Administrative Law Summary

From Law Outlines Wiki & Law Firms Wiki - Law-Wiki.com

Administrative Law

I. Introduction: Baker

CHAPTER 1

Original Jurisdiction – e.g. breach of contract for the Liberal government to cancel the agreement made during the Mulroney government by a consortium of developers for the renovation and privatization of Person International Airport (T1T2 Limited Partnership v. Canada (1995), 23 OR (3d) 81 (Gen. Div.).

Rights of appeal are purely the creation of statute: courts have no inherent appellate jurisdiction over administrative agencies.

In the absence of a statutory right of appeal, the provincial superior courts exercise a supervisory jurisdiction over the institutions and officials with responsibility for administering our public programs.

Since 1970 the Federal Court of Canada has exercised virtually exclusive jurisdiction over federal administrative agencies.

Grounds: Procedural impropriety: Administrators are generally under a legal duty to act in a manner that is procedurally fair. • Prior notice to those likely to be affected and a reasonable opportunity to respond. • Impartiality – duty to be fair (common law and Charter). • Legislation may prescribe procedures to be followed. Remedies: • Prohibition • Quashing or setting aside of decision • Agency free to decide again (after complying with procedural duties) – second decision may be the same as the first.

Illegality: Strong presumption that the legal powers of governmental institutions are limited; courts determine what those limits are. Legal powers are mostly statutory.

Unreasonableness: Must be some evidence to support material findings of fact. An administrative agency’s interpretation of its enabling legislation must not be patently unreasonable.

Unconstitutionality: Constitution provides an important element of the legal framework within which administrative agencies deliver public programs. Administrative action may be impugned both on grounds of e.g. breach of common law duty of fairness and breach of human rights.

Reach of administrative law – to what extent the remedies and grounds of review of administrative law apply to institutions. Similarly, to what extent they are “government” for the purposes of the Charter. E.g universities not for the most part subject to the Charter but generally subject to prerogative orders (certiorari, prohibition, mandamus). Even if not, decisions may be challenged on grounds of procedural unfairness e.g. by asking a court to grant a declaration of invalidity or an injunction (these remedies not confined to breaches of public duty).

Three directions from which to approach subject matter of administrative law: Detail of public program from which the particular dispute arises: • The terms of the statute • The nature of the program that it establishes • The characteristics of the officials and institutions delivering it • The administrative and political contexts within which it operates. A knowledge of the relevant legal principals and rules • The common law, legislation and the constitution. Theoretical dimensions of the problem and competing concepts of law and government.

A. Introduction to Administrative Law = non-constitutional legal principles derived from statute and common law which govern the conduct of non-judicial public officials. Public law Control on state action by delegated d/makers (admin agencies, public inquiries, prof assoc, local authorities, Cab, depts) Accountability Related to Consti law, but separate and broader – linked esp thru s. 7 of Charter Underlying – ROL and Parl Sov/Legis Supremacy – think Dicey approach to ROL – law is knowable, all are subject to it, including govt Too much judicial deference to ROL? functionalists argue cts use ROL too much to curb state, limit state distributing wealth, cts don’t consider policy, etc. • Rationales: need for specialized expertise, legitimacy, efficiency, prospective vs. retrospective, on-going supervision vs. one-off resolution, competent policymaking (vs. legislators). • Most state conduct: non-judicial (public officials, tribunals, etc.). • Courts supervise administrative actors (judicial review, as distinct from appeals which only exist by way of statute in administrative law). • Major elements of administrative law: • Forum (for recourse of administrative decision): [in]formal reconsideration by the administrative body, progress through hierarchy of decision-makers, internal appeal provisions, ombudsman (limited power), political/media intervention, court (Divisional Court or Federal Court – Trial/Appellate – depending on governing regime). • Grounds for judicial review: violation of process (as delineated expressly or flexibly provided for in statute or as read in by the court in accordance with procedural fairness/natural justice) or substance (illegal mandate, error in interpretation of law, error in finding of fact, unreasonableness, abuse in the exercise of discretion, unconstitutionality, bad faith, improper purpose, etc.). JR Grounds: Procedural impropriety • Breach of procedural fairness obligations • Breach of rules against bias • Lack of requisite degree of independence • Improperly constituted/authorised d/maker • Insufficient reasons for decision JR Grounds: Substantive illegality and irrationality – review of adequacy of factual and legal basis for decision • Jurisdictional errors in interp of scope and meaning of statutory authority – ROL and ultra vires principle of JR • Errors of law • Reviewable errors of fact • Abuse of discretionary powers • Unconsti exercise of power (div of powers or Charter) • Remedies/prerogative writs (discretionary even if violation of rights, e.g., if the claimant behaved badly, no real prejudice, emergency situation delaying procedural fairness, but not if procedures would not have made a difference): quash/set aside decision for reconsideration by same/differently constituted panel (certiorari), prohibition (process halted due to apprehension of bias), declaration (request of court to declare rights and interests), mandamus (court order), writ of habeas corpus (legality of detention). Traditional Remedies – Prerogative writs Modern Remedies Term Meaning Same remedies, but single application for JR. You apply for a remedy in the “nature of” certiorari, prohibition, or mandamus or for a declaration or injunction Certiorari Quash or set aside a decision, send it back to trib for new decision Prohibition Prohibits a trib from proceeding Mandamus Perf of public duty (rare) Habeus corpus Enabled cts to review the lawfulness of detention of “live body” of a person (esp in crim) Habeus corpus Still alive and well. Declarations Declare rights Injunctions Restrain conduct • • Standard of review: courts decide their level of scrutiny/deference via their own assessments of whether intervention is required (extreme standards of deference = “patently unreasonable” vs. “correctness” tests). • • CHAPTER 2 • • S96 – appointment by Canada’s governor general of judges of the superior, district, and county courts in each province. Used by the courts to erect constitutional barriers to legislative encroachments on their own traditional functions (if the functions ought properly to belong to them then the legislation will be unconstitutional). • - Re Residential Tenancies Act (1981 SCC) (the "Ontario created the Residential Tenancies Commission to make orders evicting tenants, and this smells like what a s.96 court would do" case)

- Dickson J.'s test to determine whether a province constitutionally created an admin tribunal that doesn't mirror s.96 courts: a) Historical inquiry - Does the impugned power broadly confer to a power exclusively exercised by a court in 1867? b) Institutional context - Is the impugned power (analogous/identical to a s.96 court power) "judicial" as opposed to admin or legislative? - "Judicial" = private dispute between parties, adjudicated fairly through application of recognized body of rules c) Function as a whole - Is the judicial power the tribunal is exercising a core power (ultra vires) or ancillary (intra vires)? - ie: in Tomko, a LRB making adjudicative cease-and-desist orders exercised this judicial power ancillary to its broader policy-making goal to regulate labour relations in the province

- Here, the Commission was struck down as unconstitutional under s.96 because it's judicial power to require landlords and tenants to comply with obligations imposed under the Act was its core function

Crevier SCC 1981 – a prov cannot use a privative clause to prevent JR in the case of jurisdictional errors – definition of jurisdictional error notoriously elusive. May be confined to procedural unfairness, patently unreasonable interpretations of the agency’s statute, and errors of general law; Crevier does not entrench in the constitution the superior courts’ power to quash for simple errors of law on matters within the tribunal’s jurisdiction. See also United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (p49). Unclear whether this is also true for federal tribunals (see p49ff).

Arguable that access to judicial review is a require of the principles of fundamental justice (s7), if life/liberty/security of the person effected (p53).

B. Baker v. Canada (Minister of Citizenship and Immigration) (1999) • Facts: P, in Canada illegally with 4 kids and dependent on public assistance, challenged the Immigration Board’s deportation order and rejection of an exemption under humanitarian and compassionate grounds (s. 114(2) of the Immigration Act). • Process complaints by P: participatory rights, no written reasons from decision maker, no oral representations, no notice to those affected to make representations, reasonable apprehension of bias, discretion improperly exercised because of improper consideration of international conventions on the interests of children. • The threshold issue for procedural fairness in administrative law is whether a duty of fairness is owed (the fact that a decision is administrative and affects the rights, privileges, or interests of an individual is enough to trigger the duty); here, all agreed such a duty was owed. • As to what the “duty of fairness” consists of, several factors must be weighed on a case-by-case, contextual basis: • nature of the decision made (if one is seeking a favourable exemption, he is in less of a position to demand procedural requirements), • the process followed in making it – similarity of the process to the judicial process (if more similar, likely to require protections closer to trial model. Here: more discretionary than court-like), • nature of the statutory scheme and the terms of the statute pursuant to which the body operates (greater procedural protections if there is no right to appeal, or if decision determinative of issue), • the importance of the decision to the individual, • legitimate (does not create substantive rights) expectations, and • respect for the choices of procedure made by the agency. • Note: other factors may be important (all in all, individuals should be able to present their case fully and fairly to a fair, open, and impartial process appropriate to the context). • In this case: • No legitimate expectations created by the Convention (international law) of extraordinary procedural rights. • No oral hearing or notice to others were required (documents were satisfactory and P was given a meaningful opportunity to fully and fairly present her case) though the opposite may be the case with issues of credibility/competing facts. • There is a requirement of reasons in certain circumstances; in this case the importance of a decision on humanitarian and compassionate grounds did require reasons (helps for better decisions, transparency, etc.) although the notes of the subordinate reviewing officer were sufficient in the absence of contrary reasoning. • There was reasonable apprehension of bias; the test is – what would an informed person, reviewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly? (duty applies to all officers whether subordinate or decision maker) • Note: prior, reasons were not traditionally required (burdensome, same as courts, problem of a subordinate’s reasons being superimposed as the decision-maker’s, etc.). • Also at issue here was the standard of review (substantive issue of whether decision was improperly made) to apply to the statutorily created “exercise of discretion”: “pragmatic and functional test” applied, as in each case: • Privative clause? No, but provision that there must be certification of a “serious question of general importance” by Federal Court means lower level of deference on issues relating to the question. • Expertise of tribunal • Nature of decision being made • Language of provision and surrounding legislation • Whether a decision is polycentric • Amount of choice left by parliament to the administrative decision maker • In some cases the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but a court must intervene where such a decision is outside the scope of power accorded by Parliament. • Three standards of review: “patent unreasonableness” (deference), “correctness” (scrutiny), or “reasonableness simpliciter” (in between). • Courts should not lightly interfere with discretionary decisions, but they must be made within the bounds of the jurisdiction conferred by the statute. • Traditionally: discretionary decisions reviewed only on limited grounds (bad faith, improper purpose, irrelevant considerations, “unreasonableness”). • Here: some factors in support of great deference (the Minister has much expertise and is given discretion by the statute, highly fact-based – no determination of law, purpose of provision is to exempt applicants) while others support great scrutiny (profound decision, no appeal, no privative clause, individual not polycentric decision); in this case, the “reasonable simpliciter” test was applied (decision exercised reasonably in light of the values underlying the grant of discretion, i.e., reasons related to humanitarian and compassionate grounds?). • Looked at the objectives of the Act (keeping families together) • International law (the values of the Convention are central in determining reasonableness) • The Ministerial Guidelines • Court: the discretion was unreasonably exercised since the interests of the children, as supported by international convention and other indicia, were not given sufficient weight (the decision/approach taken was in conflict with H&C values) – though primary weight/precedence over other factors not warranted. • Note: in this case (unusual), there was a leave requirement to Federal Court (s. 82.1) and then a second requirement of leave (showing a matter of “general importance”) to go from the Trial Division to the Appeal Division (s. 83); however, once a matter of “general importance” is certified (here: role of international law on children’s interests as a constraint on discretion), all matters may be reviewed.

C. Mullan, “Baker: A Defining Moment in Canadian Administrative Law” • Scope of appeal: that the Court is restricted to the issues coming fairly within the ambit of the question certified by the judge at first instance was rejected (simply a trigger); this allows, potentially, for arguments not made at lower levels to be canvassed. • Relevant principles of procedural fairness: legitimate expectation (which does not extend to substantive outcomes/results), enhancement of obligations of procedural fairness when there is no right of appeal, respect for the agency’s choice of procedure, formal recognition of the importance of the role of administrative agencies in Canadians’ lives, importance of the impact of a decision on one’s life (whether favourable or not, i.e., that a person is seeking a favourable decision does not per se exclude procedural fairness claims). • Ratification of treaties and legitimate expectation: ratification not the equivalent of government representation (not part of domestic law) and thus such principles give rise to no legitimate expectation and have no bearing on procedural guarantees beyond the common law and relevant statute (at least in this case). • Adequacy of paper hearings: where one has the opportunity to present a full, fair, and complete application, an oral hearing is not necessary; oral hearings may be necessary where, e.g., there are issues of credibility. • Duty to give reasons: prior to this case, great division of opinion; here, at least on occasion, e.g., to ensure better decisions, correct error, and where the decision is of profound importance and the individual has a right to know reasons, the common law duty of fairness requires the provision of reasons (though having regard to delays, costs, and efficiency, various types of written explanation, e.g., notes of subordinates, will suffice). • Reasonable apprehension of bias: officer’s opinions relevant (significant role in decision). • Abuse of discretion: in past, distinct from reviews of errors of law (patent unreasonableness standard suggested a correctness standard at odds with deference); here, review of discretion was brought within overarching review of administrative action. • Appropriate standard of review for H&C determinations: factors include the nature of the appeal, nature of decision-maker, sensitivity of decision, expertise. • Relevance of ratified but unimplemented treaties: to allow the use of unimplemented treaties to illuminate the Charter and common law, i.e., allowing the doctrine of legitimate expectations to apply to unimplemented treaties, is an illegitimate challenge to the supremacy of Parliament and the provincial legislatures (here: the interests of the children ought to be considered but not be afforded primacy).

D. Sprague, “Another View of Baker” • Application of functional and pragmatic approach to determining deference to discretionary decisions = retreat, not extension from deference (prior: judicial review only where a “patently unreasonable” error in law; here: extends rational support to “defects”). • Problem with Baker: administrative agencies exist to the extent that decisions ought to be made by those tribunals in the absence of excessive jurisdiction/legal error. • Thus: this is an open invitation for the substitution of a court’s opinion (= activist). • Another problem: the court did not need to address reasons given that they could have been accessible through and Access to Information Request and they did not play a role in this decision (as well: substantial case law surrounding the requirements of reasons by legislation exists and those reasons required by fairness ought to be the same). • Relatedly, this seems to go against the lack of leeway accorded to most administrative officers to simple allow subordinates to make decisions.

II. Procedures

A. Introduction • Two themes of procedural rights: (i) entitlement (threshold) – see the 3-part test in Knight, infra, or the statutory procedures set out in, e.g., the SPPA, infra; (ii) choice of procedures assuming threshold crossed (context-dependent) – if ambiguous or silent legislation, see the factors in Baker, supra, or if procedure is clearly excepted, go to the Charter (the “principles of fundamental justice” under s. 7 mandate at least the procedures that “procedural fairness does” assuming “life, liberty, or security of the person” are implicated). • Procedural law is composed of: common law, legislation/regulations, Bill of Rights, Charter (s. 7), agency practices (whether such practices are law depends on the context). • Recent evolution of the common law: threshold of procedural claims lowered (in the past, there was a material distinction between quasi-judicial, administrative, and legislative decisions where one would have to be of the former type to qualify for procedural rights); courts more willing to make choices among procedures and require different procedures (claims to court-like procedures not recognized automatically). Less deference to claims of administrative expertise in determinations of procedural questions. • Courts less likely to review substantive issues/merits of decisions (expertise, etc.). • Correctness standard most commonly applied with procedural review. • However, to the extent that procedures have moved from the paradigm of those followed by courts of law, judges more respectful of administrative processes and less willing to intervene on a “correctness” basis (Baker v. Canada (Minister of Citizenship and Immigration), Suresh v. Canada (Minister of Citizenship and Immigration)) • The most significant aspect of procedural entitlement is audi alteram partem: notice of the case against you and the opportunity to be heard. • Note: if one is treated unfairly, he decision will be set aside no matter if the decision would have changed with the procedural protection (only if one is technically disadvantaged, e.g., there is some delay, will there be some room for the court not to order a remedy).

B. The Threshold (Entitlement to Procedural Rights)

1. The Traditional Doctrine

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) • Facts: P, a probationary officer, was discharged after 15 months, without being given the opportunity to make submissions (requirements of notice, hearing and appellate review); the Police Act provided for such after 18 months. • An officer is not simply an office holder at pleasure (these employment distinctions are meaningless anyhow) but rather is in a position where cause is deserved for discipline. • That procedural protection is provided for one class (probationary v. full) but not for another does not necessarily make for no protection whatsoever for said class. • In the sphere of the quasi-judicial (but not the administrative) the rules of natural justice run (audi alterm partem); however, in the administrative or executive field there is a general duty of fairness (somewhat lesser protection that afforded by the rules of natural justice). • Thus: P is entitled to a notion of fairness as something less than the procedural protection of traditional natural justice (e.g., reasons, right of representations). • Dissent: probationary period termination is a purely administrative decision. • Note: the lower court had provided no procedural fairness (expressio unius, no requirements for office holders at pleasure). • Effects of this case: (i) extension of requirements of “fairness” to new domains, e.g., probationary employees (and later prisoners (see pgs 113-115), refugees); (ii) emergence of an idea of “flexible procedures.” • c.f. Cardinal v. Director of Kent Institution [1985] – there is 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.

2. The Threshold Today

Board of Education of the Indian Head School of Saskatchewan v. Knight (1990) • Facts: P dismissed D after refusing to accept a contract renewal for a shorter term than the original; D brought an action for wrongful dismissal (no showing of just cause). • Issues: whether a duty of procedural fairness was owed and whether it was satisfied. • There may be a general right of procedural fairness, autonomous of the operation of any statute, depending on the consideration of 3 factors (3-part test): (i) nature of the decision to be made (final? general/legislative vs. specific/administrative?); (ii) relationship between that body and the individual; and (iii) effect of the decision on the individual’s rights (a right to procedural fairness exists only in the case of significant and impacting decisions). • Note: the closer to the quasi-judicial, the greater entitlement to procedural fairness (still no protection at the legislative extreme). • Relating to the relationship between the body and the individual (ii), in employee/employer relationships, there have traditionally been 3 categories: (i) master-servant (no duty to act fairly); (ii) office held at pleasure (though no requirement of just cause, yes for reasons and representation – traditionally, no duty to act fairly); and (iii) office from one which may not be removed without cause (duty to act fairly). • Note: the court argued to do away with these distinctions here. • To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument (unaltered by The Education Act or Employment Contract here); i.e., the common law is the starting point! • Majority: procedural fairness due (final/specific decision, relationship of office held at pleasure, significant decision) but requirements (notice, hearing opportunity in this case of an office held at pleasure) satisfied here (must be flexible in interpretation). • Dissent: no duty of fairness owed (there is traditionally no requirement of fairness in a case of dismissal for an office held at pleasure – such ought to be the exception rather than the rule – and there was nothing in The Education Act or the Employment Contract to impose a duty of fairness). • Note: there are three theories that may support the way in which the common law is used, all respectful of “parliamentary supremacy”: • Supplying omissions of the “forgetful legislature” with incomplete legislation. • Reading in the common law in the event of silence (legislators are deemed to know and intend for the common law to have a role). • “Common law bill of rights approach”: the common law landscape is assumed to operate unless the legislator explicitly says otherwise (majority).

Dunsmuir v. New Brunswick (2008): This is substituted for Knight above. • Appellant complained that the reasons for the employer’s dissatisfaction were not specified and that he did not have a reasonable opportunity to respond to the employer’s concerns. There was, in his view, lack of due process and a breach of procedural fairness. • Issue of extent to which a duty of fairness applies to the dismissal of a public employee pursuant to a contract of employment. • Knight upheld the distinction between office holders and contractual employees for procedural fairness purposes. C.f. Dunsmuir which held that what matters is the nature of the employment relationship between the public employee and the public employer. 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. What Knight truly stands for is the principle that there is always a recourse available where the employee is an office holder and the applicable law leaves him or her without any protection whatsoever when dismissed. • It is a well-established principle of the common law that, unless otherwise provided, both parties to an employment contract may end the relationship without alleging cause so long as they provide adequate notice – but public authority cannot contract out of statutory duties. • 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. What is important is the nature of the employment relationship. Where the relationship is contractual, it should be viewed as any other private law employment relationship regardless of an employee’s status as an office holder. • Determine the nature of the employment relationship with the public authority. Following Wells, assume that most public employment relationships are contractual. Where this is the case, disputes relating to dismissal should be resolved according to the express or implied terms of the contract of employment and any applicable statutes and regulations, without regard for whether the employee is an office holder. 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. • The dismissal of a public employee should therefore generally be viewed as a typical employment law dispute. However, there may be occasions where a public law duty of fairness will still apply. 1) 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, if the terms of appointment of some public office holders expressly provide for summary dismissal or, at the very least, are silent on the matter, in which case the office holders may be deemed to hold office “at pleasure”. Because an employee in this situation is truly subject to the will of the Crown, procedural fairness is required to ensure that public power is not exercised capriciously. 2) when a duty of fairness flows by necessary implication from a statutory power governing the employment relationship. In Malloch, the applicable statute provided that dismissal of a teacher could only take place if the teacher was given three weeks’ notice of the motion to dismiss. The House of Lords found that this necessarily implied a right for the teacher to make representations at the meeting where the dismissal motion was being considered. Otherwise, there would have been little reason for Parliament to have provided for the notice procedure in the first place.

3. Applications • Emergencies: decisions may be made without prior hearing (usually interim, may be addressed by subsequent hearing); deference to relevant authority’s judgement of urgency. R v. Randolph. • Decisions of a legislative and general nature: traditionally, general/legislative decisions are not subject to a duty of procedural fairness (vs. specific/individual decisions). • Note: most of these cases are pre-Knight, supra.

Attorney-General of Canada v. Inuit Tapirisat of Canada (1980) • Facts: the CRTC granted approval of a rate increase petitioned for by Bell; D opposed and ultimately appealed to Cabinet, who dismissed; D sought judicial review. • Issue: whether there is a duty to observe natural justice or a lesser degree of fairness incumbent on the Governor Council/Cabinet in dealing with petitions such as D’s. • To impose conditions such as an oral hearing where statute has not done so and to do so would be impractical and in conflict with administrative efficiency, none should be. • Here: the relevant Act gave full and complete discretion to the Governor Council provided he observes jurisdictional boundaries; this was a general, quasi-legislative (read political) decision (general, not specific). • Note: later legislation (Broadcasting Act, Telecommunications Act) has implemented some procedural requirements in the Cabinet arena and the ability to issue (pre-emptive) policy directives. • Also note: there is some authority holding that, in some contexts, the Cabinet may be subject to certain procedural obligations (statutory discretion may not be absolute, e.g., where a Cabinet decision is related to a specific individual).

Homex Realty and Development Co. Ltd. v. Village of Wyoming (1980) • Facts: D made a by-law that restricted P’s ability to convey lots in its subdivision; P made an application to quash the by-law, arguing that a duty of fairness was owed. • Before a public body can limit the property rights of citizens, it must first give them an opportunity to be heard (unless there is an express contrary statutory declaration). • The presence of a compelling public interest does not alone abrogate or diminish a citizen’s right to procedural protection. • Where an action is quasi-judicial as opposed to legislative in nature (as here: interference with private property rights, not public interest), the principles of notice and audi alteram partem are attracted (and here the statute did not except this). • Dissent: P was at minimum entitled to notice and the opportunity to be heard (majority: P not entitled to relief because of evasive conduct of its principals).

Benzaire v. Windsor Roman Catholic Separate School Board (1992) • Homex leaves open question of where the exclusion of decisions of a “general” as well as a “legislative nature has its bite. Claims to procedural protections in relation to broadly based policy decisions affecting a broad section of the public in a generally undifferentiated manner will be hard to justify. • Facts: Nine schools closed by board due to financial crisis. Affected parents and students had no opportunity for prior input, although consultation process after decision. Neither the minister’s procedural policy for board closure of schools or the boards own policy were followed. • The guidelines amounted to a statutory direction that the Board would follow the public consultation expectations. • This may be the case even where there are no guidelines (Elliott v. Burin Pennsula School District No. 7 (1998)).

Canadian Assn. of Regulated Importers v. Canada (Attorney General) (1993) • Facts: P challenged a change to importation quotas (general in theory but which applied to few individuals in practice) on the basis that they were not consulted. • Trial Court: • A simple interest or “legitimate expectation” is sufficient to qualify for judicial review (a “right” is not necessary). • Classifying a decision as being of a “policy” nature does not necessarily immunize it from judicial review. • Here: D exercised a delegated statutory power which was general in nature but only for a small segment of the population; there is an implied principle that procedural fairness (general notice, opportunity to be heard) ought to be accorded in such cases, especially where it would not be impractical (note that the “type” of notice, e.g., individual or a newspaper ad, may be influenced by practicality). • Federal Court of Appeal: • Generally, the rules of natural justice are not applicable to legislative or policy decisions. • Particularly, principles of natural justice are not applicable to the setting of a quota policy although they maybe to individual decisions of grants of quotas. • Here: no notice, etc. requirement in the statute (expressio unius). • Note: there are several cases where a lack of statutory language does not constrain the court!

Re Webb and Ontario Housing Corporation (1978) • Facts: P, lessee of low-income apartment housing from D, made an application for review of a decision made by D to terminate her lease due to problems with P’s kids. • The decision made here was an administrative (not quasi-judicial) one through the exercise of power, conferred to D by the legislature, which did not provide for notice or an opportunity to be heard prior to a decision being made. • However, where a decision is made to deprive one of a benefit (as opposed to conferring them one where no “right” exists – note the traditional distinction between “rights” and “interests”), there is a duty of notice and the opportunity to be heard. • Here: the notice and opportunity to be heard requirements were met. • Note: this case has great resonance to Knight, supra (consideration of the nature of authority; the nature of the authority’s power, e.g., the withdrawal of a benefit; the consequences of the exercise of that power; and the nature of the relationship between the authority and the affected interests).

Hutfield v. Board of Fort Saskatchewan General Hospital (1986) • Facts: P applied to be appointed to D’s medical staff; he was rejected without reasons or an opportunity to make representations; P sought certiorari and mandamus. • The application of different standards of natural justice for decisions granting a benefit vis-à-vis stripping a benefit is a principle that no longer governs (courts will protect rights and interests, a duty to act fairly varies by context, etc.). • Such a body, if its decision will modify, extinguish, or affect a right or interest of a person when that person’s rights or interests are being considered and decided upon in a way that is in law or for all practical purposes final, or final subject to appeal, must adhere to procedural standards the precise nature of which will depend on the nature and extent of the right or interest. • Here: the requirements of the governing legislation imply consultation/the tendering of representations from P as well as reasons for its decision; there is a public interest in having the application of P properly and thoroughly considered; P’s specific interests were at stake (reputational consequences – problem: more protection for those already privileged with more to lose?, etc.); the decision was final. • • Government procurement practices – traditionally not subject to judicial review (contract; private law). But contracting with public funds, may effect other interests; principles of procedural fairness, including principles against bias should apply.

Re Abel and Director, Penetanguishene Mental Health Centre (1979) • Facts: P sought review of decisions made by the Advisory Review Board, pursuant to the Mental Health Act, not to disclose patient files during annual review hearings (non-dispositive decisions; only making recommendations etc.) • The distinction between judicial/quasi-judicial and administrative decisions is not important where the duty to act fairly is concerned. • The rules of natural justice may indeed apply in cases of mere recommendation (as opposed to a binding decision). • Relevant to determining whether fairness is owed: (i) function of the Board (stronger procedural entitlement the closer to an ultimate decision); (ii) stakes involved; (iii) functioning of the Board (more judicial-like = stronger procedural entitlement). • Here: the Board’s decision is highly significant and the rules of natural justice ought to apply to support consideration of a patient’s request for at least some disclosure. • Note: the remedy here was consideration of disclosure, not disclosure per se. • Dissent: the Board is a federal tribunal and thus only subject to review by Federal Court; the Board’s recommendation to the Lieutenant-Governor is not binding. • Note: it still remained to be seen if the provision of natural justice exhausted a patient’s procedural claims or whether there was also an entitlement to a hearing from the ultimate decision-maker; in Conway v. Ontario (Attorney General) (1991), the Court decided that, with reference to s. 7 of the Charter, that this was not the case, though a patient ought to see a copy of the Board’s recommendation before it reaches the Lieutenant-Governor so he may take appropriate steps, e.g., direct written submissions.

• Dairy Producers’ Co-Operative Ltd. V. Saskatchewan (Human Rights Commission) (1994) – company claimed breach of rules of procedural fairness when not given full details of sexual harassment complaint during preliminary investigations. Requirements of procedural fairness had been met. • Irvine v. Canada (Restrictive Trade Practices Commission) (1987) – limited participation and cross-examination rights in preliminary inquiry conducted by hearing officer in relation to suspected unlawful trade practices. Decision not determinative, fairness a flexible concept.

Commentary • Baker appears to lower the threshold of procedural fairness insofar as the mere fact that one is seeking a favourable exercise of a highly discretionary government benefit-conferring power does not exclude procedural fairness claims. • Traditionally, investigative and recommendatory functions did not lead to procedural entitlements; however, two recent decisions confirm the move away from an earlier restrictive approach: • Limits on inspections: when powers of inspection are combined with powers of prosecution, the “inspection” becomes a “search” and is subject to Charter s. 8. • The implementation of statutory notice requirements of potential findings of misconduct in a public inquiry.

4. Legitimate Expectations • In certain circumstances, procedures will be required by reason of expectations generated in an affected person per se (origins: British law). • Originally: treated as another means of expressing one’s stake in the outcome, used to describe the nature of the substantive interest (see, e.g., Re Webb and Ontario Housing Corporation, supra, and Hutfield v. Board of Fort Saskatchewan General Hospital, supra). • Then in R. v. Liverpool Corporation (1972): representations by public officials by words or conduct that a hearing will be afforded will give rise to procedural requirements. • In Canada: the doctrine has been recognized in four cases, but the grounds for invocation of the doctrine have failed (therefore there still exist questions of reach): • Old St. Boniface Residents Assn. v. Winnipeg (1990): the doctrine applies to validate procedural claims only in circumstances where none would otherwise exist (and never to validate substantive claims, e.g., legitimate expectations of a certain result). • Note: this doctrine straddles the threshold question and procedural entitlements. • Issues: (i) functions that the doctrine applies to (legislative, quasi-judicial, etc.?); (ii) what must be shown to validate the doctrine; (iii) relationship to questions of substance.

Reference re Canada Assistance Plan (1991) • Facts: the Canada Assistance Plan authorizes Canada to enter into cost-sharing agreements with provinces for provincial social assistance programs; Canada limited its contributions, to a figure below that provided for, without notice or consultation. • Issue: whether the government was precluded from making amendments to their agreements by virtue of a legitimate expectation that changes would be consensual. • There is no support in the law for the proposition that the doctrine of legitimate expectations can create substantive rights, e.g., an essential veto power/consent (as opposed to consultation). • Moreover, the rules governing procedural fairness do not apply to a body exercising purely legislative functions (e.g., the formulation and introduction of a bill, as here). • Parliamentary government would be paralyzed if the doctrine could be applied to prevent the government from introducing legislation in Parliament; the doctrine would also place a fetter on the ideal that governments not be bound by their predecessors. • Canadian Union of Public Employees and Service Employees International Union v. Ontario (Minister of Labour) (2000) – unions had an entitlement to procedural fairness arising out of their legitimate expectation that the government would not change the system for the appointment of interest arbitrators.

Furey v. Roman Catholic School Board of Conception Bay Centre et al. (1991) • Facts: D decided to close a school; P sought certiorari on the basis that the decision was taken without an opportunity for public input (breach of procedural fairness); in the past, and pursuant to guidelines, there was a process of consultation for closings. • Here: the decision was administrative not legislative (specific, in that a particular group was affected, not general) and past practices and guidelines created the impression of a consultative process and, thus, raised legitimate expectations for a case such as this. • Note: this decision was reversed (only those who were aware of previous consultative practices and/or believed past practices would be followed can actually rely on those practices as generating a legitimate expectation, i.e., there must be actual reliance). • Query the relationship between this doctrine and the doctrine of estoppel. • NB – if administrative, should have meant the applicants were entitled to procedural fairness regardless of legitimate expectation. See Elliott v. Burin Peninsula School District No. 7 (1998).

Baker v. Canada (1999) • Here: the legitimate expectations (related to Canada’s ratification of an international child protection treaty) were not capable of founding a procedural entitlement. • But: confirmation that the doctrine may apply to procedure but not substance. • This confirms that this doctrine should not be seen as a major means of getting over the “threshold” – but see CUPE and SEIU v. The Minister of Labour for Ontario, infra. • Problems: does the question of legitimate expectations arise only after the “threshold” is crossed?; not always a bright line between procedure and substance.

CUPE and SEIU v. The Minister of Labour for Ontario (2000) • Facts: the Ontario government proposed to eliminate existing arbitration for public sector employees and replace it with a permanent Dispute Resolution Commission; this was abandoned, but despite an indication by D of a return to the existing system, a new practice of selecting arbitrators was implemented; P opposed and sought review. • Here: reneging on a promise to return to the existing system of government had denied the legitimate expectations of the affected unions. • Note: P’s remedy here was not a return to the status quo, but a quashing of the decision and a granting of notice and the opportunity to respond to the decision. • Also note: this seems to deal with the initial problem of Baker, i.e., that legitimate expectations may per se satisfy the threshold question.

Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services) (2001) • Facts: D assured P if he took certain steps, including relocation, required permits would be issued; relying on this, P engaged in fundraising, altered its orientation, and moved; D later reneged on his assurance; P sought the substantive issuance of a permit. • Court of Appeal: while the doctrine of legitimate expectations can not be employed to achieve a substantive result, the doctrine of promissory estoppel could apply (in private law) not just as a “shield” but also as a “sword” (therefore D compelled to license). • Key: language of the statute (it was not really a two-step authorization and issuance structure here, more that a conditional decision to issue had been made). • Supreme Court: did not endorse this expansive vision of the possibilities for the operation of estoppel in public law (although estoppel possibly still available if provisions not framed in broad policy terms; policy concerns fall under the expertise of policymakers, moreover, policy may change/flexibility is required. Minister should not be estopped contrary to public interest.) or to allow for either doctrine to provide for substantive outcomes (though the Appeal Court’s ruling was upheld on the basis that D had actually exercised his discretion via his assurances and Minister’s decision could be set aside through the application of the ordinary rules of procedural fairness) – legitimate expectation gives procedural relief only. • The Supreme Court also noted that the English doctrine of legitimate expectation has developed far more comprehensively, to the extent of providing for substantive outcomes; however, the climate was/is different in Canada. • Note: this seems to deal with the second problem of Baker, i.e., the interplay between procedure and substance; the courts hold to no substantive entitlement under the doctrine of legitimate expectations but in practice “fudge” with this.

• Claimant not necessarily barred from making a claim due to lack of fault on part of decion maker (e.g. incompetent representation – Shirwa v. Canada (Minister of Employment and Immigration) (1994); written representations not received – Zutter v British Columbia (Council on Human Rights) (1993); person unable to attend hearing because hospitalized – Toronto Housing Co. v. Sabrie (2003)).

5. Constitutional Dimensions • The Charter, Bill of Rights assure procedural rights per se and impact the common law of procedural review (by finding rights where none existed/strengthening pre-existing claims). • Still: some doubts of the influence of these statutes in administrative decision-making. • Bill of Rights: applies only to federal laws and actions (s5(2) and (3)) (Charter = all of Canada). No relevance to provincial statutes. Affects both prior and subsequent legislation, purports to override other legislation unless it expressly states otherwise (s2). • Under the Charter: application to the administrative arena requires bodies to be brought within the concept of “government” (in McKinney v. University of Guelph (1990), universities were held not to be “government” notwithstanding statutory status; while the same held true for hospital boards in Stoffman v. Vancouver General Hospital (1990); in Douglas/Kwantlen Faculty Assn. v. Douglas College (1990), however, community colleges were “government,” while the same was true for hospitals in Eldridge, infra because implementing a specific government policy). • Thus: applicability is not necessarily obvious; also, bodies not directly subject to the Charter may be affected by it (e.g., if a body must conform to human rights codes). • Applicable sections of Bill of Rights: ss. 1(a) [life, liberty, security of person, enjoyment of property, right not to be deprived of these without due process], 2(d) [a person shall not be compelled to give evidence if denied counsel or “protection against self crimination or other constitutional safeguards”], 2(e) [right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations], 2(g) [guarantees assistance of an interpreter for those who cannot function in the language in which the proceedings are being conducted]. 2(d) and (g) both apply to commissions, boards, andtribunals as well as regular courts). • Applicable section of the Charter: s. 7 (substantive and procedural aspects). • In Andrews v. Law Society of British Columbia (1989), s. 15 was held to be an anti-discrimination provision only benefiting “discrete and insular” minorities rather than, e.g., guarantee equality of participants in administrative proceedings in terms of procedural rights. • Section 11 (guarantee of impartial tribunal, no unreasonable delay, presumption of innocence) has been confined to criminal/penal proceedings. • Sections 8-14 offer some ramifications for administrative proceedings: self-crimination (s. 13), access to interpreter (s. 14), search and seizure (s. 8), arbitrary detention (s. 9), cruel and unusual punishment (s. 12). • Significant differences between the Bill of Rights and the Charter: use of “individual” and “person” vs. “everyone”; inclusion of “enjoyment of property”; attachment in s. 2(e) of procedural guarantees to the “determination of rights and obligations”; Charter s. 1 (Bill of Rights only has internal limits). • Effects of these differences: “everyone” in the Charter = natural persons (not corporations) vs. unclear the applicability of corporations under the Bill of Rights; “rights and obligations” are much more expansive than s. 7 (see Singh, infra). • No equivalent to s.1 in Bill of Rights, but Quebec Court of Appeal in Air Canada c. Canada (Procureure generale) held that court should engage in balancing process akin to that in Oakes.

Eldridge et al. v. AG of BC et al. (1997) • Facts: P, hearing disabled, challenged a public hospital’s failure to fund translation services under s. 15 of the Charter (equal benefit of the law without discrimination on the basis of disability). • When an action of a body that exercises delegated government powers or is otherwise responsible for the implementation of government policy, and not the legislation that regulates it, violates the Charter, the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter. • Private entity may be subject to the Charter in respect of certain governmental actions. • Here: a direct and precisely defined connection between a specific government policy and the hospital’s impugned conduct (thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act). • Result: P’s s. 15 challenge was successful. • Note: contrast this case with Stoffman v. Vancouver General Hospital (1990), where a hospital was not found to be “government” for lack of a direct connection with specific government policy.

National Anti-Poverty Organization v. Canada (Attorney General) (1990) • Issue: a revisitation of the procedural obligations in the context of “Cabinet appeals” from the decisions/orders of regulatory agencies (see Inuit Tapirisat, supra) in light of s. 2(e) of the Bill of Rights (no law in Canada shall be construed so as to 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). • Decisions made by the Governor in Council in matters of public convenience, general policy are final and not reviewable (exception: jurisdiction, other egregious grounds) • Here: general, public matter (all phone users affected); no involvement of a determination of a right or obligation peculiar to P (s. 2(e) does not apply). • Note: the court also found s. 15(1) of the Charter not to apply (an organization is not an “individual” for the purposes of this equality clause; in any case, P was not treated discriminatorily vis-à-vis Bell; and the alleged “discrimination” is not that which s. 15(1) is aimed at preventing – see Andrews v. Law Society of B.C. (1989)). • Also note: the court found the Governor in Council not to have exceeded its jurisdiction (it was not acting solely out of a concern for private interests, but in “public” interest). • Also note: the court failed to recognize P’s “legitimate expectation” argument (there was no “express promise” or “regular practice” to validate this claim).

Authorson v Canada (Attorney General) (2003) • Facts: Government administering pensions and other benefits for war veterans; failed to invest funds of pay interest. Legislation was passed barring claim to interest for the period prior to 1990. • Issue: Whether due process protections of Bill of Rights ss. 1(a) and 2(e) guard against expropriation of property by passage of legislation. • 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, the Bill of Rights applies and the legislation is inoperative. The Bill of Rights only protects rights that existed in 1960, prior to its passage. • However, the Act was not inconsistent with the Bill of Rights. The due process protections do not require that Parliament prior to the passage of expropriative legislation give veterans a notice and hearing. Long-standing parliamentary tradition has never required that procedure and due process protections cannot interfere with the right of the legislative branch to determine its own procedure. • Further no individual rights and obligations were at issue. • The Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation. • Section2(e) of the Bill of Rights applies only to guarantee fundamental justice of proceedings before any tribunal or administrative body that determine individual rights and obligations. The Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal. It does not impose on Parliament the duty to provide a hearing before the enactment of legislation.

Singh v. Minister of Employment and Immigration (1985) • Facts: P applied to the Immigration Appeal Board for redetermination of his immigration status made by D; he was not afforded an oral hearing after the Board decided there was no reasonable basis that he would be able to establish his claims at a hearing. • Issue: whether the applicable statutory scheme was consistent with s. 7 of the Charter and s. 2(e) of the Canadian Bill of Rights. • Courts ought not to resort to constitutional bases for resolving cases unless strictly necessary (e.g., procedural fairness is excluded by the statutory scheme). • Note: the Court here decides against reading in procedural requirements with silence, as was done in the pre-Charter Knight, supra, but rather goes to the Charter (query whether the former would have been done in the absence of the Charter). • Here: the Act in question does not provide for the procedural fairness sought by P. • Section 7 applies to “everyone” physically in Canada (including refugee claimants). • The strict dichotomy of “rights” and “privileges” as experienced under the Bill of Rights should be re-examined. With regards to the Charter, even though something is not an absolute right, it should not be construed as a “mere privilege”. • The constitutional threshold question is thus whether the life, liberty, or security of the person interests are at stake. • The rights which P seeks to assert are ones that entitle him to protection of s. 7 (the denial of rights deprives his “security of the person,” i.e., freedom from fear of physical punishment, if not punishment per se – even though Canada is not directly depriving the s. 7 rights it has an obligation to determine the effects elsewhere. Convention refugees have the right not to be removed from Canada. Denial of the right (removal to a country where they would have cause to fear loss of life/liberty/freedom of the person) would amount to a deprivation of security of the person within the meaning of s. 7). • The procedures for the determination of refugee status deny P’s fundamental justice (which includes the notion of procedural fairness, context-dependent). • At least where a serious issue of credibility is involved, fundamental justice requires an oral hearing (though an oral hearing may not always be required). • The shortcomings of these procedures in relation to s. 7 standards cannot be justified within the meaning of s. 1 (“administrative convenience” is not good enough). • Here: P may never have the opportunity to make an effective challenge since his written submissions, on which the basis of the decision was made, will be prior to learning the case against him. • Note: this case was first to consider the impact of s. 7 on administrative processes. • Also note: a concurrence decided on the basis of the Bill of Rights as opposed to the Charter (i.e., that the procedures violated s. 2(e) by determining P’s rights and obligations without providing for a fair hearing in accordance with the principles of fundamental justice, in this case, but not necessarily in all cases, an oral hearing – what will be important in determining the procedural content of fundamental justice will be the nature of the legal rights at issue and the severity of the consequences to the individual concerned).

Chiarelli v. Canada (Minister of Justice) (1992) • Facts: pursuant to the terms to the Immigration Act, P was automatically deported after being convicted of a crime; P undertook his right of appeal under the Act but was precluded from making his representations after it was determined, without his participation, that P would be a security threat (permitted by the Act). • Issues: whether the automatic deportation provision and/or the security risk/organized crime findings procedure unjustifiably violated Charter ss. 7, 12, 15; whether P ought to have been heard/succeeded on humanitarian and compassionate grounds. • Section 7 ought to be interpreted contextually; in determining the scope of the principles of fundamental justice here, the policies and principles underlying immigration law are salient (= non-citizens do not have an unqualified right to enter and remain in Canada). • Parliament has the right to adopt an immigration policy, enact legislation prescribing the conditions under which non-citizens will be permitted to enter, remain in Canada. • For punishment to be “cruel and unusual” under s. 12, it must “outrage standards of decency” (the punishment here does not do so). • There is no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents but not to citizens (the Charter itself makes distinctions). • Substantively, it is not a principle of fundamental justice that a permanent resident who is the subject of a deportation proceeding be afforded an appeal on all circumstances of his case (i.e., Parliament may limit the availability of such an appeal under s. 7, e.g., humanitarian and compassionate appeals are discretionary). • In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and individual (e.g., national security concerns here outweigh the individual’s claim to fundamental justice). • Procedurally, assuming that the review proceedings in this case were subject to the principles of fundamental justice, those principles were observed. • The respondent chose not to exercise procedural opportunities available to him. • Note: the Court does say that a general right of appeal may be afforded by s. 7 at the “principles of fundamental justice” if consistent with the traditional grant of appeal. • Query why Baker does not discuss the applicability of s. 7 to her and why administrative grounds were used to decide that case as opposed to the Charter.

New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999) • Issue: whether fundamental justice required D to be provided with legal aid in a case where P had sought to extend a judicial order granting it custody over D’s kids. • At least some drastic administrative proceedings may affect an individual’s security of the person, e.g., the separation of parent and child in this case, defined as an impairment of one’s physical and/or psychological (must be serious and profound grater than ordinary stress but less than nervous shock) integrity. • Concurrence: liberty interest also triggered (deprivation of decision-making re: child).

Wilson v. British Columbia (Medical Services Commission) (1988) • Facts: Doctors denied medical licences in BC/granted on geographical basis. • Issue: whether liberty in s. 7 is broad enough to encompass the opportunity of a qualified and licensed doctor to practise medicine in BC without constraint, even though economic component. • Right to pursue freely the practice of one’s profession is not a mere economic interest. • S. 7 also embraces freedom of mobility. • Thus geographical restrictions constitute a violation of the right to liberty under s. 7 unless the right is removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under s. 1. • The scheme offended the principles of fundamental justice. It was based on vague and uncertain criteria, combined with areas of uncontrolled discretion, substantial scope for arbitrary conduct. • But see Reference re Ss. 193 and 195(1)(c) of the Criminal Code (1990) for dicta to the effect that the right to pursue a profession is not implicated in s. 7.

Blencoe v. British Columbia (Human Rights Commission) (2000) • Facts: P, a former politician, was accused of sexual harassment by his aide; his case before the Human Rights Commission was delayed for several months. • Issues: (i) whether the Charter apples to the Human Rights Commission; (ii) whether P’s rights to “liberty and security of the person” under Charter s. 7 were violated by state-caused delay in the human rights proceedings against him; (iii) whether P is entitled to a remedy pursuant to the principles of administrative law; (iv) if entitled to a remedy was a stay of proceedings the appropriate remedy? • (i) The Commission was created by statute and all of its actions are taken pursuant to statutory authority; it is both implementing a specific government program and exercising powers of statutory compulsion (such as are not possessed by private individuals) (the Charter thus applies). • (ii) “Liberty” includes “fundamental personal choices”, which are not implicated here. A person’s reputation is not protected by s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to serious state-imposed psychological stress. • (iii) Psychological harm is also recognized in the abuse of process/administrative law context but a substantially egregious abuse of process must be evidence to justify a stay (here: not egregious enough). • Administrative law principles: procedural delay could not have seriously increased the damage that had already been done [which was caused by the publicity] and at most could be seen as a contributing cause. Right to a fair hearing had not been jeopardized. • In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”. • In this case, delay was not inordinate. • Unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised – where it has caused psychological harm/stigma such that human rights system is brought into disrepute. • Majority holding: the prejudice caused by undue delay does not constitute a deprivation of security of the person in violation of the principles of fundamental justice. • Note: the Court was reluctant to elevate dignity/stigma to a free-standing right. • A concurrence would have disposed of the matter on administrative principles (appealing to the impact of the case and inherent time requirements primarily) and not made a definite ruling on the applicability of the Charter. • Three factors for assessing reasonableness of administrative delay: (i) the time taken compared to the inherent time requirements; (ii) the causes of delay beyond the inherent time requirements; (iii) the impact of the delay. • The delay was unreasonable, but stay not an appropriate remedy; appropriate remedy would be expedited hearing and costs. • Note: the concurrence put much more weight on the effects of the administrative delay but nevertheless refrained from recommending a stay (must consider the other party!). • Query whether the Court was remedy-driven here, i.e., looking for a way out of having to provide for a stay.

Deference to Procedural Rulings • Since late 1970s: courts profess adherence to deference to tribunals; standard = was the Board’s interpretation so patently unreasonable that its constitution cannot be rationally supported by the relevant legislation and demands court intervention? • With procedure: courts more willing to intervene on a standard of correctness. • Less reason for deference when charter rights at stake. • This deferential standard generally applies where the procedural entitlement is a matter of “statutory right” and where the tribunal has to interpret the scope of that statutory right. • NB – Baker.

Mashaw, “Due Process in the Administrative State” • What are the justifications for giving hearings? • Approaches to procedural fairness/“due process of law”: • Tradition: often difficult to isolate single tradition. Basically – do the procedures conform to the usual process of the law. • Natural rights: individual autonomy must be respected but to what extent (there could be no government role if taken literally to the extreme)? • Interest balancing (dominant contemporary mode): balances (i) magnitude of private interests; (ii) government interest in procedural expedition (correct, efficient, consistent decision-making); (iii) the likely contribution of various procedural ingredients to the correct resolution of disputes (problem = subjective; how to weigh interests?).

C. Choice of Procedures

1. Introduction • Content of procedures at issue once the threshold has been crossed. • Lowering of threshold coincided with greater prominence and controversy in the content arena and an escalating crisis of confidence in the adversarial model (cost, access, etc.). • But also advocacy of greater transparency for administrative agencies and tribunals. • Charter has also added to the complexity of this domain (do the “principles of fundamental justice” call for greater/different procedures than the common law rules of natural justice?). • As a result of the complexity, etc.: greater reliance on procedural codes (boilerplates) than common law (see infra). E.g. Ontario Statutory Powers Procedure Act 1971, Alberta Administrative Procedures Act 1966, Quebec Administrative Justice Act 1996 – How useful is this legislation? • What are the general principles or ways of thinking that should govern choice of procedures?

Goldberg v. Kelly (1970) (US) • Facts: welfare recipients challenged the procedures for termination of welfare payments (notice and reasons of termination, post-termination hearing). • Issue: what were the appropriate procedures in this case. • When welfare is discontinued, only a pre-termination oral evidentiary hearing provides the recipient with procedural due process (welfare is a critical entitlement to individuals and government interests in fostering dignity and well-being are also so served). • Fiscal concerns and administrative overhead do not outweigh these concerns (whose effects may be mitigated by flexible procedures, uncomplicated hearings, etc.). • The hearing need not take the form of judicial or quasi-judicial. • However, it is not enough that a welfare recipient may present his position to the decision-maker in writing or second-hand through his caseworker (as credibility is an issue, a recipient must be allowed to state his position orally although informal procedures will suffice). • Recipients must also be given a chance to confront and cross-examine the witnesses relied on by the department and must be allowed to retain an attorney if they so desire. • Finally, the decision-maker should state the reasons for his determination and indicate the evidence he relied on. • Note: there was no issue in this case of the entitlement to procedural due process. • Also note: this case is the American “high-water mark” for procedural fairness.

Mathews v. Eldridge (1976) (US) • Facts: D challenged the procedures, which did not include a pre-termination trial-type hearing, for termination of disability benefits made under the Social Security Act. • The identifications of the specific dictates of due process generally requires consideration of three distinct factors: (i) the private interest that will be affected by the official action; (ii) the risk of an erroneous deprivation of such interest through the procedure and the probable value, if any, of additional or substitute procedural safeguards; and (iii) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. • In view of the additional potential sources of temporary income available to a disabled worker, there is less reason here than in Goldberg to depart from the ordinary principle that something less than an evidentiary hearing is sufficient prior to adverse administrative action (potential deprivation is less) (query: welfare is related to income/need!). • Note: the implication here is that welfare interests outweigh disability interests. • As well, the decision whether to discontinue disability benefits will turn, in most cases, upon routine, standard and unbiased medical reports by physician specialists (the potential value of an evidentiary hearing or even oral presentation to the decision-maker is substantially less in this context than in Goldberg). • Applicant has full access to information relied on by state agency. Also has opportunity to respond to evidence relied on by subitting additional evidence or arguments. • Final factor is the public interest. • In assessing what process is due, substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals (= weighing of scarce resources).

• Rabin – no incentives to settle in administrative context so if trials every time becomes expensive; trial model has little to recommend it when evaluating performance

Suresh v. Canada (Minister of Citizenship and Immigration) • Facts: Suresh was landed immigrant in respect of whom a security certificate was issued under s. 53(1)(b). Suresh had opportunity to make written submissions, but no copy of the report on the basis of which the certificate was issued (CSIS material) and therefore not able to respond to it. • Common law doctrine in Baker recognizes ingredients of fundamental justice for s. 7 (5 Baker factors set out). • Nature of decision; some resemblance to judicial but also Ministerial discretion. Not determinative either way. • Nature of statutory scheme; need for strong safeguards. Extensive protections under s40.1 of Immigration Act but lack of protections under s. 53(1)(b) and no appeal procedure. • Importance of right effected; significant because convention refugee and risk of torture if deported. • Choice of procedures; Minister is free to choose. Need for deference must be reconciled with other factors. • On balance – more procedure required but not full oral hearing. A person facing deportation to torture: • Must be informed of the case to be met. • Opportunity to respond to and challenge this. • Procedural rights only need to be invoked if risk to an individual’s fundamental right to be protected from torture and other abuses. • The basic procedural protections could not be justified by s. 1. The valid purpose of excepting some convention refugees from the protection of s. 53(1) does not justify the failure of the minister to provide fair procedures – no rational connection to objective.

2. General Statutes about Procedures

Ontario Statutory Powers Procedure Act (1990) • Significance: deals with procedures at administrative hearings. • S. 1: definitions. • S. 2: the Act “…shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” • S. 3: application (to proceedings, by tribunals, in the exercise of statutory power, that are required by law – statutory or common law – or the court to hold a hearing; s. 3(2) = exceptions, e.g., court, arbitrations, coroner’s inquests, public inquiries). • S. 4: waiver (any requirements may be waived by consent of parties and the tribunal). • S. 4.1: parties may consent to dispose of a matter without a hearing. • S. 5: “parties” = those specified by statute or persons entitled by law. • S. 5.1: permissibility of written hearings. All parties entitled to receive all documents. • S. 5.2: permissibility of electronic hearings. • S. 5.3: permissibility of pre-hearing conferences. • S. 5.4: disclosure (privilege and statutory exemptions continue to apply). • S. 6: reasonable notice required (time, place, purpose, etc.); see also s. 24. • 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. • S. 9: hearings are to be public except where security issue, compelling private interests. • S. 10: parties may be represented by counsel/agents. • S. 10.1: may call, examine, cross-examine witnesses. • S. 12: tribunal may issue summonses and compel evidence (see s. 13 enforcement). • S. 14: self-crimination protection for witnesses. • S. 15: admissibility of evidence (including hearsay). • S. 17: tribunal must give decisions and reasons in writing. • S. 20: tribunal must compile a record of its proceedings. • S. 25(1): an appeal from a decision of a tribunal to a court or other appellate body operates as a stay unless another Act or regulation expressly provides to the contrary or the tribunal or court or appellate body orders otherwise. • S. 25(2): an application for judicial review under the Judicial Review Procedure Act is not an appeal. • S. 25.0.1: allows tribunals to make orders with respect to the procedures and practices that apply in any particular proceeding and establish rules under s. 25.1. • S. 25.1(3): requires rules to be consistent with this Act and with the other Acts to which they relate (that rule can, however, be overridden by express statutory language in the enabling statute). • Note: the standard of proof here is not as high as in criminal proceedings (more of a “civil standard” and greater flexibility/discretion). • Consequences of breach of this Act: if technical, usually remedied with more time, etc.; for more serious violations, a reprimand or even the overturning of a decision. • Note: technically one may not have to exhaust internal appeals before seeking judicial review, but courts are unlikely to be receptive to this. • Do considerations of appropriateness affect the application of the SPPA? If so, how? (e.g. if statute doesn’t actually call for hearing but consultation etc.) • Common law assumption – decisions are judicial/legislative/administrative. Hearings required for former but not latter two. But threshold cases show that some procedural requirements may be imposed for latter. • Re Downing and Graydon (1978) – SPPA expressly excluded, process for investigation and adjudication of claims established. CA held that this was not necessarily an exclusion of natural justice. • Judicial review remains an important forum for the development of procedural norms. • NB – in Webb above concluded not judicial and Act did not apply.

Alberta’s Administrative Procedures Act (1980) • Applies only to specific bodies (see s. 2). • Less detailed than the Ontario Act and provides fewer procedural guarantees. • S. 2: Cabinet designates those authorities to which the Act does or does not apply and there is no public scrutiny when such an order is made. • S. 3: only requires a tribunal to give adequate notice. • S. 4: requires that parties be given reasonable opportunity to provide evidence (the tribunal must disclose enough information to the parties to allow them to know the nature of the case and to make representations by way of argument to the authority). • S. 5: allows cross-examination if no other fair opportunity to rebut/explain allegations. • S. 6: this right does not include any right to make oral representations or to be represented by counsel (although specific enabling statutes might include such rights). • S.7: requires the tribunal to release written reasons which set out the findings of fact on which they depend. • S. 8: authorities must also comply with other acts. • S. 9: no need for oath, rules of evidence do not necessarily apply.

3. Pre-Hearing Issues

Notice • Always necessary or other rights can’t be exercised. • Type/form/extent may vary (see the SPPA). • Re Hardy and Minister of Education (1985) – personal notice not required for lots of people – so advert in newspaper might be OK (if not otherwise specified by legislation). • Re Central Ontario Coalition and Ontario Hydro (1984) – notice was insufficient. • Re City of Winnipeg and Torchinsky (1981) – notice which arrived late was insufficient. • Re Rymal and Niagara Escarpment Commission (1981) – as above. • Courts will usually be lenient in the case of problems with mail, though mail is usually not relied upon. • Notice must give enough information about the issues to enable the party to respond. • R v. Ontario Racing Commission, ex parte Taylor (1970) – Taylor was not given enough information about the possible consequences of the Commission’s decision. • Key issue: who to send notice (one/those who are significantly affected and are thus entitled to participate). • Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission) (1997) • Facts: blood and blood products infected Canadians with HIV and Hepatitis C. Commission of inquiry was convened. • Issue: did the Commissioner exceed his jurisdiction in the notices delivered to the appellants. Were the procedural protections adequate. • The potential findings of misconduct covered areas within the Commissioner’s responsibility to investigate, although Commissioner had no power to determine legal liability. • The appellants should have been aware of the possibility of findings adverse to witnesses. There were extensive protections offered. • Timing – no statutory requirement to give notice as soon as allegation of misconduct is foreseen. Should be given as soon as feasible, but unreasonable to insist on early – adequate time must be given to allow recipients of notice to call evidence and make submissions.

Discovery • Vs. disclosure: pre-hearing and from the other side vs. ongoing and from the tribunal (dubious distinction, similar legal principles). • Usually applies in an adversarial setting where one needs access to information from the opposing side. • Canadian Pacific Airlines Ltd. V. Canadian Air Line Pilots Association (1993) – court found that provisions did not authorize compulsory discovery orders outside the context of a formal hearing. In the absence of such authority there is not likely to be any presumption drawn as to the existence of such authority. • According to the SPPA, a tribunal may order discovery (s. 8, s. 12) • Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital (1993) – justice better served in proceedings under the Human Rights Code when there is complete information available to the respondents. Serious allegations with severe consequences had been made – should be made in responsible and conscientious fashion. Court not particularly careful about locating precisely the source of the board’s authority to order production of documents (whether s. 8 or s. 12). • Pritchard v. Ontario (Human Rights Commission) – holding that an opinion letter written by a commission in-house lawyer was privileged. • If no right to discovery is found in statute, common law entitlement is not obvious (it depends on the seriousness of the allegations, stigma, etc.). • Factors mitigating against disclosure: confidentiality, chilling effect on those who may come forward in certain cases.

May v. Ferndale Institution (2005) • Facts: inmates serving life sentences involuntarily transferred from a minimum- to a medium-security institution. No allegations of fault. • Stinchcombe principles do not apply in the administrative context. • In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. • In order to assure the fairness of decisions concerning prison inmates, s. 27(1) of the CCRA imposes an onerous disclosure obligation on CSC. It requires that CSC give the offender, at a reasonable period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary of that information”. • the applicable statutory duty of disclosure in respect of the transfer decisions is substantial and extensive. • the motion to adduce new evidence should be granted. In our view, the evidence satisfies all the requirements of the Palmer test. The fact that the appellants have repeatedly requested the information and that it was discovered only after the Court of Appeal rendered its decision shows that they acted with due diligence. In addition, the new evidence goes to the heart of a fundamental issue in these cases: procedural fairness. The respondents do not contest the credibility of the information. In addition, they were less than forthcoming in the courts below and even in our Court in their explanations and information about the existence and function of the scoring matrix. Finally, the information would likely have affected the result of the chambers judge’s decision because it clearly demonstrates that the scoring matrix was available. • non-disclosure constituted a major breach of the duty to disclose inherent in the requirement of procedural fairness. The appellants were deprived of information essential to understanding the computerized system which generated their scores. The appellants were not given the formula used to weigh the factors or the documents used for scoring questions and answers. The appellants knew what the factors were, but did not know how values were assigned to them or how those values factored into the generation of the final score. • Hence, given the importance of the information contained in the scoring matrix, the presumptive validity of the score and its potential effect on the determination of security classification, it should have been disclosed.

• CIBA-Geigy Ltd. V. Canada (Patented Medicine Prices Review Board) • Patented Medicine Prices Review Board refused disclosure to appellant. Hearing was scheduled to determine whether appellant was selling a drug at an excessive price. Heavy potential monetary penalties. • Tribunal is not a criminal court. The obligations concerning disclosure 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. • The work of the Board should not be impeded from an administrative viewpoint. Hearing should not be unduly prolonged. Trustful relationship with staff maintained.

Delay • The notion that undue delay in the conduct of administrative proceedings can amount to a breach of the rules of natural justice or procedural fairness has been accepted (great potential for prejudice). • This has coincided with criminal law “abuse of process” developments and the Charter (s. 11’s trial “within a reasonable time” – only directly applicable to criminal process or situations involving true penal consequences, but indirect impact on “principles of fundamental justice” for the common law and s. 7).

Kodellas v. Saskatchewan (Human Rights Commission (1989) • Consider (1) whether the delay is unreasonable; (2) the reason for the delay; (3) the prejudice or impairment caused by the delay. • Delay was unreasonable (3yrs 11mnths). • Complainants and respondents were not responsible for the delay – it was ascribable to the Commission. • Prejudice – inability to locate witnesses. Court not satisfied enough effort had been made, but on balance the unreasonable delay was not explained or displaced. • Court order staying proceedings (query whether same result post Blencoe)

Nisbett v. Manitoba (Human Rights Commission) (1993) • Facts: allegations of sexual assault were made against P; proceedings were greatly delayed despite P’s requests that things be expedited. • It cannot now be doubted that the principles of natural justice and the duty of fairness include the right to a fair hearing, and that delay in the performance of a legal duty may amount to an abuse that the law will remedy. • If, however, there is no satisfactory evidence of prejudice, there can be no denial of natural justice or abuse of process (here: no such evidence of prejudice). • Note: also see Blencoe v. British Columbia (Human Rights Commission), supra (this case came first but is consistent with respect to the common law).

4. The Hearing

Oral Hearings • Traditionally: usually required as an element of natural justice, but not always (great discretion given to agencies). • Recently: primacy of oral over written and other forms of hearing as a component of the principles of fundamental justice has been subject to competing tensions (the lowering of the threshold has allowed for more informal process since what is at primary issue is the ability to get one’s point across – see Nicholson, supra and Webb, supra – though the Charter may in some cases so require – see Singh, supra). • In Baker, supra, the court talks about meaningful participation and hints that deference should be shown to boards and tribunals in their choice of procedures; the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness because Baker had the opportunity to produce full and complete written documentation. • Note: an oral hearing will be required where credibility is at issue (Baker, Singh, Khan). • Also note: s. 5(1) of the SPPA says that a tribunal that has made rules dealing with written hearings may hold a written hearing; else, if the SPPA applies, one is entitled to an oral hearing unless a party to the hearing can show good reason why an oral hearing should not be held (similarly, an electronic hearing can be held unless a party can demonstrate significant prejudice would result).

Khan v. University of Ottawa (1997) • Facts: a law student failed an exam but claimed she submitted four booklets and only three were marked; she was not afforded an oral hearing on appeal. • Where the credibility of the claimant is the central issue he should be granted an oral hearing. • In this case the appellant was not accused of dishonesty. • Note: an oral hearing will generally not be demanded in academic appeals.

Hundal v. Superintendent of Motor Vehicles (1985) • Facts: pursuant to the Motor Vehicle Act, D prohibited P from driving in the “public interest”; P appealed his suspension as a denial of his s. 7 rights that could not be justified (note: earlier cases established that a licence suspension violated s. 7 rights of “lifer, liberty, and security of the person”). • Issue: the extent to which anything less than a “full” oral hearing may be justified when Charter rights are at stake. • The “principles of fundamental justice” (s. 7) do not require that an administrative decision must always be made after a formal hearing (see Singh, supra); rather, the content of such principles will vary on the circumstances of each case. • However, at a minimum, fairness will require some kind of hearing, even if it only involves the most rudimentary ability to respond to and have notice of a case. • Here: full oral hearing not required (safeguards in place, e.g., ability to respond, no issues of credibility, administrative rather than judicial act, appeal procedure).

Masters v. Ontario (1994) • Facts: P was dismissed from the civil service after a report alleging sexual harassment; he sought judicial review on the grounds that witnesses were interviewed without his counsel present, that records were not property kept, and that few of the same witnesses agreed to meet with him. • Issue: whether P deserved a full oral hearing in this case, i.e., whether credibility was the main issue at hand. • Here: P’s job was politically accountable and his dismissal was as a result of a discretionary decision rather than pursuant to statute; thus, the decision is of a more legislative or discretionary nature; he did not deserve a full hearing (he was given notice and an opportunity to respond, sufficient in this matter). • Note: the SPPA did not apply in this case since no statutory power of decision was exercised within the meaning of the Act and no hearing was required either by statute or “otherwise by law.”

Open Hearings • SPPA – presumption in favour of openness. • Opposite presumption in proceedings before Refugee Division (but not adjudicators) (Immigration Act).

Right to Counsel

Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Workers’ Union (1979) • Disputes in men’s clothing industry traditionally resolved without lawyers. • Arbitrator: • In Courts and other forums an absolute right to counsel is not an indispensable feature of natural justice. • Legal representation is generally desirable and the exercise of discretion by the tribunal should favour it. • However there may be some circumstances where the participation of counsel is inimical to the functioning of the tribunal. • SPPA provides that parties to proceedings may be represented at a hearing by counsel or an agent. However proceedings does not include proceedings before an arbitrator to which the Labour relations Act applies. • The arbitration system is informal, no witnesses, chairman frequently questions parties. • Therefore hesitancy over introducing lawyers, but may be issues which are suitable for argument by counsel. • Not prepared to afford counsel full rights of participation in the instant case, but may participate in the hearing to the extent of making the pertinent serious legal argument. • On review: • Because parties are not natural persons, the decision of the arbitrator limited who they can choose to represent them. • Matters of considerable age and complexity, and arbitration would involve questions of law other than those on which arbitrator gave leave to counsel to file and present argument.

