1

Prepared using Syllabus for Jan. 2012 Administrative Law Summary 1. Generally a. Three things to figure out: where do I go, what do I complain about, what do I ask for- forum, ground, remedy i. Forum will typically be resolved by statute- the statute must create this statutory appeal possibility and set out the criteria by which an appeal can be brought ii. Grounds are usually procedural fairness (such as reasonable apprehension of bias) and substantive unfairness (something about the outcome of the decision that suggests the decision-making body acted inconsistently with the law that created it- interpreted their law in an unreasonable way, or making a decision in a capricious way, failing to take facts or evidence into account) iii. Remedy: in administrative law, under judicial review, you do not get a new outcome on judicial review, the best you can get in that sense is a new hearing at the forum of first instance- historically the prerogative writs: 1. Certiorari: to quash or set aside a decision 2. Prohibition: to order a tribunal not to proceed 3. Mandamus: to order the performance of a public duty 4. Habeas corpus: to order the release of the unlawfully imprisoned

2. Administrative Appeals v. Judicial Review a. Administrative Appeals (or statutory right of appeal)
i. Reconsideration 1. Some enabling statutes specifically provide tribunals with the ability to reconsider and rehear decisions they have made -- usu where a particular tribunal has ongoing regulatory responsibility over a particular domain. 2. Absent express statutory authority, however, for policy reasons that favour finality of proceedings, a tribunal cannot reconsider or alter a final decision made within its jurisdiction. i. Appeal mechanisms either to internal administrative appellate bodies or to courts are the norm scope of a possible appeal is confined to what the statute expressly provides. 1. Is an appeal available as of right, or is leave required? If leave is required, who may grant it? (Reza) b. Judicial Review i. Judicial review is discretionary 1. Judicial review is about inherent jurix of courts to oversee and check administrative (that is, executive) action in the interest of the rule of law. a. Judicial review is the review of executive action beyond what the executive itself provided for. Thus, only on judicial review will courts investigate a tribunal's procedural fairness or the alleged bias of its members. ii. Is Judicial Review Available? 1. Only for public body- Judicial review is available to check executive action. Therefore, only public bodies can be subject to judicial review. a. A body or tribunal will be subject to public law, and therefore judicial review, if it is part of the machinery of government: Martineau v. Matsqui Institution (SC, 1980) b. McDonald v. Anishinabek Police Service et al. (2006, OSCJ, Div. Ct.)- Ct finds that the Police Chief's actions (and powers to hire and fire which were derived from contract and not from statute) are public enough to permit judicial review-supervision of the machinery of government. . If the body is fulfilling a public law function, then the body in question is subject to judicial review. A body will be fulfilling a public law function if it is exercising public law functions or if the

2
exercise of its functions has public law consequences. Pre-Dunsmuir

c. Various factors can be used to distinguish domestic (private) tribunals from public
bodies (McDonald): i. the source of the board's powers; ii. the functions and duties of the body; iii. whether government action has created the body, or whether, but for the body, the government would directly occupy the field; iv. the extent of the government's direct or indirect control over the body; v. whether the body has power over the public-at-large; vi. the nature of the body's members and how they are appointed; vii. how the board is funded; viii. the nature of the board's decisions (and whether it seriously affects individual rights and interests); ix. whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; and x. the body's relationship to other statutory schemes or other parts of government

2. Standing public interest standing if not party 3. Deadlines e.g. Fed Ct Act gives 30 days after decision 4. Alternate remedies- he or she has exhausted all other adequate means of recourse for
challenging the tribunal's actions. (exhaustion) a. Convenience of judicial review as opposed to alternate forms of relief also available b. An alternative form of appeal will not be inadequate based only on unproven allegations that an appellate tribunal will suffer from the same errors or biases as the original tribunal: Harelkin. c. Harelkin v. University of Regina (1979, SCC) i. A decision is made in the department of social work to kick him out of the program: the bad grades are likely defensible, but the reason of being neurotic is likely not. The two main issues before the SCC are whether the claimant had a right to be heard by the committee of the university council, and whether the discretionary remedies should be refused because the claimant should have pursued his right of appeal to the university senate before resorting to prerogative writs. ii. Ct: committee had a statutory duty to hear the claimant, which duty was not complied with- bad procedure below. But applications for certiorari and mandamus should not have been allowed, as the claimant ought to have exercised better alternative remedy in his right of appeal to the senate committee. iii. Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but, in each case, the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy d. Canada Trust v. Ontario HRC (1990)- Allows P to come directly to ct to complain abt trust which is only avail to Christians of Br. nationality, even though didnt exhaust HRC grounds. This isnt discrimination case- its trust case HRC doesnt have power to change trust so resort to ct necessary. Question of law- no facts in dispue, and mechanism under Trustee Act to come to ct.

i.

Bhadauria v Board of Governors (SC 1981)- The Ontario Human Rights Code foreclose any civil action based directly upon a breach thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code. The code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

3
5. Other factors: a. premature interim judicial review fragments proceedings- but prelim ruling can be reviewed on showing of special circs that show review cant wait b. where the issues are moot c. impossibility - where present circumstances make granting the remedy impossible d. harmless error- if the court believes the tribunal's error did not affect its overall conclusion e. Unclean hands- and where the party making the application does not come before the court with clean hands. f. Delay and acquiescence

3.

Provincial vs. Federal a. Federal Court Act 1970 assigned virtually exclusive review authority over affairs of fed. statutory bodies, sense that 10 superior cts adjudicating in judicial review proceedings involving fed authorities would yield conflicting results. i. S. 2 of Act defines federal board, commission or tribunal expansively but does not reach all bodies that ower existence to federal statutesfed ct has no inherent jurix- depends on specific conferral in Fed Ct Act or in enabling legislation ii. Exclusion for bodies or people appointed under law of a province iii. Allowance for provincial habeas review for detentions by fed statutory authorities

b. Concurrent jurix- Reza v. Canada (SC 1994) i. Reza made refugee claim under Immigration act, 2-member panel decided didnt have credible basis
for claim, Federal Ct of Appeal denied Reza leave to apply to have deportation set aside. Then Reza applied to Ontario Ct (provincial) for declaratory relief asserting that Immigration Act contrary to Charter, esp. provision that leave be obtained to seek judicial review of deportation order by fed. ct. Lower ct stayed Rezas application, holding that ct clearly had jurix to grant relief soughtthe issue is whether the ct may decline to exercise its jurix . Then held that jurisprudence and logic would support that this ct leave the review of immigration matters with fed court. in absence of showing that avail review process is less advantageous than provincial habeus jurix. but decision reversed by Ontario Ct Appeals, which said cts may decline to entertain habeas when applicant is attempting to bypass a statutory scheme, but here issue is not immigration case but const one and no reason to defer to expertise offed ct. P entitled to avail himself of juridical advantage he would enjoy in Ontario ct. ii. Ct holds lower ct properly exervised discretion b/c Parliament had created a comprehensive scheme of review of immigration matters and Fed Ct was an effective an appropriate forum. 4. S96 Courts a. S.96 provides that the federal exec shall appoint justices of the countrys superior, county and district courts (s.96). Provinces-establish these courts in their respective jurisdiction (s.92-14). i. Federal Courts Act- trial level federal ct of Canada ii. Supreme Court Act (1875)- created Sup Ct

b. Cts developed 3-pt test to determine whether or not admin tribunal is acting like S96 Ct (Re Residential
Tenancies Act, 1979): i. Historical inquiry whether the impugned power broadly confers to a power exclusively exercised by a superior, district, or county court at the time of Confederation ii. Is the impugned power a judicial power, as opposed to an administrative or legislative power? (A judicial power is one where there is a private dispute between parties, adjudicated through the application of a recognized body of rules, and adjudicated in a manner consistent with fairness and impartiality.) iii. Has the power in its institutional setting changed its character sufficiently to negate broad conformity

