PROCEDUREAL FAIRNESS: The Threshold Test Sources: Common law, Statute and Constitution. In most questions there would be a right to PF under the CL, but the statute takes it away which breaches the Charter.

PF is the right to a fair hearing and impartial DM, NOT the right to a fair decision

STEP 1: Is there a constitutional duty of procedural fairness?Consider: Is there a constitutional duty of PF under either: (a) The Charter

- Does the decision engage s 7 of the Charter by breaching the right to life, liberty or security of the person in a manner not consistent with the principles of fundamental justice?

- Principles of fundamental justice are breached same as PF. (b) The Bill of Rights

- This is federal and applies only to federal agencies. Similar to the charter but protects property interests as well.

- s1(a): “right of the individual to life, liberty and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law”

- s2(e): “no law of Canada shall be construed and applied so as to… deprive a person of the right to a fair hearing in accordance w the principles of fundamental justice for the determination of his rights and obligations”

- ASK:(1) Have rights and obligations determined without a hearing?(2) Is it a determination of a right or obligation, or decision

denying life, liberty, and security of the person and enjoyment of property?

STEP 2: Examine the StatuteDoes the statute remove PF owed under the CL? ** SHE WILL SAY IN EXAM IF THIS APPLIESIf its in there: Say that it supersedes CL.Ex. Statute will say: “we can refuse your application without a hearing” or something like thatNeed clear provision to take away right to PF

- Where unambiguous, the statute will supersede the CLNOTE: If statute says ‘you must give notice—look to CL to see what adequate notice is; ‘must give hearing’—look to CL to see what adequate hearing is

STEP 3: Apply the Common Law Step 1: Is there a right, privilege or interest at stake? 3 factors in assessing whether there was a duty of fairness: Knight (originally from Cardinal):1) Nature of decision: (Administrative v Legislative OR Final v Interim) (a) Is the decision ‘final’ or ‘interim’?

- Final/determinative = duty If JR = final and court can quash decision

- Interim = no duty Right of Appeal clause = interimExceptions: - Recommendation based on investigation (interim) could lead

to a final decision (Re Abel)- If recommendation would have minor impact on final

determination = no duty of PF (Dairy Producer’s Co-operative Ltd v Saskatchewan)

b) Is the decision administrative (ie. specific to the person) or legislative (general effect)?Rule: Look at the nature of the decision itself, and NOT the form of the power being exercised (Homex)Consider: (1) Number of people effected (Homex), (2) Nature of who made the decision (Inuit), (3) Effect of the decision (Homex; School closure cases) and (4) Decision made on broad grounds of public policy falls short of test

Administrative = duty OR Legislative = no duty- “a purely ministerial decision, on broad grounds of public policy, will

typically afford the individual no procedural protection” (Martineau v Matsqui Institution)

If ‘legislative’, do one of these apply:(i) Cabinet/ Cabinet Appeals: Rule: General legislative decisions determining policy of broad application do not attract the duty of PF (Inuit Tapirisat)Inuit Tapirisat: no duty to afford PF to cabinet material. Telephone rates affected vast number of people; Cabinet had vast powers to be able to intervene on own motion/discretionary powers

(ii) By-laws : Rule: if bylaw is directed at one person and it is not of general application, then that by-law will required a duty of PF; however if by-law directed at everyone = legislative- Absurd to allow everyone a hearing- If by-law directed at single person = specific and duty of PF owed

(Homex)- On-going dispute = duty to afford PF (Homex)

Note: If decision is specific and final = duty (Knight- decision final and dealing specifically w him)

(iii) Policy making & school closures: Rule: PF not applicable to legislative or policy decisions. The rationale for this is that it would allow too many ppl to be given a hearing. For PF to apply to a policy or legislative decision, the duty to afford PF must be clearly spelled-out in the legislation (Canadian Association of Regulated Importers v Canada)School closure: difficult to determine whether admin or leg…(say both views)View 1: Admin: b/c duty of PF applies to decisions that affect a finate group and have a high degree of impact (Bezaire v Windsor Roman Catholic Separate School Board)- School closures are policy decisions w broad impact on finite grp

View 2: Legislative: b/c it could be considered a general policy decision

PF will not be given for:1) Government acting for private citizen (Dunsmuir)If there is a K, then look at that K—private employment law will provide for protection for employees through notice period (Dunsmuir)

2) Government tendering/contracting:Government tendering demands that all bidders compete on a level playing field in terms of the call for tenders, and certiorari is available to quash the award of a contract in the event that the process was flawed- If public money spent for improper or in improper manner, the

conduct of the municipality should be subject to JR (Shell Canada)

Facts: Vancouver decided not to do business w Shell; reviewable under PF because:(i) Government not acting purely as private citizen(ii) Government acting outside of its statutory mandate—

disapproval of South African regime beyond what municipality expected to do

(iii) Although decision not reviewable, decisions should be carried out fairly

2) Nature of relationship between decision-maker and the individual: (not always applicable)Rule: Most often the relationship is Public Body and Citizen BUT this element acts as a ‘catch-all’ for thinking about other things that may alter analysis that flows from nature/impact of decision If employment relationship:a) PF applies whenever there is a decision to terminate a public officer whether for privilege or notb) Focus on the nature of the employment relationship/ ‘office holders’ (Knight; Dunsmuir)

(i) No K of employment and the office is purely statutory (ie. Minister and Judges) = duty of PF

(ii) If terms of employment expressly provide for summary dismissal or are silent on the matter/ employment ‘at pleasure’ = duty to afford PF

(iii) If the terms of appointment confer procedural rights = statutorily based right to PF, but no CL right

(iv)If the relationship is purely contractual, should be treated in private law-- look at that K—private employment law will provide for protection for employees through a notice period (Dunsmuir)

3) Effect of decision on the individual’s rights: it was clearly established that termination of employment is a significant decision with an important impact

Step 2: Consider if any of the following apply1. Emergencies: Randolph – withdrew mail service to a person without a hearing when basis for decision was belief that the mails were being used for criminal purposes.Cardinal -Two prisoners were being held in isolation after being involved in a hostage taking in an attempted escape. They were placed there without given a hearing. It was done so in an emergency situation so PF did not apply.V.M. v. BC - Jehovah’s Witness parents received minimal notice and ability to challenge medical evidence when the Director seized their sextuplets to give them blood transfusions. In this case there could be no “interim” decision.**If only for an interim basis, like most emergency cases, and is open to reassessment in the context of an explicit provision after the event hearing then DoF will not apply in emergency situations.

2. Investigatory/Interim Decisions Rule: An investigation with recommendations that is not a final decision owes no right to PF BUT if those recommendations are going to have so much weight in the process that it is effectively the decision then there will be right to PF. In an investigation, the rights, privileges and interests of a person are usually not in issue. Report: If it’s a report (and it hasn’t decided anything) and the report affects the reputation of a person then there may be a duty of PF on the makers of the report. Kriever Commission

Guay v. Lafleur [1965]: G was one of a group of taxpayers whose affairs were under investigation. He was unsuccessful in being allowed to be present for the questioning of witnesses. Re Abel and Advisory Review board [1979]: Persons detained after being found NCRMD were denied access to the Board’s materials and report. Final decision was made by the lieutenant-governor. Court found virtually only chance of success applicants had was a positive report. Persons had a right to assess the reports and materials and recommendations.

3. Legitimate Expectations Rule: A person whose interest is affected and has developed a LE that he or she will be accorded PF then that person should receive PF.

(1) Look at past conduct and practices of parties. - Express representations. Mt. Sinai- Past practice. Must be unambiguous and long standing.

CUPE v. Ontario (Min of Labour)- Past conduct in dealing with the applicant: Lafontaine

(2) The expectation cannot conflict with the statutory duty. You cannot change the statute because of an expectation. You can flesh out what the statute might say or not say about procedural protection and provide some procedural protection to person in those circumstances.(3) The doctrine of LE does not give rise to substantive rights. It is only a source of procedural claims: Reference re Canada Assistance Plan(4) Legislative decisions cannot be reviewed under the doctrine. CAP

PROCEDURAL FAIRNESS: The Content TestOnce it has been established that the threshold for PF has been met it is then necessary to determine the content of PF based on the 5 Baker factors as applied in Suresh to determine what procedures will be required to make the decision making process fair?

STEP 1: What level of PF is owed? (Common Law)Apply the Baker test:

1. Nature of decision being made/process followed in making it. (How close to the judicial model.)

a) Is it a discretionary decision? (More reason for PF)- Argue that if there is a high level of discretion then

perhaps can lean towards PF to ensure that discretion was exercised properly.

b) Is the decision of a serious nature, does it affect those around them?- If yes then the greater the impact then the more

rigorous the procedural protections will be mandated. i.e. torture and deportation is most serious

- When doing this analysis it is best to do it in the context of a comparison to cases such as Baker and Suresh in order to determine the serious nature of the decision. E.g. in Suresh there was the issue of torture or deportation in Baker.

c) Does the process resemble a judicial decision? - The more the process resembles a judicial decision,

the more likely procedural protections will be required Knight

2. Nature of the statutory scheme/terms of the statute. (Whether there is a right of appeal, how final/determinative the decision is.)

Ask: What is the decision? How final is it?Greater procedural protection required when there is no:- Provision for a hearing - If the decision is final and determinative (Baker),

o If there is a privative clause this would seem to suggest that procedural fairness should apply as the decision is likely final and determinative.

- If no requirement of oral or written submission, - If no right of appeal, - Only subject to JR as judges can only quash they cannot

replace decision of the board.

3. Importance of the decision to person affected.- The more important the decision, the higher the level of

procedural protections to meet the PF mark.

4. Legitimate expectations- If the claimant has an LE that a certain procedure will be

followed, this procedure may be required or - If the claimant has a LE that a certain result will be reached in

their case, fairness requires more extensive procedural rights than would otherwise be accorded. This cannot lead to substantive rights outside of procedural domain

- Must know the procedures of the past in order to be entitled to them.

5. Choice of procedures made by the agency itself. - Does DM have expertise and/or - Does DM has ability to choose his/her own proceedings and/or- Does the legislation confer discretionary powers and the

provisions are broad without to many constraints** This would lead to deference to the ministers decision. Less need for procedural safeguards. ** Expertise + discretion require lower PF

STEP 3: What specific procedure are you seeking?PRE-HEARING ISSUES

1. Notice Notice is one of the essential elements of a duty of PF– in the absence of notice the other procedural protections are meaningless. Purpose: To enable participation of affected persons by allowing them to know they may be affected and know the substance of what the decision involves

Rule: Notice of a hearing must be provided to the people or person that the hearing will affect.

