the more stringent the procedural protection that will be mandated. Tricky thing is figuring out what is important in the context. (4) Legitimate expectations Can only give more procedure doesnt guarantee substantive outcomes. if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness, as well if a claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require more extensive procedural rights than would otherwise be accorded. (5) Take into account the decisions made by the tribunal (choices of procedure) Take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. Some attention to consequences of requiring more procedure can also impact fairness for other claimants. o Think of Singh if oral hearing is required for every refugee claimant, how would this impact the rights of other future refugees? Maybe longer waits? o Might allowing more procedure actually undermine fairness in the future? Suresh v. Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can) PRINCIPLE: case follows the 5 Baker factors to conclude that s.7 required procedural protections, but not to the extent of a full oral hearing where torture upon deportation was possible. Facts: S was granted refugee status in 1991; then applied for permanent residence status. He was refused and a security certificate under section 53(1) of the Immigration Act was issued to the effect that S was a danger to the security of Canada. Issuance of a security certificate is based on info. from Canadian Security Intelligence Service (CSIS). The info which the certificate is based on is secret and not disclosed to the accused the judge sees evidence and assesses whether it is reasonable. In this case the judge says it is reasonable. If S was returned to Sri Lanka there is potential for him to face torture. Minister sent notification to S that she is considering issuing a Danger Opinion this essentially constitutes notice. She would have to find that he is a danger to the security of Canada if she finds that he is, she could send him back to Sri Lanka notwithstanding the possibility of torture. S sends in documents to be considered, indicating the torture of Tamil Tigers by the government, and also sent in written arguments. An immigration officer also submitted a memo based on CSIS intelligence to which S has no access. Said he would not face torture on his return, and that he would be a danger to the security of Canada if he were to stay. NOTE that the primary question for the Minister at this stage is whether S is a danger to security of Canada. Minister issues the Danger Opinion s.53(1). This is when he appeals for JR. Fed Crt dismissed. FCA Dismissed. Now its before SCC. Issue: Question of procedural fairness and s.7 fundamental justice. Was the Danger Opinion made in accordance with principles of Fundamental Justice? Held: Based on the 5 Baker factors below, the court was of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to
66 1/12/2010
Laws of Canada
conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b), that is, none, and they require more than Suresh received. Held NO the decision was NOT made in accordance to principles of fundamental justice. Decisions sent back to Minster for redetermination. The problem was that there were not adequate procedural safeguards. o S didn't have access to the case that was against him that he had to meet. o Principle of natural justice includes an opportunity to know and meet the case against you i.e. an opportunity to be heard. o He does not have to have an oral hearing, but does have to have an opportunity to make submissions to argue the case against him. Section 7 protects substantive as well as procedural rights, therefore it is appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of section 7. Factors determining the content of DoF: 1) Nature of decision (i.e. administrative or judicial type) nature of decision doesnt indicate weak or strong procedural safe guards. The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. 2) Nature of the statutory scheme suggests the need for strong procedural safeguards. Under s. 53(1)(b) ... there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal -- no procedures at all, in fact. As L'Heureux-Dub J. stated in Baker, supra, "[g]reater procedural protections ... will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted". 3) Importance of decision to individuals this factor militates in favour of heightened procedural protections under s.53(1)(b). ... the appellant's interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter. Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)(b). Where, as here, a person subject to a s. 53(1)(b) opinion may be subjected to torture, this factor requires even more substantial protections. 4) Legitimate expectation this is not taken into account, Baker says that this is not always a relevant factor.
67 1/12/2010
Laws of Canada
5) Choice of procedures minister is allowed a lot of discretion in this case therefore a lot of deference must be provided, the legislature knew that these types of decisions would be very serious and as such left it to minister to determine. In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister's choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit. Suresh had to make a prima facie case that he would face torture if deported which Suresh did and then the Minister has to provide him with the case to be met and opportunity to make submissions against them before order is given. In this case, no procedures were required by the Act, and the following is what must be given to a person facing deportation under s. 53(1)(b) in the similar circumstance: Individual must be informed of the case to be met. Individual must be given opportunity to respond to the case presented by Minister and challenge the information of the Minister where issues of validity arise by presenting facts. Minister must provide written reasons for their decision that must find that there are no substantial grounds to believe that the individual who is subject to s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment. These procedural protections may not be the ones required in every s. 53(1) challenge as the content of procedural protections vary depending on the facts of the situation. Ahani v. Canada (Minister of Citizenship and Immigration) (2002) SCC PRINCIPLE: informing one of the case and giving an opportunity to respond satisfied the procedural fairness of a deportation case where torture was not proven. Facts: Ahani gained refugee status in 1991, and shortly after this it was discovered that Ahani was a trained assassin for Iranian Minister of Intelligence and Security. Following this was the fear that Ahani was a danger to other Canadians lives. The minister issued a s.41(1) security certificate alleging Ahani was a member of an inadmissible class. Held: Ahani could not make out a prima facie case that he would face torture upon deportation. Ahani was informed of what he had to do in terms of making out a case and making written submissions and was even provided with the case that he had to meet. Ahani faced minimal danger of torture and he had been fully informed of the case and had the opportunity to respond and as such, the content of procedural fairness was not violated These two cases confirm that belief that the common law analysis of what is the content of the procedural fairness underpins the constitutional analysis.
68 1/12/2010
Laws of Canada
Statutory Powers Procedure Act (Ontario) In each statute that establishes a tribunal, it is necessary to include what fairness individuals are entitled to. A criticism of this practice is that all statutes carry the same provisions. Therefore in 1971 the legislature enacted the Statutory Powers Procedure Act which sets out a minimum procedural code that brings consistency across administrative proceedings. It dictates what a hearing should look like if you are going to have a trial. The act was created as a response to the McRuer commission which rejected leaving development of the law to the courts in this area because that development will not be systematic, and it will inevitably be a slow process attended by much uncertainty. The main problem with the SPPA is that it was enacted prior to Nicholson which means that it is premised on assumptions of common law that are no longer accurate such as the distinction between judicial and administrative proceedings which is no longer a relevant distinction. Therefore the SPPA is now in a state where it is difficult to know if it applies or not. s. 3 Application of the act Section 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. This section gives the application of the act and states that it applies to statutory power of decisions where a tribunal is required by or under the Act or otherwise by law to hold a hearing.
Re Downing and Gradydon (1978) 92 DLR (3d) 355 (Ont. CA) The SPPA was expressly excluded, and all three members of the CA agreed that this exclusion was not necessarily an exclusion of natural justice. The SPPA merely provides rules for the conduct of hearings which are more rigid and formal than the general and more flexible prescriptions of the common law. There is nothing in the Act which expressly or by necessary implication excludes or is repugnant to the continued operation of the audi alteram partem rule in cases where the SPPA does not apply.
Specific Content Issues
Aspects to be considered under the content of the duty of fairness: All of these aspects are considered when determining the duty of fairness that is appropriate for a given situation. The specific issues considered in the content of procedural fairness can be
Laws of Canada
broken up into two categories; pre-hearing content issues and the nature of the actual hearing.
Pre-hearing content issues: Notice what notice must be given to parties that a change is about to take place and how individuals can take part in process. Discovery what information will be given to the other side. What information that is before the board or tribunal is going to the applicant, is it the full information or just a summary. Delay in the processing of administrative proceedings. Nature of the actual hearing: Oral hearings a right to oral or written hearing or a mixture of both. Open hearings assuming that there is to be an oral hearing. The right to counsel are the parties entitled to representation by counsel, an agent or friend. Disclosure info. shown to both parties. Official notice external information which a tribunal feels is relevant. Admissibility of evidence what procedures may and should agencies use for fact finding. Cross-examination If there is an oral hearing, is there a right to cross-examine the other witnesses. Post-hearing issues: Duty to give reasons is there a right to written or oral reasons. Effect of breach of the duty to give reasons the decision may be set aside. PRE-HEARING CONTENT ISSUES NOTICE
Two forms of notice are common written and oral. Written is the more usual. The SPPA seems to assume the notice it requires will be written or electronic. Some agencies, i.e. environmental assessment board make decisions that affect large and indefinite numbers of persons which usually requires some form of public notice (i.e. advertisements in newspapers, libraries, radio, tv, etc.).
Common law
70 1/12/2010
Laws of Canada
Re Central Ontario Coalition notice must be reasonable, in the sense that it conveys the real intentions of the giver and enables the person to whom it is directed to know what he must meet.
Statute - SPPA Notice of hearing s.6(1) the parties to a proceeding must be given reasonable notice of the hearing by the tribunal
Notice, etc. s.24(1) Where a tribunal is of the opinion that because the parties to any proceeding before it are so numerous or for any reason, it is impracticable, (a) to give notice of the hearing; or (b) to send its decision and the material mentioned in section 18, To all or any parties ... by public advertisement or otherwise as the tribunal may direct.
Effect of non-attendance at hearing after due notice s.7(1) ... the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
Public notice: Re Hardy and Minister of Education (1985) 22 DLR (4th) 394 (BC SC) PRINCIPLE: if a decision (school closing) affects a large amount of people, notice will be satisfied by letting it be known throughout the general district. Unreasonable to inform everyone individually. It would be unreasonable to suggest that every resident in the school district must be personally apprised of the intention to close the school. What is required, it seems to me, is that the proposed closure be made known throughout the district generally so that it can reasonably be expected to come to the attention of interested persons, and that they be accorded sufficient time and opportunity to fairly present their side of the case before a final decision is taken.
Public notice: Re Central Ontario Coalition and Ontario Hydro (1984) 10 DLR (4th) 341 (Ont.Div.Ct.)
71 1/12/2010
Laws of Canada
PRINCIPLE: There must be reasonable notice, based on a reasonable person. Public notice must be clear in relation to its subject matter judged by a reasonable person test. Facts: Concerned the notice requirements for decisions about the location of electrical transmission lines, particularly large high-voltage lines. The board made an order of notice that included personal service on some municipalities and individuals, and for publication in newspapers. The electrical lines were described simply as being in southwestern Ontario, and no maps were included. The board then decided the line should go east. A group of people living/owning properties in this path sought judicial review on the ground that the phrase southwestern Ontario did not denote the alternative route. Held: claimant succeeded. ... would a reasonable person have understood it, in all the circumstances, notwithstanding its inadequacy? Remedy: the effect of the failure to give adequate notice was to set aside the decisions made at the hearing.
Public notice: Re City of Winnipeg and Torchinsky (1981) 129 DLR (3d) 170 (Man.QB) PRINCIPLE: a late response of a notice will not be given an exception. Facts: A new assessment was made of Torchinskys property and on April 10, 1981 the assessor mailed her notice, which described the right of appeal and gave May 12 as the date for beginning the hearings. This notice did not arrive until May 12. Torchinsky gave notice within a few days, and the city sought to prohibit the board from hearing the appeal on the ground that her notice of appeal was late. Held: claim dismissed. The choice of messenger was an unfortunate one ... If the specified date is not subject to extension or variation ... the situation is as if notice has not been given. The purpose of s.183 is to preserve the validity of an assessment affected by technical or procedural error or defect ... it does not affect the right to complain. ... the 10-day period was directory and not mandatory. CONTRAST WITH: Public notice: Re Rymal and Niagara Escarpment Commission (1981) 129 (3d) 363 (Ont. CA) PRINCIPLE: a late response to a notice will be accepted if not enough time was given to respond to the notice. Facts: The act gave landowners affected by decisions of the commission a right to appeal to the minister of housing. Notices of appeal must be received by the ministry within 14 days of the date of mailing by the commission. Commission mailed out notices of a decision to permit a residence to be built on Sept. 8. Spencer received this notice on Sept.17 and immediately mailed
Laws of Canada
a notice of appeal that did not arrive until Sept. 23 one day late. The owner who had sought the decision made an application to prohibit the minister from considering the appeal. Held: owner failed. The disruption of the mail at this critical time ... are aspects of this case that could properly be taken into account by the Court in refusing to exercise its discretion and grant the judicial relief sought. The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate and to prepare. o Clearly, the length of time needed will depend on the nature of the interests and the issues. The notice must also give enough information about the issues to enable the party to prepare to respond. Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada Krever Commission) (1997) SCC PRINCIPLE: procedural fairness is required in an inquiry due to the possible damage to reputation AND there is no duty to issue the notices immediately, only to give a reasonable time AND the SPPA does not apply to inquiries as per s.3. Facts: The Krever Commission was set up to look at various peoples roles in the blood scandal. The hearings were governed by rules of procedure and practice that were adopted by all 25 parties to the inquiry. On the final day of the scheduled hearings, the commissioner sent out confidential notices to individual parties and the notices indicated that the commission may raise certain conclusions that would allege misconduct. The letter stated that the recipients had the right to respond as to whether or not the commissioner should make these findings. Several applicants brought application for judicial review that the commissioner was acting outside of the jurisdiction set out in section 13 of the Inquiries Act. Note: In a public inquiry, purpose is not to make anyone liable to civil liability or criminal liability and further to this, evidence given cannot be used in other proceedings against the parties.
Broad inquiries are not focussed on individuals or whether they committed a crime; rather they are concerned with institutions and systems and how to improve them. It follows that in such inquiries there is no need to present individuals taking part in the inquiry with the particulars of a "case to meet" or notice of the charges against them, as there would be in criminal proceedings. Commissioner is walking a fine line because he has to get to the bottom of the issue find out who is at fault and what happened. BUT on the other side, you cant go as far as making a conclusion which would make someone subject to civil or criminal liability. The Inquiries Act specifically protects participants from civil and criminal prosecution. o The parties that received the notices alleged they would find harm as a result of the findings harm to reputation. (i) Did the court exceed jurisdiction by making allegations of misconduct? (ii) What procedural protections should be attached to the issuance of these notices? (iii) The timing of the release of notices. The appellants submit that because the Commissioner waited until the last day of hearings to issue notices identifying potential
73 1/12/2010
Issues:

Laws of Canada
findings of misconduct which might be made against them, their ability to cross-examine witnesses effectively and present evidence was compromised. Held: The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices. Even though there will be no criminal or civil liability, the principles of procedural fairness apply because the possible damage to reputation is significant. But, the DofF was not breached by issuing the notices. The amount of time given to respond to the notice was enough time. (i) The commissioner did not exceed his jurisdiction as the principles of procedural fairness were followed in the issuing of notices. (ii) In fairness the witnesses or parties who may be the subject of findings of conduct, the notices should be as detailed as possible. Procedural protections that should be attached to the issuance of these notices: The notices were issued in confidence to the parties receiving them confidentially. The parties are given a chance to respond before a public finding against the parties was made. o Therefore the only way that the notices could have an adverse effect was if the parties themselves made the notices public. As well as giving the parties a chance to respond, the rules of practice and procedure gave the parties the right to cross-examine and call their own witnesses. Furthermore, the commissioner did not exceed jurisdiction because his findings did not have anything to do with criminal or civil liability. (iii) There is no statutory requirement that the commissioner give notice as soon as he or she foresees the possibility of an allegation of misconduct. It cannot be said that the timing of the delivery of the notices amounted to a violation of procedural fairness. The time given was adequate. Although the notices should be given as soon as it is feasible, it is unreasonable to insist that the notice of misconduct must always be given early. There will be some inquiries, such as this one, where the Commissioner cannot know what the findings may be until the end or very late in the process. So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure. The timing of notices will always depend upon the circumstances. Where the evidence is extensive and complex, it may be impossible to give the notices before the end of the hearings. In other situations, where the issue is more straightforward, it may be possible to give notice of potential findings of misconduct early in the process. In this case, where there was an enormous amount of information gathered over the course of the hearings, it was within the discretion of the Commissioner to issue notices when he did. o In this case, the evidence was extensive and complex and it was impossible to give earlier notice and furthermore, the recipients were given the chance to make further arguments. Conduct of inquiry as a whole has to go along with purpose of improving institutions at the end they can look toward fairness.
74 1/12/2010
Laws of Canada
Question: why couldnt the parties have relied on section 8 of the SPPA which discusses Where character, etc., of a party is in issue reputation? Firstly, because this is an inquiry and s.8 SPPA does not apply as per s.3(1) (... this Act applies to a proceeding by a tribunal in the exercise of a statutory power ...). Only applies to tribunals (and provincial boards). Secondly, the SPPA only applies to provincial statutes and the inquiry is set up under federal statute.
Thirdly, s.3(2)(f) specifically excludes the application of the SPPA to the Public Inquiries Act.
DISCOVERY Common law Big case on discovery in criminal law; facts are not important: Stinchcombe (1991) 3 SCR 326 (Alta.) PRINCIPLE: Stinchcombe is important because it emphasized the required degree of disclosure; one must know the case one must meet. Disclosure must not be perfunctory (indifference, showing little interest); it must be complete, subject only to privilege or relevance. Canadian Pacific Airlines Ltd. v Canadian Air Line Pilots Association (1993) 3 SCR 724 PRINCIPLE: Tribunals have the power to order discovery only in situations where such a power is rooted firmly in the empowering statute. It is not likely that a presumption of this power will be drawn in the absence of express authority to make such orders. Statute SPPA Discovery related provisions: Where character, etc. of a party is in issue s.8: Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. Summonses s.12: (1) A tribunal may require any person, including a party, by summons, (a) to give evidence on oath or affirmation at an oral or electronic hearing; and (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing. Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital) PRINCIPLE: if a serious allegation is made (i.e. affecting reputation), a board of inquiry (pretrial) could order full disclosure as per s.12 SPPA. Justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met. Facts: A board of inquiry was set up under the Ontario Human Rights Code to hear a complaint of racial discrimination made by ten nurses employed by the hospital. The respondents, NGH,
75 1/12/2010
Laws of Canada
prior to the hearing, requested disclosure of statements made in the course of the Commissions investigation. The Commission said the comments were privileged because they were prepared for litigation purposes. The Board disagreed. It said the investigation documents are NOT documents made in preparation for litigation. The board ordered disclosure: I order the Commission to provide the Respondents all statements made by the Complainants to the Commission and its investigators at the investigation stage, whether reduced to writing or copied by mechanical means. I further order the Commission to provide the Respondents with the statement and identity of any witness interviewed by the Commission or its agents who the Commission does not propose to call and whose statements might reasonably aid the Respondents in answering the Commission's case. The Commission applied for judicial review of this order of disclosure. Held: Full disclosure was ordered. Common law does in certain situations impose pre-hearing discovery obligations on tribunals. In this context, the serious ramifications (reputation) of a finding of discrimination cause the court to express the view that justice will be better served where there is complete information available to the respondents. Section 12 of the Statutory Powers Procedure Act clearly recognizes the authority of a board of inquiry to order the production of all the documents which are the subject of the order in this case, subject to claims of privilege.
o The exception to disclosure is privileged documents Court said that documents are NOT privileged, there was no evidentiary basis to support a claim of privilege on
the basis of an expectation of confidentiality.

