Admin Class Slides 1

Slides of Class 1

Intro to Admin Law

What is admin law?

• Administrative law is the body of law that addresses the actions of administrative decision
makers (or ADMs), and the manner in which courts can review the decisions of these ADMs,
to ensure they observe the limits on their authority.
• It “concerns the legal structuring and regulation of sovereign authority, both in the state’s
relations with individuals and in the allocation of authority among various institutions:” Van
Haarten et al.
• Admin law is really about the propriety of government decision-making and the courts’
supervision of that activity.

The basics:
• The ADM ( action/decision):
• Does the decision affect your rights, privileges? Is the ADM a public body and thus
subject to review? Is the type of decision subject to review?

• The process.
• Was it fair? What IS fair? What procedural safeguards do or should people have?
When do these safeguards apply?

• The result.
• How should the courts review the substance of ADM decisions. Was the decision
reasonable? Was it correct? Which does it need to be, and what do those things
mean?

• Who are the players? Various individuals and institutions are involved in administrative
decision -making, including the legislature, cabinet, ministers, and municipalities.

• Most often, we are talking about some legislatively created entity that is not part of a
government Ministry but nonetheless part of government: agencies, boards,
commissions, tribunals, etc.

• Our focus is on independent administrative agencies, boards, commissions, and tribunals

because they play an increasingly important role in our society and regulate many aspects
of our life, from beginning to end.

• They are both federal and provincial.

• Let’s look at some federal organizations: Federal Organizations by Category

• Ontario also has many ministries and agencies created by the legislature. You can see a
list of these by visiting the public appointment secretariat website. Public Appointments
Secretariat
 Admin Class Slides 2
Slides of Class 1

• Administrative boards and tribunals (and ministers and departmental officials) have no
inherent power to make decisions that affect people’s lives, EXCEPT for the statute (or royal
prerogative) that empowers them to do so.

• So the role of the court in administrative law is to make sure, at a minimum, that decision-
makers do not step outside the boundaries of what they are legally empowered to do.

Intro to Admin Law

• The starting point in admin law is often the enabling statute of the decision maker

• Also, pay attention to the regulations made under the enabling statute. These often
include important substance and definitions, and may deal with process. They can
also be amended easily.
• In addition, most boards, agencies and tribunals have Rules that deal with practice
and procedure.

• Administrative decision makers have no inherent power • Must stay within the 4 corners
of the statute

Enabling Statute
Regulations
Rules

Example: Immigration and Refugee Board of Canada or “IRB” - Canada's largest independent
administrative tribunal.

• Every year, the IRB renders more than 40,000 decisions on refugee protection and
immigration matters.
• The Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides the IRB
with jurisdiction to hear and decide cases on immigration and refugee matters.
It is the IRB’s enabling statute.
• Immigration and Refugee Protection Act
• http://laws.justice.gc.ca/eng/acts/i-2.5/index.html
• Adjudicative divisional rules
• http://laws.justice.gc.ca/eng/regulations/SOR-93-47/index.html
Tension: government v. the courts

• A recurring theme in admin law is the tension between the appropriate role for governments
(through the agencies they create), and the courts—and which set of decision-makers are
accountable to others.

There are shifting views on these roles

• Some argue for a much greater role for administrative action so that government
objectives can be easily implemented.

• Others support the rule of law and are less comfortable with administrative action
that seeks to limit access to the courts for vulnerable individuals

• The rule of law is an important legal principle in admin law.

• It does not have one simple definition. Generally speaking, however, it recognizes the
supremacy of law over unconstrained political power – that is, that people should be
governed by law, not by individual government officials or ADMs.

• Its aim: to prevent illegality and constrain arbitrariness in the exercise of public authority.

• Flood and Sossin explain that it offers four basic guarantees:

• all persons will be considered formally equal under the rule of law, including those
holding public power;
• public standards will guide the creation, enactment, and enforcement of
law; • that the government and legal system will treat individuals fairly;
and
• an existing legal system enables access to legal processes in order to resolve
complaints.