In order for notice to be adequate and to ensure notice is sufficient you must analyse 4 factors:1. Form: Two forms of notice are common – oral and written. There is also personal service notice. - Written notice is the norm b/c then there is proof if there is

disagreement of timing or content 2. Manner of Service: Usually the means of giving notice is specified by the legislation. If it is not in the legislation, then the courts will require notice in a public way (i.e. newspaper article)Ways of giving notice: Add in the paper, on a board next to the proposed site and by regular mail, registered mail, personally served subpoena.

- Re Rymal and Niagara Escarpment commission: Must provide service in a manner that can be reasonably be expected to come to the attention of interested persons. i.e. in newspaper

3. Timing – Must get it early enough so you have a meaningful opportunity to participate.

- Notice must be given long enough before date of proposed hearing to give party enough time to decide whether to participate and prepare.

- Rule: Timing of notice depends on circumstances of the matter – where the evidence is extensive and complex, it may be impossible to give the notices before the end of the hearing: Krever

4. Content - The notice must also give enough information so the person can respond accordingly.

- Audience to whom notice is directed must be adequately described so that they know the notice is addressed to them: RE Central Ont Coalition and Ont Hydro

- Commissions must be specific and clear why they require someone to come to a hearing: E v Ont Racing commission

- More serious the issue then more specific and adequate notice needed: R v Chester

2. Disclosure Disclosure is a key component to exercising one’s right to be heard, for without disclosure, it will be difficult to present a full case at a hearing. Stinchcombe: At the criminal end of the scale –all relevant information, must be disclosed subject to the reviewable discretion of the Crown. Covers material that is both inculpatory and exculpatory, whether Crown intends to introduce it in evidence or not.CIBA-Geigy Ltd. v. Canada: The Board was charged with monitoring the prices of patented medicines. They scheduled a hearing to determine if Habitrol was being sold at an excessive price. CIBA-Geigy sought: a report from staff relied on in decision to hold a hearing and documents relating to all facets of the staff investigation. Board refused as had to conduct affairs expeditiously and also had to be able to rely on staff providing information freely.

3. Delay Refers to delay by the agency in commencing proceedings, holding hearings, or taking positive action. To determine whether a delay is excessive must look to the contextual factors: Blencoe 1. The nature of the case and its complexity, 2. The purpose and nature of the proceedings, and3. Whether the respondent contributed to or waived the delay.** Prejudice must be caused by the proceeding itself. Blencoe: BC minister accused of sexual harassment. Intense media coverage. B lost his position in cabinet, removed from caucus, suffered depression, left province. Complaints were filed with the BC Human Rights Commission, which did not proceed to a hearing before the tribunal for 30 months. HELD: Much of the prejudice was the result of the initial complaints, not the Human Rights Tribunal Action. Kodellas: Human Rights case. Delay of almost four years between the complaints and the hearing. Delay entirely attributable to the Commission, no fault by the complainants or K. K had intended to call

his entire staff at the time as witnesses, could not now contact many former employees.K memory and the memory of other witnesses had faded. HELD: prejudice found.

What if the issue is delay in processing an application for a licence?

- Test is whether there a legal obligation on decision maker to take action that can be established. If so, courts may order decision maker comply with legal obligation.

- Remedy will be order the admin agency process application, not that they grant the licence.

- May also apply if a complaint is made and there is delay in dealing with the complaint.

HEARING ISSUES4. Oral Hearings

When is an Oral Hearing Required? Factors to determine if an oral hearing is necessary:

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

o Competing Values – oral hearing with cross-exam vs. pure inquisitorial method; where complainant’s trauma in sexual harassment cases of having to face harasser

o Capacity of Individuals – language barrier, illiteracyo Impact on Individual – more serious the impact more likely to

argue for an oral hearing; complex matters may be better handled in an oral setting;

o Access to Informationo Nature of Matter & Kind of information that the decision will

be based on – if primarily based on technical information, medical reports etc – it might be better to present it in writing. It might be harder to get this information across orally.

Element 1: Factors to determine if an oral hearing is appropriate: (1) Nature of issues;

- In Baker & Suresh there was no hearing and that was a serious case. So this sets standard for oral hearing.

- No oral hearing if case not complex and straightforward Masters

- If investigative rather than adjudicative then do not need oral hearing: Masters

- If primarily based on technical information, medical reports, etc – it might be better to present it in writing. It might be harder to get this info across orally

(2) Whether credibility involved; - Rule: the more serious the decision and the more issues of

credibility are involved, the greater the likelihood of requiring an oral hearing: Khan

- Committee should give an oral hearing if decision rests on credibility (her word was only evidence: Khan

(3) Competing considerations (resources, integrity of process) Masters: Masters had sexually harassed 7 women. PF was satisfied by giving him names of witnesses so that he could interview them himself, even though few of them agreed to be interviewed. Khan: K was a law student. She failed evidence and therefore her semester of law school. She said she had written four exam booklets but only three were graded. Consequences of failing grade serious for future professional and academic aspirations. This case is authority for the principle that when credibility is at stake, oral hearing may be required.

Element 2: Is it appropriate to have a closed hearing? Rule: Hearings are open unless there are compelling reasons to close them. Justice must not only be done but must be seen to be done.

- Where an oral hearing is held, there is a general trend toward open hearings by administrative agencies for the same reason.

- However agencies have discretion to close hearings, or statute may mandate closed hearings Charkaoui.

When may hearings be closed?- In high stigma situations (ie Human Rights complaints),

damage to the subjects reputation. Consider lower levels of proof, relaxed rules of evidence before administrative tribunals.

- Privacy interests of parties/witnesses.- Safety (public safety, and safety of individuals).- Commercially sensitive information.

Element 3: If open, do you have a right to Counsel?

5. Disclosure of Materials Relied on In the HearingRule: There is a presumption in favour of disclosure. However, the criminal law standard in Stinchcombe for disclosure is NOT applicable to admin law (May v Ferndale) and not everything has to be disclosed. However, in admin law, the DM must disclose the info they relied upon so that in individual knows the case they have to meet

EXCEPTIONS- National security or the security of a person.- Otherwise sensitive information (ie medical reports)

o May be in issue in cases involving mentally ill persons, child protection.

o Potential for damage: To relationship with treating health professionals or By releasing personal information (ie a person may have been unaware they were sexually abused by a family member as a small child).

- Commercially sensitive information.o Generally dealt with by counsel providing an

undertaking that they will not disclose the relevant information to clients, and the hearing being closed to those clients.

- Reports produced by agency staff.

May v Ferndale: revised procedures; 3 persons sent to medium-security prisons; scoring matrix used in department’s computer system; application of habeas corpus to get back to Ferndale; told applicants on JR that scoring matrix wasn’t available. Act required disclosure of all info relied upon in decision- had to produce matrix.

5. Official Notice Extent and manner to which agency may use material not in evidence. Rule: If administrator is relying on something outside record, must advise parties so they can counter it.What types of material not in evidence can an agency use?

- Decision maker’s own expertise. (Ie property assessment.) o Creation of a board with specialized expertise implies

an intention decision-makers will use that expertise in reaching decisions.

- Colleague’s experience/collective knowledge of agency members.

- Information gained in past cases. - Books/files.

6. Counsel Representation Rule: There is a right of counsel wherever there is a right to a hearing. However, tribunals may have a practice of excluding lawyers. CL – no absolute right to counsel as an element of natural justice. Element 1: Analyse the following factors to determine if there is a right to counsel. Re Men’s Clothing Manufacturers1) Complexity/ Importance/ Seriousness of the matters at issue- Rule—the more importance and complex the case, the more

likely counsel will be required - If you have complex legal issues or statutory interpretation to

deal with, there may be discretion to allow counsel 2) Capacity of individual to represent self

- the characteristics of the person involved (access to info, understanding of legal issues, education)

- if person in traumatic state: counsel should be given to protect from intimidating questions

3) Impact - seriousness of the outcome and/or charge - The more serious, the more likely to get counsel

NOTE: The right to counsel doesn’t necessarily mean an unlimited right. Boards and tribunals are masters of their own procedure & they can limit the number of counsel who appear for a witness, and also the scope of their participation: Re Parrish

Element 2: Is it a Company? Have to provide counsel as company/union are artificial persons who can only speak via a natural person as their agent. Thus, not allowing legal representation would be wrong (Re Men’s Clothing Manufacturers)

Element 3: Is it an Individual? (1) Can you refuse to testify if you aren’t allowed a lawyer?YES—(i) person subpoenaed and required to testify; (ii) privacy not assured/ attendance of others allowed; (iii) person can be deprived of rights or livelihood; (iv) irreparable harm may occur (Re Parrish)

(2) Must you be afforded Government Counsel? No rule under CL for counsel to be provided. Charter might provide you the right to counsel (New Brunswick (Minister of Health and Community Service) S 7 of the Charter might be engaged depending on: - Seriousness of the interests at stake- Complexity of proceedings- Capacities of parties- Ability of judge to assist

7. Admissibility of Evidence Rule: Rules of evidence applicable to courts do not apply to administrative procedures unless some statutory provision requires them (such provisions are rare) ALWAYS check governing statute.

- Findings of inadmissibility may lead to breach of procedural fairness if they amount to a denial of opportunity to make a case, or

- Excessive reliance on unreliable evidence may breach procedural fairness.

8. Cross Examination Rule: There is no automatic entitlement to cross-examination. Right to x-examine a witness who testifies orally, or have them made available for x-examination if their evidence is put forward in writingElement 1: Is it provided for in the Statute?- CHECK if right to x-examine may be dealt w in governing

statute*- Example: “there is a right to a full hearing”

Element 2: If not provided for in statute: It will be left up to discretion of admin Tribunal/Board. Apply 4 factors to determine if PF will allow for x-examination:1) Impact and seriousness of decision: bigger the impact, the more likely to allowContrast two cases:Re: County of Strathcona: locals challenged redevelopment because of odours (small impact)Re: B and Catholic Children’s Aid Society of Metropolitan Toronto: person put on Child Abuse Register (very big impact)2) Nature of proceedings: more adversarial, the more likely to allow (Innisfil). If just an inquiry, then probably will not allow (Innisfil)

3) How important the witness’ evidence is: if evidence is important/ integral to case, then probably will be allowed to x-examine (Re: County of Strathcona)Contrast two cases:Re: County of Strathcona: evidence was useful, but not criticalRe: B and Catholic Children’s Aid Society of Metropolitan Toronto: evidence was critical, turning point of case

4) Effectiveness of other means to challenge the evidence: (Re County of Strathcona) Example: x-examine is but one method by which Drs reports can be examined and challenged. Can have written answers/comments/questions to matters in report. This allows respondents to be heard, thus no need to x-examine

POST-HEARING10. ReasonsRefers to reasons released to the affected person explaining the decision and the reasons for it.

- Pre-Baker, common law was reluctant to impose an obligation to give reasons.

