NCA Administrative Review

Posted on October 1, 2010by jayfoxsjam

PROCEDURAL FAIRNESS: THRESHOLD ISSUE

THREE SOURCES OF PROCEDURAL ENTITLEMENT
(1) Legislation; Public decision makers (PDMs) are acting under legislative authority, and these statutes will
probably have limitations set out and procedures set out for the PDMs. It is possible for the statute to limit your
procedural entitlements at common law (i.e. the statute might limit your right to an oral hearing). However,
there are some entitlements that exist as a Constitutional protection, and these rights may be immune from
derogation.
(2) Common law; certain types of procedure entitlements have been developed over time (right to a fair
hearing, right to oral hearing, right to disclosure, etc.). Even if the statute itself doesnt give a procedural
entitlement, you might have one here.
(3) Charter:
When the legislature has chosen specific procedures for the administrative tribunal, and if it denies an alleged
procedural right (i.e. oral hearing), then the Charter is the only other way to enforce that right:
(a) Admin actors must exercise their statutory authority in accordance w/ the Charter
(b) When an admin decision deprives someone of life, liberty or security of the person, then s 7 of the Charter
is engaged
(c) The definition of fundamental justice is informed by the duty of procedural fairness in administrative law
(Suresh goes into this)
(d) Caution, however, that procedural fairness under administrative law principle applies much more broadly
than s 7.
OVERVIEW OF THRESHOLD ISSUE
Does procedural fairness apply at all?
(1) Before getting into common law, look at procedures provided by statute:

Does it spell out a procedure to follow? If yes, advise that to be followed, b/c dont have to get into

murky common law territory.

Assuming no, does it exclude requirement of procedural fairness?
If it is silent, common law will be implied?

(2) If it is implied, must determine whether it applies to this party. Look at 3 criteria inKnight (says they
come from Cardinal):
(i) Nature of decision:
(a) How specific it is (does it affect one persons rights, or is it a general policy decision)
(b) The degree of finality (a decision of preliminary nature will not in general trigger the duty to act fairly,
whereas a more final nature may have such an effect);
(c) Decisions of a legislative and general nature do not entail the duty
(ii) Relationship b/w decision maker and party:
1.

Whether its regulated by public or private law)

2.

What sort of decision maker are we looking at) (is it an individual relationship or broad based)

(iii) Impact of decision on interested party (usually the most significant does the person have an important
interest
in the decision)
(3) Look at other things that might exclude duty: e.g. emergency (Cardinal); legislative function (Inuit
Tapirisat)
RIGHT TO PROCEDURAL FAIRNESS
Prior to Nicholson, administrative decisions could be made without regard to the rules of natural justice. The
dichotomy b/w judicial and administrative decisions resulted in the preoccupation with categorization.
Under the traditional approach, where admin authorities were given the powers to do X, the person wouldnt
have the power to appeal that decision. But after Nicholson, the ability of an admin tribunal to do X is not
determinative, as the interested person may be afforded with at least some procedural protection to be
treated fairly.
Nicholson v Haldimand-Norfolk Regional Police Commissioners (Duty of procedural fairness applies to
administrative decision and even if a statute is silent on procedural entitlements, common
law requires at least some opportunity to be heard before decision):
FACTS: 14 months after date of hire, N dismissed, w/out being given reasons and w/out opportunity to make
submissions. Appellant applied for dismissal to be quashed, claiming he was entitled to be treated fairly by the
Commission. The Police Act governs the Commission. The Act allows them to dispense people without reason
if employed less than 18 months.
ISSUE: Can N claim an inherent procedural right in common law, even though the statute needed to be 18
months for a right to hearing?
HELD Just because statute says this, doesnt mean a police officer shouldnt get any opportunity for a
hearing whatsoever. This isnt a judicial decision, it was an admin decision. But the category approach is
arbitrary and unfair to individual interests.
If a person subject to pains and penalties, or in some way adversely affected (the consequences are
important), then he should be told the case against him, and afforded an opportunity to be heard. The
appellant should have been told why his services were no longer required and given an opportunity (whether
orally or in writing) to respond. So, the level of procedural protection is not full natural justice not saying
that there has to be a full borne court procedure. N should have been afforded at least some procedural
entitlement, not necessarily what he would have received at 18 months.
Cardinal v Director of Kent Institution (6 years after Nicholoson) (Where there is an apparent
emergency, there is no requirement of prior notice and an opportunity to be heard before the
decision):
FACTS: Prisoners allegedly in hostage taking situation; subsequently transferred to another facility and placed
in segregation by Director, against the recommendation of the Segregation Review Board; Director didnt
inform Appellants of reasons, nor give them an opportunity to tell their side of story (procedural concerns)
ANALYSIS: No doubt that Director was under duty of procedural fairness (which Court has affirmed as a
common law principle need to look at effect on the prisoners) (Nicholson): e.g. (1) Less likely to
instruct/interact with counsel (2) restricts their ability to do things (a duty of fairness lies in every public
authority making admin decisions which affect the rights, privileges and interests of an individual)
Question is what the duty may reasonably require of an authority, and what is to be considered a breach. Here,
given the urgent in nature of the situation, hearing not necessary (so, where there is an apparent
emergency, there is no requirement of prior notice and an opportunity to be heard before the
decision)

But once a recommendation to end the segregation of prisoners had been made by the review
body, the duty of fairness required that the prisoner director inform the inmates of his intended
decision. Leaving the inmates there after segregation, time of urgency passed.
HELD B/c of the serious effect of the Directors decision on the appellants, procedural fairness required that
he inform them of the reasons for his intended decision and give them an opportunity to make representations
to him concerning these reasons. This is the minimal requirement of procedural fairness.
Knight v Indian Head School Division: (Important for outlining the factors used to assess the
3 Cardinal factors assessing existence of general duty of fairness)
FACTS: Ks employment contract stipulated that he could be terminated either by 3 months notice or by the
Board for just cause. The Board terminated his employment without cause on 3 months notice. Prior to
termination, there were negotiations back and forth between the Boards lawyers and his lawyers. K brought
action alleging wrongful dismissal. Went to Sask COA, where K awarded damages as an office holder under
the Education Act, he was entitled to be terminated according to principles of procedural fairness, and could
only be removed for cause. The Board appealed.
ANALYSIS:
Procedural protections he was seeking didnt exist in statute, but at common law, its about inherent procedural
rights
3 Factors for Establishing Common law Duty of Fairness:
(1) Nature of the decision:
(a) how specific it is (does it affect one persons rights, or is it a general policy decision)
(b) the degree of finality (a decision of preliminary nature will not in general trigger the duty to act fairly,
whereas a
more final nature may have such an effect);
(c) decisions of a legislative and general nature do not entail the duty
Here, the decision made by Board was final and specific, directed at terminating the employment of the
respondent.
(2): Nature of Relationship: In the case of employment relationships, 3 categories:
(a) master-servant (contractual) (b) office at pleasure (dont have to get to the threshold of cause) (c) office
where one can be removed with cause.
The JUSTIFICATION for granting to the holder of an office at pleasure the right to procedural fairness is
that, whether or not just cause is necessary to terminate the employment, fairness dictates that the
administrative body making the decisions be cognizant of all relevant circumstances
surrounding the employment and its termination
To give procedural fairness to the one being dismissed would not import into the termination decision the
necessity to show just cause for the employees dismissal, but would only require the admin body to give the
officer holder reasons for the dismissal and a fair hearing for rebuttal.
(3): The impact of the decision on the terminated party: There is a right to procedural fairness only if the
decision is a significant one and has an important impact on the individual. Courts have recognized that the
loss of employment against office holders will is a significant decision.
Statutory Framework:

 From that, it follows that there was a general duty to act fairly on part of Board. Now, the statutory
framework must be examined in order to see if it modifies this right
The provisions of The Education Act must clearly show (either by express language or necessary implication)
that the respondents general right to procedural fairness has been restricted: Question to ask does the Act
explicitly or implicitly excuse the admin body from acting fairly?. In this case, Act stipulated to look at
contract to see procedure of termination. Here, presumption that parties intended procedural fairness would
apply arises; and no provision which overrides this presumption [So, statute can override common law duty of
fairness. But in order to overrule it, it has to be explicit. Here, majority said the contract was silent]
Content of Duty:
Next, look at the content of the duty the concept of procedural fairness is variable and its content is to be
decided in the specific context of each case. Since the respondent could be dismissed at pleasure, the
content of the duty of fairness would be minimal, and notice of reasons for boards decision and
affording opportunity to be heard would be sufficient.
Was the duty complied with? If it could be found that the respondent had knowledge of the reasons for his
dismissal, and had an opportunity to be heard, the requirements of fairness will be satisfied even though no
hearing. Flexible threshold means flexible content. Key requirement is that e/ee knows the reason of
the dismissal and has a chance to respond to it in some way.
HELD The appellant board made itself sufficiently available for discussion through the
meetings with the respondent and his lawyer so that each partys concerns were made fully
known to each other. By inference, the respondent must have known the reasons for his dismissal and was
provided with every opportunity to be heard. No remedy for K, as he was given a fair opportunity to convince
the Board that he should keep his job.
MINORITY (Sopinka J) For employment relationship of the category of office held at pleasure, duty of
fairness should only arise where an employee can identify in the statute, regulations or contractual provisions
governing the relationship provisions which expressly (or by necessary implication) confer upon the employee a
right to be heard [Note: This is where Dunsmuir, below, comes in and says, yes, it is primarily an employment
matter]
CONTEXTS WHERE DUTY OF FAIRNESS DOES NOT APPLY (LEGISLATIVE DECISIONS)
Most cases are trying to work through the distinction between the general, ministerial and policy decisions
that do not attract procedural entitlement, as opposed to administrative, specific or personal decisions that
do. Where do we draw the line?
The following cases indicate the procedural fairness does not apply to legislative decisions or functions (but
the decision must be constitutional). To determine whether a decision is legislative, look at:
(1) Is there a lis (a dispute between parties)? If its a policy based decision, with no core argument,
then its more likely to be legislative
(2) Is it between a defined number of parties with defined interests, or is it something that is more
broad based?)
(3) Is it affecting a broad spectrum or a narrow group of interests (the broader, the more likely
legislative) (A-G v Inuit Tapirisat)
A-G v Inuit Tapirisat (Procedural fairness doesnt apply to legislative decisions if they are not
acting in an administrative body function):
FACTS: After application for telephone rate increases in Ontario, Quebec and Northwest Territories, the Inuit
Tapirisat and the National Anti-poverty Organization appealed to set aside portion of the CRTCs decision. Bell
Canada filed reply. Inuit Tap. preparing final reply, but Governor in Council issued decision denying
appeal. Their decision followed months of hearings. The respondents position was founded on the failure of

the Governor in Council (a) to receive actual petitions from the respondents and (b) to afford the respondents
the opportunity to respond to the case made against them by the Minister, the department officials and the
CRTC.
ANALYSIS:
The central issue is whether there is a duty to observe natural justice in, or at least a lesser duty of fairness
incumbent on, the Governor in Council in dealing with parties such as the respondents upon their submission
of a petition under s 64(1) of the National Transportation Act.
While the duty to observe procedural fairness need not be express, it will not be implied in every case. It is
always a question of construing the statutory scheme as a whole in order to see what degree, if any, the
legislator intended the principle to apply. *Decisions of Cabinet/ministers are not automatically
excluded from requiring procedural fairness: If they are making administrative decisions, then
they dont have immunity.
What makes a decision legislative: (1) Is there a lis (a dispute between parties)? If its a policy based
decision, with no core argument, then its more likely to be legislative(2) Is it between a defined number of
parties with defined interests, or is it something that is more broad based?) (3) Is it affecting a broad spectrum
or a narrow group of interests (the broader, the more likely legislative)
HELD Under s 64, the Cabinet, as the executive branch of the government, was exercising the power
delegated by Parliament to determine the appropriate tariffs for the telephone services of Bell. It affected a
large group of citizens. Unless otherwise directed in the enabling statute, the Cabinet must be free to
consult al sources which Parliament might consult had it retained its function.
The wording adopted by Parliament makes this clear. The Governor in Council may act at any time; he
may vary or rescind any order, decision, rule or regulation in on his own motion. This is legislative action
at its purest. In such circumstances, the Court must fall back upon the basic jurisdictional supervisory role and
construe the statute to determine whether the Governor in Council has performed its functions in accordance
with Parliament mandate. *Basically, the Cabinets power was deemed to be legislative in nature, in
part b/c the legislation authorized the Cabinet to overturn a decision of the CRTC on its own
motion legislative action in the purest form*.
COMMENT: Cabinet and ministerial decisions are not subject to the legislative exemption per se, but it will
often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be
exempted from the duty.
Reference Re Canada Assistance Plan (Federal government terminating payments under cost
sharing for social assistance was purely a legislative decision):
FACTS: Under Canada Assistance Plan, federal government made agreements with provinces to share cost of
social assistance programs; agreements could be terminated by mutual consent or one year notice. Fed gov
subsequently limited payments under plan.
ANALYSIS:
Court reaffirms that if its a purely legislative decision, the courts wont impose further requirements
(Question: Whether it is the legislative exception principled, or is it a way of not interfering with an admins
decision).
Also, the issue/doctrine of legitimate expectation raised that is, based on the conduct of the public official, a
party has been led to believe that his or her rights would not be affected without consultation. The appellant
concedes that there is no legal impediment preventing Parliament from legislating, but contends that the
government is constrained by the doctrine from introducing the Bill (to limit payments) to Parliament. But

there is no support for the position that the doctrine can create substantive rights. Where it is applicable, it can
create a right to make representations or to be consulted. *It does not fetter the decision following the
representations. Parliamentary government would be paralyzed if the doctrine could be applied to prevent the
gov. from introducing legislation in Parliament.
HELD Appeal allowed. The rules governing procedural fairness do not apply to a body exercising purely
legislative functions
Wells v Newfoundland (Legislature passing law abolishing a quasi-judicial position was not
bound by duty of fairness):
FACTS: The Nwfld Legislature passed legislation abolishing a quasi-judicial position to which Wells had been
appointed. HELD Wells argument that he should have been accorded procedural fairness was rejected by
the Court which stated: Legislatures are subject to constitutional requirements for valid law making, but
within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions
are subject only to review by the electorate.
PROCEDURAL FAIRNESS IN EMPLOYMENT TERMINATION CONTEXTS
Dunsmuir v New Brunswick (Where contract of employment, dont need admin/public law;
Modifies Knight):
FACTS: D hired as Court Services Legal Officer. He was an employee under NBs Civil Service Act w/ a
written contract of employment. Employment terminated with 4 months notice. Cause was not alleged. D
filed grievance under Public Service Labour Relations Act. Grievance adjudicator declared termination void.
Province applied for judicial review. Court of Q.B and COA found the Ds right to procedural fairness not
breached. D appealed.
ANALYSIS:
We are of the view that the principles established in Knight relating to the applicability of the duty of fairness
in the context of public employment merit reconsideration. What matters is the nature of the employment
relationship b/w the employee and the public employer.
In practice, a clear distinction b/w office holders and contractual employees has been difficult to maintain. In
Knight, majority relied on whether the public employees position had a strong statutory flavour but
this is an inadequate test. Most office holders positions have contractual employment
relationship. If the distinction has become difficult to maintain in practice, it is also increasingly hard to
justify in principle.
Further, there are 3 main (historical) reasons for distinguishing between office holders and
contractual employees, all of which are problematic. First, historically, offices were viewed as a form of
property, and thus could be recovered by the office holder who was removed contrary to the principles of
natural justice. Employees who were dismissed could only sue for damages. This conception of public office
has faded. Second, the dismissal from public office involves the exercise of delegated statutory power and
therefore should be subject to public law controls, unlike the dismissal of a contractual employee which only
implicates a public authoritys private rights as an employer. Third, unlike contractual employees, office
holders did not typically benefit from contractual rights protecting them from summary discharge B/c of this
insecurity, it was seen desirable to impose minimal procedural requirements to prevent arbitrary dismissal.
**But in our view, the existence of a contract of employment, not the public employees status, is the crucial
consideration. Where the employment relationship is contractual, it becomes difficult to see how a public
employer is acting any differently in dismissing a public office holder and a contractual employee.

**Administrative law vs Private law: Administrative law is about preventing the arbitrary exercise of
delegated powers (distinguish this with Knight). So when government as party to the contract acts in GOOD
FAITH, there is no need for administrative law to step in, as that exercise of power isnt arbitrary.
Administrative vs Private law Remedies: Private law remedies are more fair and principled. E.g. there is
no duty to mitigate under admin law. As a result, an employee may recoup much more than theyve lost.
Further, it is true that the remedy of reinstatement is not available for breach of contract at common law. But
breach of a public duty of fairness does not lead to full reinstatement. The dismissal decision is void ab initio,
meaning that the employment is deemed to have never ceased. The employer, though, is free to dismiss the
office holder again.
HELD To the extent that Knight ignored the important effect of a contract of employment, it should not be
followed. By imposing procedural fairness requirements on the respondent over and above its contractual
obligations and ordering a full reinstatement of the appellant, the adjudicator erred in his application of the
duty of fairness.
PROCEDURAL FAIRNESS: CONTENT OF DUTY
TEST FOR DETERMINING THE CONTENT OF THE DUTY
Underlying the following factors, as noted in Baker, is the notion that the purpose of the participatory
rights contained is to ensure that administrative decisions are made using fair and open
procedure, appropriate to the decision being made and its statutory, institutional and social
context, with an opportunity of those being affected by the decision to put forward their
views:
1.

Nature of the decision being made and the process followed in making it:
The more the decision is seen as judicial or quasi judicial, the more likely procedural
protections will be like that of a trial model. I.e., is it adversarial, two party type decision? Or, is it

more like policy based (guided by discretion)?

E.g. In Suresh, deportation hearing had elements of judicial proceeding, it also had an element

of discretion, so could go either way on this factor

E.g. In Suresh, it was a prospective decision which courts generally dont engage in, so less

judicial, less extensive safeguards

E.g. In Baker, a decision determining whether there were humanitarian and compassionate
grounds for exemption from being deported was noted to be a highly discretionary decision

2.

The nature/terms of statutory scheme

Greater procedural protections will be required when no appeal procedure is provided within
the statute, or when the decision is determinative of the issue and further requests cannot be
submitted. E.g., if theres a privative clause, then that factor will indicate higher procedural

requirements.
In Baker, the decision of whether there are H & C grounds within the statutory scheme as an
exception to general principles of immigration law, which suggests more relaxed requirements under

the duty. But, there was no appeal procedure

In Ha, it was noted that simply b/c visa officers were not obliged to interview all applicants
doesnt diminish the procedural protections that they owe to those they do interview (once they
interview, they must do so in accordance w/ duty of fairness).

3.

The importance of the decision to the individual(s) affected:

The more important, and the greater its impact, the more stringent procedural protections will
be mandated. The lesser the impact, the lesser the content (the fewer procedural protections).

E.g. In Suresh, apparent that where one faces restrictions on freedom (deportation), suggests

high amount of procedural safeguards

E.g. In Markwart, apartment complex demolished, and was tantamount to expropriation

without compensation; so, very significant impact (compare/contrast)

E.g. In Homex, passing a by law to prevent sub-division of property had a significant impact
on party

4.

The legitimate expectations of the person challenging the relevant decision:

Did the complainant receive a clear/unambiguous representation that has induced in him/her

a reasonable expectation that they will retain a benefit (CUPE v Ontario)?

If a claimant has a legitimate expectation that a certain procedure will be followed, this
procedure will be required by the duty. Also, if a claimant has a legitimate expectation that a certain
result will be reached, fairness may require more extensive procedural rights than would otherwise

have been given (note, though, that the doctrine cannot lead to protection of that expected outcome)
E.g. In Congregation, the Municipality followed an involved process in responding to the
Congregations first rezoning application, in doing so giving rise to Congregations legitimate

expectation that future applications would be carefully considered.

E.g. In Baker, court denied that the articles of the Convention, based on the fact that it has
been ratified by Canada, gave rise to an reasonable expectation that certain procedures would be
followed. This was not equivalent to a government representation. But see Suresh, where being a

signatory to the Convention Against Torture indicates an intention that they will abide by it.
In Ha, visa officer wrote to counsel stating that counsel are never allowed at interviews. This
is inaccurate statement of law, as visa officers must determine cases based on their facts. Thus, as a
result of a general statement that counsel cannot attend interviews, the appellants may have assumed
that it would be futile to attempt to ask the visa officer to reconsider his decision.

5.

Deference to the procedural choices made by the decision maker:

The Court must guard against imposing a level of procedural formality that would unduly

encumber efficient administration.

In Ha, however, counsel was only asking to observe proceedings. This would not unduly
encumber efficient administration (see Ha) [In other words, depending on the NATURE of the

procedure requested, this factor may have different results]

Like in Baker, where the statute gave the decision maker discretion to not conduct interviews,

was a similar discretion afforded to the decision maker in this case? If so, deference must be given
See Congregation de temoins: Municipal decisions on rezoning fall w/in the sphere where
Municipalities have expertise beyond the judiciary. But this doesnt carry much weight where there is
no record to indicate that the Municipality has actually engaged its expertise in evaluating the
applications.

Conclusion: Balancing the factors, might say that:

1.

Minimal requirements are adequate

Extensive requirements are needed

Or something in the middle

Baker v Canada (Minister of Citizenship and Immigration) (Sets out factors to test what the content of
the duty is)
FACTS: B, Jamaican, entered Canada in 1981. Never received permanent resident status. Four children (who
were all Canadian citizens) while living in Canada. B was suffering from psychiatric illness. She was ordered

deported in 1992. B applied for exemption from requirement to apply for permanent resident outside Canada,
pursuant to Immigration Act, based upon humanitarian and compassionate considerations. B made
submissions, through lawyer and Childrens Aid, including that she was sole caregiver for 2 of her children, and
that the other 2 depended on her for emotional support. Response was contained in a letter by Immigration
officer, stating that there were insufficient humanitarian and compassionate grounds to warrant request. Letter
contained no reasons for that decision.
ANALYIS:
(1) Existence of duty of fairness: Both parties agreed that a duty of procedural fairness applies to H & C
decisions. The decision affects the rights, privileges or interests of the appellant which is sufficient to trigger
the application of the duty (Cardinal v Director of Kent)
(2) Application of Baker factors:
Appellant claimed that the duty is affected by the existence of legitimate expectations (based on the articles of
the Convention on the Rights of the Child. But there is no reason to conclude that the decision on her H & C
would be guided by the Convention.
(a) Participatory rights: Was the failure to accord an oral hearing and give notice to B or her children
inconsistent with the participatory rights required in these circumstances? Several factors above enter into the
determination of the type of participatory rights required here: (i) an H & C decision is different from a judicial
decision (as it involves exercise of high amount of discretion (ii) the H & C decisions role is within the statutory
scheme as an exception - These factors suggest more relaxed requirements under the duty. But, (iii) there is
no appeal procedure, and (iv) this is a decision that has exceptional importance to the lives involved - these
lead to the content of the duty being more extensive. Finally, (v), the Statute provides significant procedural
flexibility for the Minister/immigration officers to not conduct interviews.
Must balance these factors. It cant be said that an oral hearing is always necessary, as meaningful participation
can occur in different ways. Here, B had chance to submit info (through lawyer) about her position.
This satisfied requirements of participatory rights.
(b) Provision of reasons**: B submits that the duty of fairness required that reasons be given by the decision
maker. It has been held that in H and C applications, reasons are unnecessary. More generally, common law
rule has been that duty of fairness doesnt require reasons for administrative decisions. YET, Courts and
commentators have stressed the usefulness of reasons for ensuring fair decision making (i.e.
more articulate and thought out). And that it demonstrates to parties that their concerns were
heard and considered.
But, in Courts view, the duty of fairness may require it in circumstances: *where there is a right
to appeal, then there will usually be a right to reasons*(how can you appeal if you dont know why a
decision maker decided?) But Court concluded that this requirement was fulfilled by the notes of Officer
Lorenz.
Comment: Statutory provisions are important. Here, s 82.1 and 83 contemplated judicial review. It is
important to note the signals that legislation can give us as to the relationship b/w admin body and courts.
Here, clear statement that courts can hold a supervisory function where they can oversee the procedures
undertaken.
DOCTRINE OF LEGITIMATE EXPECTATIONS
Affords a party affected by the decision of a public official an opportunity to make representations in
circumstances in which there would be no such opportunity. Based on the conduct of the public official, a
party has been led to believe that his or her rights would not be affected without consultation, or that they
would retain a benefit, is the gist of the doctrine.