• The concept of rule of law was popularized in the 19th century by English constitutional
lawyer and professor Albert Venn Dicey, who pronounced that the rule of law

means, in the first place, the absolute supremacy or predominance of regular law
as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, or prerogative, or even of wide discretionary authority on the part of
the government.

• Two important principles emerge from Dicey's rule of law:

1. "regular law" is supreme and individuals should not be subject to "arbitrary power,“
especially in the executive branch and administrative state; and
2. “formal legal equality” – that is, every person, including government
officials, are equally subject to the law.

• A question that arises in admin law when discussing the rule of law is: how can the public be
sure that government-appointed decision makers (tribunal members for example) will hold
fair hearings and stay within the ambit of their powers?
• Answer: the courts.

• Under the Diceyan model, the courts are the chief rule-of-law check on executive
arbitrariness.

• The process of judicial review (reviewing ADM action/decision) by the courts ensures that
ADMs remain true to their fundamental mandates, both procedurally and substantively.

• As guardians of the rule of law, the courts ensure that any administrative decision maker that
relies on power delegated by the legislature abide by the terms and conditions according to
which that power was granted.

• Roncarelli v Duplessis, [1959] SCR 121, a landmark constitutional decision in which the Court
held that Duplessis, the premier of Quebec, had overstepped his authority by ordering the
Quebec Liquor Commission to revoke Roncarelli’s liquor licence.

• Although Premier Duplessis had some limited authority under the relevant legislation, his
decision was not based on any factors related to the operation of the licence, but was made
for unrelated reasons, and was therefore held to be exercised arbitrarily and without good
faith.

• Justice Rand wrote in his often-quoted reasons that the unwritten constitutional principle of
the “rule of law" meant no public official was above the law, that is, they could neither
suspend it or dispense it.

• https://www.cbc.ca/player/play/1743556658

• For a modern parallel, see Tesla Motors Canada ULC v. Ontario (Ministry of Transportation),
2018 ONSC 5062 (Div. Ct.), or Canada (Attorney General) v. PHS Community Services
Society, 2011 SCC 44

• As we go through the materials in this course, you will encounter periods in the history of
Canadian administrative law during which the Supreme Court struggled to find a practical
and principled way to reconcile:

 a vibrant regulatory system of ADMs created to implement valid government

objectives, programs, and policies
 judicial review that maintains the rule of law
Administrative law is, in part, the body of law related to overseeing administrative action and
decision making, and examining how and why courts will decide to intervene. In this course,
we will consider three areas of fundamental concern:

1. Procedural fairness
2. Substantive review of the decision
3. Available remedies

1. Procedural Fairness

• Under what circumstances are governmental ADMs subject to an obligation of

procedural fairness to those who are affected by their decisions?
• What is the content of that obligation to be fair?
• Is this an issue courts should review and, if so, did the ADM use the proper procedure in
reaching a decision?

2. Substantive Review of the Decision

• To what extent are the substantive decisions of an ADM subject to scrutiny by the court?
• Where they are subject to such scrutiny, how will courts review them – what is the
standard of review?
• In the decision itself, did the ADM make an error of the kind or magnitude that would compel a
court to intervene?

3. Available Remedies

• What is the remedial framework within which the courts, both federally and provincially,
exercise their powers of review?
• If there are procedural or substantive defects in the decision, should the court
intervene and, if so, how?
• What remedies are available?
The Power to Review
The power of the courts to review ADMs comes from three sources:

1. Statutory right of appeal

2. Original jurisdiction (civil claims)
3. Inherent judicial review jurisdiction

Statutory Right of Appeal:

• Since the 1970s, statutory rights of appeal to the courts from ADMs have become a familiar
feature.
• Many people think there is always a right of appeal. Often there is not. There is no
automatic right to appeal the substance of an administrative decision to the courts.
Indeed, some statutes might prohibit an appeal.
• A right to appeal must be provided for in a statute. Thus, the first step in determining
whether a statutory right to appeal exists is to review the statute establishing the
administrative agency and see whether any right of appeal is provided for, and if so, on
what grounds.
• Appeal clauses can be broad (e.g., allow a court to review any issue or substitute its opinion
for the ADM) or narrow (e.g., allow review on only a question of law).