o o The allegations of racial discrimination are major and can be harmful to those it is made against when you make these allegations you cant expect to be shielded. Full disclosure is ordered.
Stinchcombe Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. ... in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met Appling Stinchcombe to this case: The important principle enunciated by Sopinka J. is that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address the issue on the basis of complete information of the case to be met. It does not take a quantum leap to come to the conclusion that in the appropriate case, justice will be better served in proceedings under the Human Rights Code when there is complete information available to respondents. Stichcombe recognized that the fruits of the investigation in the passions of the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done. We are of the opinion that this point applies with equal force to the proceedings before a board of inquiry and that the fruits of the investigation are not the property of the commission. CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board (1994) FC CA
76 1/12/2010
Laws of Canada
PRINCIPLE: the obligations concerning disclosure imposed by the doctrine of fairness in administrative matters (opposed to matters affecting reputation as in NGH) are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on. Facts: Hearing held as to whether or not a drug was being sold at an excessive price and in the course of the hearing, the drug company asks for disclosure of all of the documents in the Boards possession. The Board denies but offers to give them the content of the documents and the case that the appellants have to meet. Held: The Board is set up in the statutory context as a board or tribunal and there is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal court. The obligations concerning disclosure imposed by the doctrine of fairness and natural justice are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on. to require a Board to disclose all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint. distinguished from Northwestern General Hospital (NGH) the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings (thus, do not need to disclose everything possible). o There are admittedly extremely serious economic consequences for an unsuccessful patentee at a s.83 hearing, and a possible effect on a corporations reputation in the market place. But as McKeown J found, the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings. o This decision backs away a bit from NGH and says that in administrative matters the court cannot be held to the same standard for discovery as in criminal matters as there is less at stake and economic/efficiency considerations. We are all agreed with McKeown (trial judge) that law and policy require that some leeway be given an administrative tribunal with economic regulatory functions, if, in pursuing its mandate, the tribunal is required by necessity to receive confidential information. It is not intended that proceedings before these tribunals be as adversarial as proceedings before a court.. DELAY Kodellas v Saskatchewan (Human Rights Commission) (1989) 60 DLR (4th) 143 (Sask.CA) PRINCIPLE: Established three factors to determine an unreasonable delay in the context of s.7 of the Charter. (1) If it is prima facie unreasonable (2) The reason or responsibility for the delay, conduct of the parties (what the reason for the delay?) (3) What is the prejudice or impairment caused by the delay?
77 1/12/2010
Laws of Canada
THE ACTUAL HEARING ORAL HEARINGS What is an oral hearing and when should it be provided?
Generally means a face to face encounter with actual Decision maker. As opposed to a hearing that occurs in writing or which is based on interviews done by an investigator. o Phrase oral hearing can have different meanings; audi alteram partem rule: right to be heard but rule does not imply that there must always be a hearing. o Traditionally, oral hearings considered requirement of natural justice. But, Komo Construction Inc. (1968) Turning now to the audi alteram partem rule, it is important to note that the rule does not imply that there must always be a hearing. As doctrine of procedural fairness has expanded, courts have relaxed requirement for oral hearings. In Nicholson (first case on fairness), Laskin CJ said that although police constable was entitled to fairness, it was up to police board as to whether they wanted to proceed by oral or written hearing. Evolving sense of adequate form of hearing in amended SPPA explicitly recognizes possibility of written or electronic hearings. Knight (director of education fired by board), court took flexible approach to procedural fairness all meetings between him (w/ lawyer) and board allowed him to get enough info about situation, these casual meetings and negotiations allowed him to learn case against him and have a chance to respond. In Charter cases, courts are showing flexibility as well. o Singh: The absence of an oral hearing need not be inconsistent with fundamental justice in every case.But 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. o Hundal - section 7 of the Charter does not always require an oral hearing - there is a variable standard that depends on the context. In Hundal, where individual has an opportunity to have a hearing before or after decision and there are no issues of credibility, an oral hearing is not required by principles of fundamental justice.
Masters v. Ontario (1994) Ont. Div. Ct. PRINCIPLE: employment relationship (based on Ministers discretion) will be a determining factor when deciding DOF even when ones credibility/reputation is at issue AND investigations require less fairness than trial AND SPPA does not apply to investigations under Ministers discretion (not a tribunal). Facts: Masters had been appointed by the premier in exercising his prerogative powers as Ontario agent General in N.Y. Complaints of sexual harassment were made against him by 7 women. The premier ordered an external investigation which produced a report confirming P had harassed 7 women. Masters responded to those allegations several times. The premier took all positions into account and decided to remove Masters from the position. Masters applied for judicial review of the investigators report alleging various breaches of natural justice in the conduct of the investigation; witnesses had been interviewed by the investigators without Masters or his counsel being present; he had been refused access to the list of questions that were
78 1/12/2010
Laws of Canada
asked, the copies of any notes, transcripts or tapes made during the interviews; and that while Masters was allowed to interview the witnesses himself, few agreed to meet with him. Issue: Masters contends that where credibility will determine the main issue before a government decision maker, the general duty of fairness and the rules of natural justice require that an impartial decision maker determine credibility by way of a full trial-type hearing permitting witnesses to be subjected to cross-examination. Held: the duty to act fairly was met without recourse to an oral hearing. Credibility is an issue, but no oral hearing is required. I find that Masters was aware of all the material allegations against him and was provided with an adequate opportunity to be heard. The investigation was neither unfair nor biased by reason of any of the grounds alleged. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar were met. Nature of employer-employee relationship: Masters understood that his continued employment was at the discretion of the Premier and was specifically subject to the continuing confidence of the Premier. o The at pleasure doctrine recognizes the discretionary nature of the appointment. o The nature, thus, requires pure ministerial discretion. Since Masters held the employment at the discretion of the Premier, the Premier was not acting pursuant to a statute but rather was exercising a prerogative to consider revoking one of his earlier appointments. o Masters position was more politically accountable and more senior that those positions in Nicholson and Knight. o These features of the decision places Masters more towards the discretionary or legislative end of the spectrum referred to in Martineau. Investigation, not a trial: The investigation followed standard procedures and the process was only investigatory therefore the duty of fairness did not require Masters to have direct access to the witnesses therefore duty of fairness was met. o The Premier was NOT conducting a trial. Clearly, an adversary trial is much more likely to produce truth and the perception of fairness than a mere investigation. ... In comparison to a trial, therefore, there is a much greater margin for error in the findings of any investigation. He also was given a meaningful opportunity to respond to allegations against him. SPPA 1990: The SPPA was not relevant and had no application because it was a decision that was within the Premiers discretion and not about statutory decision making. Remedies b/c his withdrawal was a prerogative power injunction and declaration were not open to him, only the prerogative writs. Comments: Case is significant because of the particular nature of the decision-making. Also, it was key that the decision was investigative. Khan v. University of Ottawa (197) Ont. CA PRINCIPLE: credibility and severe impact of decision requires an oral hearing. Facts: The appellant was a student at law school and for a final exam, claims to have written in 4 booklets, however, only the first three were found and marked by professor. Miss Khan received a failing grade. She First appealed to the Faculty of Law Examinations Committee; then
79 1/12/2010
Laws of Canada
to the Senate Committee; then sought judicial review under SPPA; appealed Div Crt decision to CA. According to the Faculty of Law Regs., a student is entitled to have a grade reviewed where it appears that the grade assigned to a students work may be the result of a significant error or injustice. Committee decides she made up 4th booklet story, but never gives her an open hearing. Issue: to what extent do credibility issues within a case warrant an oral hearing? Held: oral hearing was required due to credibility and importance of issue (she was only allowed to make written submissions). The Committee disbelieved Ms. Khan's explanation for the fourth booklet without hearing from her. This amounted to a denial of procedural fairness, which by itself fatally flawed the proceedings before the Committee. Importance of issue affecting student: In my view, a university student threatened with the loss of an academic year by a failing grade is also entitled to a high standard of justice. The effect of a failed year may be very serious for a university student. It will certainly delay if not end the career for which the student was studying. .... Credibility: Ms. Khans credibility was the central issue before the Committee. How else could she have demonstrated that she handed in a fourth booklet except by pledging her word that she did? In my opinion procedural fairness before the Examinations Committee in this case required the following: first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility was a critical issue on her appeal. In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make a written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan's credibility. In denying Ms. Khan relief the Committee judged her credibility adversely. Ms. Khan need not show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committees breach of its duty of fairness may reasonably have prejudiced her, Kane, she has met that burden. Dissent: this was not a matter which turned on credibility. There were no allegations made against the appellant and the proceedings were not adversarial in nature. The appellant had not been charged with cheating on an examination or with any other disreputable conduct as a member of the student body. The consequence to her was not expulsion from the faculty or even loss of a full academic year of study. Komo Construction Inc. an oral hearing is not required to satisfy the demands of natural justice. Singh the Supreme Court's conclusion that an oral hearing to determine issues of credibility was required was inextricably linked to the serious nature of the rights at stake. Here, Charter rights are not in issue. The appellant, at most, will be required to prolong the completion of her education by one semester, until she has satisfied the requirements for graduation. Kane - A decision affecting the right to continue in ones profession or employment may demand a higher standard of justice, however, that is not the case here.
80 1/12/2010
Laws of Canada
OPEN HEARINGS Interests at stake: (1) privacy of victims, complainants; prejudice to individuals reputation. (2) public interest in access to the hearing and Charter s. 2(b) rights (freedom of expression, of the press). (3) potential harm to the individual (threats to security), national security, or commercial competitiveness. Statute SPPA (Open hearings are default) s. 9(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that, (a) matters involving public security may be disclosed; or (b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public. s.2(b), Charter allows freedom of the press to include the ability to review decision-making processes in the quasi-judicial sphere (Pacific Press). THE RIGHT TO COUNSEL Arguments in favour of a having counsel: They have specialized knowledge to deal with complicated legal issues. Assures a level of preparedness; Protects the client from the greater resources of the state. Arguments against counsel in administrative setting: Greater cost; delay. Makes it more adversarial/Complicates the issues and proceedings. Statute SPPA Right to counsel s. 10 A party to a proceeding may be represented by counsel or an agent. Rights of witnesses to counsel s. 11(1) A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal. A statute excluding the right to counsel is NOT final on the matter: Re Mens Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Workes Union (1979) PRINCIPLE: If statute prevents right to counsel, must still consider the vital importance and the complexity in fact and law which may require legal counsel.
81 1/12/2010
Laws of Canada
Facts: Dispute in mens clothing industry resolved by arbitration, process conducted for decades without lawyers. After this particular grievance, association made a general statement that it wished to change this practice and use lawyers for some disputes. Arbitrator rules that no absolute right to counsel, discretionary; should not be used to allow counsel in this case. Issues: (1) Right to counsel absolute or discretionary? (2) If discretionary should it be allowed here? Held: right of counsel granted. 1. There was no right to counsel in statute in this instance: Court looks at the collective agreement and agrees with the arbitrator that theres no right to counsel; no absolute right to counsel but still have to look to the demands of procedural fairness. s.10 SPPA 1971 provides that a party to proceedings may be represented at a hearing by counsel or an agent. However, the relevant part of the statute does not apply to proceedings. Thus, the draftsmen could not have intended the SPPA to apply. 2. Court looks to the complexity of the issues and competency of those involved. In view of the vital importance of the controversy to the applicant company, and the apparent complexity of the matter both in fact and in law, natural justice, in my view, requires that the applicants be represented by legal counsel at the arbitration hearing without any limitation, even if the applicants had no absolute right thereto. Where the instrument doesnt give a right to counsel, tribunals have to consider: 1.Nature of the issues (not easy for a layperson to understand?); 2.Consequences of the decision; 3.Ability of the particular parties before them to make out a case. Re Parrish (1993) 2 FC 60 (TD) PRINCIPLE: lists situations where right to counsel is required (below). Facts: The captain of a ship that had been involved in a collision with another ship was summoned to appear before an investigator appointed by the board. He appeared with two counsel, but he was refused to allow counsel at the hearing. Issue: could the captain be required to attend and give evidence under oath without his counsel. Held: procedural fairness requires him to be permitted to be accompanied by counsel at the inquiry. Expediency is not a relevant rebuttal here. The duty to act fairly implies the presence of counsel when some or all are found in the enabling legislation or implied from the practical application of the statute governing the tribunal: - Where an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty; - Where absolute privacy is not assured and the attendance of others is not prohibited; - Where reports are made public; - Where an individual can be deprived of his rights of his livelihood; - Or where some other irreparable harm can ensue. Non-exhaustive list. Boards argument: the presence of counsel would cause unwarranted delay and perhaps frustrate the immediate gathering of facts. Courts response: I cannot accept the Boards argument that the need for administrative expediency in the proceedings outweighs the necessity for the protection of a witness through the presence of counsel.
82 1/12/2010
Laws of Canada
Dehghani v Canada (Minister of Employment and Immigration) (1993) 1 SCR 1053 (Can.) PRINCIPLE: no counsel is necessary at a point of entry interview since it would constitute unnecessary duplication. Facts: At stake here was the procedure employed at ports of entry to Canada when the initial immigration officer has concerns about the admissibility of a person. In such cases, the person seeking entry was referred to a secondary examination at which there was no entitlement to representation by counsel. Held: To allow counsel at port of entry interviews would, entail another mini-inquiry or initial inquiry possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations. This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering. Howard v. Stony Mountain Institution (1985) 19 DLR (4th) 502 FAC PRINCIPLE: greater loss of liberty and complexity of issues = need for counsel. Facts: Inmate in prison, earned right of early release then charged with assaulting guard and possessing contraband. Disciplinary hearing for charges held. P retained counsel but denied right to have counsel appear during hearing. Asked Federal Court to intervene and stop hearing. Issue: whether Howard had an undeniable right to counsel and, whether s.7 of the Charter guaranteed him that right. Held: counsel is required because of the severity of the consequences (loss of liberty) and the complex legal issues (the vague charge). Relevant factors to consider when deciding if counsel applies: I am of the opinion that the enactment of s.7 has not created any absolute right to counsel in all such proceedings. ... whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. Impact/gravity/severity of decision on individual: The appellants 267 days of earned remission was in jeopardy loss of liberty. In my view, that alone suggests his need to counsel. Capacity to understand/represent himself: One of the three charges is an act calculated to prejudice discipline and good order, a notoriously vague and difficult charge for anyone to defend. This feature suggests the need for counsel. o Also, recognition that even those facing min charges are allowed counsel in courts, so it would be incongruous to not allow counsel here to someone who is facing a loss of liberty New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999) 3 SCR 46 (NB) PRINCIPLE: requirement for counsel is based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant. Facts: At stake was whether s.7 of the Charter required that a mother be provided with counsel (counsel provided by the state) for the purposes of resisting an application by the Child Welfare
83 1/12/2010
Laws of Canada
authorities for renewal of an order placing her three children in the custody of the state. A policy under the Legal Aid plan prohibited the granting of legal aid certificates in custody-order renewal proceedings. Held: a fair hearing required that she be represented by counsel based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings, and (3) the capacities of the appellant. Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the childrens best interests and thereby threatening to violate both the appellants and her childrens s.7 right to security of the person. (1) seriousness of the interest at stake: The state was seeking to extend a previous custody order by six months. A six-month separation of a parent from three young children is a significant period of time. (2) complexity of the proceedings: Child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. The parent must adduce evidence, cross-examine witnesses ... under significant emotional strain. (3) capacities of the appellant: In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education ... and familiarity with the legal system in order to effectively present his or her case. Limit on right to counsel in child custody cases: 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 individual's 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. Was the violation of s.7 justified under s.1?
... the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings. s.1 is does not save the violation based on budgetary savings.
Re B.C. Motor Vehicle Act Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like. This is so for two reasons. First, the rights protected by s. 7 -- life, liberty, and security of the person -- are very significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society. Right to counsel - summary
84 1/12/2010
Laws of Canada
1. Almost guaranteed in prison and custody contexts but not necessarily where any s.7 right can be made out. 2. But, as in non-Charter contexts, dependent upon analysis of the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant. 3. Note how these factors relate to/vary from the Baker 5: nature of decision and process; nature of statutory scheme and process; importance of decision to the individual; presence of legit. expectations; choice of procedures by agency. 4. Dont lose track of overall issue is right to counsel necessary for fair hearing? DISCLOSURE AND OFFICIAL NOTICE Interest balancing around disclosure issues: Disclosure is the disclosure to parties of information that the agency has about the decision to be made. It is a basic element of common law of natural justice and is usually required unless some competing interest prevails. The justification for the requirement is simply to enable a party to know and respond to information that the agency has and that may influence its decision. Canada Evidence Act A minister of the Crown or a person with executive privilege has certain rights with respect to disclosure and under the Canada Evidence Act they can certify to the court, the person or body that the information should not be disclosed on the grounds of a specified public interest (section 37(1)). Section 39 takes this one step further (page 408) In favour of disclosure: access to as much of the case against as is possible is better for promotion of fairness, improves participation of the individual affected in decision-making (all of our cases). disclosure promotes transparency and accountability promotes caution on part of experts or informants making statements (Ontario (Human Rights Commission), Napoli). Against disclosure: concerns for ability to collect evidence ability for informants or experts to be frank (Napoli, Gallant, Gough). concerns for harm done by release of evidence national security concerns (Suresh), or potential harm to informants (Chiarelli,Gallant, Gough); harm to individual that is subject of the admin process (e.g. Abel), including harm to reputation, harm to commercial advantage. Statute SPPA Disclosure s.5.4(1): If the tribunals rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for, (a) the exchange of documents; (b) the oral or written examination of a party; (c) the exchange of witness statements and reports of expert witnesses; (d) the provision of particulars; (e) any other form of disclosure. Kane v Board of Governors of the University of British Columbia (1980) 1 SCR 1105 (BC)
85 1/12/2010
Laws of Canada
PRINCIPLE: cant deliberate without giving other party opportunity to respond. AND court is not concerned with proof of actual prejudice, but the possibility in the eyes or reasonable people AND a high standard of employment is required when ones profession is at risk. Facts: Kane was a professor at UBC and was suspended by the president for improper use of computer facilities. He appealed to the board of governors, of which the president was a member. The board held a hearing, attended by Kane, his counsel and the president. After the hearing, the board had dinner and met, without Kane, to discuss the case. According to the findings of the Chambers judge, Dr. Kenny did not participate in the discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to him by Board members. Kane sought JR. Held: The Board was under an obligation to postpone further consideration of the matter until such time as K might be present and hear the additional facts adduced; at the very least the Board should have made K aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made. In the event, the Board followed neither course. The Board heard the further facts, deliberated, and ruled against K. In doing so, it made a fundamental error. The danger against which the Courts must be on guard is the possibility that further information could have been put before the Board for its consideration which affected the disposition of the appeal. Disclosure: It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellant authority must not hold private interviews with witnesses or hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya (1962) "... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other." Pfizer Company Ltd. It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it. judge in his own cause/bias/prejudice: The main thrust of the case advanced on behalf of Dr. Kane was that no man could be a judge in his own cause, and although no actual bias on the part of the President was alleged, his presence during the deliberations of the Board violated the principles of natural justice. We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons. Severity of decision: A high standard of justice is required when the right to continue in ones profession or employment is at stake. A disciplinary suspension can have grave and permanent consequences upon a professional career. Re Napoli and Workers Compensation Board (1981) BC CA