- Baker is authority for the proposition that reasons MAY be required at common law. Whether they will be required will depend on the five Baker factors. In Baker itself, importance of the decision mandated reasons.

Pros: - Inherent right of persons affected by a decision to know basis

for the decision. Element of fairness.- The ability to challenge the decision on appeal or on an

application for judicial review is affected by reasons. - Requiring decision makers to write reasons may result in better

decisions (identification of relevant factors, avoidance of arbitrary or biased decision making).

Cons: - Administrative efficiency and resources.- Some statutes allow decision makers to give reasons only if

there is a request by the party. [ie SPPA s. 17]

When are Reasons Required?- If there is a statutory right of appeal. - If necessary for judicial review (a constitutional right) reasons

may be required. - Otherwise may be required depending on the five factors in

Baker. [ie importance of the decision to the person affected.]What are Adequate Reasons?

- Two Issues: o (1) Is there a duty to give reasons, and o (2) Are the reasons provided adequate.

Reasons should:o Record findings of fact and their basiso Show consideration of the submissions and factorso Give some insight into why the decision was made as

it was. Keep in mind the purposes behind requiring reasons: for use on appeal and to satisfy the parties that they were “heard.”

o Should be the reasons of the decision-maker, although may be assisted by someone else (ie counsel). But see Baker, this requirement may be flexible.

When considering adequacy of reasons, consider purpose of requiring reasons:

o For use on appeal/review [note, ‘reasons’ in Baker accepted because they allowed review], and

o To satisfy parties they were heard.INSTITUTIONAL DECISION MAKING

Arises when a panel meets with other board members outside the hearing and its decisions are subjected to influence from those who did not hear the issue - it is the fear of internal influence

(1) Delegation “Delegatus non Potest Delegare” = A delegate cannot delegate.

What is prohibited is delegation of actual decision making authority, allowing the delegate to act independently of the delegator.May occur where:

- The entire tribunal/board delegates part of its decision making power to a subset of the tribunal/board.

- The tribunal/board delegates its power to an employee.- The tribunal/board delegates its power to a different

tribunal/board. - The tribunal/board adopts the decision of a different entity.

Step 1: Was the decision made by a ministerial official acting in the name of the Minister?This is not delegation, it is presumed to be the minister. Stand in the shoes of the minister. Carltona, Ltd. v. Commissioners of Works: No express act of delegation is necessary for an official in a Ministry to exercise the powers of the Minister. The nature of ministerial powers is such that no one individual could possibly carry them out. The actions of the officials are presumed to be the actions of the Minister, and he is responsible for them in Parliament. The official is not a delegate – their actions are presumed to be the actions of the Minister. This principle is known as the Carltona Doctrine.

- Not an absolute rule. Statute may indicate/courts may interpret that the power is one that must be exercised by the Minister personally.

Step 2: Who does the legislation confer decision-making power on, and did that person make the decision?When the legislature has chosen to confer decision-making power on a person or entity, it expects that person/entity to be the one making the decision.(a) Is there an intention in the legislation that the decision making

power can be delegated?o Because the rule against delegation is based on the

intent of the legislature, if there is a contrary intention in the statute sub-delegation will be allowed.

o Courts generally give a wide reading of statute.o Authority to delegate may be inferred from the nature of

the decision-making entity.o Vine v. National Dock Labour Board (UK)]: Court may

decline to infer intention to allow delegation where the interest is significant to the person or entity affected.

(b) Is there an express act of delegation? Is the delegation limited? o Delegation requires an express act.o Delegated power must not be unlimited.

(c) Did the delegator retain control over the delagate? o Delegator must retain ultimate control over the delegate.

(d) Did the delegate act within the scope of their authority? o Delegate must act within the limits of their delegated

power.

CANNOT DELEGATE: - Appointment to an office.- The ability to make an appointment. - Judicial/disciplinary powers.

Step 3: Did an entity other than the DM hear evidence and report back? If so, was the decision maker fully informed of the evidence/submissions heard? Refers to situations where the panel retains the decision making function, but makes its decision on the basis of evidence heard by only a part of the panel. Jeffs v. New Zealand Dairy Production and Marketing Board: Milk Marketing Board created a committee consisting of three members of the original board. Committee was to investigate (not decide) issues that had arisen between two companies regarding zoning and report back to the original board. Written submissions from companies were read by the committee, but not provided to other members of the board. Procedure here resulted in board making decisions without having heard the interested parties and without being fully aware of the

evidence.Board could have appoint someone to hear evidence and report back, provided that Board was fully informed of the evidence heard and the submissions made.

(2) Problem with ConsistencyWhy is it important: Without consistency, there is no predictability or accountability. Without predictability and accountability, the rule of law is compromised.In the judicial model, consistency achieved by:

- Reference to statutes, published case law.- The principles of precedent and comity. Cases may be

distinguished based on their facts.- The appellate system If a judge comes down w a bad ruling

its dealt with in the appellate system. For administrative agencies.

- May or may not be published case law to refer to. Reasons may not be given (esp. if not requested), and if given may be minimal. There may not be enough facts given to determine if a situation is comparable or not.

- Principles of precedent/comity don’t strictly apply.- Decision makers are usually not be legally trained.- Appeals may not exist.- Appeals may not be feasible (cost, particularly where the

decision in issue involves small amounts of money).

Step 1: How did the Admin achieve consistency? (Choose one of the following) (1) Group or “full board” meetings.Consider:1. Who had the decision-making authority? [3] member panel or Board as a whole? (see Consolidated) 2. Who makes the ultimate decision in the end? Who ended up making the decision—was it who it was supposed to be?

Full board meetings will be improper if: (Consolidated-Bathurst) Consultation initiated by the panel and not imposed on it No attendance taken or voting Facts not debated discussion limited to issues of law

or mixed fact and law Decision maker is free to make up own mind

Consolidated-Bathurst - DM power vested in 3 member panel and not Board as a whole; ultimate decision was made by panel; could have requested full board; no improper influence)

If procedure followed gives rise to appearance of institutional pressure = improper influence Tremblay v Quebec- commission of 2 members drafted decision, sent to agency counsel then on to president of commission; president sent panel members memo disagreeing w decision; as result of memo- panel put issue before full board- majority of members disagreed w decision; decision split and put before president who found against Ms. T. HELD: decision of full Board mandatory, thus must comply w their majority holding in meeting; improper influence

Must establish an actual breach Party alleging impropriety bears the burden of establishing it. Insufficient to point to a change in position following a meeting

Ellis- Don Ltd v. Ontario (Labour Relations Board: 3 member panel of board heard grievance. Panel drafted decision in favour of company which circulated around Board. Head of panel called full board meeting. After meeting, panel changed decision in favour of union; company launched JR application. In court- tried to question panel mems about process—unsuccessful. HELD: no breach of PF; can’t just assume that b/c changed their minds there was improper influence- need to establish actual breach)

2) Set a PrecedentAn initiative of [ x Board] to create a precedent case that would provide “guidance” to other panels on issues of both law and factKovak Geza v Canada (Minister of Citizenship and Immigration): case dealt w claims of Hungarian persons of Roma descent. Board previously had discretion to deem a case a ‘useful precedent’- had procedure to do this. Here, they selected a pending decision and decided that it would be a ‘lead case’—determined that the questions of mixed fact/law would provide guidance to cases alike. JR: did not rule out using ‘lead cases’; however found bias in this particular case.- The way that they did this was impermissible - Evidence that Board members that decided to put out a ‘lead

case’ wanted to limit the # of successful applications from Hungarian ppl selected the ‘useful precedent’ case BEFORE it was even decide

3) GuidelinesRule: Guidelines are written directives outlining how specific types of cases should be decided or how agency officials should carry out their responsibilities as long as they don’t remove the discretion of the panel and follow the mandate of the statute then the guidelines can influence decision-making without being improper. Requirements:- Must be within scope of authority (Bell Canada)- Can ‘fetter’ discretion of Tribunal- but is authorized by law- Cannot be mandatory and eliminate discretion (Thamotharem)

o Along same lines, language in guidelines should NOT be mandatory (Thamotharem)

- Cannot be contrary to Act (Bell Canada)- Can be challenged before Tribunal if made in bad faith or in an

attempt to influence the process (Bell Canada)Examples: Baker- guidelines applied to the substantive review of decision; Bezaire- guidelines in place setting procedure for consultation before a school closed as to whether there was breach of PFBell Canada v Canadian Telephone Employees Association—Bell brought before Human Rights Tribunal for allegations they discriminated against female workers; Bell challenged independence and impartiality of Tribunal (independence- their relationship w other branches of gov’t giving rise to bias; impartiality- state of mind); Bell argued that Commission’s power to issue guidelines binding on the Tribunal—improperly fettered discretion of Tribunal, leading to bias by Commission. Thamotharem—guidelines allowed claimants own counsel to question them first in exceptional circumstances HELD: allowed.

4) Consultation with Staff/Agency Counsel It is common practice for agency counsel to review draft decisions and make suggestions—this is permissible as long as counsel doesn’t write the decision in its entirety (Khan)

(3) BIASRule: A person has a right to a decision by impartial decision-maker and it is part of natural justice and PF. Person is excluded if there is a potential bias. Do not need proof of actual bias.General Proposition: Nemo judex in causa propria sua debet esse – no one should be a judge in their own cause - narrow meaning—no personal interest in decision; broad meaning—cannot have associated with a party or cause

- This maxim most obviously envisages a situation where an adjudicator is called upon to decide a matter where he/she will benefit directly from one of the possible outcomes

Step 1: Is there an appearance of bias? “[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... test is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude…” Committee for Justice and Liberty v. National Energy Board

Step 2: Select the type of bias that is present(1) Material interest bias - any material interest will be grounds for bias

- Can be direct or indirect. - A personal financial interest in the outcome of a decision is

bias (remember it is not actual bias, but the appearance of bias).

- An indirect financial interest may be enough if substantial and the connection is clear.

- A remote/speculative interest not sufficient.Pearlman v. Manitoba Law Society Judicial Committee – court rejected argument that members biased because could award costs and therefore reduce their own law society fees. Amounts involved miniscule, limited to costs of hearing. Energy Probe v. Canada: Energy probe objected to involvement of board member Olson in renewing the operating licence for a nuclear generating station owned by Ont. Hydro. Olson was president of a company that sold cables for use in nuclear stations, mostly to Ont. Hydro. He did not have any contacts at the time. Challenge was solely on pecuniary interest. HELD: No direct interest

(2) Prior Association with a Party: no personal interest but there is a personal connection to one of the parties. Ie. personal friends, their families. Whether a former connection with interested parties will disqualify a decision-maker will depend on:1) How close the connection was. 2) How much time has passed. significant amount of time to pass.Marques v. Dylex – fact that a judge with similar connection would not have heard case not determinative, must look at the circs of admin agency. (3) Involvement with investigative or charging decision- If a person is involved earlier in the process it can result in bias. They may have a commitment to their original decision.