4
with superior, district, or county jurisdiction? 1. E.g. labour relations- court-like adjudicative functions of labour relations bd was ancillary to a broader administrative and policy-making role as administrator

c. Provincially constituted statutory tribunals cannot constitutionally be immunized from review of decisions for
jurisdictional questions. Crevier v. Quebec (1981) The trend in the case law is that, implicit in ss. 96-100, there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality. i. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final. SCC overturns. Procedural Fairness 1. Sources

a. Common law presumption that the legislature intended procedural protection to apply i. Cts require clear statute to limit or oust procedural protection
b. Other sources i. Enabling statute ii. Subordinate legis (regs and rules) iii. Policies e.g. ministerial guidelines in Baker iv. General provincial procedural statutes v. Charter provides a constitutional backstop for procedural protection, but applies in a narrower range of circumstances than the common law. 1. s. 7 applies only in the context of deprivation of life, liberty, and security of the person, so ordinary legislation could limit or even oust the application of the duty of fairness to the licensing scheme without infringing the Charter. 2. Where s. 7 is found to have been infringed, though, it is unlikely that legislation limiting or ousting the duty of fairness will be considered justified under s. 1: Charkaoui (2007)

2.

Ex post - emergencies a. Sometimes procedural requirements cannot be met without causing harm of some sort- courts may defer compliance with the duty of fairness protections until after the relevant decision has been made. b. Relief sought is usu interim only c. R v. Randolph (1966)- withdrew provision of mail b/c believed that mail was bein used for criminal purposes, subsequent hearing allowed.

3. Only decisions not legislation i. Final dispositions of a matter, and only rarely will it apply to investigations or advisory processes that
do not have any direct consequences

ii. Not legislative decisions or functions

1. Reference re: Canada Assistance Plan (1991) iii. Cabinet and ministerial decisions 1. Are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty: e.g. Inuit Tapirisat. iv. Subordinate legislation may or may not be covered by the legislative exemption 1. Political approval for such legislation is subsidiary in nature, and thus the concern about interference in the political process is lessened, especially where the law-making authority has been delegated to actors outside the political process altogether, for example, independent tribunals. 2. Substance is more important than form where the legislative exemption is concerned: Homex Realty.

5 3. Policy decisions that are covered by the legislative exemption, as a purely ministerial
decision, on broad grounds of public policy, will typically afford the individual no procedural protection: Knight v. Indian Head.

v. Canada (Attorney General) v. Inuit Tapirisat of Canada (1980, SCC):

1. The Court finds the Cabinet's power to be legislative in nature (legislative action in its purest form), in part because the legislation authorized Cabinet to overturn a decision of the CRTC on its own motion. -- an appeal here, which does not look legislative, has a more judicial character; however, the legislation says that what Cabinet does on appeal it can also do on its own initiative), Discretion of the Governor in Council to be complete, provided he observes the jurisdictional boundaries of the legislation. No need for Cabinet to give reasons for their decision, to hold any kind of a hearing, or even to acknowledge the receipt of a petition. a. Strengthening this position was the consideration of practical difficulties inherent in extending the duty of fairness, such as hearing requirements and the undermining of the Cabinet's public policy-making role. The Court's decision can be criticized for overstating these difficulties in applying the duty of fairness to Cabinet decisions -It would certainly be possible to flexibly tailor the content of the duty. Facts: Bell wanted to rase rates, Inuits wanted to condition rate on improving access to N. Federal Cabinet's rejection of an appeal from a decision made by the CRTC allowing a rate increase without allowing the petitioning group to be heard. The Cabinet heard from Bell and the CRTC and took advice from ministerial officials, but the petitioning group was essentially left out of the proceedings.

2.

3.

vi. Homex Realty and Development Co. v. Wyoming (Village) (1980, SCC):
1.

2.

3.

Legislative exemption from the duty of fairness is itself subject to exceptions- passage of this municipal bylaw was subject to the duty of fairness. SCC considers whether the municipality owed Homex a duty of fairness, and if so, whether the duty was breached- Plainly, the motivation for the bylaw was the particular dispute between the developer and the village was not in substance legislative but rather quasi-judicial in character. In these circumstances, the Court finds that the village was not allowed to couch its actions in a form (legislation) designed to oust the application of the duty of fairness. Substance is more important than form where the legislative exemption is concerned. Facts: Having been unable to resolve a dispute with the developer about the provision of services in a subdivision, the village passed a bylaw deeming the lots purchasing by the developer not to be a registered plan of subdivision. As a result, the developer could not sell individual lots without the village's permission. Homex was not heard by the village per se, and although there had been a full awareness by both sides of the position of the other in the dispute, Homex did not have an opportunity to make known its position once fully aware of the village's final position.

4.

Trigger/Scope of Duty a. Two questions arise when judicial review proceedings are brought alleging a breach of the duty: i. What is the threshold for the application of the duty of fairness? ii. How is the content of the duty determined?

5. Nicholson v. Haldimand Norfolk (Regional) Police Commissioners (1979, SCC): a. SC held that a general duty of procedural fairness applies to administrative decisions - Nicholson
b. cannot claims the procedural protections afforded to a constable with more than eighteen months' service-- but must be treated fairly. Respondent Board should have told Nicholson why his services were no longer required and given him an opportunity, whether orally or in writing, to respond. i. Before there was no halfway house between the observance of natural justice for a constable who

6
had served eighteen months as a holder of public office and the arbitrary removal of a constable who had held office for less than eighteen months. ii. Holder of public office is engaged in duties connected with the maintenance of public order and preservation of the peace, to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected. But Dunsmuir- no fairness needed for employment decisions- governed by K

c.

6. Knight v. Indian Head School Division No. 19 (1990, SCC) 3-prong Threshold test: a. Duty to act fairly does not depend on doctrines of employment law, but stems from the fact that the employer
is a public body whose powers are derived from statute, powers that must be exercised according to the rules of administrative law. i. Neither the terms of the statute nor those of the contract of employment abrogate the duty to act fairly in this case. ii. But if the statute specifically excludes procedural fairness, then the court has no choice but to follow the legislatures intent. iii. Distinguished pure master/servant relationship -- private Dunsmuir v. New Brunswick (2008, SCC) -- Court notes that duty would not have applied in Knight. Widespread collective bargaining agreements limit arbitrary dismissal fairness no longer limited to officeholders. Modern public office holders enjoy contractual employment relationships, and that their contracts address procedural fairness concerns. Public employment governed by K should be resolved by K, no special fairness (cf judges, ministers). Duty of fairness thus has no application to the dismissal of employees. 1. Under Dunsmuir - it will no longer be possible for public office holders to be restored to their positions, since that remedy not available for breach of K.

b.

c. The existence of a general duty to act fairly by public decision-making body will depend on the consideration
of three factors (when all 3 present, duty to act fairly): i. nature of the decision to be made by the administrative body; 1. Must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. 2. Decisions must be final in nature - a decision of a preliminary nature will not trigger procedural fairness. The more final the decision, the more fairness will be required. ii. relationship existing between that body and the individual; and 1. All we are concerned with, is whether the body is exercising a power stemming from a statute or prerogative power 2. Employer-employee relationship in this case. The employer is a public body exercising statutory power, so this is why we are concerned. iii. effect of that decision on the individual's rights. 1. There is a right to procedural fairness only if the decision is a significant one (e.g. employment) and has an important impact on the individual.

d. But it is important to respect the needs of administrative decision-makers.

i. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair.

e. Facts: Officeholder, established by S. 10 of Education Act - Procedural fairness is due to an employee who is
an officeholder at pleasure, even though the employer did not need to show cause for dismissal under either the contract of employment or the statute. So extends Nicholson beyond domain of officeholders dismissable only for cause i. In the majority's view, the appellant Board made itself sufficiently available for discussion through meetings with the respondent and each party's concerns were made fully known to the other. The respondent thus knew the reasons for his dismissal and was provided with every opportunity to be

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heard. The requirements of the duty to act fairly in the scope of the employer-employee relationship have therefore been met, and the respondent was properly dismissed.

7. Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC) Content of Duty
a. Baker Facts: ii. Section 114(2) of Immigration Act- authroizes Governor in Council to authroize minister to exempt a person from reg made under the Act. S. 2.1 of Immigration Regulations authroizes to exempt any person under humanitarian and compassionate considerations. (H&C) iii. What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? iv. Were the principles of procedural fairness violated in this case? 1. participatory rights accorded consistent with procedural fairness? 2. failure of Officer Caden to provide his own reasons? 3. Was there a reasonable apprehension of bias? v. Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children? 1. Given that the Immigration Act does not expressly incorporate the labguage of Canadas international obligations w/r/t/ Intl Convention on Rights of the Child, shd BIC test be primary consideration?

b. Whether this is the kind of decision that should attract some kind of procedural right- Baker identified five
factors as relevant in determining the general level of procedural fairness: i. the nature of the decision and the process followed in making it; 1. the more resembles judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness (the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision- facts & law=judicial) ii. the nature of the statutory scheme; and the terms of the statute pursuant to which the body operates 1. 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 iii. the importance of the decision to the individual affected; 1. 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) iv. the legitimate expectations of the parties (part of doctrine of fairness) 1. Expectation that a certain procedure will be followed, or that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; nevertheless, the doctrine cannot lead to substantive rights outside the procedural domain 2. Facts: In this case, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded 3. Reference re: Canada Assistance Plan (1991)- Govt agreed to w/provinces to share costs for social assistance and welfare programs-- Sec. 8 of the Plan provided that these agreements would continue in force for as long as the relevant provincial law was in operation, subject to termination by consent, or unilaterally by either party on one years notice. but subsequently limited increase to BC, Alberata and Ontario as part of deficit reduction plan w/o prior notice. BC: Fed govt precluded from introducing a bill by virtue of the legitimate expectation that amendments would only be made to the agreements by consent? But just covers right to make representations or be consulted no substantive rights created by legitimate expectations. Also doesnt apply to purely legislative function. 4. Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) Ministerial decision to cut funding from hospital after it detrimentally relied on promise of funding SC held hospital was entitled to rely on previous representations of funding, but did not use

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doctrine of legitimate expectation. Binnie concurrence: distinguishes English application of legit expectations, which rose to encompass substantive issues.

v.

the procedure chosen by the tribunal. a. Some tribunals operate pursuant to detailed legislation that establishes procedural requirements. b. 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- deference to the procedural choices made by the decision-maker.

c. Scope of procedure decided in the specific context of each case (Baker) i. notice that the decision is going to be made; ii. disclosure of the information on which the tribunal will base its decision; iii.
a. but duty not as high as Stichcombe (crim)- just info decision maker relied on some opportunity to participate or make views known; a. Ensure that administrative decisions are made using a fair and open procedure i. Flexible inquiry- Meaningful participation can occur in different ways in different situations. modern state couldnt function if oral hearing required for every admin decision ii. Meaningful opportunity for those affected by the decision to present the various types of evidence and views relevant to their case and have it fully and fairly considered. b. Right to make written submissions c. Oral hearing similar to that which occurs in a court i. esp. if credibility in issue Singh v. Minister (1985) ii. 2(e) BoR and s.7 Charter d. Opportunity to give evidence and cross-examine; Right to counsel; and a. S. 10(b), S.7 of charter Oral or written reasons for its decision. 1. Not necessary at common law- may lead to inappropriate burden and may lead to increased cost and delay, but decides necessary here a. B/c profound importance to those affected 2. But- Baker provides an elevation of the duty to provide reasons, to something that will be required as a matter of course a. Comments on usefulness of reasons and holds that in certain circs, the duty of procedural fairness will require the provision of a written explanation for a decisionwhere the decision has important significance for the individual, when there is a statutory rt of appeal, or in other circs, some form of reasons should be required. b. Reasons demonstrate that a claimant has been heard, may act as a form of discipline for the decision-maker c. Reasons are written for two audiences: communication of the decision to the affected parties, and for the facilitation of the court's review of the legality of the decision (i.e. where there is rt to appeal) Facts: Duty of fairness here is more than simply minimal- require full and fair consideration of issues 2. H&C decision different from judicial decision since discretion 3. Statutory scheme- it is exception to general principles of Canadian immigration law. 4. Lack of an oral hearing or notice not necessary for H&C, particularly given the fact that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard. 5. The opportunity for the appellant or her children to produce full and complete written

iv. v.

vi.

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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. In Ms. Baker's case, the provision of written reasons are necessary, but the requirement was fulfilled by the provision of the notes of Officer Lorenz.

6.

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Independence, Impartiality, and Bias

8. At c/l, principles of natural justice/fairness are encapsulated in two central ideas. a. right to be heard audi alteram partem (hear the other side)
i. fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to those parties (so basically notice and opportunity to respond). ii. heard by decider- The second requires the decision-maker to hear and listen to both sides of the case before making a decision. right to an independent and impartial hearing nemo judex in sua caua debet esse (no one is fit to be judge in his own cause) i. independent ii. No bias iii. The first is that a decision-maker should neither judge her own cause nor have any interest in the outcome of a case before her. This is the rule against bias.

b.

9.

Independence a. Three objective conditions have been identified as necessary to guarantee judicial independence i. But Tribunals dont need to meet same degree of independence as courts do ii. Flexible inquiry depending on nature of tribunal, interests at stake, other indices of independence (e.g. oaths of office)

b. Security of tenure i. Judges- ability of the government to remove a judge for such things as rendering decisions that do not
meet the government's approval. This security of tenure is guaranteed for superior judges by the constitution, s. 99. 1. BNA - S. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts.

2. Core characteristics of judicial independence include: security of tenure, financial security

and administrative independence. 2 dimensions of judicial independence for financial and security: individual (i.e. of the judge) and institutional/collective (i.e. of the court or tribunal of which that judge is a member). Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) ii. Admin - Appointment and removal is key in admin 1. Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) (2001, SCC) a. If the legislation permits it, then legislation prevails look to enabling statute b. Ct held that the enshrined const protection of judicial independence could not be translated to the context of administrative decision-making bodies. In essence, while judicial independence exists to protect the judiciary from interference by the executive branch of government, administrative tribunals are not separate from the executive. Admin tribunals span the divide bet executive and judicial. Will of the legislature should prevail in determining how much independence any given tribunal should have c. Facts: RCMP investigated and prosecutes liquor control and licensing, suspends license of hotel. When the Liquor Appeal Board held a hearing de novo and confirmed a suspension issued by a senior inspector with the Liquor Control and Licensing Branch, Ocean Port argued that the Liquor Appeal Board lacked sufficient independence to render a fair hearingsince appt of its members: at the pleasure of the Minister by statute. BC Ct. says more security required for members, decision to suspend license resembled judicial decision. 2. 2747-3174 Quebec Inc. v. Quebec (Regie des permis dalcool) limited term of tenure ok so long as not serving at pleasure and not too short, dismissal for cause ok.