86 1/12/2010
Laws of Canada
PRINCIPLE: another example of court saying that accused persons have the right to know the case against them so they respond adequately. Balances competing interests and still comes to this conclusion AND rejects argument that doctors will be less frank in their reports. Facts: WCB BC was willing to provide P (injured worker) summaries of report but not actual report. Summaries suggested (w/out attribution of names) Napoli was faking injury and was a timewaster. Without access to actual reports and their authors, there was no way that P could effectively counter the claims against her. Doctors argued that disclosure would cause doctors to sanitize the reports, they would be less frank if they knew they would have to disclose. Held: the rules of natural justice apply to the hearings and therefore the file contents must be disclosed. Without access to reports and authors of the reports, Napoli could not effectively counter the claims against him. Rammell v WBC (1961) If the claimant is not told the precise statement made against him, and when, where and by whom made, how can he effectively answer it? In these circumstances, a high standard of justice is required (Kane), particularly since Napolis future will be largely shaped by the decision of the final domestic tribunal. Boards/Doctors argument: concern about the loss of accuracy and frankness that would be likely to result. ... a doctor may feel under considerable restraints if he felt that anything said might be disclosed to the claimant, his employer or his union. The likely result could be reports that are vague and unreliable to the point of being worthless Courts response: rejected these arguments. This reasoning glosses over the valid contrary view that persons preparing reports which they know will be amenable to scrutiny will prepare them with greater care and diligence, and more important, that fairness requires that the original reports be disclosed in order that the claimant can effectively answer the case against him. Individuals right to know vs. informers Right to Protection: Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (1989) 36 Admin. PRINCIPLE: not disclosing enough info. is a violation of s.7 in prison setting since result would be loss of liberty. However, it is saved by s.1 because of the wide discretion Parliament gave to the Commissioner in the Penitentiary Act. Facts: Prisoner at a max security institution suspected of involvement in extortion and the import of drugs into the prison. As a result, Gallant was to be transferred to a more restrictive maximum-security facility. Authorities provided him with some details of alleged offences, but refused to reveal the names of the six informants, because of fear of reprisals. Gallant applied and was granted certiorari on the ground that the notice given was insufficient to satisfy the requirements of procedural fairness. Issue: Does Gallant have a right to know accusers and address their accusations directly? Does s. 7 guarantee him this right? Held: should have disclosed more info. to prisoner due to effect on liberty, however, the provision was saved by s.1. Three different judgments, 2 agree that he didnt have a right to know accusers, 1 dissent. Pratte (Majority) this was a breach of s.7 of the Charter, since more restrictions in the new prison, it amounted to a deprivation of liberty, and this would not be in accordance with the principles of fundamental justice. Gallant had not been given a real opportunity to answer the allegations against him because he did not know the names of the informants. BUT, the decision was saved by s.1 because of the exigencies of penitentiary discipline; needed to confer wide
87 1/12/2010
Laws of Canada
discretion on penitentiary authorities. Cannot expect perfect procedural fairness in prison environment. Marceau (Majority) did not deal with Charter issue. Because this is a prison case, he imposed a lower standard for meeting the requirements for natural justice, given the nature of the decision, procedural demands would not be as high as they might otherwise be. Standards for natural justice lower in prisons. All that is needed is sufficient grounds to justify the transfer and meaningful participation. Desjardins (Dissent) Problem here is that the authorities failed to justify the reliability of the information they were using: [T]he burden is on these authorities, when a disciplinary measure is taken, to demonstrate that the circumstances are such that they cannot inform the respondent of the facts on which the charge is based. This burden is not a light one since the protection of the law and of the Constitution does not stop at the prison gate.Before a claim, such as the one made here by the prison authorities, can succeed, measures ought to be taken so as to minimize errors. Gough v Canada (National Parole Board) (1990) 45 Admin. LR 304 PRINCIPLE: An individuals liberty (even one on parole) is weighed heavily against competing interests not to have full disclosure. Facts: Prison case, with more serious consequences. Former inmate out on parole for many years. He had exemplary record and was almost finished parole when allegations of sexual assault and drug use made against him. Board refused to release details of incidents or names of alleged victims. Held: court reluctant to accept undisclosed information when a person is facing revocation of parole. Prisoner was already in a situation of conditional liberty; parole board had failed to justify its belief that disclosure would endanger the informants. Goughs s.7 Charter rights have been infringed by the refusal to provide him with the confidential information upon which the Board is relying and it is not saved by s.1. An individuals liberty (even the conditional liberty which a parolee enjoys) weighs very heavily in the scales when compared to competing interests. 1. Public Interest in fair procedures for everyone: [T]here is also a public interest in employing procedures which are fair, for dealing with all members of society including paroled inmates. Procedures which have the appearance of being arbitrary and capricious are by their very nature not in the public interest. 2. Accused must have enough information to answer the allegations: Whether the requirement be described as one requiring that the gist of the allegations be provided or as one requiring that an outline of the allegations be provided is not important. What is required is enough detail to allow the individual to answer the allegations. 3. Not enough to claim the information is accurate: The respondent claims that the accuracy of the information in question has been carefully vetted. That may be true but I do not think it justifies refusing to provide the applicant with the information he seeks. The assertion, that the information is accurate, is self-serving and it is no answer to the applicants perception that he is being dealt with arbitrarily and capriciously. 4. s. 7 violation not saved under s. 1: I am not convinced that a system which puts in the hands of the same body both the decision on the merits and the decision as to how much of the
88 1/12/2010
Laws of Canada
information with is before it will be disclosed to the applicant, is one which can meet the requirements of s. 1 of the Charter. Counsel for the applicants argument that his client would be much better off if he had been charged with criminal offences in relation to the incidents which are alleged. (Gallant vs Gough) Balancing of interests Concern also that if info is not contested, we have no way of knowing if reliable, But Reprisals are a real possibility, and if you dont protect your sources, they will not come forward with information in the first place. Reid (Gough) and Desjardins (Gallant) carve out compromise, ie can rely on info if court is convinced that source of info is reliable. Other safeguard is limited release give to lawyer and not to client. Disclosure where concerns for confidentiality of informants - summary: Informant identity can be protected (Gallant, Gough) Steps to ensure reliability of the information should be taken, decision to not release information should be justified to ensure that duties of procedural fairness/fundamental justice are not violated (Gallant- Desjardins, Gough) Compromises may be found in court supervision of discretion to withhold information (allows counsel access to the information), or through release enough information without revealing identity of source (where possible) Where section 7 rights are engaged, is concern for confidentiality part of the analysis of fundamental justice in s. 7 (Gallant Marceau, Desjardins) or is it better dealt with under s.1 (Gallant Pratte, Gough)? OFFICIAL NOTICE Official notice is the extent and manner in which an agency may, in making its decisions, use material that is not introduced in evidence. Davis Administrative Law (article) The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that convenience should always yield to the requirement of procedural fairness that parties should have opportunity to meet in the appropriate fashion all facts that influence the disposition of the case. Statute SPPA Notice of Facts and Opinions s.16 A tribunal may, in making its decision in any proceeding, (a) take notice of facts that may be judicially noticed; and (b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. Q: when can an agency properly go beyond the record for a material fact? Have to look at case law to answer this:
89 1/12/2010
Laws of Canada
Township of Innisfil v. Township of Vespra (1981) SCC PRINCIPLE: If a tribunal uses any prior decision as a precedent to give parties, proper notice must be given so that they may comment on it. Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra to accommodate a growing population Issue: whether it should accept in evidence a letter written by a government authority that purported to state the provincial govts position; before reaching the SCC, this issue had been settled and the letter was admissible. Held: the board decision was correct, the Board made its decision on the vacancy factor on the basis of general principles which it had accepted in previous cases and on other evidence which had been presented to it and used its previous experience in Barrie, not as a compelling precedent, but only as an example. With respect to judicial notice, they held that it is a sound rule for a tribunal intending to use any prior decision as a precedent to give parties to the hearing proper notice so that they may comment on it. Lawal v. Canada (Minister of Employment and Immigration)(1991) FCA Facts: the panel wanted to verify the story of the applicant and so they talked to paper and Nigeria (p.452). Held the application of section 68(4) and (5) are limited to fats which may be judicially notice, generally recognized facts, and information or opinion that is within the Boards specialized knowledge. Judicial notice only applies to within the agency, not outside the agency and outside information. ADMISSIBILITY OF EVIDENCE It is well settled that agencies are not governed by the rules of evidence used by courts unless some statutory provision requires them, and such provisions are rare. Lord Denning in Miller v. Minister of Housing and Local Government said that tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law. Statute SPPA Evidence What is admissible in evidence at a hearing s.15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, Relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. Bond v New Brunswick (Management Board) (1992) PRINCIPLE: Hearsay evidence is not sufficient when a serious allegation has been made. Facts: Sexual assault case. The victim did not testify; rather the arbitrator relied simply on hearsay evidence of what the victim had told others as well as opinion evidence. Held: given the sanction and the seriousness of the allegations, this was not sufficient to meet the requirements of natural justice.
90 1/12/2010
Laws of Canada
Re Clarke and Superintendent of Brokers, Insurance and Real Estate (1985) Facts: Clarke surrendered her real estate licence when she was charged with theft and fraud. She was acquitted and applied for reissue of her licence. This application was made to the superintendent, who held a hearing. Clarke was sick and unable to attend, counsel for the superintendent introduced transcripts of the evidence from her criminal trial. The transcripts were admitted and the superintendent decided not to reissue her licence, although he said that he did not give much weight to the transcript evidence from the criminal trial. Clarke appealed based on evidence. Held: the transcript evidence was admissible and the superintendent in admitting the evidence and giving it little weight made no error in law or in fact. CROSS-EXAMINATION Statute SPPA Examination of witnesses s.10 A party to a proceeding may, at an oral or electronic hearing, (a) call and examine witnesses and present evidence and submissions; and (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceedings. Innisfil (Township) v Vespra (Township) (1981) 2 SCR 145 (Ont.) PRINCIPLE: If the SPPA applies, and unless the relevant statute states otherwise, the right to cross-examination applies. Facts: Case involved an annexation application; Barrie wanted to annex parts of Innisfil and Vespra; the issue before the board of whether it should accept in evidence a letter written by a government authority which purported to state the provincial govts position; before reaching the SCC, this issue had been settled and the letter was admissible. Issue: The issue before the SCC was whether or not the opposing municipalities were entitled to cross-examine the provincial government official who had presented the letter. Held: there should have been a right to cross-examine on the letter. SPPA applies; no out for government officials; no executive exclusion; if an individuals rights are in issue and the statute contemplates a full oral hearing, there must be real clear language to support a denial of cross-examination rights. Re County of Strathcome ... (1971) PRINCIPLE: Cross-examination will vary with the nature of the case being heard. Other means such as written answer may be sufficient to correct or contradict any prejudicial statements in their view in order to satisfy procedural fairness. Facts: The provincial planning Board directed that lands owned by a developer be rezoned from agricultural general reserve to general urban. A group appealed this who believed the area was unsuitable for residential housing due to odours by nearby industries. The group succeeded on the ground that they had not been given an opportunity to test all evidence by crossexamination. The developer appealed. Held: appeal allowed, cross-examination is not necessary when other means, written answer, are sufficient to correct or contradict evidence. No lack of procedural fairness.
91 1/12/2010
Laws of Canada
In the process of presenting his own case he is entitled to weaken and destroy the case that is made against him. In trials in Court this is often effectively done by crossexamination. A party is often able to advance his own case from the mouths of his opponent's witnesses. It does not follow that the refusal of or the placing of limitations upon the right of cross-examination will always require that the Court quash an order made in proceedings in which these restrictions are enforced. If he is afforded an equally effective method of answering the case made against him, in other words is given "a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice" the requirements of natural justice will be met. The importance of crossexamination will vary with the nature of the case being heard. Have the respondents been afforded "a fair opportunity" to "correct or contradict" the contents of the report of Dr. Bernhart? They have been deprived of doing so by crossexamination because its author was not present, but cross-examination is but one method by which this can be done. In the present case, the Board invited written answers to the matters contained in the report. To one who reads the critique of Dr. Turk and the shorter one by Dr. Kleppinger, it is impossible to say the respondents have not taken full advantage of the opportunity afforded to them to "correct or contradict" any "statement prejudicial to their view" in the Bernhart report.
Re B and Catholic Childrens Aid Society of Metropolitan Toronto (1987) PRINCIPLE: cross-examination necessary where serious allegation to reputation and if case is decided solely on hearsay evidence. Facts: The Child Welfare Act (1980) enabled a child abuse register. If an individual was included on the list, s/he was entitled to notice and to make an application to be removed from the list. Appellant allegedly sexually assaulted a 12 year old girl. Appellant is appealing his name on register. The victim was not called as a witness and thus, unable to be cross-examined. The social worker gave hearsay evidence based on out-of-court conversation with the victim. Held: It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice; the hearing in this case fell below the minimum requirement of fairness. The appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have ones name in the Child Abuse Register where it may remain for 25 years. Hearsay evidence is admissible because of s.15(1) of the SPPA. o Evidence What is admissible in evidence at a hearing 115.(1) ... a tribunal may admit as evidence at a hearing ... (a) any oral testimony POST-HEARING ISSUES DUTY TO GIVE REASONS Reasons for requiring reasons: 1. Enhance quality of decision making by forcing DM to articulate the relevant issues, and how the evidence and arguments justify the decisions s/he has reached. 2. Written decisions improve standards of agency b/c members of agency can consult reasons. 3. Jurisprudence allows parties to address agency more effectively by having an understanding.
92 1/12/2010
Laws of Canada 4. Reason allow losing party to know whether DM has understood and fairly supplied the
decision. 5. Without reasons, very difficult for effected party to request similar things in future. Must know what went wrong first time to know if you have ground to appeal (or apply for JR). Arguments for Not giving reasons: 1. Time consuming and expensive (use a lot of resources that could be spent better elsewhere). 2. Too onerous for members of tribunals who have little adjudicative experience. 3. In many cases, actual decision written by staff of agency members. 4. Requirement of reasons formalizes what was intended to be informal processes different from courts. Case law: obligation to give reasons: General rule - barring statutory directives, common law does not require reasons. Exceptions o Cases where subject matter is of very high interest to individual. o Charter cases involving s.7. o Cases involving successive applications. o Cases where there is a right of appeal (cant appeal unless you know reason for defeat). Baker = duty to give reasons in certain circumstances; two indicia: 1. The importance of the decision to the individual and 2. Whether or not there was a right of appeal (to make a right of appeal effective, you need reasons for the reviewing court to probe). o Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Since Baker, the tendency of the courts has been to require the provision of reasons. Suresh court supported the provision of substantial reasons in such danger to the public or the security of Canada deportation cases at least in risk of torture and related situations. AND, the reasons must emanate from the person making the decision (unlike Baker). o The Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reasons for a decision. Statute SPPA
Laws of Canada
Decision: interest Decision 17(1) A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party. THUS, THE PARTY MUST REQUEST REASONS. Via Rail is a watershed case which states what the content of the reasons must contain: VIA Rail Canada Inc. V National Transportation Agency (2001) 2 FC 25 (CA) PRINCIPLE: reasons must provide enough insight into the reasoning process. Facts: Complaint from wheelchair basketball team regarding the tariff for those that needed help on and off the train. Agency determined that the tariff constituted an undue obstacle in the mobility of the disabled persons (undue defined as improper, inordinate, excessive, oppressive by SCC) Held: reasons given by agency were inadequate, the duty to give reasons is only fulfilled if the reasons provided are adequate. Reasons were inadequate because they did not provide enough insight into the reasoning process followed. Moreover, they were not sufficiently clear with respect to the conclusion that is what is adequate depends on each particular case, however, in general adequate reasons are those that serve the functions for which the duty to provide them was imposed. The decision-maker must set out its finding of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors. in the case of a regulated industry, the regulators reasons for making a particular decision provide guidance to others who are subject to the regulators jurisdiction. To comply with the duty to give reasons, the decision-maker must set out the finding of facts and the principal evidence upon which those findings were based; reasons must address the major points in issue. Effect of breach of the duty to give reasons - If you fail to give reasons or if you fail to give sufficient reasons, this can give rise to a courts discretion to set aside the decision. - You can seek certiorari (quash the decision), prohibition, or mandamus. - In judicial review applications, the right to a remedy is always discretionary; even if you make out your case, the decision-maker is not bound to give you the relief you seek, even though there is a right underlying the request.
94 1/12/2010
Laws of Canada
Institutional Decisions
Advantages/Disadvantages of institutionalizing the decision-making process: Professor Blache (quoted in Consolidated-Bathurst) There are advantages and disadvantages to institutionalizing the decision-making process. The main advantages with which it is credited are increasing the efficiency of the organization as well as the quality and consistency of decisions. It is felt that institutional decisions tend to promote the equal treatment of individuals in similar circumstances, increase the likelihood of better quality decisions and lead to a better allocation of resources. Against this it is feared that institutionalization creates a danger of the introduction, without the parties' knowledge, of evidence and ideas obtained extraneously and reduces the decision maker's personal responsibility for the decision to be made. International Woodworkers of America, Local 2-69 v Consolidated-Bathurst Packaging Ltd. (1983) 5 CLRBR / (1990) 1 SCR 282 (Ont.) Consolidated-Bathurst PRINCIPLE: panel members could consult with the full-Board on matters of policy, NOT matters of fact AND the audi alteram partem rule will be breached if a new policy or a new argument is proposed at a full board meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond. Facts: Consolidated-Bathurst had a plant and decided to close it. The union was never informed about the possibility of closure. Three members of the Ontario Labour Relations Board (OLRB) held a hearing to deliberate the draft decision. After the hearing was concluded these members discussed the case with other members of the board at a full-board meeting and then gave a decision. The employer argued that, if any evidence given at the hearing was discussed with other members or if any opinions of other members were considered, the decision had been improperly made. Issue: the issue is a practice of the OLRB to hold a full-Board meeting after a three-person panel Board hearing was held to discuss a draft decision. Appellant argues the practice constitutes a breach of a rule of natural justice (he who decides must hear). And, a decisionmaker must not be placed in a situation where he can be influenced by persons who have not heard the evidence. Held: appeal dismissed. The full-board meeting was valid.
95 1/12/2010
Laws of Canada