• As an example of a statute that prohibits an appeal, look at the Human Rights Tribunal of
Ontario and its enabling statute, the Human Rights Code. Section 45.8 reads as follows:
Subje c t to s e c tion 45.7 of thi s A c t, s e c tion 21.1 of the Statutory Powers
Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to
appeal and shall not be altered or set aside in an application for judicial review or in any
other proceeding unless the decision is patently unreasonable.

• For a more common example of an appeal clause, see s. 11 of the Licence Appeal Tribunal
Act: https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html

• From this we see that that the enabling legislation provides a statutory right of appeal from
the LAT. The Act specifies that a statutory appeal from a decision of the LAT lies to the
Ontario Superior Court, Divisional Court.

• Some other appeal clauses require “leave.” See for example s. 37 of the Local Planning
Appeal Tribunal Act, 2017: https://www.canlii.org/en/on/laws/stat/so-2017-c-23-sch-
1/latest/so-2017-c-23 -sch-1.html

• Note: the Divisional Court cannot be called upon to review findings of fact unless
authorized to do so. The scope of the clause governs.
Original Jurisdiction:

• Generally speaking, this refers to the court’s exclusive ability to hear a case at
first instance.

• However, it also refers to the jurisdiction that superior courts have over the
decisions of ADMs when a citizen or a company challenges a decision by way of
direct action based on contract, tort, the Charter or some other cause of action
on the ground that the state has infringed an individual’s private legal right.

• For example: assume that the Ontario government enters into an agreement
with a private construction company to build several bridges over a period of
years. A few years into the agreement, a government decision-maker cancels
it. The construction company may have a legal right to proceed against the
government under contract law. The court hearing the matter will have original
jurisdiction over the case and the decision makers.

Inherent Judicial Review Jurisdiction:

• As a default, the superior courts in each province may also rely on their
inherent jurisdiction, inherited from the English royal courts of justice, to
review decisions made by institutions and officials responsible for
administering public programs.

• The term “inherent jurisdiction” refers to the fact that the jurisdiction of the superior
courts, which are made up of federally appointed judges, is broader than
whatever may be conferred by statute.

Inherent Judicial Review Jurisdiction:

• However, inherent jurisdiction is not jurisdiction for a general appeal.

• A court cannot simply substitute its own decision for that of an agency - it’s
complicated.

• Superior courts may, by making use of their discretionary power, hear any matter
unless there is a specific statute that says otherwise or grants exclusive
jurisdiction to another court or tribunal.

• Additional problems may also be presented in the form of a privative clause that
limits the ability of individuals to challenge an ADM’s decisions. Historically,
legislatures relied on these clauses to prevent courts from interfering with the
decisions of ADMs.
• So why do “superior” courts undertake this role of keeping “inferior” administrative
boards and tribunals in check, even when the legislature has told them not to?

• Again, the rule of law. Courts see their role as making sure that ADMs do not
step outside their jurisdiction (i.e., powers conferred to them by legislation) and
exercise power they have not been granted.

• The fundamental source of power: s. 96 of the Constitution

Act, 1867.

Inherent Judicial Review Jurisdiction: Constitutional Tension

• There is no explicit reference to judicial review in the Constitution Act, 1867.

• However, there is an argument for implying a constitutionally guaranteed

right to judicial review of administrative action—one that trumps
parliamentary supremacy in this context—and it has centered on the
provisions of the Constitution Act, 1867, sections 96 to 101.

• Section 96 authorizes the federal government to appoint judges.

Appointment of Judges

96. The Governor General shall appoint the Judges of the Superior, District,
and County Courts in each Province, except those of the Courts of Probate in
Nova Scotia and New Brunswick.