11 3. McKenzie v. Minister of Public Safety (2006)- distinguishes Ocean Port, residential

tenancy adjudicator- unwritten const guarantees of judicial independence since highly adjudicative function

c. Financial security
i. ss. 100 protect the financial security, respectively, of all three types of courts (superior, district, and county) but not provincial. ii. government will not alter their pay for arbitrary reasons such as discontent with decisions rendered. To accomplish this goal, judges are guaranteed a fixed salary under the constitution. iii. The second goal is a promise that the amount judges are paid will be sufficient to keep them from seeking alternative means of supplementing their income. iv. In admin, if you're just a part-time member, or it is an honorific appointment, then are the concerns about financial security the same?

d. Institutional control
i. Institutional control deals with the manner in which the affairs of the court are administered from budgetary allocations for buildings and equipment to the assignment of cases. ii. Making sure that judges are not put in compromising situations where they may choose to make decisions in order to protect their own employment and interests, rather than for the sake of rendering decisions solely on the basis of their legal judgment. e. Adjudicative independence i. Only the person who hears the case is allowed to decide it, from audi alteram partem principle (hear the other side) 1. independence from interference by other judges delicate in admin context b/c group needs to collaborate to further law/consistency of outcome 2. Agency members must write their own decisions (Ontario College of Pharmacists Ct. Appeals 1985)

ii. Consultation w/Wider Group ok w/law, not facts iii. Ellis-Don Ltd v. Ontario (Labour Relations Board) (2001) 1. Presumption of administrative regularity- no evidence that they discussed facts and final
decision on face was law and policy. Presumption cannot be overturned w/o an evidentiary foundation even though hardship in establishing evidentiary foundation given deliberative secrecy. Deliberative secrecy is important to safeguard independence of administrative adjudicators even if it comes at price of more discovery. a. Prior to the hearing of the application for judicial review, the appellant obtained an order compelling the chair of the board, the vice-chair who presided over the panel, and the registrar of the board to give evidence with respect to the procedures implemented by the board in arriving at its final decision. This order was reversed on appeal based on a finding of statutory testimonial immunity. b. - Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency. Facts: Collective bargain agreement local electrical contracts forgot to put appellants name on document listing all employers for which it claimed rights. First draft of panels decision held abandonment of bargaining rights. Full bd. Meeting discussed draft found no abandonment.

2.

3.

iv. International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst (1990, SCC)

1. Facts: Ontario Labour Relations Board- full board meeting held to discuss draft reasons of 3-

12
member panel, even though some members didnt hear argumen. Downsides a. Fostering coherence should not compromise any panel member's capacity to decide in accordance with her conscience and opinions. i. Forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand. b. Ptys do not have the oppty to respond to all the arguments raised at the meeting. 2. Upheld bd meetings: a. Full board meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective. b. Board's mandate. Structure of the Labour Relations Board was conducive to tripartite exchanges in order to use its combined expertise to regulate labour relations in a prompt and final manner. i. as long as they're not talking about factual findings, there's actually nothing wrong with influencing a decision (influence as distinct from pressure); so if a member can be persuaded that their legal position is wrong, that is a good thing c. Privative clause made it even more incumbent on the board to take measures to avoid conflicting results. (privative= no review) d. Coherence is a valid goal to be fostered so that the outcome of disputes did not depend on the identity of the decision-maker. e. Safeguards i. Parties should be advised of any new evidence or grounds and given an opportunity to respond. ii. There were circumstantial guarantees present that the meeting in question was not about pressure no attendance was taken, etc.

v. Cf. Tremblay v. Quebec (Commission des affaires socials) (1992)- imposition of consultation by
member of bd who wasnt in panel cd be inappropriate constraint. Process was different than Consolidated b/c consultation w/others was effectively compulsory when contrary to previous decisions (increase appearance of lack of independence), few safeguards (attendance taken, hand votes, minutes keptsystematic pressures). 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 justicereasonable apprehension of bias. 1. Facts: initial decision draft by members of panel favorable, president of commission differed, submitted to plenary meeting of commission, commission split, president of commission issued final opinion under statute. 10. Impartiality a. No one shall be a judge in her own cause in the narrow sense this captures personal interests being bound up with the case, and deciding in accordance with those interests. nemo judex in sua caua debet esse

b. Reasonable apprehension of bias- is whether a reasonable, well-informed person having thought the matter
through would conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments. i. The grounds for the apprehension of bias must be substantial. A real likelihood or probability of bias should be demonstrated. Mere suspicion of bias is insufficient for the test to be met. ii. Baker- The notes of Officer Lorenz demonstrate a reasonable apprehension of bias, as the wellinformed member of the community would perceive bias when reading his written reasons. 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. Lorenzs statements give impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that Baker was a single mother with several children and had been diasgnosed w/psychiatric illness Didnt approach case with impartiality appropriate to a decision made by immigration officer.

13 iii. Re Sawyer and Ontario Racing Commision (Ont. CA 1979)- where counsel is connected w/one of
parties to the hearing, reasonable apprehension of bias if ha counsel participates in drafting process

c. Mixing Fact-Finders, Counsel and Adjudicators = reasonable apprehension of bias + adjudicative independ
i. Multifunctionality 1. Perception by the user that a tribunal has the potential to act as both prosecutor and judge in the same matter. Generally, it has been held that overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with the constitution and so long as the multifunctionality does not give rise to a reasonable apprehension of bias under a quasiconstitutional statute.

ii. Tribunals can seek advice of counsel Armstrong v. Canada (1994) iii. Bovbel v. Canada (Minister of Employment and Immigration) (1994)
1. Bd referred a draft of its written decision denying P was convention refugee to legal counsel who was not member of Bd and had not participated in hearing. Bd had reasons review policy submitted draft of reasons to legal advisors before issuing them to parties. Nothing wrong w/policy just requires submission of reasons prior to final form. Having come to a decision on what is essentially question of fact- whether claimant has well-founded fear of persecution for a reasons that engages the convention refugee definition tribunal doesnt offend justice by taking advice re: legal matters in its reasons. No likely apprehension of bias.

2.

iv. Khan v. College of Physicians and Surgeons of Ontario (Ontario Ct Appeals 1992) 1. Adjudicative Independence: Decision must be tribunal members if reasons presented for
the decision are not those of the decision-maker- real concerns about validity of the decision. Reasons for decision must be committee but can use outside assistance (ConsolidatedBathurst) volume and complexity of modern decision-making necessitates resort to outside sources- so long as interference w/ decisionmakers conscience (Tremblay). No Reasonable apprehension of bias- if consultation-participation by non-member lawyer in decision. Facts: Health Disciplines Act- members of committee cant participate in any prior investigation and cant communicate, except for counsel, and any legal advice from indepepdent advisor should be made known to parties so they can make submissions of law. Khan argues Committee breached procedural fairness by permitting counsel to play so significiant a rolereasonable apprehension of bias. College: counsel just reviews chairmans draft and assists chairman express views of committee revised draft went to whole committee after input from counsel. Nothing here that counsels involvement compromised independence or impartiality of committee just assisted in preparation of intermediate draft. Also just because counsel giving advice doesnt make it legal advice and counsel expressly disclaimed that it was so ok within statute.