Irvine v. Canada (Restrictive Trade Practices Commission) (1981) • See above • There may be occasions when counsel may be present but not parties, e.g. when valuable commercial information is being discussed.

Re Parrish (1993) • Facts: investigation of ship collision, investigator refused captain counsel. Members of the crew of the other ship had been allowed counsel. The board put a question to the Federal Court Trial Division as to whether it could require the captain to attend and give evidence under oath without the presence of counsel. • Irvine is distinguishable – that case involved the determination of whether counsel could exercise greater functions. • The scope of the fairness principle depends on the consequences and nature of the inquiry as well as the repercussions on individuals involved. • Duty to act fairly implies the presence of counsel when a combination of some or all of the following elements are either found within the enabling legislation or implied from the practical application of the statute governing the tribunal: • Where an individual 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 or his livelihood • Or where some other irreparable harm can ensue. • The Board can limit the number of counsel to one. • Otherwise the need for administrative expediency in the proceedings does not outweigh the necessity for the protection of a witness through the presence of counsel.

Howard v. Stony Mountain Institution (1985) • Application for an order prohibiting the respondent from continuing or concluding the hearing of charges against the appellant in the absence of legal counsel. • Issue: whether the appellant had an undeniable right to counsel and whether s. 7 Charter guaranteed that right. • Disciplinary court proceedings are essentially administrative rather than quasi-judicial. But whether inmate dealt with in accordance with natural justice or “fairly” could not be in a position to demand as of right to be represented by counsel. • Does s.7 afford him that right? Because earned remission in jeopardy and possible solitary confinement, affects liberty and security of the person. • S. 7 does not create an absolute right to counsel – right of opportunity to present case adequately but it cannot be said that this always cannot be done without counsel. Right to counsel will therefore depend on the circumstances of the particular case. • In this case refusal of the appellant’s request fro counsel was a refusal of the opportunity to which he was entitled to adequately present his defence.

New Brunswick (Minister of Health and Community Services) v. G. (J.) (1993) • Issue: whether ss. 7 and 24(1) of the Charter mandate state-funded counsel. • One’s right to a fair hearing may require that he be represented by counsel, having regard to (i) the seriousness of the interests at stake, (ii) the complexity of the proceedings, and (iii) the capacities of the individual. • Here: fundamental justice required state-funded counsel (child custody hearings involve serious interests and are complex, at least in this case, and without counsel both the parent’s and the child’s s. 7 security interests are threatened without accord to the principles of fundamental justice). • Note: the court found that the seriousness of the interests at stake in this context will vary with the length of proposed separation between child and parent. • Also note: as for the s. 1 Oakes analysis, the court assumed a pressing and substantial objective, rational connection, and minimal impairment – but found the deleterious effects to far outweigh the salutary effects of budgetary savings.

Disclosure • One is entitled to know what evidence, representations have been given and is entitled to an adequate opportunity to respond (Kane v. Board of Governors of the University of British Columbia (1980)) (unless some competing interest prevails). • One issue: limits in the name of confidentiality and privilege (generally approached from a common law perspective). • Relevant legislative regimes and common law principles: • Access to information statutes. • Crown or executive privilege (Canada Evidence Act 1985 ss. 37-39) (public interest) • Other common law evidential privileges (e.g., solicitor-client).

Re Napoli and Workers’ Compensation Board (1981) • Did not give the worker a full opportunity to peruse his file when he appealed from the original decision of a disability awards officer or commissioner. • The rules of natural justice apply to the hearings before the boards of review and the commissioners sitting on appeal and therefore the file contents must be disclosed. • In this case, a summary was not enough to comply with this.

Charkaoui v. Canada (Attorney General) (2003) • Facts: The Immigration and Refugee Protection Act (“IRPA”) allows the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness to issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of security, among others (s. 77), and leading to the detention of the person named in the certificate. The certificate and the detention are both subject to review by a judge of the Federal Court, in a process that may deprive the person of some or all of the information on the basis of which the certificate was issued or the detention ordered (s. 78). Once a certificate is issued, a permanent resident may be detained, and the detention must be reviewed within 48 hours; in the case of a foreign national, the detention is automatic and that person cannot apply for review until 120 days after a judge determines the certificate to be reasonable (ss. 82‑84). The judge’s determination on the reasonableness of the certificate cannot be appealed or judicially reviewed (s. 80(3)). If the judge finds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and which may be immediately enforced (s. 81). Certificates of inadmissibility had been issued by the Ministers against the appellants C, H and A. While C is a permanent resident, H and A are foreign nationals who had been recognized as Convention refugees. All were living in Canada when they were arrested and detained on the basis of allegations that they constituted a threat to the security of Canada by reason of involvement in terrorist activities. C and H were released on conditions in 2005 and 2006 respectively, but A remains in detention. Both the Federal Court and the Federal Court of Appeal upheld the constitutional validity of the IRPA’s certificate scheme. • Here, s. 7 is clearly engaged because the person named in a certificate faces detention pending the outcome of the proceedings and because the process may lead to the person’s removal to a place where his or her life or freedom would be threatened. Further, the IRPA’s impairment of the named person’s right to life, liberty and security is not in accordance with the principles of fundamental justice. The procedure for determining whether a certificate is reasonable and the detention review procedure fail to assure the fair hearing that s. 7 requires before the state deprives a person of this right. • Section 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security. Societal interests may be taken into account in elucidating the applicable principles of fundamental justice. Security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice. • The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999]. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance. • The IRPA scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government’s case (“case to meet” principle). This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law. • The test to be applied in determining whether a violation can be justified under s. 1, known as the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103), requires a pressing and substantial objective and proportional means. A finding of proportionality requires: (a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective. The infringement of s. 7 is not saved by s. 1 of the Charter. While the protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective, and the non‑disclosure of evidence at certificate hearings is rationally connected to this objective, the IRPA does not minimally impair the rights of persons named in certificates.

Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) (1989) • Identity of sources of information – general rule is reasonableness. • See also Chiarelli above. • Facts: G suspected of involvement in extortion and drugs, told that information received to this effect but more specific information not disclosed because it would “jeopardize the safety of the victims” of his actions. • No reason to question Warden’s opinion that disclosure of identity would put them in danger of death or serious bodily injury. These circumstances were sufficient to relieve the appellant from the obligation to give a more detailed notice. • Were s. 7 rules violated? Do the rules of fundamental justice have the same flexibility as the rules of natural justice and procedural fairness? They are flexible in the sense that the rule may produce different results in different contexts (like natural justice) but not in the sense that they can never frustrate the intention of Parliament (unlike natural justice). • In this case not given a real opportunity to answer the allegation so not in accordance with the principles of fundamental justice. • However, can be justified under s. 1. • Judgement concurring in the result: audi alteram partem principle did not require that more information be given to the inmate. • Distinction between punishment for an offence and decision to transfer made for the proper administration of the institution.

Gough v. Canada (National Parole Board) (1990) • Facts: P’s parole was revoked after allegations of sexual assault and drug use; at hearing, subject to its authority under the Parole Regulations, D did not reveal details of these allegations. • Issue: whether the lack of disclosure violated P’s s. 7 rights. • It is no answer that one need not be given information since he already knows it (and if he does, what is the harm in formal disclosure?). • It is trite under the common law and s. 7 of the Charter that the rules of fundamental justice require that an individual is entitled to know the case against him in a decision-making process which leads to a diminution of his liberty (to prevent abuses, false accusations, and arbitrariness). • Note: this “liberty” interest is relatively less for convicts, but at least in this case P is at the lowest level of parole and thus has a relatively high liberty interest. • The principles of fundamental justice require the National Parole Board to provide a person whose parole is about to be suspended with enough detail to allow him to answer the allegations (s. 1 does not apply: there is no evidence that disclosure has a negative impact on the operation ability of the parole system).

Magnasonic Canada v. Anti-Dumping Tribunal (1972) • Commercially sensitive material. • May be heard in camera and everyone except counsel may be excluded. • See also Canadian International Trade Tribunal Act 1985.

Staff Studies • e.g. inspection reports, studies of industries.

Toshiba v. Anti-Dumping Tribunal (1984) • Dangerous practice not to reveal reports prepared by staff. • But in this case first report contains matters of general or public knowledge or matters which were brought out at the hearing. So while technical breach of rules of natural justice, the breach was minor and inconsequential. Second report contained summary of evidence and submissions at inquiry. Part of internal process, not necessary for parties.

• NB – Janisch criticizes these cases for not drawing on American jurisprudence distinguishing summary and commentary etc. • Access to material by staff still comparatively unsettled.

Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board (1984) • Where decision of tribunal is based on staff reports to which parties have not had access containing evidentiary material to which the parties have not had an opportunity to respond, it may well be possible to make out a case for requiring that they be included. • But in this case the principle reason for seeking their inclusion was to establish the Board’s reasons for decision, and no reason to assume the opinion of the staff was adopted by the board.

Canada (Info. Commissioner) v. Canada (Min. of Citizenship and Immigration) (2002) • Issue: whether the names of those interviewed in the course of an administrative review, who expressed views/opinions about a senior officer at the Department of Citizenship and Immigration, and portions of their interviews which would identify them, are exempted from disclosure as their “personal information” as defined in paragraph 3(i) of the Privacy Act. • What one intends to do with information or the reasons for requesting it are irrelevant; right of access is the issue. • Promises of confidentiality to witnesses may not override statutory obligations or other entitlements of disclosure. • Any possible chilling effect has been consistently denied for refusing disclosure. • Information may be “personal” to more than one individual; the Privacy Act requires one interest to prevail, perhaps with regard to a public interest as well. • Thus: with respect to statutory interpretation, where different factors may be pointing in different directions, e.g., to disclose or not to disclose, a decision must be made by balancing interests with particular weight attached to the public interest. • Here: paragraph 3(i) does not apply and disclosure is mandated in both the private interest of the individual and the public interest.

Khan v. University of Ottawa (1997) • Facts: a law student failed an exam but claimed she submitted four booklets and only three were marked. • Where the decision-maker has identified in advance “factors” which it considers crucial, these must be revealed (= full notice of case, ability to respond).

Official Notice • = the extent and manner in which an agency may, in making its decisions, use material that is not introduced in evidence, i.e., what they know or think they know (not everything must be subjected to a full test of proof). • Davis, Administrative Law (US) – 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 the facts that influence the disposition of the case. • SPPA s. 16 • However independent gathering and use of evidence not approved of (Lawal v. Canada (Minister of Employment & Immigration) (1991)).

Township of Innisfil v. Township of Vespra (1981) • Facts – application made by city of Barrie to annex land. • Board stated “unless Barrie is to become merely a dormitory city, it is going to have to draw in substantial new industry… If we assume that in order to induce industries to move to Barrie they are going to have to be provided with industrial land at four times their present requirements, we would have to double the industrial requirements in the above figures [ref. to calculation of land area requirements].” Opposing municipalities argued no evidence for this conclusion. • Issue: was there no evidence? Could the board rely on its experience gathered from other cases? • Lerner J: vacancy formula was not a matter of general knowledge of which the Board could take notice either in its quasi-judicial role or on the basis of the SPPA. • Henry J: the Board had the right to refer to the experience of a previous case. But should have conveyed information and intention to those at hearing and let them make submissions. • Craig J: there was some evidence that supported board’s conclusion. • On appeal: (Supreme Court affirmed CA) a tribunal intending to use any prior decision as a precedent should give parties to the hearing proper notice so they may comment. However, 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. It used the case not as a precedent but as an example. Therefore no error of law.

Admissibility of Evidence

Miller (T.A.) v. Minister of Housing and Local Government (1968) • Agencies are not governed by the rules of evidence used by courts. • Hearsay is admissible where it can fairly be regarded as reliable. • Tribunals are entitled to act on any material which is logically probative.

University du Quebec a Trois-Rivieres v. Larocque (1993) • SCC sustained the quashing of arbitration award by reason of wrongful refusal to admit evidence where the evidence was both relevant and crucial to the defence.

Bond v. New Brunswick (Management Board) (1992) • Dismissal for sexual assault set aside where victim did not testify and arbitrator relied on hearsay. Given the sanction and seriousness of the allegations, this was not sufficient to meet the requirements of natural justice.

Cross-Examination • SPPA – cross-examination permitted where reasonably required.

Re County of Strathcona No. 20 and MacLab Enterprises (1971) • Facts: the Province rezoned land from agriculture to urban; a group appealed the rezoning on the basis that it was unsuitable for residential housing due to emissions from nearby industry (it sought to cross-examine an influential report). • Issue: the extent to which one has a right to cross-examine. • Note: this case was pre-Nicholson, supra, and so the quasi¬-judicial nature of the hearing was relevant. • In such a hearing, the principles of natural justice entitle parties to present their case and weaken the case against them; the right to cross-examine is not automatic so long as the party is given an equally effective method of answering the case made against them. • Here: the relevant Act allowed the Board to make rules of practice and it was not bound by the technical rules of evidence; the fact that there was no opportunity to cross-examine went to weight rather than admissibility (in any case, the group did have the chance to provide written comments and had a full opportunity to correct and contradict the findings set out in the report).

Innisfil (Township) v. Vespra (Township) • Issue: whether municipalities entitled to cross-examine the official of the ministry who had presented the letter. • Cross-examination is a vital element of the adversarial system. Where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination. • Natural justice, fairness, audi alteram partem – if appellant has the right to cross-examine, should not be withheld because appellant cannot advance case by cross-examination.

Re B and Catholic Children’s Aid Society of Metropolitan Toronto (1987) • Facts: the Child Welfare Act established a list of individuals who had been reported as child abusers; if one was on the list, he was entitled to such notice and could make an application to be removed (a hearing was required); a man was denied removal on the basis of hearsay testimony. • Here: the inability to cross-examine amounted to a denial of natural justice. • Note: this case is somewhat distinct insofar as stigma was a great consideration. • Access to the alleged victim for the purposes of cross-examination in contexts such as this remains controversial.

The Limits of the Trial-Type Hearing • Formal factfinding procedures cannot always increase the accuracy of the agency’s decision. May lead to reduced administrative efficiency. • A judgment on policy or “legislative fact” invariable involves an admixture of particular facts, opinions, and biases, some of which may and some of which may not be appropriate for exploration by testimony and cross-examination. • Law Reform Commission of Canada, working paper no. 25, “Independent Administrative Agencies” (1980) – generally the courts have determined that the closer administrative proceedings come to deciding questions involving initial restraints on liberty, confiscation of property rights, or the imposition of other significant sanctions, the stricter should be the procedural guarantees of fairness.

D. Duty to Give Reasons

• SPPA (s. 17(1)) and Alberta Administrative Procedures Act require decision makers in their purview to give reasons (SPPA – on request).

1. Baker Commentary • This case adopted a common law requirement of reasons in certain circumstances (absent prior); but query the substantive content that would be ascribed to “reasons.” • Primary rationale: public confidence. • Previous trepidation with respect to mandate reasons: administrative inefficiency, no general duty to do so in courts, requires particular skills not all may have. • Concerns: broad acceptance of what constitutes “reasons”; duty for reasons flows from duty of fairness, therefore if there is no duty of fairness there is presumably no duty to give reasons; it is not clear whether reasons must be offered or requested. • Empirically: these concerns not wholly justified (duty to give reasons not just symbolic but a substantive procedural protection). • Effect of this case: must weigh the factors identified in Baker to determine if reasons required (it is not a general duty!), with particular emphasis on legislation and the stakes. • Note: many statutes mandate reasons and their form (maybe in all cases, just in negative cases, oral vs. written, etc.).

Service Corp. International (Canada) Inc. v. Burnaby (City) (1999) • Municipal corporations not obliged to provide reasons for decisions in planning matters.

Hilo v. Minister of Employment and Immigration (1991) • More specificity required when the tribunal rejected the only viva voce evidence.

Suresh v. Canada (Minister of Citizenship and Immigration) (2002) • Provision of substantial reasons necessary in ‘danger to the public or the security of Canada’ deportation cases, at least in risk or torture and related situations.

VIA Rail Canada Inc. v. National Transportation Agency (2001) • Agency found that a provision requiring attendants to disabled people to be capable of assisting the disabled person to get on and off trains to be an undue obstacle to the mobility of persons with disabilities (should be the responsibility of VIA). • Issue: Did the Agency provide adequate reasons for this. • Reasons foster better decision making, assure the parties that their representations are considered and allow the parties to effectuate any right of appeal or judicial review they may have. • The duty is only fulfilled if the reasons are adequate. Decision maker must set out findings of fact and principle evidence on which findings based. Must address major points in issue. Process must be set out and reflect consideration of main relevant factors. • Reasons did not state how the requirement constituted an obstacle. Reasons did not provide sufficient insight into reasoning process and were insufficiently clear with respect to the conclusion. • Nor did they reveal how they interpreted the term undue. • National Transportation Act states conditions should not present an undue obstacle “so far as practicable”. Agency failed to consider this qualification. • Agency therefore erred in law.

2. Effect of Breach of the Duty to Give Reasons • If decision maker misinterpreted legislation, committed error of law decision may be set aside, or if reasons deal with some arguments and evidence only the court may conclude that other relevant issues were not considered and set decision aside (MacDonald v. The Queen (1977)). • If reasons indicate most important issues considered, a court will not necessarily infer others were ignored (Kindler v. Attorney General of Canada (1987)). • Where legal duty to give reasons and reasons not given tribunal may be required by an order of mandamus to do so. • A decision not accompanied by adequate reasons may be set aside as erroneous in law (Blanchard v. Control Data Canada Ltd. (1984), Re Minister of Employment and Immigration and Singh (1987)). • Case may be remitted for rehearing on those aspects not adequately dealt with in reasons (Orlowski v. British Columbia (Att. Gen.) (1992)). • It is the decision which can be set aside and not the reasons.

E. Bias and Lack of Independence

1. Introduction • Nemo judex in causa propria sua debet esse. • Common law: right to unbiased decision-maker. • Instead of inquiring into the actual state of mind of adjudicators (difficult, controversial), questions of bias generally concern whether the particular situations of the decision-maker is such as to give rise to a sufficient risk than an impermissible degree of bias will in fact exist (“reasonable apprehension of bias”). • The courts’ tolerance for attitudes, prior involvements, and relationships on the part of the decision-maker will vary with the statutory context in which the allegation of bias is raised. • Remedy: adjournment for judicial review (order of prohibition preventing the process fro going ahead with the particular decision-maker); note that this is one time where the court will permit petitioning to them in the middle of a proceeding. • Types of bias: material/pecuniary (direct or indirect material interest); institutional (when a statute authorizes a body to perform multiple functions such as investigation, prosecution, and adjudication); and attitudinal (internal predisposition of the decision-maker). • Note the tension between the need for expertise and experience, as well as the necessary appointment process, and the triggers of bias (solution: tripartite boards?).

2. Pecuniary and Other Material Interests • Common law always treats a direct pecuniary or other material interest in the outcome of a matter as disqualifying an adjudicator or decision maker automatically. • De minimis exception in UK (Locabail (UK) Ltd. V. Bayfield Properties Ltd. (2000)). • Pecuniary/material interest may be statutorily authorised.

Energy Probe v. Canada (Atomic Energy Control Board) (1984) • Facts: Board member granted license for nuclear generating station. President of company that supplied cables to nuclear power plants and official or member of several organizations that supported use of nuclear power. • Issues: (1) does the doctrine of fairness enunciated in Nicholson apply to the licensine function of the Board, and does that doctrine of fairness include a requirement of lack of bias on the part of the board members? (2) did the Board member have a pecuniary interest in the outcome sufficient to constitute pecuniary bias? (3) does the applicant have standing? • Administrative not quasi-judicial or judicial function. • Doctrine of fairness in Nicholson therefore applies. • No direct pecuniary interest because no contract pending. • Concurring judgment: rules of fairness should apply but should be less strict than for an adjudicative tribunal. The interest should be immediate and certain.

Old St. Boniface residents Assn. Inc. v. Winnipeg (City) (1990) • Classification of the function as judicial or quasi-judicial no longer a prerequesite to a challenge on the basis of bias. • Standards of detachment expected of decision makers vary according to the nature of the role being performed.

3. Bias: The General Test • Reasonable apprehension of bias. • “The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.” (Committee for Justice and Liberty v. National Energy Board (1978)) • What knowledge should be attributed to the reasonable bystander? • Sub-categories that traditionally have been seen as giving rise to disqualification (Re Energy Probe):

Antagonism During the Hearing • Based on the way the hearing is conducted. • Aggressive questioning or comments about testimony e.g. Golomb v. Ontario (College of Physicians and Surgeons) (1976) • Baker – antagonism was found in memorandum on which decision was based. • Principle concern often the creation of an impression that the decision-making function of the tribunal has been taken over by counsel and the language frequently used is the broader concept of an “appearance of unfairness” – see Adair v. Ontario (Health Disciplines Board) (1993).

Association Between Party and Decision Maker • E.g relative (Convent of the Sacred Heart v. Armstrong’s Point Association and Bulgin). • C.f. Ontario Hydro v. Ontario (Ontario Energy Board) (1994) (counsel could not be employed by board who had previously acted for Hydro) and Marques v. Dylex Ltd. (1997) (connection too tenuous).

Involvement of Decision Maker in Earlier Stage of Process • Leading case on test for bias – Committee for Justice and Liberty v. National Energy Board (1978) – member of board involved in planning and discussions for pipeline before joining board. • More usual situations involve rehearing before same tribunal after judicial review etc.

4. Statutory Authorization

Brosseau v. Alberta (Securities Commission) (1989) • Facts: D alleged that P included false/misleading statements in his company prospectus; P sought to disqualify the Chair on the basis that he had ordered an investigation and received a report prior to the hearing (investigation and adjudication). • The principle that no one should be a judge in his own action underlies the doctrine of “reasonable apprehension of bias”; an exception occurs, however, where an overlap of functions is authorized by statute. • The facts of this case do not give rise to a reasonable apprehension of bias nor do they undermine public confidence in the impartiality of the Securities Commission (the Act involved contemplated the Chair’s involvement at several stages). • Thus: statue may displace the common law disposition against overlapping roles (and the courts will look hard to find this authorization – it was unclear in this case!).

E.A. Manning Ltd. v. Ontario Securities Commission (1994) • Facts: in a policy statement, D indicated that it considered the actions of several securities dealers and salespersons, who were not members of the stock exchange, to be improper; a notice of hearing was issued against one of these dealers, P. • Issue: whether D could proceed with the hearings after the Ontario Court of Justice had declared the policy statement to be without statutory authority and that the OSC by the policy statement had determined that certain dealers, such as P, were guilty of certain abuses (he claimed institutional bias against him). • An unbiased appearance is an essential component of procedural fairness, and the test is whether a reasonably informed bystander could reasonably perceive bias on the part of the adjudicator. • A dual investigatory and adjudicative role does not, by itself, give rise to a reasonable apprehension of bias; where the body carries on a policy function, a challenging party must show there has been a prejudgment to such an extent as would make representations to the contrary futile (must go beyond authorization for bias). • Where a tribunal carries on multiple functions, as does D, which is an investigator, prosecutor, policy-maker, and adjudicator, advance information about a complaint is acceptable but prejudgment is not, unless permitted by statute. • For an administrative tribunal, that one member is biased does not give rise to a reasonable apprehension that another member is biased (query: is this realistic?). • Here: the hearings could proceed but those involved in the policy statement could not adjudicate the hearings (guilt was prejudged here, and not permitted by statute). • NB – even if had held that those not involved in the policy statement had been tainted, the doctrine of necessity could have been invoked so that those Commissioners against whom no specific reasonable apprehension of bias was found could form a quorum.

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) (1996) • A reasonable apprehension of bias may exist on an institutional level. • Employees participated in the investigation, the filing of complaints, the presentation of the case to the directors and the decision. • The same lawyer might review files, prepare files, draft notices of summons, present arguments and draft opinions. Directors could decide to hold a hearing then decide the case. • The institutional bias was not statutory but could be dealt with internally by changing the way in which the regie operated.

MacBain v. Canada (Human Rights Commission) (1985) • Institutional bias arose out of the provisions of the relevant statute. Court found a constitutional basis for overriding the statute in s. 2(e) of the Canadian Bill of Rights. • The Commission investigated, made findings, prosecuted and also appointed Tribunal members. • C.f. Idziak v. Canada (Minister of Justice) (1992) – dual functions of the minister of justice were not contrary to s. 7 Charter because of flexible content of principles.

Bell Canada v. Canadian Telephone Employees Association (2003) • Facts: Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. Bell alleged that the Tribunal's independence and impartiality were compromised by two powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning "a class of cases" (Commission itself a party, investigative and policy making functions), and second, the power of the Tribunal Chairperson to extend Tribunal members' terms in ongoing inquiries. • Held: The appeal should be dismissed. • Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle. • The Tribunal should be held to a high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights. Its main function is adjudicative and it is not involved in crafting policy. However, as part of a legislative scheme for rectifying discrimination, the Tribunal serves the larger purpose of ensuring that government policy is implemented. The standard of independence applicable to it is therefore lower than that of a court. The Tribunal's function in implementing government policy must be kept in mind when assessing whether it is impartial. • The guideline power does not undermine the independence of the Tribunal. The requirement of independence pertains to the structure of tribunals and the relationship between their members and members of other branches of government. It does not have to do with independence of thought. Nor does the guideline power undermine the Tribunal's impartiality. The guidelines are a form of law. Being fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints. The guideline [page886] power is limited; and the statute and administrative law contain checks to ensure that it is not misused. • The power to extend members' appointments does not undermine the independence of Tribunal members. This question is settled by Valente. Nor does the power undermine the Tribunal's impartiality. A reasonable person informed of the facts would not conclude that members whose appointments were extended were likely to be pressured to adopt the Chairperson's views.

5. Attitudinal Bias • = predisposition towards an outcome based on a view about or prior involvement with the matter in issue (see Baker, supra).

Re Paine and University of Toronto (1980) • Issue of implied statutory authorization also relevant (the extent to which the exigencies of the statutory context dictate a movement away from normal standards of fairness. • Issue: whether the presence of a colleague on P’s tenure committee, who had earlier written a negative recommendation, constituted bias. • Divisional Court: bias. • Court of Appeal: more concerned that the substantive outcome likely would not have changed than with whether or not the procedure was fair and thus allowed the University’s appeal (great deference here!). • The question was whether P had shown that he was treated with such manifest unfairness as to call for intervention by the court. • Note: the Court of Appeal required that P demonstrate “manifest unfairness” or “flagrant violations of procedural fairness.” Appears to be a higher threshold. Deference to the internal processes of the university – a posture that before Baker was not adopted customarily in procedural fairness litigation.

Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (1993) • Miss Blackhouse was an advocate in matters involving sex discrimination and descended personally, as a party into the area of sex discrimination over which she has now been appointed to preside. • Issue of human rights activists appointed to adjudicate on complaints of discrimination under human rights codes. • Court found that she would not have had the high degree of neutrality required by simple justice.

Large v. Stratford (City) (1992) • Allegation that board chair was biased because he had made remarks in support of flexible rather than mandatory retirement. • He was called on to decide whether the evidence established that retirement at 60 was a bona fide occupational requirement of the Stratford police force. • Question of general desirability of mandatory retirement was never in issue. • To exclude everyone who ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably.

Gale v. Miracle Food Mart (1993) • Facts: P brought action against D, alleging systemic sex discrimination. • Issue: whether the existence of a feminist advocate on the Human Rights Commission and/or her previous involvement as a complainant in a similar case was sufficient to constitute bias. • The appropriate test to employ when determining if there is a reasonable apprehension of bias is whether a reasonable and right-minded person who was well informed of all the issues would perceive such bias. • Here: the court found bias on the ground of the woman’s previous involvement as a complainant but refrained from deciding on the issue of her appointment per se. • Problems: it is desirable to have those with experience and expertise and at least in this context most people will have some preconceived leaning; it seems undesirable to exclude the very group of people from adjudication who have the greatest interest.

6. Variations in Standards • Depending on the identity of decision-makers (elected, appointed), the type of decisions (adjudicative, administrative, legislative), and the stage of decision (investigative, hearing, post-hearing), there will be variations in standards as to what constitutes bias.

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990) • Facts: a municipal councillor, who was involved in proposed development and made re-zoning submissions, later acted in passage of the re-zoning by-law; P appealed. • No longer the case that the content of the rules of natural justice and procedural fairness are determined according to the classification of the functions of the tribunal. The content of the rules is now based on a number of factors including the terms pursuant to which the body operates, the nature of the particular function of which it is seized and the type of decision it is called upon to make. • A flexible approach based on the context is now taken with respect to the test to be applied for disqualifying bias. • The Legislature could not have intended that the rule requiring a tribunal to be free of an appearance of bias 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 (some degree of prejudgment is inherent in the role of a municipal councillor, e.g., he has to campaign/take position on issues). • Nor, however, could the Legislature have intended that there be a hearing before a body which has already made an irreversible decision. • Where a personal interest, beyond mere pre-judgement (which is inevitable and not inherently wrong), is found, a member of a municipal council is disqualified if the interest is so related to the existence of the public duty that a reasonably well-informed person would find that the interest might influence the exercise of that duty. • Otherwise, however, the test is whether there has been a pre-judgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile (“closed mind” test). • Effect: closed mind test applies to decision-making bodies with an inherent political role while the traditional test remains in effect elsewhere.

Save Richmond Farmland Society v. Richmond (Township) (1990) • Facts: an alderman campaigned for office as being in favour of re-zoning agricultural land for development; he had made clear in the media that his mind was essentially closed, despite scheduled hearings on the matter; P appealed the re-zoning. • A “closed mind,” provided that it is not corrupt, should not disentitle an alderman from participating in the decision-making process in circumstances like the present. • Note: this “corrupt mind” test goes even further than the “closed mind” test! • Problem: what is the point of a hearing if a decision-maker has a “closed” but not “corrupt” mind? (answer: this is for the legislature). • 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, 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 not as judges but as elected representatives who are answerable to the concerns of their constituents). • Note: this is the concurring opinion; the majority dismissed the appeal on the basis of the test elaborated in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), supra (one is not disqualified by reason of his bias unless he has prejudged the matter to be decided to the extent that he is no longer capable of being persuaded; here, the alderman was “amenable to persuasion” and did not have a “closed mind”). Supreme court divided on standard to apply when dealing with allegations of bias made against municipal councillors.

Newfoundland Tel. Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992) • Facts: pursuant to the Public Utilities Act, D is responsible for the regulation of P; members of D are appointed and the statute states that they may not have any interest in a public utility; a consumer rights advocate was appointed to D and after a commission was formed to investigate P, P moved for this person to be dismissed. The statute did not provide for/prohibit the appointment of commissioners as representatives of any group and the appointment was not challenged. • There is great merit in appointing to boards representatives of interested sectors of society including those who are dedicated to forwarding the interests of customers. • It is certainly open to a commissioner during an investigative process to make public statements pertaining to the investigation. • 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. • Once the matter reaches the hearing stage, a greater degree of discretion is required of Board members; they must conduct themselves so that there could be no reasonable apprehension of bias (here: the man had a closed mind at the hearing stage). • Note: the court went on to address the remedy for finding a reasonable apprehension of bias and voided any subsequent order resulting from the hearing (the damage created by apprehension of bias cannot be remedied).

7. Constitutional Standards

MacBain v. Canadian Human Rights Commission (1985) • Facts: pursuant to the Canadian Human Rights Act, the Commission could adopt the report of an officer appointed to investigate complaints; P, whom a complaint was filed against, argued that this gave rise to a reasonable apprehension of bias in contravention of Charter ss. 7 and 11(d). • There was a reasonable apprehension of bias in the hearing by the tribunal, because there was a direct connection between the prosecutor of the case, the Canadian Human Rights Commission, and the decision-maker; that connection gave rise to a suspicion of influence or dependency. • As a result of this finding of reasonable apprehension of bias, it follows that P was not afforded a fair hearing in accordance with the principles of fundamental justice, as guaranteed by the Charter.

8. Independence • Focus: relationship between decision-maker and government influence. • Extent to which individual member’s relative lack of security of tenure has an impact on their capacity for independent judgment. • Independence (structural considerations affecting the agency as a whole) is related to bias (case-by-case problems with a decision-maker) and impartiality (structural considerations affecting a particular decision-maker). • Though directly applicable to criminal cases only, s. 11(h) of the Charter providing for an “independent and impartial tribunal” is instructive in this domain. S 2(f) of Canadian Bill of Rights also provides for “independent and impartial tribunal” (also criminal). • Most obvious threats to independence: revolve around job security.

Sethi v. Canada (Minister of Employment and Immigration) (1988) • S. claimed to be convention refugee. Minister disagreed. New legislation abolished board who would then be eligible for appointment to replacement board. S. Argued board could not be indifferent because of hopes of appointment. Federal Court of Appeal allowed governments appeal.