- Bias may arise where the tribunal shares investigatory, charging/prosecutorial, and adjudicative functions. (Human nature to be inclined to validate earlier decision).

- May arise where there is an appeal. (Ie single member’s decision can be appealed to a panel, panel’s decision to the entire board.) General rule is that member whose decision was being appealed cannot sit on appeal.

Paine v. University of Toronto: Case of a faculty member (fine arts) denied tenure. One of the members of committee had previously stated very negative views of Paine’s abilities as an instructor and an artists, said had been of the opinion for some time that Paine was not suitable for tenure. Paine was denied tenure with none of the seven member committee voting for him. HELD: Succeeded on JR, as bias against him found to be a denial of PF. Human Rights Tribunal: This is a specialized area of the law, where few people don’t have powerful views. Often these people have track records of writing about HR decisions and how they should be made. Great Atlantic & Pacific Co: HRT member Backhouse had been a professor who wrote about sex discrimination. Agreed by parties that she had been an advocate on the issue. At time of hearing, she was one of a number of plaintiffs in a similar case before the board. HELD: Found to be biased. Large v. Stratford: Human Rights board member had made a public statement regarding mandatory retirement, that it should be abolished and cases dealt with as bona fide occupational requirement. Issue in this case was in fact bona fide, therefore no relevant bias.

(4) Attitudinal bias/ Pre-judgment - Strong views on a relevant or irrelevant issue

- Either b/c of personal beliefs, stereotypes or b/c of some prior involvement in a matter you have a pre-disposition to decide a matter in a particular way

Baker: DM brings strong views to the table that closes their mind. The problem with Lorenzo’s reasoning was that he didn’t consider all the factors. He just decided based on the number of children she had and his views of single parents with lots of children

Old St. Boniface Residents Assn. Inc. v. Winnipeg: The requirements of impartiality wouldn’t be applied as strictly to elected councillors as to those elected to a tribunal. Test is that objectors or supporters be heard by members of council who are capable of being persuaded. Legislature could not have intended to have a hearing before a body incapable of being persuaded. Newfoundland Telephone Co. v. Newfoundland: Issue was whether pension increases for the executive was a cost that should rightly be taken into accounts in calculating rates. HELD: Based on the particular statements made by Wells, court found he had a closed mind.

(5) Independence Rule: Objections on the basis of lack of independence have to be made at the time when you become aware of the issue. Independence: refers to institutional independence (R v Valente)Ie. deciding in a way to make the Government, Cabinet or Minister happy ex. someone appointed to a Tribunal is deciding judicially or in order to be re-appointed.

3 criteria of independence: ( R v Valente ) (i) Security of tenure: must have guarantee that they will not lose their job if they make the wrong/different decision

- Must be free to express certain ideas and not be fired for it

(ii) Financial security: amount you get paid should depend on just doing job—not on the decisions you are making(iii) Institutional independence: DM has control over day-to-day running of their activities; courts control their own case loads and how work is organized-

- If Minister controls, then there is no independence * If 2 or more criteria found = lack of independence * Most TRIBUNALS have less independence in these categoriesCharkaoui: DM was Judge sitting as DM of Tribunal to decide if security certificate was reasonable and to be upheld. Statutory scheme was that the named person and counsel could be denied significant access to info on their own case. 3 possible risks of bias were considered: (i) TJ is only hearing from Minister’s reps—bias on behalf of Minister; (ii) TJ acting as advocate for named person—bias from named person; (iii) TJ independence could be compromised b/c acting as investigator rather than DM. HELD: No bias. Statute provided for non-deferential role. TJ can carry out some investigation without breaching independence.

SUBSTANTIVE REVEWSTEP 1: Segmentation

Where a single decision is challenged on multiple grounds. Applies to: (1) Jurisdictional issues, or (2) Constitutional questions. Both of which are reviewed on a standard of correctness.

Segmentation has been viewed and disputed as being a tool that the judges can use to interfere or get around legislation intention to confer legislation on tribunal and not on the courts.

Step 1: Look to Levis and Via Rail. Compare those cases to the situation at hand. Case 1: Levis (City) v Fraternite des policiers de Levis Inc : question of whether police officer should be dismissed or not. Two applicable statutes—City and Town Act said ppl convicted must be dismissed VS Police Act said there was discretion to dismiss or not. Arbitrator said Police Act overrode City and Town Act and that discretion applied thus allowed to keep job. ISSUE: question of whether it was possible to divide the application of the statute in terms of which statute governed, which provision applied.- SCC HELD: ‘multiple standards of review should be adopted when

there are clearly defined questions that engage different concerns—however different standards should only be used where there are clear distinctions btw the questions. Segmentation should occur only where the issue is “genuinely external” and “easily differentiated from other issues in the case.”

Here, there were 2 separate questions—1) relationship btw 2 statutes (correctness); 2) interpretation and application of Police Act (mixed fact and law- reasonableness)

Danger of segmentation: (Abella J) will lead to more intrusive review of administrative decision making. Thus, it should ONLY occur where the issue is ‘genuinely external’ and ‘easily differentiated from other issues in the case’ (Levis)

Case 2: Council of Canadians w Disabilities v Via Rail Canada Inc: FACTS: Via rail acquired new rail cars; Council of Canadians w Disabilities complained to Canadian Transportation Agency about lack of accessibility for users w personal wheelchairs. Agency found undue obstacle and ordered cars to be modified.MAJORITY HELD: single standard of patent unreasonable applied both questions-- 1) authority to decide complaint; and 2) whether there was an undue obstacle

- Court should be reluctant to separate out areas as ‘jurisdictional’ or as relating to a ‘preliminary question’

- This was consistent w majority in LevisDISSENT: disagreed and said segmentation was appropriate

Other cases:Dunsmuir: Binnie J recognized practice of segmentation and need to distinguish btw consti issues and application of law to facts on extradition; however, he did not suggest a test for when segmentation would be appropriateLake v Canada (Minister of Justice): L trafficking to US, Minister of Canada wanted to extradite based on policy and Canada’s international obligations, treated and expected to consider Charter issues. Question of what was the SOR. HELD: reasonableness applied to entirety of Minister’s decisions, including Charter issues. This was because Charter issues were intertwined w other issues that Minister had to consider/ other discretionary issues.

Step 2: Conclude the following once done analyzing. From these two decisions, it is difficult to determine when segmentation will or will not be appropriate, and how to appropriately segment issues. Court is not settled on its application.

STEP 2: Determine the Standard of ReviewThe major issue in substantive review is the standard of review. How much deference should courts give to decisions of administrative agencies? Courts will vary the level of deference shown to the decisions of administrative agencies.Note: the statute will say what standard of review applies. It is simple if its correctness or reasonableness.

Step 1: Is there a statutory standard? Rule: “Where there is precise statutory language, absent constitutional issues, the courts should apply the statutory standard and the CL analysis will be unnecessary” (Owens)

NOTE: The Statute will say what SOR applies. This is simple, unless the SOR that applies is ‘patent unreasonableness…’

1) Does the British Columbia Administrative Tribunals Act apply ? Could mean PATENT UNREASONABLENESS applies“The term has been imported into statute, and since has changed under the CL”IF THERE IS A PRIVATIVE CLAUSE:S58(2) ATA:

(a) Finding of fact or law must not be interfered w unless it is patently unreasonable

(b) Questions about application of CL rules of PF must be decided fairly

(c) For matters outside of above, standard of review = correctness

(3) discretionary decision is patently unreasonable if:(a) Exercised in bad faith(b) Exercised for improper purpose(c) based on irrelevant factors(d) fails to take statutory requirements into account

OR

IF THERE ISN’T A PRIVATIVE CLAUSE:S59(1) ATA: standard to apply is correctness; unless exercise of discretion, finding of fact(2) court must not set aside finding of fact by tribunal unless there is evidence to support it; otherwise unreasonable(3) A court cannot set aside a discretionary decision unless patently unreasonable(4) discretionary decision is patently unreasonable if:(a) exercised in bad faith(b) exercised for improper purpose(c) based on irrelevant factors(d) fails to take statutory requirements into account(5) Questions about application of CL rules of PF must be decided fairly

IF patent unreasonableness DOES apply,What does patent unreasonableness mean? Court can look to CL to interpret the term….

- Means a high level of deference (Victoria Times)- Do not have to weigh up factors because it is a ‘clear

apparent error’- Court only looks at whether there is a rational basis for the

Tribunal’s decision (CUPE)

Apply Khosa [2009] here:In FCTD: the judge applied the standard of ‘patent unreasonableness’, deferring decision of IAD. In FCCA: found standard to be reas simp and overturned IAD decision.In SCC: - MAJORITY: applied CL/Dunsmuir analysis—found that SOR was

reasonableness- MINORITY: Binnie J agreed w majority on PF issue, but criticized

the majority decision for not going far enough in revising the law of substantive review.

Binnie J said it needed: (i) needed to decide what standard of review—reasonableness or correctness; (ii) to what degree—there should be a spectrum of reasonableness- Agreed that two levels of deference (reas and patent unreas)

should be abolished; however suggests degrees of deference should be implemented ie. a spectrum of deference

Binnie J suggested:- Default position should be ‘reasonableness’- Correctness should be used for:

- Constitutional; CL and interpreting ‘home’ statutes

- Questions of law outside admin dm’s home statute and closely related statutes

Lower courts: follow view that reasonableness is a single standard and does not contain a range of degrees of deference (Mills v Ontario)

TC: Currently, under CL it is unclear what the meaning of ‘patently unreasonable’ is; except that it denotes a high level of deference

NOTE: if you see Federal Court Act s18.1:-- this is a GROUND of review. NOT A STANDARD (Khosa)—must assess these in accordance w CL standardsThis provision states when the Federal Court can grant relief under (3) if it is satisfied that the Federal Board Commission or other Tribunal:

(a) Acted w/out jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction

(b) Failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe

(c) Erred in law in making a decision or an order, whether or not the error appears on the face of the record

(d) Based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it

(e) Acted, or failed to act, by reason of fraud or perjured evidence; or

(f) Acted in any other way that was contrary to law.

If the statutory standard is correctness OR reasonableness, then apply that.

Step 2: If no statutory standard- Is there any binding precedent? If not which of the four Pushpanthan factors are present?Note: All four factors need not be considered in every decision.

