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ADMINISTRATIVE LAW OUTLINEProfessor McIntyre, Fall 1999

PART A: FAIRNESS

PROCEDURAL FAIRNESS: OVERVIEW

Procedural fairness is a free-standing right, its not about outcome or prejudiceThe remedy for a finding of lack of procedural fairness: Quash you get to have your case heard again

A. Is Fairness Due? (Threshold Question): Does the challenger have a right to ANY procedural fairness?

Look at the Knight factors:1. Nature of Decision is it final (quasi-j) or preliminary?, is it general policy (legislative) or

administrative, or specific to individual and fact-based (quasi-j)?2. Relation of Decision Maker to Applicant for employment, is it master-servant (none), office holder at pleasure

(some) or discharge/discipline case (more)?, is there an inequality of fairness?, is there a legitimateexpectation?, look at context prison safety, informer, public safety or emergency (less)?

3. Impact of Decision (the more serious, the more fairness owed) is it just an application (hardly any)or a forfeiture of job, property or freedom (lots)?, what kind of freedom is it (prison cases differ)?

B. Content of Fairness : Basic requirement is right to adequate notice of the case to meet and adequate/meaningful rightof reply

1. Adequate Notice enough time to prepare reply: notice can be vague, look at adequacy of disclosure of particulars, some reasons for non disclosure are not good enough (eg. prison safety, or professionalcandour) look at difference of who gets the gist only and who gets details

2. Meaningful Right of Reply : oral hearings where credibility at stake, may get right to counsel, right tocross, is there reliance on info not disclosed?, board can exercise discretion on process when Act issilent, no constitutional right to appeal

C. Bias : If you are entitled to a hearing, fairness requires the outcome not to be stacked such that your reply is futile byreason of predisposition to one side or another

1. Pecuniary: must be direct and not too remote Prior association depends on context

Look at overlap in institutional functions cases2. Attitudinal bias no need to prove actual bias (appearance of it is enough) and right to unbiased hearing isindependent right

Difference between pre-hearing (closed-minded test) and mid-hearing (reasonable apprehension of bias ),same difference for policy makers and those exercising quasi-judicial functions

3. Institutional bias: difference between full board hearings for policy and where financial or job security may influencedecision

A. IS FAIRNESS DUE? -- (threshold question)

The court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in (1) every public authority, making an (2) administrative (3) decision which is (4) not of a legislative nature and which (5) affect therights, privileges, and interest of an individual -- Cardinal (1985 SCC)

Unless a decision is PURELY LEGISLATIVE, some fairness is duePurely legislative means: pure policy decision, universal application with nothing at stake personally, where a largenumber of people are affected equally Pre-Nicholson, you had to show it was judicial or quasi-judicial to get full natural justice (now called procedural

fairness) if it was administrative, youd get nothing Nicholson (1979 SCC) changed the law (fairness revolution) it doesnt matter now whether its judicial, quasi-

judicial or administrative, get some fairness unless the decision is purely legislative Even Cooper (1863) looked at the nature of the interest at stake the decision was a policy one, but fairness attached

because no man is to be deprived of his property without being heard

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after fairness revolution of Nicholson , unless decision was purely legislative, some fairness is owedJudicial--------------------------- Administrative ----------------------Legislative

More Fairness ------------------------------------------------------------ Less Fairness

Knight (1990) SCC decided that there were 3 factors that one must look at to decide whether any fairness is owed or not this was a shift to modern fairness thinking:(1) The nature of the decision(2) The relationship between the decision maker and the applicant

(3) The impact of the decision on the individualthe crt also looked at context and circumstances

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1) Nature of Decision

Factors NotSupporting

Fairness

Cases Factors WhichSupport Fairness

Cases

Preliminary Irvine or Final or, same effectas if final(inquiry).

Abel,Egglestone,Conway

Pergammon PressEmergency Cardinal, MartneauGeneral Inuit or Individual Desjardins

WebbAbelHomexRefugee Status OShea (1st stage)Furey (one school)

Policy,Legislative

InuitSea SheppardSierra ClubOShea(2nd stage)

or Fact finding Refugee StatusPrison casesLicence revocationWebbAbelLazarov

DesjardinsHomexCdn Assoc. of ImportersSchool ClosingPrison emerg.Dangerous offender release

or Fault Finding DesjardinsWebbDiscipline cases

Application(gets somefairness)

DesjardinsHutfieldLazarovFAI (renewal)

or Forfeiture DesjardinsWebb

Internal Inquiry Irvine Inquiry withExternal effect

Pergammon Press

No LegitExpectation

Furey LegitimateExpectation

LiverpoolBezaireFAI

Emergency Civil service Un

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2) Relationship b/w DM and Petitioner

Who is DM?- If high powered ind., hearing will be rare Conway

Reasonable/possible to have a hearing?High volume of case load?

FAIImmigration cases

Legitimate Expectation or Custom?Past practice or promise of a hearing? FAI, Bezaire, Liverpool Taxi, CAP

Did Legislature intend consultation process? Cdn assoc of regulated Importers (no)Bezaire (yes)

Type of empt relationship?- Master-servant gets no fairness- office holder at pleasure gets some- Probationary employee

KnightKnight

Nicholson

Mere Applicant? McInnes

Does petitioner deserve fairness - do they have

dirty hands?

Homex

Is petitioner vulnerable and hence deserving of protection?

Webb

Does decision bypass typical protective routes? 2stage procedures?

Munro, OShea

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(3) IMPACT OF DECISION ON INDIVIDUAL *most important factor

The more serious the impact of the decision, the more likely to get fairness also relates back to individual vs. large groupApplication (gets little or no fairness) vs. forfeiture where high protection for forfeiture of property, job, professionalreputation, libertyThere are graduations of liberty (transfer of min security to high max in prison (Gallant) is less serious than fromunsupervised parole to re-imprisonment Gough)

SUMMARY: EFFECT OF DECISION ON INDIVIDUAL:

Loss of Job Nicholson, Knight, MunroSlurs on Professional Reputation HutfieldLoss of Property Rights1. Loss of Housing2. Loss of Welfare Benefits3. Effect on childs education4. Non-renewal of privilege

Homex, Cdn. Assocn of Reg.1. Webb2. Webb3. Bezaire4. FAI

5. Denial of Application McInnes, Desjardins Webb, AbelDenial of procedural rights Martineau, Cardinal

Where serious impact5. Loss of Liberty6. Loss of Competitive Edge

Hutfield, Lazarov6. Desjardins (after getting pardon), Abel7. Liverpool, Cdn. Assocn of Reg.

Loss of in-hand goods will almost always will get fairness Property, liberty, any quasi-prop such as job/license also very high on list Also includes loss of intangibles although get less fairness

4) CONTEXT/CIRCUMSTANCESEmergency Cases Cardinal, MartineauLegitimate Expectation Cases Livermoor Taxi, FAI

5) OTHER GENERAL FAIRNESS ARGUMENTS If no right of appeal, fairness may be read in b/c there must be some form of accountability Fairness dictates that admin body making decision must be cognizant of all relevant circ, and, as such, petitioner ought to be heard as petitioner know facts best

petitioner ought to have opp. to change DMs mind. Public has an interest in the proper use of delegated power by admin bodies.

- Wide discretionary power ought to be closely scrutinized to ensure that it is being applied in accordancewith fairness - wide scope for abuse.

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CASE LAW(1) THE NATURE OF THE DECISION

Is it a Preliminary Decision or a Final Decision?

If its a final decision, you get some fairness along the way (but have to figure out where)If its preliminary (eg. recommendations to final decision body or fact-finding investigation), there is something atstake, but also there is a final decision maker later

2-STAGE PROCEDURES

The usual 2-step procedure is with the Board making recommendations on facts to a higher decision making body,who has discretion to make decisions on policy grounds Where Brd makes recommendation which will be basis of higher bodys decision, fairness attaches because this is

where the real decision is made ( Abel, Egglestone ) If you get fairness at Brd level, you wont get it at a higher level too ( OShea ) If you dont get it at Brd level, you will get it at a higher level, but might be limited ( Conway ) If get fairness at lower level, and higher level takes new evidence into account or something changes along the

way, you get right to know new evidence and respond to it ( Munro, OShea ) Where prelim. decision is pure fact finding or an investigative report to decide whether to go on, little or no

fairness attaches ( Irvine, Dairy Producers Co-op )

(a) Prison Cases

Re Abel (1979) Affd Ont.CA (1981) high liberty interest at stakeF: Advisory Brd reviews all patients confined in psych inst. after being charged w crim offences and found not guilty byreason of insanity. Brd makes a report re each patient - including recommendations for release - which goes to LieutenantGov. BUT Boards word is highly influential (if Board says dont release, Minister wont), so in a way, the boardsdecision is really final . Applicant wants disclosure of files- esp. report submitted by Brd. Very significant impact - liberty interest the Brds reports are very impt as a good report represents patients only hope of release - so an adverse decision by

the Brd = final (Not at issue, but comment that: Ind must know case to meet. But there may be mitigating circ. Producing documents

possibly harmful to admin of centre and to patient.) Decision of Chairman not to release records quashed and remitted to brd.