• Historically, section 96 has been interpreted as providing superior courts of

inherent jurisdiction with the constitutional authority to hear cases.

• The "section 96 courts" are typically characterized as the "anchor" of the justice
system as their jurisdiction is said to be "inherent", the courts have the authority to
try all matters of law except where the jurisdiction has been taken away or limited
by another court or tribunal.
• However, even when that jurisdiction is limited, for example, through the federal
courts created by the federal government under section 101 or by the provincial
government under section 92(14), the core jurisdiction of a section 96 court
remains.
Inherent judicial review Jurisdiction: Constitutional Tension

• “Real” superior courts created through s. 96 have not appreciated the provinces’
attempts to create unreviewable tribunals.
• The concern: provinces have created de facto s. 96 courts by calling them “administrative
tribunals,” particularly by inserting privative clauses making them immune from judicial
review, just like superior s. 96 courts.
• But the superior courts are always able to determine whether an administrative tribunal is
actually acting like a s. 96 court, and is therefore unconstitutional because the province
was without jurisdiction to create it.

• The leading case on administrative tribunals masquerading as s. 96 courts is Crevier v. A.G.

(Québec) et al., [1981] 2 SCR 220

• The facts:

• Quebec legislation created a tribunal to hear appeals from the discipline

committees of most statutory professional bodies in Quebec.
• This tribunal was composed of provincially appointed judges.
• The enabling Act included a privative clause stating, in effect, that the tribunal’s
decisions were final, even those that dealt with questions about the tribunal’s own
jurisdiction.

• The decision:

• Chief Justice Laskin, for the Court, noted that a provincial government, in creating
an administrative tribunal, could include a privative clause if it still allowed the
superior courts to review questions of jurisdiction, even if there was limited judicial
review of all other kinds of decisions from the tribunal.

• But, if the wording of a privative clause tried to oust review by the superior courts over
even strict jurisdictional questions, then the clause was not constitutionally valid because
the province had de facto created a s. 96 court.

• The Court concluded that to give a provincial tribunal unlimited jurisdiction to interpret
and apply law and then preclude any supervision by provincial superior courts created a
s. 96 court and this was unconstitutional.

• The case stands for the proposition that there is a constitutionally recognized right
to judicial review, at least of questions of jurisdiction that cannot be displaced by a
privative clause, no matter how it is worded. However, the proposition has been
read more broadly.
• The doctrine of parliamentary supremacy means that there is nothing preventing
legislatures from enacting whatever legislative clauses they wish, including privative
clauses.

• But what happens when those privative clauses oust judicial review?

• Unlike ADMs, courts get their inherent power from s. 96 of the constitution, so when they
are considering reviewing an ADM’s decision, the courts find themselves stuck, at least
historically, between the intention of parliament to limit the review of ADMs and the
supervisory role granted to them by the constitution.

• This gives rise to a constitutional tension we recognized earlier: parliamentary

supremacy and government policy imperatives vs. rule of law and judicial protective
obligations.

• So we now have an answer to why the courts police the boundaries of ADMs.

• But what about how? How do the courts police ADMs and justify their intervention?

• As you go through the materials of this course, you will see that courts have wide discretion in
how they approach their role and that, as a result, in different time periods we observe
different approaches to the courts’ policing of ADMs.

• You will also learn that in certain periods of Canadian administrative law history, the courts
have struggled to find a practical way to reconcile the system of ADMs and government
objectives with judicial review that maintained the rule of law.
Intro to Challenging ADMs

Some of the questions you may have at this point are:

• What ADMs and decisions or actions can be challenged?

• On what grounds can you challenge an ADM’s action or decision?

• How do you go about challenging and ADM’s decision or action?

• What are the different procedures or avenues available for challenging an ADM’s
decision?

• Do I challenge the decision or action internally (within the same tribunal), or do I go to

court (through an appeal, a judicial review)?

• Is there a difference between provincial and federal challenges?

• What remedies are available?