2. 3.

4.

v. Cf 2747-3174 Quebec Inc. v. Quebec (Regie des permis dalcool) 1. Lawyers who investigate shd not also assist those who adjudicate- the roles of prosecutor
and adjudicator can never be overlapped even if statutorily authorized

2. The Act authorizes employees of the Regie to participate in the investigation, the filing of
complaints, the presentation of the case to the directors and the decision. Prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner.

vi. Cf E.A. Manning Ltd. v. Ontario Securities Commission (1999, Ont. Ct Appeal) 1. OSC issued policy statement citing 10 securities dealers as practicing unfair sales practices
and then issued noice of hearing against them where commissioners would judge. Policy reflected findings of staff report which set out in detail conduct which is subject matter of

14
second notice of hearing. Thus unfair conduct alleged in 2nd notice of hearing already been found by commissioners. Investigative role of staff and adjudicatory role of commissioners so interwoven that reasonable apprehension of bias against prior commissionersbut commissioners could be involved in both just not on facts here. Allows hearing to take place w/subsequently appointed commissioners.

2.
3.

d. Policy Guidelines i. Thamotharem v. Canada (Minister of Citizenship and Immigration) (2008) 1. Process in guidelines for examining refugee applicants doesnt fetter claimants rights to fair hearing. Order of questioning upheld by federal ct- guidelines #7 directs members to consider facts of case before them.

15
Charter and Administrative Law

1. To access s. 7, complainants must first show life, liberty, or security interests are impaired by the relevant decision
(vs. Knight 3-Prong) a. Tribunals allowed to do charter review i. Nova Scotia (Workers Comp Bd) v. Martin- tribunals established by legislature (as part of exec branch) can be entitled to interpret and apply charter. No limitation to review i. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final. SCC overturns, right to judicial review of administrative agencies was constitutionally guaranteed on jurisdictional issues.

b.

c. Singh/Suresh- Principles of Fundamental justice include procedural fairness

i. Everyone in s. 7 includes every human being who is physically present in Canada, and the security interest must encompass freedom from the threat of physical punishment as well as freedom from such punishment itself. ii. Courts rely on c/l procedural fairness to interpret S.7 fundamental justice - Suresh Ct -- The principles of fundamental justice of which sec. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty applied Baker framework to assess the adequacy of procedure afforded to Suresh so basically, principles of fundamental justice become procedural fairness in this Charter context. d. Narrow Scope of Actors i. s. 32 limits Charter to matters w/Parliament/provincial control McKinnon (Charter case) is all about whether the Charter applies to universities, hospitals, etc, yet there's no question you can get judicial review with respect to these kinds of entities and bodies

e. Oral Hearing i. The interests protected under s. 7 are of such importance that usually an oral hearing will be required
when those interests are engaged. (Singh) 1. however, Wilson makes the point that where the issue turns on credibility, it is hard to imagine how anything less than an oral hearing could satisfy the requirement for procedural fairness

f. Remedy- Some Ps go s. 7 b/c the one big thing you can get under the Charter is the ability to invalidate
legislation, which you can't get through the c/l route. g. But substance, go to Oakes for admin review i. E.g. ss. 8-14 of the Charter dont apply to immigration detentions because its a civil detention because its imposed by an administrative regime (so thats why criminal case law does not help)

h. s. 11(d) doesnt apply in the administrative realm, 8-14 generally out

2. Singh v. Minister of Employment and Immigration (1985, SCC) a. Recognized that s. 7 applies to non-citizens-- Security of the person includes threat of phys suffering too
threat of torture. caused the govt to overhaul the statutory scheme and establish the Immigration and Refugee Board to ensure that all refugee claimants receive a fair hearing in accordance with the principles of fundamental justice. Cannot be saved under s. 1, because adopting administrative procedures which ignore the principles of fundamental justice merely for reasons of cost and efficiency is not sufficiently compelling to justify the limitation of rights.

b.

16 c. Facts: Refugee claimants had limited oppty to present their cases in oral hearings before either the decisionmaker at first instance or the IAB on appeal-- only oppty if the IAB concluded on the basis of the asylum seeker's written submissions that there were reasonable grounds to believe that the claimant could make a successful claim at an oral hearing. (No c/l right b/c enabling statute limited oral hearings.) Oral hearing required here.

3. Suresh v. Canada (Minister of Citizenship and Immigration) (2002, SCC) a. S. 7, process by which determination made violates Charter- not enough procedure Ct upheld provision in
Immigration Act that permitted Minister of Immigration to deport non-citizens who were found to be a danger to the security of Canada, and held Suresh did not have rt to an oral hearing, but did have the right to: i. Disclosure of materials on which the Minister would base her decision, including the memorandum from the immigration officer who initially reviewed Suresh's case. 1. Subject to privilege or other valid reasons for reduced disclosure, such as safeguarding confidential public security documents. 2. Also Prichard v. Ontario (HRC)- under c/l, priv allowed agency to withhold legal opinion, consistent with procedural fairness ii. Right to written reply to the claims set out in the memorandum, including claims relevant to the threat he posed to Canada and the risk of torture he would have if deported (oppty to challenge Ministers info) iii. Reasons- Ct held that the Minister herself (and not a delegated officer) must provide responsive reasons that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture.

b. Ct also noted Deportation to torture will generally violate the principles of fundamental justice protected by
s. 7 of the Charterunless exceptional circs. Reviewable on correctness, whereas other substantive findings (threat to national security, actual likelihood of torture) reviewable on deference.

c. Standard of Review:- While the Charter issue whether deportation to torture violates s. 7 was reviewable on a
standard of correctness, the determinations of whether a refugee was also a threat to national security (thereby opening the door to deportation), and whether the refugee actually faced a substantial risk of torture if removed, were subject to maximum curial deference. d. Facts: Suresh detained on a security certificate for links to terrorist group. Fed Ct upheld the certificate and, in the subsequent deportation hearing, the adjudicator found Suresh to be inadmissible as a refugee. Separate ongoing process called the danger opinion - whether the risk of danger posed by this person remaining in Canada would outweigh the risk of a well-founded fear of torture- Unlike the statutory provisions under scrutiny in Singh, Immigration Act did not require the Minister to adopt or follow any particular procedure for danger opinion. Minister notified Suresh that she intended to consider danger opinion and gave oppty to make submissions. After submissions, officer recommended in a memorandum to the Minister that she issue an opinion under s. 53(1)(b) that Suresh constitutes a danger to Canada. Suresh did not have the opportunity to see or respond to the officer's memorandum, which the Court described as more like a prosecutor's brief than a statement of reasons for a decision. Minister issued danger opinion, notwithstanding an acknowledgement that Suresh would face a risk of torture upon his return to Sri Lanka. i. Baker criteria: 1. The nature of the decision somewhat resembles judicial proceedings, and is of a serious nature, it is also discretionary for the Minister, so this factor (the closeness of the administrative process to the judicial process) militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. 2. The nature of the statutory scheme suggests the need for strong procedural safeguards, because the provision sets out no procedures, particularly for a right of appeal. 3. Deportation from Canada engages serious personal, financial, and emotional consequences, and thus the importance of the right affected militates in favour of heightened procedural protections. Further, because Suresh may be subjected to torture, this factor requires even more substantial protections. 4. Canada's international commitment to the Convention against Torture also suggests that Suresh had some further legitimate expectations which enhance the need for procedural safeguards. (in this case and in Baker, the court is at least willing to consider international law in legitimate expectations)5. The Minister must be allowed considerable discretion in evaluating future risk and security concerns, and is free under the terms of the statute to choose whatever procedures

e.