Test: the proximity b/w the investigation and the nature of the decision and the exposure of the person investigated toharm are matters of significant concern. Thus, proximity is key.

Egglestone (1983) On Div Crt Egglestone requests disclosure of hosp. file under same act as Abel . Chair made an order only permitting his counsel

to read it, only in presence of memb of Brd and only on cond. that it would not be disclosed to Egglestone. Egglestone also sought disclosure of psych notes and right to cross-x them. Crt refused notes and cross-X but allowed

E to be present when they made their report to Brd. Order strikes appropriate balance b/w rights of patient to disclosure of relevant facts and right of Brd to preserve

confidentiality of info in sensitive areas. (safety of doctors) Yet, doesnt Brds order make right meaningless? How can Egglestone be granted meaningful right of reply if cant

even know what is in file? How can he reply to allegations, correct factual errors? What is value of him being present at cross-x? His presence will keep doctors honest? Not much of a right the proximity (influence) of the preliminary decision to the final decision is important if it is de facto, in fact final, fairness attaches

OShea (1987) AustraliaF: sex offenders imprisoned indefinitely except for yearly review he was allowed a hearing before Parole Boardduring recommendations from board board recommended release but Minister said no 2x he wants full hearingwith cabinet

crt found no fairness owed, he already had it (and Minister cant meet with everyone) No hearing before Cabinet; get fairness there only if new facts come in Even though ultimately a policy decision, still get fairness b/c it is about fate of one ind. Arguments that it is unrealistic to give ind opp to present submissions on high level of general policy do not apply

when the policy impacts upon an ind/is closely related to the circ of a particular case Mason J.

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(b) Discipline Committee Cases:

Munro (1993) Sask.CA 2 Stage process of discipline in which the discipline committee of Sask Teachers Fed. makes recommendations to

Exec. Committee who, on basis of DCs report, recommends to M of Educ. to adopt or recommend disciplinecommittees recommendation. Minister has discretion.

Exec Ctee bound by Discipline Committees fact finding. Discipline Ctee recommends suspension. Exec recommends cancellation of teaching certif.

where a shift in recommendations, claimant entitled to know why shift made and entitled to have input ought to have given Munro copy of discipline ctees report/recommendation and opp. to address issue of sanctions.

(c) Hospital Cases

Conway (1991) Ont. Div.Crt LGs review board makes recommendation to LG re applicant the patient seeks a hearing with the LG at this stage crt held that he was entitled to a copy of the Boards report and opportunity to make written submissions to LG, but no

oral hearing because the LG was the decision maker Cant tell if court said Conway has right to se report and right to make written submissions:

(a) in general OR (b) only in circumstances where report is biased

Pergammon Press (1971)

Board of Trade Investigation into affairs of PP. PP wants transcripts of evid of W, opp. to cross-x and opp. to respond. Inquiry is not a court of law. Inquiry = investigation in public interest. But, results of inquiry may have significantrepercussions (could ruin reputations, careers, lead to judicial proceedings, expose persons to criminal

prosecutions or civil action). Investigators must act fairly, must give person opp for reply and at least an outline of charges against him.

(d) Investigatory Cases

Irvine (1987) SCC Combines Investigation Act 2 stage process hearing officer conducts an internal inquiry and submits report to Commission who decide whether or not to hold a

public inquiry based on the report the investigation is as preliminary as it gets, no proximity to final decision (s.5(2) Public Inquiries Act mandates no

finding of misconduct against a person in any report of a commission after an inquiry UNLESS that person hasreasonable notice of the substance of the alleged misconduct AND was allowed full opp to be heard during theinquiry.

Irvine asks for more proc fairness at investigatory stage. ct eval the character of the proceedings, nature of the resulting report, circulation of report to public, penalties that

may result from process/report RULE: where the decision is

(a) purely investigatory (fact-finding only)(b) in an investigation that may go nowhere,(c) entirely prelim and(d) completely private,

no fairness or minimal fairness is required (because the decisions that count happen later). Key: proximity of investigatory/recommending body to the ultimate decision-making process.

Dairy Producers Co-op (1994) Sask QB HR commission appointed officer to investigate complaints of workplace harassment Investigating officer gathers evidence to see whether a case can be made out recommendation is non-binding.

Recommended hearing to HRC. HRC mandated to try for settlement, gave Dairy Prod full details of complaints and evidence. Didnt get full report.

Alleged breach of proc fairness. Holding: where report of investigator doesnt affect rights, there is no fairness owed. However, once 2 nd step is taken (i.e., establishing a Bd of Inquiry) then theres a duty to provide applicant with the

substance of the evid against before any hearing (inform applicant of case against it, and allow opp for respondingrepresentations or submissions).

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Little or no fairness at the application stage particularly where policy or discretion involved, whereas fairness kicks inover same benefit on forfeiture ( Desjardins, Webb ) but note exceptions ( Huttfield, Wilson )

APPLICATION CASES

McInnes (1978 Eng. Ch.) -application loser case boxer applying for mgmt license from Boxing Bd of Control and was refused, didnt get reasons plaintiff sought reasons and to respond, OR right to oral hearing mere application doesnt get fairness all policy, lots of discretion - no reqmt to even give gist of reasons for refusing

application.

Desjardins (1983) FCA applicant can apply to Cabinet for a crim. Pardon. Cabinet has NO duty to fairness at this stage because pardon not a

right, just privilege based on Cabinets policy decision But once pardon granted, fairness attaches and cant be revoked (since here there is specific fault-based analysis, not

just policy) = forfeiture. Act require person to be advised of facts and given opp to explain them

Webb (1978) Webb on social assistance b/c of which she gets to live in public housing. Owner of property wants her evicted b/c of

problems with her kids. Bd of D of Ont. Housing Corp approved. Webb made an application for review of Bdsdecision.

Concerned forfeiture of housing decision to grant benefit of subsidized housing owned no duty of fairness, but taking this benefit away once granted

gets fairness duty of fairness required when taking away benefit of housing since decision with very serious impact (put her on

streets) investigation and decision is fact driven and fault based Duty of fairness required b/c:

fault-finding that her kids were bad decision with very serious impact - put her on streets no other alternatives are open to her fairness is esp. impt to those most vulnerable who need protection from arbitrary and unconscionable acts of

public authorities. investigation and decision is fact driven and fault based.

BUT while fairness was owed it was equally met. She received several warnings about her kids and supposedly didnothing. For unfairness to exist, would need evid that she did not know of components or that she answered themand answer was not considered.

if it had been an application, no duty of fairness b/c its prelim. But once accepted as resident cant be booted out w/ofair process.

Hutfield (1986) -also specific to individual application case Doctor applies for residency privileges at hospital. Application rejected again and again at level of

decision marker (hospital board, appointments committee). Hutfield wants reasons why he was denied, Fairness due: denial of disclosure casts slurs on professional reputation and financial stability (material impact). public interest involved: rejection affects ability to treat patients ct protecting interest not just rights. Sufficiently serious interest and conseq serious impact allows for proc fairness.

RULE:If an admin bodys (1) decision will (2) modify, extinguish or affect a right or interest of a person when

that persons rights or interests are being considered and decided upon in a way that is (3) in law or for practical purposes final subject to appeal, must adhere to procedural standards the precise nature of whichwill depend upon nature and extent of right or interest.