1) Is there a privative clause or statutory right of appeal?Privative Clause: Strong PC = deferenceExamples: - “the decision of the tribunal is final”; - “no decision or order of the board may be reviewed in any court”; - “Each Division of the Board has, in respect of proceedings

brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”;

- “Decisions and findings of Board are all final and conclusive…”

Statutory right of appeal: where there is a statutory right of appeal, this is not determinative of a correctness standard of review (Pezim)

- If that Tribunal has expertise, then it is possible for standard of reas simp

- Strong appeal provision = no deference thus correctness will apply

2) The purpose of the tribunal as determined by interpretation of enabling legislation (Mandate)

1) Look at general purpose of legislation in general / provisions at issue2) Does it relate to 1 person (less deference)? OR does the Tribunal have to balance a range of interests (more deference)

Two categories of decision-making regimes:(a) Polycentric decision makers = more deference- involves a large number of interlocking and interacting interests and considerations- Statute may require Tribunal to:

- Select from range of remedial choices/ admin responses- Concerned w protection of the public- policy issues- balances various interests/considerations

Examples: Ryan: took into account interests of public, lawyersCUPE: statute made Tribunal take into account the public interest to protect essential services

(b) Bipolar decision makers = less deference - Tribunals that determine the rights or entitlements of individual parties- Emphasis on deciding facts in these kinds of proceedings—disputes btw 2 partiesExample: Human Rights Tribunal

3) The nature of the question at issueQuestion of fact, law or mixed fact and law?(1) Question of law – less deference. General determination of law with precedent setting quality. Question of central importance to the legal system (2) Question of fact – more deference (3) Mixed fact and law—heavily fact based more deference, heavily law based- less deference

4) The expertise of the tribunal.- The issue is not simply expertise, but the relative expertise of

the tribunal.

- Courts may look at the area of tribunal, or at the process of appointments for tribunal members. (ie no particular qualifications required = less indication of expertise).

- Special expertise = deference

Three step test for assessing expertise set out in Pushpanathan. (1) The court assesses the expertise of the tribunal.

a. Composition—lay persons or experts?b. Under enabling statute, how are individuals

appointed? Permanent appointments = more likely to have expertise

c. Specialized knowledge of the topic?d. Accumulated experience or skill?—dealt w similar

cases over and over again? Ie. members have terms of no less than 5 yrs. Does statute require academic qualifications?

e. Is there a nexus btw the nature of the expertise and the question being asked?

(2) The court then considers the court’s own expertise relative to that the tribunal.

a. If Tribunal has no more expertise than Court = less deference

b. Example: if matter is about law society—courts will know more about this; Human Rights decisions—courts usually deal w similar issues as Tribunal, so Tribunal has less relative expertise

(3) The court then identifies the specific issue before the decision-maker relative to the expertise. [How relevant is the expertise to the particular problem at issue?]

Pezim: securities regulation is highly specialized activity requiring specific knowledge and expertise. Questions were economic and out of courts domain, therefore Securities Commission had more expertise

STEP 3: Apply the Standard of ReviewAs of Dunsmuir there are only 2 standards. P/U no longer applies.(1) The Correctness StandardRule: When applying the correctness standard the reviewing court will not show deference to the board’s decision or reasoning process. If the could decides in the end that it does not agree with the decision maker it will substitute its own decision for that of the board’s.

Correctness Applies to: (1) Question of law of central importance to legal system and outside expertise of decision-maker; (2) Question of jurisdiction between two or more tribunals; (3) Constitutional issues(4) If outside expertise of DM then certainly correctness(5) Statutory right of appeal(6) No Expertise

(2) The Reasonableness Simpliciter StandardRule: Reasonableness is concerned mostly w/existence of justification, transparency and intelligibility w/in decision-making process. Also whether decision falls w/in a range of possible, acceptable outcomes, defensible in respect of the facts and law. Ask: (1) If there was transparency, justification and intelligibility of the Tribunal throughout the decision-making process; (2) What would a reasonable person think (significant change). Look to see whether the decision of the tribunal falls within range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

Reasonableness Applies to: (1) Questions of fact, (2) Discretion and Policy (3) As well as question where the legal issues cannot be easily separated from the factual issues

(4) If interpreting a home statute and/or closely related statute then reasonableness but this can be trumped if there is a statutory right of appeal as it pushes us more towards a correctness SOR(5) A strong privative clause(6) Expertise

Dunsmuir [2008]: D Clerk of court of New Brunswick court of QB. Employed by Dept of Justice ‘at pleasure’. Officer was hybrid in character—hired as employee and office holder. Disciplined 3 times and send formal letter telling him he was at risk of dismissal if he didn’t improve. Terminated w/out cause. Grievance under Public Service Labour Relations Act—claiming insufficient notice and denial of PF. Greviance denied so he went to adjudicator under the Act. Adjudicator found D owed PF—but didn’t get it because dismissal was void and D had his job back. Adjudicator interpreted PSLRA to mean that he could determine whether D had been discharged or otherwise disciplined for cause. On merits, arb found that termination not disciplinary, D entitled to PF which he didn’t get. Termination void ab initio and ordered D reinstated. MAJORITY: analysis of how to determine SOR renamed ‘SOR analysis’ - There should only have 2 standards of review: correctness and

reasonableness simp

Khosa [2009]: Indian citizen; responsible for killing pedestrian in driving accident. Convicted of crim neg causing death. Finding of fact that he was street racing. Order made for K to be deported. K appealed on Humanitarian and Compassionate grounds. Case heard by Immigration Appeal Division of Immigration and Refugee Board (IAD).IAD majority put limited weight on remorse b/c he denied street racing. JR in FCTD, then to FCCA where majority applied Pushpanthan factors and held that reas simp should apply b/c majority of IAD was focusing too much on the street racing aspect, and more attention should be paid to the fact that he was a good prospect for rehabilitation.

Baker: court applied reas simp. Determined whether it fell within range of outcomes. Looked at: intelligibility, reasoning process, in reasons given—didn’t look at things that were important ie. guidelines, convention on rights of child.

Association des courtiers et agents Immobiliers du Quebec v Proprio Direct Inc: real estate agent required clients to pay fees even if no sale. Violated Real Estate Brokerage Act by Real Estate Committee. Issue—whether requirement that no fee be charged unless sale was mandatory. HELD: Standard of reasonableness b/c Committee interpreting ‘home’ statute.

STEP 4: DiscretionA case where a decision-maker is given the choice between a range of permissible options with no specific outcome dictated. May include a situation where the decision-maker can chose to act or not act. Usually refers to individualized decision making, not policy making.

Types of Discretionary Decisions1) Cases where no rule is set. Ability to cancel a liquor license

at discretion (Roncarelli)2) Cases where broad rules must be applied to a wide variety of

situations. Ie deciding if a prosecution is in the public interest.3) Cases were large numbers of factors must be balanced to

reach a decision. Ie municipal councillors deciding whether to allow rezoning of a property.

4) Cases where unforeseen/unusual circumstances can emerge Ie special levy to get youths transported in custody home after their release.

5) Exceptions from rules, where strict application of the rule could have undesirable results (ie Khosa, Baker).

6) Emergency/war.

Criticisms of DiscretionDiscretionary decision-making has been criticized:- Discretion can be abused.- Even if properly exercised,

- Discretion can make it difficult for individuals to predict the consequences of their actions.

- Discretion can lead to inconsistent outcomes depending on the individual making the decision.

Step 1: Does the decision maker have discretion? Does the statute use the word “may”? Are there a range of options the decision maker can chose

from? Does the statute refer to opinion, or the public interest?

Step 2: Has there been an abuse of discretion? The forms of abuse of discretion are:

(1) Bad faith, - Expressly/deliberately abusing discretion

(2) Improper considerations- Generally accepted that administrative decision makers must make

their decisions in accordance with the Canadian Charter of Rights and Freedoms

- Some decisions have considered international treaties/international human rights norms – see Baker. However, the SCC in Suresh said that unratified treaties cannot be considered

(3) Improper purposes.(Roncarelli)(a) Determine what the proper use of discretion would be/ what

would it be for? (b) Sort out relevant considerations/ irrelevant considerations(c) Look at purpose of statute (Roncarelli)(d) Guidelines published by responsible agency (Baker)(e) That the admin dm made decision in accordance w Charter(f) International treaties/international human rights norms

(Baker- yes; Suresh- ungratified treaties shouldn’t be considered)

Roncarelli— R paying bail for JWs. Statute appeared to grant a discretion, yet the SCC intervened b/c Duplessi cancelled liquor licence just b/c he didn’t like R. He abused his discretion by revoking the licence for religious persecution. This was ultra vires.

Step 3: Has the decision maker considered the appropriate factors? Are specific considerations mandated in the grant of

discretion? What is the overall purpose of the statute? Are there Charter values that are applicable? Is there an applicable guideline? Is there a relevant un-ratified international treaty?

Step 4: Standard of Review for Discretionary Decisions(1) General Discretion - In Dunsmuir, the majority, discretionary decisions are expressly

named as a situation where a standard of reasonableness will usually apply.

- Other elements, which suggest reasonableness – the presence of a privative clause, the relative expertise of the decision maker to the court.

- Where the court is applying the reasonableness standard, the court will consider whether the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and the law.

- Court will also consider justification, transparency and intelligibility within the decision-making process.

(2) Discretion under the ATA- Where the British Columbia Administrative Tribunals Act applies,

discretion is reviewable on the standard of patent unreasonableness. This applies to both tribunals with privative clauses (s. 58) and those without (s. 59).

- Patent Unreasonableness indicates a high standard of deference. - Steps: Does the ATA apply? Must be expressly brought into the act.

Apply either s 58 or 59. Apply PU.

A decision is patently unreasonable if the discretion:(a) Is exercised arbitrarily or in bad faith,(b) Is exercised for an improper purpose,(c) Is based entirely or predominantly on irrelevant factors, or(d) Fails to take statutory requirements into account. [ss. 58(3) & 59(4)]

Step 4: Was there a failure to take into account a relevant consideration/factor?Failure to take into consideration a relevant factor is equally a basis for impugning the vires of an agency’s discretion (improper use)An exercise of discretion will be ultra vires only if the agency has overlooked a factor that, under

Re Sheehan: S inmate at penitentiary. During riot, S tied and beaten by other inmate. Sought compensation from Compensation Board. Discretion of Board to give comp—“Board may have regard to all circumstances IT considers relevant”. S denied b/c he hadn’t brought application/proceedings against gov’t body; had been convicted of crime.- Divisional Court HELD: Board took into account irrelevant factors/

improper considerations. - Court of Appeal HELD: Board had discretion. Considerations not

clearly irrelevant, Board didn’t act in bad faith- up to Board to decide what is relevant, not the Court.

Baker: issue of considering ungratified treatyDiscretion is element in all admin decision making—if only regarding choice of remediesHELD: decision unreasonable b/c:- International law (Convention) should have been considered, as the

best interests of the child should have been the primary consideration, and it wasn’t.