Overview of Doctrine:

At the end of the day; we need to establish a clear promise by conduct or statement by a

public authority for a legitimate expectation argument to work. (CUPE v Ont.)

Legitimate expectation can only be used to get admin body to do something that admin

body can do lawfully (e.g. if it would be against their statute, it wont work) (CUPE v Ont).
You cant use legitimate expectation arguments for substantive claims(Mount Sinai
Hospital)

Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services) (Legitimate Expectations
does not give rise to changes of substantive decisions):
FACTS: For many years the hospital had been functioning in violation of its licence. The Minister of the day
said they could still operate if they relocated. They hospital did lots of fundraising and re-located. The govt
changed and the new Minister wanted to shut them down because of budgeting issues. The hospital
applied mandamus to compel the Minister to grant the licence.
Majority of SCC held that Minister already exercised its discretion vis--vis the permit when it promised to
issue it, and acted outside competence limits when refused to issue permit.
ANALYSIS (Minoritys Judgment): Respondent argues that doctrine of legitimate expectations can
be used to compel not only procedural protection, but substantive result as well, so long as its not contrary to
law and is within power of decision maker.
(1) English vs Canadian Contexts:
(i) English law: English law adherers to the doctrine the way the respondent proposes, but in that jurisdiction,
the doctrine performs a number of functions that in Canada are kept distinct. The English doctrine has
developed into a comprehensive code the embraces the full gamut of administrative relief, from procedural
fairness (at the low end), through enhanced procedural fairness, and on to the high end where substantive
relief is possible.
Some of the English authorities that the Respondent relies on are at the high end, which represent a level of
judicial intervention that our courts have considered inappropriate
(ii) Canadian law: Canadian cases differentiate between concepts of procedural fairness and doctrine of
legitimate expectation: on one hand, concern that treating procedural fairness as a subset of legitimate
expectations may complicate the development of highly flexible rules of fairness; on the other hand, concern
that using Ministers prior conduct as reason for substantive relief may strike the wrong balance between
private and public interests. Further, the availability and content of procedural fairness is generally driven by
the nature of the applicants interest and nature of power exercised, while the doctrine looks to the conduct of
the public authority.
(iii) Does this doctrine equal to estoppel?: No requirement for estoppel to arise, as the applicant who relies on
the doctrine may show, but does not have to show, that he or she was aware of such conduct, or that it was
relied on with detrimental outcomes.
(iv) Cites Reference re Canada Assistance Plan: Court notes this authority, which regarded doctrine as an
extension of rules of natural justice and procedural fairness, which may afford a party affected by the decision
of a public official an opportunity to make representations (or whatever procedural remedies) in circumstances
in which there would otherwise be no such opportunity. The Court there shut the door to substantive relief.
Court there also noted 2 other limitations: (1) a purely ministerial decision, on broad grounds of public policy,
will normally result in no procedural protection, and an attack on that discretion will have to be deal with upon

10

an abuse of discretion (below); (2) public bodies exercising legislative functions may not be amenable to judicial
supervention
(2) Promissory/equitable Estoppel: Court mentions that this remedy may be available against a public
authority in narrow circumstances. In English cases, this has been engulfed by the general heading of fairness
(rather than law of contract). The US similarly stays away from its use in this context. *Then, Court states
that IF this were a private law case, the elements of promissory estoppel are present. PUBLIC LAW ESTOPPEL
requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be
estopped.
Application: The Minister is mandated in broad terms to act in the public interest. As a matter of statutory
interpretation, it seems clear from the broad test of s 138 (the public interest) that the legislature intended the
Minister to determine the appropriate transitional arrangements from the old policy to the new policy. *The
wording of the statutory power AND the person who wields it (a Minister) is important. Cases relied on by
respondents generally deal with lesser powers at a lower level of officialdom. Also, in the same
cases, none of them involved a statutory power of decision framed in broad policy terms.
C.U.P.E v Ontario (Minister of Labour) (Evidence of representations/past practice cannot be
equivocal under doctrine AND legitimate expectations cant be in direct contradiction to
statutory scheme):
FACTS: The Minister announces that they will reduce to sector based position of appointment which the
Union interpreted as the roster method. Minister then appoints retired judges that werent on the roster,
breaking tradition. Claim was that legitimate expectation is breached, because of understanding that Minister
would go back to the roster method
ANALYSIS:
(i) Ministers alleged failure to consult with the unions about the change in the process of
appointments: Unions claim appointment process was so entrenched, yet he Minster amended it without
notice/consultation (the issue here is consultation). They say that his decision affected the vital interest of
union members (earning a livelihood). Court held that assuming the existence of a duty to consult, I think it
was satisfied parties agree there were extensive meetings at time of Bill 136, and Minister signalled reform.
(ii) ***Alleged violation of Doctrine of Leg. Exp***.:
Definition: The doctrine of legitimate expectation is an extension of the rules of natural justice and procedural
fairness. It looks to the conduct of a Minister or other public authority in the exercise of a discretionary power,
including practices, conduct or representations that can be characterized as clear, unambiguous and
unqualified, that has induced the complainants a reasonable expectation that they will retain a
benefit or be consulted before a contrary decision is taken.
In this case, the evidence of past practice is equivocal, and as a result, the evidence of a promise
to return to past practice is also equivocal. The Minister says the return to the sector based system
was HLDAA, including the broad latitude afforded to him by s 6(5). The unions say the sector based system
was the s 49(10) roster. Evidence shows that the appeal to the list varied from Minister to
Minister. Whether or not Ministers limited themselves to the list seems to have been a matter
of policy/individual preference.
Evidence shows that unions were sceptical of some appointments from the list, which further shows that there
was no obligation to use the roster complied under s 49(10).
Minister indicated that academics and judges might be used to staff the dispute resolution commission. Two
faces expressly mentioned. Court then noted that a statement by the unions explicitly recognised that there
may be appointment of an individual (not on the list) with broad experience.

11

**To bind the exercise of the Ministers discretion, the evidence of the promise or undertaking
by the Minster must generally be such as, in a private law context, would be sufficiently certain
and precise to give rise to a claim for breach of contract or estoppel by representation **. But the
evidence doesnt establish a firm practice in the past of appointing HLDAA arbitrators, or proceeding by way of
mutual agreement
COMMENT: Past practice of the government official and quality of evidence of an alleged undertaking affect
whether the doctrine of legitimate expectation arises.
SPECIFIC PROCEDURAL ENTITLEMENTS
Overarching question is whether X had the opportunity to be heard.
NOTICE
Notice is probably the most important key component of procedural fairness.Failure to give
notice at all will always result in the fatality of the decision, because without notice, many
other procedural rights cant be exercised.
4 key aspects:

Form

Written notice is the norm, unless context permits

Not absolutely essential in all cases

You just need to effectively and adequately informed

Manner of service

Personal service is the norm, unless context permits

Main difficulties are where a number of persons are affected, how do you effectively

give notice to a whole community/city/province? Also what if you cant even be sure that the

decision will affect one group or another?

Whether that form of delivery will reach the persons affected (i.e. newspaper is bad

for people who dont read newspaper)

May need to be specific depending on complexity
How reliable is the manner of service (mailing may fail, e-mail server may be clogged,

or door-to-door man may be sick)

Timing

The amount of time will vary depending on the complexity of the matter, how much

info you must gather in your defence, etc.

Content

Information that has to be given to affected individuals

When notice is given, what does that notice need to contain?

You need to know the basic information (i.e. this allegation has been amde against
you, the hearing will be on this date, and what will happen to you if the allegations are found to be
true)

Who made the allegation?

Homex Realty v Wyoming (Villiage) (Notice prior to decision where substantial right affected, even
where statute is silent)
FACTS: Dispute over by-laws; who was going to bear the costs of a new development? Owner of land
(Atkinson) entered into agreement with Village of Wyoming to install municipal services on land, which was to
become new subdivision. Under the agreement, the owner was to finance the surfacing of all roads, drainage,

12

among other services. The owner was not permitted to sell land unless agreement had been fully carried out, or
the Village consented. Appellent Homex bought most of subdivision with Villages consent before installation
of most services. Extensive negotiations to have H pay for costs of service were unsuccessful, and
so passed by-law deeming lots owned by H not to be a registered plan of subdivision, without
prior notice to H. Relevant legislation governing the Villiage was the Planning Act, which talked about the
procedures required when passing by laws.
ISSUE: Can a municipality just pass a by-law directed at a particular situation that stacks the deck in the
favour of the municipality without complying with the common law duty of procedural fairness?
ANALYSIS:
The courts historically developed proposition that wherever a statute authorizes the interference with
property or other rights and is silent as to whether or not the agency in question is required to give notice prior
to intervention, courts will supply the omission of the legislature and will be required to provide the
opportunity to be heard. Today, the principle may apply, depending on circumstances.
Wont apply if legislative framework precludes such a requirement (unless the legislation is
unconstitutional). **In determining the appropriate interpretation of s 29(3) of the Planning Act, the: (i)
statutory framework, (ii) the nature of the action being undertaken and (iii) the general circumstances
prevailing at the time of action must be taken into account.
HELD Here, statute doesnt expressly require notice to the affected landowners PRIOR to passing of by law
(i) Nature of the decision: The action taken by the Council was not legislative in substance, but rather was
quasi-judicial in character (e.g., it represented the reported culmination of the inter partes dispute conducted
on adversarial links between Homex and the Council) (therefore, content will be increased, not attenuated
(ii) Concluding that the principle of NOTICE arises, the court noted that the Statute doesnt displace the old
rule of audi alteram partem and the resultant duty in Council to hear first and decide later. Generally,
where procedural fairness is required, notice will be required before a decision is made if there
is a significant interest affected (in this case, it required the filing of a copy of the by law with the Minister,
and it must have been registered and mailed to the RO of the affected lands). *Such a conclusion is facilitated
by the further aspect of the case that the Council has acted as the judge of its own actions in determining the
outcome of dispute between itself.
COMMENT: While notice prior to a decision will generally arise as a requirement of the duty of
fairness, Bishop v Ontario Securities Commission is an example where it would not in that case, the
whole purpose of the Act might have been defeated if the chairman could make an order or ruling under that
section only on notice to the person affected, where a negative consequence upon 3 parties would arise with
rd

the provision of notice.

In many circumstances, the statute will outline the manner in which notice is to be given, who is entitled to
receive notice, and what the notice is to contain. Where statute doesnt specify, procedural fairness
requires that the note be sufficient to let persons know how they may be affected and to allow
for adequate preparations to make representations at a hearing.
Pre-hearing procedural fairness also generally requires that those parties affected by the administrative
proceeding or decision receive disclosure of the case to be made against them. The following case discusses
both issues of notice and disclosure.
CPR v Vancouver (If notice is required at common law, must give sufficientnotice, namely notice
that allows party to be aware of nature and subject matter of hearing):

13

FACTS: Strip of land in the City of Vancouver which has been owned by the CPR for more than 100 years. For
most of that period, the land was used as a railway. However, rail operations ceased in 2002. When it became
apparent that rail operations would eventually come to an end, the C.P.R. began to make plans for redevelopment of the land to permit commercial and residential uses. But the City adopted bylaw to designate the
corridor as a public thoroughfare for transportation, and to freeze the redevelopment potential and to confine
the C.P.R. to uneconomic uses of the land.
ANALYSIS: Should the by-law be set aside for procedural irregularities?
(i) The Vancouver Charter imposes no statutory requirement to hold a public hearing before adopting a bylaw.
(i) But given the potential impact of the by law on the CPR, it owed it a duty of fairness.
(ii) The City attempted to fulfill this duty through the public hearing process (required by the V Charter) the
issue is whether meets the standard of fairness re: the Baker criteria. CPR had 3 complaints re: the
hearing process:
1.

Flawed NOTICES: Advertisements were made with contact addresses. Notices given said would
designate corridor for purposes only of transportation, including rail, transit etc.. CPR said by not saying
by law was designating private land as public, it wasnt enough. ***Court said NOTICE clearly gave the
FLAVOUR of the by law being considered. Even though alternative methods may have been used, what is
required is FAIRNESS, NOT PERFECTION. Test: Where it can inferred from the circumstances
that the party was aware of the nature and subject matter of the hearing, then otherwise
insufficiently specific notice will be sufficient

2.

Change to the by law after hearing: Alleged that addition of the exclusion of SkyTrain after the
hearing, without further hearing, violated legitimate expectation. Whether City acted contrary to L.E.
must be decided in context of nature of Citys decision making power, the statutory scheme and the Citys
role in arriving at a decision in interest of whole city. The statutory scheme allows city to revise
development plans w/out hearing; the decision is not judicial, but legislative; the City exercises
discretionary power in the public interest. *These factors may attenuate the duty that might otherwise
exist to meet the expectations of the interested parties. Court was satisfied that Citys procedure was fair
process (e.g. the ODP by-law originally drafted raised no expectation that the corridor could be used for
transportation SkyTrain was but a possibility).

HELD CPR has not made out a case for declaring the by law invalid on procedural grounds the Citys
conduct in enacting the by law complied with the requirements of fair process. Also, the City didnt exceed its
powers granted to it by the Vancouver Charter.
DISCLOSURE
Disclosure is a key component to exercising ones right to be heard, for without disclosure, it will be difficult
to present a full case at a hearing
Stinchcombe: The rule for disclosure in trials does not apply to admin decisions, but the principle underlying
that rule still has weight in admin process
Ahani v Canada: General rule is, when individual interests are at stake, procedural fairness requires at
least some level of disclosure.
Suresh v Canada (Minister of Citizenship and Immigration) (Procedural fairness requires that a person
who establishes prima facie a risk of facing torture or a similar abuse must be informed of the
case to be meet and a chance to respond and challenge the validity of the information that the
decision maker is using to base his decision on):

14

FACTS: Refugee claimant faced deportation to Sri Lanka, where he claimed he was likely to face torture.
Minister deported him pursuant to s 53(1)(b) of Immigration Act because he thought he was a danger to
security of Canada. The appellant presented written submissions and evidence to the Minister, but had not
been provided with a copy of the immigration officers memorandum, nor with the opportunity to respond to it
orally or in writing.
ANALYSIS:
The S.C.C applied Baker factors as follows:
(i) The nature of the decision: Bears some resemblance to judicial proceedings. While decision is of serious
nature and made by individual who evaluated and weighed risks, its a decision to which discretion must
attach. Court concluded that nature of decision militates neither in favour of particularly strong, nor
particularly weak, procedural safeguards. Also, its a PROSPECTIVE decision, which courts dont really engage
in.
(ii) The nature of the statutory scheme: Suggests need for strong procedural safeguards. Under s 53(1)(b),
there is no provision for a hearing, no requirement for written or oral reasons, NO RIGHT OF APPEAL. As
stated in Baker, greater procedural protections will be required when no appeal procedure is provided in the
statute, or when the decision is determinative of the issue and further requests cannot be submitted
(iii) Importance of the right affected: Appellants interest in remaining in Canada is highly significant (i.e. risk
of torture he may face in Sri Lanka). This factor militates in favour of heightened procedural protections under
s 53(1)(b).
(iv ) Legitimate expectations: Being a signatory to the Convention Against Torture indicates an intention that
they will abide by it.
(v) Choice of procedures made by agency: Minister is free under the terms of the statute to choose whatever
procedures she wishes in making a s 53(1)(b) decision. Minister must be allowed considerable discretion in
evaluating future risk and security concerns. *Need for deference must be reconciled with the elevated level of
procedural fairness mandated by the serious situation of refugees.
On balance, Court held that procedural requirements given to Suresh were insufficient (3 strong factors
weighing in favour of strong procedural fairness
HELD
(i) Procedural fairness requires that a person facing torture or a similar abuse must be informed of the case to
be meet and a chance to respond and challenge the validity of the information that the Minister is using to base
his decision on. (ii) The exception is privilege or similar valid reasons for reduced disclosure, such as
safeguarding confidential public security documents.
(iv) ALSO, fundamental justice requires (remember, this is a Charter decision) that an opportunity to be heard
existed fundamental justice requires that written submissions be accepted from the subject AFTER the
subject has been provided with an opportunity to examine the material used against them.
COMMENT: Note that the Minister suggested there was evidence that S wouldnt be tortured upon return to
Sri Lanka. S and his counsel disagreed with this, yet it wasnt disclosed.
In determining the content of procedural fairness, context is everything. In Ahani v Canada (Minister of
Citizenship and Immigration), the S.C.C. concluded that Ahani, who was also to be deported and was not
given a copy of the memorandum provided to the Minister, was given a full opportunity to respond to the
Ministers case against him. Unlike Suresh, Ahani had not established a prima facie case that he faced torture
if deported.

15

The S.C.C. returned to the question of disclosure in the national security context inCharkaoui v
Canada (Minister of Citizenship and Immigration):
Charkaoui v Canada (Minister of Citizenship and Immigration) (Security certificate involves a serious
interest engaged similar to those involved in criminal law; thus, duty to disclose all
information via infringement of s 7, except for privileged information)
FACTS: C applied for a stay of proceedings relating to the security certificate issued against him under s 77 of
the Immigration and Refugee Protection Act. He alleged that the government breached a duty to disclose info
in its possession in a timely way. The process of this is that the Minter has the ability to sign a certificate
declaring that a foreign national/permanent resident is inadmissible to enter or remain in Canada on grounds
of necessity, then a judge determines whether this is reasonable. If the reviewing judge determines that the
certificate is reasonable, there is no appeal/JR. Charkaoui had been arrested and detained but not received
reasons as to whether his certificate was reasonable
ANALYSIS:
Distinguishing criminal context from security certificate context: In criminal law context, disclosure
encompasses all relevant information (Stinchcombe). In general, this principle wont be applied in
administrative law context. But where you have a case where the type of interest engaged is as serious as
criminal law (e.g., there is a finding of guilt), then full disclosure is required, on the basis of s 7 of the Charter
HELD The destruction of operational notes is a breach of CSISs duty to retain and disclose information.
*This conclusion flows from the serious consequences the investigation will have for the life, liberty and
security of the named person. The designated judge then provides non-privileged information to the named
person.
COMMENT: Court also made a statement about privilege. The basis for the privilege is those things which
would be injurious to national security (comes from the Act). In the end, what was required was full disclosure
of everything to the Judge (not Minister), who would disclose as much as the documents as reasonably possible
without being injurious to national security.
Pritchard v Ontario (Human Rights Commission) (Privilege is an EXCEPTION to the disclosure
requirement):
FACTS: P was employed, harassed in work place, complained to Human Rights Commission, Commission
didnt process complaint. P wanted to challenge decision, and argued that P was entitled to all documentation
Commission possessed, including in house counsels legal opinion.
ISSUE: Whether the duty of fairness could compel production of a legal opinion.
HELD The privilege, if established, is considerably broad and all-encompassing. The privilege is jealously
guarded and should only be set aside in the most unusual circumstances.
Procedural fairness doesnt require the disclosure of privileged legal opinion. Procedural fairness is required
both in the trial process and in the admin law context; in neither area, does it affect solicitor client privilege.
Legislation, which can oust the privilege b/c the privilege is a common law doctrine, will be interpreted
restrictively. Solicitor-client privilege cannot be abrogated by inference.
Markwart:
FACTS: Appellants owner of apartment building. Building inspected and failed tests, and was ordered to be
demolished. Appellants appealed the order pursuant to the Cities Act.
ISSUE: Disclosure of report which was the basis of Councils decision

16

HELD Although appellants aware of issues given in meetings, it doesnt follow that they knew the case they
had to meet. They ought to have received a copy of the report on which the Council based its decision. The
appellants could not properly respond w/out knowing how the case was presented to Council by
inspector (i.e. the report may/may not have been represented in the meetings). Court held they ought to have
had disclosure [Note: what is the difference b/w this case and those in which there were opportunities to have
discussion which constituted sufficient grounds for knowing the case to meet?]
CPR v Vancouver (Where relevance of documents is tenuous, then likely pre-hearing disclosure
not a requirement)
CPR claims that the City failed to disclose information to it, violating the Citys duty to treat CPR fairly. Court
said Citys disclosure met this standard (of disclosing materials prior to hearing). The statute
conferred broad planning powers on the City w/out procedural requirements, yet the City chose to
hold a public hearing, and gave CPR sufficient disclosure to allow it to participate in the process. CPR
claimed that written submissions to City Council from public were not made available to
it. Court held that these were made available through the City Clerks office. CPR complained that
the City failed to disclose documents related to an investigation by the BC Building. CPR said that this info
would have helped them make a more powerful argument that the by-law was foreclosing options which drew
public interest. Court held that the relevance of the documents were tenuous.
RIGHT TO ORAL HEARING
Audi alteram partem, or the right to hear the other side, does not impart the strict rule that there must
always be an oral hearing
When is an Oral Hearing Required? Factors to determine if an oral hearing is necessary:

Khan, Singh, and Suresh: where a serious issue as to credibility presents itself

Competing Values oral hearing with cross-exam vs. pure inquisitorial method; where

complainants trauma in sexual harassment cases of having to face harasser

Capacity of Individuals language barrier, illiteracy
Impact on Individual more serious the impact more likely to argue for an oral hearing;
complex matters may be better handled in an oral setting;
Access to Information
Nature of Matter & Kind of information that the decision will be based on if
primarily based on technical information, medical reports etc it might be better to present it in
writing. It might be harder to get this information across orally.

Baker v Canada (No presumption of oral hearing): The court rejected Bakers argument that an oral
hearing was required. Therefore and oral hearing will not always be required for procedural fairness

There is no longer even a presumption of oral hearing

She wanted to appear in person but the court determined written submissions were sufficient
in this matter she was adequately heard.

Singh et al v Minister of Employment and Immigration (Even in the face of clear statutory direction as
to how procedure is to be conducted, the decision to deny a party the right to oral hearing
where there is a Charter right at stake, in addition to their credibility being at issue, a right to
an oral hearing invariably will follow):
FACTS: 7 claimants had no opportunity to present their cases in oral hearings before either the decision maker
at first instance or the Immigration Appeal Board on appeal. The statutory scheme provided for the
possibility of an oral hearing, but only before the IAB on appeal, and only if the IAB concluded

17

that there were reasonable grounds to believe that the claimant could make a successful claim
at an oral hearing. The appellants allege that the procedural mechanisms in the Act deny them of their
rights under the Charter.
Procedural process: Senior immigration officers examines under oath Transcript sent to parties Refugee
Status Advisory Committee uses transcript and own info to decide Advise in writing Claimant has right to
lawyer.
ISSUE: Whether the procedures of the Immigration Act for adjudicating claims of persons claiming refugee
status deny claimants rights to which entitled under s 7.
ANALYSIS:
Wilson J found that this authority (to determine the probability of success under s 71) is one that Parliament
clearly conferred upon the Board and is sound. The procedures set out in s 71 were followed correctly in this
case. Thus, if the appellants are to succeed, they must succeed on the basis of Charter requirements [Note the
conventional wisdom that resort to Charter should be reserved for cases where ordinary statutory
interpretation cannot provide remedy].
Application of Charter:
(i) Section 7 requires that everyone has the right to life, liberty, and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice
(ii) Everyone encompasses everyone physically in Canada
(iii) Do the appellants fall within the scope of s. 7? Must first determine what rights appellants have under the
Act. One of these includes right not to be returned to a country where his life or freedom would be threatened.
Security of the person must encompass freedom from threat of physical punishment or suffering as well as
freedom from such punishment itself. Thus, there is a deprivation of security of person
(iv) *** Is fundamental justice denied by the procedures? Counsels agreed that at a minimum the
concept of fundamental justice includes the notion of procedural fairness. So, do the procedures set out in
the Act for the adjudication of refugee status meet this test of procedural fairness (i.e. do they provide an
adequate opportunity for a claimant to state his case and know the case he has to meet)? **Where interests
unders 7 are at stake, which are of such importance, an oral hearing will INVARIABLY be
required, particularly where credibility of the party is at issue.
Also, where credibility is at stake, as it almost always is in refugee cases, its difficult to
conceive of a situation where the claimant would not be entitled to prior discovery of the
Ministers case and an oral hearing.
DELAY
In all of these cases, there is potential for the individual complained of to suffer prejudice from his peers,
family, and colleague the longer the proceedings are delayed.
Blencoe v British Columbia (Human Rights Commission) (The framework for analysing DELAY and
specific factors):
FACTS: B, Minister, has allegations made of sexual harassment against him, and complainants filed complaint
with human rights commission. Hearing was scheduled to be held over 30 months after initial complaint
made. In meantime, B lost Cabinet position, did not stand for re-election, and suffered depression. B made
application for hearing to be stayed, claiming human rights commission had lost jurisdiction b/c of
unreasonable delay. CoA directed that proceeding be stayed. Human Rights Commission appealed.