Lazarov -application winner case

application for citizenship denied. Applicant must 1 st satisfy criteria but Secretary of State has discretion to grant of withhold. Application denied b/c of confidential RCMP info.

got fairness since decision fact and individual based Is it a General/Policy Decision (Legislative) or Specific to the Individual and Fact or Fault Based? Where application refused not on policy but for reasons particular to applicant, importance of citizenship, give the

applicant right to know suff. info on the grounds for denial to properly respond. Gist is good enough. Must have fair opp to state position, dispute or explain

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General/policy decisions are usually legislative, and so fairness is not owedWhereas decisions specific to individuals where fact or fault-based have fairness owed

GENERAL/POLICY govt decisions: by-laws, policies, quotas

Inuit Tapirisat (1980) SCC Act gives Cabinet CRTC wide discretion to amend or reject CRTC recommendations on policy Inuit opposed rate

increase to CRTC hearing & lost. Appeals to Cabinet. Inuit, Bell and CRTC make submissions to Cabinet, Inuitonly got Bells submissions, not CRTCs.

crt held no fairness owed because decision was purely legislativeTEST :1. Nature of body considered : executive branch is inherently entitled to rely on staff, ministerial advice on policy issues2. Practicality of situation : couldnt give notice or oral hearings to all parties, logistically impossible.3. Legislation: did legislature intend procedural fairness? Whats the scope of the legislative authority?

gave Cabinet broad powers to deal with policy concerns1. Subject matter : not individual based or fault attached (no stigma, just higher bills) Cabinet can only be reviewed/fairness required when:

decision affects specific individual, decision not purely legislative statute does not give broad discretion

Sea Sheppard (1984) BCSC wolf kill program deemed to be too general no specific applicant, no fault, no fairness affects a broad spectrum of

public in a generally undifferentiated manner

Sierra Club (1984) BCSC case about cutting timber when a public interest group applies for fairness since just public interest group, not

directly affecting an individual

Desjardins (1983) FCA no duty of fairness at first stage of procedure since Cabinets decision for a pardon is entirely in Cabinets discretion

and entirely based on policy considerations

but once pardon granted, fairness attaches and it can only be revoked for cause per s.7 - b/c at this stage = specific fault-based analysis , not just policy. Act require person be advised of facts & Given opportunity to explain them.

Homex (1980) SCC -specific to individual (ad hominem) Homex bought land but refused to follow through on original owners promise to service all new lots. City passed by-

law to prevent Homex from too much development (not just checkberboard to avoid servicing requirement).Homex sought certiorari and right to reply as new by-law denies Homex he right to develop the land and theydidnt get a hearing.

Fariness owed:1. Crt found that even though it looks legislative, in substance its not general policy since it affects one plot of

land (very specific) its retroactive, specific to one person and one property (ad hominem). BUT majority denied relief though because of conduct of Homex didnt come with clean hands said remedies for

abuse of public power are discretionary (rare case). Certiorari is equitable remedy which can be withheld NB Dickson J awarded Homex proc fairness.

Bezaire (1992) On. DC School board decides to close 9 schools because of finances no consultation with parents before decision made,

where there was Bd and Ministerial policy to consult them the relationship was shaped by a legitimate expec and therefore fairness. Parents win participatory rights. Policy has serious impact on children. even though pure policy decision see nature of decision and serious impact Traditionally, there is no duty to act fairly in using administration power to close school - pure policy. But ministerial

and Bd guidelines established a condition precedent to valid decision of community consultation which Bd didntfollow.

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Cdn Assoc. of Regulated Importers (1994) FCA M alters quota distributions for importing of hatching eggs and chicks affects historic importers (big prop loss).

Importers seek judicial review for non-consultation. Government argues policy. Crt said policy not specific to individuals and not fault based it affected 38 people, so still policy (on the edge) Principles of natural justice dont apply to a setting of a general quota policy. Legislative, policy decision. Any appropriate remedy should be political, not legal Cant impose a public consultation requirement on M when no such thing was contemplated by the legislature! BUT

remember Cooper v. Bd of Works : Court can read into statue the duty of fairness (court can supply Parliamentsomission). This is the only decision on a finite # of people: 38 - doesnt ground a claim. Other cases of general policy are: school closing cases (Bezaire but serious impact decision and legit. expec), prison

emergency cases, and dangerous offender releases

Most cases that are quasi-judicial where cut with little policy, have fairness owed for eg. most professionaldiscipline, prison transfer or parole, license revocation

SPECIFIC TO THE INDIVIDUAL fact or fault based

Desjardins at second stage, where revoking a privilege of a pardon, it is specific and fault based, and therefore, fairness is owed

required to give disclosure of the facts

Martineau (1980) SCC Martineau = prisoner disciplined w/out a hearing. But prisoners without right to appeal. Lower crts held no fairness

b/c brd not deemed judicial or quasi-judicial Brd is not a crt but doesnt mean no fairness owed. -- Certiorari is sprung loose from natural justice and is a remedy

for any pro unfairness Whether fairness owed = Circumstantial; emergency is not enough of an excuse In this case clear unfairness with serious consequences, Martineau gets fairness.

Rule : 1) non-judicial decisions do carry a duty to act fairly; (2) fairness involves compliance with only some of the Pof natural justice (content of fairness is fact specific).

Furey (1991) Nfld.CA

School Bd decides to close elementary school down w/o consultation w/ parents of affected kids.. Parents sek to quash.2 yrs prior parent sinvolve din deicsion to consolidate schools. Dept of Ed guidelines call for consultations. Nfld SC:

1) decision = administrative, not legislative b/c its specific (singular and final) Knight factors (sig impact, directrelationship b/w Min and affected group, nature of decision = final and binding).

2) practice of consulting the public did have effect of creating a legit expectation that the Bd was operating under guidelines which allowed proc fairness. Thus order for certiorari granted.

Nfld CA:3) process was administrative (b/c about one specific school) and not legislative. But denies fairness b/c not legit

expectation of consultation (no evid parents actually believed past practice would be followed).4) But if administrative, then fairness should attach!

case important b/c links legit expectation with doctrine of estoppel see legit. expec.

Lazarov (1973) FCA -application winner case

application for citizenship denied where application refused not on policy but for reasons particular to applicant, importance of citizenship, applicant hasright to know sufficient info on grounds for denial (gist is good enough)

Administrative decisions where cut with policy (eg. prison emergencies, dangerous offenders release, zoning)

FAI Insurance (1982) Australia Cabinet w power to renew insurance providers license to provide workers comp. FAI, had license for 20 years, but

warned to improve. It didnt. License was not renewed. FAI sought declaration of right to be heard beforelicense revoked.

FAI won on ground that: entitled to hearing before livelihood denied had a legitimate expectation of a fair hearing (past practice)

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not impossible for Cabinet to have heard them.

Liverpool Taxi (1972) QB CA forfeiture Taxi drivers told that if government ever changes K of # of taxi licenses available it would inform them first and give

them an opp to be heard. Of course, it did and it didnt inform them. Taxi drivers had a legit expectation of a hearing expressly promised see legitimate expectation

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(2) THE RELATIONSHIP BETWEEN THE DM AND PRACTITIONER

Is it an employment relationship?For master-servant relationship, there is no fairness because it was privateFor office holder at pleasure (Knight) and probationer (Nicholson), get some fairnessFor cases requiring no discipline or discharge without cause (Paine and Law Society discipline cases), there ishigh fairnessFor pure cut-back cases in employment, little fairness (pure policy)

Knight (1990) SCC -also seriousness of impact Bd of Education didnt renew K of Director of Educ. brings action since no notice and no hearing (he is office holder

at pleasure since political appt. pure discretion) duty of fiarness does not depend on doctirnes of employment law but on fact that Bd of Ed = public body. Factors to determine if fairness due:

(1) nature of decision(2) relationship between DM and petitioner (3) effect of decision on indiv(4) context/circumstance

Fairness owed b/c:1. decision was final and specific to individual2. employment relationship had strong statutory flavour (i.e., to what extent is the position created by statute;

and does the statue set out the duties and responsibilities of the office holder at pleasure). Ct said there isentitlement to fairness for office holders at pleasure when they lose their job it ensures awareness of allcircumstances, should at least have opportunity to process

3. very serious impact on indiv - losing job4. Although there is a duty of fairness, it was met! Knight simply lost at negotiations no structured hearing reqd if indiv had knowledge of reasons for dismissal (both sides had suffic opp to hear

each others concerns/reasons) communication of general reason is suffic -- no need for full and complete disclosure of all reasons (b/c BD

still has discretion)

Nicholson (1979 SCC) -also seriousness of impact probationary police officer doesnt get same rights as police officers when being disciplined officers got hearing and

right to appeal, probationer got nothing Brd after 15 months didnt renew K, without reasons

crt said losing job during probationary period is not the same as losing permanent job, so board has some discretion, but must act fairly should have been given some explanation and some right to appeal. ct will read in fairness depending on the circumstances looks to the seriousness of the outcome (job loss)

Paine (1980) -also case of attitudinal bias denied tenure for teaching fairness attaches since need cause to terminate but case really about bias Where there is an inequality of bargaining power, there is extra fairness needed

Webb fairness also owed because of serious impact of decision fairness is especially important to those most vulnerable who need protection from arbitrary and unconscionable acts

of public authorities here she would be kicked out on the streets she is on social assistance and relies on public housing

Is there a high volume of cases? as a practical matter it diminishes fairness obligation ( Mathews v. Eldridge (US)) but administrative convenience not

enough to satisfy s.1 - Singh

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Is it a case of Legitimate Expectation of a hearing? There is a legitimate expectation created: if the decision maker made an express undertaking to consult or hold hearing

prior to decision, or has established a past practice of doing so, or is bound by policy dictating consultation