Decision of the Board: After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice-chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These Full Board meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province. But this institutional purpose is subject to the clear understanding that it is for the panel hearing the case to make the ultimate decision and that discussion at a Full Board meeting is limited to the policy implications of a draft decision. The draft decision of a panel is placed before those attending the meeting by the panel and is explained by the panel members. The facts set out in the draft are taken as given and do not become the subject of discussion. No vote is taken at these meetings nor is any other procedure employed to identify a consensus. The meetings invariably conclude with the Chairman thanking the members of the panel for outlining their problem to the entire Board and indicating that all Board members look forward to that panel's final decision whatever it might be. No minutes are kept of such meetings nor is actual attendance recorded. Sopinka J (dissenting): The issue in this appeal is whether the following rules of natural justice have been violated: (a) He who decides must hear; (b) The right to know the case to be met. Boards argument the ultimate decision was left to the panel and therefore presumably that the discussion of policy implications did not influence the final decision. Sopinkas response Given the number of Board members present and the fact that included were an alternate Chairman, Vice-chairmen and solicitors, the views expressed were potentially very influential. Divisional Court: Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence. The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond. I would conclude from the foregoing that the full Board meeting might very well have affected the outcome. The Board in its reasons on reconsideration does not directly seek to refute this inference. It does affirm that the final decision was that of the panel. Held (dissent): The full Board hearing in this case is said to violate the principles of natural justice in two respects: first, that members of the Board who did not preside at the hearing participated in the decision; and second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there was no opportunity to make submissions. ... Furthermore, when the rules of natural justice collide with a practice of the Board, the latter must give way. Gonthier J (majority): It will be noted that Chairman Adams does not claim that the purpose of full board meetings is to achieve absolute uniformity in decisions made by different panels in factually similar situations. ... Thus, Chairman Adams states that discussions at full board meetings are limited to policy issues, that the facts of each case must be taken as presented and that no votes are taken nor any attendance recorded. ... Finally, Chairman Adams rejected the
96 1/12/2010
Laws of Canada
idea that full board meetings could have an overbearing effect on the panel members' capacity to decide the issues at hand in accordance with their opinion. Rationale behind the need to hold full board meetings on important policy issues: First, the importance of benefiting from the acquired experience of all the members, chairman and vice-chairman of the Board. Second, the large numbers of persons who participate in Board decisions creates the possibility that different panels (i.e. of three) will decide similar issues in a different manner. Coherence in administrative decision-making must be fostered. ... Given the large number of decisions rendered in the field of labour law, the Board is justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases. The fact that the Board's decisions are protected by a privative clause (s. 108) makes it even more imperative to take measures such as full board meetings in order to avoid such conflicting results. Bias It is pointed out that justice should not only be done, but should manifestly and undoubtedly be seen to be done (Rex v. Sussex Justices, [1924] 1 K.B.) However, in my opinion and for the reasons which follow, the danger that full board meetings may fetter the judicial independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this Court in Committee for Justice and Liberty v. National Energy Board (1978). A full board meeting set up in accordance with the procedure described by Chairman Adams is not imposed: it is called at the request of the hearing panel or any of its members. It is carefully designed to foster discussion without trying to verify whether a consensus has been reached: no minutes are kept, no votes are taken, attendance is voluntary and presence at the full board meeting is not recorded. The decision is left entirely to the hearing panel. It cannot be said that this practice is meant to convey to panel members the message that the opinion of the majority of the Board members present has to be followed. It is my opinion, in agreement with the Court of Appeal, that the full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. The Board's practice of holding full board meetings or the full board meeting held on September 23, 1983 would not be perceived by an informed person viewing the matter realistically and practically -- and having thought the matter through -- as having breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice. Full Board meetings and the audi alteram partem rule: Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram partem rule because the parties are not aware of what is said at those meetings and do not have an opportunity to reply to new arguments made by the persons present at the meeting. In addition, there is always the danger that the persons present at the meeting may discuss the evidence. It is now necessary to consider the conditions under which full board meetings must be held in order to abide by the audi alteram partem rule. In this respect, the only
97 1/12/2010
Laws of Canada
possible breach of this rule arises where a new policy or a new argument is proposed at a full board meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond. I therefore conclude that the consultation process described by Chairman Adams in his reconsideration decision does not violate the audi alteram partem rule provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting. Board only discussed law and policy The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice. Note: obvious problems with the Consolidated-Bathurst rules is the policing of their observance. Tribunals are not obliged to disclose whether they engage in such practices let alone whether a particular case has been the subject of a consultation. In Bathurst itself, the employers lawyer was at the board offices, eavesdropping on the day the case was discussed. Tremblay v Quebec (Commission des affaires socials) (1992) 1 SCR 952 (Que.) PRINCIPLE: Institutional independence is breached there is compulsory consultation and systemic pressure to conclude a decision Compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constraint. The fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. Plenary meetings of the Commission are held so as to arrive at a consensus: a vote by a show of hands is generally taken, as well as attendance; minutes are kept which is a breach of independence AND while secrecy remains the rule, it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. Facts: the respondent, Tremblay, was receiving social aid. The Ministere denied her claim to be reimbursed for the cost of certain dressings and bandages. The respondent appealed this decision to the Commission in accordance with the Social Aid Act. The point at issue was whether the dressings and bandages came within the definition of medical equipment (a purely legal question. Appeal was heard by a quorum (minimum number of voting members required at a hearing). A draft decision in favour to the respondents was reached and send off for verification. The draft eventually went to the president who explained his position to be contrary to the draft. The respondents case was then heard at Commission meeting. Majority held unfavourable opinion to the respondent and woman in initial draft decision also changed her mind. Since the quorum was now in disagreement, the matter was submitted to the president as required by the Act. He decided the matter as he had already indicated, unfavourable to the respondent. The Commission dismissed the respondents appeal. Respondent argued a breach of natural justice Held: the Commissions decision, as a product of this system of internal consultation, breached the rules of natural justice. Plenary meetings may be a consultation tool which is entirely in keeping with the rules of natural justice. However, they should not be imposed on decision makers and should be held in such a way as to leave decision makers free to decide according to their own consciences and opinions. Voting, the taking of attendance and the keeping of minutes are therefore not to be recommended. Issues:
98 1/12/2010
Laws of Canada
(1) Should the Superior Court have allowed the objection to the evidence made by counsel for the Commission and based on deliberative secrecy? The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice. Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. This is indeed the conclusion at which the majority of the Court of Appeal arrived. (2) Does the machinery established by the Commission to ensure adjudicative coherence give rise to a reasonable apprehension of bias? Commissions argument: ... the consultation machinery which it has created is consistent with the rules of natural justice. It describes this consultation machinery not as a compulsory process of consultation but rather as an "automated" process, the purpose of which is not to impose any particular viewpoint but to assist the decision maker by informing him of the existence of precedents. As the Commission's decisions are not subject to appeal, it is the Commission itself which has the duty of preventing inconsistent decision-making. Courts response/analysis: Compulsory meetings The institutionalized decision-making process in the case at bar is rather different from that considered by the Court in IWA. Although the "consensus tables" held by the Commission are optional in theory, it appeared from the testimony of the member Claude Pothier that these collegiate discussions are in practice compulsory when the legal counsel determines that the proposed decision is contrary to previous decisions. Dugas J., who heard the parties and was therefore in a better position to assess the specific concrete aspects of the case, concluded from the testimony that there was undeniable "compulsory consultation" and "systemic pressure". The testimony of the member Claude Pothier depicts a system in which in actual fact constraint seems to have outweighed influence, regardless of any internal directive to the contrary. a plenary meeting may be requested not only by the quorum responsible for making the decision but also by the president of the Commission. In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. However, it is the quorum, and only the quorum, which has the responsibility of rendering the decision. If it does not wish to consult, it must be truly free not to do so. Compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constraint. Lack of independence here are other facts which support this conclusion of an apparent lack of independence. For example, plenary meetings of the Commission are held so as to arrive at a consensus: a vote by a show of hands is generally taken, as well as attendance; minutes are kept.
99 1/12/2010
Laws of Canada
Certain aspects of the system established by the Commission create at the very least an appearance of "systemic pressure", to use the words of Dugas J. Held: Accordingly the Commission's decision, as a product of this system of internal consultation, seems to me to have been made in breach of the rules of natural justice. The present practice of the Commission of holding plenary meetings without members of a quorum having requested them, as well as the voting procedure and the keeping of minutes, may exert undue pressure on decision makers. Such pressure may be an infringement of a litigant's right to a decision by an independent tribunal. I consider that the institutionalized consultation process currently being used by the Commission may also give rise to a reasonable apprehension of bias in an informed litigant. I would accordingly dismiss the principal appeal for this reason. (3) Is the part played by the president in the case at bar a breach of the rules of natural justice? I should stress first of all that the Court is not in any way questioning the good faith or impartiality of the Commission's president in the case at bar; the question which concerns it here is one of an appearance of bias, not of actual bias. I feel that the fact that the president expressed his opinion to members of the quorum, inviting them to reconsider the decision, and then became a decision maker is hardly consistent with the rules of natural justice. Moreover, s. 10 of the Act expressly authorizes the president to designate a vicepresident to resolve disputes between the members of a quorum. In view of the active part he took in the discussion, the president should have delegated the decision to one of his vice-presidents. He did not do so. The active part played by Mr. Poirier in this matter thus seems to me likely to create a reasonable apprehension of bias in an informed observer. Audi alteram partem rule - In the case at bar, there is no evidence that new arguments of law were raised at the "consensus table". The consultation process therefore did not infringe the audi alteram partem rule. Turning to the next stage, it also seems that no new points were considered by the president at the decision-making stage. He in fact decided on the basis of the written file as prepared by the quorum. I therefore do not feel the facts of the instant case established a breach of the audi alteram partem rule. Consolidated Bathurst Tremblay
Meeting initiated at option of panel / DMs. No impediment to decision Attendance at meeting was optional No minutes of meeting No vote at meeting Original panel still made decision despite what occurred at meeting.
President could initiate meeting. Decision unlikely to be issued without a meeting if it was a novel / new point of law Attendance at meeting was compulsory Minutes of meeting taken (undue pressure on decision makers) Vote taken at meeting
100 1/12/2010
Laws of Canada
Tie vote between panel members broken by President. Meeting designed to discuss issues & policy Process designed to achieve consensus
The following cases, assistance was given by a person assigned to assist the hearing panel with a particular case: Ellis-Don Ltd. v. Ontario (Labour Relations Board) (2001) 1 SCR 221 (Ont.) PRINCIPLE: A change between a draft and final reasons did not, of itself, create a presumption of impropriety. As long as consultations are limited to questions of policy and law, the decision makers are free to make up and change their own minds AND deliberative secrecy was important for administrative consistency, even though it created evidentiary difficulties, Facts: A first draft of the panel's decision would have dismissed the grievance based on the abandonment of bargaining rights. However, after a full Board meeting discussed the draft, a majority of the panel found that there had been no abandonment of bargaining rights and upheld the grievance. The appellant, Ellis-Don, applied for judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change, and claimed that there was a breach of natural justice and a violation of the rules governing institutional consultations. Issue: appellant tried to establish an improper interference by the full-Board in the decision of the panel. It sought to convince the courts that the change in the decision was of a factual nature and that it could properly be implied that a discussion of the facts had occurred at the full Board meeting. Held: Appeal dismissed. Institutional consultation did not create an apprehension of bias or lack of independence, provided that the consultation process was limited to questions of policy and law, and the decision-makers were free to make their own decision. A change between a draft and final reasons did not, of itself, create a presumption of impropriety. This change consisted of a different conclusion as to the legal consequences to be derived from the facts, which was a pure question of law. It was not the application of a new policy, as it brought the decision more in line with earlier cases. Ellis-Don failed to establish an actual breach of the audi alteram partem rule, as opposed to an apprehension of breach. Deliberative secrecy was important for administrative consistency, even though it created evidentiary difficulties for Ellis-Don. Ellis-Don was not required to request reconsideration as a prerequisite to judicial review. Secrecy: The case reveals a tension between the fairness of the process and the principle of deliberative secrecy. The existence of this tension was conceded by Gonthier J. in Tremblay. Gonthier J. recognized that this principle of deliberative secrecy played an important role in safeguarding the independence of administrative adjudicators. Deliberative secrecy also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who have heard
Laws of Canada
the case and the members who have not, within the rules set down in ConsolidatedBathurst, supra. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency. Satisfying those requirements of consistency and independence comes undoubtedly at a price, this price being that the process becomes less open and that litigants face tough hurdles when attempting to build the evidentiary foundation for a successful challenge based on alleged breaches of natural justice Dissenting: The record discloses a change of position by the panel on an issue of fact. This runs counter to Consolidated-Bathurst and has to be dealt with properly if confidence in the integrity of the Board's decision making is to be maintained. ... Once it was determined here that the change between the initial decision and the final decision related to an issue that was almost entirely factual, and was nevertheless put up for discussion at a full Board meeting, I think the appellant has made out a prima facie basis for judicial review which in this case the Board chose not to rebut. To hold otherwise would suggest that the Court in Consolidated-Bathurst affirmed procedural limitations on full board meetings for breach of which there is no effective remedy. Payne v Ontario (Human Rights Commission) (2000) 192 DLR (4th) 315 (Ont. CA) PRINCIPLE: The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. Sharpe JA noted three purposes put forward in favour of deliberative secrecy: First, a practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations; Second, the need for finality and the need for decisions to rest on reasons givens; Third, the need to protect the process of debate, discussion, and compromise inherent in collegial decision making. The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles. As was pointed out by Gonthier J. in Tremblay. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. Spring v Law Society of Upper Canada (1988) 50 DLR (4th) 523 (Ont. Div. Ct.) PRINCIPLE: The reasons must be those of the committee. The decision making process could not be delegated to a third party, but a third party (the clerk) may write up a draft report as long as it is not the final report on the decision. Facts: This was an appeal by Spring from an order of Convocation of the Law Society of Upper Canada that disbarred Spring for professional misconduct and for conduct unbecoming a solicitor. Convocation adopted the reasons of the Discipline Committee which found Spring guilty of these offences and recommended that he be disbarred. The decision and reasons of the Committee were not prepared by the Committee but by its clerk, who was not a member of the Committee and who was not associated with the prosecution in any manner. The clerk was also not present when the Committee deliberated and reached its decision. The Committee deliberated
102 1/12/2010
Laws of Canada
in its decision and a member of the Committee then discussed the findings with the clerk, who prepared a draft report. When it reached its decision the Committee used Spring's testimony given on an affidavit and in a transcript of cross-examination in prior civil proceedings. These were used to prove that Spring swore a misleading affidavit and that he gave untrue, deceptive or misleading evidence during a cross-examination of this affidavit. Spring claimed that this reliance violated section 13 of the Canadian Charter of Rights and Freedoms. Held: Appeal dismissed. The deliberations, findings and decision of the Committee were made without input from any third party. The clerk did not participate in or influence the findings of the Committee. No part of the decision making process was delegated. The reasons were those of the Committee and there was no reasonable apprehension of bias. Section 13 of the Charter was not violated and the Charter did not prevent the Law Society from using Spring's affidavit evidence to prove these acts. The very essence of these offences was the giving of false testimony and therefore this evidence was admissible. The particulars of professional misconduct and of conduct unbecoming a solicitor extended over a two-year period. There was ample evidence to support the Committee's findings that Spring committed these offences. I conclude that the reasons were the reasons of the Discipline Committee and there can be no reasonable apprehension of bias. In the present case, the clerk was not part of the prosecution. In the absence of the clerk, the Committee met on three occasions to deliberate. It made findings of fact. A member of the Discipline Committee discussed the findings with the clerk who prepared a draft report. The draft report was reviewed and changes were made before the final report was prepared and approved. The deliberations, the findings and the decision, were all made without input from any third party. The clerk did not participate in or influence the findings or the decision. No part of the decisional process was delegated. Khan v College of Physicians and Surgeons of Ontario (1992) 94 DLR (4th) 193 (Ont. CA) PRINCIPLE: A committee/tribunal receiving legal advice does not create a reasonable apprehension of bias. It is entitled to such legal advice. A committee/tribunal may look to outside sources such as the assistance of a lawyer. Facts: Khan had been found guilty of professional misconduct by the discipline committee of the college and his licence was revoked. Khan had appealed on the ground that the committee had acted in breach of the duty of procedural fairness by permitting its counsel to play so significant a role in the preparation of its reasons for decision as to create a reasonable apprehension of bias. The Divisional court allowed the appeal on this ground. Held: appeal allowed. Nothing in this record suggests that counsel's involvement in the writing of the reasons compromised the independence or impartiality of the Committee Legal advice: The Committee is entitled to the legal assistance of its own counsel during the hearing. It received such assistance in this case and there is no suggestion that counsel's conduct during the actual hearing was improper. Rosenberg J (Divisional Court) counsels advice to the Committee must have amounted to legal advice.
103 1/12/2010
Laws of Canada
Lawyers are not retained for their journalistic or administrative abilities and it is unlikely that a lawyer with the best of intentions can confine his advice to be only of journalistic and administrative assistance. It is well established that a tribunal such as the Committee may look to outside sources for assistance in the preparation of its reasons: Spring. ... That same reconciliation must be achieved during the drafting of reasons. The ultimate aim of the drafting process is a set of reasons which accurately and fully reflects the thought processes of the Committee. To the extent that consultation with counsel promotes that aim, it is to be encouraged. Section 12(3), like the rest of s. 12, refers to the hearing stage of the proceedings. The legal advice refers to advice given during the hearing by counsel for the Committee. The hearing stage of the discipline process was over when the Committee announced its decision and imposed a penalty. Nothing done by counsel for the Committee after that point could contravene s. 12(3). Even if s. 12(3) of the Health Disciplines Act reached beyond the hearing stage to the writing of the reasons for the decision, the section was not contravened in this case. Counsel for the Committee specifically disavowed providing any legal advice to the Committee during the writing of the reasons. His assertion was not challenged. The phrase "legal advice" in s. 12(3) must refer to advice on matters of law. Advice intended to improve the quality of the Committee's reasons by, for example, deleting erroneous references to the evidence or adding additional relevant references to the evidence, is not advice on a matter of law but is rather advice as to how the Committee should frame its reasons in support of its decision. If the Committee accepts such advice, it may improve the quality of the reasons ultimately provided by the Committee and render the decision of the Committee less susceptible to reversal on appeal. Bovbel v Canada (Minister of Employment and Immigration) (1994) 2 FC 563 (CA) PRINCIPLE: a third party may be involved in writing the decision as long as strictly confined to the law/policy/consistency and not the facts. Facts: appellant argued that contrary to the principles of natural justice and the provisions of the Immigration Act, the board had referred a draft of its written decision to legal counsel who was not a member of the Board and who had not participated in or attended at the applicants hearing. Held: no breach of procedural fairness. In our view, the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency that could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the board. However, any policy is susceptible to abuse.
104 1/12/2010
Laws of Canada
Bias and Lack of Independence