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On what grounds can you challenge an ADM’s action/decision?

• Today, an ADM’s action or decision may be challenged either with respect to a procedural
defect (that is a defect in the process – a matter of procedural fairness) or with respect to
a substantive defect (that is, a defect in the substance of the decision itself).

• Substantive errors are errors of fact, law, or discretion, although these are
sometimes labelled in different ways.

• A substantive defect is subject to a standard of review analysis.

• Historically, admin law focused primarily on procedural review, with the assumption that if
a sound process is followed, a fair decision will be reached.
• In a substantive review, the courts look at the decision itself, not just at the procedures
that were followed in reaching the decision.
• Courts were quite eager to assert their influence in the administrative sphere using the
intra vires – ultra vires doctrines.
• However, all of this began to change with the administrative law revolution that took place
in the 1960s and 1970s – a basic codification of procedures for administrative tribunals in a
number of provinces. In addition, the creation of the Federal Court Act allowed for the
almost complete transfer of remedial jurisdiction over federal statutory decision makers
from the provincial superior courts to the newly created Federal Court of Canada.

• The culmination of change was the landmark Supreme Court decision C.U.P.E. v. N.B.
Liquor Corporation, [1979] 2 SCR 227.
• This case acknowledged that, often, there is no one right answer in terms of legal
interpretation but a range of different reasonable interpretations, and that the view or
choice of an administrative decision-maker may be as legitimate as that of a court.
• This case should have ushered in a new era of judicial deference toward administrative
tribunals.

Grounds for challenging ADMs:

• An ADM’s action or decision can be challenged for procedural defects or substantive errors:

• Procedural: Challenging an ADM’s decision on the basis of procedural fairness means

seeking to address some defect in the right to be heard (for example, a notice of the
hearing wasn’t sent) or the right to an unbiased decision maker (for example, your
decision maker is related to one of the parties).

• Substantive: Challenging an ADM’s decision on the basis of the substantive decision

means challenging the actual decision itself, not the process.

• This is where admin law gets complicated, because it’s not just about whether the decision
itself was wrong or right.
Grounds for challenging ADMs:
• When challenging a procedure of the ADM, the reviewing court will first consider whether
fairness was owed and, if so, then what fairness looks like in the particular context of that
decision.
• When challenging the substantive decision, this is where admin law gets further complicated,
because it’s not just about whether the decision itself was wrong or right.

It’s about whether or not a court will intervene to review the ADM’s decision, and that will
depend on a standard of review analysis and the deference -- or the respect -- that a court
will give to the ADM.

The Standard of Review

• Keep in mind that determining the standard of review is important only when
challenging an ADM’s decision on the basis of substance, not procedure.
• The question of which standard of review the court should apply is often framed in
terms of how much “deference” or “respect” the reviewing court should show to the
tribunal.
• When a challenge is based on a substantive defect, the courts ask themselves what the
standard of review is – that is, how big an error must the tribunal make before the court
intervenes?

Following the Supreme Court’s 2008 decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
there are now two standards of review:

• Correctness. The standard of correctness is an exacting standard of review.

• Reasonableness. The standard of reasonableness is a more respectful or

forgiving standard of review.

The standard of review:

• Correctness: the reviewing court will ask: Was the ADM’s decision the correct decision—the
same decision that the court would have reached?

• Reasonableness: the reviewing court will ask: Did the tribunal’s decision fall within a range of
reasonable alternatives?
How do you go about challenging and ADM’s decision or action?

• Admin law focuses on challenges that are made through applications for judicial review.

• However, we can see from the flow chart that judicial review is only one method of
challenging an administrative action.

• There are various mechanisms upon which one can challenge an ADM, both internal to the
ADM, and external through the courts.

• When we talk about using the courts to challenge ADMs, we need to keep in mind that there
are three possible avenues for doing so:

• Statutory Appeals
• Civil Actions
• Judicial Review

Judicial Review
Will challenging the ADM via judicial review help achieve success?

• Not always. It depends on the remedy that you want.