Liverpool Taxi (1972) QB CA taxi drivers told that if govt ever changes K of # of taxi licenses available it would inform them first and give them an

opportunity to be heard it did and didnt inform them

taxi drivers had a legit expectation of a hearing expressly promisedCouncil of Civil Service Union (1985) HL -also issue of national security

40 yr past practice of consultation with union before employment conditions altered then order made withoutconsultation

legit expectation arises from an express promise or from existence of practice which applicant can reasonably expectto continue

the legit expectation warrants consultation, but issue of national security trumps

Bezaire (1992) On. DC school board decides to close 9 schools because of finances no consultation with parents before decision made,

where there was policy to consult them the relationship was shaped by a legitimate expec and therefore fairness even though pure policy decision see nature of decision and serious impact

Furey (1991) Nfld CA school board closes one school down without consultation with parents parents involved in decision to consolidate

schools 2 years prior and guidelines of dept of education calls for consultations CA said process was admin (one school) and not legislative but denied fairness because no legit expectation of

consultation (no evidence parents actually believed past practice would be followed) strange decision, if admin, fairness should attach

Old St. Boniface (1990) SCCResidents Assoc. claims it had the expectation that there would be no further zoning developt until new city plans in

place - a process in which they expected to participate. Legit expect. doctrine only affords a party affected by decision of a public official an opp to make representation in

circ. in which there otherwise would be no such opp . Thus no claim b/c of all other procedural protections provided for in legislation

Canada Assistance Plan (1991) SCC -current Canadian law on this CAP authorized fed govt to enter into agreements with prov. for sharing costs of prov. social assistance program

statute provides 1 year notice before agreement can be terminated got no notice prov. challenges Bill, not just on no notice, but that they had a legit expectation of being consulted and that feds

couldnt change Bill without provincial consent Sopinka said cant use legit expec to achieve a substantive outcome, can only get hearing entitlements (will use it if no

other basis for fairness) right to a hearing not available for purely legislative decisions doctrine cant prevent govt from introducing

legislation

Council of Civil Service Union (1985) HL -also issue of national security 40 yr past practice of consultation with union before employment conditions altered then order made without

consultation legit expectation arises from an express promise or from existence of practice which applicant can reasonably expect

to continue the legit expectation warrants consultation, but issue of national security trumps

Aurchem (1992) FCTD used doctrine of estopped to find that past practice of accepting applications in other than stat-required form

required notice before stat. could be applied.

Kioa (1985) Aus.

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Legit expectation only valid claim if DM knew of applicants expectation - had expressly promised or induced areliance in indiv then legit expectation claim valid.

Sunshine Coast Parents for French v. Sunshine Coast School District (1990) BCSC seems to suggest that only those who are aware of prior consultative practices can actually rely on those practices to

generate a claim of legitimate expectation affirms idea that legit expectation does not apply in circumstance of legislative decision making.

We can also look at CONTEXT under this heading important in prison safety, informer safety, national security(Council of Civil Service ), public safety, emergency all cases have less fairness owed due to the context of thesituation since immediate action needed or because of factors involved

EMERGENCY CASES Sometimes nature of situation requires immediate action w/o a hearing. emergency, national security cases can affect amount of fairness owed. Martineau & Cardinal & Gallant set out this principle. When emergency no fairness owed in the moment but, to adhere to pro. fairness requirements, the action must be:

interim open to subsequent hearing (Randolphe(1966) SCC p.74)

Council of Civil Service Union (1985) HL -also issue of national security 40 yr past practice of consultation with union before employment conditions altered then order made without

consultation legit expectation arises from an express promise or from existence of practice which applicant can reasonably expect

to continue the legit expectation warrants consultation, but issue of national security trumps

see also Chiarelli

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B. CONTENT OF FAIRNESS

Once you are entitled to fairness, then the basic requirement is the right to adequate notice of the case to meet; and adequate/meaningful right of reply

it is essential not only to prevent abuses by people making false accusations but also to give the person assurance that sheis not being dealt with arbitrarily or capriciously Gough

(1) ADEQUATE NOTICEElements of Adequate Notice:a) form is usually written not oral

b) manner of servicec) timed) content: should be clear, unambiguous, sufficiently detailed. Should not misrepresent case/facts or be ambiguous.

(b) Manner of Service:

If decision affects a large and indefinite # of people in indeterminate ways - public notice will probably be sufficient.(Hydro giving notice to people in Eastern Ont via newspapers circulated in area with some personal notice tomunicipalities & ind = suff. Joint Brd and Hydro (1985) ONCA) . The Southwestern Ontario case had a defectivenotice as the area described was less certain than the Eastern Ontario case.

(c) Time adequate notice to frame a reply? depends on nature of interests and issues Esp. if right to appeal has a time limit, notice must be sent in time to allow ind to prepare for appeal. If poor method

of service is chosen (mail) should not deprive ind of right to appeal. ( Winnipeg v. Torchinsky (1981) Man QB ) In fact, Rymal (1981) ONCA suggests that there can be JN taken of late mail - should not deprive claimant of their

rights.

(d) Content notice cant be misrepresentative you should always know notice is directed towards you Central Ont. Coalition notice cant be ambiguous or vague it must state potential outcomes/penalties which could arise to understand whats

at stake and importance of attendance/participation ( Taylor, Chester )

Adequacy of Disclosure of Particulars of the Case to Meet To a large extent, whether you are entitled to no more than the gist or need detailed particulars follows from theanalysis of the threshold question

a decision barely across the threshold from purely legislative will get you the gist only ( Knight, Nicholson , schoolclosings)

a decision with serious potential impact based on facts or fault will get you details (professional discipline, sexualharassment, fraud, non-renewal of long-standing license, parole revocation)

big individual impact decided via policy will likely fall between (for eg. most prison transfers) big impact but in context of investigation wont secure trial-like process (Masters)

Situations where reasons for non-disclosure will not wash: privacy or chill on witnesses ( Northwestern Hospital , for racism charge) general prison safety not demonstrably at risk ( Gough, Gallant ) chill on professional candor ( Napoli ) by contrast with impairment on patients well being ( Abel )

Party is entitled to know what evid and representations have been given and is entitled to an adequate opportunity torespond.

Bd cannot consider information which was not put to it w/o claimant being present and/or w/o claimant knowing of this info and having opportunity to respond. (Discipline hearing of Univ Prof. Additional info given to Board at dinner by Univ. President. Kane v. UBC

(1980 ) SCC. Similar to Munro ) Thus, clearly, notion of full disclosure is already part of fairness set out in Nicholson , but issue here is required

degree of disclosure -- Do claimants get level of info normally granted in civil litigation & crim proceedings(Stinchcombe )?

What degree of disclosure is required to meet duty of fairness?

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(i) Cases where you get more than the gist

OHRC v. Northwestern Hospital (1993) Ont. DC complaint of racial discrimination made by nurses against a doctor the board of inquiry ordered to give hospital all statements made by the complainants and identity of all complainants it was argued that disclosure would discourage the victims from making complaints if they knew their original

statements might be carefully scrutinized later (Chill factor)

the court said that these are serious allegations and the complainants should realize that these allegations are seriousand should be made that way therefore, privacy of witnesses not enough to stop full disclosure in serious allegation and impact case

Napoli & Workers Comp Brd (1981) BCCA N awarded only 5% disability pension so appealed he got a 4 page summary of his file but board declined to disclose

his medical reports on file. the court stated that the files ought to have been disclosed

the summary was inadequate the medical reports contained several damaging statements and serious allegations made to WCB from

medical experts of their opinions. He should be able to respond to them (how can respond when hedoesnt know exactly what he is responding to?) Credibility at issue.

the court stated that since Ns future is going to be shaped by tribunal decision, a high standard of justice is required therefore, professional candour of experts does not stop full disclosure in serious impact, individualized fault/fact

based case

Re Abel ( (1979) Ont. D.C. affd (1981) Ont .CA advisory board reviewing psych patients and making report to LG including recommendations for release applicant

wants disclosure of files (especially report submitted) crt said there was a serious liberty interest at stake high impact crt also said brds decision really final report important and should know case against him but mitigating issues

where producing documents are harmful to the administration of the centre and possibly detrimental to the patient so some disclosure given, not all

liberty interest gives disclosure, but detriment to patient and centre limits the scope of the disclosure (not fulldisclosure)

Gough (1990) FCTD (also a s.7 case) G on liberal parole for past 5 yrs because of complaints, parole suspended and revoked at hearing, details and places

of alleged incidents or names of victims never revealed b Parole Board. G seeks to quash per s. 7 due to non-disclosure

court said there was a high liberty interest here (s.7, fund justice operates on a spectrum varying with circumstances)since conditional but close to unconditional

the court also noted how it didnt make sense that if charged criminally, hed have more rights (full hearing) s.7 infringed by refusal to provide him with confidential info upon which Bd was relying. No justification: Bds

decision quashed crt said the assertion of prison and inmate safety was not enough here you just cant assert it every time (there will

always be a security concern) G has right to full answer and therefore full disclosure ct rejected arguments that plaintiff doesnt require disclosure b/c already knew the case against him to enable him to

respond intelligently. therefore, because of high liberty at stake, prison safety, when not a serious concern, will not stop full disclosure RULE: entitlement to know and respond is essential to prevent abuses by people making false accusations and to give

accused person assurance that hes not being dealt with arbitrarily or capriciously. Administrative conveniencedoesnt justify denial of justice.