17
she wishes in making this decision, so the choice of procedures suggests a degree of deference to the Minister; however, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees. ii. The remedy available is that the case be remanded to the Minister for reconsideration, and Suresh is to remain in Canada until his new hearing is complete.

4. Charkaoui v. Canada (Citizenship and Immigration) (2007, SCC) a. Canadian security agencies alleged that Charkaoui and others were involved with terrorist organizationsissued security certificates against these men pursuant to s. 77 of the IRPA, leading to their detention pending deportation. Under ss. 78-84 of the IRPA, the detention and the reasonableness of security certificates are subject to review by the Federal Court. During the review process, ex parte and in camera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the certificate is based could undermine national security. The judge then provides to the named person a summary of the evidence, but not its sources or any other details that might compromise national security. If the judge determines that the certificate is reasonable, there is no appeal or opportunity for further judicial review.

b. S. 7 doubly engagedi. Liberty - persons subject to security certificates face detention pending deportation ii. Security- person's removal may be to a place where life/freedom threatened iii. No fundamental justice b/c no fair hearing judge acting w/incomplete info-- The principle of
knowing the case to meet when liberty is in jeopardy has not merely been limited by the provision allowing undisclosed material to be presented; it has been effectively gutted."

c. Not narrow enough under S.1 : To remedy the procedural shortcomings of the statutory scheme, the Court
suggests that an amicus curiae (security-cleared special advocate) could be appointed to represent the named person during in camera proceedings. The Crown's failure to incorporate such a measure, or to otherwise correct the procedural deficiencies, leads to the conclusion that the violation of s. 7 could not be saved under s. 1 because the infringement did not minimally impair the right at stake.

5. Blencoe v. British Columbia (Human Rights Commission) (2000, SCC): a. Sexual harassment complaint- political career over, fam. Had to move twice, finances depleted, 30. mo before b.
hearing scheduled. No. S. 7 b/c state hadnt interfered w/life choicesif there was a s.7 breach fundamental justice analysis based on common law as in suresh But possible that an inordinate and undue delay could result in stigmatization and an impairment of the psychological integrity of the alleged wrongdoer (security interest), but the threshold to cross is set very high. Standard of Review

1. Dunsmuir v. New Brunswick (2008, SCC) Standard- revised pragmatic and functional and now call it standard
of review analysis, a. Two-step process for determining the appropriate std of review: i. Already determined under existing case law? If so, the standard of review analysis need not be repeated, and that pre-determined standard will apply. ii. If not, ct must do a contextual standard of review analysis, considering four factors: 1. Presence of a privative clause gives rise to strong indication of reasonable review, presence of appeal right suggests correctness std a. privative clause has come to be viewed as a communication from the legislature that courts should recognize the interpretive authority of the tribunal within its area of expertise, but that judges could exercise their rule of law powers of oversight on constitutional and jurisdictional matters. 2. Purpose of the tribunal as determined by interpretation of its enabling legislation, context in which decision made a. If acting within its legislative grant b. E.g. Art Hauser- labor arbitration judicial deference required. 3. Nature of the question at issue

18 a. A question of law that is of central importance to the legal system and beyond the
specialized expertise of the tribunalcorrectness) Questions of fact -- reasonableness i. Will usually apply automatically to questions of fact, discretion and policy ii. questions of mixed law and fact where the legal issues cannot be easily separated from the factual issues. c. Constitutional questions correctness i. Regarding division of powers bet national and provincial d. Questions of jurisdiction- correctness i. where tribunal must explicitly determine whether its statutoty grant of power gives it authority to decide a particular matter Expertise of the tribunal a. a discrete and specialized regime in which the decision-maker has special expertise; and b. when the tribunal has particular expertise in the application of a general common law or civil law rule in relation to a particular statutory context (adjudication in labour law) c. where a tribunal is interpreting its own statute or interpreting statutes closely connected to its functions b.

4.

b. Reasonableness standard - concerned with whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law

c. Facts: P was a non-unionized civil servant employed in the DOJ in New Brunswick. Government terminated
his employment, due to a number of problems, and offered him severance in lieu of notice. Mr. Dunsmuir took the position that he was entitled not just to a contractual remedy but also to fairness before being terminated (e.g. an opportunity to know the concerns of the employer and a chance to address them). A labour arbitrator was appointed to address Mr. Dunsmuirs challenge and concluded that fairness was indeed required, and had not been provided. The reviewing judge reversed the arbitrators finding. Question is whether adjusticator is allowed to inquire into employers reason for dismissing an employee with notice or pay in lieu of notice? Could adjudicator lookbehind the employers characterization of Dunsmuirs dismissal as being not for cause. Full privative clause in statute, relative expertise of labour arbitrators in interpretation of collective agreements, legislative purpose time-effective method of resolving employment disputes timely and binding settlements, not of central importance to legal system. Doesnt hold up under reasonable stdunder ordinary rules of K, P could have been discharged for cause, or with or reasonable notice or with pay in lieu thereof. Wasnt required to provide cause, only if discharged for cause is it reviewable. 2. Scope of Substantive Reasonableness Review a. Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC) - unreasonable i. The language of the legislation signals an intention to leave considerable choice to the Minister on the question of whether to grant an H&C application. (3-level review, pre Dunsmuir). ii. In this case, 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, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as patent unreasonableness. Thus, the appropriate standard of review is reasonableness simpliciter. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. iii. Officer Lorenz was completely dismissive of the interests of Ms. Baker's children, and 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 a reasonable exercise of power conferred by statute requires close attention to interests and needs of children.

b. Canada (Citizenship and Immigration) v. Khosa (2009, SCC)- reasonable (reversal)

i. Reasonableness review doesnt mean cts can always substitute judgment. Majority felt that

19
the IAD disposition was unjust to Khosa, but Parliament saw fit to confide that particular decision to the IAD, not to the judges. Facts: Appeal brought by permanent resident Khosa from an order that he be removed from Canada for serious criminality, having been convicted of criminal negligence causing death as a result of his "street racing." Khosa appealed the order to the Immigration Appeal Division (IAD) on H&C grounds. The IAD denied Khosas appeal. The Federal Court applied the "patent unreasonableness" standard of review and affirmed. The Federal Court of Appeal disagreed, applied the reasonable simpliciter std and reversed IAD. The SCC agrees with the Federal Court of Appeals application of the reasonableness standard, but disagrees with the result and affirms the IADs decision.

ii.