The duty to act fairly enunciated by the SCC in Nicholson must include a requirement for an unbiased decision maker. It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done (perception of the public is very important). Two important branches of natural justice: (1) Right to be heard audi alterem partem: notice, counsel, cross examination, reasons (2) Right to have your case heard by an unbiased decision-maker (Bias) nemo judex in causa propria sua debet esse, requires that decision makers are unbiased, impartial, and independent; no one ought to be a judge in his or her own cause Three types of Bias: (1) Attitudinal or non-pecuniary bias predisposition toward an outcome based on several factors, i.e. relationship with parties, preconceived views on issue in case, there can also be institutional or structural factors that give rise to this kind of bias- things about org itself, or govt that give rise to perception of bias. (2) Institutional or structural bias (3) Pecuniary/material interest: If a person has financial interest in outcome (no matter how trivial), automatically disqualified from hearing the case. State of mind of decision maker not relevant
105 1/12/2010
Laws of Canada
Standard Test for Bias: The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. That test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Committee for Justice and Liberty v. National Energy Board (1978) SCC i.e., this is the test articulated and followed in Baker, where it is decided that bias would be perceived from Officer Lorenzs comments. Four main disqualifying conditions that will give rise to a reasonable apprehension of bias are: (1)Antagonism during a hearing by a decision maker toward a party or his or her counsel or witnesses. o most common manifestation is aggressive questioning or comments about testimony (i.e. Baker). (2) An association between one of the parties and a decision maker (3)An involvement by a decision maker in a preliminary/earlier stage of the process/decision, and o usual example is where a decision maker has in some way already heard the matter before the tribunal or been involved in the investigation and decision to proceed with the matter being heard (4)Attitudinal bias An attitude of a decision maker toward the outcome PECUNIARY AND OTHER MATERIAL INTERESTS Energy Probe v Canada (Atomic Energy Control Board) (1984) PRINCIPLE: interest must not be too remote to be a pecuniary interest. Facts: AECB proposed to renew the operating licence for a nuclear generating station, operated by Ontario Hydro; Energy Probe made some objections, including an objection to participation by board member, Mr. Olsen, who was the president of a company that supplied cables to nuclear power plants and was a member of several organizations that supported the use of nuclear power. Energy Probe JRd the decision. Issue: did Mr Olsen have a pecuniary interest in the outcome of that decision sufficient to constitute pecuniary bias as that term has been defined?
106 1/12/2010
Laws of Canada
Held: Mr Olsens interest was indirect and uncertain and too remote to constitute either direct pecuniary interest or bias. Marceau J concurred, but asserted that his reasons differed the pecuniary interest was far too remote and uncertain to have been a cause for Mr Olsens disqualification. The rule relating to pecuniary bias, as it has been articulated, is that a direct pecuniary interest, no matter how trivial, will constitute bias (Mullan text). Reed J But, I can find no direct pecuniary interest, as that concept has been defined in the jurisprudence, held by Mr. Olsen at the date of the hearings in question. There was no contract conditionally in effect pending the outcome of the new licences to Ontario Hydro. There was no certainty that Mr. Olsen would sell additional cables to Ontario Hydro for the Pickering units, during the life of the new licence. Also, it was admitted by counsel for the applicant that the purchase of such cables by Ontario Hydro was through a tendering process. The most that could be said of Mr. Olsen as of the date of the hearing was that he could entertain a reasonable expectation of pecuniary gain as a result of approval of the licences. All of the jurisprudence respecting pecuniary bias that I have seen involves individuals who at the date of the hearing held some sort of direct relationship with the beneficiary of the decision such that pecuniary benefit might with certainty arise even though that benefit might be minuscule. ... Mr. Olsen, however, did not stand in a direct and certain relationship with Ontario Hydro at the date of the licensing decisions. Marceau J I do not think that the word direct, when used by the judges and the textbooks to qualify the interest required to constitute the peremptorily disqualifying pecuniary bias, should be given such a strict and narrow interpretation that any indirect or uncertain advantage would not have to be considered; the word in my view, is used in the sense of not too remote or too contingent or too speculative. ... there is no reason to draw a distinction between direct and indirect or certain and uncertain as regards the monetary benefit the adjudicator could expect from his determination. The only rational requirements are that the benefit come from the decision itself and that it be a likely enough effect to colour the case in his eyes. ... the licences were only operating licences and Mr Olsens company could expect no extra business and obviously no gain as a result of their approval. The mere possibility that a profit could be realized in the future out of other contracts awarded in the course of construction of other units was no doubt too alien, contingent and remote to constitute pecuniary bias. ... to operate disqualification, the pecuniary interest ought to be more immediate and certain and the non-pecuniary interest must give rise to very substantial grounds for apprehending lack of objectivity. Note: SCC has confirmed that the nature of the decision (i.e. judicial vs. administrative or quasijudicial) is not going to affect whether you have a right to an unbiased decision-maker but that right must be calibrated to the circumstances (i.e. nature of the particular agency and nature of the particular decision). Statutes can authorize a higher level of acceptability for bias.
107 1/12/2010
Laws of Canada
ANTAGONISM DURING THE HEARING Its most common manifestations are unreasonably aggressive questioning or comments about testimony. Such conduct may also manifest an attitude toward the issue to be decided. Yusuf v Canada (Minister of Employment & Immigration) (1991) 7 Admin. LR (2d) 86 (FCA) Facts: members of a panel of the Immigration and Refugee Board had engaged in injudicious cross-examination (involving harassing and unfair comments) of a Convention refugee claimant as well as directed gratuitous and irrelevant sexist comments at her. Baker v Canada (Minister of Citizenship and Immigration) PRINCIPLE: Antagonism may also be a problem in written or paper hearings. ASSOCIATION BETWEEN PARTY AND DECISION MAKER Marques v Dylex Ltd. (1977) 81 DLR (4th) 554 (Ont. Div. Ct.) PRINCIPLE: Association between party and decision maker bias must balance the issues, i.e. time elapsed since last dealings/interaction. THUS, TIME IS A FACTOR Facts: an employer challenged a decision of the Ontario Labour Relations Board to certify a union because one of the members of the board, who had been a lawyer before his appointment, had been a member of a firm that acted for a union that became part of the union that was certified. Held: challenged failed. ... must weigh certain factors in the balance ... Over a year had elapsed since he had anything to do with the union, or one of its predecessors. Almost a year had elapsed since his connection with the law firm terminated. INVOLVEMENT OF DECISION MAKER IN EARLIER STAGE OF PROCESS The usual situations are ones in which a decision maker has in the same or another capacity already heard the matter before the tribunal or been involved in the investigation and decision to proceed with the matter being heard (Township of Vespra v Ontario (Municipal Board) (1983) continued from Innisfil, annex land case). Committee for Justice and Liberty v National Energy Board (1978) 1 SCR 369 PRINCIPLE: TEST for bias is NOT actual bias, BUT a reasonable apprehension of bias. Facts: The chairman of the National Energy Board, Crowe, had been president of Canada Development Corp. before his appointment. The applicant company, Arctic Gas Pipeline Company, was formed in 1972 by a study group of companies who were interested in constructing a pipeline. The Canada Development Corp. became a member of the study group in the following November. Crowe had been involved in its discussions and planning from the time the Development Corp. became a member until he left to join the Energy Board. For example, he was a member of the management committee and joined in its decisions about ownership and routing of the proposed pipeline. Held: the apparent commitment to the pipeline created a reasonable apprehension of bias. Nothing turned on the fact that the member had nothing to gain or lose for it was not actual bias but a reasonable apprehension of bias that was in issue. The vice of reasonable apprehension of bias lay in the fact that the Board member had participated in working out at least some of the terms upon which applications were later made to the
108 1/12/2010
Laws of Canada
Board of which he was then chairman. The concern was that there should be no predetermination of issues by the Board or its members and here the participation of the member in question in discussions and decisions leading to the application to the Board of one of the competing companies could not but give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined by the Board. STATUTORY AUTHORIZATION (of bias)
One of the most common responses to an allegation of bias by reason of prior involvement is that of statutory authorization.
Brosseau v Alberta (Securities Commission) (1989) 1 SCR 301 PRINCIPLE: a certain amount of bias may be allowed if permitted by statute. Facts: The appellant contends that a reasonable apprehension of bias arose by the fact that the Chairman, who had received the investigative report, was also designated to sit on the panel at the hearing of the matter. He objects to the Chairman's participation at both the investigatory and adjudicatory levels. Held: No bias. So long as the Chairman did not act outside of his statutory authority, and so long as there is no evidence to show involvement above and beyond the mere fact of the Chairmans fulfilling his statutory duties, a reasonable apprehension of bias affecting the Commission as a whole cannot be said to exist. The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias. It translates into the principle that no one ought to be a judge in his own cause. In this case, it is contended that the Chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension of bias. As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner. As with most principles, there are exceptions. One exception to the nemo judex principle is where the overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue. Administrative tribunals are created for a variety of reasons and to respond to a variety of needs. In establishing such tribunals, the legislator is free to choose the structure of the administrative body. The legislator will determine, among other things, its composition and the particular degrees of formality required in its operation. In some cases, the legislator will determine that it is desirable, in achieving the ends of the statute, to allow for an overlap of functions which in normal judicial proceedings would be kept separate. In assessing the activities of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of "reasonable apprehension of bias" per se. Re W. D. Latimer Co. and Attorney-General for Ontario (1974) members of the panel assigned to hear proceedings had also been involved in the investigatory process. Held: the structure of the Act itself, whereby commissioners could be involved in both the investigatory and adjudicatory functions did not, by itself, give rise to a reasonable apprehension of bias.
109 1/12/2010
Laws of Canada
E.A. Manning Ltd. v Ontario Securities Commission Held: the OSC did act outside its statutory authority in adopting Policy 1.10. The Commissioners, in effect, sought to legislate. It seems to me that the informed bystander, to use the words of Cory J in Newfoundland Telephone, could reasonably perceive bias on the part of an adjudicator. STRUCTRUAL BIAS Qubec Inc. v. Qubec (Rgie des permis dalcool) (1996) 3 SCR 919 PRINCIPLE: overlapping of functions may be permissible, however, there must be some separation. Cannot act as both prosecutor and adjudicator. HOWEVER, a plurality of functions in a single administrative agency is not necessarily problematic (Brosseau). Facts: Statute sets out a complex regulatory scheme for issuing liquor permits. The Regie revoked the companys liquor permits for violations of the statute. The company sought a declaration that various provisions of the Quebec liquor licensing statute were invalid in terms of s.23 Quebec Charter of Human Rights and Freedoms where a tribunal is acting in a judicial or quasi-judicial fashion, it be both independent and impartial. Claim for statutory bias as a Regie lawyer could be involved in every stage. Held: there is a reasonable apprehension of bias in this case as the lawyer is acting as a prosecutor and adjudicator. In practice, employees of the Rgie are involved at every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication. The annual report mentions no measures taken to separate the lawyers involved at different stages of the process. Yet it seems to me that such measures, the precise limits of which I will deliberately refrain from outlining, are essential in the circumstances. Bias in this case has both individual and institutional elements In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown toward administrative tribunals. I note at the outset that a plurality of functions in a single administrative agency is not necessarily problematic. This Court has already suggested that such a multifunctional structure does not in itself always raise an apprehension of bias (Brosseau). Although an overlapping of functions is not always a ground for concern, it must nevertheless not result in excessively close relations among employees involved in different stages of the process. The lack of separation of roles within the Rgie des permis d'alcool was the principal basis for the Court of Appeal's decision in the present case, which means that a thorough review of its institutional structure will be necessary. McBain v Canada (Human Rights Commission) (1985) 22 DLR (4th) 119 (FCA) PRINCIPLE: A reasonable apprehension of bias exists if a Commission/tribunal prosecutes and appoints the members who are to hear the case. Facts: McBain sought a declaration that the legislation violated the Charter and the Bill of Rights because the arrangements specified by the Act for appointment of the tribunal created an apprehension of bias. He argued the Commission investigated, made findings of substantiation and then prosecuted the complaint; the very same Commission also appointed the Tribunal members who heard and decided the case adversely to the appellant/applicant. Such a scheme violates the principle that no one will judge his own cause since it cannot be said that there is any
Laws of Canada
meaningful distinction between being your own judge and selecting the judges in your own cause. Accordingly, the scheme is inherently offensive and gives rise to a reasonable apprehension of bias thereby violating the principles of natural justice. Held: reasonable apprehension of bias where the prosecutor of the Human Rights Commission also selected the members of the panel which would adjudicate the matter. In my view, the apprehension of bias also exists in this case because there is a direct connection between the prosecutor of the complaint (the Commission) and the decisionmaker (the Tribunal). That connection easily gives rise, in my view, to a suspicion of influence or dependency. After considering a case and deciding that the complaint has been substantiated, the "prosecutor" picks the Tribunal which will hear the case. It is my opinion that even if the statute only required the Commission to decide whether there was sufficient evidence to warrant the appointment of a Tribunal, reasonable apprehension of bias would still exist.
ATTITUDINAL BIAS Paine v University of Toronto (1981) 131 DLR (3d) 325 (Ont. CA) PRINCIPLE: No apprehension of bias where a tenure members of a tenure committee had already made up their mind about an individual since that is a normal reaction in the ordinary course of employment. Facts: Paine, an assistant professor in the Fine Arts, applied for JR following the denial of his application for tenure. Held: no bias. Weatherston JA: I think this is not a case where the Court should intervene to substitute its own views for those of the review committees. As a matter of course, members of the tenure committee, who are composed of tenured members of the professional staff, must all, in the course of their association with the candidate, have formed general opinions as to his suitability for tenure. Thus, it makes little difference whether that opinion was expressed before or at the meetings of the committee. ... The tenure committee does not sit as a tribunal, acting only on the evidence placed before it. The members act on their own knowledge of the candidate, as well as the assessments and references that are provided to them. o Thus, the type or composition of the committee is important when dealing with bias. Only need 5 of 7 members to agree. However, 0 agreed here. Mackinnon ACJO: I agree with Weatherston. There is no complaint about the conduct or procedures of those hearings, only with the results. The parties to the instant appeal had contractually agreed to have their domestic disputes resolved in a certain way.
111 1/12/2010
Laws of Canada
This is not, in my view, the exceptional case in which there is manifest error on the part of the appeal tribunals nor is it a flagrant case of injustice at any level of the proceedings which demands the Court interfere. Note: in requiring that the applicant in such cases demonstrate manifest unfairness or flagrant violations of procedural fairness, the Ontario CA appears to be adopting a higher threshold for judicial intervention than is normally applied in procedural unfairness cases.
Great Atlantic & Pacific Co. of Canada v Ontario (Human Rights Commission) (1993) 12 Admin. LR (2d) 267 PRINCIPLE: A personal complainant before the commission that is also prosecuting a similar case on the same commission gives rise to a reasonable apprehension of bias. Facts: Both A&P and the union unsuccessfully motioned the Board raising issues of institutional bias on the part of the Commission, delay and lack of jurisdiction. The board consisted of Professor Backhouse, who was both a famous advocate against sex discrimination and also a party to an outstanding complaint before the Commission in which allegations similar to those of G were made (Osgoode had violated code by reason of systemic sex discrimination). A&P and the union sought an order quashing the proceedings of the Board on the ground of reasonable apprehension of bias. They also sought judicial review of all the rulings of the Board on the preliminary motions. Issue: the background of Backhouse as an advocate in matters and issues involving sex discrimination, and her involvement in another proceeding before the Commission. Held: reasonable apprehension of bias. By becoming a personal complainant before the very commission that was prosecuting the similar case before her, she personally selected one of the parties before her as her own advocate to pursue her personal complaint about the same issue. It is trite (lacking in freshness or effectiveness because of constant use or excessive repetition) to state that simple justice requires a high degree of neutrality. We do not think that would be attained if Backhouse was to continue as the Board. In our opinion, the appropriate test has not been met. o National Energy Board test reasonable and right-minded person.
Large v Stratford (City) (1992) 9 OR (3d) 104
PRINCIPLE: just because one has experience with an issue (an advocate) will not disqualify him/her from deciding a case on the same issue. Facts: The appellant (employer) argues that board chair, Professor Kerr, was biased as evidenced by his public statements as president of the Canadian Association of University Teachers, after he released his decision in this case. The professor took a public position on a public issuethe general desirability of mandatory retirement. Held: there is no evidence of any reasonable apprehension of bias on the questions to be decided by the chair of the board of inquiry. These comments do not violate the well-established standards of administrative neutrality. Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude everyone who ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy. VARIATIONS IN STANDARDS FOR BIAS
112 1/12/2010
Laws of Canada
Municipal councillors are subject to a higher threshold of bias due to being elected:
Old St. Boniface Residents Assn. Inc. v Winnipeg (City) (1990) 3 SCR 1170 (Man.)
PRINCIPLE: Some degree of pre-judgement is inherent in the role of a councillor. Statements which may give rise to an appearance of bias must be the final opinion in order to constitute bias. To establish bias in municipal councillors the onus is on the part alleging the bias to establish AND there is a higher bias threshold to pass for Municipal councillors since they will develop opinions on matters as they appear before them AND reasonable apprehension of bias test applies. Facts: Winnipeg approved a proposed land development in Old St. Boniface, and adopted the recommendations of the Finance Committee ... and the City Council that the land in question be rezoned to permit the erection of two condominiums, certain streets be closed and that the streets, together with other city-owned land, be sold to the developer. Municipal councillor Savoie had been personally involved in the planning of the proposed development and appeared as advocate in support of the application at in camera private meetings of the Finance Committee. Issue: the appellant contends that the audi alteram principle applies in its full vigour to members of a municipal council when deciding whether to vote in favour of a by-law. Thus, was the municipal councillor disqualified by reason of bias (due to his involvement in the proposed development) from participating in the proceedings of the Community Committee. Held: No bias. The audi alteram principle is not violated by Municipal councillors since some prejudgement is inherent in the role of a municipal councillor. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. To establish bias in municipal councillors the onus is on the part alleging the bias to establish. It is therefore necessary to examine all the factors under which a committee of Council operates: Court must classify tribunal as: 1) judicial; 2) quasi-judicial; 3) administrative; 4) executive. To classify framework, the court must make reference to all the circumstances under which the tribunal operates. City Councils = the executive function; different standards for bias. ... in the preparation and processing of a development, a municipal councillor is often involved in assisting parties supporting and opposing the development with respect to their presentations. In the course of this process, a councillor can and often does take a stand either for or against the development. This degree of prejudgment would run afoul of the ordinary rule which disqualifies a decisionmaker on the basis of a reasonable apprehension of bias. Accordingly, it could not have been intended by the Legislature that this rule apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court. o Higher bias threshold to pass for Municipal councillors. I would distinguish between a case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest.
113 1/12/2010
Laws of Canada
This submission would have substance if there was something to suggest that the Councillors support was motivated by some relationship with or interest in the developer rather than in the development. The evidence shows, however, that he had previously supported the development on its merits and there is no evidence that suggests any relationship with the developer. Furthermore, the judge of first instance found as a fact that the Councillor had no such interest. It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest. Alleging bias: The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. It was error, therefore, for the learned judge to apply the reasonable apprehension of bias test. This test would have been appropriate if it had been found that the Councillor had a personal interest in the development, either pecuniary or by reason of a relationship with the developer. In such circumstances, the test is that which applies to all public officials: Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the officials public duty? If that duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias. As I have stated above, there is nothing arising from the political and legislative nature of a councillor's duties that requires a relaxation of this test. The situation is quite distinct from a prejudgment case. In this case no personal interest exists or was found and it is purely a prejudgment case. Councillor Savoie had not prejudged the case to the extent that he was disqualified on the basis of the principles outlined above.
o
NATURE OF THE BODY Court must classify tribunal as: 1) judicial; 2) quasi-judicial; 3) administrative; 4) executive. To classify framework, the court must make reference to all the circumstances under which the tribunal operates. City Councils = the executive function; different standards for bias (Old St. Boniface). Nature of the body: Re Cadillac Development Corp. Ltd. (1973) regard must be had to the nature of the body reviewing the matter. A municipal council is an elected body having a legislative function within a limited and delegated jurisdiction. Under the democratic process the elected representatives are expected to form views as to matters of public policy affecting the municipality. Indeed, they will have been elected in order to give effect to public views as to important policies to be effected in the community.... They are not Judges, but legislators from whom the ultimate
114 1/12/2010
Laws of Canada
recourse is to the electorate. Once having given notice and fairly heard the objections, the Council is of course free to decide as it sees fit in the public interest. Nature of the body Rezoning application attracted the rules of natural justice because the proceeding was characterized as quasi-judicial rather than legislative: Wiswell v Metropolitan Corporation of Greater Winnipeg authority for the proposition that the rules of natural justice apply to a rezoning application no notice was given to the Homeowners Association who opposed the zoning. But, the court characterized the proceeding as quasi-judicial rather than legislative. The consequence was that Metro Council was bound in law to act fairly and impartially, in good faith, listening to both sides. Thus, factors under which a committee operates is important.
Save Richmond Farmland Society v Richmond (Township) (1990) 3 SCR 1213 (BC)
PRINCIPLE: If the decision maker is at the legislative end of the spectrum = higher threshold to establish a reasonable apprehension of bias. Such a decision-maker is entitled to bring a closed mind to this decision-making process, provided that the closed mind is the result not of corruption, but of honest opinions strongly held. Thus, more deference to elected municipal officials, lower threshold for bias. Facts: M, an alderman, gave an interview to the press in which he allegedly said that, while he would listen attentively at the public hearing, he would not change his mind. While the public hearings were proceeding, he appeared on a television show and advocated residential zoning, stating that it would take something significant for him to change his mind though he would be interested to see what emerged in the balance of the hearings. Richmond Farmland Society petitioned for JR for an order preventing M from voting and further participation because of a disqualifying reasonable apprehension of bias. Issue: the issue raised by this appeal is that of defining what standard of fairness is owed to the participants in this hearing process. This poses the problem of defining in what capacity the council acts when conducting a zoning by-law hearing mandated by the noted section. Appellants argument: council acts in a quasi-judicial capacity. Respondents argument: council acts in its legislative capacity, stressing the high policy content of the decision to change the zoning of the lands in question. Held: Clearly, in this instance, the decision-making process is to be located at the legislative end of the spectrum. Accordingly the threshold test for establishing bias should be a very high one. In my view, Southin J.A. is correct in her view that a decision-maker is entitled to bring a closed mind to this decision-making process, provided that the "closed mind is the result not of corruption, but of honest opinions strongly held". Southin JA a closed mind (provided it is not a corrupt mind) should not disentitle an alderman from participating in the electoral process. In the final analysis, I think that the association's position is an unrealistic one in the case of a hearing that is mandated in order to consider a rezoning "initiated by Council itself and driven by policy". A community plan or a comprehensive zoning by-law represents a general statement of the broad objectives and policies of the local government respecting the form and character of existing and proposed land use (see s. 945(1) Municipal Act), and the adoption of such a measure is less a judicial process than a legislative one. The aldermen who participate in such a process should be viewed accordingly not as judges, but as elected representatives who are answerable to the concerns of their constituents.
115 1/12/2010
Laws of Canada
Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) (1992) 1 SCR 623 (Nfld.) PRINCIPLE: the further the progression of stages (i.e. investigative ... hearing), the greater the requirement for no apprehension of bias. An advocate of a particular issue is fine to sit on a board hearing the same issue when its a Public Commissioner. Nature of Admin. Board reflects amount of deference AND the composition of Boards should reflect society and may contain advocates for issues. Facts: Wells, member of utility board, goes way over the top in ranting publicly against the potential pay raise of all them fat cats of the provincial utility when this is precisely the issue he is to decide. He is a champion of consumers rights complaining that high executive salaries drives up costs of telephone services to consumers. When the hearing commenced, the appellant objected to Wells participation on the panel on the grounds that his statements had created an apprehension of bias. Issue: reasonable apprehension of bias of board member? Held: hearing proceeded unfairly and was invalid. Although Wells statements did not create a reasonable apprehension of bias at the investigative stage, they did so at the hearing stage. Composition/Function of Administrative Boards: The composition of boards can, and often should, reflect all aspects of society. Members may include the experts who give advice on the technical nature of the operations to be considered by the Board, as well as representatives of government and of the community. There is no reason why advocates for the consumer or ultimate user of the regulated product should not, in appropriate circumstances, be members of boards. No doubt many boards will operate more effectively with representation from all segments of society who are interested in the operations of the Board. Nature of Administrative Boards 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. 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. Board of Commission of Public Utilities Public Utilities Commissioners, unlike judges, do not have to apply abstract legal principles to resolve disputes. As a result, no useful purpose would be served by holding them to a standard of judicial neutrality. In fact to do so might undermine the legislature's goal of regulating utilities since it would encourage the appointment of those who had never been actively involved in the field. This would, Janisch wrote, result in the appointment of "the main line party faithful and bland civil servants". Certainly there appears to be great merit in appointing to boards representatives of interested sectors of society including those who are dedicated to forwarding the interest of consumers.
116 1/12/2010
Laws of Canada
Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. 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. o The decision-making process of this Board will come closer to the legislative end of the spectrum of administrative boards than to the adjudicative end. o It can be seen that the Board, pursuant to s. 79, has a duty to act as an investigator with regard to rates or charges and may have a duty to act as prosecutor and adjudicator with regard to these same expenses pursuant to ss. 83, 85 and 86. Bias at different stages of hearing: During the investigative stage, a wide licence must be given to board members to make public comment. As long as those statements do not indicate a mind so closed that any submissions would be futile, they should not be subject to attack on the basis of bias. o The statements made by Mr. Wells before the hearing began on December 19 did not indicate that he had a closed mind. o However, should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would indicate a closed mind. Once the matter reaches the hearing stage a greater degree of discretion is required of a member. Although the standard for a commissioner sitting in a hearing of the Board of Commissioners of Public Utilities need not be as strict and rigid as that expected of a judge presiding at a trial, nonetheless procedural fairness must be maintained. The statements of Commissioner Wells made during and subsequent to the hearing, viewed cumulatively, lead inexorably to the conclusion that a reasonable person appraised of the situation would have an apprehension of bias. o His statements give a clear indication that not only was there a reasonable apprehension of bias but that Mr. Wells had demonstrated that he had a closed mind on the subject. Summary At the investigative stage, the "closed mind" test was applicable. Once matters proceeded to a hearing, a higher standard had to be applied. Procedural fairness then required the board members to conduct themselves so that there could be no reasonable apprehension of bias. The application of that test must be flexible. It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity. This standard of conduct will not of course inhibit the most vigorous questioning of witnesses and counsel by board members. Wells' statements, however, were such, that so long as he remained a member of the Board hearing the matter, a reasonable apprehension of bias existed. It follows that the hearing proceeded unfairly and was invalid. Notes: Suppose that Wells had in fact conducted himself as Cory J suggested. That is, suppose that he made his opposition very clear and public until the stage of hearing the matter had been reached and had then shut up. Would a reasonably informed bystander have any less reason to suspect that Wells views were continuing to operate on his judgment?
117 1/12/2010
Laws of Canada
Application of test in Baker: It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. INDEPENDENCE (institutional level and independent level) Independence is the extent to which the statutory scheme renders the decision maker free from control or influence. At an institutional level independence looks at how the particular agency or board has been set up. At an independent level it is the extent to which a tribunal member is able to decide free from other members and from those who appointed them.
Sethy v. Canada (Minister of Employment and Immigration) (1988) FCA PRINCIPLE: A claimant cannot claim members of a tribunal to be bias simply on the speculation that they want to satisfy/impress the Minister in order to be reinstated. Facts: Sethy claims for immigrant status shortly after proposed legislation was introduced which created a new agency and all of the dismissed members were eligible for appointment. Sethy argues that this makes the members biased as they will be trying to please govt so they are appointed to new board. Held: no lack of independence because this assumes that the government wants to deny all immigration applications even when they have a legal claim which is not true AND Policy decision if this is upheld as lack of independence, govt would never be able to release draft legislation which is part of being open with the public and getting the public input
Principles of Independence (Valente): 1. Security of tenure - The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. (Valente, text, p. 655) 2. Financial security the essence is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence. (Valente, text , p. 657) 3. Institutional independence the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. (i.e. appointment of tribunal members) (Valente, at para. 47)
118 1/12/2010
Laws of Canada
Note: administrative tribunals are subject to Valente principals, however the test must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence will depend on the nature of the tribunal, the interests at stake, and other indices of independence (Matsqui).
Statute Charter, s.11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Alex Couture Inc. v Canada (Attorney-General) (1991) 83 DLR (4th) 577 PRINCIPLE: The test or criterion for assessing the independence of the judge or tribunal must be the one of reasonable apprehension of bias proposed in National Energy Board (Le Dain J). The test for institutional impartiality is the same as the test adopted in the Valente case with respect to the issue of judicial independence, that is the apprehension of an informed person, viewing the matter realistically and practically, and having thought the matter through. The fact that a judge is part-time does not in or of itself raise a reasonable apprehension of bias. However, the activities in which a judge engages when he is not sitting may give rise to such an apprehension. Held: The Competition Tribunal therefore meets all the requirements of the constitutional guarantee of an independent and impartial tribunal under s.11(d). The mechanism adopted in the Act therefore ensures the right to a fair hearing in accordance with the principles of fundamental justice so that the tribunal definitely possess all the essential attributes of an independent and impartial tribunal. Doman v British Columbia (Superintendent of Brokers) (1996) PRINCIPLE: to the extent that the commission obtains its funds from fines and awards of costs, there is at least an argument that it has a financial stake in the outcome of all of its proceedings. Canadian Pacific Ltd. v Matsqui Indian Band (1995) 1 SCR 3 PRINCIPLE: Valente principles apply to tribunal adjudicating a case. The level of independence to apply will vary according to nature of tribunal and interests at stake, i.e. property taxes = flexible approach. Reaffirms Valente test of 3 indicators. Facts: Under Indian Act, Bands have authority to determine tax on reserve. Tax regime includes a method of appeal for those who disagree with tax assessment. Matsqui band created two internal levels of appeal, which would be followed by appeal to Federal court on questions of law. Structure was such that members of appeal tribunals could be paid, but need not be. There was also no tenure of office. Dispute arose with 2 corporations that had land in the reserve and who disagreed with their tax assessment sought JR of the bylaws.
119 1/12/2010
Laws of Canada
Issue: Did the appeals tribunal lack independence? Does a reasonable apprehension of bias exist because tribunal members may not be paid, lack security of tenure, and are appointed by the Band Chiefs and Councils? Held: 5-4: the appeal tribunals lack sufficient independence following the Valente principles. In my view, even a flexible application of the Valente principles leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment bylaws, would have a reasonable apprehension that members of the appeal tribunals are not sufficiently independent. I am not saying that any one of these factors, considered in isolation, would have led me to the same conclusion. More flexible standard due to issue of property assessment not huge interests at stake. Does natural justice apply to Aboriginal affairs?: In my view, principles of natural justice apply to the bands' tribunals as they would apply to any tribunal performing similar functions. The fact that the tribunals have been constituted within the context of a federal policy promoting Aboriginal self-government does not, in itself, dilute natural justice. Application of the Valente principles: Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties. 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. o In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the Immigration Adjudicators in Mohammad), a more strict application of the Valente principles may be warranted. In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property taxes. In my view, this is a case where a more flexible approach is clearly warranted. Independence test: The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and other indices of independence, in order to determine whether a reasonable and right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable apprehension of bias on the basis that the members of the appeal tribunals are not independent. Application of the Valente principles to Matsqui Indian Band: (1) Security of tenure it is either completely absent (Siska) or ambiguous and therefore inadequate (Matsqui). The Siska Band could, if it wished, appoint tribunal members on an ad hoc basis, since there is no requirement that members be appointed for a specific term. Siska could then refuse to re-appoint members who reached decisions contrary to the interests of the band. In all cases, it would appear that tribunal members may be removed from their positions at any time by the bands, which leaves open the possibility of considerable abuse. (2) Financial security complete absence of financial security for members of the tribunals. Thus, there is nothing to prevent the Band Chiefs and Councils from paying tribunal members only after they have reached a decision in a particular case, or not paying the members at all.
120 1/12/2010
Laws of Canada
(3) Institutional independence the Siska By-law is silent on all aspects of the appointment of tribunal members. Effectively, the tribunal members must determine the interests of the very people, the bands, to whom they owe their appointments. the Chiefs and Band Councils select the members of their tribunals, in addition to controlling their remuneration and tenure. This fact contributes to the appearance of a dependency relationship between the tribunal and the band, particularly in the case at bar where the interests of the band are clearly at odds with the interests of the respondents. In fact, both the Matsqui and Siska by-laws allow the bands themselves to be parties before their respective tribunals. The respondents are thus faced with presenting their case before a tribunal whose members were appointed by the very Band Chiefs and Councils who oppose their claim. This raises a problem similar to that addressed in MacBain, supra. In that case, the Federal Court of Appeal found a reasonable apprehension of bias where the prosecutor of the human rights infringement (i.e. the Human Rights Commission) also selected the members of the panel which would adjudicate the matter. This case, though not identical, raises the similar concern that a party should not be required to present its case before a tribunal whose members have been appointed by an opposing party. Appellants argument: The appellants rely heavily on the fact that members of the appeal tribunals are required to take an oath of office that they will be impartial. This is one factor to take into account in assessing the independence of an administrative tribunal. However, the fact that an oath is taken cannot act as a substitute for financial security or security of tenure. The Valente principles are flexible in their application to administrative tribunals, but they cannot be ignored. Sopinka (dissent): I do not disagree with the Chief Justice that the band taxation tribunals must comply with the principles of natural justice, but without a clear understanding of the relevant, operational context, these principles cannot be applied. ... Case law has thus tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment. Thus, Sopinka believes that the Councils should have first actually composed the tribunals and then decide if the Valente principles were breached. Although the structure might appear to give rise to a reasonable apprehension of bias, the concerns might be laid to rest by the way in which the tribunals operate in practice. Deference to Aboriginals: Nowegijick v. The Queen (1983) 1 SCR 29 a case involving interpretation of the Indian Act tax exemption rights: It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. This principle was affirmed by La Forest J. in: Mitchell v. Peguis Indian Band (1990) 2 SCR 85 also in the tax exemption rights context: . . . it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. 2747-3174 Quebec Inc. v Quebec (Regie des permis dalcool) (1996) 3 SCR 919
121 1/12/2010
Laws of Canada
PRINCIPLE: Fixed term was sufficient to satisfy institutional independence for security of tenure. Held: court finds the way that the Rgie operated in practice led to a reasonable apprehension of bias in an institutional sense (not important). Issue: security of tenure. Fixed term met threshold: t]he minimum requirements of independence do not require that all administrative adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive. This was enough to protect the Rgie from a challenge based on security of tenure
The Standard of Review