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ANALYSIS (Majority Judgment):

Framework for Analysing Delay:
Generally, for delay to be a denial of procedural fairness, the prejudice will involvecircumstances related to
the hearing itself and, thus, will be an abuse of process(i.e. delay causes failure to bring all evidence
forward).
But delay that affects personal factors may be sufficient to be a denial of procedural fairness (i.e. to make a
full answer and defence) IF the delay is a direct cause of significant psychological harm to an extent
that brings the proceeding into disrepute (this will be unacceptable/inordinate delay).
In order to find an abuse of process, the court must find that the damage to the public interest in
the fairness of the admin 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 [really
high threshold].
***Factors for Analysing Delay (Contextual Analysis)***: Stress and stigma resulting from delay may
contribute to abuse, but in this case the delay was not inordinate. The determination of when a delay is
inordinate depends on:
1.

the purpose and nature of the proceedings

2.

which individual rights are impacted

3.

what the community thinks about it

4.

whether the respondent contributed to the delay or waived the delay (the causes of the
delay). Not based on length alone. Must look at contextual factors, including the nature of the various
rights at stake in the proceedings. The overarching issue is whether the community sense of fairness is
offended by the delay.

In present case, communication b/w parties was ongoing. Further, the delay must have caused prejudice
of such a magnitude that the publics sense of decency and fairness is affected. B and his family
suffered obvious prejudice, but such prejudice may not have resulted directly from the delay.
ANALYSIS (Dissenting Judgment In Part) (Abusive delay is wrong, whether it affects hearing
or not): Assessing unreasonable delay: Unreasonable delays must be identified within the specific
circumstances of every case: (a) not all delay is the same (b) not all administrative bodies are the same.
Three main factors to be balanced in assessing the reasonableness of admin delay:
1.

The nature of the case; how complex the factual and legal intricacies of the case are and how much
time is needed for procedural safeguards of the individuals involved

2.

The cause of the delay

3.

The impact of the delay

Application of these factors:

(1) Complexity of case low (B made sexual overtures, no direct witnesses, not much evidence); so, the inherent
time requirements were minimal, but the time taken was not minimal. Further, the Commission failed to keep
those affected by its decision up to date
(2) B was not responsible for the inefficiency of the Commission, and B even took steps to mitigate against
further delay (i.e. offered to forego the investigative stage of the complaints)
(3) Bs career finished, moved twice to make new life, depressed, stigmatized. Moreover, the delay affected the
complainants in their desire for a quick disposition
Administrative remedies available: The delay entitles B to some kind of remedy. Remedy must take into
account interests of respondent, plaintiffs and the public interest which wants basic rights enforced efficiently,
but fairly. The 3 possible remedies are: stay of proceedings, orders for an expedited hearing and costs.

19

Stay of proceedings: Heavy burden to succeed (gross abuse of process or compromise of fairness of hearing),
and it also affects the interest of the complainants who lose opportunity to have their complaints heard.
Expedited hearing: Approach of courts should change when it appears that the hearing will remain fair, in spite
of the delay and when delay has not risen to the level of shocking abuse. In this context, a more narrow remedy,
such as this one is effective. This may safeguard the rights of all affected.
Costs: Will not address the delay directly, but some of its consequences. Whenever parties are compelled to
seek judicial interventions to safeguard their rights, costs must be considered to compensate at least in part the
time, money and efforts expended.
Appropriate remedy: An order for an expedited hearing should have been remedy of choice. Also, in spite of
partial success of appeal (as stay should be lifted), B is entitled to some compensation in the form of costs
COMMENT: What did the 2 judges agree on?
(1) Having a very high threshold for proving that a stay of proceedings should be granted;
(2) Delay can be unacceptable or inordinate based on the procedural prejudices arising out of the structure of
the inquiry or based on psychological prejudices felt by the person involved in the inquiry;
(3) Factors used to determine unreasonable delay are essentially the same
I (A) v Ontario (Director, Child & Family Services) (Engage in a contextual analysis of the delay, e.g.,
purpose of delay important, and its not just about the length of delay):
FACTS: Foster parents cared for child for first 13 months after birth. They were asked to adopt, but they
refused. But then foster parents, the day before permanent placement, notified Childrens Aid that process
needed to stop. Child taken from Foster parents home. They complained to Childrens Aid (HCAS) and were
referred to external review process in Jan 04. In Feb 04, foster parents requested a Directors review of
decision to have child with them. Hearing in June 04, Foster parent called evidence that moving child would
cause harm. Director proposed assessment was needed, which was completed in October 04. HCAS called
rebuttal evidence. Hearing re-convened, then Director offered adjournment to Foster parents to consider such
evidence, but they wanted to proceed with hearing. Director found HCAS evidence persuasive and confirmed
decision to place child with adoptive parents in Dec 04. Foster parents brought application for judicial review,
alleging, inter alia, delay
ANALYSIS:
Delay b/w child taken away and decision was 1 year. Some things that caused the delay included waiting on
the psychiatrist report of the foster parents, and then a report from the adoptive parents psychologist.
Court concluded that this elapsed time seems scandalous (a 13 old child having to wait 1 year prior
to finally ending up in a home) [Remember, analysing delay is context driven. In Blencoe, there was a longer
delay, yet it wasnt deemed scandalous]
Relevant contextual factors in deciding when long is too long:
(1) Analyse Statute: In this case, indication that there is short periods of time for decisions to be made (i.e.
quick
decisions were required generally, even though the Statute was silent on this matter). Although with respect to
this matter, there was no mention of time limit.
(2) Cause of delay: Look at the causes of each delay. Here, the biggest delay was the wait for the report from
the
child psychologist

20

(3) Purpose of info?: But then you can look beyond that and ask, what was the purpose of the info on which the
delay arose? In this case, to look at the best interests of the child.
HELD Court suggests that indication that this delay was too long (Statute). As long as reasons for delay were
in accordance with purpose of the statute (which is protecting the childs best interests), procedural
unfairness wont arise.
Issues of DELAY resulted in the quashing of an administrative decision in Watson v Saskatchewan (Police
Commission):
Watson v Saskatchewan (Police Commission):
FACTS: W, while on duty, was involved in an apprehension of a person with mental problems, and was placed
on desk duty after he allegedly neglected his duty and made a false/misleading entry in an official document.
A hearing was held in Feb and March 2002. Decision was rendered against W, resulting in discipline of
reprimand, suspension and one year term of probation imposed in March 2003. W filed notice to appeal,
and received no response. A year later, W filed a Notice of Application to Quash Conviction and
Determine Appeal under the Police Act. Again, the Commission didnt respond.
Grounds of appeal: The Commission has an obligation to act fairly and reasonably to the applicant,
requiring to act without delay; The delay in this matter has been unreasonable and in violation of principles of
natural justice; The applicant has not participated in or condoned the delay; The Applicant has suffered serious
prejudice, including restrictions on the advancement of employment, he had been assigned desk duty and no
longer patrol sergeant, he has to work under the mentality that everyone knows he is under a disciplinary order,
he suffered stress disorders etc
ANALYSIS: Was there inordinate delay that caused actual prejudice of such a magnitude that the publics
sense of decency and fairness is affected and would bring the administrative process into disrepute and so
constitute an abuse of process? This must be viewed in the context of the case
Legislature has placed this matter of discipline in the jurisdiction of the Chief of Police. If a penalty is imposed,
there is a possibility of an appeal through leave, but there is no right of appeal. Through the enactment of the
Police Act and the Municipal Police Discipline Regulations, the possibility of appeal was created. This is a
matter for the Commission, the discretion of which must be exercised in accordance with principles of natural
justice [Note, maybe the judge got this wrong, given the possibility of a writ of mandamus]. The discretion
cannot be forced, but how long must W wait?
Court engaged in a clear look at all the things that can be considered, e.g., personal impact (lost money, job
duties, stigma attached); the policy changed which made what he did best practice (so what he did wasnt that
bad);
The key question is does the above constitute inordinate delay that has caused actual
prejudice of such a magnitude that the publics sense of decency and fairness is affected and
would bring the administrative process into disrepute and so constitute an abuse of process?
This must be viewed in the context of the factors in the case.
HELD In this case, there was a negative impact on personal rights, and negative impact on the public
interest over all. *Balancing the rights of public interest in having these matters finally adjudicated in
accordance with the legislative scheme/maintaining police discipline, and the rights of the individual to be dealt
with in accordance w/ principles of natural justice, the balance tips in favour of the individual. The machinery
prescribed by legislation in this case is dysfunctional.

21

OTHER PARTICIPATORY REQUIREMENTS: Counsel, Written Submissions, Requirement of

Reasons
Fairness may also demand various measures to ensure effective participation, including right
to adjournments, lawyers, interpreters, adequate time to prepare etc. The Baker factors guide
whether the particular factual circumstances require any particular procedure to allow for effective
participation.
COUNSEL
The right to counsel is usually assumed or provided by statute. But, there is no presumption in favour of a right
to counsel:
1.

Costs if one party wants counsel, then everyone deserves it

Length of Proceedings/efficiency concerns: Makes the proceedings more complex and

adversarial
Markwart v Prince Albert (City) (The City should have adjourned the matter for a reasonable
period of time in order for appellant to get counsel, given the serious potential for injury):
FACTS: Appellants owner of apartment building. Building inspected and failed tests, and was ordered to be
demolished. Appellants appealed the order pursuant to the Cities Act. On the day of the appeal, applicants filed
letter requesting adjournment b/c their legal counsel was unable to attend. Council passed resolutions which
denied the appeal. Appellants applied to Queens Bench Chambers for relief. The appeal was denied. They now
appeal their order for dismissing their application for judicial review and order dismissing appeal.
ANALYSIS:
(1) Baker factors: Importance of decision focussed on here. The City proposing to demolish building owned
by appellants is tantamount to expropriation w/out compensation. These circumstances require STRICT
compliance w/ rules and duty of fairness.
(2) Failure to provide reasons: City conceded that duty of fairness required consisted, in part, of duty to
provide reasons for denying the appeal. The memorandum of the inspector was obtained by the appellants
which is sufficient to comply with duty to provide reasons (see Baker where notes of immigration officer were
sufficient)
(3) Denial of request for adjournment, due to lack of counsel: Appellants were given an opportunity
to be heard, but was the case presented in the best light (i.e. could Counsel have helped argue the case better)?
First, the events took place in a short period of time with short notice (given seriousness of matter). The City
could have adjourned the matter for a reasonable period of time in order to wait for counsel. The Council gave
no reasons to justify its denial. Thus, the effect was to deny the appellants a fair opportunity to present their
case
Decision to grant refusal is discretionary, but serious potential for injury is relevant
consideration.
Ha v Canada (Minister of Citizenship and Immigration) (Complexity of factors, such as lots of legal
issues, suggests right to counsel; also, see application ofBaker factors):
FACTS: Three sisters, citizens of Cambodia, applied to settle in Canada has Convention refugees seeking
resettlement (CRSRs). Applications denied, and following judicial review, were sent back for re-determination.
Their lawyer requested to be present at 2 interview. Visa officer, citing policy memorandum, denied request.
nd

Applicants applied for judicial review, claiming that the decision to exclude their lawyer breached procedural
fairness.
ANALYSIS:

22

(i) Duty of fairness is context dependent; the content of the duty must be determined on the individual facts of
the case. Court cites authority saying that when a duty of fairness may require a lawyer to be present, noting
Decision makers who deny representation to counsel in circumstances which the court later rules are
sufficiently complex so as to require counsel, or in which there is a sufficiently difficult question of law that
prevents party from adequately presenting case, will be reviewable by natural justice
(ii) Content of the duty:
1.

Nature of decision: Visa officer must determine whether the applicants meet the legal requirements
set out in the Act and Regulations, which does not involve considerable discration. Second, the decision
also has big legal element and legal question. During the interview, the officer asked questions of a legal
character (the interview was more than about established facts, it also involved consideration of legal
issues). These factors lean toward the right to counsel. In the past, in addressing right to counsel issue,
courts primarily considered whether questions were of legal or complex nature (see Laroche and
Beirsdorfer). Further, by not being present, the counsel will be unable to address important issues in his
written submissions. Third, the appellants interview cannot be classified as taking place at a preliminary
stage in the process and, therefore, the Dehghani v Canada decision that the principles of fundamental
justice did not include the right to counsel at such a stage is distinguishable (i.e. Dehghani was later
entitled to a full inquiry at which counsel could be present).

2.

Nature of Statutory Scheme: First, there is no right of appeal from the Officers decision (simply b/c
applicants can reapply for visa should not lower content of duty b/c of higher scrutiny of further
applications). Second, simply b/c officers not obliged to interview all applicants doesnt diminish the
procedural protections that they owe to those they do interview (once they interview, they must do so in
accordance w/ duty of fairness).

3.

Importance of decision: Visa officers decision is of great significant, given application for permanent
residence. The stability of the applicants in their home was not clear.

4.

Legitimate expectations: Visa officer wrote to counsel stating that counsel are never allowed at
interviews. This is inaccurate statement of law, as visa officers must determine cases based on their facts.
Thus, as a result of a general statement that counsel cannot attend interviews, the appellants may have
assumed that it would be futile to attempt to ask the visa officer to reconsider his decision.

5.

The choice of procedure made by the agency: The Court must guard against imposing a level of
procedural formality that would unduly encumber efficient administration. But in this case, counsel are
only asking that counsel observe proceedings. This would not unduly encumber efficient administration.

HELD Applicants should have been allowed counsel present. Thus, the case must be sent back to a different
visa officer to hold another interview and reconsider the applicants cases.
Comment: This decision highlights three issues disclosure (ability of counsel to be at interview to note the
relevant points the admin body will use against her or his client); right of counsel in admin proceedings and the
application of Baker factors.
REMEDY: Because the appellants were denied their right to procedural fairness during the interview, the
case must be sent back to a different visa officer to hold another interview and reconsider the appellants case.
RIGHT TO MAKE SUBMISSIONS
Essential purpose of the right to be heard is to put your own info to the admin body (note, however, that it is
likely that if there is loads of info you want to submit, only the clearly relevant material could be expected to
be taken)
Edmonton Police Assn v Edmonton (City) (Right to take into account written submissions):

23

FACTS: Appellant diagnosed w/ anxiety disorder. He received benefits from the City pursuant to a collective
agreement. A majority of a medical review panel cut off benefits. Judicial review denied. He appealed on
ground that he was denied procedural fairness before the panel. Main complaint was that his written
submissions were not placed before or considered by the panel.
ANALYSIS:
Berger J.A.:
The Constable was entitled to a high standard of procedural fairness: the panels decision is final and
binding, and its role is adjudicative; the decision clearly impacts on the members welfare and livelihood
On judicial review, and re: procedural fairness, Court is to determine the SCOPE of tribunals duty and see
whether tribunal adhered to it. So, this is where you look at Baker:
1.

Nature of Decision and decision making process employed: final decision; role is adjudicative

2.

Nature of stat scheme: its a final decision

3.

Importance of decision to individual affected: Decision that directly impacts the members livelihood

4.

Legitimate expectations of party challenging the decision: anticipation of high standard of fairness

5.

Nature of deference accorded the body: Didnt go into detail

The right to be heard requires a tribunal to give a fair opportunity to those who are parties in
the controversy for correcting or contradicting any relevant statement prejudicial to their
views. The appellant provided documents to the Director of Disability Management for the City to be put
before the panel. That didnt happen, and the appellant was not told that the panel didnt receive this info. The
panel may have taken different steps had they been aware of the document
Slatter J.A. (concurring):
If there is no substantial wrong or miscarriage of justice from the procedural error, the error would likely be
a technical irregularity, meaning that the decision isnt necessarily void.
REMEDY: Appeal allowed. The medical review panels decision is quashed and the matter remitted to a
newly constituted medical review panel for consideration
DUTY TO PROVIDE REASONS
Why would party want reasons part and parcel to the duty of fairness?
(1) Fair and transparent decision making
(2) Reduces the chance of arbitrary or capricious decisions and
(3) Cultivates the confidence of citizens in public officials (Congregation des temoins)
(4) If you dont know why a decision maker decided, then it will be difficult to appeal decision
In certain circumstances the duty of procedural fairness will require the provision of a written explanation
for a decision. The strong arguments demonstrating the advantages of written reasons, like:

where the decision has important significance for the individual,

when there is a statutory right of appeal,

any other significant circumstances that call for reasons (Baker)

Congregation des temoins de Jehovah de St-Jerome-Lafontaine v Lafontaine (Requirement of reasons):

FACTS: The Congregation requested a zoning variance from the Municipality on 3 occasions. First one, they
denied, and gave reasons. The problem lies within the response to the 2 and 3 applications (see bellow).
nd

ANALYSIS:

24

rd

 Whether the Municipality of the village of Lafontaine lawfully denied an application for rezoning to permit
the Congregation to build a place of worship; specifically, does the duty of fairness require the Municipality to
give the Congregation reasons for refusing the rezoning the application? Baker analysis follows.
(1) Nature of the decision: Decision is made by an elected council accountable to its constituents. The
Municipality must act in the public interest. What is in the public interest is in the discretion of the
Municipality. Provided they act honestly and w/in the limits of statutory powers, the court should not
interfere. But the Municipality cannot deny an application in an arbitrary way.
(2) Statutory Scheme and its Provisions: In this case, the Act respecting Land Use and Planning
Development grants Municipality authority to consider rezoning applications. *The absence of an appeal
provision demands greater protections.
(3) Importance of Decision on Interested Party: *The stringency of procedural protections is directly
proportional to the importance of the decision. Here, the decision affects the Congregations practice of its
religion, which is of primary importance and protected under the Charter.
(4) Legitimate Expectations of the Interested Party: Where prior conduct creates for the claimant a
legitimate expectation that certain procedures will be followed as a matter of course, fairness may require
consistency. *Here, Municipality followed an involved process in responding to the Congregations first
rezoning application, in doing so giving rise to Congregations legitimate expectation that future applications
would be carefully considered.
(5) The Nature of Defence Due to the Decision Maker: Municipal decisions on rezoning fall w/in the
sphere where Municipalities have expertise beyond the judiciary. But this doesnt carry much weight where
there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the
applications.
2 Zoning Application: Congregation applied for rezoning a new lot. Municipality denied request
nd

summarily, without giving reasons. They noted that there were P-3 lots available, but didnt direct C to them.
Had C merely reapplied for the first lot, reasons may not have been expected. The findings of the first study
that analysed the impact of rezoning on the first lot werent applicable to the 2 lot (i.e. tax impact). New
nd

evaluation was required, together with an explanation.

3 Zoning Application: This request related to the same lot subject of second request. C provided letters
rd

with its fruitless attempt to find P-3 zoning. M denied application again, offering no reasons. This time didnt
even tell that P-3 land was available. *M argued that since Legislature conferred discretion upon it, it was not
required to offer any justification for refusing application.
HELD M breached the duty of procedural fairness it owed to C a duty heighted by the
expectations established by the Municipalities own conduct and the importance of the
decision. M acted in a manner that was arbitrary. Cs applications were in good faith on the advice
received from the municipal inspector following the first application. C offered evidence of goof faith
searches for P-3 land evidence M didnt bother to comment on.
REMEDIES
1.

25

If X successfully challenges the decision on procedural fairness grounds, first must question

whether the challenge was on appeal or through judicial review

E.g. where appellant was denied procedural fairness due to lack of counsel, the case was sent

back to a different decision maker to hold another interview and reconsider the appellants case (Ha)
Certiorari (on JR)

Allow appeal (if statutory right of appeal) and set aside, for example, the resolutions made and

remit the matter back to the board (E.g. Markwart)

Costs (party to party or solicitor client)

PROCEDURAL FAIRNESS:
BIAS, IMPARTIALITY AND INDEPENDENCE
Five types of bias:
(1) The decision maker has a financial interest in the outcome;
(2) The decision maker has a personal relationship with one or more of the parties (e.g. being affiliated with
one of the parties associations of family, friends or professional connection)
(3) The decision maker has previous knowledge of or involvement in the matter to be decided;
(4) The words or actions of the decision maker suggest a prejudice or partiality (ACTUAL BIAS)
(5) The institutional arrangements prevent an impartial rendering of decisions
Remedies:
Bias or lack of independence will result in the quashing of the decision and remitting it back to a different
decision maker (who is equally qualified)
IMPARTIALITY AND BIAS
People when making decisions are influenced by all kinds of things and experiences in their life. There are
only certain things about which we are worried which might affect their impartiality.
Actual Bias
Newfoundland Telephone Co. v Newfoundland (Spectrum of neutrality; Test for reasonable
apprehension of bias; Pre hearing vs At hearing/Post hearing bias):
FACTS: Public Utilities Act gives the Board the power to regulate NTC. The commissioners of the board are
appointed by the Lieutenant Governor in Council. The Statute says that commissioners cannot be employed by,
or have any interest in, a public utility. Andy Wells was appointed as commissioner to the board. Earlier, Wells
had acted as an advocate for consumers rights, and admitted that he wanted to play an adversarial role on the
board champion consumer rights.
The board commissioned an accounting firm to provide cost analysis of NTC, and in light of report of the Board,
and decided to hold a public hearing. Prior to hearing, Wells had described the pay/benefits of NTCs
executives as ludicrous/unconscionable.
The Boards decision on August 3 (i) disallowed the cost of the enhanced pension plan for certain senior
executive officers and (ii) directed the appellant to refund its customers in the former operating territory sums
which were charged as expenses to the appellants operating account to cover the cost of the enhanced pension
plan (iii) and made no order re: individual executive salaries. Wells and two others constituted the majority.
CoA found that there was a reasonable apprehension of bias (based on the statements made), but they looked to
the actual result of the decision (and said that it wasnt biased).
ANALYSIS:
(1) Spectrum of Neutrality:
There are a diversity of boards. Those that are adjudicative will be expected to comply with standard
applicable to courts (i.e. there should be no reasonable apprehension of bias). At the other side, there
are boards with popularly elected members (with those boards, the standard will be more lenient).