c. Art Hauser Centre Bd v. CUPE (2008)- reasonable (reversal) i. City created board to operate sports complex, decided to contract out concessions of complex. City
was limited by K with union from contracting out concessions on permanent basis, but opening clause of K gave City rt to contract out work having regard to the desirability of maintaining a stable work force and hacing regard to periodic peaks in work load dictating the necessity of contracting work City required notify and consult w/union before making decision. Std of review is reasonableness. Bd. found no peaks, and therefore contracting not justified, but lower ct. said all they had to do was notify and consult. Lower ct: Substituted her interpretation of clause for that of the board and thus incorrectly reversed bd decision under reasonableness std. d. Calgary v. Alberta (Municipal Govt Bd) (2008, ABCA) reasonable (reversal) i. The Bay is anchor tenant in shopping center, and is required to make payments of property taxes based on proportionate share. Owners of shopping centres reached settlements with city on property taxes. MGB decided that Bay was entitled to file a complaint against assessment based on statutory language, City of Calgary applied for judicial review of MGBs decision, lower ct applied correctness std and reversed MGBs holding. ii. Ct of appeals MGB interpreting own statute subject to deference, doesnt involve narrow jurix uestion and does no constitute big legal question>> Reasonable std. Upholds MGBs decision.

e. Stewart v. Workplace Health, Safety (2008 NBCA)- correctness (reversal)

i. Appeals Tribunal concluded that accident in Govt Employees Comp Act did not include gradual onset of stress, since it imported standards from another statute. ii. Appeals ct said -- in absence of privative clause- and given statutory rt of appeal, correctness review applied. Disagreed w/conclusion that standards imported.

3. Reasonable Std Review for Jurix Questions within Enabling Statute

a. Public Service Alliance v. Canadian Fed Pilots Assn (2009 FCA) i. What std applies to question of Did Bd exceeded its jurix when it allocated an employee to bargaining unit from which the position employee held was specifically excluded? ii. Dunsmuir said presumption that tribunals interpretation of their enabling legis is normally reviewable on reasonableness std. 1. vs. municipalities in Dunsmuir/Calgary, which do not possess any greater expertise than cts in delineating their jurix and did not engage adjudication or policy making expertise 2. Only caveat: Tribunal must have legal authority to interpret and apply disputed provision of its enabling provision iii. Rejects argument that - Whether statute permitted Bd to amend definition of bargining unit is a jurix question and therefore must be decided correctly under Dunsmuir. 1. Dunsmuir: true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdictionAn example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences. That case involved the decision-making powers of a municipality and exemplifies a true question

20
of jurisdiction or vires. 4. Substantive Rt to Reasons a. MacDonald v. Mineral Springs (2008)- Appeal from lower ct review of Hospital Priveleges Appeal Board, where Bd concluded that it had no jurix to hear appeal re: increase of operating room time. Reasonableness applies not only to outcome of decision but to process of articulating reasons- Dunsmui said notion of deference requires a respectful attention to the reasons offered. Remitted to bd with direction that it explain why it concluded that it was outside its jurix under Act. b. Khosa (2009, SC)- Maj. Opinion: I do not think the reference to reasons which could be offered (but were not) should be taken as diluting he importance of giving proper reasons for an administrative decision. Citing Baker. Standing

1. Traditionally, AG had standing to assert purely public right through proceeding for declaratory or injunctive relief
through his own motion or through relation of another person. a. Private individuals- only had standing if convinced AG to lend support to proceedings (relator proceedings). But attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers accepted by SC- Each of these cases involved attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers i. Historical general rule, Person historically can use w/o joining AG in two cases (1) where interference in public right is such that some private rt of his is interfered with (obstruction on public highway that interferes w/private rt of access from highway). (2) where P suffers damage from public right peculiar to himself. (Finlay-, citing 1903 case of Boyce v. Paddington). b. Thorson v. A.G. of Canada (1975) c. Nova Scotia Board of Censors v. McNeil (1976) d. Minister of Justice of Canada v. Borowski (1981)

2. Finlay v. Canada (Minister of Finance, 1986)- Public Interest Standing Allowed a. P says transfer payments made by fed. Govt to Manitoba were illegal b/c Manitobas social welfare legislation
didnt comply w/plans requirements. P claims to have been prejducied by alleged provincial non-compliance with conditions to which federal cost-sharing payments are made subject alleges that prejudice caused by deduction from his monthly social allowance payment to repay an overpayment. Q of discretionary control over standing to assert a purely public right by action for declaration or injunction. P doesnt have standing under historicl rule b/c prejudice allegedly caused is too indirect to be causative. But has public interest standing. i. Concerns about pubic interest standing: 1. Proper role of courts- addressed by requirement of justiciability. There are cases where not appropriate. 2. Allocation of judicial resources/need to screen out busybody addressed by requirement that there be a serious issue raised and that a citizen have a genuine interest in the issue. 3. Determination that ct should have benefit of contending views of persons most directly affected by issue addressed by requirement that there be no other reasonable and effective manner in which issue may be brought before ct. In other cases, AG refused to institute proceedings when requested to do so. But here, clear from position adopted by AG and he would not have consented to proceedings.

b.

3.

Federal Council of Churches v. Canada (Minister of Immigraton) (1992) a. Ps co-cordinates work of churches aimed at protection and resettlement of refugees. Immigration Act of 1988 completely changed procedures for whing is to prevent the ether applicants came w/I definition of convention refugee. Ps sue under Charter and BoR. b. 3 questions (std from Finlay): i. Is there a serious issue raised as to the invalidity of the legislation in question? ii. Has it been established that P is directly affected or that has genuine interest in case?

21
c.

iii. Is there another reasonable and effective way to bring issue before ct? Another reasonable way to bring before Ct- private litigants- esp since great many refugee claimans have appealed decisions which affect them i. The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.
Vriend and 3 gay groups sought declaration that omission of sexual orientation from list of species of discrimination was contrary to S. 15. Didnt confine challenge to employment provisions of act. i. Genuine and valid interest- This is not a case abt employment discrimination as distinct from other forms of discrimination that occurs w/I the private sphere it is the denial of access to the complaint procedures of the Alberta HR Commission that is the essential element of this case, and not Ps dismissal. Exclusion of sexual orientation as a protected ground and procedures for protection of human righs. ii. No other Effective Way - No point in waiting for someone to be discriminated against in housingwasteful of judicial resources.

4. Vriend v. Alberta (1998, SC) finding standing

a.

5. Harris v. Canada (2000 CA) finding standing

a.

b.
c. d. e.

Harris, taxpayer, sought declaration that minister of national revenue acted illegally in providing taxpayer w/favourable private ruling while maintaining a different pubic position on taxability of funds in question. Justiciable Minister acted illegally for ulterior motives raises question of violation of act that court may assess by reference to Minsters duty to follow act absolutely. Serious issue doesnt just want inrepretation of section of Act. Genuine issue taxpayer. Most Effective Harris request Ag to bring proceedings twice.

6. Energy Probe v. Canada (Atomic Energy Control Bd (1984) Finds standing.

a. b. Energy Probe challenged renewal of nuclear reactor license on basis of bias of member of licensing authority, granted public interest standing. AG wanted to be party to ensure right to appeal, but Energy Probe wanted to preclude possibility. Two reasons for AG standing: i. AG has direct interest in outcome of case if bias exists, then Bd member will be ineffective member for many decisions and raises issues involved in part-time appointments who have interests in industry- Choosing persons to appt for Bd is public interest. ii. Question of general importance is raised raises question as to composition of other boards similarly constituted. Public confidence for Bds in general.

7. Standing of Bd to Appeal
a. Northwest Utilities v. Edmonton (1979)- can only appeal jurix. i. To allow an administrative Board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions

b. CAIMAW Local 14 v. Paccar of Canada Ltd (1989, SC)i. Standing of Industrial Relations Council -- when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.Council had standing to make these arguments.