Alex Couture Inc. v. Canada (Attorney-General) (1991) • At issue: challenge of part-time lay members to the Competition Tribunal. • Note: this case was argued under Charter ss. 7 and 11(d) because the Tribunal has contempt powers, which could land a person in jail (thus triggering these sections). • The test for independence and impartiality under s. 11(d) of the Charter is one of reasonable apprehension of 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. • In order to decide whether the guarantee of independence has been respected, three essential conditions must be analyzed: (i) security of tenure; (ii) financial security; and (iii) the institutional independence of the tribunal with respect to administrative decisions bearing directly on the exercise of its judicial functions. • The essence of security of tenure 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 (combination of appointment for 5 to 7 years plus right to a hearing if removal for cause meant that the office was secure against interference in a discretionary or arbitrary manner by the Governor in Council who is responsible for appointments). • The essence of financial security 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. • The content of the principle of judicial independence must be limited to independence from the government (as independence from other parties is part of the test for impartiality, which is somewhat of a fourth condition). • The test for institutional impartiality is: (i) having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?; and (ii) if not, allegations of an apprehension of bias cannot be brought on an individual basis, but must be dealt with on a case-by-case basis. • Note: oaths of office, limits on numbers of re-appointments, Code of Conflict of Interest are all designed to protect and ensure the impartiality of individual tribunal members.

Canadian Pacific Ltd. v. Matsqui Indian Band (1995) • Facts: acting pursuant to the Indian Act, Indian bands across Canada passed by-laws creating a tax regime for real property on reserve land, as well as an internal appeal process (band members were eligible, could be paid but not necessary, no tenure). • Issue: whether P could bypass the internal appeal process and seek judicial review with the courts on the basis of a lack of institutional independence (that the creation of the tribunal and its by-laws a violated natural justice/fairness). • It is a principle of statutory authorization that statutes be interpreted in a manner that conforms to the principles of natural justice, where possible. • It is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. • The requisite level of institutional independence for administrative tribunals depends on the nature of the tribunal, the interests at stake, and other indicia of independence such as oaths of office. Test for independence must be applied in light of functions being performed. • Here: lacking independence (no financial security, ambiguous or absent tenure, conflicting interests; see Alex Couture, supra). Also c.f. MacBain – band could appear as part and band appoints tribunal. • Note: this opinion argued that the by-laws were conclusive evidence that the tribunals were not sufficiently independent from the Bands and thus there was no need to wait to examine how the tribunals operated. • Another opinion argued from the standard of a “reasonable person” and found that it is salient to know how the tribunal operates in actual practice before applying the test of independence (it is not safe to form final conclusions as to the working of this institution on the wording of the by-laws alone). • NB – if relevant statute clearly authorizes the existence of a statutory scheme that does not meet appropriate standards of independence for the tribunal in question, there will be on remedy unless those affected can rely on a constitutional or quasi-constitutional argument – Ocean Port Hotel Ltd. V. British Columbia (Liquor Control and Licensing Branch, General Manager) (2001).

Katz v. Vancouver Stock Exchange (1996) • Facts: P challenged the independence of an ad hoc disciplinary hearing panel in which neither security of tenure nor security of remuneration was specifically provided for. • Here: the Supreme Court followed the Court of Appeal who held that, unlike Matsqui, supra, this was not a dispute between opposing parties where decision-makers were chosen by one side; dictates of professionalism would ensure independence in practice and thus the usual indicia of security of tenure and remuneration were not required. • Note: this supports the Matsqui position that one must look at practice in context. • Although ministers not appointed for any particular term and not paid, the fact that not dependent on work for livelihood contributed to independence and in practice members seemed to serve till voluntary resignation or death. Also exchange self-governing body so different standards.

Ocean Port Hotel Ltd. v. B.C. (General Manager, Liquor Ctrl. and Licensing Branch) (2001) • Facts: P, a hotel and pub operator, allegedly violated the terms of its liquor license and the Liquor Control and Licensing Act; the Liquor Appeal Board upheld the inspector’s imposition of a two-day suspension of P’s liquor license. • Issue: the degree of independence required by members sitting on administrative tribunals empowered to impose penalties. • Absent constitutional constraints, the degree of independence required of a particular decision-maker or tribunal is determined by its enabling statute (common law principles of natural justice cannot take precedence over statute absent a constitutional hook or silence/ambiguity). • Here: the explicit statutory non-provision of tenure cannot be said to implicate the Board as not independent; it was not argued that Charter ss. 7 or 11(d) were engaged and there is no support for the contention that the preamble to the Constitution Act binds administrative tribunals to the same independence as the judiciary. • Note: with respect to bias, the Court found that the mere fact that senior inspectors functioned both as investigators and decision-makes (as authorized by statute) did not automatically establish a reasonable apprehension of bias (and moreover, absent constitutional constraints, it is always open to the legislature to authorize an overlapping of functions that would otherwise contravene the rule against bias).

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) (1996) • See above. • After finding that the way the regie operated in practice led to a reasonable apprehension of bias in an institutional sense, the court went on to deal with the further argument of lack of independence. • Security of tenure – directors appointed for not more than 5 years. Supplementary directors appointed for as long as government determines. Dismissal only for specific reasons. This met minimum standards. • Institutional independence – plaintiff suggested relationship with Minister of Public Security was problematic. Minister applies Act, Regie reports to minister, Minister must approve rules adopted by Regie for internal management and regulations made by Regie. Minister may initiate permit cancellation process by submitting application to Regie. However, this did not show how Minister might influence decision-making process. Ultimate responsibility of minister for both Regie and investigators not enough for informed person to have reasonable apprehension of bias. Also relevant that directors swear an oath.

Wyman, “The Independence of Administrative Tribunals” • Trend: courts’ tendency to apply to tribunals similar standards as applied to courts. • Judicial oversight may protect tribunals from interference from the Executive but may also sometimes pose a threat to independence in adjudication.

F. Institutional Decisions • Concerns with mass adjudication tribunals: consistency (courts do not consider this to be of profound concern), sharing of experience and expertise. • Mullen suggests full board meetings as the standard or the issuance of policy statements and guidelines as a way to address the consistency issue. • Another alternative may be the “lead case approach.”

1. Delegation • Authority (named in the statute) who grants the delegation has and retains a general control over the activities of the person to whom it has entrusted the exercise of statutory discretion. • Need to be able to imply in words “or any person authorized” to statute in order to delegate. However if a governmental authority such as “Minister of Justice” courts will readily do this.

Vine v. National Dock Labour Board (1957) • National Dock Labour board had express power to delegate to local dock labour boards. Discipline committee of local dock labour board ordered Vine discharged. Vine claimed decision void because local board had no power to delegate disciplinary powers. • In deciding whether “person” has power to delegate consider duty and character. • Judicial authority normally cannot be delegated. Duty to appoint cannot be delegated. Disciplinary powers, whether “judicial” or not cannot be delegated. Penalties may be very great. • Possible to imply limited right of delegation to take evidence and report.

Morgan v. Acadia University (1985) • Acadia University Act provided that board of governors had “power to adopt and carry into effect by-laws, resolutions and regulations touching and concerning the instruction care, government, and discipline of the students.” Board delegated responsibility for discipline. • Sought review and failed. On ground of delegation it was held that the “nature and duty required by the scope and objects of the legislation is such that a delegation be envisioned in interpreting the section. It would.. be impractical and inappropriate to consider otherwise.”

IBM Canada Ltd. V. Deputy Minister of National Revenue, Customs and Excise (1992) • Decision challenged on ground signed by only two members. Court concluded that the applicant had failed to prove that the third member of the quorum had not in fact participated in the deliberations. • However, quorum are expected to participate up to the last moment and make one united decision.

Volk v. Saskatchewan (Public Service Commission) (1993) • Chair cannot be authorized to exercise alone any of the agency’s quasi-judicial functions. • However if other members are present when chair rules on questions of law and do not object, they may be held to have adopted by acquiescence the chair’s rulings as their own (Re Schabas and Caput of the University of Toronto (1974))

2. Deciding without a Hearing

• Only those members of an agency who hear a particular case may decide it (Re Ramm (1957), Western Realty Projects Ltd. V. City of Edmonton and Triple Five Corporation Ltd. (1974)).

Local Government Board v. Arlidge (1915) (UK) • Delegating the duty to hear. • Local Government Board appointed an inspector who held a public inquiry and made a report. • Issue: (1) order did not disclose officer who had made decision and therefore the appeal could not be shown to have been decided by the board/someone authorized to act for it; (2) board did not hear Arlidge orally; (3) entitled to disclosure of report. • HL allowed the appeal. • Re issue (1): • Minister at head of Board has a great volume of work entrusted to him. His duty is to see that officials obtain materials for him vicariously. When the Board is directed to dispose of an appeal, it does not mean that any particular official is to dispose of it. • The general rule of departmental action and responsibility is that a determination, signed and sealed and issued in correct form, stands as the deliverance of the Board, for which the President becomes answerable to Parliament.

Quebec (Attorney General) v. Carrieres Ste-Therese Ltee (1985), Suresh v. Canada (Minister of Citizenship and Immigration) (2002) • Canadian courts do not require powers to be delegated expressly by the minister to the civil servants in the department. • However, some decisions exceptionally require the minister’s personal attention, especially where the court seems to demand that the minister personally provide reasons when make a deportation order of a person likely to suffer torture on return to his or her country of origin. • The principle that powers exercised by departmental officials in the name of the minister is not a delegation of authority has been extended to the exercise at the local level of a power to make an assessment of tax liability conferred by statute on a senior civil servant (Canada v. BM Enterprises (1992)).

Jeffs v. New Zealand Dairy Production and Marketing Board (1967) (Privy Council) • Facts: Public hearing by committee of board; committee made report to board. Report did not record evidence from hearing. Board accepted recommendations of committee without alteration. • Issue: Improper delegation of judicial duty of hearing evidence and submissions to committee? Duty of board to consider all evidence, notes and submissions? • Clear that board did not delegate duty of decision to committee. • But board had duty to “hear” interested parties. It would have been a matter of procedure if the board had appointed persons to hear and receive evidence and submissions for the purpose of informing the board of evidence and submissions. • The board thus failed to hear interested parties; appeal allowed.

3. Consultations Among Agency Members • To what extent does the duty of fairness preclude members of an agency panel from discussing the case with other members after the hearing has ended but before they have rendered their decision?

Intl. Woodworkers of America v. Consolidated Bathurst Packaging Ltd. (1990) • Facts: before the Labour Board, P argued that D failed to bargain in good faith; the Board found for P after discussing the case at a “full board” meeting; D argued that, because of this, the decision had been improperly made (violation of audi alteram partem rule and nemo judex in causa sua). • No outside interference may be used to compel or pressure a decision-maker to participate in discussions on policy issues raised by a case on which he must render a decision. • Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members’ capacity to decide the issues at stake independently (especially with respect to law/policy issues and not fact; judges always do this). • As a general rule, the members of the panel who actually participate in the decision must have heard all the evidence as well as all the arguments presented by the parties. This was not the issue here. • The only possible breach of the audi alteram partem rule (the opportunity to know the case and respond) arises when 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 an opportunity to respond (else, discussion sans coercion is possible); in such a case, the parties must be informed of any new grounds on which they have not made any representations and must be given a reasonable opportunity to respond. • Here: 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. • Note: the majority seemed to find as a basis for this decision the desire and importance of the Board in setting wide policy and achieving consistency and coherence, which could be furthered by full board meetings; it also found the lack of minutes, voluntary attendance, and informality at the full meeting to minimize the risk of coercion (no vote taken). • Dissent: the full board hearing violated the principles of natural justice: (i) members of the Board who did not preside at the hearing participated in the decision (coercion); and (ii), the case was decided at least in part on the basis of materials which were not disclosed at the hearing and against which there was no opportunity to make submissions. • Note: the dissent also equated policy with fact whereas the majority did so with law. Parties should have the opportunity present evidence and make submissions – whether that opportunity is denied when the tribunal considers policy without giving the parties an opportunity to respond depends on the nature of policy. If party has the right to attack policy in the same fashion as fact, to deprive the party of that right is unfair. Caselaw supports the treatment of policy as fact. In order to prove breach was only technical would have had to prove that the matters discussed were all matters that had been brought out at the hearing.

Tremblay v. Québec (Commission des Affaires Sociales) (1992) • Facts: D made a decision not to reimburse P for certain dressings and bandage costs on the basis of an internal consultation process designed to maintain consistency. • Issues: deliberative secrecy and whether this “institutional decision” violated the principles of natural justice. • T.’s questions were directed at the process rather than matters of substance or the decision-makers’ thinking. When there is no appeal of a commission’s decisions, it cannot rely on deliberative secrecy to the same degree as a court; secrecy remains the rule, but it can be lifted if the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. • Objective of consistency responds to need for stability and dictates of justice. • However: certain aspects of the structure of the system (minutes/attendance kept, open votes, practical mandatory nature of such deliberations) established by the Commission created at the very least an appearance of systemic pressure and thus breach the rules of natural justice; compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constraint. There is no evidence, however, that new arguments of law were raised at the consensus table or were considered by the president at the decision-making stage (the facts thus do not establish a breach of the audi alteram partem rule). • Fact that president became a decision-maker also not consistent with the rules of natural justice. • Note: the remedy here was for the Board to reconsider (certiorari), not to implement the initial report of the Board. • NB: Divisional Court subsequently approved a practice of the Pay Equity hearings Tribunal under which members could meet and engage in discussions with various caucuses of members of the entire tribunal (Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1993)). • Mullan – Tremblay is far too much of a brake upon the devising of appropriate techniques for the handling of mass adjudication situations and places far too much emphasis on traditional judicial values at the expense of other more important considerations.

Ellis-Don Ltd. v. Ontario (Labour Relations Board) (2001) • Facts: P made an application for judicial review to quash a decision of D, binding P to a province-wide collective agreement, on the basis of procedural unfairness (the chair of the hearing panel called a full meeting of the Board to consider facts and disposition and there was evidence that the draft decision changed at this meeting). • Section 114(1) of the Labour Relations Act clearly provides that no member of the Board is required to testify in civil proceedings; P, thus, could not compel the Board members to testify (there was thus no direct evidence of improper tampering with the panel’s decision). • Note: the case reveals a tension between the fairness of the process and the principle of deliberative secrecy but in the absence of any further evidence, the Court cannot reverse the presumption of regularity of the administrative process simply because of a change in the reasons for the decision, especially when the change is limited on its face to questions of law and policy. • Query how one can prove new facts/policies/arguments were raised (this was the concern of the dissent: excessive protection of deliberative secrecy). • Note: the Supreme Court did not rely on s. 114(1) as did the Court of Appeal, rather, its decision was grounded in its commitment to deliberative secrecy on broad common law concerns about the need to protect institutional decisions from attack (cases would never end or be safe if the veil could be so easily lifted).

Payne v. Ontario (Human Rights Commission) (2000) • Facts: P applied to D, alleging employer discrimination; the complaint was dismissed after several meetings of the Commission. • Issue: whether P was entitled to full disclosure of all the facts, arguments, and considerations presented to the Commission when it considered her complaints. • To ensure procedures are fair, disclosure of the facts, arguments, and considerations upon which the decision is to be based is required, as is an opportunity to respond; reasons for the ultimate decision are also required. • Three purposes favour deliberative secrecy: unduly burdensome examination without; the need for finality; the need to protect debate and collegial decision-making. • Concerns for deliberative secrecy, however, must be weighed against the right of the person to be affected by the Commission’s decision-making. • The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, e.g., where an infringement of natural justice is alleged, to the certain overarching principles (though examinations based on conjecture will not be allowed; some bases must be clearly articulated and an objectively reasonable concern put forth). • Statutory entitlement to be given Commission’s reasons for refusing to proceed. • Here: P could not be entitled to “fish” through D’s documents but this is not to say she was not entitled to a “more focused examination.” • Examinations will only be permitted where 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. • Dissent: far more protective of deliberative secrecy and the “integrity of the administrative process” (here: P’s basis = pure conjecture). • Note: unlike Ellis Don, supra, there was no statutory limit on compellability here; and, this case was decided after Ellis Don’s Supreme Court arguments, but before the decision. • S. 30 of the Ontario Human Rights Code confers immunity from compelled testimony with respect to “information obtained in the course of an investigation under the Act” – held that did not apply to the kind of information that the applicant was seeking. Could such a provision ever constitutionally apply to prevent someone from making out a breach of the rules of natural justice or procedural fairness?

Summary • The decision made in a case must be that of the decision-maker and the reasons must be his; as long as those two criteria are met, the decision-maker can consult with agency counsel for help in writing up the decision. • Referring a decision to counsel once the panel has decided the facts simply to check whether the law is applied correctly is not a violation of natural justice. • Note that with the great protection of deliberative secrecy, there is an incentive for leaks, snitches, etc. as this is the only way to get to court!

4. Agency Counsel • Parties should be apprised of counsel’s advice and given an opportunity to make submissions to the tribunal before it decides the issue. • Legal opinions have been held not to be privileged unless obtained for litigation/matters unrelated to hearing (Melanson v. New Brunswick (Workers’ Compensation Board) (1994)) • The person to whom the panel looks for legal advice should be in fact and appearance independent of the parties (Hutterian Brethren Church of Starland v. Starland No. 47 (Municipal District) (1993)). • To what extent is the giving of reasons a function that must be performed personally by the statutorily designated decision makers, rather than bureaucratically (or institutionally) through the use of the full range of agency resources? • Decision must be that of tribunal members. Counsel who without consent of parties retire with the tribunal while it deliberates may thereby create a reasonable apprehension of bias. The reasons must in substance be those of the tribunal members, but may seek help of counsel or other staff member for preparation (Armstrong v. Canada (Commissioner of the RCMP) (1994)) (but not counsel for one of the parties).

Spring v. Law Society of Upper Canada (1988) • Facts: Solicitor disbarred for professional misconduct. • Issue: decision and reasons were not prepared by Discipline Committee but by the clerk for the Committee. • Clerk was not part of prosecution; Committee met to deliberate on three occasions in absence of clerk. Deliberations, findings and decision were all made without input from any third party. No reasonable apprehension of bias. • Dissent: an independent decision is not good enough. The reasons were prepared by the clerk; the disbarred lawyer is entitled to know the reasoning and though process that condemned him, and be able to mount his attack or appeal on the basis of this.

Khan v. College of Physicians and surgeons of Ontario (1992) • Issue: did counsel’s involvement in the preparation of the Committee’s reasons contravene the Health disciplines Act or the principles of natural justice? • Three stage process; member of committee prepares draft, counsel reviews and revises in consultation with chairman, Committee reviews. Final draft is approved and signed by each member of the Committee. • S. 12(3) of Act addresses the requirements of a fair hearing and provides that committee may seek legal advice, if the advice is made known to the parties in order that they may make submissions as to the law. The court held that this applied to the hearing stage only. Even if it applied after, K had the burden of showing that counsel provided “legal advice” during the drafting process. • When determining whether the involvement of the non-decision-maker in the drafting process compromised the fairness of the proceedings, the nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal’s workload, and other factors will impact on the assessment of the propriety of procedures used in the preparation of reasons. • Nothing suggests that counsel’s involvement compromised the independence of impartiality of the Committee.

5. Reasons Review

Bovbel v. Canada (Minister of Employment and Immigration) (1994) • Board had “referred a draft of its written decision to legal counsel who [was] nt a member of the board and who [had] not participate[d] in or attende[ed] at the applicant’s hearing.” • Board had a Reasons Review policy by which expected to submit a draft of their reasons for decision to legal advisors before issuing them to the parties. • The legal advisors were not expected to discuss the findings of facts made by the members but , if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconstancy could be resolved.

6. Agency Guidelines • Tension between ‘due process’ requirement that judicial decision makers should be independent and the ‘bureaucratic’ value that administrative agencies should adopt measures to ensure that their decisions are coherent, thoughtful and consistent.

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007) • The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not. • Guideline 7: In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances. • Issues: does the guideline deprive refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel? Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, should the Chairperson have introduced the new standard order of questioning as a rule of procedure not as a guideline? Does the guideline unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims. • Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form. • Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. • Guideline creates uniform procedure, more expeditious. • Standard of review: The questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness. • Tribunal is based on inquisitorial rather than adversarial model. Order of questioning is not as obvious. • Effective decision-making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. • Nonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered. • Some guidelines have been held to be legally binding, but these are not. • On procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) will not normally invalidate it, provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion.

III. Substance

A. Introduction • = challenges to merits of a decision, assuming procedure followed. • Pragmatic and functional. • To succeed in the realm of substance, an error of law, misunderstanding of the law, serious error in fact (e.g., no evidential basis), and/or abuse of discretion must be proved. • Standard of review (intervention vs. deference) is key here: patently unreasonable (if reluctant to intervene), correctness (if the court finds itself in a similar or better position than the tribunal to rule0, reasonableness simpliciter (middleground; usually when the tribunal is interpreting its constitutive statute).

1. Statutory Interpretation • Techniques: read the entire statute before interpreting a provision; consider the purpose of the statute as a whole and the provision per se; be sensitive to convention and background rules that play a part in drafting (e.g., meaning of silence); compare languages. • Note: legislative debates may be instructive but are widely thought to be unreliable.

B. The Standard of Review • For a long time – statutory authorities had only as much jurisdiction or authority as the legislature conferred on them. This mean reviewing on a correctness basis all determinations of law and fact that affected the statutory authority’s jurisdiction ( as opposed to the exercise of the jurisdiction actually concerned where the opportunities for review were limited. • Seems to place the issue of what constitutes a jurisdictional issue at the forefront of any consideration of the scope and intensity of judicial review of administrative action. • In the face of provisions in legislation making it clear that the review powers of the courts were restricted, what were the badges of questions that transcended the language of privative clauses and on which correctness review by the courts was assured?

1. Privative Clauses • Technical explanation for courts’ restrictive interpretation of clauses precluding any legal challenge to decisions of an administrative agency is that the statutory reference to “decisions” means valid decisions. Outside its jurisdiction the agency had no legal power to make decisions at all. • “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.” Jacmain v. Att. Gen. of Canada (1978).

National Labor Relations Board v. Hearst Publications Inc (1944)(US) • Principle question – whether the newsboys were “employees”. • Respondents said use the common-law. But this would mean federal law could not be applied evenly across country. • Looked at purpose of statute; broad language of statute’s definitions which mean it is to be applied broadly. Look at when the economic facts of the relation make it more nearly one of employment than of business enterprise. • Questions of statutory interpretation are for the courts to resolve with deference to administrative body, but court’s function is limited when it comes to the question of specific application of a broad statutory term. • C.f. Re Cormier and Alberta Human Rights Commission (1984) – a generous interpretation should be given to statutory protection from discrimination. • Court has held that human rights legislation embodies public policy of such fundamental importance that it should be regarded as “quasi-constitutional in nature and given priority over inconsistent statutes in the absence of the clearest statutory language to the contrary – Robichaud v. Canada (Treasury Board) (1987).

2. Establishing the Modern Standard

CUPE, Local 963 v. New Brunswick Liquor Corporation (1979) • Facts: during a lawful strike, P complained that D was replacing its workers with management contrary to the Public Service Labour Relations Act (“the employer shall not replace the striking employees or fill their position with any other employee”). • Decision depended on interpretation of whether “any other employee” referred to both replace and fill or just fill. • SCR rejected characterization of this as a primary or collateral matter by CA. These terms not helpful. Preferable approach is to determine jurisdiction at outset of enquiry. • Privative clause – decisions final, no judicial review. • Labour legislation in particular involves privative clauses which leave judicial discretion and involvement to a minimum. • Board has broad than usual powers, considerable sensitivity and unique expertise are required. The matter was plainly within its jurisdiction. • Outside the protection of privative clauses (i.e. agency’s decision may be set aside as in excess of its jurisdiction) are such error as acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice, or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. • Here: the Board’s decision was not patently unreasonable (the provision was ambiguous and though it may be interpreted differently, there is no prevailing interpretation and thus the Board’s expertise must be relied upon). • Note: after this case, it was unclear whether the very deferential stance of patent unreasonableness applied to all issues before the administrative decision maker; the common consensus among scholars is that the case’s main contribution was to move away from the formal categories of preliminary and collateral questions towards an examination of the rationality of the agency’s interpretation of its enabling statute. • Questions case gives rise to: how much deference to give to agency’s interpretation of enabling legislation. • Preliminary questions and conceptual distinction between administrative/judicial power rendered obsolescent. • Effect of Nicholson and CUPE: Procedural unfairness and jurisdictional error as grounds of review should be shaped by an understanding of the functional considerations and constitutional values that should inform any rational attempt to define the role of the courts in the modern administrative state. • Agency’s decision may be set aside as in excess of its jurisdiction if based on an incorrect interpretation of the general law or of a provision of its enabling statute which, on a pragmatic and functional analysis, the legislature should be held not have left to the conclusive determination of the agency; an agency exceeds its jurisdiction by placing a patently unreasonable interpretation on those provisions of its enabling statute, which, on a pragmatic and functional approach to the statutory scheme, the legislature should be regarded as having entrusted conclusively to the agency to interpret; privative clauses that fall short of outright prohibitions of judicial review (such as those stating that the agency’s decisions are “final and binding”) do not provide as much protection from judicial review. However, they should be taken into account as part of the overall statutory context when a reviewing court is determining whether, and to what extent, it should defer to the agency’s interpretation of its legislation. • Summary: introduced the idea that, depending on the legal and administrative contexts, a specialized administrative tribunal with particular expertise, which has been given the protection of a privative clause, if acting within its jurisdiction, could provide an interpretation of its enabling legislation that would be allowed to stand unless “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review”. Did away with preliminary question doctrine.

Union des Employés de Service, Local 298 v. Bibeault (1988) • Issue: whether the “successor-employer” provisions of the Quebec Labour Code applied to a company who had terminated its contract with a janitorial provider on strike and then proceeded to contract with another employer. • Patently unreasonable means an error’s “construction cannot be rationally supported by the relevant legislation” and “demands intervention by the ocurt upon review.” • There are two circumstances in which an administrative tribunal will exceed its jurisdiction because of error: (i) 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); (ii) if, however, the question at issue concerns a legislative provision limiting the tribunal’s powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review. • Replaces concept of preliminary or collateral question with the doctrine of patently unreasonable interpretation. • To determine whether a matter falls within a tribunal’s jurisdiction, the Court should examine not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members, and the nature of the problem before the tribunal. • In the face of a full privative clause, decisions of administrative agencies can normally only be reviewed on grounds of patent unreasonableness; but where a legislative provision limiting the agency’s power is in question, correctness will apply (though this has been narrowly construed to avoid an “end run” around privative clauses). • Note: this case conceived a “pragmatic and functional” approach to statutory interpretation (several different factors must be weighed, none of which are alone dispositive, each of which indicates the appropriate degree of deference). • Summary: CUPE did not do away with correctness review altogether and in Bibeault, the Court affirmed that there are still questions on which a tribunal must be correct: “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. In arriving at the appropriate standard of review, courts were to consider a number of factors 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.

Dunsmuir v. New Brunswick (2008) • See above. • Appellant complained that the reasons for the employer’s dissatisfaction were not specified and that he did not have a reasonable opportunity to respond to the employer’s concerns. There was, in his view, lack of due process and a breach of procedural fairness. • Issue of extent to which a duty of fairness applies to the dismissal of a public employee pursuant to a contract of employment. • On judicial review, the Court of Queen’s Bench applied the correctness standard and quashed the adjudicator’s preliminary decision, concluding that the adjudicator did not have jurisdiction to inquire into the reasons for the termination, and that his authority was limited to determining whether the notice period was reasonable. On the merits, the court found that D had received procedural fairness by virtue of the grievance hearing before the adjudicator. Concluding that the adjudicator’s decision did not stand up to review on a reasonableness simpliciter standard, the court quashed the reinstatement order but upheld the adjudicator’s provisional award of eight months’ notice. The Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator’s authority under the PSLRA was reasonableness simpliciter, not correctness, and that the adjudicator’s decision was unreasonable. It found that where the employer elects to dismiss with notice or pay in lieu of notice, s. 97(2.1) of the PSLRA does not apply and the employee may only grieve the length of the notice period. It agreed with the reviewing judge that D’s right to procedural fairness had not been breached. • Privative clauses – judicial review is constitutionally guaranteed by ss. 96-101 Constitution Act 1867 especially with regards to definition and enforcement of jurisdictional limits. Courts recognize when specific questions of law are covered in a privative enactment but not issues of jurisdiction which are not far removed from issues of constitutionality. • Notwithstanding the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, any actual difference between them in terms of their operation appears to be illusory. There ought to be only two standards of review: correctness and reasonableness. • “pragmatic and functional may have misguided courts. Refer to “standard of review analysis”. • When applying the correctness standard, which must be maintained in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and 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 (e.g. Toronto (City) v. CUPE – interpretation of common law rules of res judicata and abuse of process, jurisdictional lines between two or more competing tribunals). Procedural issues also correctness standard subject to legislative override. • Reasonableness is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. Certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. • Questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function with which it will have particular familiarity. • i.e. Contextual analysis. Look at following factors: • A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. • The purpose of the tribunal as determined by interpretation of enabling legislation. • The expertise of the tribunal. A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). • The nature of the question at issue. A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. • An exhaustive analysis is not required in every case to determine the proper standard of review. Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision maker with regard to a particular category of question. E.g. correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867. Administrative bodies must also be correct in their determinations of true jurisdiction or vires (narrow sense of whether or not tribunal had the authority to make the inquiry). If the inquiry proves unfruitful, courts must analyze the factors making it possible to identify the proper standard of review. The existence of a privative clause is a strong indication of review pursuant to the reasonableness standard, since it is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. It is not, however, determinative. Where the question is one of fact, discretion or policy, or where the legal issue is intertwined with and cannot be readily separated from the factual issue, deference will usually apply automatically. So: 1. See if existing jurisprudence determines degree of deference. 2. If unfruitful, analyze factors. • Deference will usually result where a decision maker is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. While deference may also be warranted where an administrative decision maker has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context, a question of law that is of central importance to the legal system as a whole and outside the specialized area of expertise of the administrative decision maker will always attract a correctness standard (NB Binnie in minority judgment thought this was confusing and any legal question outside home statute and closely related statutes should suffice. How do you determine what a sufficiently important question is?). So will a true question of vires, a question regarding the jurisdictional lines between two or more competing specialized tribunals, and a constitutional question regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867. • The standard of reasonableness applied on the issue of statutory interpretation. • Looked at privative clause. S. 101(1) of the PSLRA includes a full privative clause • Nature of the regime favours the standard of reasonableness; relative expertise of arbitrators, interpreting own statute. • Legislative purpose – time and cost-effective alternative to judicial determination. • Nature of legal question. While the question of whether the combined effect of ss. 97(2.1) and 100.1 of the PSLRA permits the adjudicator to inquire into the employer’s reason for dismissing an employee with notice or pay in lieu of notice is a question of law, it is not one that is of central importance to the legal system and outside the specialized expertise of the adjudicator, who was in fact interpreting his enabling statute. • Appropriate standard – reasonableness. • Here, the adjudicator’s interpretation of the law was unreasonable and his decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. The employment relationship between the parties in this case was governed by private law. The combined effect of ss. 97(2.1) and 100.1 of the PSLRA cannot, on any reasonable interpretation, remove the employer’s right, under the ordinary rules of contract, to discharge an employee with reasonable notice or pay in lieu thereof without asserting cause. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for discharge, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed. [66-75] • On the merits, D was not entitled to procedural fairness. 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. Where a dismissal decision is properly within the public authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for imposing a duty of fairness. The principles expressed in Knight v. Indian Head School Division No. 19 in relation to the general duty of fairness owed by public authorities when making decisions that affect the rights, privileges or interests of individuals are valid and important. However, to the extent that Knight ignored the important effect of a contract of employment, it should not be followed. In the case at bar, D was a contractual employee in addition to being a public office holder. Section 20 of the Civil Service Act provided that as a civil servant he could only be dismissed in accordance with the ordinary rules of contract. To consider a public law duty of fairness issue where such a duty exists falls squarely within the adjudicator’s task to resolve a grievance. Where, as here, the relationship is contractual, it was unnecessary to consider any public law duty of procedural fairness. By imposing procedural fairness requirements on the respondent over and above its contractual obligations and ordering the full “reinstatement” of D, the adjudicator erred and his decision was therefore correctly struck down.

3. Statutory Appeals

Judicial Review Procedure under the Judicial Review Procedure Act 1990 • = formalization of Ontario judicial review application procedure. • There is no explicit mentioning of grounds for review of a breach of duty of fairness. • S. 2: application style; inclusion of order requested; error of law/mixed fact and law (lack of evidence) may be complained about; powers to set aside/make declaration/refuse relief. • S. 2(3); lack of evidence • S. 3: courts have the power to deny relief if the complainant has suffered a technical wrong but no substantive wrong or where would be a miscarriage of justice.

Federal Court Act • S. 18.1 (4) – The Trial division may grant relief if satisfied that the tribunal… based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

Administrative Tribunals Act 2004 • S. 58(1) – if privative clause, tribunal is to be considered expert in all matters over which it has exclusive jurisdiction. • S. 58(2) – in this case, findings of fact/law/exercise of discretion are not to be interfered with unless patently unreasonable (under (3) this means arbitrarily/in bad faith/for an improper purpose/based on irrelevant factors/fails to take statutory requirements into account). Questions of common law rules of natural justice/procedural fairness are to be decided having regard to whether the tribunal acted fairly. For all other matters the standard is correctness. • S. 59 – in a judicial review proceeding, the standard is correctness for all questions except: • Exercise of discretion (patent unreasonableness) • Findings of fact (no evidence/otherwise unreasonable) • Common law rules of natural justice and procedural fairness (fairness).

4. Rearticulating the Modern Standard

Canada (Citizenship and Immigration) v. Khosa (2009) • This Court's decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. • A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. • Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. • The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court's appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. • Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a "correctness" standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA, and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation -- the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD -- Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact-dependent and policy-driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. • Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established "sufficient humanitarian and compassionate considerations" to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. • The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K's expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. • In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA, there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes.