- Didn’t give sufficient weight or consideration to the hardship deportation would inflict on Baker

CUPE / ‘retired judges’: procedure to avoid strikes in hospitals. Case turned on how 3 arbitrators were appointed: 1) by unions or 2) by management; supposed to get together to decide the 3rd. If they didn’t agree, Min to appoint 3rd. - Selection of arbitrator would have huge impact on outcome- Minister changed procedure—Min appointed retired judge. Unions

didn’t like this.- Judges didn’t have expertise in labour relations- Concerns that judges weren’t sufficiently independent as they were

appt by gov’tMAJORITY: Interpreted scope of Statute; purpose was to prevent block-outs and prevent employees from causing disruption in hospitals.- Considering purpose of statute—appt person w/out expertise and

w/out credibility as arbitrator was a failure to take into account relevant considerations

DISSENT: would have segmented issue of interpretation from decision made under statute.

Example of ‘improper purpose’/ political pressure:Shell Canada Products Ltd v Vancouver: challenge on grounds of improper considerations. Argued that city of Vancouver had broad discretion to act in public interest, but this didn’t extend to attempting to put political pressure on a regime in another country by making resolutions/ to decline to do business. - MAJORITY HELD: municipality was empowered to act for ‘municipal

purposes.’ Purpose of Act did not relate to gov’t of the city or benefits to citizens.

- MINORITY HELD: resolution was intra vires/ within jurisdiction of City of Vancouver. Elected counsellors have expertise in determining interests of citizens as representatives of the public; in charge of broad policy mandate—its within their discretion if they feel its not within interests of public.

Step 5: If there is a guideline, does it effectively remove the discretion? (Fettering)

- A decision-maker that has been given discretion cannot “fetter” that discretion. It cannot limit or remove its own discretion Discretion can only be limited by the entity that conferred the power, the legislature.

- Fettering is problematic because discretion is presumable conferred for a purpose. Fettering implies interference with that purpose.

- Fettering of discretion is an issue of PF. The process is either fair or it is not (or it attracts a correctness standard of review).

- If the tribunal has fettered its discretion, a court will intervene and there is no room for deference.

The decision maker can use:- Guidelines, - Checklists, - Reference to previous cases, etc.

How do we distinguish between permissible guidelines and impermissible fettering of discretion? - Language of the guidelines (mandatory or suggestive)- Evidence of how the Guidelines are used in practice (whether tribunal

members are pressured or required to follow them or whether they treat them as binding rules rather than mere guidelines.)

Thamotharem v. Canada: Issue was whether Guidelines on the order of questionof refugee claimants compromised the independence of the Board.The Court found that the Guidelines were authorized by law (delegated legislation or soft law).The legislature that conferred the discretion could lawful limit it via authorized Guidelines.When is a “guideline” an improper fetter of discretion? - Is the language mandatory or permissive?- Does it allow for exceptions (even if only in exception circumstances?).- In practice, is the Guideline applied as a mandatory directive

THE CONSTITUTION AND THE CHARTERThe Charter applies to decisions of administrative bodies because the legislature cannot give statutory power to do something that the legislature itself could not do, that is, violate the constitution: Slaight Communication

Distinguish between two situations below and choose the appropriate one. The Constitution can be contravened two ways:1. The legislation that creates the administrative agency or that

confers power on the agency may be unconstitutional. - If the legislation expressly confers a power to infringe the Charter, then

the statute itself violates the Charter. (Multani) 2. The legislation may be valid, but the particular decision may

be unconstitutional.- If the infringing decision is just one possible outcome of the exercise of

discretion, then it is the administrative decision itself that should be challenged. (Martin/Conway)

SCENARIO 1: MultaniStep 1: Is a party arguing that their charter rights have been violated? Multani Here a person will complain about the decision an institution has made and complain directly to the court.

On JR, is a party alleging that an administrative agency’s decision is inconsistent w the Charter?Direct breach? = use consti principles/ remedies- Example: Multani—see below

Failure to reflect values consistent w Charter? = Use admin analysis- Decision doesn’t affect cases where Charter values may be

factor, but decision itself doesn’t violate Charter (Chamberlain—freedom of religion and equality were indirectly involved, but neither directly violated) If this is case, then court considers charter values in admin law analysis

IF DIRECT BREACH…

Here, the Court meets the requirement of being a ‘court of competent jurisdiction’ and has the ability to award a remedy.

Step 2: What approach should the court take in deciding if there is a breach of the charter in an administrative law context?

If Decision infringes Charter Right then Charter Principles Apply If there is an infringement based on a decision of the board then charter principles should apply and the decision should be subjected to the test set out in s. 1 to ascertain whether it constitutes a reasonable limit: Multani

There is a difference in:1) The analysis(i) Admin law principles—here we apply the SOR and determine the amount of deference the court should give the Tribunal(ii) Charter—here we apply s1 Oakes Test to see if violation is justified2) The remedy(i) Admin law principles—leaving the legislation in place and granting a remedy in respect of the particular decision (ie. to declare decision be null OR order reconsideration)(ii) Charter—strike down legislation

Step 3: RemediesIf provision cannot be saved under s1 (Oakes Test) ,then there will be a breach. If a breach is established, the Tribunal/Court can award [fill in remedies from directly above] remedies.

Cases:Slaight Communications Inc v Davidson: D radio time salesman. Dismissed for cause by Slaight Communications- alleging his sales were inadequate. Grievance filed under Canada Labour Code. Arbitrator found D unfairly dismissed and that manager of Slaight had ulterior motive for firing D. - Arbitrator made 2 orders: 1) S provide D w letter setting out quotas

and D’s actual sales (positive order); 2) S not provide info other than letter in response to questions about D’s performance (negative order)

S applied for JR of arbitrator’s decisionHELD: Both orders infringed s2(b) (freedom of expression), but were saved under s1

- Oakes test: 1) Importance of objective = allow D to find a new job

w/out being lied about by former employer2) Rational connection = given D had been subject of

vendetta, lengths S had gone to in attempting to justify firing, preventing any other info being disseminated was rationally connected to objective

3) Minimal impairment = positive order (letter) would be worthless if it was accompanied by allegations about D’s dismissal.

Eldridge v British Columbia (Attorney General): appellants were deaf. Challenged failure of BC medical services to find sign language to assist them in communicating w health care practitioners contrary to s15 Charter. Medical and Health Services Act didn’t expressly provide funding. Medical Services Commission and hospitals didn’t provide funding either. HELD: legislation didn’t itself breach the Charter; however, discretionary decisions made pursuant to legislation must accord w Charter. In this case, didn’t happen.

Multani v Commission Scolaire Marguerite- Bourgeoys: M and family were orthodox Sikhs. Part of religion was wearing ‘kirpan’. M was 12 yrs old; accidentally dropped 8 inch kirpan wearing under clothes at school. School Board (Commission) sent M’s parents a letter saying he could wear his kirpan to school provided that he complied w certain conditions to ensure it was sealed in clothing. Family agreed. Governing Board of M’s school refused to agree—argued that this violated Article 5 of

School’s Code of Conduct. Council of Commissioners upheld this decision. M’s father sought order under s24(1) that decision of Council of Commissioners was of ‘no force or effect’SC of Quebec HELD: order made that M could wear kirpan.Court of Appeal HELD: applied admin law principles—SOR was reasonablenessSCC HELD: decision should be declared null; discussed issue of whether analysis should be admin or charter.—MAJORITY = Charter……..HOWEVER……DISSENT: Deschamps and Abella JJ (used administrative law principles): don’t go under Charter, look at SOR (reas or correctness) and then can consider the legislature won’t authorize any of its agencies to breach Charter.- Noted that Courts have admin law principles in cases involving

Charter rights—see Chamberlin. These principles could be applied here.

LeBel: ONLY USE CHARTER WHEN NECESSARY TO DO SO—not in all cases—ie where basis of challenge is a violation of a constitutional right, then you have to engage in constitutional analysis

- Ie. here, they were dealing with freedom of religion- Oakes test can be applied flexibly

Poulin v Canada: P visibly impaired inmate at Fed prison. Requested scanner for personal computer to assist his reading. Denied b/c considered security hazard. P challenged decision on grounds of PF and breach under equality rights in Charter. HELD: unnecessary to perform SOR analysis. PF didn’t require it b/c process is either fair or not.

Whatcott v Saskatchewan Assn. of Licensed Practical Nurses: FACTS: W licensed nurse. Anti-abortion activist who picketed Planned Parenthood offices w signs saying ‘Planned Parenthood spreads AIDs’ (obviously false). Association said he committed Professional Misconduct and fined him. W challenged under freedom of expression (s2(b))Court of QB: applied reasonableness standard and dismissed appeal.QB erred in this finding-- Decision itself violated Charter, NOT legislation. Had discretion to find other outcomes. Like Multani, KEY ISSUE: whether decision violated the Charter and should be dealt w under Charter analysis—which was matter for court to decide.Court of Appeal HELD: decision did violate Charter as it infringed s2(b) and was not saved under s1. Decision quashed.

Lake v Canada (Minister of Justice): EXTRADITION CASE* Applied administrative law principlesISSUE: Minister’s decision to extradite person to US on drug trafficking chargesMinister’s decision described as “at extreme legislative end of admin DMing”—political considerations.L argued Minister’s application of the Charter should be assess on SOR correctness. b/c decision required Minister to apply specialized knowledge of foreign affairs and Canada’s international obligations.Court did not consider Multani- Did say that extradition can violate Charter rights, may be saved

under s1- Didn’t apply s1 analysis

SCENARIO 2: Is a party before an administrative tribunal arguing that legislation is contrary to the constitution?

There is no issue that administrative agencies are expected to consider the Constitution, and particularly the Charter and make decisions in accordance with it (Slaight Davidson).

Element 1(a): Is a Tribunal a Court of Competent Jurisdiction?Mills v. The Queen dealt with the issue of “competent jurisdiction” in the courts, particularly whether a preliminary inquiry judge had jurisdiction to award remedies under s. 24.

To determine whether a court is a court of competent jurisdiction must look to: Mills

1. The parties, 2. The subject matter of the claim, and 3. The remedy sought. [Must ensure that the tribunal has

jurisdiction over the particular remedy being sought];

Weber v. Ontario Hydro: The SCC considered whether a labour arbitrator could be consider the alleged Charter breach and the award of remedies under s. 24(1). A tribunal can be a court of competent jurisdiction if it has jurisdiction over the parties, subject matter, and remedy sought. The Charter does not confer jurisdiction to give remedies. However, if the tribunal has the power to make an order, it can make that order as a remedy for a Charter breach.