26

The Board has been given supervision of the provincial public utilities. The Board, when it believes any charges
or expenses of utility are unreasonable, may on its own whim investigate. And when determining whether any
rate or charges is unreasonable, the board will assess the charges in economic terms. In these
circumstances, the board is dealing with policy issues, not legal questions (and so, will come
closer to legislative decisions rather than adjudicative).
Spectrum of Neutrality
Fewer procedural protections
(More difficult to disqualify decision

More procedural
(Impartiality requirement more like Courts)

Maker bias)
<>

function is policy laden

primary function adjudicative

political dimension

apply legal test to resolve dispute

elected decision maker

statute points to greater impartiality

important to have diversity of viewpoints

investigative

statute suggests diversity of decision maker

note: policy will often include broad range of interests

; Polycentric considerations, and not just 2 sides

(2) Test for reasonable apprehension of bias: Would a reasonable, informed person, viewing the matter
realistically and practically and having thought the matter through, concluded that it is more likely than not
that the decision maker (consciously or unconsciously) will not decide fairly [so, reasonable person test].
(3) Pre-hearing Statements: A WIDE licence must be given to board members in the investigative stage to
make public comment. At the investigatory stage, statements manifesting a mind so closed as to make
submissions futile would not constitute a basis for raising an issue of apprehended bias.
(4) Once the Hearing Date is Set; At the Hearing; After the Hearing: At these points, the parties were
entitled to expect the conduct of the commissioners would be such that it would not raise a
reasonable apprehension of bias. Although the standard for a commissioner sitting in a hearing need not
be as strict as a judge at a trial, procedural fairness must be maintained. The statements made by Wells during
and after the hearing lead to the conclusion that a reasonable person apprised of the situation would have an
apprehension of bias. Wells demonstrated he had a closed mind on the subject. It follows that the
hearing proceeded unfairly and was invalid.
International Woodworkers of America v Consolidated Bathurst Packaging (Impartiality in relation to
being influenced by others who have not heard the evidence does the full board meeting
create an improper influence?):
FACTS: The Labour Board heard matters in a panel of three. An issue arose as to whether the parties were
acting in good faith (a key issue that labour relations deal with). The parties brought up issue of whether a
previous precedent should be relied on. To discuss the issue, the panel decided to convene a full board meeting
to discuss the issue. Complainant raises issue of impartiality.
ANALYSIS:
Two potential problems w/ having a full board:
(1) Argument that principle person who judges should be the one that heard the evidence is breached; influence
is improper;

27

(2) If there is new arguments that the new panel brings up, then either parties might not be able to respond
(linkage of right to be heard).
Issue: does the full board meeting create an improper influence (i.e. impartiality concern)?
In response, court looked at the following:
(1) Advantages/Disadvantages of having a full board meeting:
Advantages: (a) Benefiting from acquired experience of all members, chairman, vicechairmen
etc; (b) Different panels will decide similar issues in a different manner (and the outcomes of disputes
shouldnt depend on the identity of the panel), so outcome of consistency; (c) policy requires change, and this
forum gives opportunity to change policy;(d) more likely to have early resolution if there is
consistency; (e) extension of normal acceptable research process; Disadvantages: (a) Evidence and ideas
can be obtained from people other than parties; (b) Reduction of decision makers responsibility (here, its not a
broad public consultation, so you probably dont have the same wacko concern throwing out stuff that really
isnt material);
(2) As a general rule, all the members who will actually participate in the decision must have heard all the
evidence as well as the arguments presented by the parties (except where legislation states otherwise)
(3) Look at what are the institutional constraints on the tribunal, if any (e.g. this board heard so many cases per
year). A full board hearing was deemed a practical impossibility.
(4) Definition of judicial independence: complete liberty to decide a given case according to ones conscious
on the basis of laws and evidence w/out interference of other persons (this is the higher water mark of judicial
independence)
(5) Even though complainant says that full board meeting would violate that definition (possibility of
persuasion), Court disagrees, citing:
(a) Procedural safeguards: No vote requirement; attendance was voluntary/wasnt taken down/no minutes
were taken
(no official document); didnt challenge the facts; SCC agrees w/ Chairman. Full board meeting wasnt
improper.
(b) Its ok to decide policy issues, if its the panel thats still deciding the final matter, and there is no message
that the
will of the majority will prevail. The relevant issue is not whether the practice of holding f.b. meetings can
cause
members to change their minds, but whether this practice impinges on the ability of members to decide
according to
their own opinion.
(c) So long as no new evidence is introduced w/out the presence of the parties
Comment: This gives a look at how to analyse impartiality. We dont apply a strict test such as that in Baker,
and its more of a broad level, principal based analysis.
Financial Bias and Impartiality
Canadian Pacific Ltd v Matsqui Indian Band
CP alleges existence of financial bias as band members on appeal board have a financial interest in the matter.
But Court said: (i) this is a community interest, not an individual interest and (ii) you need more than mere

28

speculation to have a finding of bias in this case, CP hadnt even gone through the process, yet CP was
claiming this bias. Financial bias: has to be a personal and distinct financial interest distinct to
the decision maker. If there is financial bias, it will likely be fatal to the decision,unless statute
authorizes financial interest.
Institutional Bias and Impartiality

EX: Two stages of hearing process; stage one formal hearing and decision making process,

then if applicant is not satisfied then they go to stage two, they appeal to another group for re

consideration. If it includes members of the previous committee on appeal, this may be a bias issue
EX: If same people carry out more than one function (i.e. investigate, make decision about

prosecution and then sit on hearing may lead to bias);

EX: If staff lawyer advices each stage, then its might be institutional bias);
EX: Internal consultations a person who makes decision should make decision based on

info theyve heard. If there is consultation, that may give rise to institutional bias.
Moore v New Brunswick Real Estate Assn:
FACTS: M was a licensed real estate agent who was charged w/ professional misconduct for failing to submit
an offer to purchase to his client. A complaint was made, and the matter was brought before the Real Estate
Associations Discipline Committee. At the discipline hearing the chair of the committee suggested that they
should deal with the penalty issue AT the hearing in case the committee found the defendant guilty. Ms
counsel initially objected but eventually agreed to proceed w/ the issue. M found guilty.
ANALYSIS:
(1) Institutional Bias Test: Its about how the tribunal operates as opposed to the identity of one of the
decision makers. The TEST is: would a well-informed person, viewing the matter realistically and
practically, and having thought the matter through, have a reasonable apprehension of bias in
a substantial number of cases?
(2) Allegation of Bias (Here): Having the penalty hearing within the guilt finding process may not give accused
notice on what they are making submissions about (i.e. of the 5 offences charged, which one are they making
the submissions on?); also, when they are making submissions about penalty, they may be
interpreted as admitting to guilt**
(3) No Institutional Bias Found: Court looked at these factors:
(a) Not contrary to the legislation (ie. nothing in the legislation requiring two hearings);
(b) Administrative realities (costs); e.g., every real estate needs to be called in for a hearing, so we cant separate
the
two hearing issues to two days
(c) Importance of our interest affected (what are the penalties?), e.g., M was fined and had to pay $ 2000; its
not the
end of his career
(d) This is fairly common practice w/ Boards

29

(e) Can argue in the alternative, so people can avoid some of the bias;
(f) Court looked at two BC cases, noting that in those cases, the types of allegations pursued before
securities
regulator, and the consequences of a finding of professional misconduct have the air of quasicriminal
proceedings, then a separate hearing may be needed.
INDEPENDENCE AND BIAS
Overarching question is, again, whether a reasonable apprehension of bias exists because of
the alleged inadequacy of independence
Independence refers to a tribunals ability to decide matters without improper interference.
First, assess the enabling statute:

Role of statutes in this is critical. The rest of common law duty of procedural entitlement.

Common law rules of independence and bias can be overruled by statute unless you have a Charter
argument. A statute can authorize a person explicitly or by necessary implication to
carry out his decisions with bias and even without non-independence (Ocean Port)
Second, determine the level of independence required (See Bell independence spectrum),
Third, analyze whether the three Valente principles can pass the threshold ofindependence (security of
tenure, financial security, and administrative control): ask, would a reasonable, informed person,
viewing the matter realistically and practically and having thought the matter through, concluded that it is
more likely than not that the decision maker (consciously or unconsciously) will not decide fairly
(Newfoundland Telephone)?
Bell Canada v Canadian Telephone Employees Association (Definitions of impartiality/independence;
Factors associated with determining levels of impartiality and independence):
FACTS: The Tribunal was responsible for responding to allegation of discrimination in wages by Bell. Bell
thought that the arrangement between the Tribunal and the overseeing Commission violated principles of
impartiality and independence. The Commission had the power to issue guidelines setting out the extent and
manner in which any provision of the Act applies. Specifically, the allegation of bias was twofold: (1) Guidelines
fetter tribunal and leads to bias (impartiality/neautrality issue); and (2) they say tribunals
chairpersons power to extend tenure of decision maker is discretionary which affects independence and
impartiality.
ISSUES:
(1) Distinction b/w Independence and Impartiality: Both are components of the rule against bias (nemo debet
esse judex in propria sua causa). Tests for both require us to ask: What would an informed person, viewing
the patter realistically and practically, and having thought the matter through conclude? But the requirements
arent identical.
1.

Impartiality refers to a state of mind or attitude in relation to the issues and the parties, and
connotes absence of bias (i.e. whether or not decision maker has the ability to decide fairly based on proper
considerations). Determining the level of impartiality, we look at: (i) the function of the decision maker (i.e
adjudicative? Policy making?); (ii) The provisions of the enabling statute; (iii) the purpose of the statute
(e.g. here, it was eliminating discrimination in society). These factors determine the spectrum of required
for impartiality.

1.

Independence connotes not merely a state of mind or attitude, but a status or relationship to others
that rests on objective conditions (its about the structure, e.g., is there adequate independence from the

30

government?). In determining the degree of independence required (i.e. degree of separation from
executive), look at: (i) The function of the tribunal (e.g., some tribunals have primary purpose to develop
government policies and may require little procedural protection, and others are more adjudicative
requiring higher level of independence) (note, we look at all of the functions of the tribunal, which may be
at varying ends of the spectrum, and balance them); (ii) The statute involved and (iii) what are the interests
involved
E.g., The main function of the Canadian Human Rights Tribunal is adjudicative. Also, consider the interests
that
are affected by proceedings before the Tribunal. Both factors suggest a high degree of independence. There is
nothing in the legislation to suggest that anything but a high degree of independence is required (e.g. a
Chairperson is removable only for cause; fixed terms etc).
Spectrum of Independence
Fewer procedural Protection
(Less structural separation from

More Procedural Protections

(More court-like, more

separation
Executive)

from executive)

Part time appointments

Longer, fixed appointments

Appointed at pleasure of

Full time appointments

Minister or executive

Process for determining

workload
Remuneration may be discretionary

Remuneration guarantees

Bells Challenges to the Tribunal

(1) The Guideline Power: Bell alleges that the Commissions power to issue binding guidelines regarding
proper interpretation of the Act undermines the Tribunals impartiality by raising a reasonable apprehension of
bias (in Bells words, that it usurps the power of the Tribunal to make its own decisions concerning the
interpretation and application of the Act):
(a) Guideline Power fetters the Tribunal in its application of the Act: Bells argument assumes that the sole
mandate of the Tribunal is to apply the Act, and not also to apply an other forms of law that the legislature has
deemed relevant such as guidelines. Court says guidelines are like legislation and therefore valid
considerations. A functional and purposive approach of the nature of the guidelines reveals that they are a form
of law (akin to regulations). Their argument also conflates impartiality w/ a complete freedom to decide a case
in any manner one wishes.

31

(b) Tribunal is more likely to favour the Commission during a hearing b/c of guidelines: When the
Commission appears before the Tribunal, it is in no different a position from any representative of government
who appears before a court, and in that context, there is no argument for lack of impartiality in that context.
(c) Parliament has placed in the same body the function of formulating guidelines, investigating complaints,
and acting as a prosecutor before the Tribunal (Institutional Bias): Court responds while in some cases it
may, it doesnt in this case: (1) This overlapping of functions in a single administrative agency is not unusual
and doesnt on its own give rise to bias; (2) The legislature clearly intended the overlap and when there isclear
legislative intent, this limits the court to read in bias, unless there is a violation of Charter;
(3) Benefit of overlap = guideline power may have been way of ensuring the Act would have been interpreted in
a way that was sensitive to the needs of the public/country, and thus, that it would be interpreted by the
Tribunal in a manner that furthered the aims of the Act as a whole (thus, PURPOSIVE reasons why there is an
overlap)
(d) Placing the guideline power and prosecutorial function in a single agency allows the Commission to
manipulate the outcome of a hearing: Problem w/ argument: (1) Bell didnt provide any evidence of this
practice; (2) Since the guidelines that apply to Bell were introduced years before the complaints arose, it is
difficult to see how they could have been formulated w/ the aim of unduly influencing the Tribunal against Bell;
(3) The guideline power cannot be used retrospectively
(2) The Chairpersons Power to Extend Appointments: Bell challenges the Chairpersons power to
extend appointments of Tribunal members in ongoing inquiries, saying that it threatens members impartiality
(e.g. members may feel pressure to adopt the views of the Chairperson in order to remain on a panel beyond the
expiry of their appointment). Court says that there is an obvious need for flexibility in allowing members of the
Tribunal to continue beyond the expiry of their tenure, in light of the potential length of hearings and the
difficulty of enlisting a new member of a panel in middle of lengthy hearing. It would not be practicable to
suggest that members simply retire upon expiry of their appointment
The independence of the judiciary is a firmly entrenched concept. An issue in the following case is whether
there should be a parallel requirement for admin tribunals:
Canadian Pacific Ltd v Matsqui Indian Band (Requirements for independence listed, e.g. security of
tenure, security of remuneration and administrative control):
FACTS: M is a first nation band, and in 1988 they were given power to assess and collect property taxes. One
of the first parts of assessment is to determine what land falls in assessment and what doesnt. CP argued they
dont have jurisdiction to put them on assessment.
They point to a lack of certainty of tenure of tribunal members and the uncertainty as to whether they will
receive remuneration and that the members of the Band determine the tax liabilities of the people who appoint
them (independence question)
ANALYSIS:
Independence of Tribunal Members:
Respondents alleged that a reasonable apprehension of bias exists b/c tribunal members may not be paid,
lack of security of tenure and are appointed by the ban chiefs and councils.
In Valente, the court pointed to 3 factors which must be satisfied in order for independence to be established
(in context of s 11(d) where person charged w/ offence):security of tenure, security of remuneration
and administrative control:

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(a) Security of Tenure: The pay one makes shouldnt be based on the decision one makes. What are we
looking at: is it an appointment at pleasure (if high degree of independence needed, must be a fixed term the
high water mark is fixed term for length); who looks at whether someone has been dismissed w/ cause (is it a
judge, minister etc);
(b) Security of Remuneration (Financial security): The right 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.
(c) Administrative Control: If administrative decision maker makes a decision, they shouldnt be stripped
of administrative power. What are the guarantees of administrative support to hire staff, are there
guarantees of resources they have; if they need to higher staff, do they need to go to a minster?
Note that the REQUIREMENTS of institutional independence (i.e security of tenure, financial
security and administrative control) will depend on the LEVEL of independence (see Bell
Canada case above): THE GREATER THE LEVEL OF INDEPENDENCE REQUIRED, THE MORE
STRICTLY THESE CRITERIA MUST BE ABIDED BY. And note that when analysing, look at
STATUTE FIRST.
Independence Concern
It is alleged that a reasonable apprehension existed because tribunal members may not be paid, lack security
of tenure and are appointed by the band chiefs and councils, there is nothing stopping arbitrary dismissal midterm:
(i) There is nothing preventing band chiefs and councils from paying members onlyAFTER they have reached
a decision in a particular case, or stopping them from not paying at all (this could lead to members being refused members who reached conclusions contrary to interests of band)
(ii) Chiefs and band councils select members of their tribunals, in addition to controlling their remuneration
and tenure, which suggests a dependency relationship b/w the tribunal and band;
(iii) While members of the appeal tribunals are required to take an oath of office that they will be impartial, the
fact that an oath is taken cannot act as a substitute for financial security or security of tenure.
HELD Based on a flexible application of the Valente principles (b/c of the issue is merely
taxation), a reasonable and right minded person, viewing the whole procedure in the assessment
by laws, would have a reasonable apprehension that members of the appeal tribunals are not
sufficiently independent. Three main factors are:
(1) Complete absence of financial security
(2) Security of tenure is either completely absent or ambiguous
(3) The Tribunals are being asked to adjudicate a dispute pitting the interests of the bands against outside
interests
IT IS THESE FACTORS IN COMBINATION which lead to conclusion of bias not each on their
own.
Ocean Port Hotel v British Columbia (General Manager, Liquor Control and Licensing)(When Statute is
silent or ambiguous, can assume intention of independence. But if legislation shows intention

33

to allow lack of independence, and intention is CLEAR, courts cannot interfere with it, unless
there is a valid constitutional restraint)
FACTS: Liquor licence violations occurred. OP claimed that appeal panel didnt have requisite amount of
independence. CoA held that panel adjudicated claims and imposed penalties so required high degree of
independence. CoA concluded that at pleasure appointments to administrative agencies which impose
sanctions for violations of statutes cannot satisfy security of tenure. Thus, the board lacked necessary degree of
independence
ISSUE: Whether members of the Liquor Appeal Board are sufficiently independent to render decisions on
violations of the Act and impose penalties it provides.
ANALYSIS:
(1) Absent constitutional constraints, the degree of independence required of a particular government decision
maker is determined by its enabling statute. Confronted w/ silent or ambiguous legislation, courts infer that
Parliament intended the tribunals process to comport w/ principles of natural justice. Must defer to the
legislators intention in assessing the degree of independence required. Legislation allowed
service at pleasure (no security of tenure) and part time positions. B/c the intention is clear,
there is no room for importing common law doctrines of independence.
(2) Administrative tribunals dont have the same level of independence of executive as courts
(3) When legislation is silent or ambiguous, courts will infer that legislators intended the tribunal to be as
independent and impartial as required by principles of natural justice [*Note, there is room to argue whether
the statute is ambiguous/clear]
(4) Qualification: If there are any relevant constitutional constraints, the enabling statute can be attacked
even if its intentions are clear.
(5) Constitutional law arguments (which the Court rejected): (1) Judicial independence is at root an unwritten
constitutional principle recognized and affirmed by the preamble to the Constitution Act 1867 (2)
Constitutional guarantee of independence extends as a matter of principle to administrative tribunals, given the
preambles reference to a constitution similar in principle to that of the UK
(6) Application: The statute specifically said members will hold office at pleasure and part time positions,
and therefore overrides common law security of tenure arguments.
COMMENT: Re: constitutional attacks on clear legislative provisions, it is possible to also raise s 7 arguments
when the circumstances are appropriate (i.e. Suresh). What about s 11(d) (i.e. right to a fair and public hearing
by an independent and impartial tribunal)? Elle v Alberta says it only applies to criminal offences; Reference re
Remuneration of Judges of the Provincial Court of PEI says that 11(d) is limited to offences, and likely only
applies to criminal offences.
SUBSTANTIVE JUDICIAL REVIEW AND STANDARD OF REVIEW ANALYSIS
Crevier v A.G. (Quebec) et al (Constitutional duty of court to ensure that public authorities do not
overreach their lawful powers enabled by statute):
FACTS: Tribunal set up to supervise all self-governing professions. Professional tribunal to be appeal
mechanism. Challenge by C who was subject to one of these decisions, and then decided to challenge
jurisdiction to be final. Privative clause existed. Normally, courts look at clause and shows clear legislative
intent admin tribunal not subject to interference by the courts.
ANALYSIS: Why doesnt that clear privative clause prevent courts from looking at decision?
(1) Putting together this provincial tribunal whose only function was to review [.] was tantamount to a
provincial government setting up a s 96 court which, however, is the function of the federal government.

34

(2) Superior courts can always review administrative tribunal for matters related to JURISDICITON, b/c if
admin tribunal has last word on jurisdiction, then it would have completely supplanted the courts
(3) Therefore, there is a CONSTITUTIONAL REASON why there is judicial review. Courts have the inherent
function that the laws are complied with. So when it comes to an area of jurisdiction, tribunal can express an
opinion (i.e. to the tribunal first), but that decision can always be reviewed and changed by our courts, b/c
thats a question of law that the court supervises.
(4) Privative clauses indicate level of deference but in the end, that doesnt prevent the court from supervising
the jurisdiction from the admin decision maker.
Comment: Court has an indirect authority to review decisions of statutory delegate as a result of presumption
that admin decision maker has limited jurisdiction, and superior courts have inherent jurisdiction to ensure
that admin body is within its jurisdiction. When the legislature gives power to an admin tribunal, if the
legislature gives them too much of the wrong kind of power, they can start to look like superior courts and that
infringes on the entrenchment of s 96 courts
Bell v Ontario Human Rights Commission (Jurisdictional Question): Idea developed that any question can
be turned into a preliminary question (namely a jurisdictional question); and once its turned into a
jurisdictional question, tribunal only retains jurisdiction when its right
CUPE v NB Liquor Corporation (Not every question is a jurisdictional one Courts can interfere
only where the admins decision was PATENTLY UNREASONABLE and if no convincing
reasons can be put forward):
FACTS: The main controversy was the interpretation of s 102(3) of the Public Service Labour Relations Act,
which says that during a strike, employer shall not replace striking e/ees or fill their position w/ another e/ee
and no e/ee shall picket, parade or in any manner demonstrate in or near any place of business of the e/or.
Can managers fill in/hire replacement workers? Union said they cannot.
ANALYSIS:
Traditional approach was to apply a correctness std to a decision of a tribunal on what they call a
jurisdictional question. This meant that lawyers were debating over what a jurisdictional question was.
Labelling something as jurisdictional just isnt clear and its impractical
Court here said that when youre interpreting legislative provisions, there will often be more than one
reasonable answer:
(1) Privative clause in this case showed clear statutory direction that public sector labour matters be promptly
and finally decided by the Board. This ties into the special knowledge of the Board in dealing with collective
bargaining issues. The interpretation of s 102(3) logically lies at the heart of the specialized jurisdiction given
to the Board. The Board isnt required to be correct in its interpretation, and if it erred, such an
error would be protected by the privative clause.
(2) Argument was made, however, that the interpretation of s 102(3) was so unreasonable that it took the
exercise of its powers outside the protection of the privative clause. In Nipawin, court noted examples of such
error would include acting in bad faith, breaching provisions of natural justice and misinterpreting the
provisions of the Act so as to embark on an inquiry or answer a question it was not remitted to;

35

(3) Was the Boards interpretation so patently unreasonable that its construction cannot be
rationally supported by the relevant legislation and demands intervention by the court upon
review? In short, court held no.
Comment:

In this case, the statute was very badly drafted. The fact that the board could choose between
various competing interpretations means we cant really define whether it is patently unreasonable

because they did actually choose a logical interpretation of the statute.

Thus, a high level of deference must be paid to courts. Only when the interpretation
is patetently unreasonable does the court have the authority to intervene and change the tribunals
decision; Tribunal has right to be wrong about certain questions as long as there are several
reasonable interpretations. If there are no convincing reasons that can be put forward, it becomes

patently unreasonable
What did and didnt CUPE do here? A beginning of a shift (like Nicholson).

Abandoned the categorical approach to determining std of review.