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998) • Facts: after serving time for a drug violation, P sought refugee status; P was denied and sought judicial review on the grounds that he could not be denied on the basis of the provision providing for exclusion for those who are “guilty of acts contrary to the purposes and principles of the United Nations.” • Issue: the standard of review applicable to the Immigration and Refugee Board. • Note: this case re-states Bibeault, choosing from the now 3 standards of review. • The central inquiry in determining the standard of review is the legislative intent of the statute creating the tribunal whose decision is being reviewed; the reviewing court must ask “was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?” • The factors to be taken into account in determining the standard of review may be divided into four categories: (1) privative clauses; (2) expertise; (3) the purpose of the Act as a whole and the provision in particular (specific vs. general); and (4) the “nature of the problem”: a question of law or fact? • 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. • 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. • If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded; nevertheless, expertise must be understood as a relative, not an absolute concept. • Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. • Note: the Court identifies “expertise” as the most important factor in this analysis. • 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. • Also of significance are the range of administrative responses, that a board plays a “protective role” vis-à-vis the general public, and that it plays a role in policy development (i.e., extent of “judicial-like” responsibility), or where legal principles are vague, open textured or involve multi-faceted balancing test. • Note: where a board engages in roles traditionally in the realm of courts or more judicial-like, courts will be less loathe to intervene; on the other hand, deference will be afforded where a board is given multiple functions and responsibilities. • There is no clear line to be drawn between questions of law and questions of fact, and, in any event, many determinations involve questions of mixed law and fact. • An appropriate test is 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. • 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. • Here: most factors point to a standard of correctness. S. 83(1) would not make sense otherwise (appeals are on questions of general importance, Board has no relative expertise in matters of law, absence of a strong privative clause, human rights concerns(?)).

5. Inconsistency: A Species of Patent Unreasonableness?

Domtar Inc. v. Quebec (Commission d’appel en matiere de lesions professionnelles) (1993) • Facts: an employee of P was injured just a few days prior to the plant’s shutdown for the holidays; P offered to pay for lost wages for those days but not the traditional 14 days of disability, since the plant would have been closed. • Issue: whether the legislation providing for payment for lost wages for the days “the worker normally would have worked” up to 14 days requires 14 days payment. • A functional analysis of the Act is clear that the legislature intended to give the Board the power to make a final ruling on the meaning and scope of the provision. • With a full privative clause, Board decisions are final and without appeal (exclusive jurisdiction to decide any question of law or fact, no appeal except on a question or jurisdction). • Since the interpretation of the provision is within the tribunal's jurisdiction, the standard of review applicable is whether the decision is patently unreasonable. • Here: the decision was not patently unreasonable (it can be rationally defended both on the facts and on the law even accepting that the Board may have overlooked several important aspects which are peculiar to the general system of compensation; this would simply be an error of law within jurisdiction) • Thus: when decisions made within jurisdiction are not patently unreasonable, the principles underlying curial deference should prevail (administrative tribunals have the authority to err within their area of expertise, and a lack of unanimity [inconsistency] is the price to pay for the decision-making freedom and independence given to the members of these tribunals; recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of those principles given that administrative tribunals and the legislature have the power to resolve such conflicts themselves).

6. Patently Unreasonable Findings of Fact

Toronto (City) Board of Education v. OSSTF District 15 • B applied for position of vice-principle 39 times between 1981 and 1984, filed unsuccessful human rights complaint, wrote threatening letters. He was discharged for unprofessional conduct. He filed a grievance alleging that he had been disciplined without just cause. A majority of the arbitration board determined decision to dismiss should be set aside. Conditional reinstatement, monitoring, dismissal if repetition of conduct. Divisional court quashed award; CA restored it. • Issue: did the Board of Arbitration make a patently unreasonable decision in ordering that B be conditionally reinstated? • Essential question was whether behaviour was temporary and discharge appropriate. These issues within jurisdiction of Board so decision can only be set aside if patently unreasonable. • Test where a tribunal is interpreting a legislative provision: “Was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review (CUPE v. New Brunswick). • Test when interpreting a collective agreement: the court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (United Brotherhood of Carpenters and Jointers of America, Local 579) v. Bradco Construction Ltd. (1993)). • A finding based on “no evidence” is patently unreasonable. However, a court should not intervene where the evidence is simply insufficient (Douglas Aircraft Co. of Canada v. McConnell (1980)). • 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 (Lester (WW) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740 (1990)). • All strict tests. • In order to decide whether a decision of a tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. However court should not weigh evidence. • Looked at finding of just cause for discipline, significance of misconduct outside classroom. • Board made two findings of fact: conduct was temporary; B. was not beyond redemption. • However all the evidence before the Board contradicted inference that conduct was temporary. Also did not consider the third letter (admissible even though “subsequent-event” evidence”).

C. The Jurisdiction of Tribunals and the Constitution

• Do administrative agencies have jurisdiction to decide Charter or other constitutional challenges to the validity of the legislation that they administer, or are these issues that only superior courts may decide? • Must a litigant resort exclusively to, or at least exhaust, the statutory remedies specifically provided before going to the superior courts? • Ay administrative agencies grant constitutional remedies and, ore particularly, can an administrative tribunal ever be a court of competent jurisdiction for the purposes of section 24(1), the remedies provision in the Charter? • What standard of review should apply when an administrative agency legitimately makes a pronouncement on a constitutional question or provides a constitutional remedy?

1. The Jurisdiction of Tribunals to Decide Constitutional Challenges • In exercising their statutory powers administrative tribunals should take the constitution including the Charter into account. Should interpret legislation in a way that is consistent with the constitution. • But can it decide the validity of its own legislation?

Nova Scotia (Workers’ Compensation Board) v. Martin (2003) • Workers' compensation legislation excluding chronic pain from purview of regular workers' compensation system and providing in lieu of benefits normally available to injured workers four-week functional restoration program beyond which no further benefits are available. • Issues: Nova Scotia Workers' Compensation Appeals Tribunal have the authority to refuse to apply, on Charter grounds, benefits provisions of its enabling statute; Whether legislation infringes s. 15(1) of Canadian Charter of Rights and Freedoms; If so, whether infringement justifiable under s. 1 of Charter. • Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. In applying this approach, there is no need to draw any distinction between "general" and "limited" questions of law. Explicit jurisdiction must be found in the terms of the statutory grant of authority. Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. • Constitution is supreme law of land. Incompatible legislation is invalid. As a corollary, constitution should be accessible. • Principle that, since administrative tribunals are creatures of Parliament and the legislatures, their jurisdiction must in every case "be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought": Douglas College; presumption, based on the principle of constitutional supremacy outlined above, that all legal decisions will take into account the supreme law of the land. Thus, as a rule, "an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid": Cuddy Chicks. One must ask whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. • Absent an explicit grant, it becomes necessary to consider whether the legislator intended to confer upon the tribunal implied jurisdiction to decide questions of law arising under the challenged provision. Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision. • Does not comment on the constitutionality of a provision that would place procedural barriers in the way of claimants seeking to assert their rights in a timely and effective manner, for instance by removing Charter jurisdiction from a tribunal without providing an effective alternative administrative route for Charter claims. • The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: o (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. o (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. o (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. o (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. o (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by o (a) pointing to an explicit withdrawal of authority to consider the Charter; or o (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations. • Practical considerations, however, cannot override a clear implication from the statute itself. The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by pointing to an explicit withdrawal of authority to consider the Charter; or by convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations. • The Appeals Tribunal could properly consider and decide the Charter issue raised in this case. The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law by providing, in s. 252(1) of the Act, that it "may confirm, vary or reverse the decision of a hearing officer" exercising the authority conferred upon the Board by s. 185(1) of the Act to "determine all questions of fact and law arising pursuant to this Part". Other provisions of the Act also confirm the legislature's intention that the Appeals Tribunal decide questions of law, including s. 256(1), which provides for a further appeal to the Court of Appeal "on any question of law". This suggests that the Appeals Tribunal may deal initially with such questions. The Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the challenged provisions, a jurisdiction which is presumed to include the authority to consider their constitutional validity. This presumption is not rebutted in this case, as there is no clear implication arising from the Act that the legislature intended to exclude the Charter from the scope of the Appeals Tribunal's authority. Even if there had been no express provision endowing the Appeals Tribunal with authority to consider and decide questions of law arising under the Act, an examination of the statutory scheme set out by the Act would lead to the conclusion that it has implied authority to do so. • Test from Law v. Canada: • First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). • The provisions infringe the Charter. A reasonable person in circumstances similar to those of L and M, fully apprised of all the relevant circumstances and taking into account the relevant contextual factors, would conclude that the challenged provisions have the effect of demeaning the dignity of chronic pain sufferers.

Paul v. British Columbia (Forest Appeals Commission) (2003) • British Columbia Ministry of Forestry seized four logs in the possession of Thomas Paul, a registered Indian. Mr. Paul had cut three trees and found the fourth, and planned to use the wood to build a deck on his home. Mr. Paul asserted that he had an aboriginal right to cut timber for house modification, and accordingly that s. 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 ("Code"), a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that Mr. Paul had contravened s. 96. Mr. Paul then appealed to the Forest Appeals Commission ("Commission"). • Issue: whether the Commission has jurisdiction to hear Mr. Paul's defence that he cut the trees and possessed the logs in the exercise of his aboriginal rights. • Correct approach is to determine whether the tribunal is empowered to decide questions of law. If so, the judge must verify whether there is a clear implication arising from the statutory scheme that the power to decide questions of law was meant to exclude the legal issues under review. In this case, s. 131(8) of the Code permits a party to "make submissions as to facts, law and jurisdiction". It is therefore clear that the Commission has power to determine questions of law. The nature of an appeal: the Commission is not restricted to the issues considered by the Administrative Review Panel, the decision maker appealed from. Any restriction on the Commission's remedial powers is not determinative, nor is the complexity of the questions. Nothing in the Code provides a clear implication to rebut the presumption that the Commission may decide questions of aboriginal law. • The doctrine of interjurisdictional immunity is engaged when a provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. The doctrine provides that, where the general language of a provincial statute can be read to trench upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations. s. 91(24) protects a "core" of Indianness from provincial laws of general application, through operation of the doctrine of interjurisdictional immunity. The question, then, is whether, in a valid law of general application, provisions that empower a provincially constituted administrative tribunal to hear and rule upon arguments relating to aboriginal rights as they arise in execution of its provincial mandate trench upon the relating to aboriginal rights as they arise in execution of its provincial mandate trench upon the core of Indianness. If so, those provisions will be inapplicable to Indians. • Position that questions relating to aboriginal rights are untouchable by a provincially created tribunal by virtue of their falling within federal legislative competence is untenable. • As a law of general application, the Forest Practices Code of British Columbia applies ex proprio vigore to Indians, to the extent that it does not touch on the "core of Indianness" and is not unjustifiably inconsistent with s. 35 of the Constitution Act, 1982. • Determinations of the Commission respecting aboriginal rights would be reviewable on a correctness standard. Provincial officials cannot initiate any inquiry into aboriginal rights before the Commission. Instead, a question of aboriginal law will arise only when a respondent raises an aboriginal right before the Commission in seeking relief from a general prohibition or other regulatory provision in the Code. • The power of an administrative board to apply valid laws is the power to apply valid laws only to those factual situations to which they are constitutionally applicable, or to the extent that they do not run afoul of s. 35 rights

2. Constitutional Challenges and Remedies: The Appropriate Forum • Should a person who alleges a constitutional right be able to litigate it in court before decision by tribunal? • Will a tribunal be a “court of competent jurisdiction” for the purposes of providing relei under s. 24(1) of the Charter.

Administrative Tribunals Act (B.C.) • S. 43(1) Tribunal that has jurisdiction over all cases may refer a constitutional question to the court on the request of a party or on its own initiative at any stage; if question is raised on request of A-G it must refer that question to the court in the form of a stated case. • S. 44 Tribunal does not have jurisdiction over constitutional questions. • S. 45 Tribunal that has jurisdiction over all questions except Charter questions may refer a constitutional question to the court on the request of a party or on its own initiative at any stage; if question is raised on request of A-G it must refer that question to the court in the form of a stated case.

Weber v. Ontario Hydro (1995) • Facts: Hydro paid Weber sick benefits. Hydro hired investigators to malingering. Benefits suspended. • Commenced action for damages based on tort and breach of Charter rights, claiming damages for the surveillance. • Majority: Arbitrators may grant such remedies as the legislation has empowered them to grant in the circumstances. It follows from Mills that statutory tribunals may be courts of competent jurisdiction prvided they have jurisdicion over the parties and the subject matter of the dispute and are empowered to make the orders sought.. • Dissent: Question is whether can grant damages pursuant to s. 24(1) which may only given by court of competent jurisdiction. • An arbitrator is not a court. (1) Courts decide cases according to law and follow stare decisis, while tribunals are not so constrained. In charter adjudication need consistent interpretation of rights. (2) Tribunal procedures often simplified. Structurally tribunal not equipped to hold hearing requiring evidence of constitutional violation, members not trained in deciding constitutional issues, and not same guarantee of independence as court. • Even if a tribunal is a court, it is not a court “of competent jurisdiction”. A tribunal will be a court of competent jurisdiction if its constituting legislation gives it power over the parties, the issue in litigation, and power to grant remedy which is sought under the Charter. Act gives jurisdiction to deal with all disputes between parties arising from collective agreement. Mills test not satisfied since no power to grant remedy sought. • Tribunal can decide that actions of employer violated s. 8 and that this is evidence to assist it in concluding that the collective agreement has also been violated. • Dissent distinguished administrative tribunal from court of competent jurisdiction. Arbitrator cannot award remedy for charter breach since not court of competent jurisdiction.

• Mooring v. Canada (National Parole Board) (1996) – parole board was not a court of competent jurisdiction. Hearing not adversarial, no power to issue subpoena, no evidence under oath, no legal training, acts on information rather than assessing evidence, subject already tried, convicted and sentenced.

Multani v. Commission scolaire Marguerite-Burgeoys • Boy forbidden from wearing kirkan (religious object in form of dagger) at school. School board’s council of commissioners upheld decision. • Issue: was this decision compliant with requirements of Charter? • No suggestion that Council of Commissioners did not have jurisdiction from an administrative law standpoint. • No question as to administrative and constitutional validity of the rule against carrying weapons. • Therefore administrative law standard of review not relevant. • Decision does infringe freedom of religion. It is “prescribed by law” – therefore s. 1 analysis. • Interference neither trivial or insignificant (result – could not go to school). Although pressing and substantial objective (safety), failed on minimal impairment. • Minority: should have based analysis on principles of administrative law. A decision of an administrative body is not a “law” for the purposes of s. 1. Applying standard of reasonableness to decision, council did not sufficiently consider either the right to freedom of religion or proposed accommodation measure. Decision was therefore unreasonable. • Minority 2: Charter analysis not always necessary but in this case it is. Not necessary to consider objectives of act as unchallenged statutory authority. Fails on minimal impairment (proportionality).

3. The Standard of Review • Whether an administrative tribunal has authority to deal with constitutional questions or is a court of competent jurisdiction is a true jurisdictional question in the sense that it is a “jurisdiction-conferring” issue on which the tribunal must be correct. Note dissent in Multani, above, however.

D. The Use and Misuse of Discretion

• Discretion – an express legal power to choose a course of action from a range of permissible options, including the option of inaction. • Officials have powers which affect the private domain of the individual, and criteria for that exercise left to officials themselves. • Misleading to attempt to draw too sharp a distinction between law and discretion as administrative tools. • The terms of an agency’s enabling statute frequently do not yield a clear cut meaning. Therefore implicit discretion to elaborate. • Officials are normally left with ample and unstated discretion about circumstances in which rules will be actually enforced. • Even express grants of discretion are subject to some legal limits. Courts determine what those limits are by reference to enabling statute, common law, Constitution Acts and underlying constitutional principles. • Discretionary decisions must be made by reference to statutory purposes, legal limits of power, policy objectives and past practice. • How to review legality of exercise of discretion?

1. Abuse of Discretion as a Ground of Judicial Review • Common law grounds of judicial review for abuse of discretion which feature relatively infrequently: • Bad faith • Wrongful delegation of powers • Fettering of discretion • More common – improper purpose, taking into consideration irrelevant factors or failing to consider relevant factors. • Relevancy and purpose boil down to questions of statutory interpretation; interpretative backgrounds: the protection of common law rights of contract and property, functional considerations of governmental effectiveness, democratic values, human rights. • Also: • Is the statutory language subjective or objective? Is it related to a specific purpose or is it granted for more general purposes? • Is the nature of the interest affect by the discretionary power one to which our legal system normal gives a high degree of protection? How seriously is it affected by the decision? • Character of decision maker; whether they have relevant expertise, respect for political accountability. • Roncarelli v. Duplessis (1959): discretion implies good faith. Only grounds considered for refusal of permit should be those that are incompatible with the purposes envisaged by the statute. • Theoretical basis for judicial review of exercise of discretion is the same as that for courts’ power to set aside decisions based on misinterpretation of its statute; administrative action that is not authorized by law is of no force or effect. • Previously did not consider standard of review; now have to ask what it is.

Suresh v. Canada (Minister of Citizenship and Immigration) (2002) • Standard of review in the case of challenges based on a failure to observe or have regard to Charter rights and freedoms in the exercise of discretion. • Issue: misterial discretion to deport someone who was a danger to the security of Canada even when there was a possibility that that person’s “life, liberty and security of the person would be in serious jeopardy in the counter of his or her origin due to serious prospect of torture. • To deport a refugee to face a substantial risk of torture would violate s. 7. Minister must exercise her discretion to deport accordingly. • Standard of review. Appeal raised four issues: • Constitutional review of the provisions of the Immigration Act • Whether Suresh’s presence in Canada constitutes a danger to national security • Whether Suresh faces a substantial risk of torture upon return to Sri Lanka • Whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional rights (see above). • Standard of review relevant to second and third issues which involved use of ministerial discretion. • Threshold question is factual; is there a substantial risk of torture. • Constitutional issue; would if shock the Canadian conscience to deport Suresh if there is. • Already ordering a new hearing on procedural grounds so not necessary in this ase to review Ministers decisions. However, following guidelines would apply: • Deferential approach to second issue. Decision should only be set aside if patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. • Deference suggested by language of act (Minister’s “opinion” is what matters) and consideration of Pushpanathan factors: (1) presence of absence of a clause negating the right of appeal; (2) the relative expertise of the decision maker; (3) the purpose of the provision and of the legislation generally; (4) the nature of the question. • (1) No privative clause in this case, but appeal only by leave of Federal court, and leave decision may not be appealed; (2) decision-maker is Minister who has special expertise; (3) purpose of legislation – to balance danger of persecution upon refoulement with seriousness of danger to Canadian society; and (4) the inquiry is highly fact-based and contextual. • If Minister as considered appropriate factors court cannot set decision aside even if it would have weighted the factors differently and arrived at a different conclusion. • Also deferential approach to third issue. Characterised as constitutional insofar as decision must conform to s. 7. • Largely fact based inquiry. Court may only intervene if decision not supported by evidence of appropriate factors not considered.

Re Sheehan and Criminal Injuries Compensation Board (1973) • Taking into account irrelevant factors. • Facts: inmate assaulted and injured on two separate occasions by other inmates. Refused compensation. • Board considered: Sheehan himself convicted for criminal behaviour; incidents occurred in federal penitentiary outside power and jurisdiction of Ontario; no application/proceedings against any other Govt. department, ministry or agency for compensation. • Divisional Court: First consideration irrelevant (Sheehan’s criminal behaviour unconnected to incident); second consideration not relevant (if Legislature had intended to exclude people in federal penitentiaries it should have said so); third consideration not relevant (provision of act says it does not effect the right of any person to recover from any other person by civil proceedings lawful damages). • Provisions also state decision of board is final; it may have regard to any factors it considers relevant. • No obligation to award compensation but general intent of act is clearly to provide compensation to victims of crime. • Very broad discretion but Courts will interfere if tribunal acts on irrelevant considerations. • Court of Appeal: Very broad discretion, no right to compensation. • The Board did not hold as a matter of statutory interpretation that any of the three considerations would render an applicant ineligible. • Act states that Board is to be the judge of what is relevant. This would not extend to authorize the Board to make relevant a consideration which is patently irrelevant, but reasons of board show considered decision as to relevancy. • NB – legislation now says that the Board shall have regard to all relevant circumstances. In order to properly invoke this section, the Board must weight all relevant circumstances (Dalton v. Criminal Injuries Compensation Board (1982)).

Shell Canada Products Ltd. V. Vancouver (City) (1994) • Wrongful purpose. • Facts: the Council of the City of Vancouver passed resolutions not to do business with shell and to declare the City a “Shell Free” zone, for so long as Shell continued to do business in South Africa. • City had power not to do business with Shell, but reasons for this were attacked. • Majority: In passing the resolutions the City was clearly purporting to exercise its statutory powers, and such exercise is reviewable to the extent of determining whether the actions are intra vires. Generally, a municipal authority is authorized to act only for municipal purposes. Municipal purposes include those that are compatible with the purpose and objects of the enabling statute. Any ambiguity or doubt is to be resolved in favour of the citizen, especially when the grant of power contended for is out of the usual range. The explicit purpose of the resolutions at issue here is to influence Shell to divest itself of its South African holdings by expressing moral outrage against the apartheid regime and to join the alleged international boycott of its subsidiaries and products until Shell "completely withdraws from South Africa". Vancouver 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 City's territorial limits. Under the Vancouver Charter, Council "may provide for the good rule and government of the city". This places a territorial limit on Council's jurisdiction. While Council can have regard for matters beyond its boundaries in exercising its powers, any action taken in so doing must have as its purpose benefit to the citizens of the City. The Charter expressly provides for activities in which Council may engage outside the City's limits even when such activities clearly redound to the benefit of its inhabitants. The sections of the Charter which give the City power to engage in commercial, industrial or business undertakings, acquire such personal property as may be required for its purposes, and "do all such things as are incidental or conducive to the exercise of the allotted powers" are general sections found in most if not all municipal Acts which must be construed subject to the limitations imposed by the purpose of the statute as a whole. 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. • Minority: Traditionally procurement immune from judicial review because private law; but use of public funds, must act in public interest. The doctrine that procurement powers are immune from judicial review 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. While it is important that abuses of power are checked, however, it is also important that the courts not unduly confine municipalities in the responsible exercise of the powers which the legislature has conferred on them. Courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Such a generous, deferential approach to municipal powers will aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation. It is also arguably more in keeping with the true nature of modern municipalities, and with the flexible, more deferential approach this Court has adopted in recent cases to the judicial review of administrative agencies. • Court should therefore adopt a generous deferential standard of review towards the decisions of municipalities. • The resolutions not to do business with Shell until it stops trading with South Africa can clearly be defended under the City's power to engage in commercial and business activities. Improper purposes cannot be said to have rendered the otherwise legitimate decision invalid, since the City's motives did not exceed the powers conferred on it. The Vancouver Charter empowers Council to "provide for the good rule and government of the city". Council may properly take measures related to fostering and maintaining a sense of community identity and pride, and among such measures may be found community expression of disapproval or approval of different types of conduct. Provisions in municipal Acts for the "good government" or general welfare of the citizens, far from being mere surplusage, originated in the desire of legislatures to prevent the decisions of municipal councillors being struck down by the courts. Furthermore, many other municipalities interpret their mandate broadly.

• If multiple considerations court will only hold decision ultra vires if unlawful purpose or consideration played dominant or material role (Canadian Assn. of Regulated Importers v. Canada (Attorney General) (1994)).

2. Failure to Consider Relevant Factors • An agency may consider a large number of factors but an exercise of discretion will be ultra vires only if the agency has overlooked a factor that its enabling statute expressly/impliedly obliged it to consider (Tavita v. Minister of Immigration (1993)). • Oakwood Developments Ltd. v. Rural Municipality of St. Francois Xavier (1985) – refused to read engineers report. Ultra vires because refused to consider relevant evidence. Presumably also breach of duty of fairness (denial of opportunity to tender evidence) or irrational (based on finding of fact for which no evidence).

3. C.U.P.E. v. Ontario (Minister of Labour) (2003) • Judicial review for abuse of discretion. • Failure to consider relevant factors. • Minister appointed judges as arbitrators without consulting unions. Unions sought declaration that this denied natural justice and lacked institutional independence and impartiality. • Held: Minister’s appeal should be dismissed. Minister is required, in the exercise of his power of appointment under s. 6(5) of the HLDAA to be satisfied that prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognized in the labour relations community as generally acceptable to both management and labour. • Majority: Minister’s appeal dismissed. Minister is required to exercise power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power. A fundamental purpose and object of the statute was to provide an adequate substitute for strikes and lock outs. • Answer therefore depends on statutory interpretation. • Minister’s approach excluded relevant criteria (labour relations experience and broad acceptability) and substituted another criterion (prior judicial experience). • The Minister was not required to proceed with the selection of chairpersons by way of mutual agreement or from previous roster. Judges as a “class” not reasonably seen as biased against labour. Nevertheless, Minister required to select arbitrators from candidates not only qualified by impartiality but also expertise, acceptance in labour relations community. • Section requires appointment of “a person who is, in the opinion of the Minister, qualified to act”. • The Minister's discretion is constrained by the scheme and object of the Act as a whole, which is to create a "neutral and credible" substitute for the right to strike and lock-out. Labour arbitration has traditionally rested on a consensual basis, with the arbitrator chosen by the parties or being acceptable to both parties. Although the s. 6(5) power is expressed in broad terms, the Minister is nevertheless required, in the exercise of that power, to have regard to relevant labour relations expertise, independence, impartiality and general acceptability within the labour relations community. These criteria are neither vague nor uncertain. The livelihood of a significant group of professional labour arbitrators depends on their recognized ability to fulfill them. The result is a perfectly manageable framework within which the legislature intended to give the Minister broad but not unlimited scope within which to make appointments in furtherance of the HLDAA's object and purposes. The Minister, under the HLDAA, is not given a broad policy function. His narrow role is simply to substitute for the parties in naming a third arbitrator in case of their disagreement and, given the context, background and purpose of the Act, his rejection of labour relations expertise and general acceptability as relevant factors was patently unreasonable. • Although, as a member of Cabinet, the Minister was committed to public sector rationalization and had a perceived interest in the appointment process and the outcome of the arbitrations, the legislature specifically conferred the power of appointment on the Minister and, absent a constitutional challenge, clear and unequivocal statutory language conferring that authority prevailed over the common law rule against bias. The Minister's power to delegate the appointment process under s. 9.2(1) of the HLDAA was permissive only and to take away his authority to make his own choice would amount to a judicial amendment of the legislation. • The Minister satisfied any duty to consult with the unions about the change in the appointments process. There were extensive meetings during which the Minister signaled that the process was subject to reform and that retired judges were potential candidates for appointments. The unions made clear their opposition. Section 6(5) of the HLDAA did not impose on the Minister a procedural requirement to consult with the parties to each arbitration nor does the evidence establish a firm practice of appointing from a list or by mutual agreement. • A general, ambiguous promise to continue an existing system subject to reform does not suffice under the doctrine of legitimate expectation to bind the Minister's exercise of his or her discretion. • The Court of Appeal had concluded that the Minister's approach tainted both the independence and impartiality of the HLDAA arbitration boards to which the retired judges had been appointed. This conclusion was not justified. The HLDAA commands the use of ad hoc arbitration boards. Such boards are not characterized by financial security or security of tenure beyond the life of the arbitration itself. The independence of arbitrators is guaranteed by training, experience and mutual acceptability. Since s. 6(5) requires the appointment of individuals qualified by training, experience and mutual acceptability, the proper exercise of the appointment power would lead to a tribunal which would satisfy reasonable concerns about institutional independence. • Impartiality raises different considerations. The Court of Appeal did not suggest that the retired judges were in fact biased or partial but concluded that they might reasonably be seen to be "inimical to the interests of labour, at least in the eyes of the appellants". The test, however, is not directed to the subjective perspective of one of the parties but to the reasonable, detached and informed observer. Retired judges as a class have no greater interest than other citizens in the outcome of the arbitrations and there are no substantial grounds to think they would do the bidding of the Minister or favour employers so as to improve the prospect of future appointments. A fully informed, reasonable person would not stigmatize retired judges, as a class, with an anti-labour bias. Allegations of individual bias must be dealt with on a case-by- case basis. • The appropriate standard of review is patent unreasonableness. The pragmatic and functional approach applies to the judicial review of the exercise of a ministerial discretion and factors such as the existence of a privative clause, the Minister's expertise in labour relations, the nature of the question before the Minister and the wording of s. 6(5) all call for considerable deference. A patently unreasonable appointment 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. • The appointments were not patently unreasonable simply because the Minister did not restrict himself to the s. 49(10) list of arbitrators. Some arbitrators on the list were unacceptable to the unions and some acceptable arbitrators were not on the list, confirming the reasonableness of the Minister's view that candidates could qualify without being on the list. However, in assessing whether the appointments were patently unreasonable, the courts are entitled to have regard to the importance of the factors the Minister altogether excluded from his consideration. In this case, the Minister expressly excluded relevant factors that went to the heart of the legislative scheme. The matters before the boards required the familiarity and expertise of a labour arbitrator. Expertise and neutrality foster general acceptability. Appointment of an inexpert and inexperienced chairperson who is not seen as generally acceptable in the labour relations community is a defect in approach that is both immediate and obvious. Having regard to the legislative intent manifested in the HLDAA, the Minister's approach to the s. 6(5) appointments was patently unreasonable. The qualifications of specific appointees will have to be assessed on a case-by-case basis if challenged. • Institutional independency – lack the usual indices of this such as security of tenure, but an as hoc tribunal by definition like this and an ad hoc tribunal is what is established by legislation – court cannot substitute a different tribunal for the one established by the legislature. • The appeal is thus dismissed on the limited ground that appointments that excluded from consideration labour relations expertise and general acceptability in the labour relations community were patently unreasonable. • Dissent: The appropriate standard of review for the exercise of the Minister's appointment power under s. 6(5) of the HLDAA is patent unreasonableness. The pragmatic and functional approach focuses on the particular provision being invoked. The Minister exercised power under a single statute, his enabling legislation, and, absent a constitutional challenge, the patent unreasonableness standard need not make room for a review of statutory interpretation of enabling legislation on a correctness basis. There is no basis for dividing the Minister's decision into component questions subject to different standards of review, nor should the Minister's power be viewed as due less deference because it is circumscribed by legislation. Not every administrative action involves a distinct and identifiable exercise of statutory interpretation. Where, as here, the factors indicate that the question raised by the provision is one intended by the legislators to be left to the exclusive decision of the administrative decision maker, it simply is not one for the courts to make. The presence of a privative clause is compelling evidence that deference is due. The Minister knows more about labour relations than the courts and will be taken to have expertise. Deference is owed to expert decision makers designated by the legislature. The fact-based nature of the question before the Minister also points to deference and empowering the Minister, rather than an apolitical actor, suggests a legislative intent of political accountability. • The Minister did not make appointments that were patently unreasonable. A contextual approach to statutory interpretation of the enabling legislation is necessary for determining the criteria relevant to exercise of the discretion. In some cases, the criteria are spelled out in the legislation, regulations or guidelines or found in the specific purposes of the relevant Act. In others, the relevant factors may be unwritten and derived from the purpose and context of the statute. In this case, there are no relevant regulations, guidelines, or other instruments, and the statute does not say much. The Act stipulates that appointees must be qualified in the opinion of the Minister, expressly contemplating the importance of the Minister's opinion. Labour relations expertise, independence and impartiality, reflected in broad acceptability, are not necessarily dominant or obvious factors and should not be imposed as specific restrictions on the Minister's discretion. The Minister developed an opinion and determined that judging experience was a relevant qualification. The Act called for the Minister to reach his own opinion, not to consider a specific determining factor. Given how much work it takes to identify labour relations experience and broad acceptability as factors and to imply them into s. 6(5), weighing them less heavily than another unwritten qualification, namely judicial experience, does not vitiate the appointments as patently unreasonable. It takes significant searching or testing to find the alleged defect or even the factors said to constrain the Minister. It is therefore difficult to characterize the appointments as immediately or obviously defective, not in accordance with reason, clearly irrational, or so flawed that no amount of curial deference could justify letting them stand based on a failure to consider these factors. Recognition of the seriousness of quashing a decision as patently unreasonable is crucial to maintaining the discipline of judicial restraint and deference, and our intervention is not warranted in these circumstances. • Concerns about institutional independence and institutional impartiality do not render the Minister's appointments patently unreasonable. The Act requires that the tribunals be ad hoc and retired judges as a class cannot reasonably be seen as so partial that appointing them took the Minister outside the bounds of his statutory discretion. The possibility of a successful challenge to a particular board is not foreclosed but the constraints on the Minister's discretion do not permit a general inquiry into the independence and impartiality of the boards on the basis of the appointment process in the absence of a direct challenge to the boards actually appointed.