*contrast with Gallant

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Masters (1994) On D.Crt Masters accused of sex. harassment. Investigation conducted and Masters was reassigned to another position. Masters

claims loss of right to cross W, no list of W, no copies of notes... got more than the gist entitled to know case to meet- but not a full hearing office holder at pleasure, like Knight but because of serious impact on job and reputation and individually fault based

entitled to more than the gist But, trial-type hearing is NOT mandated/necessary:

no active steps taken to hinder Masters case

Masters counsel provided w an opp to interview the emp who wished to be questioned Masters given final right of reply to completed report - knew case against him Masters given right to reply to all additional details.

Master thus given more than necessary - opp to know allegations against him and to state his case before the Premier considered the matter.

Also recognizes importance of tailoring the procedure to protect his complainants.

Other cases where you get more than the gist include all those cases under the threshold question where the impact of the decisions were serious, and the nature of the decision was specific to the individual (fact or fault based)BUT you must always take into account the context of the situation which might reduce your right of disclosure tojust the gist

(ii) Cases where you JUST get the gist (or maybe a little more)

Gallant (1989) FCA (also a s.7 case - key case in looking at Charter effect on administration law; identity of sources) G was prison inmate suspected of drug-dealing and extortion Warden wanted to transfer him to high security pen.

he was given notification of claims but nothing specific enough to be able to refute the claims the claim wasvery general to protect his sources. At issue: what disclosure is required? Is s.7 violated?

Pratte: said fairness owed because liberty reduced (s.7 infringed), with so grave an outcome more disclosure is neededto meet principles of f.j. but s.1 saves it because of the circumstances (prison/informer safety and liberty notfully at risk).

Marceau: said there is a liberty interest, so fairness owed, but when looking at fairness you must look at the context/circumstances. Because of prison and inmate safety, no further disclosure was possible, so s.7 not infringed (nodeprivation of fairness)

said content of fairness varies with circumstances (must always be looked at when looking at how much fairnessowed) here they met the requirement: not as much fairness required when just transferring an inmate from one

prison to another. Decision to transfer not based on indivs innocence or guilt but value of info from sources.

If purpose were punitive, more particulars wouldve been required. (McIntyre likes this decision makes more sense) Desjardins (dissent) said serious impact so entitled to more fairness why should we trust informants. Because of serious concerns of prison safety (and reduced liberty at stake), you cant get full disclosure

*contrast with Gough

Egglestone E requested disclosure of hospital file under Mental Health Act (like Abel ) Chair made an order only permitting his

counsel to read it, only in the presence of member of Brd and only on condition that it would not be disclosed to E E also sought disclosure of psych notes and right to cross-examine them he was refused notes and right to cross but

could be present when report heard order struck appropriate balance between the rights of patient to disclosure of relevant facts and right of Brd to

preserve confidentiality of info in sensitive areas (safety of doctors) full disclosure not allowed because of circumstances, but still had some right to disclosure for right of reply (not full

disclosure)

Lazarov application for citizenship application was denied because of confidential RCMP info application refused not on policy but for reasons particular to applicant the applicant has right to know sufficient info on grounds for denial to properly respond crt said that the gist is enough to give fair opportunity to state position, dispute or explain

if agency is simply carrying out its regulatory function, and admin proceedings are not similar to crim case NOdisclosure just because info sought is relevant parties entitled to facts which will be relied upon in order to

prepare their case, but not entitled to anything more

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must be express statutory authority to make pre-hearing discovery orders (eg. Cdn Pacific Airlines (1993 SCC) labour relations brd without such power at investigative stage) but authority can be found in SPPA s.12,s.8)

SPPA s.12 trib have authority to require any person to produce in evid documents and things specified by thetribunal relevant to the subject matter of the proceedings and admissible at a hearing.

SPPA s.8 When the good charac, propriety or conduct or competence of a party is an issue in a proceedingthe party is entitled to be furnished prior to the hearing w reasonable info of any allegations w respect

thereto.

other cases where just entitled to the gist include purely legislative, administrative, or policy decisions (eg. Knight ,or Nicholson ), where no serious impact on individual or if so when policy based and not fact or fault based

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(2) MEANINGFUL RIGHT OF REPLY

A meaningful right of reply could include the following:1. oral hearings (where credibility at stake Singh )2. open hearings presumed that way3. right to counsel (factors determine it Howard )4. right to cross-examination tends to go along with oral hearing

Other areas attached to meaningful right of reply include:5. reliance on information not disclosed6. where Act is silent on process available7. denial of statutory right of appeal8. unfair delay9. evidence issues

1. Oral Hearings The main argument is that oral hearings are needed where personal credibility is at stake Singh, but where this is

argued, you have to explain why credibility is at issue If have received pro fairness and used pro fairness available to you and never asked for oral hearing or had an legit.

expectation of one, cant claim oral hearing as last ditch effort. (Lloyd v. McMahon (1987) Eng HL -54) alsosee Hundal below

You wont get a full hearing for everything and there is always a trump card public safety court reads with or without hearing to mean full hearing see case below

Hundal (1985) BCCA H had terrible driving record license suspended right of superintendent to suspend on public interest, with or without

hearing he said liberty interest infringed H lost he waived his rights to individually challenge tickets when on probation he didnt protest, so a hearing would

have added nothing he also had a right of appeal and could exercise that right In this case, driver had plenty of warnings and did not use his rights (see above). All reasons for fairness in this case

are minimal. Also can use public safety as trump card (Pratte in Gallant: suspended w/o adequate notice, soinfringed s. 7, but saved by s. 1 for public safety).

Masters (1994) Ont.DC *this case qualifies Singh office holder at pleasure complaints of sexual harassment from 7 women (45 witnesses interviewed) didnt

discharge him, but transferred him

investigation concluded women harassed M replied, investigators reexamined, then M allowed to respond to them inwriting not given names of witnesses (so he could interview himself) and examiners, interviews not in presenceof his lawyer, wasnt given questions asked or transripts he wanted to cross-examine them

crt said there is fairness owed even though office holder at pleasure since individual fault finding affecting job andreputation so oral hearing given

qualifies Singh credibility is at stake, so oral hearing required at some point in hearing

but this is not final word it all depends on what is at stake and whether its an investigation only you must gothrough facts to distinguish it you might need only oral or only cross, or both

in this case, M was given right to reply to completed report (knew case against him) and given right to reply to alladditional details

he had the opportunity to know the allegations against him and to state his case before the Premier considering thematter

also said full hearing not needed cant cross examine it is an investigation, not an adjudication2. Open Hearings

Hearings are presumptively open s.9 SPPA Sometimes privacy interests favour closed hearings Prof. discipline hearings often closed to protect members reputation

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3. Right to Counsel This right only matters when have an oral hearing, since when you have a written exchange hearing, no one can stop

you from using a lawyer

Howard v. Stoney Mountain (1985) FCA H was inmate of Stoney Mountain with 5 charges against him-when appeared before discipline committee he was

denied counsel s.7 challenge

under s.7, had to determine if inmate had opportunity to adequately present his case crt said right to counsel exists under some circumstances, disadvantaged individuals particularly need to consider: seriousness of charge and of potential penalty

whether any points of law likely to arise capacity of a particular person to present his own case (literacy level..) procedural difficulties need for reasonable speed in making adjudication need for fairness between prisoners and between prisoners and officials

Thus, right depends on nature, gravity, & complexity of the case, & capacity of the inmate to understand & presentcase

Winters Undue delay in appointing counsel b/c prison said it was an emergency. Court rejected the claim, assertion of

emergency without any other reason is not enough.

Joplin (1982) BCCA Police Act grants right to counsel where discharge or demotion possible. Otherwise A has right to be represented by

fellow police officer Provision struck down as ultra vires - legislature would never have meant for prov. to survive the Charter. Potential penalties too serious to be deprived of counsel - in police type of structure, any charges of innapropriate

conduct affect persons entire career. Potential impact dictates right to counsel.