Element 1(b): Can this presumption be rebutted?If there is a presumption, then Tribunal CAN decide questions of law. It must now be determined whether this presumption can be rebutted by the other party.TEST: does the Statute expressly or ‘by clear implication’ exclude constitutional questions generally or Charter questions in particular from jurisdiction- Burden of establishing this lies on party who alleges that Admin

body lacks jurisdiction to apply the CharterExamples:Express—“the Tribunal should not decide constitutional questions”Implied—“Notwithstanding that out Tribunal has authority to decide questions of law, there is some other body to decide complex questions of law”

Element 1(c): Where a tribunal has jurisdiction do they have a duty to decide constitutional questions?- YES. If the constitution is the supreme law, how could a tribunal apply

a provision that has been challenged as invalid (Martin refers to this as a duty)

Tribunal can deal with this by:(1) An individual tribunal, even if it has jurisdiction to decide a

question, may exercise discretion to refer it elsewhere. Example: the WCB could refer the question to the Appeals Tribunal

(2) The tribunal may be able to refer the question to a court. Its own statute may provide for this, or, in the case of a federal tribunal, the Federal Courts Act provides in s. 18.3 that a federal board, commission or tribunal may “at any stage of its proceedings” refer any question of law to the Federal Court for hearing and determination

**Essentially a tribunal has a duty to deal with the question or ensure that it is dealt with before making its ultimate decision.

Element 2: What if the tribunal does NOT have jurisdiction to decide a constitutional question?If a constitutional question is raised before a tribunal that does not have the authority to decide it and the tribunal proceeds and decides the matter without deciding the constitutional issue, the matter will likely be sent back to them by a reviewing court.

Tribunal can either:(1) Refer a question to the courts (if it has the power to do so), or(2) Allow an application by a party to delay decision pending

resolution of the Charter case.

** This is a particular issue in the BC, as the Administrative Tribunal Act removes jurisdiction over constitutional questions from most tribunals and appears to limit tribunals’ authority to refer questions.

Element 3: Remedies The [Tribunal/Commission/Board] can determine questions of law/ constitutional issues, and this presumption has not been rebutted. REMEDY GRANTED: EITHER--

S52 Constitution, 1982- CANNOT strike down legislation- SAY: Because Tribunals aren’t bound by precedent, the decision

of Tribunal only affects the case before it – Thus can declare legislation to be invalid and of no force and effect (s52) for that particular matter

- Matter should be decided as if unconstitutional provisions are of no force and effect

S24(1) Charter: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstancesORExample—in PF if Tribunal let in evidence that wasn’t relevant S24(2): Finding that evidence has been obtained in a manner that violates the Charter and a remedy of exclusion of that evidence under s24(2)

- ONLY available ‘in proceedings under SUB (1), therefore court must be of competent jurisdiction!!!

Cases:Nova Scotia (Worker’s Compensation Board) v Martin:FACTS: Martin suffered work-related injury. Chronic paid expressly excluded under Worker’s Compensation. Board denied claims. Appeal Board’s decision went to Worker’s Compensation Appeal Tribunal challenging provision under s15 Charter (equality provision) saying that that M treated differently because of nature of disability.Went to SCC: agreed w merits of Charter argumentISSUE: did Appeals Tribunal have jurisdiction to make finding of constitutional invalidity? Yes.SCC: agreed w arbitrator on merits of Charter argument. By excluding coverage for sufferers of chronic pain, the Act and the Regulations infringed s15(1) Charter, and couldn’t be saved under s1. HELD: sections under ‘no force and effect’ under s52 Constitution Act 1982. Declaration of invalidity—Consti is supreme law, and law inconsistent is of no force and effect.Courts aren’t only arbiters on consti questions- Appeals Tribunal had jurisdiction to deal w Charter issue- Legislature expressly conferred authority on Tribunal to decide

questions of law “may confirm or vary… hearing of officer ‘exercising authority conferred upon Board by s185(1) of the Act to ‘determine all question of fact and law’

- Presumption was not rebuttedHELD: Tribunal did have jurisdiction. Provision couldn’t be saved under s1 Charter

R v Conway (2010): (Leading Case) Court merged law on ss52 and 24.FACTS: C found not criminally responsible by reason of mental disorder for charges of sexual assault w a weapon. Detained in mental health facility. Before his annual review before Review Board, C alleged number of Charter breaches related to his detainment (ie noise from renovations, failure to properly counsel him regarding childhood abuse). - C sought remedy under s24(1) to:

o Give an absolute discharge—resulting in his releaseo Orders including a direction to the facility to provide him

w alternative treatment, to refrain from housing him near construction, etc

Board hearing HELD: C remained threat to public safety- On Charter arguments: Board didn’t have jurisdiction to make

determination SCC HELD: Board did power to decide questions of law and thus had jurisdiction to consider Charter arguments- Applied Mills and “court of competent jurisdiction question”- Applied caselaw on s52 (ie. Cuddy Chicks trilogy)- Slaight Davison—admin agencies must consider Charter when

making decisionsQuestion of whether Board had jurisdiction to award remedies that Conway wanted:

- C admitted that Board didn’t have jurisdiction to grant him absolute discharge nor grant particular treatment regimes

Weber: W employed by Ontario Hydro. Suffered back problems so he took extended leave of absence and was paid sick benefits pursuant to collective agreement. Hydro hired private investigator to see if W was lying- tried to gain entry to W’s home. Hydro suspended W for abusing sick leave benefits. W claimed damages & breach under ss7 and 8 Charter. SCC: considered whether labour arbitrator could consider the alleged Charter breach and award remedies under s24(1). - Applied Mills test—if Board has power to make order, it can hear

Charter arguments and it can make that order as a Charter remedy

Case if remedy for s24(2):Mooring v Canada (National Parole Board): M on parole; police stopped him and searched his car; found gun and tools for B&Es. ISSUE: lawfulness of search- Criminal charges against M stayed due to concerns regarding search- M’s parole was revoked by Board based on results of search- M Challenged admissibility of evidence before Parole Board

SCC HELD: Board not of ‘competent jurisdiction’ for purposes of excluding evidence- Considered: function of Parole Board—inquisitorial rather than quasi-

judicial; laws of evidence didn’t apply; Parole Board can act on evidence/info that wouldn’t be admissible in criminal trial.

- Legislature had not intended to convey power to exclude evidence—this would have been contrary to Board’s responsibility to consider all relevant info

- Board had duty to act ‘fairly’ under PF- S7 Charter and requirements of PoFJ applicable to Board’s decision

NOTE: this case was BEFORE ConwayPost-Conway:National Parole Board had—(i) power to decide questions of law; (ii) power to decide constitutional question = competent jurisdictionRules of evidence are NOT applicable to Parole Board—so it doesn’t have the power to exclude evidence.

Constitutional Questions Regarding Aboriginal RightsLegislation can confer upon a tribunal jurisdiction to decide question of law, which ultimately leads to the right to decide constitutional issues in respect of aboriginal rights or aboriginal title but conditions are imposed: (1) To the extent that it does not touch on the “core of Indianess” and is not unjustifiably inconsistent with s35.(2) A provincial tribunal can only consider and apply rights that already exist(3) Determinations of the Commission respecting aboriginal rights would be reviewable on correctness

Paul v. British Columbia (Forest Appeals Commission): They found there was no difference in principle between s. 35 and other constitutional rights. The Commission had the power to decide issues of law, and therefore could rule on issues of both federal and provincial law. This included aboriginal rights. The Commission’s decision is reviewable on the correctness standard.

**The SCC’s decision in Paul extends the Martin approach to Aboriginal rights, and implies that the same would be the case for constitutional arguments about the division of powers.

Standing, Remedies & ProcedureStep 1: Can the administrative agency’s decision be stayed pending the outcome of the judicial review?The court has discretion to stay the proceedings. [ie under the Federal Court Act, s. 18.2]Three basic requirements for a stay:1) There has to be merit to the case: a prima facie case or a

“serious question to be tried”.

2) Irreparable harm (harm that cannot be or difficult to be compensated in damages);

- This does not mean the magnitude but harm that cannot be compensated in damages.

3) Balance of convenience (which side will suffer greater harm if stay is granted or refused). Where the action of a public authority is in issue, the public interest must be considered.

- Balance the harm that the P will suffer if the injunction is not granted against the harm the D will suffer if it is granted

- Is it going to cause more harm than good to grant a stay of proceedings?

- Manitoba (Attorney General) v. Metropolitan Stores: The store was seeking an order that a labour arbitrator could not impose a first contract. The company argued this was unconstitutional contrary to the charter and they brought a charter application challenging the legislation under s 52 Consti Act.

Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd.: When can a court issue an injunction to prevent action pending a by an administrative agency decision? The court generally has the authority under its inherent jurisdiction to issue injunctions. SC said a court has “residual discretionary power” to order interlocutory injunctions, even where the court does not otherwise have jurisdiction over the matter, where the statute doesn’t provide for them to be made by the agency dealing with the matter. Whether or not to actually grant the injunction is within the discretion of the court. Step 2: Does the applicant have standing to bring a judicial review application (or to be heard on someone else’s application)?

Who can bring an application for judicial review of an administrative action?

- Interested persons – includes the original parties before the tribunal and persons directly affected by the decision.

- Does not include witnesses, or complainants in professional discipline cases.

- Parties acting in the public interest.- The Attorney General.- The agency whose decision is in issue.

Note: Just because a person or organization has standing, does not mean they are entitled to a remedy. It only means they are entitled to bring the action.

(1) Personal Interest StandingIn order to have personal standing one must be either: (a) The original parties before the agency OR;(b) Other persons “directly affected”:

- Standing must be based on one’s own interest, not that of another person.

- Person whose private rights are interfered with, who suffer special damage, or exceptional prejudice.

- There must be a sufficient nexus, or casual relationship between the injury suffered and the action being challenged.

(2) Public Interest Standing- Traditionally, the public interest had to be represented by the

Attorney General.- However, more recently, the SC has granted public interest

standing to private individuals. - Whether the Court will grant standing is a matter of discretion.

Finlay v. Canada (Minister of Finance): F was a recipient of social services benefits in Manitoba. Manitoba’s social service benefit programs were largely financed by transfer payments from the federal government. F sought standing to challenge the transfer payments. Finlay had a personal interest however the nexus between that and the Federal transfer payments was too remote for standing on the ground of personal interest. F was found to qualify for standing under public interest.

The criteria for the exercise of this discretion are: Finlay1) Justiciability [meaning issue is a proper matter to be

determined by the courts as opposed to policy matters best left to the legislature or executive];

2) Serious issue raised; 3) Individual has a genuine interest in the issue (not a “mere

busybody”) [to avoid unnecessary use of scarce judicial resources.];

4) No other reasonable or effective manner in which the issue may be brought before the court. [If possible the court should have the benefit of submissions from the persons most directly affected.]