• In order to bring a successful judicial review application, a challenger must be aware of the
specific remedial mechanisms available to the ADM, and how those mechanisms will help
achieve the desired result.

• A tribunal—an ADM—is a creature of statute.

Will judicial review help achieve success?

• Because an ADM is a creature of its enabling statute, it cannot make orders that affect
individuals’ rights or obligations without authority from its enabling statute.

• If a tribunal makes orders outside the scope of its enabling statute, it is exceeding its
jurisdiction, and those orders will be void.

• As a result, it is not always possible to achieve the desired result through an

application for judicial review.

• This is because even if you are successful, you are still limited to those remedies
within the tribunal’s jurisdiction (as dictated by its enabling statute).

• An ADM may consider an applicant’s argument (for example, a Charter argument), but might
not be able to grant the requested remedy because the remedy—in this case, an absolute
discharge—might not be available under the tribunal’s enabling legislation.

• Consider the example of R. v. Conway, 2010 SCC 22.

• R. v. Conway, 2010 SCC 22:

• The facts:

• The appellant, Conway, was found not guilty by reason of insanity on a charge of
sexual assault.

• After spending more than 20 years in mental health facilities, Conway brought
proceedings before the Ontario Review Board alleging that the living and treatment
conditions at the mental health centre where he was being detained breached his rights
under the Canadian Charter of Rights and Freedoms.

• He argued that the Board should grant him an absolute discharge under s. 24(1) of the
Charter.

• The Ontario Review Board held that it was not a "court of competent jurisdiction"
within the meaning of s. 24(1) and had no jurisdiction to consider his Charter claims.

• The Ontario Court of Appeal agreed with the Board.

• However, the Supreme Court of Canada did not agree.

• It held that administrative tribunals with the authority to decide questions of law are
courts of competent jurisdiction within the meaning of s. 24(1) of the Charter and can
grant Charter remedies in the course of carrying out their statutory mandates.

• Whether a tribunal has jurisdiction to grant a particular remedy will depend on the
intent of the legislature, having regard to the tribunal's statutory mandate and
function.

• As a specialized tribunal with authority to decide questions of law, the Ontario Review
Board was a court of competent jurisdiction within the meaning of s. 24(1) of the Charter.

• However, having regard to the Board's statutory mandate to protect the public from
dangerous offenders and to treat patients found not criminally responsible fairly and
appropriately, it did not have authority to grant an absolute discharge to dangerous
patients.

• Since Conway was considered to pose a threat to public safety, he could not obtain an
absolute discharge from the Board.
Breach of Procedural Fairness. Will judicial review help achieve success?

• Parties seeking to challenge administrative action should remember that a violation of

procedural fairness will not guarantee a substantive outcome, because the role of the court
is to supervise the decision-making process – to ensure that the decision has been made
using the proper process, not to ensure that the proper decision has been made.

• For example:

• A motion to quash a tribunal’s decision for lack of procedural fairness, if successful, will
likely lead to the court sending the matter back to the original tribunal for rehearing, not
to the court substituting its own decision for that of the tribunal.

• This result, however, may not satisfy the challenger. Even assuming that procedural fairness
is observed the second time, there is no guarantee that the party will receive the desired
substantive outcome.

Overlap between substantive review and procedural fairness

review:

• Judicial review of substantive error can and does occasionally overlap with that other
main branch of administrative law, judicial review of procedural fairness.

• One element of procedural fairness is the duty to give reasons. But a failure to give reasons,
or a failure to give reasons that sufficiently explain the decision, can also lead to a finding of
unreasonableness (after substantive review).

• For example, in Del Vecchio v. Canada (Public Safety and Emergency Preparedness), 2011
FC 1135, the minister’s decision appeared arbitrary to the Court (and to Mr. Del Vecchio),
because the minister had failed to explain why Mr. Del Vecchio was being treated differently
than his accomplices.

• The minister had provided some reasons, meaning that procedural fairness was met,
but those reasons were inadequate, meaning that the decision was unreasonable.