4. Right to Cross-Examine s.10(b) SPPA: A Party may, at an oral hearing conduct cross-examinations of W at the hearing reasonably required for

a full and fair disclosure of all matters relevant to the issues in the proceeding. This right tends to go with oral hearings usually when credibility is at issue Statute may give board power to control its own procedure (Manning ) Oral cross-x might not be necessary in some situations (McLab) or premature (Manning) or innapropriate (where chair has investigative not adjudicative functions)

Innisfil v. Vespra (1981)SCC discusses the importance of cross x opposing municipalities entitled to cross official who presented letter stating govt policy allowed because cross-x is a vital element of the adversarial system, and where the rights of the citizen are involved

and the statute affords her the right to a full hearing, legit expectation of cross-x exists Consideration cannot be based on whether or not evid would actually advance claimants case but rather must be about

is this the kind of case in which the evid should be admitted.

Strathcona and MacLab (1971) Alta SCAD brd wanted to rezone an area brds decision challenged on ground that area unsuitable for residential housing

because of nearby industry challenge successful since claimants never given opportunity to test all of brdsevidence

no need for cross-x as there was meaningful right of reply claimants given opportunity to submit competing scientificevidence

therefore, even when right to oral hearing and to call witnesses and evidence, dont always get right to oral cross-x (itcan be written) sometimes its not necessary

Masters @ page 12 said full hearing not needed cant cross examine it is an investigation, not an adjudication

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Re B and Childrens Aid (1987) On Div Crt Childrens Aid society wants to register B in Child Abuse Registrar. Childrens Aid does not call child to testify

however b/c she since retracted her statment. Childrent Aid wants to rely on hearsay evid of Cs first statementto them

Crt holds that where A denied right to cross-X alleged victim - admission of hearsay evid = denial of natural justice - alot of stigma to have name of registrat - serious impact.

Other important aspects of meaningful right of reply:

5. Reliance on information not-disclosed violates fairness Brd cannot consider information which was not put to it w/o claimant being present and/or w/o claimant knowing of

this info and having opportunity to respond. (Discipline hearing of Univ Prof. Additional info given to Board atdinner by Univ. President. Kane v. UBC (1980) SCC - 43 Similar to Munro )

It doesnt violate fairness where in public domain or within expected range of boards expertise (Innisfil)

6. Where Act is Silent on Process Available Where Act is silent re whether a particular process is available, board must exercise discretion to consider whether it is

needed in a given case ( Abel )

7. Denial of Statutory Right of Appeal Denial of any statutory right of appeal probably not unconstitutional (Chiarelli) This makes sense given there is no right of appeal unless a statute grants one

8. Unfair DelayKodellas (1989) Sask.CA

set out factors for determining delay:1. was delay prima facie unreasonable? for eg. look at volume of cases and compare them to other courts (if time

elapsed is greater than normal)2. why was there a delay? look at whose fault it is, if respondents fault cant come back and complain3. did respondent at one point waive concerns about delay4. was there in fact prejudice to adequate/meaningful right of reply? for eg. have to ask whether there is a real harm and

whether you can still get witnesses it must be actual/substantial prejudice and not just procedural delay in this case, the 2 yr. delay was per se unreasonable it was not caused by respondent or complainant but by the

board, there was no waiver, prejudice turns on 50 witnesses that wished to call (articling student reached only12)

crt not really sure about prejudice on 50 witnesses (could have hired an investigator), but satisfied that prejudiceshown

Nisbett (1993) MBCA sexual harassment claim delay is 2 years one of the complainants drop out court said reputation and stigma may cause delay to be prejudicial but didnt find enough on the facts to find prejudice crt said just procedural delay, absent mals fides, is not sufficient must establish substantial prejudice on the facts N was also partially responsible for the delay

Problem is that every HRC is delayed if this doesnt stop soon, there will be an Askov problem

9. Evidence Issuess.16 SPPA : A Trib may, in making its decision in any proceeding

a) take notice of facts that may be judicially noted b) take take notice of any generally recognized scientific/tech facts, info or opinions w/in its scientific

or specialized knowledge

Judicial notice/official notice Brd intending to rely on a prior decision as precedent must give parties notice so they can respond -but if they use it

just as an example and not as compelling evidence there is no need to alert parties ( Innisfill ) A board cant rely on outside information or research without making research available to parties and giving them

opportunity to respond ( Lawal (1991) FCA & Cable TV Assoc. v. Am College Sports (1991) FCA)

Admissibility of Evidence

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Administrative boards are not bound by civil or criminal rules of evidence there is more relaxed standard (Laroque ) The fact that admin boards apply different rules or standards from the courts is not open to challenge (although the

choices they make are) The test is always was right to make meaningful reply impaired?

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(1) PECUNIARY BIAS

RAB TEST:Would reasonable person, reasonably informed about the DMs financial or potential personal stake -- possibility of career advancement, commercial competitive gain -- reasonably apprehend conscious or unconscious predisposition towardoutcome? Must not be speculative, remote, too uncertain or contingent, or only possible at some future date.

The key principle is that no man is to be a judge in his/her own causeIt doesnt matter how small the interest is, as long as its direct and not too remote

Armstrongs Point : member of municipal board was co-owner of a property which might increase in value as a resultof the decision -- decision quashed

Moskalyk pharmacist in small town loses license member of peer review panel is competitor pharmacist there --direct pecuniary interest bias

Matsqui Indian Band member on tax appeal brd said gain from taxes too remote, too speculative and too generic Pearlman argues that if he was disbarred, it would decrease competition between lawyers -- said too remote no

bias Energy Probe owner of cable co which supplies Nuclear power plants on Brd deciding to renew the license found

no bias no present interest, too speculative, depends on market and contract tender Marceau (which McIntyre agrees with): if facts established and reasonable expectation of gain, its enough (but no

facts here) -- found no bias, no present interest, too speculative If pecuniary interest is remote, is it too remote that reasonable people informed on the facts would not find a

reasonable apprehension of bias

Sethi (1988) FCA Convention refugee claims bias b/c govt bill makes Immigration Brd memb open to reappointement. Brd memb no

longer indifferent. NO bias. Cant hold that Brd memb would try to please govt - Cant hold that govts interestis in rejecting refugees -Cant hold that b/c Bill tabled, Brd memb will respond to it.

chilling effect on democratic process

Burnbrae Farms egg producer loses license and claims other producers on the tribunal have economic interests inconflict with him -- no bias Legis requires 7 or 12 memb of agency be egg producers from other prov.also against Actscheme

(2) NON PECUNIARY INTERESTS

RAB test : would a reasonable person informed of the facts (aware of composition of brd and type of decision(context)) viewing the matter realistically and practically, reasonably conclude there is a reasonable apprehension of

biasThis test is for non-direct pecuniary and non-pecuniary seen in National Energy Board

(a) Antagonism

Must be unreasonable aggressive questioning, gratuitously disparaging comments, harassment of witnesses, hostile,etc. (not just eye-rolling or disengagement)

Gooliah and Golomb unreasonably aggressive questioning or comments about testimony --bias

Yusuf questions were unfair and sexist comments made to refugee claimant; Such acts esp significant when theTribs role is to determine if credible basis for claim advanced and where claimant only W --bias

Baker (1999) judges comments on deportation to Jamaican immigrant were: she was a drain on society and we dontneed this kind of immigrant -- bias

Brett judge suggesting to lawyer what objections should be made aiding other side -- bias

(b) Prior Association

Prior association is between decision maker and one of partiesMust look at context did leg. contemplate the board needing to contain within it some prior association people? (eg.labour boards have no bias since prior association anticipated and experience required)

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Marques and Dyles one of OLRB member was lawyer who worked at firm which did work for union who is party --no bias since Act requires tripartite boards and members with expertise (and it is a small community, so nowhereelse to go)

Armstrongs Point member of boards wife one of parties exec --bias Ontario Hydro conflict of interest lawyer who represented Hydro for 10 yrs cant now sit on brd hearing Hydro

arguing rates 8 years later -- bias National Energy Board prior dealings on the very application and helping establish feasibility and support would

raise a RAB (that he would be in favour of what he was in favour of) CNG Transmission v. NEB former chair contacted present chair personally to set up meeting, who had listened tosubmissions and decided -- bias

Therefore, no bias if prior association is really simply basis of expertise or statute designed as in tripartite labour boards, but will be bias if board member directly involved in matters ultimately before the board

(c) Structural Bias (overlap in institutional functions)

This has to do with involvement of decision maker in an earlier phase of the decision (eg. same people investigate andadjudicate) its an overlap in institutional functions

Is it inevitable, contemplated by statute (eg. Brosseau -no bias) or avoidable, beyond statutory duties (bias)? Absence a bill of rights or charter challenge, overlap itself, if provided by statute, wont constitute a RAB unless

something else happens outside of leg. mandate, you probably cant make out a claim (can attack leg. under bill of rights or charter) Problem is that there is an inference that a commission that has expressed views will spill over into adjudication