4. Finlay v. Canada (Minister of Finance) (1993) • Facts: P had portions of his social assistance decided by Manitoba after he had, in error, been previously overpaid. • Issue: whether Manitoba’s Social Allowances Act, allowing for repayment of overpayments, complied with the federal standards prescribed in the Canada Assistance Plan. • Note: P was suing for a declaration or certiorari that the payments were illegal, not for mandamus (since there was no decision to set aside). • The CAP is a spending statute whose objective is to allow Canada to contribute to the cost of providing welfare benefits; the conditions are designed to promote legislation which achieves substantial compliance with the objectives of CAP. • Section 6(2)(a) requires assistance to be provided in an amount that is compatible, or consistent, with an individual’s basic requirements; it thus requires something more than mere “consideration” of an individual’s basic requirements. • However, s. 6(2)(a) does not necessitate an exact fit in the sense of requiring a province to provide an amount of assistance that “fulfils” or “equals” basic requirements for each payment period. • Section 6(2)(b) is addressed at determining both who is a person in need and how much assistance should be provided; in that section, the words “take into account” indicate that a province must consider these factors in making these determinations. • The provision in the SAA requiring repayment of overpayments is reasonable (once that recovery is complete, the individual will, if her payments over the entire duration are considered, have received exactly that to which she is entitled; thus she will have received an amount consistent with basic requirements). • It is not incompatible with the scheme established by CAP that a person in need who has been overpaid be required to pay the excess back (there are only limited resources to go around; if there are overpayments to some that cannot be recovered, in the long term others will suffer). • Dissent: frames the facts differently to come to the opposite conclusion (notes the scope of the problem, humanizes P, acknowledges statutory ambiguity, notes that P does not “profit from the overpayment in any way, etc.); the conclusion here is that there must be an exact fit between payments and the person’s need (needs must be actually met, not approximately met). • Note: the dissent invokes the “adequacy principle” (if ambiguity, the court should best ensure the adequacy of assistance).

5. Canada (Attorney General) v. Mossop (1993) • Facts: D was denied bereavement leave to attend the funeral of the father of his gay spouse; D complained that this was discriminatory on the basis of “family status.” • Issue: the interpretation of “family status” in the Canadian Human Rights Act. • It is clear that when Parliament added the phrase “family status” to the English version of the Act in 1983, it refused at the same time to prohibit discrimination on the basis of sexual orientation in that Act (if “sexual orientation” was meant to be included, it would have). • Sexual orientation was so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of “family status” without indirectly introducing into the Act the prohibition which Parliament specifically decided not to include. • Absent a Charter challenge, the Charter cannot be used as an interpretative tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have. • Note: none of the provisions of the Act were challenged under the Charter; the question before the Court was thus strictly one of statutory interpretation. • Also note: although sexual orientation has been added to the list of prohibited grounds of discrimination, D insisted on the Court disposing of its action solely on the basis of the meaning of “family status.” • Concurrence: “family status” = ordinary meaning (heterosexual nuclear family). • Dissent: human rights legislation has a unique quasi-constitutional nature and has to be given a large, purposive, and liberal interpretation (here: the purpose of the Act is to ensure that people have an equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discriminatory practices and even if Parliament had in mind a specific idea of the scope of “family status,” in the absence of a definition in the Act which embodies this scope, concepts of equality and liberty which appear in human rights documents are not bounded by the precise understanding of those who drafted them). • Note the difference in approaches with respect to statutory silence.

6. Purpose and Proof • Reasons normally conclusive. • Court may attribute to agency purpose contained in report (La Rush v. Metropolitan Toronto and Region Conservation Authority (1967)). • Otherwise courts reluctant to probe reasons (Consortium Developments (Clearwater) Ltd. v. Sarnia (City) (1998)).

7. Discretion and the Charter, Underlying Principles of the Constitution, And International Law

• This area is of historical importance because it was one way to confine the ability of courts to review administrative decisions. • Courts had less ambit to review errors of discretion than they did for errors of law. • In the absence of a right of appeal from the exercise of discretion, the legal basis for judicial intervention in this context is ultra vires. • Historically, review of discretion was limited to the grounds of: o Bad faith; o Acting for an improper purpose or motive; o Taking account of an irrelevant factors; o Undue fettering of discretion; and o Acting under the dictation of someone without authority. • Factors accounted for by courts in sizing up discretionary power and determining the degree of latitude to afford to administrative tribunals: o Statutory language under which the discretion is granted (specific v. general); o Nature of the interest affected by the discretionary power; o Character of the decision (political accountability, effective checks?); and o Character of the decision-maker (expertise). • Traditionally: courts evaluated broad discretionary decisions simply as to whether or not the Board’s actions were within the ambit of the discretion granted by the legislature.

• Charter identifies those rights which by their entrenchment in the constitution are to receive particular protection. • S. 1 makes it clear that Charter rights are not absolute. • Charter operates independently of statute and will normally prevail over even express statutory language authorizing the curtailment of Charter-protected rights; “reading down” grants of discretion so as not to authorize the violation of fundamental rights involves more than interpretation of enabling statute. • Use of Charter to invalidate grant or exercise of statutory discretion: Hunter v. Southam Inc. (1984) – search and seizure without warrant; Rocket v. Royal College of Dental Surgeons of Ontario (1990) – restrictions on advertising. • N.B. the mere fact that a discretionary power has the potential to be exercised in a way that infinges Charter does not give rise automatically to invalidation (R. v. Jones (1986)); in this case attack must be on individual exercise of discretion.

Slaight Communications Inc. v. Davidson (1989) • Attack on exercise of remedial discretion; the adjudicator made an initial order imposing on appellant an obligation to give respondent a letter of recommendation certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount of sales he actually made during this period; and (3) that an adjudicator had held that he was unjustly dismissed. The adjudicator further ordered that the appellant was prohibited from answering a request for information about respondent except by sending the letter of recommendation. The Federal Court of Appeal dismissed an application by appellant to review and set aside the adjudicator's decision. • Issues: did the orders infringe appellant's freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms; if so could they be justified under s. 1. • Held (Beetz J. dissenting and Lamer J. dissenting in part): The appeal should be dismissed. The orders infringe s. 2(b) of the Charter but are justifiable under s. 1. • The Charter applies to orders made by the adjudicator. The adjudicator is a creature of statute. He is appointed pursuant to a legislative provision and derives all his powers from statute. The Constitution is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. It is thus impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require this Court to declare the legislation to be of no force or effect, unless it could be justified under s. 1 of the Charter. It follows that an adjudicator, who exercises delegated powers, does not have the power to make an order that would result in an infringement of the Charter. • The word "like" in the English version of s. 61.5(9)(c) of the Canada Labour Code does not have the effect of limiting the powers conferred on the adjudicator by allowing him to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection. Interpreting this provision in this way would mean [page1040] applying the ejusdem generis rule. It is impossible to apply this rule in the case at bar since one of the conditions essential for its application -- the presence of a common characteristic or common genus -- has not been met. The interpretation according to which the word "like" in the English version of para. (c) does not have the effect of limiting the general power conferred on the adjudicator is also more consistent with the general scheme of the Code, and in particular with the purpose of Division V.7, which is to give non-unionized employees a means of challenging a dismissal they feel to be unjust and at the same time to equip the adjudicator with the powers necessary to remedy the consequences of such a dismissal. • Majority: The adjudicator's orders were reasonable in the administrative law sense. Administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter review. While patent unreasonableness is important to maintain for questions untouched by the Charter, such as review of determinations of fact, in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under s. 1 of the Charter. • The adjudicator's first order infringed s. 2(b) of the Charter but is saved under s. 1. • The adjudicator's second order should not have the standard of patent unreasonableness applied to it. This standard should be applied in a Charter enquiry only in the clearest of cases in which decision cannot be justified under s. 1 Charter. • The second order also infringed s. 2(b) of the Charter. It was an attempt to prevent the appellant from expressing its opinion as to the respondent's qualifications beyond the facts set out in the letter. But this order, too, was justifiable under s. 1. First, the objective was of sufficient importance to warrant overriding appellant's freedom of expression. Like the first order, the objective of the second order was to counteract the effects of the unjust dismissal by enhancing the ability of the employee to seek new employment without being lied about by the previous employer. The adjudicator's remedy was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee. The governmental objective, in a general sense, was that of protection of a particularly vulnerable group, or members thereof. To constitutionally protect freedom of expression in this case would be tantamount to condoning the continuation of an abuse of an already unequal relationship. Second, the means chosen were reasonable. Like the first order, the second order was rationally linked to the objective. With the proven history of promoting a fabricated version of the quality of respondent's service and the concern that the employer would continue to treat him unfairly if he went back to work for the employer, it was rational for the adjudicator to attach a rider to the order for a reference letter so as to ensure that the employer's representatives did not subvert the effect of the letter by unjustifiably maligning its previous employee in the guise of giving a reference. Further, no less intrusive measure could have been taken and still achieved the objective with any likelihood. Monetary compensation would not have been an acceptable substitute because it would only have been compensation for the economic, not the personal, effects of unemployment. Labour should not be treated as a commodity and every day without work as exhaustively reducible to some pecuniary value. The letter was tightly and carefully designed to reflect only a very narrow range of facts which were not really contested. The appellant was not forced to state opinions which were not its own. The prohibition was also very circumscribed. It was triggered only in cases when the appellant was contacted for a reference and there was no requirement to send the letter to anyone other then prospective employers. In short, the adjudicator went no further than was necessary to achieve the objective. Finally, the effects of the measures were not so deleterious as to outweigh the objective of the measures. The objective in this case was a very important one, especially in light of Canada's international treaty commitment to protect the right to work in its various dimensions. For purposes of this final stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective. • Per Lamer J. (dissenting in part): The adjudicator did not exceed his jurisdiction by ordering appellant to give respondent a letter of recommendation with a specified content. Apart from the Charter, the only limitation imposed by s. 61.5(9)(c) is that the order must be designed to "remedy or counteract any consequence of the dismissal". That is the case here. The order prevents appellant's decision to dismiss respondent from having negative consequences for the latter's chances of finding new employment. Ordering an employer to give a former employee a letter of recommendation containing only objective facts that are not in dispute is not as such unreasonable and there is nothing to indicate that the adjudicator was pursuing an improper objective or acting in bad faith or in a discriminatory manner. • However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a request for information about respondent other than by sending the letter of recommendation. Though the order is also meant to remedy or counteract the consequences of the dismissal, its effect, by prohibiting appellant from adding any comments whatever, is to create circumstances in which the letter could be seen as the expression of appellant's opinions. This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada. Parliament therefore cannot have intended to authorize such an unreasonable use of the discretion conferred by it. The adjudicator lost this jurisdiction when he made a patently unreasonable order. • Steps for determining validity of order made by administrative tribunal: • May not exceed jurisdiction. • Legislation does not confer power to infringe Charter unless explicitly or by necessary implication. • If disputed order pursuant to legislation which confers express power to infringe protected right: subject legislation to s. 1 test. • If legislation does not confer power to limit Charter rights: subject order to s. 1 test. • The first order limits appellant's freedom of expression but this limitation, which is prescribed by law -- the order made by the adjudicator is only an exercise of the discretion conferred on him by statute -- can be justified under s. 1 of the Charter. The purpose of the order is clearly, as required by the Code, to counteract the consequences of the unjust dismissal. Such an objective is sufficiently important to warrant a limitation on freedom of expression. It is essential for the legislator to provide mechanisms to restore equilibrium in employer/employee relations so the employee will not be subject to arbitrary action by the employer. Additionally, the means chosen to attain the objective are reasonable in the circumstances. The order is fair and was carefully designed. The purpose of the letter of recommendation is to correct the false impression given by the fact of the dismissal and it contains only facts that are not in dispute. It is rationally connected to the dismissal since in certain cases it is the only way of effectively remedying the consequences of the dismissal. Finally, the consequences of the order are proportional to the objective sought. The latter is important in our society. The limitation on freedom of expression is not what could be described as very serious. It does not abolish that freedom, but simply limits its exercise by requiring the employer to write something determined in advance. • FOLLOW MAJORITY APPROACH (S. 1 NOT PATENT UNREASONABLENESS – ROSS V. NEW BRUNSWICK SCHOOL DISTRICT NO. 15 (1996)).

Chamberlain v. Surrey School District No. 36 (2002) • Surrey School Board passed a resolution declining to approve books depicting same sex marriage. The Board's overarching concern, as found by the trial judge, was that the books would engender controversy in light of some parents' religious objections to the morality of same-sex relationships. The Board also felt that children at the K-1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same-sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum. • Challenged on two grounds; Board outside its mandate, resolution violates Charter. • Held (Gonthier and Bastarache JJ. dissenting): The appeal should be allowed. The School Board's decision was unreasonable in the context of the educational scheme laid down by the legislature. The question of whether the books should be approved as supplementary learning resources is remanded to the Board, to be considered according to the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non-sectarianism underlying the School Act. • Majority: Appropriate standard of review: The pragmatic and functional approach (should always be used) points to reasonableness as the appropriate standard of review. No privative clause. Expertise: School board expert on balancing interests, elected body and a proxy for parents and local community members, which suggests that some deference is owed, but problem has human rights dimension so less deference. Purpose: allow local input in selecting materials but clear commitment of the School Act and the Minister to promoting tolerance and respect for diversity. Nature of problem: no legal rules involved, but context broader program of tolerance and respect for diversity. • Policy of the School Act: The School Act's insistence on secularism and non-discrimination lies at the heart of this case. Board is elected proxy of local community. Parents should act in partnership with school. Supplementary soruces are not required – schools can choose to use in partnership with parents. The Act's requirement of secularism in s. 76 does not preclude decisions motivated in whole or in part by religious considerations, provided they are otherwise within the Board's powers. But the Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves. Superintendent of Schools passed the books on to the board for approval. His position (controversy of homosexuality which Minister could not have intended to be discussed absent express language, applies criterion of necessity, concern with right of parents to be primary educators, books might undermine relationship between home and school) appears to express concerns on which board relied. Did not rely on absence of restriction on discussing family types, emphasis of curriculum on tolerance and diversity, secular nature of school. • Application of standard: The Board's decision is unreasonable because the process through which it was made took the Board outside its mandate under the School Act. Board required to exercise its power in accordance with (1) secular mandate of Act; (2) regulation Board had put in place pursuant to Ministerial Order that learning resources should not discriminate (3) factors required to be considered by Act including desired learning outcome. • First, the Board violated the principles of secularism and tolerance in s. 76 of the Act. Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same-sex relationships, without considering the interest of same-sex parented families and the children who belong to them in receiving equal recognition and respect in the school system. • Second, the Board departed from its own regulation with respect to how decisions on supplementary resources should be made, which required it to consider the relevance of the proposed material to curriculum objectives and the needs of children of same-sex parented families. • Third, the Board applied the wrong criteria. It failed to consider the curriculum's goal that children at the K-1 level be able to discuss their family models, and that all children be made aware of the diversity of family models in our society. Instead, the Board applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children's experience through the use of extra materials of local relevance. The Board erred in relying on concerns about cognitive dissonance and age-appropriateness which were foreclosed by the curriculum in this case. In the result, the question of whether to approve the books is remanded to the Board. • Per LeBel J.: The pragmatic and functional approach should not be used. When the administrative body whose decision is challenged is not a tribunal, but an elected body with delegated power to make policy decisions, the primary function of judicial review is to determine whether that body acted within the bounds of the authority conferred on it. The preliminary question is whether the Board acted legally; it could not validly exercise a power it did not have. Although the issue is not directly raised by this appeal, as long as the Board's educational policy decisions are made validly pursuant to its powers, they would be entitled to a very high level of deference. In this case, the Board's decision could not be upheld even on the most deferential standard of review, because it was patently unreasonable. It is, therefore, unnecessary to go through the full analysis of the various factors used to determine the appropriate standard of judicial review. • The Board was authorized to approve or not to approve books for classroom use. But its authority is limited by the requirements in s. 76 of the School Act to conduct schools on "strictly secular and non-sectarian principles" and to inculcate "the highest morality" while avoiding the teaching of any "religious dogma or creed". The words "secular" and "non-sectarian" in the Act imply that no single conception of morality can be allowed to deny or exclude opposed points of view. Section 76 does not prohibit decisions about schools governance that are informed by religious belief. The section is aimed at fostering tolerance and diversity of views, not at shutting religion out of the arena. It does not limit in any way the freedom of parents and Board members to adhere to a religious doctrine that condemns homosexuality but it does prohibit the translation of such doctrine into policy decisions by the Board, to the extent that they reflect a denial of the validity of other points of view. • In this case, the evidence leads to the conclusion that the way the Board dealt with the three books was inconsistent with the School Act's commitment to secularism and non-sectarianism. The overarching concern motivating the Board to decide as it did was accommodation of the moral and religious belief of some parents that homosexuality is wrong, which led them to object to their children being exposed to story books in which same-sex parented families appear. The Board allowed itself to be decisively influenced by certain parents' unwillingness to countenance an opposed point of view and a different way of life. Pedagogical policy shaped by such beliefs cannot be secular or non-sectarian within the meaning of the School Act. The Board reached its decision in a way that was so clearly contrary to an obligation set out in its constitutive statute as to be not just unreasonable but illegal. As a result, the decision amounts to a breach of statute, is patently unreasonable, and should be quashed. • Dissent: Based on the nature of the decision being reviewed, the appropriate standard of review for such a decision, and an examination of the totality of the context, the School Board's decision should be affirmed. The decision is consistent with the Charter, the School Act and the Ministerial directives. It was made within the ambit of the discretion granted by the Act. • Role of parents in educating children: The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being providing they act in accordance with the best interests of their children. This Court has reiterated the paramount parental role by construing the nature of the authority schools and teachers have over children as a delegated authority. The notion of a school's authority being delegated, if it allows parents to remove their children from the public school system, must also guarantee to parents the role of having input with regard to the values which their children will receive in school. This is generally brought about by electing representatives to school boards who will develop consensus and govern on matters pertaining to public education. These local school boards are empowered by the School Act to approve or not approve complementary educational resource materials. They do not, however, have an unfettered discretion. They must act in a manner consistent with the School Act and the evaluation, selection criteria and procedures adopted by the Board. Here, the Board's criteria for approving complementary educational resource materials contained reference to concepts such as "age-appropriateness" and envisaged that the existence of parental concern in the community would be a factor to be considered. • Charter: Charter values are to be respected in the school context generally. That context, however, involves a need to respect both the right of homosexual persons to be free from discrimination and parental rights to make the decisions they deem necessary to ensure the well-being and moral education of their children. The privileged role of parents to determine what is in their children's well-being, including their moral upbringing, and their right to raise their children in accordance with their conscience, religious or otherwise, is central to analyzing the reasonableness of the School Board's decision. A school board is a branch of government and thus subject to the Charter by operation of s. 32. It is not appropriate, however, in this case, to embark upon a complete s. 15 analysis to establish a direct breach of the Charter by the School Board. The s. 15 issues and those concerning standing were not addressed by the courts below. Therefore, approaching this case as one of accommodation or balancing between competing Charter rights adequately addresses the impact of the Charter. The Charter reflects a commitment to equality and protects all persons from discrimination. It also protects freedom of religion and freedom of expression. Where belief claims seem to conflict, s. 15 cannot be used to eliminate beliefs, whether popular or unpopular. An acceptable resolution is accommodating or balancing. The relationship between ss. 2 and 15 of the Charter, in a truly free society, must permit persons who respect the fundamental and inherent dignity of others and who do not discriminate, to still disagree with others and even disapprove of the conduct or beliefs of others. Thus, persons who believe, on religious or non- religious grounds, that homosexual behaviour, manifest in the conduct of persons involved in same-sex relationships is immoral, and those who believe that homosexual behaviour is morally equivalent to heterosexual behaviour, are entitled to hold and express their view. Both groups, however, are not entitled to act in a discriminatory manner. The distinction between actions and beliefs is present in Canada's constitutional case law: persons are entitled to hold such beliefs as they choose, but their ability to act on them, whether in the private or public sphere, may be narrower. This approach reflects the fact that ss. 2(a) and 2(b) of the Charter coexist with s. 15, which extends protection against discrimination to both religious persons and homosexual persons. Here, there is no evidence that the parents who felt that the three books were inappropriate for five- and six-year-old children fostered discrimination against persons in any way. • The Board's decision is reasonable. The practice of approving or not approving books was clearly within the purview of the School Board's authority and its decision did not offend the requirement under s. 76 of the School Act that the "highest morality must be inculcated". That notion ought to be defined as a principle that maintains the allegiance of the whole of society including the plurality of religious adherents and those who are not religious. The values expressed in the Charter derive from a wide social consensus and should be considered as principles of the "highest morality" within the meaning of s. 76 of the School Act. The Board's decision is consistent with the Charter. It reflects a constitutionally acceptable balance and a position which is respectful of the views of both sides. The three books will not be employed in the two earliest grades, but this subject matter, like the issue of homosexuality as a general topic of human sexuality, is present in later aspects of the curriculum. Further, the failure to approve these books does not necessarily preclude the issue of same-sex parents being discussed in the classroom. While the best interests of children includes education about "tolerance", "tolerance" did not require the mandatory approval of the books. "Tolerance" ought not be employed as a cloak for the means of obliterating disagreement. • The Board's decision is also consistent with a proper understanding of "strictly secular and non- sectarian principles" in s. 76. Section 76 provides general direction as to how all schools are to be conducted. The assumption that "secular" effectively means non-religious is incorrect. The religiously informed conscience should not be placed at a public disadvantage or disqualification. To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The dual requirements that education be "secular" and "non-sectarian" refer to keeping the schools free from inculcation or indoctrination in the precepts of any religion, and do not prevent persons with religiously based moral positions on matters of public policy from participating in deliberations concerning moral education in public schools. Regardless of the personal convictions of individual members, the reasons invoked by the Board for refusing to approve the books -- that parents in the community held certain religious and moral views and the need to respect their constitutional right to freedom of religion and their primary role as educators of their children -- raise secular concerns that could properly be considered by the Board. • The standard of review: The appropriate standard of review in this case is reasonableness. First, the absence of a privative clause should be considered in light of the corresponding absence of a clause expressly allowing the decisions of the Board to be appealed before the courts and of the non-adjudicative nature of the School Board. Second, the decision to approve the books or not requires the Board to balance the interests of different groups, a function which falls within its core area of expertise as a locally elected representative body. While the decision also has a significant human rights dimension, here the Board made a largely factual determination with a view to balancing local parental concerns against the broad objective of promoting Charter values. The decision should thus attract greater deference than when administrative tribunals make general determinations of law concerning basic human rights issues affecting numerous future cases. Third, the purpose for which the legislature granted the Board authority to approve supplementary learning materials was to allow for local input in choosing such materials. Fourth, the nature of the problem does not involve the strict application of legal rules or the interpretation of law, but a highly contextual and polycentric analysis. • The considerations taken into account by the Board were appropriate. The moral status of same-sex relationships is controversial and the School Board was caught between two vocal and passionate sides. While it would not have been unconstitutional to approve the three books for use as educational resources, it is similarly not unconstitutional to not approve the books. The Charter does not demand that five- and six-year-olds be exposed to parents in same-sex relationships within a dimension of a school curriculum, especially when there is significant parental concern that these materials may be confusing for these young children. The Board's decision was generally motivated by concerns related to age-appropriateness and parental concern. The parental concern to which the School Board was responding revolves around the nature of the portrayal of same-sex parents in the three books and the capacity of Kindergarten and Grade One age students to interpret this portrayal. It was a difficult choice between permitting the three books to be taught in K-1 against the wishes of some parents and then provide for the exclusion of certain children from the class, or to teach a general lesson about tolerance and respect for people by less controversial means and leave the issue of parents in same-sex relationships and homosexuality for a time when students are better positioned to address the issues involved and better positioned to reconcile the potentially incongruous messages they may be receiving. That choice, however, was specifically intended to be made locally, as the School Act envisages. The majority of the trustees were of the view that the three books were not appropriate for K-1 students and were unable to conclude, based on their perception of parental concern and the demands of the curriculum, that such educational materials ought to be approved for K-1. Of particular importance to the Board's decision was that the recommended K-1 learning resources set out by the Ministry of Education did not, at that time, include any other resources expressly dealing with homosexuality or same-sex couples or families. The family life education curriculum suborganizer refers to students being expected to identify a variety of models for family organization but does not indicate that parents in a same-sex relationship are to be addressed in K-1. The prescribed learning outcomes for the K-1 family life curriculum suborganizer include having children draw and write about their own families, and having children talk about each others' families. In a situation where there is a child in the classroom that has same-sex parents, these activities and others would raise the issue of same-sex parented families and teachers may feel it necessary to discuss it. Even in such a situation it is not necessary that educational resource materials which portray same- sex parents be generally approved for use in all classrooms in a particular school district. Other options exist. Furthermore, the School Board has a stringent anti-discrimination policy, one that is taken seriously. The totality of the context tends, therefore, towards a conclusion that the Charter values of equality and non-discrimination are being fostered by the School Board.

Lalonde v. Ontario (Commission de restructuration des services de santé) (2001) • Facts: Ottawa’s only francophone hospital told to downsize; Hospital sought review alleging that the order violated the province’s French Language Services Act and also an unwritten principle of the Canadian Constitution, the protection of minorities. D had told P that the question of whether there needed to be a francophone hospital was beyond its mandate. • Constitutional principle of respect for and protection of minorities is a bedrock principle that has a direct bearing on the interpretation to be accorded to the FLSA and on the legality of the Commission’s directions concerning the hospital. • Removing available services in French from Montfort could not be done without complying with the “reasonable and necessary” requirement of the FLSA and had not shown that this was the case. • Even if text of Constitution does not guarantee a specific right, constitutional values must be considered in assessing the validity or legality of government action. • Commission entitled to deference but offered no justification for departure from constitutional values. • Here: closing Montfort Hospital would violate the underlying constitutional principle of respect for minority rights identified in the Secession Reference.

8. Delegated Legislation • Same legal effect as statute but an exercise of discretion and subject to judicial review on the ground of ultra vires. • Statutes are presumed not to authorize the exercise of rule-making power to impose taxation, to operate retroactively, or to contradict a provision in the enabling statute.

Governor or Lieutenant Governor in Council

Thorne’s Hardware Ltd. v. Canada (1983) • Appellants challenged in the Federal Court (1) the validity of an order in council extending the limits of the port of Saint John so as to include appellants' berth and harbour facilities and (2) the applicability to them of a National Harbours Board's By-law imposing harbour dues on all vessels entering or using the port. The Trial Division held the Order in Council intra vires the powers of the Governor in Council but the By-law to be inapplicable to the appellants. The Court of Appeal disagreed with the trial judge on the second point. Hence this appeal to determine whether the appellants are obliged to pay harbour dues. • Appeal dismissed. • Bad faith argument: The appellants alleged that the Order in Council extending the limits of St. John Harbour had been passed for improper motives to increase harbour revenues. It is neither the Court's duty nor its right to investigate the federal Cabinet's motives. • The appellants further submitted that the charge is, against it, a tax (for the purpose of raising revenue) not a toll (for the purpose of covering costs of services) and that only the latter is authorized. The appellants contended they were not being provided any services. Assuming, arguendo, that the Board is restricted to levying charges to cover the costs of services, it does not follow that the charge must be related to the cost of services to that particular vessel. There is nothing to indicate that the tolls are imposed to cover anything other than the costs of services. The charges are not ultra vires as taxes.

R v Toohey, ex p. Northern Land Council (1981) • Aboriginal land claim could not be made for land in town. Administrator made regulation specifying land to be treated as town which included land covered by Aboriginal claim. Validity of regulation challenged on grounds of improper purpose. Commissioner said could not examine validity of regulation on this ground. • Statutory power was judicially reviewable. Only prerogative powers will not be reviewed by courts. • Courts will generally not examine motives but if legislative power is purposive examination of motives is possible.

Ministers and Independent Agencies • Can make regulations or, if limited to practice of an agency, may be called rules. • Less limitations on review, but delegated legislation frequently subject to cabinet approval. • Unlike municipal bylaws, may not be subject to review on the grounds that they are unreasonable or oppressive.

Cox v. College of Optometrists of Ontario (1998) • Found guilty of violating the regulation defining “conflict of interest”. Argued definition of conflict of interest was ultra vires. • Health Disciplines Act confers wide power on court to correct any errors and substitute its opinion for that of the committee – test not reasonableness but correctness. • Was the activity one the college had the power to prohibit? • Could no reasonable person conclude that the prohibited private interest could influence the optometrists professional conduct? • Gravamen of charge is special relationship. • College had special expertise to define this; no basis for court to interfere. • Appeal dismissed.

Municipal Bylaws • Courts have been reluctant to extend to delegated legislation made by governor in council full scope of ultra vires doctrine; no such restraint in reviewing delegated legislation passed by municipalities.

Municipal Bylaws: Grounds of Review

Immeubles Port Louis Ltee v. Lafontaine (Village) (1991) • Did lack of notice render a bylaw ultra vires or was it merely a breach of statutory formality? • Lack of jurisdiction: subject matter/territory/person. Most examples are in field of taxation. • Excess of jurisdiction: when actions committed in exercising power could affect jurisdiction. • Abuse of power: If committed for unreasonable or reprehensible purposes, or purposes not covered by the legislation. • Serious illegalities which are not mere irregularities or formal defects: failure to observe necessary formalities.

Municipal Bylaws: Unreasonableness, Oppression, and Discrimination • Various categories of abuse of power within grounds of review. • Most bylaws not reviewable for unreasonableness, but courts will interpret enabling legislation narrowly so that the bylaw cannot be said to have been passed in the exercise of a statutory power. • R v. Bell (1979) – court struck down bylaw as so “oppressive” it could not find justification in the minds of reasonable men (despite Municipal Act which said could not be held invalid for unreasonableness). • Montreal (City of) v. Arcade Amusements Inc. (1985) – bylaws are unreasonable if they are discriminatory.

Shell Canada Products v. Vancouver (City) (1994) • Facts – see above • Dissent: Resolutions discriminate against Shell – authorized by Vancouver Charter? • Charter authorizes discrimination for regulation purposes; for business purposes discrimination is essential. • Majority: it was discrimination against corporations which do business in South Africa and against Shell. • Discrimination for business purposes is implied, but not for considerations relating to political policy of foreign state. • Discrimination not authorized by Vancouver Charter.

9. Unreviewable Discretionary Powers?: Prerogative and Non-Justiciability • Previously prerogative powers thought not to be subject to judicial review. • Now clear that in determining whether any discretionary power is exempt from judicial review, courts will be influenced more by nature of particular power than legal source.

Council of Civil Service Unions v. Minister for the Civil Service (1985) • Minister empowered to issue instructions on civil servants’ terms of employment by an order in council issued pursuant to the prerogative. • Lord Scarman: respondent has made out case on grounds of national security. • Subject matter in respect of which prerogative power is exercised is justiciable. • Lord Diplock: no reason to rule out irrationality as a ground for judicial review of a ministerial decision taken in the exercise of prerogative powers. In most cases also subject to review for procedural impropriety. • But procedural propriety must give way to national security. • Lord Roskill: agreed in principle prerogative was subject to judicial review, but some sources of prerogative power should be excluded. • National security is not amenable to judicial review.

Operation Dismantle Inc. v. Canada (1985) • Majority: no reasonable cause of action but agree with minority in principle about justiciability. • Minority: The exercise of a prerogative power such as a decision relating to foreign affairs is subject to curial review of consistency with the Charter. • However, facts of claim could not constitute breach of Charter.

Black v. Canada (Prime Minister) (2001) • Issue: whether the prerogative power exercised by the Prime Minister is reviewable. • Endorsed approach in CCSU above. • The source of power, statutory or prerogative, should not determine whether the action complained of is reviewable. • The proper test for review of the prerogative power is a “subject matter” test, and at the core of this test lies justiciability. • E.g. signing treaties, declaring war are not reviewable apart from Charter, but refusal of passport or exercise of mercy are. • Here: the Court of Appeal for Ontario extended the ambit of court review of prerogative power while at the same time carving out the giving of advise on the conferral of an honour as a non-justiciable exception.

10. Public Interest Immunity: Cabinet Documents, the Common Law, and Legislation

• Common law – Crown may object to the discovery of documents in its possession, or to questions put to a witness, on the ground that disclosure would be prejudicial to the public interest. • Claims to public interest immunity are subject to judicial review. • Is the damage likely to be caused to the public interest by ordering disclosure outweighed by that likely to be caused if the disclosure is not ordered? Judge may privately examine document. • Ss. 37-39 Evidence Act 1985. 39 – if a minister/clerk to Privy Council objects to disclosure and certifies information is “a confidence of the Queen’s Privy Council in Canada”, disclosure will be refused without examination or hearing by court. Courts have not been receptive to challenges to constitutional validity (Babcock v. Canada (2002)), but might be reviewable for bad faith.

11. Government Funding

• 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. • Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991) – fact that funding was stopped for reasons extraneous to act not reviewable.

12. Preclusive Clauses and the Abuse of Discretion

• E.g. s. 39 Evidence Act above. • Can effectively reduce scope of judicial review by granting power in widest possible terms (e.g. Sheehan above). • Charter effectively limits breadth of discretionary powers that can validly be given to agencies when making decisions that encroach on Charter protected rights. • A “no certiorari” clause will not protect from judicial review a decision of an administrative agency that is challenged on the ground that it was based on an exercise of discretion that was ultra vires or patently unreasonable. National Bank of Canada v. Retail Clerks’ International Union (1984) – SCC set aside an order of the Board on the ground of jurisdictional error because the board had abused its statutory discretion to grant an appropriate remedy for an unfair labour practice. • Statute will have the same force and effect “as if enacted in the Act” clauses – can be challenged as ultra vires if inconsistent with provision in the enabling statute as presumed delegated power to legislate does not authorise delegate to amend the statute. These clauses may be unconstitutional (Ontario Public School Boards’ Association v. Ontario (Attorney General) (1997)). • A contemporary court might well go further and hold that it would be a violation of the judicature provisions of the Constitution Act 1867 for a legislature ever to remove the jurisdiction of the superior courts to ensure that a discretionary power that adversely affect individuals was exercised intra vires and not unreasonably.

13. The “Private” Powers of Public Authorities

• Exercise of “private powers” of contract and property ownership. Subject to general law rules of contract, tort etc. • But see Shell; Nicholson, Knight (duty to hear before “office holders” in contractual relationship are dismissed); Webb v. Ontario Housing Corporation (duty to treat fairly before terminating lease); Committee for the Commonwealth of Canada v. Canada (1991) (Charter limits exercise of discretion by a public body over property that it owns; management could not forbid the distribution of leaflets at an airport owned by the federal government, violation of s. 2 Charter). • Case law is divided as to how far government contracting power should be brought within scope of judicial review.