22
Remedies 1. Generally a. Tribunal does not have general jurix >> power to impose a particular remedy must be provided for in the tribunal's enabling statute. i. Many enabling statutes set out express lists of the remedies ii. Other statutes give tribunals broad, discretionary power to fashion the remedies they see fit.- They may try to develop remedies that address underlying structural or systemic problems, in a forwardlooking rather than retrospective, rights-oriented way. 1. McKinnon v. Ontario (Ministry of Correctional Services), (2002, Ontario Board of Inquiry, HRC): a. The issues are whether the Ministry failed to comply fully with one or more of the 1998 orders, and in consequence of which, the atmosphere of the Toronto East Detention Centre remains poisoned? b. The complainant need only prove noncompliance with the order, at which point the burden shifts to the respondent Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains poisoned. Although the Board concedes that the complaints only reveal a workplace that remains poisoned when examined collectively, and perhaps not individually in and of themselves, it finds that the failure of management at all levels to take McKinnon's complaints seriously and/or to properly investigate them amounts to condonation by the corporate respondent. c. Concerning the Board's remedial jurisdiction, the broad and liberal view to be taken of a Board's authority under s. 41(1)(a) of the HRC must be seen to run to the crafting of new orders so as to achieve an otherwise unattainable compliance with the Act and fulfilment of the underlying purpose of the original order itself. a. Enforcement power i. Any enforcement powers held by a tribunal must be granted to the tribunal in its enabling statute, and must pass constitutional scrutiny. ii. More commonly, the tribunal must make an application in court to enforce any order it makes. Once a tribunal has converted its order into a court order, the order can be enforced in the same manner as a court judgment. A party to an administrative action may also bring an action in court against another party to enforce the tribunal's order. Many statutes also provide for quasi-criminal prosecution of persons who disobey tribunal orders.

2.

Remedies on Judicial Review a. Under judicial review, you do not get a new outcome on judicial review, the best you can get in that sense is a new hearing at the forum of first instance- historically the prerogative writs i. Certiorari: to quash or set aside a decision ii. Prohibition: to order a tribunal not to proceed iii. Mandamus: to order the performance of a public duty iv. Habeas corpus: to order the release of the unlawfully imprisoned

b. Certiorari -ct requires some inferior tribunal or judicial officer to provide it with the record of its
proceedings, for review for excess of jurisdiction. i. A successful certiorari application results in the quashing of a tribunal's order or decisioncan not substitute its decision for decision of tribunal. It is an ex post facto remedy. (Most review in US SC done by this method)

c. Mandamus (we command) is a writ issued by a superior court to compel a lower court or government
agency to perform a duty it is mandated to perform. In practice, it is often combined with an application for certiorari (sending something back while also forcing the original tribunal to reconsider it in a procedurally fair manner).

23
i. If the court issues directions, it must clearly state what the original panel is to do or what it must refrain from doing. Those directions may only protect against unfair procedures or excess of power, and cannot direct the tribunal to decide in a particular way.

d. Prohibition is another special proceeding, issued by an appellate court to prevent a lower court from
exceeding its jurisdiction, or to prevent a non-judicial officer or entity from exercising a power. i. Prohibition is used to obtain preemptive relief- not ex post facto

e. Declaration is a judgment of a court that determines the legal position of the parties, or the law that applies to
them. There are two kinds of declarations: the public law variety, used to declare some government action ultra vires, and the private law variety, used to clarify the law or to declare a private party's rights under a statute. f. These remedies now incorporated into statutes i. Simplified application procedures it is sufficient for a party to set out the grounds on which relief is sought and the nature of the relief sought

Geza v. Canada (Minister of Citizenship and Immigration) (2005, FCA): Another tribunal practice for garnering consistency, developing policy, and addressing efficiency is the use of lead cases. In this case, the IRB instituted a procedure through which it attempted to select one of several similar refugee claims that could be used to create a full evidential record for all. Parties, lawyers, and members were carefully selected, and the Minister was invited to participate in the hearings. The purpose of this lead case initiative was to enable the board to have one case in which there were informed findings of fact and a relatively thorough analysis of the relevant legal issues. After having their claims rejected, the applicants challenged the jurisdiction of the Board to conduct such an exercise, and also alleged that a perception of bias existed on the part of the Board when the lead case idea was conceived and conducted, and that the motive was to increase the rejection rate of claims by Hungarian Roma by creating a well-reasoned and welldocumented rejection precedent which would be promoted to be followed by other panels of the IRB. A lead case has two objectives: (1) it permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim; and (2) it gives focus to the principal legal issues that arise from those facts. The Minister argued that the use of lead cases does not infringe on the independence of Board decision makers, because neither the evidence presented in lead cases nor the decisions reached in them are binding on subsequent panels, and because nothing in the concept of a lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case. A tribunal's decision is liable to be set aside for bias if a reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. A similar test determines whether a tribunal is independent. Three preliminary considerations may be added to this general proposition: (1) The standard of impartiality expected of a particular administrative decision-maker depends on context and is to be measured by reference to the factors identified in Baker. The independence of this Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness. (2) The Board is charged with a uniquely difficult mandate of administrative adjudication, and thus its procedure should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nevertheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence. (3) The legal notion of bias connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration.

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Although the Court cannot identify any single indicator that is on its own sufficient to establish bias, it concludes on the basis of the entire factual matrix of the case that a reasonable person, who had considered every aspect of the matter and had thought it through carefully, would think that the hearing panel was biased and was not acting independently when it rejected the appellants' claims for refugee status. Reasons for the reasonable person's conclusion include the suggestion that one of the panel's two members may have been predisposed towards denying the appellants' claims since he had played a leading role in an exercise that may seem to have been partly motivated by a desire by the CIC and the Board to produce an authoritative, if non-binding, legal and factual precedent, which would be used to reduce the percentage of positive decisions in claims for refugee status by Hungarian Roma. The decision in this case does not necessarily mean that the factual conclusions in the lead cases are unreliable, or that subsequent decisions which have relied to any extent on the findings in them are thereby vitiated. Independence / Impartiality of Decision-Makers: in Bathurst and in Geza, these administrative bodies typically don't have internal hierarchies, so these bodies undertake other types of processes to ensure consistency in decision-making after Geza, the IRB abandoned the lead case approach, but has since tried other methods of reaching internal consistency attitudinal bias is the more straight-forward bias issue prior involvement with one of the parties can in some cases raise a reasonable apprehension of bias (Mackenzie Pipeline) there may also be an appearance of antagonism towards one of the parties (Baker, Newfoundland Telephone) pecuniary interest is another aspect the court traditionally has been pretty strict about this in the sense that if there is some kind of financial interest in the outcome, it doesn't matter whether it is big or small In terms of the identity of a decision-maker, at one end you've got elected officials, at the other end appointed in terms of function of the tribunal or body, at one end you've got policy/legislative and the other adjudicative/factfinding for stage of the process, at one end you've got investigative, at the other end a hearing for standard of reasonable apprehension of bias, at one end you've got generous, at the other strict Independence

Independence of the adjudicator is also a means of ensuring that the decision-maker is not biased
overlaps w/ reasonable apprehension of bias test. Predispose the decision-maker or institution to a particular decision or direction The source of the bias may be an attitude (Baker), or direct pecuniary bias