More deferential approach in later cases.
Some of the same concerns articulated in new type of language. Looking at privative clause,
what was the board set up to do, what is its purpose?
We havent left the categories of jurisdiction out completely as we will see they creep
in different aspects of the analysis, but the analysis is better it seems.
UES v Bibeault (Rejects preliminary question entirely; issue is LEGISLATIVE INTENT;
Pragmatic and functional analysis/Contextual analysis):
Preliminary question phase no longer needed
Main question: Did legislature intend the question to be within the jurisdiction conferred on the tribunal?
In answering this question, engage in a pragmatic and functional analysis, and determining the level
of deference to be paid to tribunal, and look at:
(1) What are the context and purpose of the legislation in question? What are the reasons for its existence?
(2) Presence or absence of privative clauses
(3) What are the area of expertise of its members and the nature of the problem before the tribunal?
(4) What significance is to be attributed to the language in which a grant of statutory power is worded?
The above approach, as opposed to the preliminary or collateral question inquiry, offers advantages, e.g., it
focuses inquiry directly on the intent of the legislator
Role of court is guardian of jurisdiction, and standing against bad faith/natural justice it isnt to intervene
at every point. So these are the goals we are trying to meet by moving to a contextual analysis

36

Canada v Southam Inc (Creates 3 Standard = Standard of unreasonableness):

rd

FACTS: It was found that Southams ownership of three different newspaper publications substantially
lessened competition in the newspaper business. The decision maker here was interested in dismantling the
anti-competitive situation (Southam had somewhat of a monopoly in the newspaper business) and ordered
Southam to sell one of its newspaper publications. There was an appeal by Southam to the Fed Ct of Ap, and the
Fed Ct of Ap did its own analysis and wanted to send it back to the decision maker to re-assess the situation.
CoA overturns tribunal decision, saying they didnt consider expert evidence properly and substituted opinion
in part. This is appealed to SCC.
ANALYSIS:
Two issues raided: First, whether the Fed Court erred in concluding that it owed no deference to the
Tribunals finding about the dimensions of the relevant market and substituting one of its findings for its own
(standard of review); Second, whether the Fed Court erred in refusing to set aside the Tribunals remedial
order.
(1) Pragmatic and Functional Analysis: The legislative intent of statutory right of appeal is clear. The
issue is what limits an appellate court should observe in exercise of its statutorily mandated appellate function.
Appellate courts must have regard to: the nature of the problem, the applicable law properly
interpreted in light of its purpose and the expertise of the tribunal
(a) Nature of the Problem before Tribunal:
Fact? Law? Mixed law and fact?
Questions of law are questions about what the correct legal test is. Questions of fact are questions
about what actually took place b/w the parties (very specific to case). Questions of mixed law and fact are
questions about whether the facts satisfy the legal tests
The question is whether the Tribunal erred in the way the respondent says it erred, namely in law.
Iacabucci sets out tests to examine these: Questions of law are those which have precedential value in
future cases. Questions of fact is who, what, when, where and how, b/c answers to these will be useless in
future cases. Mixed fact and law are not easily distinguishable, but basically, you look at whether the facts in
this particular case satisfy a legal requirement.
In this case, Court said Tribunal was in applying the law to the facts, which is a matter of mixed
law and fact. But b/c the decision depended so fully on the facts of this case, the decision is too particular to
have any great value as a general precedent. And as the level of generality of the challenged proposition
approaches particularity, the matter approaches pure application, and becomes a question of mixed law and
fact (this suggests some deference)
(b) Purpose of the Statute and the Tribunal Administers: The aims of the Act are more economic than strictl
legal, and some of its concepts are matters which business woman and men/economists are better able to
understand than a judge. Given such expertise, it is suggested that the purpose of the act is better fulfilled by
appellate deference to the Tribunals decisions
(c) Privative clause: Absence of privative clause was important here
(d) Area of Expertise: Expertise which in this case overlaps with the purpose of the statute is the most
important to the factors the courts must consider on setting the standard of review. Here, the Tribunal
comprises 4 judicial members and 8 lay members who are learned in economics/commerce etc. Looking at the
dispute, its more about economics than law (i.e. looking at indirect evidence).
(2) The Standard of Review:

37

 Considerations which suggest deference: (i) The dispute is over a mixed law and fact; the purpose of the Act
is broadly economic, and is better served by exercise of economic judgment; application of competition law falls
squarely w/in expertise of Tribunal
Considerations which suggest a more exacting form of review: (i) Existence of unfettered statutory right of
appeal; (ii) presence of judges on the Tribunal
On balance, proper standard of review fits somewhere between the ends of the spectrum. B/c
the expertise of the Tribunal, which is most important consideration suggests deference, a posture more
deferential than exacting is warranted.
1.

Standard of Correctness

2.

Standard of Unreasonableness (simplicitor):

An unreasonable decision is on that, in the main, is not supported by any reasons that can stand up to
somewhat probing examination.
Must look to see whether any reasons support it. The defect, if noted, could be in the evidentiary foundation
(i.e. an assumption that had no basis in evidence or is contrary to overwhelming evidence) or logical process
(contradiction in premises or invalid inferences)
Pushpanathan v Canada (Minister of Citizenship and Immigration) (If human rights at issue (e.g.
deportation), then courts will owe less deference):
FACTS: P (refugee) convicted of offence. After released, P renewed his refugee claim. B/c he was convicted of
offence, a conditional deportation was ordered, the condition of which was that he must not be a Convention
Refugee. The question was whether the conviction disqualified him from having a Convention Refugee status.
ANALYSIS:
Clear statement that preliminary question is not the issue. Jurisdiction by itself no longer determines the
standard of review.
Bibeault 4 Factors in determining the proper standard of review:
1.

Presence or absence of privative Clauses: Evidence this clause shows that a court ought to show
deference to the tribunals decision, unless other factors strongly indicate the contrary. Even a full
privative clause is not determinative of the standard of review.

2.

Expertise: Most important factor; Making an evaluation of expertise has 3 dimensions: (a)
Characterize the expertise of the tribunal (look at the source of their expertise, i.e. specific knowledge,
specific procedure that is non court related, non-adversarial) (b) Consider courts expertise relatively (i.e is
this something the courts do all the time?) (c) Identify the nature of the issue in question relative to the
expertise (does the tribunals expertise relate to the issue in question)?

E.g.: (i) Human rights commissions expertise relative to courts is not greater, b/c courts deal with these issues;
(ii) Securities commissions (interpreting provisions of securities act) have greater expertise its not drawing on
legal principles, and is drawing on technical info; if its more statutory interpretation in general, than not
expertise).
1.

Purpose of Act as whole, and relevant provision in particular: Is the purpose to adjudicate
on a legal standard, or to balance on many issues; is the purpose legal, or economic (or policy related); is
the purpose to protect the public, or is it based on 2 interests: (a) Where legal principles are vague, open
textured, or involve a multi factored balancing test, then lower standard of review; basically, existence of

38

polycentricity a polycentric issue is one which involves a large number of interlocking and interacting
interests/considerations; its not within the courts realm to deal with polycentric issues; (b) Consider the
effect of the court supervising and substituting their view on the overall purpose of the act. So, what is the
purpose, and does the decision fit within this purpose?
1.

Nature of the problem (Question of law or fact?): Generally, less deferential of decisions which
are questions of pure law. But even pure questions of law may be granted wide degree of deference where
other factors suggest that such deference is in the legislative intent

HELD Board should be subjected to the correctness standard for the following reasons:
(i) The key to the legislative intention as to the standard of review is the use of the words a serious question
of general importance; the general importance of the question, that is, its applicability to numerous future
cases, warrants judicial review by court; and that review wouldnt serve any purpose if court could defer to
incorrect decisions of the Board.
(ii) No privative clause
(iii) Not a question necessarily w/in expertise of board. The court is just as qualified to answer questions
about human
rights law
Comment: The overall aim of the pragmatic and functional approach is to discernlegislative intent and
ultimately determine the degree to which deference may be given
Dr. Q v College of Physicians and Surgeons (Even if right of appeal, court must still apply pragmatic
and functional analyis, even though an appeal provision will direct strongly toward
correctness standard):
FACTS: The inquiry committee of the appellants College found that the respondent physician had taken
physical and emotional advantage of one of his female patients and was guilty of infamous conduct. In reaching
its conclusion that sexual acts had occurred, the committee stated that it accepted the patients evidence and
disbelieved that of the respondent. On an appeal under the Act the reviewing judge set aside the committees
decision disagreeing with the finding with respect to credibility. The CA dismissed the Colleges appeal as it
could not conclude that the reviewing judge had erred.
ANALYSIS:
Right of Appeal: Opposite of privative clause; Even where appeal provision exists, the need for a pragmatic
and functional analysis is necessary. While an appeal provision may direct strongly to a correctness standard,
court still needs to go through the assessment of the 4 factors.
Review and update of the 4 contextual factors (remember, as court clearly states, overall goal is to decipher
legislative intent through these factors):
(1) Statutory scheme: A statute may afford a broad right of appeal to a superior court or provide for a certified
question to be posed to the reviewing court (suggesting a more searching standard of review). Further, may
contain a privative clause, the more deference may be due.
(2) Relative expertise: Remember, relative concept; greater deference may be called for only where decision
making body is more expert than the courts and the question is one that falls within the scope of the greater
expertise. Three dimension analysis: (a) Court must characterize the expertise of the tribunal in question; (b)

39

consider its own expertise relative to the tribunal; (c) identify the nature of the specific issue before the decision
maker relative to this expertise
(3) Purpose of statute: (a) A statutory purpose that requires a tribunal to select from a range of remedial
choices or administrative responses, is concerned with the protection of the public, engages policy issues, or
involves the balancing of multiple sets of interests or considerations will demand greater deference. E.g.
provisions which require decision maker to have regard to all such circumstances as it considers relevant will
generally suggest policy-laden purposes;
(b) Courts should also consider the breadth, specialization and technical/scientific nature of the issues that are
being asked to consider;
(4) Nature of problem: Pure fact = deference; Pure law = less deference (particularly where the decision will be
one of great precedential value); Mixed fact and law = if fact intensive, more deference and if law intensive, less
deference
Comment: Court also notes difference b/w role of reviewing court and role of court of appeal; When
application for judicial review comes at first instance, then its purely administrative law principles; when
youre doing an appeal of the first instance decision, its going to be an appellate standard (question of
law/fact etc appellate standard of correctness).
Chamberlain v Surrey School District:
Facts: School Board (the administrative decision maker) passed resolution banning books which depicted
same sex parenting. Parents were outraged based on their religious beliefs. Resolution was challenged as being
outside their mandate (note that the decision was also challenged on constitutional grounds but court said b/c
administrative law principles are applicable, no need to go into that)
Issues/Points:
Majoritys Judgement
First look at standard of review analysis:
1.
2.

Privative clause: No privative clause = less deference.

Expertise: Its an elected Board balancing multiple concerns (such searching for bests interests of
different groups with different moral outlooks) and human rights aspects = some deference

3.

Purpose of the legislation: Purpose was to allow for local input on choosing supplementary classroom
materials. As a result, Board was in best position to know what types of families and children fall within its
district and what materials will best serve their needs. But, the School Acts requirement that the
discretion to approve supplementary material conform to norms of tolerance, respect for diversity, mutual
understanding and acceptance suggest little different is owed, b/c courts must exercise a fairly high level of
supervision over decisions involving tolerance and diversity.

4.

Nature of the problem: Accommodating community concerns and tolerance less deference

The 4 factors suggest a reasonableness simpliciter standard

HELD The Boards decision not to approve the proposed books depecting same sex parented familes was
unreasonable, b/c the Board failed to act in accordance w/ the School Act.
Dissent (Gonthier and Bastarache JJ) They agree w/ the standard of review, and that we get a standard
reasonableness standard. They disagree on the application. They thought the decision was reasonable.

40

Dissent (Lebel) Held that we are concerned with is whether its a legal decision or not, given that it is an
elected body who has political accountability. You wouldnt expect to see privative clause, b/c they are separate
from the Courts, so doesnt make sense of speaking of the effect of a lack of one: The insulation of the judicial
and political spheres from each other does not only protect our independent judiciary from political
interference, it also protects political bodies from excessive interference by courts. It is beyond the scope of
legitimate judicial review to apply a reasonableness standard to the actions of local policy making entities like
municipalities or school boards. So, judgment important for questioning level of deference for an elected
decision maker.
Barrie Public Utilities v CCTA:
Facts: CCTA wanted to use Utilities power poles to transmit television. Utilities disagreed, and CCTA
appealed to the CRTC to grant order. It found that the relevant statute granted it authority over the Utilities
poles (since it found that the phrase the supporting structure of a transmission line was broad enough to
include the Utilities power poles). On appeal, this authority was rejected.
Issues:
Majority judgment
Standard of Review Analysis (on a correctness standard):
(1) Presence/absence of privative clause/statutory right of appeal: Presence of a statutory right of appeal in this
case suggests a more searching standard of review
(2) Relative expertise: (a) Remember that in determining the standard of review, the focus is on the particular
provision (i.e. its purpose) being invoked/interpreted by the tribunal; In this case, the issue is the meaning of
the phrase the supporting structure of a transmission line. No technical meaning simply stat
interpretation; (b) CRTCs expertise lies in the regulation and supervision of Canadian broadcasting and
telecommunications in this case, its expertise is not required to answer this problem
(3) Purposes of the legislation and provision: No polycentric questions; its a question of proper construction of
provision
Dissenting judgment
Segmentation:
There were two questions the majority dealt with: one is constitutional and the other is a general question of
CRTCs interpretation of s 43(5).
Reasons for separating the questions (i.e. failure to separate frustrates the process of judicial review in two
ways): (1) combination may skew the standard of review for an agencys decision (it will drive towards the
correctness standard (by combining a straight statutory interpretation question which falls under their
jurisdiction to a constitutional question outside their jurisdiction, they skew the review to a more invasive
standard) (2) where a constitutional question is raised, failure to isolate the constitutional question can limit
the agencys ability to give the legislation at issue the full import intended by legislature
Constitutional question: Issue raised was whether any interpretation of s 43(5) would be ultra vires
Parliament. The pragmatic and functional approach applies to this question, like all matters of judicial review

41

of admin tribunals; and it is settled that an application of the P and F approach to a question of constitutional
law yields a correctness standard.
Standard of Review re: the Interpretation Issue: If the constitutional question which arose within the Board
is meritless, it should not serve to dictate the level of scrutiny by the court reviewing the administrative
decision.
1.

Privative clauses and Statutory Right of Appeal: No privative clause plus right of appeal suggests
deference

2.

Relative expertise: (a) The CRTC has specialized expertise and unlike Gonthier J who suggested that
all CRTC was doing was statutory interpretation, it appears more like administration of that statute; (b) In
terms of the courts expertise relative to the CRTC, the CRTC will have greater expertise for technical and
policy related matters, including the determination of legal questions, associated with the specialized
enabling statutes; (c) The provision requiring interpretation isnt merely a legal question, as it draws
heavily on the CRTCs expertise; the phrase The supporting structure of a transmission line is not a
familiar one to lawyers/judges it is a technical question best answered by the specialized agency in whose
enabling legislation it arises; the question isnt simply one of statutory interpretation

3.

Purpose of Act and the particular provision: Polycentric concerns

4.

Nature of problem: Interpretation of s 43(5) is a question of law. But even pure questions of law may
lead to deference

Appropriate standard is reasonableness

Comment: By differently dividing how questions are asked, different outcomes can arise on the standard of
review analysis.
Toronto (City) v CUPE:
Facts: Person convicted of sexual assault, dismissed from employment, and reinstated by labour arbitrator.
Issues/Points:
Lebel J
In such a case as this one, where the question at issue is so clearly a question of law that is both of central
importance to the legal system as a whole and outside the adjudicators specialized area of expertise, it is
unnecessary to employ the pragmatic and functional analysis in order to reach standard of review of
correctness.
More important concern relates to application of standards of review.
(i) Correctness standard of review: Should not subject all labour relations decisions to correctness standard
Even though this case gave rise to 2 standards of review to 2 different issues raised, this does not mean that
this approach should often be used.
Further, there is a tendency to draw a strict correlation b/w general questions of law and the correctness
standard; in some cases, tribunals may be best placed to develop a body of jurisprudence that is tailored to the
specialized context in which they operate. There is a place for the correctness standard, but it must be confined
to matters clearly outside the authority and competence of the admin decision makers.

42

(ii) Patent unreasonableness standard of review:

Because courts have described various ways of arriving at a patently unreasonable decision, the parameters of
this standard are not clear.
Interplay b/w patent unreasonableness and correctness: Is the search for patent unreasonableness a search
for legal error, or is it a more flexible inquiry into whether there is a rational basis for the decision?
Interplay between patent unreasonableness and reasonableness simpliciter in practice is untenable: Both
standards are rooted in the guiding principle that there are many acceptable solutions. The two ways they have
attempted to be distinguished is by using the notion of relative magnitude of the defect and the immediacy or
obviousness of the defect. Each approach is unsatisfactory.
The magnitude point of distinction is unsatisfactory b/c something is or is not rational (there are no
degrees). So, the idea of defects of a greater magnitude than simple irrationality is incoherent.
The obviousness of defect point is vague and unworkable; the somewhat probing test is not clear, as the
distinction b/w somewhat probing and those which are probing is a fine one.
Also, each of these ideas is inconsistent with the role of judges in upholding the rule of law (the idea of letting
unreasonable or irrational decisions stand, whether because they are not irrational enough, or because they
require some work to discover, is in conflict both with the principle of parliamentary supremacy and rule of law.
Also, if we start with whether they are right or wrong, weve turned judicial on its head. We start with
whether there are reasons to support. So from this perspective, cant have 2 standards: its either we have
reasons to support, or there are not (we cannot say that we dont have adequate reasons and continue the
analysis, as that would offend the rule of law)
Comment (Summary of Lebel J): The dual thesis of Lebel Js critique is that the modern jurisprudence on
the standards of review exhibits conceptual confusion and inspires deep methodological uncertainty, which
results in an intolerable unpredictability as to which standard will be deemed appropriate in a given case. We
want to get squarely at the inquiry into legislative intent against the backdrop of the courts constitutional duty
to protect the rule of law.
Comment (Segmentation): Clear statement that we have different standards of review. The majority held
that they must be correct on the general law issue (i.e. res judicata; whether the arbitrator is bound by the
criminal conviction); and the patent unreasonable standard applies to the issue as to whether the worker
should be reinstated. Lebel J noted that while this may be a case where segmentation is the proper approach,
there is a caution that segmentation will generally not be employed. In this case, there were 2 very separate
issues.
Levis (City) v Fraternite des Policiers de Levis Inc:
Facts: Police officer engaged in criminal conduct and question was whether he should be sanctioned by the law
governing police or by municipal law. Both Acts say different things about what should happen with the police
officers employment; one says he should be fired, and the other says no. The grievance arbitrator held that the
Police Act rendered the municipal Act inapplicable.
Bastarache J (Marority)
Compatibility of the Acts Analysis:

43

 The pragmatic and functional approach may lead to different standards of review for separate findings. This
will most frequently be the case when an arbitrator is called upon to construe legislation. Reviewing courts
must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of
review should be adopted when there are clearly defined questions that engage different concerns under the
pragmatic and functional approach.
In this case, the arbitrators interpretation of the legislation may be reviewable on a different standard than
the rest of the decision. The two statues in this case give rise to separate concerns as to whether the arbitrator
properly interpreted and applied the Police Act
For both Acts, the nature of the question and relative expertise suggest searching review is necessary.
Whether the Acts are in conflict is a pure finding of law. Further, this determination has important precedent
value.
On balance, standard of correctness applies.
Another comment on segmentation; the legislatures/parties didnt intend for this to be in arbitrators
jurisdiction, and therefore question of which legislation applies isnt part of their core function, and therefore
we should be revisiting it on a correctness standard. [But if we have a clear statement that legislatures allow
grievance to deal with the issues in a final and prompt manner, does segmentation destroy this intention?]
Interpretation and Application of Police Act analysis:
The question of whether the arbitrator correctly interpreted the Police Act was a question of mixed fact and
law.
Also, arbitrator had to decide what sanction was appropriate (which is in line with traditional function of
grievance arbitrator);
It is a decision that requires the balancing of competing interests (polycentric)
But other factors point to less deference: there is a significant legal component
Taking these factors into account suggests something less than the most deferential standard of review
(reasonableness)
Abella J (Dissent)
Disagrees on the point that different standard should have been applied
There is a danger of segmentation leads to an unduly interventionist approach. Segmentation invites parties
to frame the question in much the same way the majority did here. The effect of segmentation is that if there is
a problem at the root, then entire decision flawed; this begins to look like a preliminary or collateral matter.
Legal issues ought not be declared as separate when they are intertwined with the decision makers expertise.
In such circumstances, the decision ought to be reviewed as a whole. This integrated approach is reinforced by
the idea that not every element of the reasoning must independently pass a test for reasonableness (as there are
more than one way in which the decision may be reasonable).

44

Council of Canadians with Disabilities v VIA Rail Canada:

Facts: VIA Rail was outfitting its trains in order to meet wheel chair accessibility requirements. The Canadian
Transportation Agency was responsible for determining whether there was an undue obstacle to the mobility of
persons with disabilities. Where such obstacles are found to exist, the Agency is responsible for determining
corrective measures. Contrary to Agencys directions, VIA made modifications to its new cars, and would not
provide cost estimates to the Agency. The Agency ultimately ordered that 30 of its trains be altered.
Majority
Segmentation:
A way to attack the invasive way of a deciding is to question whether it has the effect of removing things away
from admin which they have expertise. In this case, segmentation has an effect of undermining admin bodys
expertise
Thus, Court adopted a non-segmentation approach in this case
Standard of Review:
At the Federal Court level, it was held that the Agencys interpretation of VIAs jurisdiction under s 172 was
addressing human rights and therefore was owed less deference (and reviewable on standard of correctness)
The Court also concluded that the standard for reviewing the Agencys decision on the issue of whether the
obstacle is undue is patent unreasonableness. This approach was correct, the former was not.
Unravelling the essence of the decision undermines the characteristic of the Agency which entitles it to
highest level of deference its specialized expertise.
s 172 is an example of a provision which reflects a clearly worded decision by legislature to use an open
ended grant of power that has the effect of narrowing the ambit of jurisdictional review
Dissent
Segmentation:
Minority defends segmentation. Subjecting all aspects to a single standard of review doesnt allow for a
diverse standard of review. Asking for greater flexibility; need to zero in on specific proportions of decision. If
we look at decision as whole, wont be able to tailor it in that way.
Standard of Review:
Consideration of all the factors points to no deference accorded to Agencys decision
The Agencys jurisdiction and determination of human rights principles are questions of pure law. Because
these exact issues havent been determined before, result will have important precedential value
No privative clause in respect of the questions of law/jurisdiction; rather, there is a statutory appeal
procedure
On questions of jurisdiction and human rights law principles, Agency doesnt have greater expertise than
court

45

 Purpose of s 172 is to grant Agency an adjudicative role to consider application from persons with disabilities;
issues generally involve a dispute b/w aggrieved party and transportation carrier. While ultimate analysis
involves balancing of interests, the questions of the Agencys jurisdiction and determination of applicable
human rights law do not
On balance, the questions of the Agencys jurisdiction and determination of applicable human rights
principles are to be reviewed on standard of correctness
DUNSMUIR DECISION:
THE NEW STANDARD OF REVIEW ANALYSIS
1.

Have previous cases already determined degree of deference for this category of question? Look at
previous cases. In every case, we are not starting a new. Look at previous categories that establish degree
of deference

1.

If not (e.g. its difficult to make analogies) then analyse the factors to determine the standard of review
(standard of review analysis) (note that this need not be a mechanical analysis in which each of the
factors necessarily has to be considered):

1.

Presence/absence of Privative clause

Not determinative, but depending on completeness, suggests reasonableness (a full privative clause
is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all

forms of judicial review are excluded)

No privative clause is consistent with less deference (but this is only one factor, and it does not imply a
high degree of scrutiny, where other factors indicate greater deference)

1.

Purpose of tribunal as determined by interpretation of enabling legislation:

A discrete and special administrative regime in which the decision maker has special expertise suggests
reasonableness
Polycentricity is relevant, namely a large number of interlocking and interacting interests
Provisions which require decision maker to have regard to all such circumstances as it considers

relevant will generally suggest policy-laden purposes;

E.g. in Dunsmuir, tribunal was meant to resolve dispute in a timely and cost effective method of

resolving employment disputes, which suggests reasonableness standard

E.g. in Southam, aims of the Act are more economic than strictly legal, and some of its concepts are
matters which business woman and men/economists are better able to understand than a judge which

suggested deference
E.g. in Dr Q, court noted that on the one hand, the legislatures intent for the legislation as a whole was
to assign the College the role of balancing competing interests and multiple policy objectives, like the
protection of the public, education, qualification of members. This suggests deference. But, the discrete
issue of adjudicating a claim of professional misconduct the particular issue that the statute puts before
the Committee is quasi judicial and militates against deference. Thus, this goes neither in favour or

against deference
E.g. in Barrie Utilities, majority noted that much of the CRTCs work involves the elaboration and
implementation of telecommunications policy, but the policy objectives of the Act were less in evidence in
the provision under question than elsewhere in the Act it is not a polycentric question. It is a question
of whether the section, properly construed, gives the CRTC jurisdiction to hear the parties dispute
(pointing to less deference)

1.