Privative or Preclusive Clauses Reasons why legislatures in Canada have inserted privative/preclusive clauses in legislation: (1) The protracted delays that would inevitably accompany applications to the courts for judicial review to seek a second opinion on the arbitrators interpretation of the collective agreement would postpone the resolution of the grievance, to the potential detriment of the parties labour relations. And time is generally of the essence when a union is seeking certification from a labour relations board; delay often works in favour of the employer who is resisting certification by allowing the employer more time to try to persuade the employees that unionization will not serve their interests. (2) The conduct of litigation through the courts is expensive.
122 1/12/2010
Laws of Canada
(3) Administrative tribunals sometimes have been created for the very purpose of keeping the dispute out of the courts, i.e. a specialist tribunal is generally preferred to a court because its members have a better understanding of the issues. Limits of privative/preclusive clauses: Distinction between asking whether an agency has the power to decide (ultra vires) and whether it has exercised properly the decision making power that it has. The clauses cannot oust the courts right to determine whether an agencys decision was one that was within its jurisdiction. Justification by courts for not interpreting blanket preclusive clauses literally: Jacmain v Att. Gen. of Canada (1978) 2 SCR 15 The intractable difficulty is this. It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal an unlimited power to determine the extent of its jurisdiction. Also, if there was no limitation, then in effect, the tribunal would be a s.96 court. APPROACHES TO JURISDICTIONAL REVIEW The Preliminary Question doctrine The preliminary question doctrine was unsatisfactory in both theory and practice. Prior to CUPE, judicial review followed the preliminary question doctrine, which inquired into whether a tribunal had erred in determining the scope of its jurisdiction. By simply branding an issue as jurisdictional, courts could replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the matter lie in the hands of the administrative tribunal. CUPE (1979) marked a significant turning point in the approach of courts to judicial review, most notably in Dickson J.s warning that courts should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. Dickson J.s policy of judicial respect for administrative decision making marked the beginning of the modern era of Canadian administrative law (Dunsmuir 2008). CUPE did not do away with correctness review altogether and in Bibeault (1988), the Court affirmed that there are still questions on which a tribunal must be correct. As Beetz J. explained, "the jurisdiction conferred on administrative tribunals and other bodies created by statute is limited, and ... such a tribunal cannot by a misinterpretation of an enactment assume a power not given to it by the legislator". Bibeault introduced the concept of a "pragmatic and functional analysis" to determine the jurisdiction of a tribunal, abandoning the "preliminary question" theory. Jurisdiction limiting clauses are to be identified by a pragmatic and functional analysis of the statutory scheme taken on a whole, including the wording of the provision conferring jurisdiction on the tribunal, the purpose of the enabling statute, the reason for the existence of the tribunal, the expertise of its members, and the nature of the problem. The new approach would put "renewed emphasis on the superintending and reforming function of the superior courts". The "pragmatic and functional analysis", as it came to be known, was later expanded to determine the appropriate degree of deference in respect of various forms of administrative decision making. ESTABLISHING THE MODERN STANDARD OF JURISDICTIONAL REVIEW
123 1/12/2010
Laws of Canada
Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation (1979) 2 SCR 227 (NB) Facts: Strike by CUPE members at a liquor store. CUPE complained that employer violated the Public Service Labour Relations Act (PSLRA) by replacing striking employees with management contravening s.102(3). Case turned on interpretation of section 102(3) - prohibited employers from replacing striking workers or fill their position with any other employee. Employer argued that management who filled the positions were not defined as employee in the Act. Board decided in favour of union and ordered employer to refrain from using management personnel. Issue: How much deference is owed to the labour boards decision when there is a privative clause? Was the decision so unreasonable that the jurisdiction is lost? Held: When privative clause exists, the standard of review will be patent unreasonableness (more deference own by court to tribunal Decision Makers) => huge shift in Judicial Review and admin law in Canada (from correctness to patent unreasonableness). The Boards interpretation was not so patently unreasonable that the courts should interfere jurisdiction upheld, thus, not subject to JR. Must consider: privative clause, high degree of specialization of tribunal, broad scope of powers given by legislation, and the particular unique features of this labour legislation (speed) a high degree of deference to the board, however they are NOT immune from review SofR is one of patent unreasonableness. I find it difficult to brand as patently unreasonable interpretation given to s.102(3) by the Board. At minimum, the Boards interpretation would seem at least as reasonable as the alternative interpretations. Certainly the Board cannot be said to have misinterpreted the provision in question as to embark on an inquiry or answer a question not remitted to it Patent unreasonableness so unreasonable that it cannot be rationally supported by relevant legislation and demands intervention from the court. Introduced the phrase pragmatic and functional: Union des employes de service, Local 298 v Bibeault (1988) 2 SCR 1048 (Que.) PRINCIPLE: Pragmatic and functional approach is the approach now for determining whether a tribunal has jurisdiction to adjudicate an issue. Facts: School board sub-contracted janitorial services to contractor (EEs were union members). Engaged in illegal strike, government terminated employment contract and awarded it to another contractor. Employees of 1st sub-contract, argued that employer was prohibited from hiring second sub-contract and working outside provisions of 1st CBA (bound by successor provisions of statute). Are there successor rights for the 1st U? Turned on words of the statute alienation or operation. Labour Commissioner: broad reading of statue; successor rights apply. Held: The tribunal did not have authority to decide issues before it there were no successor rights. Therefore, standard of review is correctness. Beetz J.: It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error: (1) if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review. If question is within tribunals jurisdiction then standard is patent unreasonableness.
124 1/12/2010
Laws of Canada (2) if however the question at issue concerns a legislative provision limiting the
tribunals powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review. If question concerns whether tribunal has jurisdiction standard is correctness. Must therefore determine whether question at issue was within boards jurisdiction to decide. How to Determine the Tribunals jurisdiction? (Preliminary question before determining the Standard of Review) Courts should use the Pragmatic and Functional analysis to determine jurisdiction that requires looking to several factors: (1) Wording of legislation (privative clauses?) (2) Purpose of statute conferring jurisdiction (3) Reason for tribunals existence, its raison detre (4) Area of expertise of its members (5) Nature of the problem before the tribunal (law, fact, mixed) Pragmatic and Functional approach advantages: refocuses inquiry away from isolated provisions of the statute to legislative intent. better suited to jurisdictional questions than a formalistic approach because it focuses on consequences of decision and function rather than formal classification circular justification - you cant decide jurisdiction w/ lines and boxes want more nuanced approach. emphasizes processes of the superior courts and role of courts as guardian of the law. Deviations from the standard Canada (Attorney General) v Mossop (1993) 1 SCR 554 (Can.) PRINCIPLE: questions of law and jurisdiction = correctness review. Specialized tribunals must be given deference, but they have no specialized skills on questions of general law. Facts: Mossop, a federal civil servant, applied for a bereavement day of leave for work to attend the funeral of the father of his same-sex spouse. The employer refused, on the ground that the relevant provisions in the collective agreement applied only to the death of the member of an employees immediate family. This later term was defined to include a common law spouse of the opposite sex. The Human Rights Tribunal ordered the employer and the union each to pay $250 to Mossop as compensation and required the employer to make it a bereavement leave. AG applied to the Federal CA to set aside the tribunals interpretation of family status. Held: general questions of law are to be reviewed on a correctness basis. ... it must be recognized that these specialized tribunals frequently have strong privative clauses in their constituent legislation showing a legislative intention to limit judicial review. No such privative clause appears in the Canadian Human Rights Act. The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.
125 1/12/2010
Laws of Canada
Extending the reach of deference theory: statutory appeals Canada (Director of Investigation and Research) v Southam Inc. (1997) 1 SCR 748 Facts: The Competition Tribunal had to determine if mergers of newspapers significantly lessened competition. The tribunal found a substantial lessening in competition in the real estate print advertising market and ordered Southam to divest itself of one of its newspapers. Issue: whether the Federal CA erred in concluding that it owed no deference to the tribunals finding about the dimensions of the relevant market and in subsequently substituting for that finding one of its own. Ultimately, this comes down to a question about the standard of review. Held: deference was owed to the tribunal Reasonableness review. Pezim v BC (Superintendent Brokers) (1994) 2 SCR 557 Depending on how the factors play out in a particular instance, the standard may fall somewhere between correctness, at the more exacting end of the spectrum, and patently unreasonable, at the more deferential end.
Statutory right of appeal: There is no privative clause, and so jurisdiction is not at issue. The Nature of the problem before the tribunal:
In my view, the problem is one of mixed law and fact. questions of statutory interpretation are generally questions of law, but also because the point in controversy was one that might potentially arise in many cases in the future. Nova Scotia Pharmaceutical Society appellate courts should be reluctant to venture into a re-examination of the conclusions of the tribunal of questions of mixed law and fact. The words of the tribunals constituting statute: Section 13 of the Competition Tribunal Act confers a right of appeal from orders and decisions of the Tribunal: 13. (1) Subject to subsection (2), an appeal lies to the Federal Court of Appeal from any decision or order, whether final, interlocutory or interim, of the Tribunal as if it were a judgment of the Federal Court -- Trial Division. (2) An appeal on a question of fact lies under subsection (1) only with the leave of the Federal Court of Appeal. That Parliament granted such a broad, even unfettered right of appeal, as if from a judgment of a trial court, perhaps counsels a less-than-deferential posture for appellate courts than would be appropriate if a privative clause were present. However, as this Court has noted several times recently, the absence of a privative clause does not settle the question. Section 13 is not a privative clause, thus a less deferential approach is warranted. The purpose of the statute that the tribunal administers: Parliament has described the purpose of the Competition Act in the following terms: 1.1 ... to maintain and encourage competition in Canada ... The aims of the Act are more economic than they are strictly legal. The "efficiency and adaptability of the Canadian economy" and the relationships among Canadian companies and
126 1/12/2010
Laws of Canada
their foreign competitors are matters that business women and men and economists are better able to understand than is a typical judge. The purpose of the statute is economical, thus better served by business minded people than judges. Thus, better served by the appellate deference to the Tribunals decisions. The area of the tribunals expertise: Expertise, which in this case overlaps with the purpose of the statute that the Tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993) 2 SCR 316 . . . the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunals decision in the absence of a full privative clause. Even where the tribunals enabling statute provides explicitly for appellate review, as was the case in Bell Canada . . ., it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction. Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness. Expertise of tribunal = greater deference. The standard: In my view, considering all of the factors I have canvassed, what is dictated is a standard more deferential than correctness but less deferential than "not patently unreasonable". Several considerations counsel deference: the fact that the dispute is over a question of mixed law and fact; the fact that the purpose of the Competition Act is b roadly economic, and so is better served by the exercise of economic judgment; and the fact that the application of principles of competition law falls squarely within the area of the Tribunal's expertise. Other considerations counsel a more exacting form of review: the existence of an unfettered statutory right of appeal from decisions of the Tribunal and the presence of judges on the Tribunal. Because there are indications both ways, the proper standard of review falls somewhere between the ends of the spectrum. Because the expertise of the Tribunal, which is the most important consideration, suggests deference, a posture more deferential than exacting is warranted. unreasonable and patently unreasonable: The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. Spectrum of standard of review: Unreasonable Patently Unreasonable Deference if the decision is Less deference if the held to be reasonable then it decision is held to be patently Correctness No deference if the tribunal did not err and decided
127 1/12/2010
Laws of Canada
will stand.
reasonable then it will stand.
correctly then it will stand.
Rearticulating the modern standard Deciding on interpretation of a section of the Convention. Introduced 4 factors and decided mainly because it was not their area of expertise as it was international law that standard of review correctness: Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 1 SCR 982 PRINCIPLE: The ultimate question is always what the legislature intended. The case marks a point at which SCC becomes more careful when deferring expertise to tribunals. Facts: Appellant from Sri Lanka, claimed refugee status. Granted Permanent Residency. Convicted for conspiracy to traffic - 8yrs. Need IRB hearing to determine if excluded under 1F(c) of the 1951 Convn. Minister attempts to deport. Deportation of resident is conditional re: person not a Convention Refugee. IRB: not a CR (upheld at FCTJ and FCA). Issue: what is the proper standard of judicial review over decisions of the Immigration and Refugee Board? Held: correctness standard of review based on the pragmatic and functional approach. The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: "[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?" But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. Factors to Be Taken into Account: The factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four categories: (i) privative clause (ii) expertise (iii) Purpose of the Act as a Whole, and the Provision in Particular (iv) The Nature of the Problem: A Question of Law or Fact? (i) Privative clause: The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full privative clause is "one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded". Unless there is some contrary indication in the privative clause itself, actually using the words "final and conclusive" is sufficient, but other words might suffice if equally explicit. At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review.
128 1/12/2010
Laws of Canada
(ii) Expertise: Described by Iacobucci J. in Southam, as "the most important of the factors that a court must consider in settling on a standard of review". 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. o 3 indicia of expertise: knowledge of DMs, special procedure, non-judicial means of implementing the Act Bradco: "On the other side of the coin, a lack of relative expertise on the part of the tribunal vis--vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference". In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum. (iii) Purpose of the Act as a Whole, and the Provision in Particular: What is its role Policy? Interpret facts? Adjudicative? As Iacobucci J. noted in Southam, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative structure and disputesettlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. o i.e. Southam court found the aims of the Act are more economic than they are strictly legal... If Board has a role in policy development, suggests a greater degree of deference. Where polycentric purposes (balancing of multiple interests, policy issues, protection of public, choice of administrative response or remedies) weighs in favour of greater deference. (iv) The Nature of the Problem: A Question of Law or Fact?: Courts should be less deferential of decisions which are pure determinations of law. Southam, Iacobucci J., who stated: Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. o Generality of the proposition decided and a high precedential value will be factors in favour of the imposition of a correctness standard Iacobucci J. in Southam, that a determination which has "the potential to apply widely to many cases" should be a factor in determining whether deference should be shown.
129 1/12/2010
Laws of Canada
When complicated need to decide if the decision will establish a rule of wide application less deference and toward the correctness standard. Mossop In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the primary finder of fact. Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law. Application of P& F (concludes proper standard is CORRECTNESS): (1) No strong privative clause. IRPA permits appeals on any issue of general importance. Where there is an issue of general future importance, the court is invited to review. (2) Board has no relative expertise in matter of law that was at issue Only 10% of Board members are required to be lawyers Mossop and Trinity U HR matters usually seen as ones where tribunals have no relative expertise compared to the crt b/c of international instruments and the nature of the Qs. Strong leaning lately toward the correctness standard Doesnt look at practice here (constituting special panel to hear the particular case) (3) Board not responsible for policy development Given this certified Q procedure, it would go against legisl intention to show deference of IRB => looking at the regulatory nature of statutory appeal Clear that he had already decided the matter at the nature of the Q factor; its a HR interpretation Q. (4) Nature of the Question: This is a precedent setting Q of general application.
o
The Proper Standard: Correctness: In my judgment, however, applying the pragmatic and functional analysis to the Act indicates that the decision of the Board in this case should be subjected to a standard of correctness. The key to the legislative intention as to the standard of review is the use of the words "a serious question of general importance". o In short, s. 83(1) of the Act grants a statutory right of appeal based upon the criterion of "generality". Moreover, the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review here. ... the Boards expertise in the matters relating to human rights is far less developed than that of human rights tribunals. Note: is this another judgment like Mossop in that it represents an unwillingness to concede to the tribunal any deference on issues in which human rights concerns arise? Summary Pragmatic and Functional Approach: 1. Presence or absence of a privative clause or statutory right of appeal a. Privative clause is not determinative (i.e., absence not automatically correctness std., presence not automatically a P.U. std.)(Pushpanathan) b. Strong privative clause weighs in favour of greater deference. 2. Expertise of tribunal relative to the reviewing court on the issue in question (Pushpanathan)
130 1/12/2010
Laws of Canada
a. May derive from specialized knowledge of a topic, or from experience and skill in the determination of particular issues b. Relative expertise in tribunal weighs in favour of greater deference 3. Purpose of the legislation and the provision in particular; a. Where polycentric purposes (balancing of multiple interests, policy issues, protection of public, choice of administrative response or remedies) weighs in favour of greater deference (Pushpanathan) 4. Nature of the question (law, fact, mixed). a. Generality of a question to be decided is indicative of a more legal, less factual question b. Factual questions tend towards greater deference, legal questions tend towards less deference. Inconsistency: A species of Patent Unreasonableness? In the name of inconsistency, can a court quash a tribunals decision that is at odds with other decisions or jurisprudence developed by that or another tribunal even though the decision in question is not otherwise unreasonable or patently unreasonable and does not turn on an issue of jurisdiction? In short, is inconsistency of this kind a freestanding species of reviewable error or a badge of a particular kind of unreasonableness or patent unreasonableness? Domtar Inc. v Quebec (Commission dappel en matiere de lesions professionnelles) (1993) 2 SCR 756 PRINCIPLE: inconsistency is not a ground for judicial review. Facts: Lapointe, an employee of Domtar, was injured at work three days before the plant was due to be temporarily closed for two weeks over the Christmas period. Domtar offered to compensate him for 3 days rather than the 14 days of his disability. The Workers Compensation Commission agreed with the company. The appellate tribunal (CALP) disagreed and ordered Domtar to pay. The dispute turned on the interpretation of the AIAOD, s.60: The employer shall pay ... for fourteen full days following the beginning of his disability. Issue: was the tribunals decision patently unreasonable? Is the requirement of consistency a relevant factor for the courts to consider. Held: on a pragmatic and functional approach the standard of review was that of patent unreasonableness. Recognizing the existence of a conflict in decisions as an independent basis for judicial review would, in my opinion, constitute a serious undermining of those principles. The solution required by conflicting decisions among administrative tribunals thus remains a policy choice which, in the final analysis, should not be made by the courts. In my opinion, there is a real risk that superior courts, by exercising review for inconsistency, may be transformed into genuine appellate jurisdictions. Tremblay Court noted that administrative tribunals could render contradictory decisions: Ordinarily, precedent is developed by the actual decision makers over a series of decisions. The tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges.. Court is not willing to even consider inconsistency might on occasion be patently unreasonable. Patently unreasonable findings of fact
131 1/12/2010
Laws of Canada
The only judgment in which the SC has reviewed a decision for patent unreasonableness on the facts since it accepted that that standard of review applied to findings of fact as well as findings of law: Toronto (City) Board of Education v OSSTF District 15 (1997) 1 SR 487 (Ont.) PRINCIPLE: court may review the facts and on those facts, find the decision to be patently unreasonable. Important because facts are usually a matter for complete deference to tribunal. Facts: Badharia, a teacher, was not promoted by board to superintendent. He appealed to board on basis of discrimination. Appeal was not successful. He writes threatening letter, and was dismissed. Board decides dismissal was without cause and he should be conditionally reinstated (even though psychiatrists said he would continue to behave this way). He continued to send threatening letters. Issue: court must discern on facts whether or not mental condition was temporary or permanent. Held: Court decides that nature of the question (permanence of illness) is one of fact and so the board is entitled to deference and review under a patent unreasonable standard. Court holds that the Board decision was patently unreasonable because both the doctor and Badharia indicated he was unfit to teach. Testimony showed he would continue to send threatening letters. He would be unfit to be a teacher according to the code. Argument that his condition was temporary was not backed up by any reasonable evidence. When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact". o The evidence that Mr. Bhadauria's misconduct was not temporary appears to be overwhelming. Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently unreasonable. What does lead to that conclusion is that I can find no other evidence reasonably capable of supporting the conclusion that the misconduct was a momentary aberration. Rare example of the court holding a tribunal to a patent unreasonable standard AND finding their decision PU. Patent unreasonableness review of facts: look to see if the evidence is incapable of supporting the facts. All you really need is some admissible evidence on that point in order to support the boards conclusion. It does not matter which way the evidence weighs, just the presence of evidence that could rationally allow this conclusion. A finding based on no evidence is patently unreasonable, however it is clear that a court should not intervene where the evidence is simply insufficient. Dunsmuir v New Brunswick (2008) SCC 9 PRINCIPLE: the two variants of reasonableness review should be collapsed into a single form of reasonableness review. The result is a system of judicial review comprising two standards: correctness and reasonableness. PRINCIPLE: overruled Knight - Reaffirmed that office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin). PRINCIPLE: pragmatic and functional approach is now referred to as the standard of review analysis.
132 1/12/2010
Laws of Canada
Reasonableness standard: courts will give due consideration to the determinations of decision makers. Deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers. 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. Thus, the court must ask whether the tribunals decision was correct. Method for selecting the appropriate standard of review (a.k.a. the pragmatic and functional approach: Reasonableness standard: (1) The presence or absence of a privative/preclusive clause o Because a privative clause is evidence of Parliament or a legislatures intent of deference. However, the presence of a privative clause is not determinative. (2) The nature of the question at issue; o If the question is one of fact, discretion or policy, deference will usually apply automatically. o If the questions are of mixed law and fact. (3) The purpose of the tribunal as determined by interpretation of enabling legislation; o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract. (4) Expertise (in the application of a general common or civil law rule) will attract deference. o Adjudication in labour law. Correctness standard: A question of law (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker). A question of jurisdiction. o Constitutional questions regarding the division of powers (National Energy Board). o Courts must 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.). Because the phrase pragmatic and functional approach may have misguided courts in the past, we prefer to refer simply to the standard of review analysis in the future. Application of the standard of review to Dunsmuir: (1) Privative clause existed (every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court. (2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a reasonableness standard. (3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
Laws of Canada
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators. SCC Held: the appropriate standard is reasonableness. Was the adjudicators interpretation unreasonable?: SCC Held: the adjudicators interpretation was unreasonable. The reasoning process of the adjudicator was deeply flawed. The approach to the dismissal of public employees: The starting point should be to determine the nature of the employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies (overruling Knight on this). HOWEVER, there may be occasions where a public law duty of fairness will still apply: (1) Where a public employee is not protected by a contract of employment (judges, minister and others who fulfill constitutionally defined state roles (Wells) or the terms of appointment expressly provide for summary dismissal or are silent. (2) The dismissal of a teacher could only take place if the teacher was given three weeks notice of the motion to dismiss (Malloch UK). Conclusion: Facts: D was employed by the Department of Justice for the Province of New Brunswick. He held a position under the Civil Service Act and was an office holder at pleasure. His probationary period was extended twice and the employer reprimanded him on three separate occasions. Eventually, his employer sent him a formal letter of termination, cause was explicitly not alleged, and given four months pay in lieu of notice. Dunsmuirs argument: no reasons given for dismissal, no opportunity to respond to the concerns, termination was without notice, and the length of the notice period was inadequate. SCC Held: Since the appellant was a contractual employee, it was not necessary to consider any public law duty of procedural fairness. Contract law applied. Thus, the adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down.
The Jurisdiction of Tribunals and the Constitution