14. Confining and Structuring Discretion

• Need for positive response to (overly) broad grants of discretionary power. • Nonet, Administrative Justice – need for reconciliation of law and governmental exercise of discretion.

Confining and Structuring Discretion: of Rules, Precedents, Policy Statements etc. • Davis, Discretionary Justice – two methods of control: structuring (by rules, precedents, policy statements, plans etc.) and checking (administrative and judicial supervision and review). • Chief hope for confining discretionary power lies in administrative rulemaking. • Shift to rules at an early stage. • Jowell, Law and Bureaucracy – there may be a price to pay for a premature shift from discretion to rules. • Rules may create hardship; selective enforcement also causes problems. • Adjudication is institutionally guaranteed participation. Neutral decision maker, incremental elaboration of laws. • But may be costly, no room for compromise, less flexible. • Craig, Administrative Law – when deciding relative role for rules and adjudication, keep in mind institutional context. • Widespread delegation of discretionary power down hierarchy of decision making makes it unlikely that political accountability will be an effective alternative to confining and structuring. • Sossin, “The Politics of Discretion: Toward a Critical Theory of Public Administration” – focus should be on potential of discretionary decision making to foster a dialogue about the important judgments administrators make. • Legitimate rather than control bureaucracy.

15. The Ontario Securities Commission: Policies and Rules

Ainsley Financial Corporation v. Ontario Securities Commission (1995) • Facts D issued policy statements about the marketing and sale of penny stocks by securities dealers, like P, who were not members of the Toronto Stock Exchange or the Investment Dealers Association of Canada; P argued this to be invalid. • The validity of the policy statement turned on its proper characterization. • If the statement was a non-binding statement or guideline intended to inform and guide those subject to regulation, the statement was valid and within the authority of the OSC; guidelines of this nature do not require specific statutory authority and such guidelines are not invalid merely because they regulate in the sense that they affect the conduct of those at whom they are directed. • NB: non-statutory instrument can have no effect in the face of contradictory statutory provision; nor can it pre-empt the exercise of a regulator’s discretion. • If, however, the statement imposed mandatory requirements enforceable by sanction, then the statement required statutory authority; a regulator cannot issue de facto laws disguised as guidelines. • If policy statement is mandatory then Commission could only issue if it had statutory authority, which it did not. • There is no bright line separating a guideline from a mandatory provision having the effect of law, and the language of the particular instrument is not determinative. • Here: the statement was mandatory and thus invalid (format set out minutely detailed regime; it read like a statute setting out a code of conduct; and it linked the OSC's power to sanction in the public interest with a pronouncement that the practices set out in the policy statement accorded with the public interest).

Final report of the Ontario Task Force on Securities Regulation, “Responsibility and Responsiveness” • Problematic to grant an independent agency rulemaking power of such great width in a parliamentary system of government where it is a well established constitutional principle that major policy making should be in the hands of politically accountable officials. • Recommends 60 days for approval by Cabinet, vested with explicit power to amend. • Recommendations largely followed.

16. Should Courts Nudge Agencies Towards Structuring and Confining?

Galligan, Discretionary Powers: A Legal Study of Official Discretion • Proposition: Authority should direct itself to issue of standards; where standards are abstract reasons should be given; standards should be followed unless they require modification or are no longer appropriate, but this must be explained; where decisions are made on an incremental basis, efforts should be made to articulated standards. • This would enhance rational basis of decisions and reduce arbitrariness without rigid, rule-governed framework. • Courts as independent generalists are in a good position to oversee compliance.

IV. Remedies

• Be aware of opportunities for non-judicial resolution (negotiating for a reconsideration by the statutory authority, alternative dispute resolution mechanisms, lobbying for legislative change or authorised political intervention or reversal, approaching the provincial ombudsman). • Overlap between remedies and substance; judge may be rejecting arguments on substantive grounds notwithstanding use of remedies language. • Three particular areas of difficult remedial issues: • Applications for interim or interlocutory relief to prevent governmental action (including the holding of hearings) pending the determination of an application for judicial review. • Arguments that the court as a matter of discretion and irrespective of merits should deny relief, e.g. where another potentially effective avenue of redress is available. • Problems of locus standi. • Two threshold questions: • Is this a matter that can be dealt with in the context of a judicial review application? • If so, under what judicial review regime is it appropriately brought, the Federal Court Act or the relevant provincial judicial review rules or statute? • Mental checklist of questions to ask at end of case: 1. Alternatives: choice as between tribunals, statutory/informal access to reconsideration of the decision by the initial decision maker, internal right of appeal or other remedy, ombudsman or external complaint mechanism. 2. Nature of recourse to courts: judicial review or some other form of common law, equitable or statutory remedy (such as right of appeal); challenge now or wait for enforcement proceedings; public or private law; substitutional or specific relief. 3. If judicial review, federal or provincial? If federal, under Federal Court Act or residual jurisdiction of provincial superior courts? 4. Nature of relief. Is interim or interlocutory relief useful? 5. Limitations on availability/scope of judicial review (leave to apply requirements, privative clauses, limitation periods, immunities), notice requirements. 6. Affidavit or viva voce evidence – if the latter is it available and how to pursue. 7. Standing of person seeking judicial review; will decision maker have standing or be accorded intervenor status; who else might seek intervenor status and on what bases might this be resisted. 8. Discretionary reasons for court to refuse/limit relief? (affected by ground/species of relief).

A. Remedies for Unlawful Administrative Action: Their Scope and Their Limits

1. The Domain of Common Law Judicial Review • Is this body sufficiently public in its origins, purposes, or powers to make it subject ot the superintending jurisdiction of the superior courts exercised through remedies of judicial review? • If some instances there are private law equivalents to prerogative writs, and private law remedies (declaration/injunction) may be available in public law. Some of the substantive grounds are not peculiar to public domain. So in some contexts it may matter little if the litigation is technically public or private. • E.g. in the case of a challenge to a procedurally unfair expulsion from membership in a body having its own incorporating or constitutive statute, there may be doubts as to whether this is a matter of private or public law, but, subject to certain reservations, those doubts can be rendered irrelevant by the commencement of proceedings for declaratory and/or injunctive relief. • However some common law that declaratory relief is not available in respect of public authorities where certiorari will provide adequate relief. • The principal statutory codifications and amalgamations of the remedies of judicial review as found in Federal Court Act and Judicial Review Procedure Act contain formulas that force the issue of whether the matter in dispute comes within the relevant statute’s particular conception of the reach of public law remedies. • In some situations the issue of whether the body is sufficiently public to qualify for review by way of public law remedies is in reality an issue about the extent to which the courts can interfere with the decision in question.

2. Government in the Conduct of Business

Volker Stevin NWT (1992) Ltd. v. Northwest Territories (Commissioner) • Directive attached to policy document established advisory committee for designating businesses as “northern businesses” eligible for various forms of government incentives including preference in the award of government procurement contracts. Directive set out criteria and provided for appeals to Senior Management Preference Advisory Committee. Advisory committee revoked applicant’s designation. Applicant applied for certiorari. Trial judge found that judicial review only available to review the exercise of statutory authority. • Held: • Judicial review is available to review decisions not only of public bodies exercising statutory duties, but also of those administrative bodies which obtain authority from prerogative powers. • The committees, the policy and authority go beyond mere decisions by civil servants regarding procurement of goods and services. The Advisory Committee is a public body exercising a power which affects the status of business enterprises, and their ability to compete effectively in the Northwest territories. • Look not just at source but also at nature of power. • R. v. Electricity Com’rs, Ex parte London Electricity Joint Committee Co. (1920) – wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs… • Available where part of the machinery of government decision-making. • Decisions are reviewable if an analysis of their functions discloses a duty of procedural fairness. • Purely commercial decisions are generally not subject to judicial review.

3. “Voluntary” Associations

R. v. Halifax-Dartmouth Real Estate Board, ex parte Seaside Real Estate Ltd. (1963) • Facts: Real Estate Board expelled Seaside from membership for alleged breaches of the association’s rules with regard to listing and sale of properties. Board incorporated by special Act – no public duty imposed by statute. Seaside sought certiorari on the basis of failure to give adequate notice of charges. • Held: • Body must be acting judicially or quasi judicially but writ can also be issued for the purpose of quashing the determinations of persons or bodies who are by statute or otherwise entrusted with judicial functions. • Was board judicial or purely administrative and advisory? In this case, acted judicially. • Matters affecting membership in a real estate board affect the community, as do the disciplinary regulations of other professional societies. • NB this decision not followed in Ontario on basis that the board in issue had been incorporated under the general corporations statute of the province (Re Pestell and Kitchener-Waterloo Real Estate Board Inc. (1981)).

Ripley v. Investment Dealers Association of Canada (No. 2) (1990) • R fined and suspended from membership in IDA for professional misconduct following a hearing alleged proceedings invalid due to jurisdictional error and breach of the rules of natural justice. • Held: • IDA a self-regulatory organization (SRO). SRO’s have protocol agreements providing for investigatory procedures and responsibilities. IDA a non-statutory domestic tribunal – applicant argues public function and also submits that due to references in Securities Act the legislation adopts the IDA as an arm of its regulatory scheme. • Mere reference is not sufficient. It is the Securities Commission established by the Act that has the power to enforce compliance, and no suggestion that the IDA acts as a delegate or agent of the Securities Commission. • Membership voluntary and no evidence that lack of membership would preclude from carrying on practice. Authority not statutory. Certiorari and prohibition will not generally lie against a private body which derives its jurisdiction from the consent of its members banded together in voluntary association. • Certiorari will not lie where there is no duty to decide cast upon the body by law. • NB declaratory relief was available.

• In Ontario in proceedings under the Judicial Review Procedure Act it has been held that an application for judicial review can be made with respect to the decision of a trade union suspending and disciplining a member: Re Rees and United Association of Journey men & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527 (1983). This conclusion rejected in BC and Alberta.

4. The Impact of Statutory Remedial Regimes

Federal Court Act • S. 18 – Federal Court of Canada’s original judicial review jurisdiction is a “federal board, commission or other tribunal” • S. 2 defines this as any body/person/persons having, exercising or purporting to exercise jurisdiction/powers conferred by Act/under an order made pursuant to prerogative of the Crown, other than a body established by a law of a province in accordance with provincial law/s. 96 Constitution Act 1867. • Black v. Canada (2001) – when the pm was advising Britain on whether Conrad Black should be made a peer, he was exercising a prerogative power rather than acting under an order made by virtue of the prerogative, therefore provincial not federal.

The Judicial Review Procedure Acts of British Columbia and Ontario • S. 2(1) BC Act – originating application, brought by petition, court may grant relief in the nature of mandamus, prohibition or certiorari; or an declaration or injunction or both, in relation to the exercise of a statutory power. • S. 1 – a statutory power is a power conferred by an enactment to make a regulation, rule, by-law or order; to exercise a statutory power of decision; to require a person to do something he would not otherwise be required by law to do; to do something which would otherwise be a breach of a person’s legal right or to make an investigation in to a persons rights etc. • Statutory power of decision is defined as a power conferred by an enactment to make a decision deciding or prescribing the legal rights etc of a person or the eligibility of a person for a benefit and includes the powers of the Provincial Court. NB Ontario Act does not define statutory power. • In Ontario the words “in the nature of” have been held to have the effect of bringing other remedial regimes within the ambit of possible remedies: Re Ontario Provincial Police Association and the Queen (1974). This reasoning not followed in BC and Alberta. • Availability of declaratory and injunctive relief under BC and Ontario Acts is contingent on their having been an exercise of statutory power, which may have the effect of removing from the ambit of the Act some aspects of the modern uses of declaratory and injunctive relief as public law remedies. Possibly, the fact that a body has been created by statute may in itself be sufficient to bring it within the ambit of the Act: Lindenberger v. United Church of Canada (1985), Davis v. United Church of Canada (1991).

5. Excluded Public Bodies

• Superior Courts • The Crown – avoided by naming designated official as respondent, including where decision maker is governor/lieutenant governor in council. • Injunctive relief against the Crown

Canada (Attorney General) v. Saskatchewan Water Corporation (1993) • Facts: • Attorney General and private citizens commenced action for injunction to prevent building of dams. Claim – contrary to federal law and breached agreement intended to ensure compliance with federal law and environmental legislation. Issue – availability of injunctive relief against Crown corporations. • Held (minority): • Distinction between Crown itself and the powers of the ministers, officers, servants and agents of the crown exercised by them as such. • Ordinary powers of government are conferred by statute upon ministers in their own names and not upon the Crown. Ministers are servants of Crown but do not enjoy immunities. • Ministers are not liable in a representative capacity. Only those who specifically ordered or committed the wrong are legally liable. • Crown Proceedings Act intended to make it easier to sue the Crown, subject to the provision that compulsory remedies be replaced by declaratory orders, and that no injunction order be made against and officer of the Crown if the effect would be to give relief against the Crown e.g. function exercisable by Order-in-Council. • To determine whether the Crown immunity preserved by s. 17 attaches to a particular governmental person or agency look at the function or power that is being exercised. Function/power of the crown or function/power conferred by statute upon person/agency itself. • The powers outlined in the statute do not contain anything to suggest that they are other than statutory powers conferred directly upon the Corporation. They are no powers exercisable by Order-in-Council, proclamation, writ or any other from as to indicate they are powers of the Crown. • Majority: s. 17(2) has not application to cases where the challenge is based on constitutional grounds.

6. Allocation of Review Authority: Federal Court of Canada and Provincial Superior Courts.

• In most cases will depend on source of power however provincial superior courts continue to possess jurisdiction over certain aspects of federal statutory regimes.

Federal Court Act • S. 2 – “Federal board, commission or other tribunal” – any body having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than a body established under provincial law or under s. 96 Constitution Act 1867. • S. 16 – Except if otherwise provided in an Act, every appeal/application for leave and every application for judicial review/reference to the Court of Appeal shall be heard in the Court of Appeal before at least three judges. • S. 17 – Trial Division has concurrent original jurisdiction where • relief is claimed against the Crown; • in all cases where the land/goods/money of any person is in possession of the Crown, claim arises out of contract entered into by or on behalf of crown, there is a claim against the Crown for injurious affection, or the claim is for damages under the Crown Liability and Proceedings Act. • Relief sought against any person due to performance of the duties of that person as an officer/servant/agent of Crown. • Where an Act confers jurisdiction on a provincial court the Trial Division has no jurisdiction unless Act expressly confers it. • S. 18 – Trial Division has exclusive original jurisdiction to issue injunction/writ of certiorari/prohibition/mandamus/quo warranto or grant declaratory relief against federal board/tribunal etc. and to determine any proceeding for relief in the nature of such. • Also in relation to Canadian Armed forces • Can only be obtained on application for judicial review under s. 18.1. • S. 18.1 – application for judicial review must be made within thirty days of communication of decision or within such further time as a judge of Trial Division may allow. • Relief available: order federal tribunal to do something, declare invalid or unlawful/quash/set aside/set aside and refer back for determination in accordance with directions/prohibit/restrain a decision. • Relief may be granted if: acted without/beyond/refused to exercise jurisdiction; failed to observe natural justice/procedural fairness/other procedure required by law; erred in law; based decision on erroneous finding of fact made in perverse/capricious manner/without regard to material; fraud or perjured evidence; otherwise contrary to law. • If sole ground is defect in form/technical irregularity relief may be refused if no substantial wrong or miscarriage of justice. • S. 18.2 – interim orders may be made as appropriate. • S. 18.3 – federal tribunal may refer any question or issue of law/jurisdiction/practice and procedure to Trial Division. • Attorney General may refer any question of constitutional validity/applicability/operability of Act/regulations to Trial division. • S. 18.4 – application to be heard without delay, summary; but Trial Division may direct application to be proceeded with as an action. • S. 28 – Court of Appeal has jurisdiction to hear and determine applications for judicial review in respect of various listed tribunals.

History and Constitutional Considerations • Crevier is applicable in federal domain (MacMillan Bloedel Ltd. v. Simpson (1995)). • Due to s. 96 Constitution Act, Federal Court Act cannot constitutionally take away the provincial superior courts’ jurisdiction over the determination of constitutional challenges to the jurisdiction of federal statutory regimes (Attorney General of Canada v. Law Society of British Columbia (1982)) or of action take or proposed to be taken under a federal statute. • Provincial superior courts have generally held that the only authority of provincial superior courts to rule on the validity of federal subordinate legislation on other than Constitution Act grounds is where that issue arises collaterally in proceedings otherwise within the jurisdiction of a provincial superior court. • Where Charter issues are raised in attacks on federal legislative regimes, there is concurrency of jurisdiction between Federal Court and provincial superior courts (see Reza infra). • Assuming concurrency of jurisdiction can be justified, the exercise of that jurisdiction is a matter of discretion for the provincial superior court (see Reza).

Reza v. Canada (1994) • Convention refugee claim denied by two-member tribunal. Therefore claim not considered by Immigration and Refugee Board, deportation order issued. Federal Court of Appeal denied leave to apply to set aside deportation order. Also unsuccessful in having case reviewed on humanitarian and compassionate grounds. Federal Court Trial Division refused leave to seek judicial review of this denial. R. applied to Ontario Court (General Division) of declaratory and associated interlocutory relief – argued various provisions of Immigration Act contrary to Charter and Bill of Rights including requirement that leave be obtained to seek judicial review and no appeal from this decision. Motion by Canada to stay application. • Held: • At first instance, Ferrier J held clearly had jurisdiction, issue was whether court may decline to exercise it. Court of Appeal held that sole issue was: assuming that the Federal Court would have jurisdiction to hear the respondent’s application, upon what principles should a provincial superior court decline to hear an application for a remedy under the Charter in deference to a prospective litigation of the issue in the Federal Court. • A provincial superior court judge may decline to entertain an application for habeas corpus when the applicant is attempting to bypass a statutory scheme. • If both courts had jurisdiction, R. should have had choice; no reason that Ontario Court should defer since this was not an immigration case but a constitutional one. • Forum conveniens test; leave threshold would operate as a juridical disadvantage to the respondent who could commence the identical procedure as of right in the Ontario Court. • Dissent: discretion to grant stay should not be exercised in patently unreasonable manner. Circumstances are particular to R. and the application is a constitutional challenge to the results in his own case. Even if wrong that proceedings should and could have been raised in Federal Court procedures, no obligation on the part of the Ontario Court (General Division) to hear every case presented where constitutional issue raise. • Agrees with dissent, although disagrees that the standard of review for an appellate court reviewing a lower court’s exercise of discretion is patent unreasonableness; test is whether judge at first instance has given sufficient weight to all relevant considerations. • Court’s had concurrent jurisdiction, but under s. 106 Courts of Justice Act, discretion to stay proceedings. Ferrier J properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.

The Federal Court Act’s Allocation of Jurisdiction as Between the Federal Court and Provincial Courts • Whether the Federal Court has jurisdiction over any particular federal statutory power depends on whether there has been a specific conferral of that jurisdiction either in the Federal Court Act or the legislation establishing that statutory authority. • Principle threshold is the definition of “federal board, commission or other tribunal” excludes companies incorporated under the Canada Business Corporations Act, and likely excludes many other bodies incorporated under federal statute to carry on business on behalf of the government. • E.g. powers created by a federal statute are conferred on provincially appointed decision makers (provincial highways transport board, exercise of jurisdiction by provincial judges under the Criminal Code).

May v. Ferndale Institute (2005) • See above. • Prisoners serving life sentences transferred from minimum to medium security. No allegations of fault – transfers a result of a direction from the Correctional Service of Canada to review security classifications. Computer application used to assist the classification review. Applied to provincial superior court for habeas corpus with certiorari in aid directing transfer back to minimum security. Chambers judge found that a provincial superior court had jurisdiction but that applications should be dismissed because transfers not arbitrary/in absence of jurisdiction. Court of appeal dismissed appeal because no reasonable explanation given for failing to pursue in Federal Court. Federal court is given exclusive jurisdiction in respect of certiorari. • Held: appeal allowed. Transfer decisions null and void for want of jurisdiction. • Inmates may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpus jurisdiction should not be declined merely because an alternative remedy exists and seems more convenient to the court. Should decline only where one (1) statute (e.g. Criminal Code) confers jurisdiction on a court of appeal to correct the errors of a lower court or (2) the legislator has put in place complete, comprehensive and expert procedure for review of an administrative decision, such as the scheme for immigration matters. • Superior courts have retained concurrent jurisdiction with the Federal Court to issue certiorari in aid of habeas corpus in respect of detention in federal penitentiaries in order to protect residual liberty interests. • Prisoner is free to choose whether to challenge by habeas corpus in provincial superior court or by judicial review in Federal Court. • Habeas corpus should not be granted on basis of arbitrariness as transfer decision not in and of itself arbitrary. • But should be granted because of failure to disclose scoring matrix.

As Between Federal Court Trial Division and Court of Appeal • See s. 28 • If a claim for damages is being made on the basis of the conduct of any of the bodies listed, such proceedings come within the original jurisdiction of either the Trial Division or the provincial court. • The judicial review jurisdiction of the court is conditioned on the extent to which the decision in question is subject to a statutory appeal to the court itsel, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the governor in council of the Treasurey Board. If such an appeal exists, it must be exercised to the exclusion of judicial review. • Privative clauses prevail and leave requirements will be effective.

Claim for Damages in the Federal Court. • Applications for judicial review commenced by way of application but claims for damages against the Crown and federal statutory authorities must still be commenced by way of action. Seems to preclude joining of proceedings. However s. 18.4 – claim for judicial review may be treated as action. However, the view that this should be the case where applicant is seeking damages has not prevailed (Zubi v. Canada).

7. Modes of Relief: Permanent Relief

Statutory Appeals • Most common way of challenging administrative action. • Importance of consulting statute – might provide for more extensive relief/may be expected to use this instead.

Judicial Review

Collateral attack • E.g. in context of prosecution for breach of bylaw, defendant puts in issue the validity of the relevant statutory instrument. Collateral attack is not a matter of right but should be carefully circumscribed by the use of judicial discretion (R v. Consolidated Maybrun Mines Ltd. (1998), R v. Al Klippert Ltd., (1998)). • Garland v. Consumer’s Gas Co. (2004) • Attack on late payment penalty as unjust enrichment – in previous judgment held to be a criminal rate of interest. Motions judge granted respondent’s motion for summary judgment, finding action was a collateral attack on Ontario Energy Board’s orders. Court of Appeal disagreed, but dismissed on ground unjust enrichment claim could not be made out. • Appeal allowed: respondent ordered to repay LLPs collected in excess of interest limit. • Doctrine of collateral attack prevents a party from undermining previous orders issued by a court or tribunal, generally invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when the party has not used the direct attack procedures open to it (appeal or judicial review). • Cases all involve a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum. • Action did not constitute an impermissible collateral attack. OEB did not have exclusive jurisdiction over the dispute, which was a private law matter under the competence of civil courts; nor did it have jurisdiction to order the remedy sought by the appellant. Specific object of action not to invalidate OEB’s orders but to recover illegally obtained money.

Direct Attack • E.g. Prince Edward Island Judicial Review Act • S. 2 – single application for judicial review comprehending the reach of existing remedies and apparently serving as a replacement for them. • S. 3 – must set out grounds of relief but does not have to link species of relief to remedies. • S. 4 – non-exclusive list of grounds. • S. 3(3) – kinds of relief (nullify/prohibit/direct an act, declare a right of a person, refer a matter back). • S. 3(4) – interim orders. • Availability of all the modes of relief under the one remedy means difficulties in making correct remedial choice minimized if not eliminated. • Dagenais v. Canadian Broadcasting Corporation, (1994): certiorari was available not only to quash but also to vary a publication ban issued by a country court judge due to s. 24(1) Charter. • Query as to whether statutory regimes of judicial review permit the seeking of a bare declaration that an administrative regime violates the Charter.

Effect of the Grant of Certiorari-Type Relief • In some instances, the award of relief in the nature of certiorari or prohibition will have the effect of leaving the authority under attack with no residual jurisdiction. E.g. if a provincial labour relations board is prohibited from proceeding in a matter because the relationship comes within federal jurisdiction. • Otherwise certiorari wipes out original order leaving board free to reconsider from point at which error made (Re Labour Relations Board (Nova Scotia) and Little Narrows Gypsum Co. Ltd. (1977)). • Various decisions as to whether rehearing available in other circumstances.

Limits on Relief in the Nature of Mandamus • Before the remedy can be given the applicant must show (Karavos v. City of Toronto (1948)): • A clear legal right to have the thing sought by it done • The duty must actually be due and incumbent on the officer at the time of seeking the relief • The duty must be purely ministerial in nature – plainly incumbent by operation of law/virtue of office and concerning which no discretionary powers • There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy. • NB “Ministerial” does not mean administrative – also available in judicial, quadi-judicial functions.

8. Interim and Interlocutory Relief and Stays of Proceedings • Filing and service of an application for judicial review does not act as a stay on further proceedings (including execution of a decision already taken) in the matter in contention. • UFCW, Local 1252 v. Prince Edward Island (Labour Relations Board) (1987): service of a motion for prohibition and to quash proceedings under the Ontario Criminal Appeal Rules suspended the jurisdiction of the provincial court until such time as the review proceedings were disposed of. But doubtful this is applicable in civil proceedings. • Availability of interim relief to halt the administrative process tends to be subject to the same general principles that govern the availability of interim injunctions in the private domain. • Possibility of seeking interlocutory relief in aid of the administrative process – to prevent actions being taken by those subject to that process pending the conclusion of a hearing or investigation?

Staying the Administrative Process

Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. (1987) • Employer sought declaration that provisions of the Manitoba Labour Relations Act authorizing applications for imposition of first contract were contrary to the Charter. Employer also sought stay until disposal of Charter challenge. • Held: • Usual conditions for the granting of a stay: • Stay of proceedings and interlocutory injunction are remedies of the same nature. • First test is preliminary assessment of the merits of the case. American Cyanamid “serious question” formulation is sufficient in a constitutional case where the public interest is taken into consideration in the balance of convenience. • Second test is whether litigant would unless the injunction is granted suffer irreparable harm which is not susceptible or difficult to be compensated in damages. Some judges consider irreparable harm to other part if injunction is granted but action fails. • Third test is balance of convenience – which of the parties will suffer the greater harm from the granting or refusal of an injunction. • Particular application of balance of convenience in case where constitutional validity of a legislative provision is challenged: • Courts ought to consider public interest as well as being restricted to traditional criteria. • The spectrum of the balance of convenience is wider than the issue joined by the parties themselves. • Exemption cases are assimilated to suspension cases. • If exemption is granted to one person, practically impossible to refuse to grant it to others. • Test of granting in only “exceptional” or “rare” circumstances too high, at least in exemption cases when the impugned provisions are in the nature of regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public. But greater weight in favour of compliance with existing legislation when impugned provisions are broad and general • In a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. • Entitled to weigh precedential value and exemplary effect.

RJR-MacDonald Ltd. v. Canada (Attorney General) (1994) • Affirmed and elaborated approach in Metropolitan Stores. • American Cyanamid (1975) provides the test for the general availability of interlocutory relief in Canada, in both private and public law. • Two exceptions to application of test in Charter litigation – where the result of the interlocutory proceedings would effectively resolve the matter in dispute and where the question of constitutionality presented itself as a “simple question of law alone”. • Refined concept of “irreparable harm” in a public law setting. In most cases it will be impossible for a judge on an interlocutory application to determine whether adequate compensation could ever be obtained at trial – appropriate to assume that the financial damage constitutes irreparable harm. • How the public interest should be dealt with in this kind of Charter litigation: • Applicant might tip the scales of convenience by demonstrating a compelling public interest. • In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interedt and upon some indication that the impugned action was taken pursuant to that responsibility. Once these minimal requirements met, court should in most cases assume that irreparable harm to public interest would result from restraint of that action. Should not, as a general rule, attempt to ascertain whether actual harm would result (would in effect be inquiry into whether the government is governing well). • The status quo: does not have much merit in the face of the alleged violation of fundamental rights.

Injunctions in Aid of the Administrative Process

Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd. (1996) • Issue: whether the BC Supreme Court had jurisdiction to award an interlocutory injunction restraining an employer from implementing a change to work schedules pending the outcome of the arbitration of a union grievance brought under the collective agreement. • Do the superior courts in BC have jurisdiction to issue injunctions in connection with disputes between federally regulated employers and employees concerning the interpretation, application, administration or alleged contravention of collective agreements? • Can the superior courts in BC issue interlocutory injunctions in circumstances where there is no cause of action to which the injunction is ancillary? • Held: • Jurisdiction: • Where “no adequate alternative remedy exists”, the courts retain a residual discretionary power to grant interlocutory relief such as injunctions, a power which flows from the inherent jurisdiction of the courts over interlocutory matters. • Legislation provided no forum for interlocutory injunctions. • Deference to labour tribunals and exclusivity of jurisdiction to an arbitrator are not inconsistent with a residual jurisdiction in the courts to grant relief unavailable under the statutory labour scheme • Employer submitted that a court has power to grant an interim injunction only as an adjunct to a cause of action properly instituted in the court. • Proposition that courts have jurisdiction to grant an injunction where there is a justiciable right wherever that right may fall to be determined accords with the more general recognition throughout Canada that the court may grant interim relief where final relief will be granted in another forum. • The absence of a cause of action claiming final relief in the Supreme Court of BC did not deprive the court of jurisdiction to grant an interim injunction.

Canada (Human Rights Commission) v. Canadian Liberty Net (1998) • Federal Court Trial Division issued interlocutory injunction until human rights tribunal determined whether Net’s activities infringed the Canadian Human Rights Act. Federal Court was a statutory court with no inherent jurisdiction. However, was prepared to find a statutory grant of jurisdiction to make such orders in s. 44 Federal Court Act. This jurisdiction was concurrent to that of the provincial superior courts in the exercise of their inherent jurisdiction. • Should the Court have issued an interlocutory injunction in a case involving potential violations of freedom of speech? • Cyanamid test inappropriate to these circumstances. • Interlocutory injunction will not be granted where the defendant indicates an intention to justify the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory state that the words are both clearly defamatory and impossible to justify.

B. Standing • Threshold matter or integrally related to merits of claim? • When will public interest standing be accorded? • To what extent do the current principles governing standing allow for private law enforcement by way of administrative law remedy? • Role of attorney general. • Issue of standing to participate in the hearings of administrative tribunal’s as either party or intervenor. Natural justice – who are entitled to notice and who are entitled to participatory rights?

1. Standing in Judicial Review Proceedings

• In most cases, no problem with standing; the bulk of proceedings for judicial review are brought by the person who is the direct object of the decision maker’s attention. • Thorson v. Attorney General of Canada (1975); Nova Scotia Board of Censors v. McNeil (1976); Minister of Justice of Canada v. Borowski (1981) – cases involving attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond being citizens and taxpayers. Supreme Court upheld applicant’s status in each case, and that judges had a broad discretion, at least in constitutional matters, to allow proceedings to be commenced by private individuals with no particular stake.

Finlay v. Canada (Minister of Finance) (1986) • Resident of Manitoba sought declaratory and injunctive relief from the Trial Division of the Federal Court. • Issues: • Does the respondent have a sufficient personal interest in the legality of the federal cost-sharing payments to bring him within the general requirement for standing to challenge an exercise of statutory authority by an action for a declaration or an injunction? • If not, does the Court have a discretion to recognize public interest standing in the circumstances of the present case? • If the Court does have such a discretion should it be exercised in favour of the respondent? • Personal interest: general rule: a plaintiff can sue without joining the Attorney-General in two cases: first where the interference with the public right is such that some private right of his is at the same time interfered with; and , secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right. • A requirement of directness or causal relationship between the alleged prejudice or grievance and the challenged action is implicit in the notions of interference with private right and special damage. • But in this case a declaration would not effect the validity of the legislative provisions. • The relationship between the prejudice allegedly caused to the respondent by the provincial non-compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal payments is too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule. • Public interest standing: • Requirement of justiciability – where there is an issue which is appropriate for judicial determination, the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government. • There must be a serious issue raised and the citizen must have a genuine interest in the issue. • There must be no other reasonable and effective manner in which the issue may be brought before a court. • Respondent should be recognised as having standing. • Public interest standing should apply to injunctive as well as declaratory relief.

Friends of the Island Inc. v. Canada (Minister of Public Works) (1993) • Suggestion that s. 18.1(1) of the Federal Court Act requiring applicant to be “directly affected” (well defined as requiring a party to have a special interest different from that held by the public generally) restricted public interest standing. But direct effect has been used in cases where the effect is relatively indirect. • The wording in s. 18.1(1) allows the court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted.

• Where traditional common law rules or any relevant statutory provisions are met, the plaintiff is entitled to bring the case as of right.

2. Public Interest Standing

Canadian Council of Churches v. Canada (Minister of Employment and Immigration) • Issue: whether the Canadian Council of Churches should be granted status to proceed with an action challenging the validity of the amended Immigration Act 1976. • Federal Court of Appeal allowed an appeal by Minister save for the challenge to four provisions in the legislation which Convention refugee claimants might not be able to challenge effectively due to time limits. • Charter indicates tat a generous and liberal approach should be taken to the issue of standing. • But balance must be struck between ensuring access to the courts and preserving judicial resources. • 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. • Principles of public interest standing need not be expanded. Test is (1) is there a serious issue raised as to the invalidity of legislation in question? (2) has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its invalidity? (3) is there another reasonable and effective way to bring the issue before the court? • In this case, plenty of refugees who could challenge the legislation. • A public interest litigant is likely to be granted intervenor status.