46

Nature of question

If factual/policy driven, then reasonableness suggested

If legal and factual issues cannot be readily separated, then reasonableness suggested

If interpreting questions of law in own statute, then reasonableness suggested,

Constitutional questions (e.g. Either, do they have provincial or federal jurisdiction and whether they
stayed within given jurisdiction, OR s 96 courts question, whether they have been given authority that can

properly be delegated) suggests correctness

True questions of jurisdiction (e.g. where the tribunal must explicitly determine whether the statutory

grant of power grants them authority to decide the matter in question) suggests correctness
Questions of general law (e.g. interpretation of statute outside their home statute, or whether they are

bound by the finding of fact that a sexual assault happened) suggests correctness
E.g. in Barrie Public Utilities, interpretation of a phrase of an act, namely the supporting structure of a
transmission line was held to be a matter for which no deference was to be owed, as it was a pure legal

question ultimately for the province of the judiciary (the minority disagreed on this point)
E.g. in Dr Q, finding of credibility was determined to be a question of fact, and so deference was to be

owed
[One more]

1.

Expertise of tribunal relative to court:

Greater deference may be called for only where decision making body is more expert than the
courts and the question is one that falls within the scope of the greater expertise. Three dimension
analysis: (a) Court must characterize the expertise of the tribunal in question; (b) consider its own
expertise relative to the tribunal; (c) identify the nature of the specific issue before the decision maker

relative to this expertise

[One more]

1.

Remedy (assuming the decision is challenged successfully):

Depends whether challenge is on appeal or JR (different remedies)

Where Board failed to act in accordance with its enabling statute, the
question of whether the books should be approved was remanded to the Board to be
considered according to the criteria laid out in its regulation, the curriculum guidelines and
the principles of tolerance underlying the School Act (Chamberlain)

Dunsmuir v New Brunswick (Summary):

Facts: D employed by Department of Justice. Placed on probationary term and subsequently his employment
was terminated due to several incidents which arose. D filed a grievance with respect to his discharge, citing
that the reasons for the employers dissatisfaction were not made known; that he did not receive a reasonable
opportunity to respond to the employers concerns; that the employers actions were w/out notice/procedural
fairness; and the length of the notice period was inadequate. The grievance was denied. D then referred the
grievance to adjudication under the PSLRA. The adjudicator ultimately declared that the termination was void
ab initio.
Bastarache, Lebel J (Majority)
(1) Judicial Review:
The process of judicial review involves two steps: (i) Ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category

47

of question; (ii) Where this is not the case, must analyse the 4 main factors to see which of the standards of
review apply (see below)
(2) Two Standards of Review:
The two variants of reasonableness review should be collapsed into a single form of reasonableness review;
this collapsing of the 2 standards ought not result in having less deference overall (we are not simply adopting
the lower standard of reasonableness)
(a) Reasonableness:
The reasonableness standard is underpinned by principle that there may be more than one reasonable
conclusion. Assessing reasonableness takes into account both the process of reasoning (existence of
justification, transparency and intelligibility within the decision making process) and the outcomes (whether
decision falls within the range of possible outcomes) [Note: this modifies the approach Abella J taks in VIA
Rail, under which the conclusion isnt the important part]
Types of questions where reasonableness is generally presumed as the standard: (i) Questions of fact and
policy; (ii) When legal and factual issues cannot be readily separated; (iii) Where tribunal is interpreting own
statute; (iv) Where tribunal has developed particular expertise in the application of general law or civil law (e.g
labour law
(b) Correctness:
The correctness standard, when applied, means that a reviewing court will not show deference to the
decision makers reasoning process; it will rather undertake its own analysis of the question. If the court doest
not agree with the decision maker, the court will substitute its own view and provide the correct answer.
Types of issues which give rise to correctness standard: (i) Constitutional questions first, regarding
division of powers (i.e. do they have provincial or federal jurisdiction and whether they stay within that
jurisdiction); second, s 96 courts and the types of authority that can be delegated (legislatures can decide and
give authority to decision makers, but there is a constitutional limit); (ii) Competing specialized tribunals
(true questions of jurisdiction) e.g. if you have a human rights tribunal who has jurisdiction over some issue
and an arbitrator also has jurisdiction and the former makes a finding they have jurisdiction in that area we
have a grey area where there can be overlap admin decision maker can make a decision but have to be
correct; true jurisdiction questions arise where the tribunal must explicitly determine whether the statutory
grant of power grants them authority to decide the matter in question (interpretation the grant of their
jurisdiction); (iii) Questions of general law e.g. res judicata issue of whether they are bound by a criminal
conviction, binding them to a finding of fact that a sexual assault happened; or, interpretation of statute outside
their home statute.
(c) Standard of review analysis (no longer to be called the pragmatic and functional analysis):
(a) Privative clause: Strong statutory direction from Parliament indicating need for deference and thus
indication of review pursuant to standard of reasonableness; but it is not determinative. *The rule of law
requires the constitutional role of courts be preserved and neither Parliament nor any legislature can
completely remove courts power to review actions and decisions of admin bodies (the power is constitutionally
protected)
(d) Purpose of Tribunal as Determined by Interpretation of Enabling Legislation

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(c) Nature of Problem at Issue: Where its one of fact, discretion or policy, deference will normally apply
automatically (same where legal and factual questions are intertwined and cannot be separated). A question of
law that does not rise to the level of having central importance to the legal system may be compatible with a
reasonableness standard. Where there is a jurisdiction issue (i.e. question of whether the tribunals statutory
grant of power gives it authority to decide a particular issue) will lend itself to a correctness standard.
(d) Expertise: A discrete and special administrative regime which has special expertise (e.g. labour relations)
leads to reasonableness standard.
In this case, a reasonableness standard arises (full privative clause; labour decision = expertise etc). The
decision itself, however, cannot be said to be reasonable on any interpretation of the Act, as the adjudicator
failed to take into account the explicit contractual terms which allowed for dismissal without stating cause.
Binnie J (Concurring):
Problem court is trying to address is that the 2 reasonableness standards are not predictable; cant tell when
they will be applied, and this forces parties to do a lot of arguing before getting into the real issues. A practical
concern is access to justice, given the costs involved.
There are three basic limits on the allocation of administrative discretion: (1) The Constitution restricts the
legislators ability to allocate issues to admin bodies which s 96 has allocated to courts; (2) Admin action must
be founded on statutory or common law powers; (3) Procedural limits are placed on admin bodies by statute
and common law
Implications of having 2 standards of review: (i) The existence of a privative clause, while not conclusive,
presumptively forecloses judicial review on the basis of outcome unless the applicant can show that the clause,
properly interpreted, permits it or there is some legal reason why it cannot be give effect; (ii) Further, another
presumption should be that the standard of review of any admin outcome on grounds of substance is not
correctness but reasonableness; the fact that the legislature designated someone other than the court as the
decision maker calls for deference (absent a broad statutory right of appeal); the onus is on the applicant to
show otherwise; (iii) An applicant urging for the correctness standard should be required to demonstrate that
the decision rests on an error in the determination of a legal issue not confided to the admin decision maker to
decide (whether in relation to jurisdiction or general law)
Scope of the reasonableness standard: Incorporates both the degree of deference formerly reflected in the
distinction between patent unreasonableness and reasonableness simpliciter, and an assessment of the range of
options reasonable open to the decision maker in the circumstances, in light of the reasons given for the
decision
Judging reasonableness: Reasonableness must be judged according to context; important to look at terms
and objectives of governing statute, because in some cases, a range of permissible decisions may arise. But
court can take into account as many contextual factors as it considers relevant and material.
Deschamps J (Dissent):
The 4 factors which have become synonymous with substantive review need not all be considered in every
case

49

 When an issue is limited to questions of fact, there is no need to enquire into any other factor in order to
determine that deference is owed. Questions of law, by contrast, require more thorough scrutiny when
deference is evaluated (a decision of law may attract deference where it concerns the interpretation of the
enabling statue and provided there is no right of review). For questions of mixed fact and law, the same
deference is owed to admin body as a court of appeal owes a lower court
Where there is a privative clause, Parliaments intent to leave the final decision to that body cannot be
doubted and deference is usually owed to the body. But privative clauses cannot totally shield an
administrative body from review (e.g. if it is asked to interpret laws of which it does not have expertise, then
constitutional responsibility of superior courts as guardians of rule of law compels them to insure the laws
falling outside and admin bodys core expertise are interpreted correctly)
So, main focus is on nature of question.
Comment: An overview of the case suggests that the role of the court in judicial review is this: If admin
tribunals decision is within a range of reasonable outcomes among which admin decision maker can choose,
then court should not interfere. If they make decisions outside statutory authority, or if legislation purports to
confer jurisdiction is unconstitutional, or if deeply flawed reasoning process leads to unreasonable result, then
thats where Courts engage in judicial review.
THE CHARTER AND JUDICIAL REVIEW
[Exam: s 15 = inequality will be the claim of the 3 parties]
rd

These cases help demonstrate the intersection b/w constitutional law and judicial review of the substance of a
decision; also, they help understand how to identify when a standard of review analysis is needed, and when
it isnt. Unless one can use theCharter, one is stuck with judicial review. And one should not go
to theCharter if administrative law can solve the problem.
There is a link between discretion and Charter infringements. There can be exercises of discretion by decision
makers that result in infringement of Charter (therefore, this is still an examination of discretionary decision
making, but a very specific aspect of it). So, if we are dealing with a tribunals decision, rather than the
statute itself, it will be because the legislation allows for a range of outcomes, one of which may result in a
Charter violation.
Summary of Charter Intersection with Admin Law
1.

If the question is whether the decision is one the agency had authority or jurisdiction to make
under the legislation, then administrative law applies and go to Standard of review analysis
If the question is whether the order or act of tribunal is a valid exercise of state power under
the Charter, then this is about constitutionality of the decision and admin law standard does not apply

(Multani, Whatcott)
If the reviewing court is asked to review the admin tribunals application and interpretation of
constitution, then reviewing court will look at whether the tribunal had the jurisdiction had to decide a

constitutional challenge, and if so, the tribunals decision must be correct (Martin)
My summary: In Multani, the decision couldnt be challenged under admin law
because it was within the DMs discretion as set out in the act to make the decision.
Because that decision offended a Charter right, however, it was reviewable under a
Charter analysis. If the decision can be challenged under admin law, then the Charter

50

should not be used; so first ask whether the decision is one the agency had
authority/jurisdiction to make:
A.

When it is the compliance of the DMs decision with requirements of the

Charter at issue, rather than the decisions validity from the point of admin law,
then you go to Charter

B.

In Multani, there is no suggestion that the council did not have

jurisdiction from an administrative law standpoint to approve the Code of conduct

C.

Nor is the administrative and constitutional validity of the RULE

against carrying weapons in issue.

D.

It is the fundamental effect of the decision, as noted in Whatcott, that

infringes the Charter right

Slaight Communications v Davidson:

FACTS: First time Supreme Court of Canada met intersection of administrative law and charter.
Administrator decision maker found employee had been dismissed unfairly. Remedy crafted was that Slaight
was forbidden from making any negative comments about Ds work performance to possible future employers.
Slaight challenged decision as being unconstitutional, saying it infringed its freedom of expression guaranteed
under s 2(b)
ISSUE: Was this to be evaluated under administrative law principles, or charter free expression principles?
HELD Order infringed freedom of expression but was rationally connected to purpose of legislation
(remedying inequality of bargaining powers b/w employees and employers. This is the basis of the orthodox
approach (focusing on the 2 step Charter analysis).
Multani v Commission Scolaire Marguerite-Bourgeoys (Where it is the constitutional validity of an
admin decision or order that is at issue, the constitutional analysis must be conducted):
FACTS: Ms religious beliefs requires him to wear a kirpan at all times. His schools governing board held that
wearing a kirpan violated s 5 of the schools Code of conduct. There was no suggestion that the commissioners
did not have jurisdiction to approve the Code of conduct, from an administrative law standpoint. Superior
Court ordered that the decision originally made that the kirpan be sewn up in clothing be in effect until a final
decision was rendered. This order was subsequently overturned, and now M appeals.
Majority Judgment:
Deal with issue in constitutional law standards, not administrative: Judicial review may involve a
constitutional law and administrative law component. In this case, it is the compliance of the commissioners
decision w/ requirements of Charter that is central, not the validity from point of admin law. The complaint is
entirely based on constitutional freedom; the CoA erred in applying the reasonableness standard to its
constitutional analysis. There is no suggestion that the commissioners did not have jurisdiction, from an
administrative law standpoint to approve the Code of conduct, nor is the administrative and constitutional
validity of the rule against carrying weapons and dangerous objects at issue. The appellant argued that it was in
applying the rule (i.e. categorically denying M to wear the tirpan) that the council of commissioners upholding
the original decision infringed Ms freedom of religion. Must address s 1 analysis, regardless of whether what is
in issue is the wording of the statute itself or its application.
If this appeal had instead concerned the review of an admin decision based on the application and
interpretation of the Charter, it would have been necessary to apply the correctness standard.
It is the constitutional validity of the decision that is at issue in this appeal, which means that a constitutional
analysis must be conducted

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 Infringement of Charter right: Commissioners decision prohibiting M from wearing kirpan infringes his
freedom of religion, and therefore must be justified under s 1, which it cannot (the decision effectively
prevented M from attending school because of their religious beliefs)
Concurring Judgment (Deschamps and Abella JJ):
Admin law or Constitutional law: Case is more appropriately decided by recourse to admin law than
constitutional law justification for two main reasons:
(1) The purpose of the constitutional justification is to assess a norm of general application, such as a statute,
and the analytical approach for that is not easily transportable where what must be assessed is the validity of
an admin bodys decision;
(2) Basing analysis on admin law averts the problems resulting from blurring principles of consti justification
and
admin law
Standard of Review: Court must determine the standard of deference to be applied to the school boards
decision, which had an impact on freedom of religion, right of equality and right to physical inviolability (taking
approach in TWU and Chamberlain). Reasonableness standard applies. The prohibition on wearing of a
kirpan cannot be imposed w/out considering the conditions that would interfere less with freedom of religion.
The school board did not sufficiently consider either the right to freedom of religion or the accommodation
measure proposed by the father and student; it applied the Code of conduct literally; decision was
unreasonable.
Inappropriateness of Constitutional Law Justification: The administrative law approach must be retained
for reviewing decisions and orders made by admin bodies. A constitutional analysis must be carried out when
reviewing the validity of enforceability of a norm such as a law.
(a) Review of Lamer Js approach in Slaight: Idea that norms of general application should be dealt with in the
same way as decisions or orders of admin bodies as suggested by Lamer may be theoretically attractive, but
there is no advantage of adopting it.
(b) Meaning of Law in s 1: An admin body determines an individuals rights in relation to an issue; a decision
or order is not a law or regulation, but the result of a process provided for by statute and by principles of admin
law. The expression of law should not include the decisions of admin bodies
(c) Analytical Consistency: The mechanisms of admin law are flexible enough to make it unnecessary to resort
to the justification process under s 1 when a complaint is not attempting to strike down a rule of general
application. The standard of review is one of the tools that has already been developed that can deal with issues
of a decision or order.
COMMENT: The idea of an admin decision maker makes a decision that is an interpretation of the Charter,
that decision, if appealed, will come within admin law under correctness. But when youre looking at an act
that is not challenged within that sphere, but instead that THIS admin action offends my Charter right, you
start with s 1 analysis.
Whatcott v Saskatchewan Assn of Licensed Practical Nurses (Application of Multanidecision):

52

FACTS: Finding of professional misconduct made (within meaning of s 24 of Act) by a professional nursing
body against one of its members for words expressed in opposition to the activities of a planned parenthood
organization. The Discipline c/ee did not address the issues raised before it in relation to the Charter that any
discipline would infringe his freedom of religion.
ISSUES:
What is the appropriate review model: In light of Multani, two matters are clear:
(1) An administrative tribunals decision can be challenged on the basis that the decision itself has infringed the
Charter rights;
(2) The issues and arguments raised in relation to the decision must be considered to determine which
standard
of review model is to be applied
Application: This case is like Multani. It is the compliance of the Discipline c/ees decision with the
requirements of the Charter that is central to the within appeal. The fundamental effect of the
decision was to preclude Mr W from both picketing in the manner he chose and working as a nurse until he
pays the fine. He was denied the ability both to express himself in the way he has chosen and to work. Thus,
its necessary to leave aside the administrative standard of review and consider whether the decision infringes
freedom of expression
Should the Decision be Remitted back to the Discipline C/ee to Consider Charter arguments (Because the
C/ee didnt Address them)?: Court held it should not be remitted back.
Does the Decision infringe Ws Freedom of Expression (on a standard of correctness):Clear that only
purpose and effect of decision is to curtail his communication
Section 1 Analysis: When decision falls within Charter context (i.e. the effect of the decision is on a
Constitutional guarantee), onus is on the SALPN to prove the infringement is reasonable and can be
demonstrably justified in a free and democratic society; they failed to discharge that onus and the decision is
therefore unconstitutional
Remedy Pursuant to s 24(1): Decision must be set aside, but s 24(1) also allows for court to issue such
remedy as it considers appropriate and just in the circumstances; W relies on s 24(1) to request that costs be
awarded on an extraordinary basis; Court declined this.
To what extent can administrative tribunals themselves, rather than courts reviewing admin tribunals
decisions, consider the Charter? Section 24 of the Charter refers to a court of competent jurisdiction as
being able to provide remedies. The SCC examines an administrative actors competence to apply
the Charter in the following case:
Nova Scotia (Workers Compensation Board) v Martin (Test for whether admin tribunal can decline to
apply a provision of its enabling statute on the ground that the provision violates
the Charter):
FACTS: The Nova Scotias Workers Compensation Act and its regulations excluded chronic pain sufferers
from receiving benefits under the regular workers compensation system and provided, in lieu of benefits
usually available to injured workers, a 4 week functional restoration program beyond which no further benefits
were available. As a result of the statutory exclusion, the Workers Compensation Board denied benefits to two
workers suffering chronic pain. Workers appealed, alleging infringement of s 15(1) by denying them
equality under the law and discriminating against them on the basis of their disabilities. The
Appeals Tribunal held it had jurisdiction to hear the Charter argument and concluded that the
statutory exclusion violated Charter. The Board challenged Tribunals jurisdiction.

53

ISSUE: Did the section of the WCB Act preventing benefits for chronic pain sufferers violate s 15 of the
Charter? Could the Appeals Tribunal decide the constitutional validity of a provision of a provision of an
enabling statute?
Framework for Determining whether a Tribunal can Interpret the Charter:
(1) First question is whether the tribunal at issue has jurisdiction, explicit or implicit, to decide
ANY questions of law arising under the challenged provision. If it does, then the tribunal will
be PRESUMED to have the concomitant jurisdiction to interpret/decide that question in light of Charter
(2) Explicit jurisdiction must be found in the terms of the statutory authority granted(e.g. power to
determine all questions of fact or law that arise in any matter before it). Where express, no need
to go beyond language of statute.
(3) Absent express grant, it is necessary to consider whether the tribunal has implied jurisdiction by
looking at the statute as a whole. Relevant factors to consider include:
(a) The statutory mandate and whether deciding questions of law is necessary to fulfilling its mandate
effectively;
(b) Interaction of the tribunal in question with other elements of the administrative system (e.g. does the
tribunals
implied jurisdiction extend beyond the Act itself, to other questions of statutory interpretation/common law
raised in
the course of dispute e.g. can the tribunal interpret questions including the law of contracts, evidence,
employment, etc);
(c) Whether the tribunal is adjudicative and therefore more capable of deciding Charter issues; and
(d) Practical considerations, including the tribunals capacity to consider questions of law (consider workload,
expertise of tribunal, whether tribunal members are lawyers, will they be able to recognize a Charter claim; BUT
court cautions that practical considerations about capacity shouldnt be used to override a clear implication of
jurisdiction of questions of law while they may be helpful to confirm legislatures intent, they are of little
weight on
their own to confer upon admin body power to consider and decide questions of law)
(4) If either express or implied authority, presumption is set. Once presumption has been raised, the
next question is wether presumption has been rebutted. Burden is on the party who alleges that the
admin body lacks jurisdiction to apply the Charter. Presumption may only be rebutted by an explicit
withdrawal of authority to decide constitutional questions or by clear implication to the same
effect, arising from the statute itself rather than from external considerations;question to be asked is
whether an examination of the statutory provisions clearly leads to the conclusion that the
legislature intended to exclude the Charter from the scope of the questions of law to be
addressed by the tribunal (e.g. an express conferral of jurisdiction to another admin body to consider
Charter issues or certain complex questions of law deemed too difficult or time consuming for the initial
decision maker, along with procedure allowing such issues to be efficiently redirected to such body, could give

54

rise to a clear implication that the initial decision maker was not intended to decide constitutional questions)
[Note: If presumption exists, practical considerations cannot override a clear implication from the statute itself]
Application in This Case:
(1) + (2) The Act clearly confers explicit jurisdiction to decide questions of law. Court went into analysing
factors for implicit conferral of jurisdiction, b/c thats where parties arguments were (but court didnt have to)
(provision stated that subject to the rights of appeal provided in Act, the Board has exclusive jurisdiction to
inquire into, hear and determine all questions of law and fact)
(3)
(a) The power to decide questions of law is necessary for Appeals Tribunal effectively to fulfil its mandate, b/c
any conclusion to the contrary would contradict legislatures intent to create a scheme for resolving workers
compensation disputes
(b) The Appeals Tribunals jurisdiction extends beyond the Act itself, to other questions of statutory
interpretation arising from the operation of the workers compensation scheme;
(c) Appeals Tribunal is fully adjudicative; its independent of the Board, it has powers to summons witnesses,
compel testimony, require production of documents, punish persons for contempt; all the appeal commissions
have been admitted to the bar
(d) CoA was wrong to take into account the backlog of cases that accumulated at the Appeals Tribunal prior to
1999 amendments. Practical considerations of this nature are of little force with clear legislative intent. On
balance, jurisdiction conferred.
(4) Respondents argue for the rebuttal of this jurisdiction. They argue that the authority conferred upon the
Chair of the Board to direct certain issues from the Appeals Tribunal to the Board of Directors is incompatible
with the idea that Appeals Tribunals was itself intended by the legislature to decide Charter questions; i.e.,
legislature cannot have intended that Charter issues be postponed to a policy-making executive body with no
special expertise/powers. But this misunderstands the procedure. Board of Directors is not entitled to take
over an appeal raising a Charter issue and decide it itself; at most, they can adjourn the procedure to adopt a
policy that better responds to the general issues raised. Therefore, nothing in the act produces the kind of clear
implication capable of rebutting the presumption.
Reasons Why Tribunal can Determine Constitutional Validity
1.

Most importantly, s 52(1) of the Constitution Act states that the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force
or effect, If a law is constitutionally invalid, it ts invalid ab initio. So, invalid provisions dont
need court declaring it, because they are of no force and effect; thus, it is not proper courts, or
admin tribunals alike, to be applying invalid laws. Obviously, every government official cannot be required
to decide for herself the constitutional validity of every provision called upon to apply. However, if she is
endowed wit the power to consider questions of law relating to a provision, that power will normally extend
to assessing the constitutional validity of that provision, b/c the consistency of a provision with the
Constitution is a question of law arising under that provision.

2.

Concern of double litigation: Canadians should be entitled to assert the rights and freedoms that the
Constitution guarantees them in the most accessible forum available. In many cases, individuals have to go
to admin tribunals (e.g. labour boards) first, given their exclusive initial jurisdiction over disputes relating
to their enabling legislation; if tribunals dont have jurisdiction to apply the constitution, then forcing them
to refer Charter issues to courts would result in costly and time consuming proceedings.

3.

Admin tribunals as good fact finders: Charter disputes require a thorough understanding of the
objectives of the legislative scheme being challenged, as well as the practical constraints its faces and the
consequences of proposed constitutional remedies. This need is heightened when it becomes necessary to

55

determine whether a prima facie violation of a Charter right is justified under s 1. Factual findings and
record compiled by an administrative tribunal, as well as its expert view of the various issues raised by a
constitutional challenge, will often be invaluable to a reviewing court
4.

Not usurping s 96 courts powers: Tribunal making decision of constitutional validity will still be
reviewed by courts and therefore will not be usurping s 96 power of courts. Doesnt interfere with role of
judiciary as the arbiter of the constitution

5.