• Had the minister observed procedural fairness—the duty to give reasons—more fully,
his decision may not have appeared arbitrary and may, in fact, have been reasonable.
• See: The Globe and Mail - Del Vecchio
MONEY
REMEDIES
Internal Tribunal Challenge

• An ADM’s decision can be challenged internally (within the same tribunal if statute permits)
and/or externally (through the courts).

• Legislative drafters, in crafting tribunals’ enabling statutes, may use various tools to limit or
circumscribe the available scope of court intervention in the tribunals’ decision-making
processes.

• One common mechanism, as we have seen, is the privative clause.

• Another technique is by providing for avenues of appeal that are internal to the tribunal
itself.

• By providing for appeal mechanisms—and, in particular, for internal appeal mechanisms

with their own unique (and sometimes uncourtlike) structures—the government is able to
maintain a greater degree of control over the statutory scheme that it has constructed to
address a particular public issue.

• This limits recourse to judicial review, because the general rule is that recourse to the courts
is only available after a party has exhausted all avenues of appeal, including internal appeals
and any appeals to the courts provided for in the statute.

• So, when thinking about challenging an ADM’s decision, start with the following question:

Does the statute provide for an internal appeal process within the statutory process,
agency, or tribunal?

• Some enabling statutes specifically provide tribunals with the ability to reconsider and
rehear decisions they have made.

• This is most common where a particular tribunal has ongoing regulatory responsibility
over a particular domain, such as public utilities regulation or employer–employee
relations.

• For example: the Public Service Labour Relations Act provides:

“[s]ubject to subsection (2) [which prohibits any retroactive effect for any rights acquired],
the Board may review, rescind or amend any of its orders or decisions, or may re-hear any
application before making an order in respect of the application.”

• Absent such express statutory authority, a tribunal cannot reconsider or alter a final decision
made within its jurisdiction: see Chandler v. Alberta Association of Architects, [1989] 2 SCR
848; Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252.

• Once it has made a final decision, the tribunal is functus officio.

Internal Tribunal Challenge

• Some administrative tribunals are part of multi-tiered administrative agencies. Those

tribunals’ enabling statutes may provide for appeals internal to the administrative agency
itself.

• For example:

• Parties appearing before Canada’s Immigration and Refugee Board

Immigration Division may appeal to its Immigration Appeal Division.

• Workplace Safety and Insurance Appeals Tribunal (the “WSIAT” or “Tribunal”) hears
and decides appeals from final decisions of the Workplace Safety and Insurance Board
(the “WSIB” or “Board”) under the Workplace Safety and Insurance Act, 1997.

• Similarly, provincial securities acts across the country provide that persons directly
affected by decisions made by Securities Commission staff may appeal to (or, in some
statutes, seek “review” from) the commission itself, to which staff reports.

• These internal review proceedings do not necessarily preclude subsequent

appeals to the courts.

• For example, various provincial Securities Acts provide for appeals under limited
conditions from their internal appellate bodies to the courts.

• These are statutory appeals, and are an external court mechanism for challenging an
administrative action or decision.

• Where the statute does not provide for an appeal to the courts, the parties’ only access
to the courts is by means of judicial review.

• However, where a statute provides for reconsideration or appeals, a challenger should

generally exhaust those avenues before making an application for judicial review.
Internal Tribunal Challenge

• When assessing the feasibility of an internal challenge consider the following:

• The existence of an internal appeal mechanism within the tribunal (for

example, reconsideration, rehearing, or appeal to a delegate/minister)

• The scope or type of the internal appeal mechanism (is it only with respect to a mistake
in law, or also a mistake in fact?)

• The timing of challenging the decision (does the enabling legislation set out the time
within which you must appeal and if you’re late, is there a provision about extending the
time).

• If interim decisions can be appealed, or only final decisions.

• Typically, you will find the answers to these questions in the enabling statute, in the
regulations, or in the practice and procedure rules of the Tribunal.