Paul v. British Columbia (Forest Appeals Commission) (2003) SCJ No.34 PRINCIPLE: To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law. Facts: Appeal by the B.C. Attorney General and the Ministry of Forests from a decision of the B.C. Court of Appeal that s. 91(24) of the Constitution Act, 1867 precluded Parliament from conferring jurisdiction on the Forest Appeals Commission to determine questions of aboriginal title. The Commission decided that it had jurisdiction to determine aboriginal rights issues, and
134 1/12/2010
Laws of Canada
the B.C. Supreme Court upheld this finding. A majority of the Court of Appeal set aside the decision. Held: Appeal allowed. The province could give an administrative tribunal the capacity to consider questions of aboriginal title in the course of carrying out its mandate. It was constitutionally permissible for a valid provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The Commission's enabling legislation did not attempt to supplement or amend the constitutional or federal rules regarding aboriginal rights. To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law. The Commission had the power to decide questions of law, and nothing in the Code rebutted the presumption that the Commission could decide questions of aboriginal law. Nova Scotia (Workers' Compensation Board) v. Martin (2003) SCJ No.54 PRINCIPLE: Administrative tribunals have jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of law. Facts: Laseur and Martin sustained workplace injuries and were unable to return to work due to chronic pain. The Board denied their applications to receive further benefits, and they appealed to the Workers' Compensation Appeals Tribunal, arguing that section 10B of the Workers' Compensation Act violated section 15(1) of the Charter by limiting compensation for chronic pain to four weeks. The Appeals Tribunal found that the chronic pain provisions violated the Charter. The Board appealed the Charter finding, and Laseur and Martin cross-appealed. In allowing the Board's appeal, the Court of Appeal held that the Appeals Tribunal did not have the jurisdiction to decide whether provisions under the Act and Regulation were constitutional. Held: The Appeals Tribunal had jurisdiction to interpret and apply the Charter with respect to the Act and Regulation. Administrative tribunals had jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of law. Pursuant to the Act, the Appeals Tribunal had jurisdiction to decide questions of law, and therefore it had the jurisdiction to decide issues of constitutionality. Constitutional Challenges and Remedies Weber v Ontario Hydro (1995) 2 SCR 929 Issue: whether a labour arbitrator was intended to be included in the expression court of competent jurisdiction in s.24(1) of the Charter. can an arbitrator award a remedy for a Charter breach? Held: It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought. Iacobbuci (dissenting): no, because arbitrators are not courts of competent jurisdiction. s.24(1) of the Charter does not include tribunals. There is a distinction between the power to find a Charter violation and actually providing a remedy for the Charter violation. In order to award a Charter remedy, the arbitrator must have specific jurisdiction to do so. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained.
135 1/12/2010
Laws of Canada
A tribunal such as a labour arbitrator is ill-equipped to deal with the requirements of a s.24(1) application. Structurally, it has not been designed to hold a hearing requiring evidence of a constitutional violation. Tribunal does not have the same guarantee of independence as a court. Although I do not dispute the ability of arbitrators to decide Charter issues, this ability does not include the ability to grant Charter remedies. I draw the analogy with this Court's interpretation of a tribunal's power under s. 52(1). There a tribunal can only not apply a law which violates the Charter; it cannot declare that provision invalid generally. In short, it cannot remedy the fact that the law is invalid, it can only remark that it is so. In the same way, a tribunal may determine if behaviour violates the Charter; however, it cannot remedy that fact. To return to the present appeal and the specific question of the arbitrator's jurisdiction over the remedy, my colleague is of the view that once a tribunal has the ability to grant the type of relief sought, it can award that relief in any context, including that of remedying Charter violations. I have difficulty accepting this view. ... Accordingly, in this case, although a labour arbitrator is empowered to grant remedies authorized by the OLRA, that does not, of itself, confer a jurisdiction to grant Charter remedies. Cuddy Chicks ... while the board had jurisdiction to entertain the constitutional challenge to the validity of the relevant provision, it can expect no curial deference with respect to constitutional decisions. HOWEVER Suresh SC recognized the need for judicial deference to agency findings of constitutional or Charter facts. Not only did the court accept the need for deference to the ministers factual determinations on which the existence of the constitutional claim depended but it also seemed to suggest that the weight to be given to the Charter right in question in the principles of fundamental justice assessment was also not a matter for the courts.
The Use and Misuse of Discretion