The effect of a tribunal making constitutional finding of whether a provision is valid/invalid: Will
not apply outside admin scheme, and inside admin scheme, does not have weight in the same way a courts
decision would

Comment: Section 24(1) of the Charter (Remedies Provision) and Admin Tribunals
s 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considered appropriate
and just in the circumstances
Is an admin tribunal a court of competent jurisdiction? I
Weber v Ontario Hydro: Look at the statute/intention of the legislature in determining whether tribunal is a
court of competent jurisdiction. Test is: Provided they have jurisdiction over the parties, the subject matter of
the dispute and are empowered to make the orders sought, then can give Charter remedies under s 24(1).
The practical import of fitting Charter remedies in tribunals is that litigants have direct access to charter
remedies in the tribunal charged with deciding their case (you dont need to first get determination, and then go
to courts). Not all tribunals have that ability to give a remedy under s 24(1). So, jurisdiction must be over
parties, subject matter and remedies
This same test doesnt apply to s 96/superior courts, as they possess inherent jurisdiction
Comment: Legislative Responses to Martin
E.g BC Administrative Tribunals Act (applies to most tribunals in BC): Tribunal without jurisdiction over
constitutional questions; s 44(1) The tribunal does not have jurisdiction over constitutional questions; (2)
Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a
tribunal; s 45(1): The tribunal does not have jurisdiction over constitutional questions relating to the Charter
Charter issues would be referred to Superior Courts as a stated case
Concern that lay persons coming in front of tribunals would be forced to hire lawyers in order to
advance/defend constitutional allegations, and that would increase costs, and take away efficiency and
accessibility; also, the determination is not precedent setting, and therefore each time it will have to be relitigated
This is consistent with Martin, b/c we are looking at legislative intent
THE USE AND MISUSE OF DISCRETION
[Exam: say that this is a grey area, and give 2 sides, then conclude with one]
What is discretion? The concept of discretion refers to decisions where the law does not dictate a specific
outcome, or where the decision maker is given a choice of options within a statutorily imposed set of
boundaries (Baker v Canada).

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Dicey and the Rule of Law: The rule of law means the absolute supremacy or predominance of regular law
as opposed to the influence of arbitrary power, and the rule of law excuses existence of arbitrariness or even
wide discretionary authority. Major concern is wherever there is discretion, there is room for arbitrariness.
He thought that why we have law is to control arbitrary use of state power. Without supervision of courts,
power of state will be brought down on individuals in an arbitrary or unfair way.
But discretion hasnt been always seen as intrinsically unfair. Given the extent of regulation and state exercise
of power, Diceys version isnt really plausible.
How can Discretion in Administrative Powers be Justified?
1.

Legislatures cant foresee each individual circumstances cant develop a comprehensive set of rules
that apply in all circumstances, so we need to have that area in which the decision maker can tailor broad
principles to those individual circumstances.

2.

Our legislatures neither have the time, resources or expertise to develop those norms in certain areas
(e.g. nuclear waste management, immigration); knowledge of individual circumstances in specific
countries, for example, isnt within the expertise of your legislatures. They depend on other people, and
grant that discretion to people who have that expertise

3.

Allows increased flexibility. Some times decisions need to be made quickly

Roncarelli v Duplessis (There are implied limits on how discretion may be exercised, including
that it must be exercised for legitimate purposes, which derive from statute):
FACTS: R owned a high class restaurant. R used his profits from restaurant to post bail for arrested Jehovahs
Witnesses who were illegally distributing pamphlets. This agitated Premier Duplessis. He instructed liquor
Commission to remove Rs liquor license because he thought the money being used pursuant to the liquor
licence was contrary to the interests of Quebec. The Act governing the Commission said may cancel any
permit at its discretion.
HELD Majority gave judgment to R in light of 2 findings: First, even though the licence had been formally
cancelled by the Quebec Liquor Commission, the latter had acted on Duplessiss orders. Second, the authorities
had been motivated by a desire to curb what they perceived to be seditious activities of the Jehovahs Witnesses
and to punish R. Duplessis lacked legal basis for acting and so did the commission,
notwithstanding the wording of the relevant statutory provision, which stipulated that the
commission could cancel any permit at its discretion.Discretion to be exercised legally has to be
exercised for legitimate purposes (that is, there are implied limits on it, which come from purpose of
statute). There is always a perspective within which a statute is intended to operate, and any
clears departure from its lines or objects is just as objectionable as fraud or corruption
The Baker decision marked the turning point in the law of discretion in Canada:
Baker v Canada (Beginning of new approach as to how a court should evaluate discretion):
FACTS: B, Jamaican, entered Canada in 1981. Never received permanent resident status. Four children (who
were all Canadian citizens) while living in Canada. B applied for exemption from requirement to apply for
permanent resident outside Canada, pursuant to Immigration Act, based upon humanitarian and
compassionate considerations. Immigration officer was delegated task of Minister to decide, on a discretionary
basis, whether B should be exempted from normal operation of Act. E.g. The Minister is authorized to grant
an exemption where the Minister is satisfied that this should be done, owing to the existence of compassionate
or humanitarian considerations
ANALYSIS:
Review of Exercise of Discretion:

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 The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where
the decision maker is given a choice of options within a statutorily imposed set of boundaries. Implies that
we are not bound by a legal standard
Discretion must be exercised in a manner that is within a reasonable interpretation of the
margin of manoeuvre contemplated by the legislature, in accordance with the principles of rule of law,
etc.
But no strict dichotomy could be made b/w discretionary and non-discretionary
decisions (most decisions involved discretion)
Must apply standard of review analysis: Here, the amount of choice lefty by Parliament to the admin
decision maker and the nature of decision made are important in the analysis. These factors must be balanced
to arrive at appropriate standard of review. Court held that b/c decision is discretionary, it will
generally merit wide degree of deference, but that it is only one factor to look in the standard of
review. In this case, Court held that reasonableness is the appropriate standard (noting the fact-specific
nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision maker is
the Minister and the considerable discretion evidenced by the statutory language; yet, the absence of a
privative clause, and the individual rather than polycentric nature of decision suggest that the standard
should not be as deferential as unreasonableness).
How to Apply Reasonableness Standard When Looking at Discretionary Decision?
Overarching question is whether stayed within a range of reasonable choices
In assessing reasonableness, must take into account issues arising from the serious question of general
importance, which is the question of the approach to be taken to the interests of children. The officers notes
indicate that the approach taken to the childrens interests was unreasonable, notwithstanding the important
deference that should be given to his decision (this was a serious error).
Determining whether the approach was unreasonable requires a decision maker to consider
the following when making a discretionary decision:
(a) Values/mandate Underlying Statute (e.g. stated objective of ct): Here, indicates keeping families
together is important
(b) International Law: Ratification by Canada of the Convention on the Rights of the Child, recognition of
importance of children rights and best interest of children. Even though provisions have no direct application
in Canadian law, the values may inform contextual approach to stat interpretation. Note that the doctrine of
legitimate expectations does not mandate the result consistent with the wording of any international
instruments, the decision must be made in a way that respects humanitarian and compassionate values.
(c) Ministerial Guidelines: Officers expected to make decision that reasonable person would make, with
special considerations of humanitarian values. The guidelines show what the Minister considers a H & C
decision, emphasizing officer should take into account hardship that a negative decision would impose on
claimant/close family members. Officer did not consider impact on children, was not alert and alive and failed
to give them substantial weight; therefore was an unreasonable exercise of power.
Comment: Distinguish between weight/re-weighing factors vs Identifying factors that need to be taken into
account (by stating that the primary factor was to take into account the interests of the children, they are
placing weight on the factor). Also, by looking at implied guidelines, are we just creating rules? What is the
Court really doing? Is it in accordance with the framework they set out? Concern that we cannot transform
discretion into the application of a legal test. So, there is a strong statement that the exercise of discretion must
follow an approach of what was authority granted, but concern still about how to determine grant of authority.

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Baker opened up that courts have a role in identifying factors relevant in the exercise of discretion, which is a
step forward from Roncarelli (where it was determined how discretion can be used improperly).
Suresh v Canada (Limits scope of Baker cant re-weigh factors; main concern is whether there
was a capricious or vexatious error in the exercise of discretion, taking account the Act,
Minister guidelines etc)):
FACTS: Refugee claimant faced deportation to Sri Lanka, where he claimed he was likely to face torture.
Minister deported him. The appellant presented written submissions and evidence to the Minister, but had not
been provided with a copy of the immigration officers memorandum, nor with the opportunity to respond to it
orally or in writing. This was a discretionary decision, b/c it allowed Minister to act when they are of a certain
opinion, namely when a person constitutes a threat to the security of Canada; a person shall not be deported
except where the Minister is of opinion that they constitute this threat.
ISSUES: First, whether this provision was constitutional. Second and third questions dealt with the
discretionary issue, namely whether Ss presence in Canada constitutes a danger to national security and
whether S faced torture upon return to Sri Lanka. Fourth issue was the adequacy of procedures that led to the
admin decision.
ANALYSIS:
Court reviewed where standard of review analysis applies (in general): Where constitutional issue arises, no
deference. For the discretionary decision, standard of review applies. For the procedural fairness issue, it
doesnt.
(1) The Ministers decision that a refugee constitutes a danger to the security of Canada:
Here, the reviewing court should adopt a deferential approach, and should set aside Ministers discretionary
decision if it is patently unreasonable (it quickly looked at the standard of review analysis).
The court should not reweigh the factors or interfere merely b/c it would have come to a
different conclusion
Weighing of relevant factors is not the function of a court reviewing the exercise of ministerial
discretion. Court says that Baker does not authorize courts reviewing decisions on the discretionary end of
the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the
failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors [This
is a questionable interpretation]
The courts task, if called upon to review, is to determine whether the Minister has exercised
her decision making power within the constraints imposed by legislation and Constitution.
Court cannot set aside even if it would have weighed the factors differently and arrived at a
different conclusion
Parliaments task is to establish the criteria and procedures governing deportation, within limits of
Constitution; The Ministers task is to make a decision that conforms to Parliaments criteria and procedures
as well as the Constitution.
So, where there is a broad grant of discretion, courts role is limited to determining simply
whether there was an error in the exercise of their discretion (was it capricious or vexatious).
When we are looking at this, we are looking at all sorts of things, such as the Minister
guidelines, the Act itself etc. (see Baker factors)
(2) Ministers decision on whether the refugee faces a substantial risk of torture upon deportation.
This question is largely a fact driven inquiry, and requires consideration of human rights record of the home
state, the personal risk faced by claimant, etc. Largely out of realm of courts expertise. Therefore, deference

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must be given my reviewing court. Court may not reweigh the factors considered by the Minister,
but may intervene if the decision is not supported by evidence.
In sum, Court ought to be looking for constraints established by PARLIAMENT. In applying
standard of review, trying to identify constraints that have been set by parliament either
explicitly or more problematically implicitly
COMMENT: The approach we have is that limits are always there (either explicitly or impliedly, by saying
that the objectives of the statute require that the power of the grant of discretion needs to do X)
CUPE v Ontario (Minister of Labour) (Not re-weighing factors, but you are entitled to consider
factors as relevant or irrelevant; but not every relevant factor failed to be considered will be
fatal it has to be a central factor):
FACTS: Compulsory arbitration health care workers have been an essential service, which means they cant
go on strike. Balancing of negotiating power of union has been removed. In order to compensate for that is
compulsory arbitration the purpose of which is the arbitrator defines the terms of the collective bargaining
agreement. If the parties cant agree, then the Minister is able to appoint someone who in the opinion of the
Minister, is qualified to act. Historically, what went into that is that this person has legitimacy, has knowledge
of health care, etc. In Ministers opinion, arbitrators should be retired judges. Decision was challenged
ISSUE: Union alleges that Minister used his power of appointment to influence outcomes rather than process,
to protect employers rather than patients, and to change the appointments process in a way of attempting to
seize control of the bargaining process. Minister points to a number of reasons for his conduct which were
closely associated with purpose of statute. Ascertaining legislative intent of the HLDAA is the main issue.
MAJORITY JUDGMENT:
A statutory decision maker is required to take into consideration relevant criteria, as well as to exclude from
consideration irrelevant criteria
(1) First issue, must examine legislative scheme of HLDAA, particularly s 6(5):
Words of the act must be read in their entire context, harmoniously with the scheme/object of Act and with
intention of Parliament
Discretion of Minister is constrained by the scheme and object of the HLDAA as a whole, which the
legislature intended to serve as a neutral and credible substitute for the right to strike/lockout

Areas to look to determine to what is relevant:

(1) The history of the Act (i.e. commission reports) (e.g. what was said about it when it was being created);
(2) The Ministers record (what did the Minister say about what the purpose was to be e.g. in the Ministers
letter).
Although s 6(5) is expressed in broad terms, the legislature intended the Minister, based on the above
factors, to have regard to relevant labour relations expertise as well as independence, impartiality and general
acceptability within the labour relations community (i.e. track record in labour relations community)
(2) Second issue, must determine degree of deference which the Minister is entitled to receive
in exercise of discretion: In this case, majority determined thatpatent unreasonableness was appropriate.
(3) Third, engage in analysis Under the Patent Unreasonableness Standard:
Remember, in applying any standard, you are not reweighing the factors. But we ARE entitled to have
regard to the importance of the factors that have been excluded altogether from consideration.

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 Court notes that not every relevant factor that the Minister Fails to consider is fatal has to be
a central, relevant factor [Note: this creates a grey area, and room for argument].
The problem here is that the Minister expressly excluded factors that were not only relevant,
but went straight to the heart of the HLDAA legislative scheme (when he appointed retired
judges as a class to chair the HLDAA arbitration boards) (namely, the need for appointee to
have expertise etc.)
[Note: but, what is re-weighing criteria if its not saying this is at the heart of the scheme].
(4) Conclusion: Having regard to legislative intent manifested in HLDAA, the Ministers approach to
appointments was patently unreasonable.
DISSENTING JUDGMENT:
General Points:
Agree that a contextual approach is required for determining relevant criteria Minister should take into
account. Disagree as to what the essential criteria are.
In clear cases, criteria will be spelled out in legislation. Other cases, they will be spelled out in
guidelines/regulations. In other cases, they may be unwritten, derived from the purpose/context of statute.
They prefer a more limited, less searching approach. Looking at specific things that must be found
more explicitly in legislation (e.g. things in regulation, international instruments which give interpret weight
etc.).
Relevant factors should be relatively explicit, and shouldnt be inferring purpose/factors
Distinction b/w relevant and irrelevant considerations. Relevant considerations can be laid out in advance.
The irrelevant considerations cannot be anticipated in advance in the same way (e.g. so these can be implicit).
Relevant Factors in this Case:
Statute does not say much. Says appointees must be qualified to act. It also states that it is in the opinion
of the Minister that such persons must be qualified to act. Are there any other relevant factors? I.e. Can
reviewing court infer other factors relevant to the Minister in appointing chair?
The factors majority implied, i.e. need for labour relations expertise, independence and impartiality,
reflected in broad acceptability are not obvious, and does not constitute a basis for implying dominant
factors
The HLDAA called the Minister to reach his own opinion, not to consider a specific factor
It is difficult to consider the Ministers appointments as immediately or obviously defective, particularly
when the factors are not themselves immediately or obviously ascertainable
ADMINISTRATIVE RULE-MAKING
Introduction
Administrative actors can sometimes make subordinate legislation, including:

regulations

orders in council

rules

by laws

orders

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designations

guidelines

policy statements

Basically, this refers to the ability to make legally binding or non-binding norms (either substantive or
procedural).
Regulations/Rules
Regulations are usually covered by The Regulations Act, which sets out procedure to be followed when they
make regulations. First, look at governing Act itself, to see if it gives power to make regulations. Then, look to
other statute (generally the Regulations Act), to see if it followed the proper procedure to make the regulation.
Rules are like regulations, but they wont fall generally in Regulations Act. They have binding requirements.
Need authority to make them under statute, and will have force of law
Soft law
Contrast rules and regulations with soft law. Those norms developed by executive (admin actor), but do
NOT have force of law. They are operating principles that can be deviated from if the decision maker think that
the individual circumstances merit them. E.g. manuals, guidelines, non-statutory policy statements.
Difference with these is that the admin actor doesnt need an explicit grant of statutory authority to make soft
law.
Why We Have Delegated Legislative Authority
Legislature cant do it all
Expertise (for highly technical areas, wouldnt want elected members of parliament where they dont have
the expertise, and they dont have the time to gather that expertise
Allows local concerns to be accommodated/responded too
Need flexibility. E.g. may need to adjust minimum wage quickly when legislative assembly isnt in session
Risks of Delegation
Will the agent actually stay true to the mandates/purposes/reason why they have the delegated legislative
power? Will they enact legislative rules that promote the purpose of elected members of the legislature?
Is the agent actually tying to promote public interest?
Issues of accountability no direct accountability
Is this legislative authority being contracted out to private actors?
Certainty of law
Controls on Delegated Powers

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 Legislative structure to control discretion as to what legislation is going to made they can decide who is
going to exercise discretion, and also can decide the resources to provide to that decision maker (and can
decrease amount of resources if dont want over exercise of discretion)
But legislative oversight may bring in problems b/c of the spot check approach it can delay
implementation, and defeat the idea of having an expert board (who can be overseen by generalists)
Further, there are substantive legislative oversights built in (namely the statute)
When controlling such power, we are looking at judicial review. Does the decision accord with the decision
set out in the act? In Inuit Tapirisat, when decision is acting in legislative capacity, no common law
requirement of breach of procedural fairness. But control can come from statute itself (e.g. was external
consultation required prior to passing guidelines, was public participation required)
Judicial review of the substance (substantive judicial review) courts monitoring the substance of the rules,
to ensure they acted within bounds of power delegated to make that decision whether mistakes were made,
bad faith etc.
As we have seen in CUPE, courts are hesitant to review where there is a broad grant of discretion
HARD LAW (RULE MAKING)
When were looking at hard law (passing regulation), no duty of procedural fairness (simply must follow
statute) (Inuit Tapirisit). Still must be constitutional of course.
Generally, ability to make regulations, its permissive. So, if they havent done it, then wouldnt be able to
bring mandamus (but always looking at statute). So, when looking at law making ability, its generally
permissive. When looking at how you can challenge that, ask whether it stays within the
jurisdiction:
Enbridge Gas Distribution Inc v Ontario Energy Board (Outlines how courts review rule making
power, which is a jurisdictional question and a matter of statutory interpretation and then a
question of whether the correct procedures were followed in making that rule):
FACTS: Appellants are 2 gas distributors. Each delivers gas through pipelines to consumers.
Gas vendors provide customers with gas supply, but do not transport them. Board makes rule saying its up to
vendor to decide billing. Distributors were upset, and wanted to deal directly with their own customers.
ISSUES:
(1) Was Divisional Court right in finding standard of review of correctness was to be applied in appeal of the
making of the GDAR?
(2) Does the Board have the jurisdiction to make a rule with the billing provisions contained in the GDAR?
(3) Did the Board follow the rule making process required by the Act?
ANALYSIS:
Issue (1):
On appeal, court must determine whether s 44(1) gives Board jurisdiction to make the rule. No deference to
be given

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 In essence, applies the correctness standard, but w/out applying standard of review analysis to determine
this
Therefore, on questions of jurisdiction of subordinate legislation making of tribunal, always go to
correctness
Issue (2):
Board may make rules governing the conduct of a gas distributor as such conduct relates to [a gas vendor]
Appellant says this doesnt give Board jurisdiction to do what it did; they say it limits to governing
only the part of a distributors conduct that relates to its business relationship w/ vendor, excluding billing
provisions which governs conduct with customers. The Boards rule making power under s 44(1) states that:
The Board may make rules (b) governing the conduct of a gas distributor as such conduct relates to any person
selling or offering to sell gas to a consumer; (c) establishing conditions of access to transmission, distribution
and storage services provided by a gas transmitted, gas distributor or storage company
There is nothing in the language to suggest that narrow view. Further, such a reading would
be inconsistent with the purpose of the Act (which is to regulate all aspects of the gas distribution
business, not simply aspects involving a direct business r/ship with gas vendors)
But the Appellant raises a number of additional arguments beyond statutory interpretation:
First, GDAR has effect of requiring distributor to act as billing service provider or purchaser for vendors, not
as distributors. Court says no, the GDAR treat distributors still as distributors
Second, billing provisions go beyond s 44(1)(b), b/c they dont regulate an existing field of conduct, but
create a new field by requiring gas distributors and vendors to cooperate in billing. Court says no, the rule
governs conduct of distributors in relations to their customers which is not new area
Third, GDAR turns distributors into wholesale distributors by requiring them to send their bills to vendors
when the latter select the gas vendor-consolidation billing option; b/c act limits gas distributor to one who
delivers gas to consumer, s 44(1)(b) cannot sustain a rule that creates wholesale distributors. Court said GDAR
doesnt take distributors outside of definition, as they continue to deliver gas to consumer
Fifth, the vendor billing provisions of the GDAR effectively expropriate their goodwill by depriving them
direct contact with their customers. Court said while the vendor-consolidation billing option precludes one way
for distributor to communicate with customers, there may be many others
Sixth, s 44(1)(b) could not have been intended to permit a rule which interferes with their common law right
to have a direct billing relationship with their customers. Court said that that the appellants have no common
law right to engage in gas distribution at all.
Therefore, s 44(1)(b) gives the Board the jurisdiction to make billing provisions
Issue (3):
Appellants complain that the Board did not, as required, give a second notice about anticipated costs and
benefits of the proposed as a whole, or its individual provisions, once it was amended

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 Court said that Boards notice fulfilled legislative objective of permitting reasonable opportunity for written
submissions prior to making the GDAR
Comment: Essentially courts will review the substance of rules for whether the regulation is within the grant
of power (as in Enbridge), or whether the regulation violates Charter, on a standard or correctness.
SOFT LAW
Recognize difference b/w regulations and rules versus guidelines. Broadly speaking, there are several issues
that arise when talking about soft law, including: procedural fairness, impartiality and fettering discretion.
By fettering discretion, we mean the unlawful controlling of the decision. So, as opposed to
decision maker being free in making a discretionary decision, that discretion is effectively removed. The
consequence of this would be to essentially turn a guideline into hard law, which would be
outside of the power of the admin agency who has not been given the authority to create them
Thamotharem v Canada (Minister of Citizenship and Immigration):
FACTS: Board issued Guideline 7. T challenged to Guideline, on ground that it deprives refugee claimants of
right to a fair hearing. At the Refugee Protection Division (RPD), T was questioned first, and the RPD held that
the duty of fairness does not require that refugee claimants always have the right to be questioned first by their
counsel. RPD dismissed Ts claim, and did not find him a person in need of protection (from being deported).
In application for judicial review, T challenged decision on ground that Guideline was invalid. RPDs
decision was set aside and matter remitted to another member for re-determination on basis that Guideline is
an invalid fetter on the RPDs discretion in the conduct of the hearing.
Guideline 7:
Rationale behind G 7: Before issue of G 7, order of questioning was within discretion of individual
members, and was decided, in different cities, on an ad hoc basis. The Board didnt regard this as satisfactory.
Also, Idea that it would be more expeditious and efficient if claimant was questioned first by RPO or member.
BUT guidelines must include in them the ability of a decision maker to deviate from them.
IRPA confers Chairperson of Board power to issue guidelines and make rules.
ANALYSIS:
Standard of review
Questions of law, raised about validity of G 7 are reviewable on a standard ofcorrectness: they concern
procedural fairness, statutory interpretation, unlawful fettering of discretion. The exercise of discretion by the
Chair to choose a guideline rather than a formal rule for amending procedure is reviewable for patent
unreasonableness
Does G 7 prescribe a hearing procedure that breach claimants right to procedural fairness?
The procedure prescribed by G 7 is not on its face in breach of the Boards duty of fairness, although some
circumstances may require a departure from the standard order of questioning
Framework for Challenging Soft Law
Overall question is has the admin actor used a non mandatory tool and created a compulsory rule (i.e. does
it serve the role of guiding)? Or does the guideline attempt to achieve a high level of compliance?
(1) First, is the guideline hard or soft law? Factors to consider:
(a) Its name (does it say its a guideline/rule/regulation)?