Vriend v. Alberta (1998) • Gay teacher dismissed, no prohibitions against discrimination in Alberta. V. and three lesbian and gay organizations sought a declaration that the omission of sexual orientation from the list of proscribed species of discrimination was contrary to s. 15 Charter. Sought to raise issue generally in relation to all provisions in the Act spelling out the proscribed species of discrimination. Respondent challenged standing to make such a broad challenge (said should only be able to challenge sections relating to employment). • Appellants meet the three part test in relation to all provisions. • Insofar as V’s situation is relevant, it is denial of access to the complaint procedures of the Alberta Human Rights Commission that is the essential element of the case and not loss of employment. • The only other way the issue could be brought is if someone challenged each of the provisions which would be wasteful or judicial resources, impose burdens of delay, cost and personal vulnerability to discrimination. • Relevant also that all provisions very similar so no need to adduce additional evidence.

Canadian Egg Marketing Agency v. Richardson (1998) • Court has overriding discretion to hear a case even in situations where the normal rules of standing and public interest standing might not indicate the according of status to the applicant – if the question is one of public importance then the Court has a discretion to decide the case on the merits.

Harris v. Canada • Private citizens taking over role of law enforcement? • Facts: sought declaration that minister of national revenue had acted illegally in providing another taxpayer with a favourable private advance ruling while maintaining a different position publicly on the taxability of the funds in question. • Issue: should H. be accorded public interest standing? • If Revenue Canada concludes compromise agreements/cover deals/provides preferential treatment to certain taxpayers without statutory authority, public interest standing may be granted to challenge this. • There is a justiiciable issue, he did raise a serious issue, he has genuine interest as a taxpayer and as member of an organization that seeks to ensure the fair administration of the taxation system, no other reasonable manner issue could have been brought before court. • Confidentiality provisions did not apply in respect of legal proceedings relating to the administration or enforcement of the Act. • Emphasis on allegation of ulterior motives of minister rather than error of law. Indicates that in some cases court will look to basis on which judicial review is being sought.

3. The Role of the Attorney General

• Traditionally regarded as only appropriate person to commence litigation in public interest – that position now evaluated as above. • Are there circumstances in which, absent someone with standing as of right, the only appropriate plaintiff/applicant is the attorney general? • Does the attorney general have standing as of right to seek judicial review?

Energy Probe v. Canada (Atomic Energy Control Board) (1984) • Facts: see above – Energy Probe challenged renewal of a nuclear reactor’s licence on the basis of bias. Board challenged Energy Probe’s standing – court accorded public interest standing. Energy Probe contested the attorney general’s right to be a party to the proceedings – should only be amicus curiae. • Attorney General argues should be allowed standing because (1) decision will affect Crown/public interests (2) analogy should be drawn to status given to attorney general on constitutional cases (3) Court has discretion it should exercise because of issues of public concern (policy) and (4) Atomic Energy control Board cannot appear except for restricted purposes so should be allowed standing in order to ensure all relevant arguments made to Court. • Attorney General should be added as party – direct interest since if bias exists the Board member will be an ineffective member in many decisions; case relates to the choosing of persons for appointment to the Board and to requirements that would have to be placed upon them (divestiture of interests) to make them effective members. • In addition, should be added on the ground that a “question of general importance is raised”. • Attorney general is appearing to protect a Crown interest – analogous to right of any person to appear before court to make representations when his interest will be affected. Also issue before the Court is one of general public importance and of such a nature that beneficial to hear argument of the Attorney Gerneral.

• Subsequently courts have been consistent in their recognition of the attorney general’s status in other contexts.

4. The Status of the Authority under Attack

Northwestern Utilities Ltd. v. City of Edmonton (1979) • Where right to present arguments is granted should adhere to principles from Int’l Ass’n. of Machinists v. Genaire Ltd.: • Argument should not be addressed to merits of case but to jurisdiction or lack of jurisdiction of the Board. • This will better emphasize impartiality, dignity, authority of Board.

CAIMAW v. Paccar of Canada Ltd., (1989) • Council could argue that the approach of its board was reasonable so long as it did not argue that it was correct – when the issue, as in relation to the patently unreasonable test, is whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions (specialized jurisdiction and expertise).

Ferguson Bus Lines Ltd v. ATU, Local 1374 (1990) • Application to review and set aside determination by the Canada Labour Relations Board that the employees represented by ATU were engaged in a federal undertaking and therefore subject to federal jurisdiction and that there had been a sale of part of the relevant business to Ferguson which thereby became bound by the existing collective agreement between previous owner and ATU. Board attempted to justify its ruling on the constitutional status of the undertaking and its determination that a sale of part of the business had taken place. • Jurisdiction not in issue and no considerations rooted in its specialized jurisdiction or expertise which might render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area (Paccar). • No right to be heard in every case where decision alleged to be patently unreasonable – only when expertise may cast some light. • NB in the legislation replacing the Canada Labour Relations Board with the Canada Industrial Relations Board, Parliament explicitly provided that the renamed board had standing to appear in judicial review proceedings for the purpose of making submissions regarding the standard of review to be used. In other federal contexts, Ferguson still holds sway. • NB position in Ontario is apparently different by virtue of s. 9(2) Judicial Review Procedure Act (“for the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application”).

Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69 (1985) • At issue was legal status of executive discussion by the Ontario Labour Relations Board of cases before particular panels – should the board be allowed to defend this practice? • Board’s submissions did not go to the merits of its decision but as to its jurisdiction to establish and follow this practice. • The rule restricting the right of a tribunal to make submissions before the Court is a rule of the Court rather than a rule of law, and the extent of participation to be permitted to the Board must depend on the circumstances of each case. • S. 9(2) does not give discretion to refuse the Board standing. Should be a party both as a matter of right and in the exercise of the Court’s discretion.

• In federal domain Court of Appeal has held (Canada (Attorney General) v. Bernard (1994)) that decision maker was not entitled to be a party – appropriate step was to apply under rule 1611 to be an intervenor in the proceedings. The court then had a discretion to recognize that status to the extent that it was appropriate for the tribunal to defend its jurisdiction without compromising its independence. Flexible approach following this. (Canada (Attorney General) v. Canada (Human Rights Tribunal) (1994) – distinguished Northwestern Utilities. Not to be applied automatically without assessment of nature of tribunal and grounds of challenge; in this case Commission had to be given right to respond as a matter of necessity) (United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. (2002) – even more flexible approach. Issue was whether tribunal seeking intervener status has something to contribute beyond that expected of the parties. If so should be permitted to address the merits in its written submission. NB fact that submissions are written not oral seems to help to maintain appearance of impartiality).

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) (2005) • Privacy Commissioner found that s. 19 Freedom of Information and Protection of Privacy Act had no application to request for information from the Children’s Lawyer for Ontario (CLO) by former client. CLO applied for judicial review of decision, Commissioner opposed. CLO moved for order that Commissioner be denied standing or at least prohibited from arguing that her decision was correct on a basis not given in her original decision. • Held: • Paccar appears to be interpreted as invariably allowing decision maker to advance view on appropriate standard of review. • S. 9(2) Judicial Review Procedure Act entitles an administrative tribunal to be a party to the proceedings but leaves to the court’s discretion the scope of its standing. • Court should exercise this discretion paying attention to context. Two most important considerations: importance of having a fully informed adjudication and importance of maintaining tribunal impartiality. • These must be weighted and balanced. Relevant considerations: nature of problem, purpose of legislation, extent of tribunal’s expertise, availability of another party able to knowledgably respond to the attack on the tribunal’s decision. This last factor most significant where judicial review application would otherwise be unopposed. • E.g. if question is whether the tribunal has treated a litigant fairly, impartiality may suggest more limited standing than if allegation is that structure of tribunal compromises natural justice. • CLO raises such another consideration – if defends reasons on different basis may cause those adversely affected to feel unfairly dealt with. However, “crown council” argument was implicit in original decision and if Commissioner does not make argument no guarantee Court would hear it from anyone else. • In this case requester played no part in proceedings; if Commissioner were denied standing, CLO would be only party. Statutory scheme administered by Commissioner was specialized – Commissioner had expert familiarity. Issues were ones of statutory interpretation – would not compromise Commissioners ability to act impartially in future cases.

5. Intervenors • Issues of standing can also arise in the context of applications for status to participate in litigation to which the application has not been named as a part. • Two forms: application to be added as intervenor party or as a friend of the court (amicus curiae). • Former confers on successful applicant all the rights of original parties, including right to appeal, whereas latter is restricted to the level of participation specified by the court and does not extend to conferring appeal rights. • Covered by appropriate rules of court and principles under those rules. • Ontario Rules of Court: • S. 13.01(1) where a person who is not a party claims: an interest in the subject matter/he or she may be adversely affected by judgment/has a question of law or fact in common with one or more of the questions in issue, the person may move for leave to intervene as an added party. • Court shall consider whether intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding; may add the person as a party and make such order as is just. • S. 13.02 any person may, with leave of judge/at invitation of presiding judge intervene as a friend of the court. • 13.03 leave to intervene in the Court of Appeal may be granted by a panel of the court, the Chief Justice of Ontario or the Associate Chief Justice of Ontario. • Quebec Superior Court has recognized the existence of a residual discretion to allow intervenor status to those who do not qualify under relevant articles if necessary to ensure justice: Imperial Tobacco Ltd. v. Canada (PG) (1988). • BC and Ontario Judicial Review Procedure Acts recognize the ability of the attorney general to intervene in judicial review applications. • Relation to public interest litigants – in this context another has already taken action, public interest litigant will generally have to demonstrate that there other yet other interests not being represented, or has something to add in support of parties which they cannot bring forward adequately. • Intervention amici curiae should be restricted to those cases in which the Court is clearly in need of assistance because failure to present issues. Should not be allowed where it would introduce new causes of action: Re Clark and Attorney-General of Canada (1977).

6. Recommendations for Statutory Reform • There have been a lot of these.

7. Standing and Intervention Before Tribunals • Generally arises in straight common law claim that the rules of natural justice have been breached either in a failure to give notice or in the direct denial of participatory opportunities. • May be complicated by legislative grant of power to tribunal to decide participatory entitlements/procedures. • Re Hart and 240953 Developments Ltd. (1979): Court respected the discretion of the Ontario Municipal Board in denying standing to neighbouring landowners in proceedings to settle the terms f an agreement between a developer and a municipality. • Riverlake Residents’ Association v. County of Halifax (1985): board denied standing by reference to the principles of standing applied in judicial review litigation (Act used term “aggrieved person” in relation to those entitled to launch appeals to the board). • Re Bambrick (1992): held commission was not in the terms of the relevant legislative provision “a person with an interest”, relying on Northwester Untilities line of cases. • Parents of Babies Gosselin v. Grange (1984): parents did not have sufficient interest (beyond that of any other thoughtful citizen) in inquiry to determine whether police or crown attorney acted improperly in charging Susan Nelles. • Re American Airlines Inc. and Competition Tribunal (1989): tribunal’s inherent discretion to allow intervenors to fully participate in proceedings. • Black Action Defence Committee v. Huxter, Coroner (1992): court was prepared to concede considerable autonomy to the presiding coroner and to intervene only in the case of “manifest error”.

C. The Discretion of the Court

• Variety of devices that the courts have used in the control of access to a determination on the merits of a judicial review application: the mater is one of private, not public law; the issue is not justiciable or otherwise unreviewable; there has been no final decision by a statutory authority; the applicant lacks standing. • In addition courts also have overriding discretion to deny relief. Common grounds: existence of alternative avenues of recourse such as statutory right of appeal or a more convenient court remedy; prematurity; delay; mootness; lack of practical utility; misconduct of applicant; waiver; balance of convenience or public interest. • In the face of unlawful administrative action, should the court be at all concerned with the motives of the person bringing the matter to the attention of the court in instances of misconduct, waiver, delay? • Does the conduct or actions of someone with incontrovertible standing also merit the court’s attention and for the same or different reasons? • Discretionary grounds for the refusal of relief have the potential to legitimate unlawful administrative action. Is it appropriate for courts to take that risk? • Statutory limitation periods will almost certainly be effective. • Sparvier v. Cowessess Indian Band No. 73 (1993) – discretion with respect to remedies means that there are options in between the setting aside of discretion and the outright refusal of relief (postponed quashing order). • Cardinal v. Director of Kent Institution – refused relief on basis outcome would have been the same. Court’s position can be justified on pragmatic grounds: the evidence before the courts focuses on procedural defects, not merits. Dangerous for court to speculate about outcome. • Pre-emptive strike on proceedings raises question of whether tribunal itself may deal with problems and avoid necessity of judicial review. Court also better informed by complete record. • Principles governing this area are fluid – first instance judgments and divided Supreme Court. • Generally considered after merits except where there is a leave to appeal requirement from decisions of certain tribunals. Are there arguments that (as with claims of a lack of standing) such discretionary matters should not be dissociated from a consideration of the merits of the case for judicial review?

1. Alternative Remedies • Generally the question of alternative remedies is dealt with by reference to the courts’ overriding discretion to refuse relief even where the substance of the applicant/plaintiff’s case may have been made out. • Query relative convenience of judicial review as opposed to the alternative forms of relief also available.

Statutory Appeals

Harelkin v. University of Regina • Student was required to withdraw. Appeal dismissed without hearing. Applied for certiorari/mandamus rather than pursuing available right of appeal to a committee of the university senate. Application allowed bur reversed by Court of Appeal. Case proceeded to Supreme Court. No doubt breach of rules of natural justice. • Four propositions: failure to respect audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitae; the decision was an absolute nullity from which there could be no appeal; even if there could be an appeal, appellant’s right of appeal was not adequate; the principle audi alteram partem had in this case been given statutory force and the courts should exercise their discretion with a view to enforcing the statute. • Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae: in cases involving a lack of jurisdiction certiroari may issue ex debito justitiae, but in cases involving excess or abuse of jurisdiction, such as breach of natural justice, relief is discretionary. • Breach of rules of natural justice does not nullify a decision (in contrast to breaches with want of jurisdiction. In the alternative, even if a nullity, a fair reading of the appeal provision led to the conclusion that nullities were subject to it. • Whether appellant’s right of appeal to the senate committee was an adequate alternative remedy – the balance of convenience: consider several factors; procedure on the appeal, composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional Court of Appeal, burden of a previous finding, expeditiousness, costs. • Nothing in bylaws with respect to procedures did not entitle appellant to assume he would have been denied hearing within meaning of s. 33 or the act or Committee would fail to comply with principles of natural justice. • Should assume the body of superior jurisdiction would give him justice. • In the context of a statute providing for the constitution of a body such as a university, should construe the word “appeal” in the most flexible manner with respect to the mode of appeal. More likely to take a form resembling that of a trial de novo. • Not trained in law so would be inclined to re-try case. • Appellant’s position would thus have been similar to his initial position. • Right of appeal to the senate committee provided him with an adequate alternative remedy. Also more convenient in terms of costs and expeditiousness. • Asking for a rehearing may weigh in appellant’s favour, but only if had already reached ultimate appellate level. • Construction of statute gives weight to the proposition that the legislator attached importance on the student proceeding through the states established by the Act. General intent of Legislature that intestine grievances be resolved internally. • Provisions for appeals are a clear signal to the Courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs when it is still possible for the university to correct its errors with its own institutional means. • Dissent: • Breach of rules of natural justice amounted to jurisdictional error. Certiorari will issue notwithstanding right of appeal to an administrative/domestic body where that body exercises purely appellate functions. • Generally speaking rule is that if the error is jurisdictional, certiorari will issue, if the error is error in law, in the absence of a privative clause, certiorari may issue. • Where an alternative remedy exists, in the case of want of jurisdiction, ceriorari will issue but the Court must consider convenience and adequacy or alternative remedy. • Nature of error: if misinterpretation of a statute, a statutory right of appeal may well be adequate; if breach of natural justice will render inadequate the remedy except, possibly, a hearing de novo on appeal to a body exercising original jurisdiction. • Save in exceptional circumstances not present here, breach of rules of natural justice cannot be cured on appeal.

Smith v. The Queen (1959) • Parents of a child awarded ceriorari because not given required statutory notice of Juvenile Court proceedings against their child.

Canadian Pacific Ltd. v. Matsqui Indian Band • Could applicants, contesting a real property tax assessment, proceed directly to the Federal Court by way of application for judicial review and bypass the appeal tribunals established by the taxing Indian Bands by way of bylaw. Claim that the lands in question were not subject to assessment was a jurisdictional one. • Majority (per Lamer CJC) Appeal bodies could consider the jurisdictional question, albeit their conclusions would attract little deference on judicial review. Purposive approach: Parliament must have intended assessors to engage in the preliminary determination of whether land should be classified as taxable and placed on the taxation roles. • Were the appeals an adequate alternative remedy: • Consider factors including: the convenience of the alternative remedy, the nature of the error, the nature of the appellate body (i.e. its investigatory, decision-making and redial capacities). Not a closed list. • Must consider adequacy of appeal tribunals and adequacy of statutory appeal procedures, since bands have provided for appeals from tribunals to Federal Court, Trial Division. Different factors relevant to each. • Question should be: is an appeal tribunal established under s. 83 of the Indian Act an adequate forum for resolving, at first instance, the respondents’ jurisdictional challenge? • The appeal tribunals are an adequate forum, on the basis that a far-reaching and extensive inquiry could be conducted in which both sides could fully present case. • The statutory appeal procedure provides appeal from appeal tribunals to Federal Court, Trial Division which may fully review findings. • Purpose of Parliament in enacting Indian tax assessment scheme was to promote the development of Aboriginal governmental institutions. There preferable errors be corrected within institutions of band. • NB appeal was dismissed and application for judicial review proceeded because Lamer + one other judge held tribunal lacked independence and three judges held should have direct access to Federal Court on jurisdictional challenge.)

Earlier judgements where judicial review preferable to appeal procedures: • Spencer v. Spencer – appeal authority unlikely to deal with allegation of bias (would decide appeal on merits). • Banks v. Workers’ Compensation Board – longstanding policy likely to be the same at appellate level – appeal would be futile. • Richmond Cabs Ltd. v. British Columbia (Motor Carrier Commission) (1992) – Cabinet appeal to lieutenant governor in council entailed limited procedural obligations and lengthy delays. • Misra v. College of Physicians and Surgeons – de novo appeal would compound unreasonable delay Misra was alleging and capacity of tribunal to give the relief sought (dismissal of proceedings) was in doubt. • Judicial review refused in Canadian National Railway Co. v. Toronto (City) 1992) – Board had all the powers of a court, appeal lies from Board to Divisional Court with leave of Divisional Court on a question of law. Board may also state case to Divisional court on question of law. Board expert and specialized. Where statutory right of appeal exists, weight of authority favours denial of application for judicial review.

2. Statutory Appeals to the Courts • Ontario Judicial Review Procedure Act s. 2 – the court “may” grant relief “notwithstanding any right of appeal”. • City of Mississauga v. Director, Environmental Protection Act (1978) – s. 2 did not affect the principle that such relief should not be awarded when a right of appeal exists, save in very special circumstances. • Federal Court Act s. 18.5 – the original judicial review authority of the court is subordinate to statutory rights of appeal to the court and other assented authorities covering the same grounds.

3. Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and Orders

• E.g. when an attempt is made to use the courts to vindicate rights created by or arising under a statute or to enforce statutory or administrative prohibitions. Questions of alternative methods/entitlement to seek a determination may also arise.

Shore Disposal Ltd. v. Ed de Wolfe Trucking Ltd. (1976) • Judge granted respondents a declaratory judgment that the appellant “is presently operating in the business of collection and disposal of refuse in the County of Halifax, contrary to the provisions of the Motor Carrier Act”. Set aside on appeal. • Declaration should not be grated merely to enforce a criminal or penal offence – branch of wider principle that the Supreme Court should not usually interfere by declaration where the matter in issue is placed within the exclusive jurisdiction of another tribunal. • Question of licensing is placed within the exclusive jurisdiction of the Public Utilities Board, and, so far enforcement by prosecution is concerned, within the exclusive jurisdiction of the Provincial Magistrate’s Court. • These tribunals had exclusive jurisdiction and had already begun to exercise it. • Matter could have been approached on basis that the respondents have no standing, or that they have no rights which would be protected, defined or declared by the declaration sought. • Better to use principle that the Court should no grant a declaration that the defendant has committed an offence. • Basic freedoms may be infringed if a person is convicted in civil proceedings without protection of criminal laws of burden of proof and evidence. • NB – this has succeeded in two later cases where monetary relief was sought.

4. Prematurity • E.g. if matter may be resolved internally or without the need for court intervention; or in the context of applications to prohibit a tribunal from dealing with an issue in favour of its resolution by the court. • Statutory regime – is it clear that tribunal will have first crack at resolving issues. Practical perspectives – advantages and disadvantages of a pre-emptive ruling by the court. Issues the same as in issue of statutory appeals – will tribunal deal with issue? If so will its conclusion be highly predictable and judicial review inevitable? Who has advantage in expertise? Will any party be disadvantaged in participatory sense? Judicial resources? • If tribunal concludes it will be building an evidential record which will facilitate judicial review.

Howe v. Institute of Chartered Accountants of Ontario • Howe denied disclosure; applied for judicial review claiming he was entitled to discovery under the principles in R v. Stinchcombe. • Tribunal hand not finally ruled, and there was a right of appeal. • Allegations of breach of rules of natural justice could be raised in appeal and also room for appeal to proceed by way of de novo hearing. • Court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it (e.g. failure to provide notice, jurisdictional defect). • Dissent: • Argument that court should no encourage applications for judicial review of preliminary rulings or interlocutory orders of tribunal, especially where adequate right of appeal. But this argument only holds true if error is within tribunal’s jurisdiction. Where it amounts to breach of duty of fairness/natural justice it amounts to jurisdiction of error and court is entitled to intervene to correct. Even if existence of adequate alternative remedy is basis for refusal of judicial review, it would be more efficient to determine issue now. • Argument that appellant is entitled to renew his motion for disclosure before the panel that will hear the charges of professional misconduct and that that panel should be given the opportunity to rule on the motion: the likelihood of this is slight in this case, disclosure issues should be determined sooner rather than later, there is sufficient factual record to decide the issue, and since this issue is before the court it ought to be decided now.

Air Canada v. Lorenz (2000) • Application of judicial review of an adjudicator’s refusal to recuse himself. • Inappropriate for court to make ruling before adjudicator has rendered a final decision on the complaint. Bias objection is on record and if adjudicator finds in favour of employee, Air Canada will be able to apply for judicial review on ground of bias. • It is within the jurisdiction of the Court on an application for judicial review alleging bias to refuse relief on the ground of prematurity. • No broad statutory right of appeal, and non-intervention cannot be justified by policy of curial deference to tribunals. Whether adjudicator is disqualified for bias must be decided independent by a reviewing court on the standard of correctness. Nor is it a case where a better record will be compiled for the conduct of the judicial review if it is postponed. • Exercise of discretion turns principally on two competing considerations: possible hardships caused to Air Canada and time and resources wasted if bias not decided now v. adverse consequences of delaying administrative process and countenancing a multiplicity of litigation. • Factors to be considered: • Hardship to applicant – in proceeding before tribunal whose authority to hear the dispute has been called into question. Cannot be determinative – reviewing court would always have to decide this and would in effect mean that court would have no discretion to dismiss when bias is alleged. • Waste – of resources devoted to hearing if it is then challenged. But whether this will happened is not known. • Delay – of hearing due to judicial review process already undertaken (two years). But this would open the doors to other people resorting to judicial review for the purpose of delaying the proceedings. • Fragmentation – if issue is decided at this time, then Air Canada later challenges on other grounds, there will have been a proliferation of litigation. • Strength of the case – potential harm of deciding or not deciding merits now depends on eventual success or failure of allegation of bias. Cannot make finding as to this. • Statutory context – absence of right of appeal and inclusion of a strong preclusive provision evidence legislative intention to keep judicial oversight to a minimum. Delay and fragmentation should be given considerable weight in this context. • The jurisprudence: • Test to be applied on an application for judicial review when the applicant has alleged bias and there is no right of appeal: court should only intervene before tribunal has rendered full decision in exceptional circumstances or where the attack is on the very existence of the tribunal. • No authority indicates that bias ipso facto constitutes exception circumstances. Non frivolous allegation that falls short of a cast iron case does not constitute exceptional circumstances.

• Unwillingness of court to consider hypothetical questions.

5. Mootness • By the time application for judicial review comes on for hearing/reaches Court of Appeal/ Supreme Court of Canada, the dispute will have ceased to have practical significance for the applicant.

Borowski v. Attorney General (1989) • general policy that court may decline to decide case which raises hypothetical/abstract question. Applies when the decision of the court will not have the effect of resolving some controversy which affects/may affect the rights of the parties. If, subsequent to the initiation of the action, events occur so that there is no present live controversy which effects the rights of the parties, case is said to be moot. The general policy is enforced in moot cases unless the court exercises its discretion to depart from its policy. • Reasons may include situations where there are collateral consequences ot the proceedings, where the issue at stake is one of a recurring nature, where, in a case of public importance, there remains a public interest in the resolution of the issue raised by the litigation. In all theses situations, necessary to weigh the countervailing considerations of the need for issues to be deal with adversarially, concern for resources of court, importance of courts not departing from role of resolving live disputes.

6. Delay

• Goes to either jurisdiction or discretion. • Failure to adhere to mandatory limitation statues or provisions will prevent court even considering case. • If no limitation period/within limitation period courts will on occasion deny relief on the ground of undue delay (doctrine of laches). • Federal Court Act s. 18.1 – thirty days from the communication of order. • Nova Scotia Civil Procedure Rules 1971 – six months from date of decision for bringing application fro relief in the nature of certiorari. • Municipal Act 2001 – 12 months for motion to quash municipal by law. • Homex Realty and Development Ltd. v. Wyoming (1980) Supreme Court of Canada held that the Ontario Municipal Act and the Judicial Review Procedure Act provided alternative remedies for challenging the validity of Municipal Act bylaws. • Judicial Review Procedure Act – s. 5 – court may extend time limits where it is satisfied that there are prima facie grounds for relief and no substantial prejudice or hardship will result to any person.

Friends of the Oldman River Society v. Canada (Minister of Transport) (1992) • Proceeding to halt dam was instituted after project was 40% complete. Won on the principal issues, minister argued Federal Court of Appeal had erred in exercising its discretion to grant an order of certiorari to quash the minister’s decision to approve construction of the dam. • Principles governing appellate review of a lower court’s exercise of discretion: appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion had it attached to them in a different way. But if it reaches clear conclusion that there has been a wrongful exercise of discretion in that no weight/insufficient weight given to relevant considerations then the reversal of the order on appeal may be justified. • Relevant considerations: delay, particularly would result in prejudice to other parties who have relied on the challenged decision to their detriment; unreasonableness. • Motions judge took notice of time between approval being granted and filing of notice of motion, and fact project was 40% complete, but did not take into account activity undertaken by Society before taking this action. Concerted and sustained effort to challenge legality of process followed by Alberta to build dam. • No evidence Alberta has suffered any prejudice from any delay; no indication it was prepared to accede to an environmental impact assessment until it had exhausted all legal avenues. • Court of Appeal did not err. • Dissent: • It did err. Society knew of grant of approval 14 months before proceedings were launched. • Duty to act promptly when seeking extraordinary remedies. • Dam 40% complete. • If Society had acted more promptly, Alberta would have been able to assess position.

R. v. Consolidated Maybrun Mines Ltd. (1998) • Company ignored order to clean up site. When charged by ministry with failing to comply with the order, the appellant sought to go behind the order and have it declared invalid by the provincial court judge before whom it had been charged (no evidence ground of judicial review). Court of Appeal for Ontario affirmed the judgment of the Ontario Court (General Division) that by reviewing the validity of the order the trial provincial judge had exceeded his jurisdiction. Appeal to Supreme Court. • Issues involved in question of “collateral attacks” on administrative orders are different from those traditionally encountered in the judicial review context. Administrative orders like this one can be subject to judicial review but problem presupposes that the affected party did not apply for review. Question is whether a penal court, which is not a superior court, can determine the validity of an administrative order when the case before it concerns primarily a charge of a penal nature. • Question of collateral attacks rises when the relevant statute provides for no right of appeal to the court responsible for trying the charge. Must therefore take into account the legislature’s decision not to confer the power to hear an appeal from the administrative order on the court responsible for hearing the charge. • Question is: where no right of appeal confers express jurisdiction on trial judge, to what extend does the rule of law enable a penal court to consider the validity of an administrative order where a person is charged with failing to comply with the order? • Court of Appeal stated five factors to be considered in determining whether a court can rule on the validity of an administrative order collaterally attacked in penal proceedings: (1) the wording of the statute from which the power to issue the order derives; (2) the purpose of the legislation; (3) the availability of an appeal; (4) the nature of the collateral attack (reservation by SCC: for this purpose, difficult to draw a distinction between invalidity for lack of jurisdiction ab initio and invalidity resulting from loss of jurisdiction: the nature of the collateral attack is relevant to determine not whether it raises an excess or lack of jurisdiction on the part of the decision maker, but whether the attack involves considerations that fall within the jurisdiction conferred by the statute on the appeal tribunal – consideration of factors within or foreign to its expertise?); and (5) the penalty on a conviction for failing to comply with the order. Not independent and absolute criteria, but clues for determining legislatures intention. • Must presume legislature did not intend to deprive citizens affected by government actions of an adequate opportunity to raise validity of order. Therefore must determine whether the law proscribes a specific forum. • Application: purpose of the Act is to prevent contamination of the province’s environment. This is reflected in scope of powers conferred on Director and establishment of an appeal board to afford affect individuals an opportunity to assert their rights as quickly as possible. Permitting a person to whom an order is directed to collaterally attack the order at the stage of penal proceedings would encourage conduct contrary to the acts objectives and undermine its effectiveness. Appellants cannot raise their right to make full answer and defence since there is no indication that the Act’s appeal process is inadequate. Legislature set up specialized tribunal to hear questions relating to the environment. Permitting a penal court to answer such questions would undermine the scheme of the Act. Lastly, penal consequences – fines – do not justify conclusion that the legislatures intention was to authorize collateral attacks to the detriment of the Acts objectives and the Board’s jurisdiction.

7. Misconduct of Applicant

Homex Realty and Development Co. Ltd. v. Wyoming (Village) (1980) • Homex had the right to an opportunity to be heard and did not receive it before passage of the By-law. • Remedy is discretionary. • Principles governing the exercise of discretion to decline the grant of the extraordinary remedy of certiorari include “if the conduct of the party applying has been such as to disentitle him to relief.” • Homex took inconsistent and contradictory positions. Of primary concern – attempt to avoid agreement to service lands by shifting that burden to the ratepayers. Council acted to protect constituents; litigation by the Village would be expensive and of doubtful outcome. • Dissent: respondent did not argue misconduct and would not deny relief on a ground not raised or argued.

Re Tomaro and City of Vanier (1978) • Court of Appeal overturned mandamus compelling issue of licence for massage parlour since respondent had operated body-rub parlour anyway.

Bellechasse Hospital Corporation v. Pilotte (1975) • Applicant sued hospital for damages and mandamus to compel reinstatement. Awarded damages because suspended in disregard of regulations, but denied mandamus due to “language and threats” which precipitated the suspension.

8. Waiver • Most commonly occurs where breach of rules of natural justice or bias.

Halifax-Dartmourth Real Estate Board • One of alternate grounds for denial of relief was failure of applicants to object at hearing to the lack of notice on one of the charges, this being the basis of the application for certiorari.

Wassilyn v. Ontario (Racing Commission) (1993) • A Commission agreement to reinstate a racing licence without holding the public hearing required by the rules was not binding on the basis that it could not waive a requirement that had been enacted in the public interest.

9. Balance of Convenience • Court may refuse relief in the face of a denial of procedural fairness on the basis that the outcome would have been the same. General consideration that the courts should not be awarding remedies that are practically futile. However SCC has apparently rejected this as a ground for refusing relief on the basis that the denial of the benefit of the rules of natural justice is a “free standing” ground of judicial review – practical justification speculating as to inevitabilities of outcome on the basis of incomplete material in relation to a matter where it is not the statutorily designate decision maker. • Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board (1994) – chair refused to put matter before board (breach of procedural fairness) but relief refused because the court held that the board as a matter of law would have had to refuse the application anyway. Acknowledged authority of Cardinal but this was an exceptional case where refusal of remedy justified on basis of futility. • NZ cases on decisions where decision maker asserts that even if the initial decision was tainted he or she would have reached the same conclusion irrespective of the defect – court seems more tolerant of illegalities because of considerations of futility in cases that are essentially procedural. • Overriding sense that the public interest dictates whether illegalities be ignored by the courts. Irrespective of outcome should statutory body have acted legally, court should recognize disruptive effects of granting judicial review. • Berg v. British Columbia (Attorney General) (1991) – challenge to grant of permission to log forest to combat beetle infestation; regulations had not been observed. Court denied relief on the bases that the landowners had in fact been heard; the grant of injunctive relief at this stage would cause considerable harm to the respondents; the impact of the logging on the applicants’ interests was minimal and the infestation was of grave concern. Referred to s. 9 BC Judicial Review Procedure Act and its Ontario equivalent (s. 3) which provide that the court may refuse a remedy and validate a decision where the sole ground of review is a defect in form or a technical irregularity that has not caused a substantial wrong or miscarriage of justice. • Re Smyth and Anderson (1970) – Court refused mandamus on grounds including disruption of process and other public interest considerations. • Padda v. Canada (Minister of Employment and Immigration) (1988) – rejected argument that relief should be denied because there were hundreds of other Convention refugee claimants in the same position as the applicant. If floodgates, then so be it. Harkens back to Singh and refusal to recognize administrative expediency and expense arguments as a reason for limiting procedural rights under s. 7 Charter.