The 1968 Report of the Royal Commission, An Inquiry into Civil Rights, chaired by J.C. McRuer grudgingly accepted the need for discretion in the modern state. In Discretionary Powers, Galligan said: It has become obvious to all that discretion is the very life blood of the administrative state.
ABUSE OF DISCRETION as a ground of judicial review The decision maker may have acted in bad faith, wrongfully delegated its powers, fettered its exercise of discretion by laying down a general rule and not responding to individual situations,
136 1/12/2010
Laws of Canada
or acted under the dictation of another. Another far more common ground of judicial review of discretion is the agency has tried to achieve some purpose not contemplated by its grant. CUPE Dickson J citing with approval Nipawin: basing the decision on extraneous matters and failing to take relevant factors into account were examples of an exercise of an agencys power that would take it outside its jurisdiction and the protection of a preclusive clause. Baker H&C reasons were properly considered. Suresh v Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can.) Facts: one of the issues at stake here was a ministerial discretion to deport someone who was a danger to the security of Canada even where there was a possibility that that persons life, liberty and security of the person would be in serious jeopardy in the country of his origin by reason of the serious prospect of torture. Issue: what standard of review should be given to the Ministers decision on whether the refugee faces a substantial risk of torture upon deportation. The Ministers decision must ultimately conform to s.7 of the Charter. Held: We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable -unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures -- it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution. Immigration Act s.53(1) ... no person who is determined under this Act or the regulations to be a Convention refugee, ... shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ... (b) the person is a member of an inadmissible class ... and the Minister is of the opinion that the person constitutes a danger to the security of Canada. Standard of review: Ultimate question is always what the legislature intended (Pushpanathan). Here the language of the Act (the Minister must be of the opinion that the person constitutes a danger to the security of Canada) suggests a standard of deference. (1) The presence or absence of a clause negating the right of appeal: The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister's s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2). o Thus, suggesting deference. (2) the relative expertise of the decision-maker; The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker "[t]he fact that the formal decision-maker is the Minister is a factor
137 1/12/2010
Laws of Canada
militating in favour of deference". The Minister, as noted by Lord Hoffmann "has access to special information and expertise in ... matters [of national security]". (3) the purpose of the provision and the legislation generally; and The third factor again favours deference. This purpose, as discussed in Pushpanathan, is to permit a "humanitarian balance" of various interests -- "the seriousness of the danger posed to Canadian society" on the one hand, and "the danger of persecution upon refoulement"on the other. Again, the Minister is in a superior position to a court in making this assessment. (4) the nature of the question Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, the s. 53(1)(b) danger opinion "involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules", suggesting it merits a wide degree of deference. These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision. whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. It may also involve a reassessment of the refugee's initial claim and a determination of whether a third country is willing to accept the refugee. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister's decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors. Human Rights issues and deferential standard: It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests. However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter. IRRELEVANT CONSIDERATION as a ground of judicial review Taking account of irrelevant factors: Re Sheehan and Criminal Injuries Compensation Board (1975) 52 DLR (3d) 728 Facts: The respondent an inmate at the Kingston Penitentiary, had claimed compensation for injuries suffered during a riot at the jail. The Board had dismissed the claim, saying it considered
Laws of Canada
the following circumstances relevant -- (1) if the respondent had not committed criminal acts himself he would not have been in the place where he was injured; (2) the injuries were suffered in a federal prison, outside the control of the Ontario government; (3) the respondent had not made any other attempts to obtain compensation. Held (first court): The appeal was allowed. I have come to the conclusion that none of the three circumstances considered by the Board were relevant. I conclude that the Court may properly review the decision of the Board in this case and that the matters considered by the Board were not relevant. In the circumstances the decision of the Board will be quashed and the matter remitted to the Board for consideration. Held (Ontario CA): In my opinion the Divisional Court erred when it considered that its task was to determine if the said circumstances were relevant. In the light of the discretion vested in the Board to have regard to all circumstances which it considered relevant so long as it acted in good faith, the decision of the Board as to what considerations are relevant are unchallengeable Law Enforcement Compensation Act (1970) 5. In determining whether to make an order for compensation and the amount thereof, the Board may have regard to all such circumstances as it considers relevant, including any behaviour of the victim that directly or indirectly contributed to his injury or death. While the foregoing might have been a proper expression of the powers of the Board had it been directed to regard all relevant circumstances, by s. 5 the Board was given the right and duty to make compensation when, in its discretion, it deemed fit to do so and in reaching its decision the Act states that the Board is to be the judge of that which is relevant. With respect I do not construe the Act as authorizing the Court to review the correctness of the Board's decision made within the scope of its authority. The Legislature has expressly assigned to the Board and not to the Courts the discretionary authority to grant or deny compensation. WRONGFUL PURPOSE as a ground for judicial review Wrongful purpose: Shell Canada Products Ltd. v Vancouver (City) (1994) 1 SCR 231 (BC) Facts: In 1989 the Council of the City of Vancouver passed two resolutions: first, not to do business with Shell Canada and Royal Dutch/Shell as long as Shell continues to do business in South Africa; and second, to declare the City a Shell Free zone until Shell divests from SA. Issue: was the Council acting for improper purposes? Held (majority): the Vancouver Charter places territorial limits on the Council and the Councils purpose was ultra vires the Charter. Any powers implied from their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality. Court took a narrow construction of municipal discretion. ... the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires. I therefore agree with the trial judge that the respondent was seeking to use its powers to do business "to affect matters in another part of the world", a purpose which is directed at matters outside the territorial limits of the City.
139 1/12/2010
Laws of Canada
So far as the purpose of the Vancouver Charter is concerned it is perhaps best expressed in s. 189, which provides that "Council may provide for the good rule and government of the city". In this regard its purpose does not differ from the purpose generally of municipal legislation which, as stated above, is to promote the health, welfare, safety or good government of the municipality. This places a territorial limit on Council's jurisdiction. McLachlin J (dissenting): I am satisfied that in any event, the motives of the City of Vancouver cannot be said to have exceeded the powers which the Legislature has conferred on it. I cannot agree with my colleague that the phrase "good rule and government of the city" places a territorial limit on the factors which Council may consider in making decisions which are within its express power to make. The phrase is capable of encompassing matters outside the City's boundaries, provided they relate to the welfare of its citizens. Are the resolutions subject to judicial review: The assumption that government procurement is immune from judicial review rests on the traditional view that contract law is wholly in the realm of private law Against allowing judicial review of the purchasing power of governments is the argument that these are matters of private law. According to the private law of contract, each person, individual or corporate, has the right to contract with whom it chooses, and on the terms it chooses. On balance, it is my view that the doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality's power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review. The proper scope of judicial review: Two different approaches to construction of municipal powers: (1) the narrow construction: Merritt v City of Toronto Municipal corporations, in the exercise of the statutory powers conferred upon them to make by-laws, should be confined strictly within the limits of their authority, and all attempts on their part to exceed it should be firmly repelled by the Courts. (2) the liberal approach: Re Howard and City of Toronto What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limits of its powers, is not open to review by the Court. Kuchma (SCC) Upon the question of public interest, courts have recognized that the municipal council, familiar with local conditions, is in the best position of all parties to determine what is or is not in the public interest and have refused to interfere with its decision unless good and sufficient reason be established. The weight of commentary tends to be critical of the narrow approach, supporting instead a more generous, deferential approach: (i) it adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them. (ii) aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation.
140 1/12/2010
Laws of Canada
(iii) keeps with more flexible and deferential approach the Court has adopted in cases of JR of administrative agencies. Were the resolutions beyond the Citys powers?: "the City has full power to engage in any commercial, industrial or business undertaking": s. 137(1). The Resolution not to do business with Shell until it stops trading with South Africa, clearly can be defended under the power of the City to engage in commercial and business activities. The City needs fuel. Fuel may be purchased from a variety of firms. This means that the City must of necessity discriminate between suppliers of fuel. The City and its agents doubtless make thousands of similar decisions each month, without any suggestion that the City must justify the reason why it chooses one firm over another. Thorne's Hardware Ltd. v. The Queen "governments may be moved by any number of political, economic, social or partisan considerations". He went on to state that as a general rule the motives of governments enacting subordinate legislation should not be inquired into. Mounterbrooke Inc. v. City of Montreal it has been held that in the absence of fraud, corruption or oppression, courts will not look behind a by-law to learn the motive. The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs, but also the psychological welfare of the citizens as members of a community who have an interest in expressing their identity as a community. Our language recognizes this: we speak of civic spirit, of city pride. The Council is to "provide for the good rule and government of the city": s. 189. These words are not restricted to the provision of services. They are broad enough to encompass expression of community concerns about what is happening outside the community's boundaries. Collective expression through elected representatives may be seen as a proper function of "government". FAILURE TO CONSIDER RELEVANT FACTORS Failing to take into consideration a relevant factor is equally a basis for impugning the vires of an agencys exercise of discretion, although there is some doubt its scope. An exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enabling statute expressly, or more usually, impliedly, obliged it to consider. In the aftermath of Baker, it is now clear that international law (including unincorporated ratified treaties) will have to be taken into account in the exercise of statutory and prerogative powers. Oakwood Developments Ltd. v Rural Municipality of St Francois Xavier (1985) a municipality had refused a developer permission to subdivide land for residential development because of the danger of flooding. However, the council had refused to read an engineers report that described measures that could be taken to avoid the problem. Held: the refusal of permission in this case was ultra vires because the municipality had failed to consider evidence that was highly material to its legitimate concerns. DISCRETION AND THE CHARTER, underlying principles of the constitution, and international law
141 1/12/2010
Laws of Canada
Slaight Communications Inc. v Davidson (1989) 1 SCR 1038 PRINCIPLE: an adjudicator may order a remedy which violates the Charter, but saved by s.1 Facts: Q107 employee, Davidson, was dismissed and it was held to be similar to a wrongful dismissal. The employer did not like him. The adjudicator ordered that the employer pay compensation (positive order) and write a letter which only stipulates facts (negative order), such as Davidsons sales record in order to protect him from the employer writing something bad about Davidson. Issue: does the arbitrators remedy violate the Charter? Held: In conclusion, I am of the opinion that both of the adjudicator's orders at issue (the positive order and the negative order) infringe s. 2(b) but are saved by s. 1. Lalonde v Ontario (Commission de restructuration des services de sant) (2001) 56 OR (3d) 505 PRINCIPLE: unwritten constitutional principles must be considered by Commissions. Facts: As part of massive restructuring of health care services in Ontario, the Commission ordered the Montfort Hospital in Ottawa to downsize dramatically. The hospital, Ottawas only francophone hospital, sought JR of this decision alleging that the order violated an unwritten principle of the Constitution, the protection of minorities (as stated in Secession Reference). Issue: did the Commissions omission to consider the protection of minorities amount to a violation? Held: We conclude, accordingly, that the Commission's directions must also be quashed on the ground that, contrary to the constitutional principle of respect for and protection of minorities, in the exercise of its discretion, the Commission failed to give serious weight and consideration to the linguistic and cultural significance of Montfort to the survival of the Franco-Ontarian minority. Where constitutional and quasi-constitutional rights or values are concerned, correctness or reasonableness will often be the appropriate standard (Baker). If the values of an international convention not adopted in statute form by Parliament have a bearing on the validity of the exercise of ministerial discretion (Baker), it must be the case that failure to take into account a fundamental principle of the Constitution when purporting to act in the public interest renders a discretionary decision subject to judicial review. The Commission was required by statute to exercise its powers with respect to Montfort in accordance with the public interest. In determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities. Note: the court emphasizes the case involved review of administrative discretion, not a challenge to a statue. Could the Ontario government achieve the same result by legislating the closure? Would review have also been available if the Commission took notice of the protection-ofminorities and still arrived at the same conclusion of closure? Governor or Lieutenant Governor in Council Thornes Hardward Ltd. v Canada (1983 1 SCR 106 (Can.)
142 1/12/2010
Laws of Canada
Facts: The appellants attack the Order in Council expanding the harbour limits on the basis that it was passed for the sole purpose of increasing the National Harbour Boards revenue. They say this amounts to bad faith on the part of the Governor in Council. They also argue that harbour expansion for this reason is not within the scope of jurisdiction conferred on the federal Cabinet by s.7(2) of the Act and is therefore ultra vires. Held: The appeal was dismissed. The possibility of striking down an order-in-council on jurisdictional or other compelling grounds remained open, but it would take an egregious case to warrant such action. This was not such a case. The Governor in General clearly had authority under s. 7(2) of the National Harbours Board Act to extend the limits of a harbour by order-incouncil. It was neither the duty nor the right of the courts to investigate the motives which impelled the federal cabinet to pass the order-in-council. In any event, the government's reasons for expanding the harbour were in the end unknown. The appellants' "bad faith" argument was therefore rejected. - Neither was the order-in-council ultra vires the powers granted by s. 7(2). Minister and Independent Agencies Cox v College of Optometrists of Ontario (1988) 52 DLR (4th) Facts: Dr Cox, an optometrist, appeals against a decision of the discipline committee of the college which found him guilty of professional misconduct contrary to s.25(3)(d) of the Health Disciplines Act. The charges involved his rental arrangements and association with optical company. He applies by way of JR for an order quashing those provisions of the regulation on the grounds they are not authorized by the statute. Held: There is no basis for the court to interfere with the expertise used by the college in the exercise of the authority delegated to it by the Legislative Assembly. The rental arrangement, whether offering a higher or lower rent in order to recommend customers, was not normal. Thus, no need to prove if actual referring of customers was done in order to increase business. The statute and regulations: (j) prohibiting the practice of optometry where there is a conflict of interest and defining the activities that constitute a conflict of interest for the purpose; 25(3) It is a conflict of interest for a member where a member or a member of his family, (d) rents or uses any premises from a vendor of ophthalmic appliances, ... except at a rent normal for the area in which the premises are located and the amount of the rent is not related to the referral of patients to the landlord or to the referral of patients by the member or the amount of fees charged by the member.
The Standard of review: The test on the judicial review application to quash the regulation involves some degree of deference to the professional expertise and experience of the college, to whom the Legislative Assembly delegated the task of defining professional conflict of interest. Unless it can be said that no reasonable person could conclude that the prohibited private interest could influence the optometrist's professional conduct, then the college is within its rights.
143 1/12/2010
Laws of Canada
The test is this: can it be said that no reasonable person could conclude that the prohibited private interest could influence the optometrist's professional conduct? o ... it cannot be said in this case that no reasonable person could conclude that a non-arm's length rental relationship with an ophthalmic dispenser would be capable of influencing an optometrist's professional conduct. The evidence was overwhelming, and uncontradicted, that the rent was not normal for the area. While there was no suggestion that it was higher or lower than normal it was totally out of the ordinary to have exclusive use of a personal office and access to all the supporting equipment, facilities and staff, on a per diem rate based only on the days of actual use. The regulation makes it a conflict of interest where a member "rents or uses any premises from a vendor ... except at a rent normal for the area ...". Those words are wide enough to include not only the dollar amount of the rent but the entire rental arrangement.
Unreviewable discretionary power? Prerogative powers and non-justiciability Operation Dismantle Inc. v Canada (1985) 1 SCR 441 (Can.) PRINCIPLE: prerogative powers are reviewable. Facts: Canada allowed the US to test armed missiles in Canadian airspace. Operation dismantle Inc. sues govt arguing that the decision was invalid because it violated their s.7 rights, Canadas participation in program makes it more likely that we get attacked or involved in a nuclear war. Held: argument failed because it is based on too many contingencies and difficult to prove link between the s.7 danger and the testing program => no reasonable cause of action. Not a matter for the court, it involves moral and political considerations. It is precisely this link between the Cabinet decision to permit the testing of the cruise and the increased risk of nuclear war which, in my opinion, they cannot establish. Prerogative powers are reviewable: No reason to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, therefore they both fall within the ambit of the Charter. Prerogative powers are subject to the Charter. Non-justiciability: ... these kinds of issues are to be treated as non-justiciable not simply because of evidentiary difficulties but because they involve moral and political considerations which it is not within the province of the courts to assess. it seems to me, there must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face. ... This is not to say that every governmental action that is purportedly taken in furtherance of national defence would be beyond the reach of s. 7. If, for example, testing the cruise missile posed a direct threat to
144 1/12/2010
Laws of Canada
some specific segment of the populace -- as, for example, if it were being tested with live warheads -- I think that might well raise different considerations. the facts alleged in the statement of claim, even if they could be shown to be true, could not in my opinion constitute a violation of s. 7.
Black v Canada (Prime Minister) (2001) 54 OR (3d) 215 (CA) PRINCIPLE: the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals (HL, Civil Serivce Unions). Confirms prerogative powers subject to JR. Facts: Conrad Black seeks JR of PMs recommendation to the Crown not to grant him peerage. Held: peerage does not affect ones rights, it is a gift from the UK government, therefore the decision is not reviewable/not justiciable even if there is evidence that PMs decision was influenced by bias or discrimination. confirms that prerogative powers are reviewable and we wont distinguish laws regarding their source. o Q becomes does the prerogative right in question effect individual rights? the source of the power, statute or prerogative, should not determine whether the action complained of is reviewable. o if the subject matter is amenable to the judicial process it is reviewable and it is amenable to the judicial process if it affects the rights of individuals. results oriented decision ignored damage to his reputation. the PMs exercise of the honours prerogative is not judicially reviewable; refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake; No Canadian citizen has a right to an honour nor a legitimate expectation of receiving an honour. Public Interest Immunity: Cabinet Documents, the Common law and legislation Claims to public interest immunity are subject to JR. The judge will balance the public interest in maintaining the confidentiality of the document against the public interest in the due administration of justice. In the absence of fraud or some other extreme circumstances, the governmental power to decide whether to allocate public money to fund projects or organizations seems not to be subject to review in the courts at all. Challenging the legality of government funding decisions by invoking the Charter: Native Womens Assn. Of Canada v Canada (1994) 3 SCR 637 (Can.) the appellants had refused direct funding by the government to enable them to participate effectively in the process of constitutional consultation that preceded the Charlottetown Accord. Argued infringement of s.2(b) and the equality right guaranteed by s.15, since the govt had provided funding to maledominated aboriginal organizations, and its guarantee of non-discrimination on the ground of gender. Held: it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, the Government is also required to fund a group purporting to represent the opposite point of view. ... the ramifications on government spending would be far reaching indeed.
145 1/12/2010

NCA Administrative Law Outline

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

NCA Administrative Law Outline

Enviado por

Direitos autorais:

Formatos disponíveis

Laws of Canada

Once over threshold, you get procedural protections of both:

The Administrative State and the Rule of Law

Certiorari to quash or set aside a decision.

Prohibition to order a tribunal not to proceed in a matter.

Mandamus to order the performance of a public duty.

The Constitutional Basis of Judicial Review

Statutory Removal of Judicial Review (CANNOT OUST JURISDICTION OF COURT)

The Role of Judicial Review Baker (1999)

Relevant Statutory Provisions and Provisions of International Treaties

The Ministerial Guidelines

Fairness: The Threshold

CABINET AND CABINET APPEALS

DECISIONS AFFECTING RIGHTS, PRIVILEGES, OR INTERESTS

(2) Nature of report and whether it is made public

Sources of Procedural Protections

Summary of Liberty/Security interest:

The Choice of Procedures

Specific Content Issues

the basis of an expectation of confidentiality.

Bias and Lack of Independence

The Standard of Review

reasonable then it will stand.

correctly then it will stand.

The Jurisdiction of Tribunals and the Constitution

The Use and Misuse of Discretion

Você também pode gostar