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(b) Look at its mandate and ask whether this norm needs to be given the force of law in order to fulfil that
overarching purpose;
(c) Does it require Cabinet approval? If it does, this suggests that it is hard law, given that all hard law requires
Cabinet approval. But guidelines may also have cabinet approval, so this isnt determinative (hard law must
have explicit grant of authority);
(d) Apply basic statutory interpretation techniques, searching for intention of legislature (but if words arent
clear,
can look to the context in which the statute was created, e.g. committee hearings, to determine whether hard
or soft law).
(a) If G 7 constitutes delegated legislation (hard law), G 7 cannot be characterized as
unlawful fetter on discretion (and see Enbridge): Despite statutory authority of Chair to issue
guidelines, not same legal effects of statutory rules, in particular theyre not necessarily mandatory. But it is
possible that, depending on legislative context, guidelines may be delegated statute, e.g. where they are issued
by an order of a Minister and approved by the Cabinet, or issued by Human Rights Commission. But IRPA
scheme is different.
(2) If it is soft law, ask whether there is an unlawful fetter on discretion? E.g. Does the decision
maker still have the ability to decide based on the discretion given? If no, then unlawful fetter. Consider
factors:
(a) Look at language (whether it expressly permits a departure from the standard, as was the case here);
(b) Look at track record (but, remember that the fact that some hearing officers understand that they are not
legally bound by the guideline does not mean that all hearing officers wouldnt misunderstand the non-legally
binding effect);
(c) Look at the process (are the members required to justify any deviation); (d) Look at the consequences of
deviating (punitive?);
(e) Is there any coercion to not deviate inherent in the process?
Application:
(a) Language: Language of Boards police on use of guidelines says the guidelines apply to most cases, but in
compelling circumstances, discretion can be invoked. Text of G 7 is more important. Para 19 says it will be
standard practice to question claimant first. This is less strict than must. Also, says that the standard
practice will
be for RPO to start questioning, and may vary order in exceptional circumstances. The fact that a guideline is

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intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as
long as
deviation may exist.
(b) Effect: Evidence that when requested to vary order, RPD exercised discretion. There is no evidence that
members feel coerced by G 7 such that they will undoubtedly follow it. No sanction for non-compliance.
(3) If there is no unlawful fetter, then one can still challenge the guideline on an individual
basis, namely that the particular decision maker treated the soft law as legally binding (and
unduly constrained their exercise of discretion)
(4) If you want to challenge the guideline on a basis other than fettering discretion or
procedural fairness, may question whether the guideline should have been made under a rule
(which will likely be reviewable on a deferential standard)?
Application:
Power to issue guidelines is broad enough to include a guideline in respect of the exercise of members
discretion in procedural, evidential and substantive matters. Power includes creating guidelines for assisting
members in their duties, and one members duty is to conduct hearings as quickly as possible as justice
permits.
But argument is that G 7 is a rule of procedure, and should have received Cabinet approval
and been laid before Parliament.
Court says that while the Chairs discretion to choose b/w a guideline or a rule is not beyond judicial review,
it was not unreasonable for the Chair in this case to choose to implement the standard order of questioning
through the more flexible legislative instrument (the guideline)
HELD Dismiss Ts appeal
STANDING and PROCEDURAL ISSUES
STANDING
Standing: Ability to be heard in court.
Finlay v Canada (Test for general standing and public interest standing on judicial review):
FACTS: F was a resident of Manitoba, received social assistance, but that was deducted from him, which left
him with insufficient means. The amount he received should have been sufficient according to legislation. He
brings claim not that legislation was invalid, but that federal payments to province were illegal, b/c province
wasnt complying agreement that governed the relationship He requested a declaration and injunction
ANALYSIS:
Test for Standing
(1) GENERAL STANDING: Does the respondent have sufficient personal interest in the admin action
being challenged to bring him within the general requirement for standing to challenge an exercise of
statutory authority?
Factors to consider: Is there a direct personal interest? Is the respondent likely to gain some advantage
beyond satisfaction of being right or of correcting wrong? Is a legally recognized interest affected (Real
Estate of Alberta v Henderson)?
Here, respondent surely has personal interest

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CAUSAL RELATIONSHIP Sub-requirement: Need causal relationship b/w alleged prejudice and what
is being challenged is the relationship b/w harm suffered and admin action attacked too speculative? In this
case, there was a statement that declaring it illegal wouldnt necessarily impact province (it was a bit speculative
potential problems with causal relationship); the declaration sought wouldnt necessarily address Fs
concerns about having deductions from welfare payments; even in the face of that remedy, they could still
administer plan; so it wouldnt have the effect of correcting harm/prejudice.
(2) PUBLIC INTEREST STANDING: Does the Court have discretion to recognize public interest
standing in the circumstances of the present case?
Pre-condition: Issue should be justiciable (appropriate for judicial determination; is it something the
court ought to be looking at, or is the court stepping into the political arena);
3 Requirements:
(1) Does the application for judicial review raise a serious legal question (e.g. jurisdictional, Charter claims)
(2) Does the party seeking standing have a genuine interest in the resolution?
(3) Is there no other reasonable/effective manner in which the issue may be brought before court?
First, public interest can always be brought by A-G, so must question whether it was realistic to get AGs consent.
Second, and if no A-G consent, look at whether the individual(s) directly affected could bring the
application on their behalf.
Must keep in mind the following concerns: (1) We have scarce judicial resources; (2) We need to have
those most directly and personally involved to be heard; (3) Concern of public interest standing re role of
courts.
(3) Application (in this case)
In this case, the respondent must rely for standing on what is essentially a public interest in the legality of the
federal cost sharing payments, albeit a particular class of the public defined by the Plan as persons in need:
(a) Justiciability: Where there is an issue which is appropriate for judicial determination, the courts should
not decline to determine it on the ground that b/c of its policy context or implications, it is better left for review
by the legislative/executive branches of government. There may be cases where the question of provincial
compliance with the conditions of federal cost-sharing will raise issues not appropriate for judicial
determination, but the particular issues raised by respondent are questions which are clearly justiciable.
(b) Serious issue raised and must have genuine interest: The respondent meets both requirements. Claim is
far from frivolous. They merit consideration. Further, the status of the respondent as a person in need who
complains of having been prejudiced by the alleged provincial non-compliance shows that he is a person with a
genuine interest.
(c) There must be no other reasonable and effective manner in which the issue may be brought before a
court: This deals with concern that in determination of issue court should have benefit of the contending views
of person most directly affected by issue. Here, based on nature of legislation, there could be no one with a
more direct interest than the P in a position to challenge the authority to make the federal cost-sharing
payments. Note that in so far as a prior request to the A-G to intervene might be considered to be necessary in
certain cases to show that there is no other way issue may be brought before court, it should not be regarded as
necessary in a case like this, where it is clear that A-G would not have consented.
HELD The respondent has standing for declaratory relief to challenge the legality of the federal cost-sharing
payments, and injunctive relief (no reason why injunctive relief would not be granted if the former is granted)

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Amnesty International Canada v Canadian Forces (Application of Finlay test for public standing):
FACTS: AIC brought application for judicial review with respect to actions or potential actions of the
Canadian Forces deployed in Afghanistan, and specifically, to review the conduct of Canadian Forces with
respect to detainees held by them. AIC sought to prohibit further transfers of detainees to Afghan detention
until adequate safeguards were put in place. The respondents filed a motion to strike. It is this motion that
forms the subject of this decision.
ANALYSIS:
The Notice of Application
AIC seeks a declaration that the Arrangement violates Charter (no adequate substantive/procedural
safeguards against torture)
Standing
AIC submits that they satisfy the criteria to be granted public interest standing to allow them to pursue
the matter
(1) Action raises serious legal question/justiciable question (raises serious legal issues and the appellants have a
fairly arguable case)
(2) Party seeking standing has a genuine interest in the resolution of question (yes);
(3) No other reasonable/effective manner in which the question may be brought to court): Gov says detainees
should
bring the application, but the prospect of this happening is slim). But individuals handed over to Afghan
government do not have any meaningful ability to mount a challenge in this country with respect to conduct of
Canadian Forces
Any Basis for Judicial Review?
Respondents argued that even if standing exists, AIC has no chance of success as it does not raise a matter
in respect of which a remedy is available under the Federal Courts Act, s 18.1(1). Respondents say that AIC does
not identify any admin or executive action that violates/likely to violate Charter of any specific individuals. As
such, it doesnt involve a decision, order, act or proceeding as contemplated by s 18.1(3) of the Federal Courts
Act.
This is not true, there is a chance at success. Court notes things such as the absence of a decision is not an
absolute bar to an application for judicial review, and the role of the Court has been found to extend beyond the
review of formal decisions, and to include review of a diverse range of admin action nthat does not amount to a
decision or order.
HELD Applicants granted public interest standing and respondents motion to strike is dismissed
ADMINISTATIVE ACTOR APPLYING FOR JUDICIAL REVIEW
Watson v Peel Police Service (Decision maker cannot seek judicial review b/c of principles of
fairness, independence and decision maker being functus if being able to decide after the fact):

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FACTS: W was acquitted w/ criminal charges, but charged w/ discipline offences under the Police Services
Act. W moved for a stay of the discipline proceedings on basis of abuse of process. Hearing officer granted Ws
motion. Chief, who was both investigator and could hear complaints, wanted to challenge the hearing officers
decision. Under the PSA, Chief has no right to appeal officers decision. But the Chief applied for judicial
review.
ISSUE: Can an admin decision maker seek judicial review of his/her own decision?
ANALYSIS:
(1) Standing
Reading the Act, the Chief plays two roles in the discipline process: First, he must decide whether a hearing is
warranted and, second, the Chief is central to the hearing process either he conducts it or delegates the duty.
The Division Court erred by seeing the Chiefs role as purely investigative.

Also, the Act does not grant a right of appeal to the Chief, and it is logical that the Chief not enjoy such a

right, because he is the decision maker sometimes personally and other times through appointees. If the
Chief cannot challenge the decision of his delegate by way of appeal, he should not be able to mount a similar
attack through the vehicle of judicial review.

Given the Chiefs pervasive role in the process, absence of right of appeal, a rejection of standing for Chief

to challenge a decision of a hearing officer by way of judicial review makes sense.

If standing is granted for decision maker to challenge its decision after the fact, the

problems with perceived fairness, independence and idea of decision maker being functus
arise.
HELD Appeal allowed no standing.
Real Estate Council of Alberta v Henderson (Executive allowed standing for JR, because of
independence w/ decision maker):
FACTS: The Executive in this case acted as an investigator and prosecutor, but not decision maker, which
was made by a separate hearing panel. Industry member (i.e. real estate worker) has right to appeal decision of
panel, but Exec does not. During hearing, case officer prosecuting charges on behalf of Exec began asking
leading questions. Panel didnt allow Exec to cross examine H. So, Exec sought JR b/c it objected to
procedures.
ISSUE: Is JR available to a statutory delegate in the absence of a statutory right of appeal?
ANALYSIS:
JR available to aggrieved parties. The aggrieved person category is undefined and deliberately so. Much
will depend on context. An important factor is the relationship b/w the applicant and the challenged
decision, or how directly the challenged admin act will affect the legally-recognized interests of the applicant.
Affected interests may include business, professional, employment etc.
The legislature has expressly conferred on the Council a public interest responsibility to police the real estate
industry and protect the public from abuse by industry members. The Council has a legitimate concern to
ensure that the hearing process is carried out in accordance w/ law. Thus, decisions of hearing panels that
entrench flawed hearing processes will negatively impact not only on the present, but also the future ability of
the Exec to discharge his/her abilities to the Alberta public.

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 Here, the Exec director was prevented from cross examining a compellable witness; the Legislatures
decision to make the industry member compellable would be subverted if the industry member could then not
be cross examined by the Exec.. Thus, the ruling precluding the Exec is a critical concern to the Council
What about the assertion that to allow judicial review would permit Council to impeach its own decision?
Here, the legislative regime under the Act provided for independence b/w the hearing panel and the Executive
Director exercising prosecutorial powers on behalf of the Council. The Act specifically allows an industry
member to appeal the finding or order of the panel, as distinct from the Council itself. The significant point for
the purpose of analyzing whether there is standing for judicial review is that the legislation expressly
recognized the distinctions b/w a decision of Council and that of a hearing panel, and grants an
appeal from the decision of a panel. [Note: Always look at legislative intent]
REMEDIES
OVERVIEW
Where statute does not provide for an appeal to the courts, the parties only entre to the courts is by means
of judicial review. But where a statute provides for reconsideration or appeals, a challenger should generally
exhaust those avenues before making an application for judicial review.
One difference b/w the two is that remedies available may be different: On appeal, a court may have the
power to vary the decision or substitute its own decision depending on wording of statute, but on judicial
review, court wont do this.
PRINCIPLES AND RULES
(1) As a GENERAL RULE, all internal avenues must be exhausted before making an application
for judicial review (Canada v Addision & Leyen)
Canada v Addison & Leyen Ltd:
FACTS: Minister of Revenue claimed York Beverages entire tax liability from the respondents, who held shares
in that company, and the amount assessed in respect of respondents was limited to the amount of payments
that person received from York b/w 1988-89. Respondent filed notices of objection. In 2005, they applied for
judicial review of Crowns decision to use its discretion to assess them under s 160 ITA, on ground that the long
delay in issuing assessment was abusive, prevented them from mounting a proper challenge to validity of the
assessment etc. Crown moved to strike app for judicial review.
ANALYSIS:
Two reasons why JR was struck: (1) Applicant hadnt exhausted all internal remedies; (2) No valid ground
brought forward (similar to striking a SoC)
(2) EXCEPTIONS TO GENERAL RULE:
(a) If abuse of power that requires court control, then dont have to exhaust all internal
processes (Gates v Canada)
(b) Where there is an urgent substantive problem (physical or mental harm) AND the internal
procedures are inadequate, then dont have to exhaust all internal processes (inadequate
procedures showed by (i) delay; (ii) transient problems of people making complaints; (iii) many
complaints were brought up but simply ignored) (Gates v Canada)
Gates v Canada:

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FACTS: Applicants in Temporary Detention Unit (TDU) claim their units have become unhealthily cold.
Doors left open to clear smoke. Acts establish that respondent has duty to provide healthy environment for
applicants. When disputes arise b/w the CSC and an inmate, the Regulations provide for a complaints and
grievance process.
ANALYSIS: Whether Court should decline to hear this matter b/c applicants did not utilize the internal
complaints process?
There are strong policy and statutory reasons for requiring inmates to use internal complaints process. It is
in cases of compelling circumstances, such as where there is actual physical or mental harm or
clear inadequacy of the process that a departure from the complaints process would be
justified.
Also, look at regulatory scheme. Here, s 81 contemplated an inmate seeking alternative legal remedies to
those internal remedies.
B/c, here, there are potential health issues, and complaints process slow, need to resolve complaints quick
Also, there is no assurance that the complaints will be acted upon
HELD This is a proper case for departing from the requirement to follow the complaints process
(3) Remedies as a result of JR are always discretionary: In exercising discretion, ask:
(i) Whether application was premature?
(ii) Alternate remedy available?
(iii) Are issues moot (no practical effect?)
(iv) Was there delay in bringing the application?
(v) Is the applicant a bad actor (unclean hands)
E.g. Homex Realty v Wyoming (Villiage): Judicial review is a discretionary remedy (Judicial Review
Procedure Act). Court looked at conduct of H: (a) H took inconsistent and even contradictory
positions throughout proceedings (b) H sought to put its lands beyond the reach of municipal
regulations by means of checker boarding an apparently legal right but nevertheless a factor to
consider (c) Of primary concern is Hs attempt to shift the burden to the ratepayers in the Village by
undoing the municipal action taken in the form of the by-law (d) Village was acting in the interests of
the public etc
PARTICULAR REMEDIES
Writ of Mandamus (Rules) (Apotex Inc v Canada)
Mandamus is an application to compel the admin actor to do whatever it has a duty to do
The courts will not dictate how the delegate should decide under mandamus, but will orders delegate to do
their duty and to make decision in accordance with the law
Before courts command an admin decision maker to do something, the following must be considered:

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1.

Must be a public duty to act

2.

Duty must be owed to applicant

3.

Must be a clear right to the performance, established by:

A.

Applicant has satisfied conditions precedent (e.g. file application, file affidavit of a specific
form, etc)

B.

Prior demand for performance, followed by reasonable time period for compliance and
express or implied refusal to comply (e.g. formal demand of decision) (in this case, a long period time
passed after notice of compliance given to Minister)

4.

If admin decision maker has discretion to perform duty, the following rules apply (dont need public
duty to act):
A.

Discretion must be fairly exercised, but if discretion is broad, mandamus is unavailable

B.

Court cannot compel discretion to be exercised in a particular way (i.e. cant demand outcome)
(we can compel discretion to be exercised, but cant demand a particular result)

C.

But difference is if you have a vested right (discretion must be spent). (Remember Mount
Sinai, Minister promised if they moved, then their operations would be changed issue of whether
decision was already made, or if it was compelling them to follow through. In Apotex, slightly different
way of looking at it discussion of whether right had vested or not i.e. whether discretion had
already been exercised, and then there was a vested right for the issuance of notice of compliance.

[If discretion is such that they may do something, then mandamus generally not available,
unless exercised already (then they must exercise it properly). If discretion involves choice
between X, Y and Z, then court can make them exercise their discretion, but cannot compel
them to choose which way to go]
The remainder of considerations concern how court exercises its discretion when issuing all prerogative writs:
1.

No other adequate remedy

2.

Order of practical value

3.

No equitable bar toe relief sought (e.g. clean hands)

4.

Balance of convenience favours order of mandamus: Even when all criteria are met, Court can make
decision to not grant remedy. If Court does not grant remedy when all criteria have been met, then this
means that there is a legal duty of government actor to do X. But, in denying remedy based on balance of
convenience, Court says they dont have to uphold duty. Thus, what would otherwise be illegal is
legal idea of suspension of the operation of law. So, Court concerned about limiting situations in
which Court wont grant discretionary remedy. Court summarizes these areas:

(i) Where result practically impossible (costs very high, chaos in area of law);
(ii) When a change in policy direction is coming, but hasnt yet been fully implanted, might be a
consideration. But, in order for policy change to be a relevant consideration, must establish that
intent to change the policy was in place BEFORE the request for application to decision maker.
Look, also, at statute does it create authority for decision maker to make prospective/retrospective
decisions?

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(Ottawa v Boyd Builders: Developer applied for rezoning at time application was made, there was
no bar to rezoning application it ought to have been issued, but it wasnt. Then, policy changes to
by law made it impossible. Decision maker pointed to change in law, to say that this change came
into effect and now we wont grant this application. We get sense in Apotex case about rules issuing
NoC were changed b/c of this, could the court say now the law has changed, and make the change
retroactive? We get rule that in Boyd Builders, intent to change zoning must have been
there before application was made)
Other Remedies
Courts have limited authority in this context, given that the authority to make decisions has been granted to
another decision maker
Before looking at JR remedies, look at statute for internal mechanisms of appeal, where it is possible that
court may be granted power to impose own decision
When not looking at appeals, we look mainly to ancient prerogative writs:
(a) Certiorari: Quashing/setting aside decision of admin actor (sometimes, if applicant requires decision to
be made, you can ask for remitting with directions)
(b) Prohibition: Issued by an appellate court to prevent a lower court from exceeding its jurisdiction, or to
prevent a non judicial officer/entity from exercising power. This is used to provide pre-emptive relief, unlike
certiorari.
(c) Mandamus (Literally we command): A writ issued by a superior court to compel a lower
court/government agency to perform a duty it is mandated to perform. It is often used in conjunction with
certiorari, namely where certiorari would be used to quash a decision, for example, for lack of procedural
fairness, while mandamus would be used to force the tribunal to reconsider the matter in a procedurally fair
manner.
(d) Declaration: A judgment of a court that determines the legal position of the parties, or the law that
applies to them.
(e) Costs: May also apply for cost orders (e.g. solicitor-client costs, if the decision maker acted in bad faith
(Congregation des temoins v Lafontaine).
Not looking at damages generally: look to torts of misfeasance in public office for this

Apotex Inc v Canada (Summary):

FACTS: A is a drug manufacturer/distributor. A sought an order in the nature of mandamus to compel the
Minister of National Health and Welfare to issue a notice of compliance with respect to drug enalapril in order
to be in a position to market the drug in competition with Merck, the appellant, who distributes a similar drug.
Merck sought order prohibiting Minister from issuing the notice to A. A won, and Merk appeals.
ANALYSIS:

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(1) Mandamus (Principles):

Several principal requirements must be satisfied before mandamus will be issued:
(a) Must be a public legal duty to act (e.g. public official/official body; a body governed by statute)
(b) Duty must be owed to applicant
(c) There is a clear right to performance of that duty, in particular: (i) The applicant has satisfied all conditions
precedent giving rise to the duty; (ii) There was, first, a prior demand for performance of the duty, second a
reasonable time to comply with the demand unless refused outright and, third, a subsequent refusal which can
be either expressed or implied, e.g. unreasonable delay
(d) Where the duty sought to be enforced is discretionary, the following rules apply:
(i) in exercising discretion, decision maker must not act in a manner which can be characterized as unfair,
oppressive, acting in bad faith etc
(ii) mandamus is unavailable if the decision makers discretion is characterized as being
unqualified/absolute/permissive
(iii) in exercise of a fettered discretion, decision maker must act upon relevant considerations
(iv) mandamus is unavailable to compel the exercise of a fettered discretion in a particular way
(v) mandamus is only available when the decision makers discretion is spent, i.e., the applicant has a vested
right to the performance of the duty
(e) No other adequate remedy is available
(f) Order sought will be of some practical value
(g) Court in exercise of discretion finds no equitable bar to relief
(h) On balance of convenience, order of mandamus should/should not issue
(2) Respondent Arguments

Prematurity: An order of mandamus will not lie to compel an officer to act if they are not under an

obligation to act as of the hearing date, not the application date, as the respondents argue. As a general
proposition, it is open to respondents to pursue dismissal of application where duty to perform has yet to arise.

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However, unless compeling reasons are offered, an application for an orer in the nature of mandamus should
not be defeated on the ground that ti was initiated prematurely.
(3) Did A have a vested right to the NOC at the time of the passing of the Bill (and claim advantages of old
law)?

Issue is whether A had a vested right to the NOC rather than a mere hope or expectation

4 issues are relevant to the determination of whether A had a vested right to the NOC:

(a) The scope of the Ministers discretion: Fettered discretion

(b) The relevance of legal advice: Merk argued Minister was entitled to seek legal advice, and therefore was not
obligated to issue the NOC prior to March 12, 1993. NO! The inevitable delay resulting from solicitation of
legal advice cannot prejudice the right to performance of a statutory duty
(c) The relevance of pending legislative policy: Merk argued that pending legislative policy is a consideration
relevant to the exercise of Ministers discretion. The law shouldnt preclude the possibility of recognizing the
Ministers right to refuse to perform a public duty on the basis of policy rationales under scoring impending
legislation, e.g, where Minister acting in good faith believes sale of product may pose health risk; in such a
situation, court may adjourn mandamus hearing if impending legislation (after applying the balance of
convenience test). But here, cannot be said that in exercise of statutory powers, Minister was entitled to have
regard to provisions of Bill C -91 before they were proclaimed into effect (not a relevant consideration).
(d) De facto decision never made:
(4) Balance of Convenience:

Weighing competing interests in determining proper exercise of discretionary power

(a) Ambit of Courts Discretion includes discretion to refuse mandamus on the grounds of balance of
convenience
(b) Criteria for Exercise of Discretion: Recognized categories for denying mandamus include: (1) where admin
cost that would follow from order are unacceptable; (2) potential health and safety risks to publiuc are
perceived to outweigh an individuals right to pursue personal economic interests; (3)

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