(worry they are vested in interest) also when investigate and then adjudicate, its like judging your own cause its a problem

Brosseau (1989) SCCThere are 2 functions in the regulatory agency chair of commission at hearing was also the one who ordered theinvestigation and has a copy of the report

found NO bias at c/l overlap contemplated by statute and chair did not go beyond statutory duties commissionintended to be composed of experts

rule is: if staute gives authorization, it is not bias per se (especially with multi-level body, and some action beyondlegislative duty needs to be found before bias can be found)

Manning (1995) ONCA legal conclusion that penny-stock traders and M in a case were involved in unfair trading policies commission launched investigation against M on basis of which made policies on basis of which they prosecuted M on the challenge of the commissioners as a body, it is expected that the other commissioners bring their background

knowledge to their job, so there is no impartiality the new commissioners are not tainted so no RAB on challenge of commissioners who had a role in the proceedings defending the policy, drafting the press release

(work related to the policy), they were found to give a RAB since they read or prepared or supported a previouscase and continued to support it there is a right to no pre-judgment

on the challenge of the 4 articles by the chair there was no RAB for the articles since not a pre-judgment of guilt on the challenge of bias against chair of commission who delivered press statement, there was found a RAB he sat

on many of the hearings and defended the policy and findings overall, there was a RAB on all commissioners except the new ones the chairs attitude doesnt filter to everyone

Gale/Backhouse or (A & P) (1993) On DC

B on HR brd appointed to hear Gs claim of sexual harassment B also claimant in Osgoode systemic sex discrimcase found bias B in position to vindicate the position she took as a complainant in similar case therefore, someone who is a complainant, cant be an adjudicator on the same issue

McBain (1985) FCA HR commission mediates, investigates and adjudicates on sexual harassment complaint M complains that s.7 and Bill of Rights violated because commission chooses judge for a complaint it already deems

substantiated CHRC is both prosecutor and judge court said that the overlapping function caused a RAB YES Bias

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Direct connection b/w prosecutor of complaint (CHRC) and DM (Trib). Cannot judge your own cause and cannot choose judges to do so either. Scheme = inherently offensive b/c uses word substantiate to both investigation + hearing.

therefore, an overlapping structure built into statute breaches s.7 of Charter and/or Bill of Rights RAB due to this finding, there was a separation of functions

*but contrast with Idziak

Committee for Justice and Liberty v. NEB (1978) SCC

Mr C. was part of exec of group of co. who want to construct gas pipeline. Now Mr C. is Chair of NEB hearing theapplication for construct. of pipeline.Clearly Bias - Mr C. had a hand in developing & approving impt underpinnings of application now before him.

Vespra (1983) ON DC Application to annex Vespra made by Barrie. Memb of Brd = all those who heard original application & were clearly

in favour of Barrie. Also, Brd didnt allow any new evid in. Clearly Bias - Brds statments from last application v. emphatic and suggest clear leaning. Also relied on old evid w/o

regard for new developts & changes New hearing before a difft panel required.

Idziak (1992) SCC M both decides whether to proceed with extradition request and also appoints agent to prosecute matter at extradition

hearing.

NO bias - M just appoints prosecution NOT judge. Ind has full procedural protection of a hearing.

Jones (1986) SCC School Dept official decides if suff proof of effective instruction to warrant allowing a child to be taught outside of

school sys. NO bias - Part of Official job is to be committed to school system & to ind. child.

Cant make any seeming conflict of interest into RAB

Law Discipline cases: (dont need to know for exam) Law Society v. French law society discipline committee finds F guilty of misconduct and recommends suspension

recommendation heard by Convocation where 2 members of committee attend majority said no bias (its not a 2-stage process but one continuous one) and minority said it was a 2-stage process

(like an appeal)

Emerson agrees with French one continuous process then need full fairness from day one McIntyre disagrees with these cases doesnt make sense

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(d) Attitudinal Bias

2 general rules: no need to prove actual bias, appearance of bias is enough to establish breach of fairness, whether biased members

bias swung a majority is irrelevant the right to an unbiased hearing is an independent right and a finding of bias will quash this bias is rooted in the decision makers history, experience, publicly expressed partisan views, etc.

Factors:1. Depends on speech taken in its entirety Pickersgill2. Depends on stage of process lower standard if pre-hearing Nfld. Tel3. Depends on composition of the board: Tripartite (Dylex ), experts with expertise in field (NEB), pluralist political mix

where partisanship contemplated (Nfld. Tel), politicians elected on exactly the same issue being decided (Richmond,Old St. Boniface)

Standard :Sliding-scale standard applies:a) RAB - court-like; once hearing date settled (bit lower) & mid-hearing (bit higher)

b) No Closed mind - legislative; pre-hearing; policy issues

Quasi-Judicial & ----------Administrative--------- Purely LegislativeAdjudicative

RAB Closed MindPersonal Interest Prejudgment

If complainant, want to avoid the close minded test b/c very difficult to establish that someone has a final opinionwhich cannot be dislodged - need to juggle the grid to get to RAB.

(i) ADMINISTRATIVE

Re Paine (1981) ONCAapplication for tenureship one member of dept. recommended it to be declined, one appointment on committee

declined and negative member appointed tenure denied 5-0found no bias deference to internal decision making process all members will have an opinion (the committee is

not just supposed to hear from positive opinions)one member with previous opinions would not dominate (and it was 5-0)

therefore, absent a flagrant violation, the courts will defer if having opinions is part of the terrain and they are candidly expressed prior to being on the panel, there is no bias inlaw

Gale/Backhouse or (A & P) (1993) On DC B on HR brd appointed to hear Gs claim of sexual harassment B also claimant in Osgoode systemic sex discrim

case found bias B in position to vindicate the position she took as a complainant in similar case therefore, someone who is a complainant, cant be an adjudicator on the same issue

Large (1992) On DC HRC hearing on whether mandatory requirement was a BFOQ Chair has argued against mandatory retirement and

favoured flexible approach found no bias mandatory requirement not at issue, just whether its BFOQ

Chair only advocated an approach, didnt dedicate his life to it HR boards supposed to have expertise and experience this case conflicts with the previous one

Manning (1995) ONCA Corporate Taint Ont Securities Comm launched investigation against Manning on basis of which made certain policies on basis of

which they prosecuted Manning. Pres. of OSC made comments to media re: trends in securities indus. NO attitudinal bias on part of president: Speeches, policy statements part of his job and didnt single anyone out.

(ii) LEGISLATIVE

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Old St. Bonafice (1990) SCC body implementing policy zoning decisions made by elected politicians city council (who is pro-development) sits

on hearing he was elected because pro-development and statute calls for hearing

crt said no bias when elected officials are doing what they are elected for, making by law or policy, a broadapplication is used (if entitled to a hearing)

challenger can only make out bias in law if boards mind was already totally made up (must be Closed Minded) Save Richmond

twin case says the same thing but in dissent says that the test should be whether they are corrupt and not whether theyare closed minded

The standard for policy makers implementing policy is close-mindedness : must be amenable to persuasion thelogic for this is that politicians shouldnt be disqualified for following through on their campaign promises or known

partisan ideas but where context calls for a hearing, they cannot have completely pre-judged the issue or the hearingis a waste of time

(iii) QUASI-JUDICIAL

Nfld. Tel (1992) SCC Wells is advocate for consumer rights, member of board for regulation of Nfld. Tel board is to hold hearing on

accounting W speaks to media before and throughout proceedings expressing very strong views and intentions(**he was chosen for the board because of his views and his expertise though, so expertise does not equal biashere)

crt found that the statements he made before the hearing are alright there is no evidence of closed mindedness (justopinionated) wide scope allowed without being biased

BUT, crt said from the moment the hearing is announced, the standard shifts from closed-mindedness to RAB (higher standard) and especially statements made during hearing at this point, fairness requires members to conductthemselves so that there is no RAB

The standard for those exercising quasi-judicial functions the same for courts would a reasonable and fair-minded person reasonably informed of the circumstances reasonably apprehend bias? (test comes from NEB)

where the type of body or decision falls in between, timing of imprudent remarks is critical: more latitude is extended pre-hearing than once hearing is scheduled and commences (Nfld. Tel pre-hearing std is

closed-mindedness and RAB kicks in once date of hearing set)

but it is doubtful that closed-mindedness applies pre-hearing to trial-like proceedings or that RAB kicks in if there are12 months between setting date and commencement of hearing