Amnesty International Canada v Canada (Canadian Forces): Amnesty brought action challenging Canadian Forces in Afghanistan who had a practice of transferring detainees to local custody. Challenged this based on concerns of torture and treatment by local authorities. ISSUE: whether Amnesty International qualified for public interest standingApplied 4 step test—courts allowed based on this.

(3) Attorney General StandingThe AG:- Is the chief legal advisor of the Crown. - Is a minister of the Crown and in Canada is also a member of the

cabinet (in the UK the AG is a non-cabinet minister). - Can always seek judicial review of an administrative decision as a

matter of public interest.

(4) Standing of Administrative Agency/TribunalTribunal does not ordinarily have standing on JR because: (1) The tribunal should not have an opportunity to defend its

reasoning:- This is because the tribunal is not supposed to have an interest in

the matter as a party would- The matter may be referred back to the tribunal, and it should act

as an impartial and dispassionate decision maker. (2) The reasons should have set out the basis of the decision –

they should not be able to add more Exceptions: (1) Where the jurisdiction of tribunal is at issue the tribunal can

appear before the court to defend its jurisdiction. (2) Where the tribunal’s involvement is necessary to provide

background (ie on an issue of PF, to give context to the choice of procedures by the agency).

Children's Lawyer for Ontario v. Goodis: The Court found that the appropriate scope for standing will depend on the circumstances of the case, considering: Whether the tribunal’s submissions are necessary for the matter to be fully argued and appropriately decided by the reviewing court. The tribunal should maintain the appearance of neutrality. Also, the nature of the question – an allegation of unfair treatment of a particular litigant v. an allegation that the institutional decision making process is unfair.

Watson v Catney: C delegated power to hearing officer. W (affected Police Officer) applied for stay of proceedings from hearing officer. Chief of Police (c) unhappy about this and wanted disciplinary proceedings resolved. C applied for JR. HELD: C had standing, but then lost in Court of Appeal because there was no right of appeal under statute. Since C appointed hearing officer and delegated authority to him, he would effectively be seeking review of his own decision = not permitted

Case example where Tribunal member HAD standing:Real Estate Council of Alberta v Henderson: H real estate broker; complaints brought against him. Exec Director of Real Estate Council referred matter to hearing panel and acted as prosecutor.ISSUE: could Exec Director prosecute H personally? NO.

H convicted of 3 complaints, but acquitted on others. Exec Director sought JR on the acquittals. Exec Director had standing—although ED was part of Real Estate Council, EC’s role under statute was distinct and ED was seeking review, NOT of own decision, but of Panel’s decision (separate entities)

Step 3: What remedy is being sought?Rule: Remedies are discretionary and may be refused even if merits shown.

(1) Prerogative Writs: The starting point is the traditional prerogative writs created at common law.

a. Certiorari:- An order quashing a decision. Matter is often (although not

always) then remitted for reconsideration. Remitting may be done with directions (ie in Baker, the direction that a different officer consider the matter).

b. Prohibition- An order preventing the administrative agency from taking action

or making a decision.c. Mandamus- An order compelling the agency to perform an action.- The action must be one that a person/body has a legal duty to do

and has refused to; the applicant must have a legal right to have it done; and the applicant must have asked for it to be done and been refused.

d. Habeas corpus.- Literally “produce the body.”- Used when a person is incarcerated – the court can require that

the state bring the person before them and justify the incarceration.

e. Quo warranto- Used to inquire into the authority that justifies public action.

(2) Legislation - Legislation in several jurisdictions has simplified remedies and

procedures for seeking them (compared to the old prerogative writs), but the remedies are generally based on the old prerogative writs.

For example, the Federal Court can issue writs (Federal Court Act, s. 18(1)) and make a variety of orders (s. 18.1(3)):s. 18.1(3) On an application for judicial review, the Federal Court may:(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

(3) Declaration- This is a pronouncement by the court on matters of law, defining

the rights and obligations of parties. - This remedy will normally be made along with other orders but it

may be granted as a sole remedy if no other remedy is appropriate.

- NOT LEGALLY BINDING but generally followed when ordered.

CUPE v. Ontario (Minister of Labour)[“Retired Judges”]: The union asked for the appointments of arbitrators to be set aside. This was held to be inappropriate because issue was the appointment procedures generally, rather than the appropriateness of individual appointments. Some arbitrators might in fact have appropriate qualifications. Thus, the appropriate remedy was a declaration that the Minister must make

appointments in accordance with certain legal requirements such as independence, impartiality, expertise and mutual acceptability.

(4) Monetary Remedies (very rare)- Damages may be awarded under s. 24(1) of the Charter. - Damages may be awarded for tort- Occasionally awarded in administrative JR (ie, if there is a legal

duty to make a payment, it may be compelled in mandamus, or if a dismissal is quashed, the office holder may be declared entitled to back pay.)

It will be appropriate for damages to be awarded when: Vancouver (City) v. Ward1) There is a Charter breach.2) Damages are “just and appropriate” in that they serve a functional

purpose of compensation to an individual for loss suffered, vindication by affirming Charter values, or deterring future breaches.

3) No countervailing considerations indicate damages should not be awarded (ie the availability of alternative remedies for the Charter breach or good governance concerns, such as a claim for damages based on government action authorized by a law since found unconstitutional).

4) In compensation, the quantum of the loss is established by evidence.

Note: Although normally rarely awarded, in the decision in Vancouver the SC awarded damages for breach of the charter, SC has said that damages will be more frequently be made available.

Step 4: Is there some reason that the court may exercise discretion to decline relief?- Just because a remedy is generally available does not mean that

a court will necessarily award it. - The court has a discretion whether to award a particular remedy

or whether to award any remedy at all. Therefore even where a party is successful on the merits, there may be no remedy awarded. (see ie Homex)

- In the case of a failure to accord PF, however, this will almost always result in quashing of the decision.

The court may decline to interfere if:1) The applicant has not exhausted other routes of appeal (ie if

the agency has an internal appeal process) Rule: A person must first use all remedies available to them before they apply for JR. It is a remedy of last resort: Canada v Addison & Leyen- If there are other means to have your appeal heard i.e. internal

appeal mechanism or statutory right of appeal – you have to use it before the court will step in for JR.

- A matter of discretion but likely courts will deny a remedy if you do not exhaust all available avenues first

- A court may refuse to hear an application for JR if the applicant has failed to use all available routes of appeal within the administrative system.

- The court may also refuse to hear the application if there is a statutory right of appeal to the courts that has not been utilized.

- This may also be the case if the applicant had a right of appeal, but missed the limitation period, or if they were unsuccessful on appeal.

- A court may also refuse to hear an application for judicial review that is made concurrent with an appeal. (An appeal and judicial review cannot be joined.)

Canada v. Addison & Leyen Ltd: The company received notices of tax assessment. It filed objections, but did not appeal to the Tax Court. The company brought an application for JR of the Minister’s assessment decision. The Crown applied to have the application struck, and was successful. HELD: Although the Federal Court had the jurisdiction to review the Minister’s decision, but declined to do so as the company had not used the regular appeal process. JR is the “remedy of last resort”.

Okwuobi v. Lester B. Pearson School Board: Several parents were seeking English language educations for their children in Quebec, and challenged the provisions of the Charter of the French Language requiring that most children in Quebec be educated in French. The Administrative Tribunal of Quebec had authority to decide questions of law, and therefore constitutional questions. HELD: the parents could not bring their application in the courts until they had exhausted their remedies in the ATQ.

Gates v. Canada (Attorney General): Inmates returning to Matsqui Institution on parole violations are housed in the Temporary Detention Unit. Applied for an injunction directing the institution to maintain the unit at a minimum temperature of 20 degrees overnight. The temperature in the Unit could potentially affect the health of inmates and was therefore urgent. Thus, the application was considered and the order was granted. This is an exception to the general rule that judicial review will not be heard where an alternative process is available but has not been utilized.

2) The application is a collateral attack on an order.- A decision should not be challenged in separate proceedings if it

could have been challenged directly- A person is not to attack/undermine a previous decision of a

tribunal in a separate proceeding when that person had an opportunity to challenge it directly: Wilson v. The Queen

- This rule is not limited to administrative proceedings. Examples: An order is challenged when proceedings are taken against you, rather than when the order was made.

- A court has the discretion not to hear the matter or to deny a remedy if the proceeding amounts to a collateral attack.

3) The application is premature.- An application for JR challenging an element of the decision or

process should not be brought until the final decision has been made.

Air Canada v. Lorenz: AC challenged the adjudicator in an unjust dismissal case for bias prior to a final decision being made. The court noted that relief should only be allowed in exceptional cases, considering various factors including the strength of the case, waste of resources, delay, and fragmentation of litigation. In this case, the adjudication of the unfair dismissal was stayed for almost two years before the JR application was dismissed.

4) The applicant has delayed bringing the application.- If a limitation period for filing a JR application passes, it may be a

complete bar to proceeding.- The statute or rules of court may allow the court to extend the

time limits.- Even if there is no applicable limitation period, if the applicant has

delayed bringing the application, the court may decline to grant relief.

- Result may depend on prejudice to other persons who have relied on the challenged decision.

Friends of the Oldman River Society v. Canada (Minister of Transport): the Society challenged a decision to approve construction of a dam. By the time the challenge was made, the construction company had completed 40% of the work. However, the Society showed ongoing legal efforts had been made to challenge the decision, so the delay argument was not successful in that case.

5) The issue is moot. - Where the dispute has no practical significance for the applicant.

The relevant time is the time of the decision, not the time the application is commenced. Borowski v. Attorney General

- Remember that the court may choose to hear the case. The court may exercise discretion where, for example.o Important issues are at stake.o Similar situations may reoccur or the conduct complained

of is systemic.

o There are other proceedings in which the legal issue is significant.

Examples:- For three of the four applicants in May v. Ferndale, they were no

longer in medium security by the time the matter reached the Supreme Court of Canada.

- Ontario (Children’s Lawyer) v. Goodis: Jane Doe had ceased to participate in the proceedings by the time the matter reached the Court of Appeal.

- V.M. v. BC: Jehovah’s witness family with sextuplets. The blood transfusions had been completed and the children returned to their parents’ custody.

6) The applicant has committed misconduct: - Court can deny a remedy if applicant has acted unreasonably –

come to court with clean hands

Homex Realty: The SCC found Homex had a right to be heard prior to passage of the bylaw. Homex used a device called “checker boarding” to avoid municipal regulations. This was legal, but could be considered as a factor. Homex was seeking to avoid the consequences of an agreement the previous owner of the lands had made with the town regarding the cost of servicing the lots. Therefore the court declined to quash the bylaw.

7) The applicant has waived rights.- Failure to object (ie to bias) when the applicant becomes aware of

the defect may be taken as acquiescence. - Underlying policy considerations: Parties should not wait to see if

the decision is in their favour before raising concerns. The agency should be given the opportunity to rectify any problems if possible