R.D.S. (1997) SCC applies NEB test 3 opinions all agreed on test; presumption of impartiality so onus on challenger to show RAB; bias is a state of mind

and attitude; mere suspicion wont do; its a doubly objective test; law doesnt require judges to be strict with their views; judges do bring in background knowledge

3 judge minority would find her biased read text as all police are biased and read in race stereotypes about PO they see her as making credibility findings on basis of stereotype

6 judge majority found that she only said these things because she was answering the Crowns questions differenceson how to apply the test

Cory :

said her comments were unfortunate and very close to the line says a reasonable person is informed of the social context, but if you want to bring in factors, you better bring inevidence and not reason on generality (it must be fact specific) but her comments didnt give rise to perceptionthat she prejudged credibility

on agreement with Major on test but not application and disagreed with LH-D on how background knowledge could be used

it wouldnt be acceptable if judge went further and suggested all officers shouldnt be believed

Major : also says comments close to the line, but appellant never brought up racism so you cant use it there should be a

neutral

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LH-D : said no judge is neutral but have to be impartial entitled to answer police challenge with awareness of systemic

racism the characteristics of a reasonable person are: aware of judicial impartiality contents and knows equity and the Charter -she says that the comments were entirely appropriate in the circumstances

(e) Institutional BiasIt is the concern for independence and arms length decision making by decision makers2 types of cases: (all depend on formalism):

1. The full-board hearings where policy implications of a particular decision are discussed by all boardmembers (Consolidated Bathurst, Tremblay )

The first type of case requires the actual panel in a given case not be pressured by their immediate superior or their peers so its best if they request a full board, not the Chair of the entire board; attendancevoluntary, no attendance taken, no minutes, no votes; just an open brainstorming which leaves panel withfreedom to use their best judgment.

Consolidated Bathurst (1990) SCC union brought complaint to OLRB that E did not bargain in GF 20 days after CA signed, plant closed hearing by a 3

panel board after hearing, draft decision composed and panel called a full-board meeting to discuss major policy issues (point of law which has large implications on labour law) E challenged full-board meeting for (1) depriving E opp to be fully heard (2) undermining individuality of board majority (Gonthier 5): said no bias full board meeting to foster efficiency, coherence and quality through use of boards expertise in brd decisions meetings do not impinge on judicial independence of board: no decision comes out of meetings, no notes taken,

attendance not taken (its voluntary), discuss issues on facts determined by panel, decision left entirely to panel therefore, meeting is an important element of legit consultation process which does not impinge on freedom of panel

member to decide according to their own conscienceMinority (Sopinka and Lamer): found bias

said meetings potentially influential lots of important board members present appearance of fairness jeopardized parties deprived of opp to present submissions to meeting just because only policy discussed doesnt change fairness fatal decision that policy discussed was not disclosed to

parties

hard to see how it fosters uniformity unless panel open to influence if influence, there was no independence (itscollegial pressure to decide the common way)

Tremblay (1992) SCC T wants cost of bandages and dressings paid for as medical equipment 2 member panel drafts decision favouring T

president of commission reviews draft, disagrees, and writes memo to panel, so panelist asks for full meeting after this one panelist changes mind (by statute, when have a tie, it goes to presidents decision)

crt said there was bias the process was fine IF it was triggered at the panelists request and is free to decide, but hereit was at the Chairs request and therefore undue influence compulsory aspect and fact that president can callmeeting pressure = RAB

here they took attendance and compulsory if counsel saw departure of existing president amounted to compulsory consultation which infringes the independence of the body fact that parties dont get to make submissions is not an issue

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2. Cases where financial or job insecurity may influence decisions (Matsqui ) The second type of case contemplates a certain degree of conflict of interest but not contemplate vulnerability

of being appointed ad hoc or on a fee for service basis and subject to non-renewal if appointer isdispleased with the decision.

Matsqui Indian Band (1995) SCC -Purely case of structural independence Under Indian Act, governing body (Bands) entitled to pass tax by-laws with 2 separate internal appeal structures and 1

appeal on error of law to Federal Court. CP argued that this structure lacked institutional independence and had

institutional bias. SCC agreed.Lamer

rejected bias challenge, found it speculative b/c dont know whos sitting on appeal board at time focus on institutional dependence agrees with Sopinka that policy of promoting self-government is relevant in deciding whether internal mechanism

should be used but not where internal appeal process violates principles of fairness the fact that the tribunal have been constituted within the content of the federal policy promoting self government does

not in itself dilute natural justice , fairness is owed basis for independence comes from Valente (independence is the freedom to decide on merits in each case without

external interference) 3 components:

1. security of tenure : fixed term, no termination without just cause, no termination without full hearing

2. financial security : fixed payment by an arms length process, prescribed by law, not subject to politicalinterference. No direct negotiation b/t judges and govt appointers. Where renumeration is set by govt, nochanges may be made until an independent commission has reviewed proposal and made comments.Commission must be independent, objective, and effective. There must be a level below which renumerationcant fall.

3. administrative independence : judges assign new judges to where theyll be sitting, determine cases, deciderequests for leave, all mechanisms in hands of judges

In this case, dealing with administrative body where contents of independence will vary. Here, payment is allowed to board, but dont require it, there is no tenure in office, and appointed by the Band chiefs (this is bad).

From NEB test: This case leads to the conclusion that a reasonable and right minded person viewing the whole procedure in the assessment of by-laws would have a reasonable apprehension that members of the appeal tribunalare not sufficiently independent.

S, HD, G, I : NO Bias Look to operational reality. Just b/c legis. silent on Valente principles, not enough Also look to purpose - here Aboriginal self-govt. If you ignore purpose of scheme - more likely to look like inadequate process.

Bell Canada v. CTEA (1998) SCC bias found Pay equity complaints were filed with the CHRC against Bell Canada with a Human Rights Tribunal. Bell Canada

raised the question of whether the Tribunal was an institutionally independent and impartial quasi-judicial body.A high level of independence is required as it is a purely adjudicative role and the functions performed by theHuman Rights Tribunal in relation to rights and interests which are quasi-constitutional in nature. Valente should

be applied strictly. A) security of tenure afforded to a Tribunal member whose appointment expires during thecourse of a hearing therefore no security of tenure. B) No financial security as the remuneration of themembers is controlled by the Commission, an interested party in all Tribunal proceedings. Any increase would

be via negotiations between Tribunal and Commission.

Fundamental rights at issue cannot be determined by a Tribunal appointed until Valente issues have been corrected.

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(D) CONSTITUTIONAL THRESHOLD

necessary to turn to the Charter or Bill of Rights when cant obtain fairness under the Knight factors this might occur when the Act itself does not envision any fairness, or only sets out limited fairness, or if it is an admin

agency which applies policies and therefore may not attract fairness

OVERVIEW

1) Constitutionality of a Statutory Provision2) privative protection contrary to s.96 or the 1867 Act - Crevier, Farrah3) statutory powers contrary to s.96 -Residential Tenancies4) statutory power contrary to s.7 Charter

inadequate notice or hearing rights (Chiarelli, Hundal, Singh) overlapping functions creating RAB (McBain) mixture of inadequate procedures and substantive interference with freedom to practice chosen profession

(Wilson)

2) Constitutionality of how a lawful statutory power was exercised in a case inadequate notice and hearing rights - Chiarelli, Gough, Gallant, Nisbett, Kodellas, Hundal all s.7 abuse of discretion discretion not exercised in conformity with Charter - Slaight s.2(b)

3) Bill of Rights procedural fairness challenges - Singh, McBain

Charter The Charter applies to govt actors exercising a govt function or statute or an actor delegated by govt (being public is

not enough) Substantively, the Charter doesnt give you any more than what you would get under the c/l and more ways to get

fairness under c/l (if have claim under c/l might have claim under Charter) Procedurally, if s.7 applies, have s.1 might be entitled to fairness, but justified Under s.7 everyone doesnt involve a corp. is it a life, or liberty, or security interest? if not, dont go to Charter,

go to c/l fairness After threshold, must be deprived of one of the above in a manner not consistent with the principles of fundamental

justice (same as c/l adequate and meaningful right of reply and no bias)

Bill of Rights S.2(e) no law shall deprive a person of a right to a fair hearing in accordance with P of FJ for the determination of her

rights and obligations Applies only to regulations, orders, rules and fed statutes Also applies to corporations, extends to enjoyment of property, no s.1 equivalent

Singh (1985 SCC) -s.7 and Bill of Rights applicant with refugee status applies for redetermination but in order to apply, must satisfy board why they think

theyll win but they dont know why they lost in first place, Minister doesnt have to disclose reasons Held: absence of any opportunity to a hearing at any stage of the process violated s.7

Wilson:(1) govt said it did not apply to non-citizens but yes it does apply

(2) govt said under .s7, it should be read as a unit (must have all 3 deprived) but no, they are read

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