NCA ADMINISTRATIVE LAW OF CANADA OUTLINE

Issues Regarding Administrative Law The circumstances under which governmental decision-makers are subject to an obligation of

procedural fairness to those affected by their decisions, and, where applicable, the content of that obligation.

The extent to which substantive decisions of assigned decision-makers are subject to merits scrutiny by the courts in the name of jurisdiction or other principles of substantive review such as error of law, error of fact, and abuse of discretion, and especially the standard of review that reviewing courts bring to bear in exercising that constitutionally guaranteed capacity.

The remedial framework within which the superior courts, both federally and provincially, exercise their review powers.

The bases upon which the courts will not only exercise direct powers of review but also provide monetary compensation for wrongful administrative action.

Note: In addition to these 4 issues, also understand the big picture.

What is Administrative Law about? Administrative Law is the body of law regulating the ways in which government operates.

o It is about the rules and limits that apply to not only the operations of the Crown, Cabinets, Ministers, government departments, and municipal corporations but also the various administrative tribunals and agencies deployed by governments for the carrying out of governmental functions of all kinds.

It is concerned with the procedures by which all these various instruments of government operate, the jurisdictional and substantive limits on their mandates, and the remedial structures that exist to ensure that decision-makers of various kinds act in accordance with the rule of law.

Generally, these programs where identified and addressed by the government because they are NOT adequately addressed by the free market or private law.

o Having identified the problem, government may: (1) Decide to do nothing; (2) To deal with the problem through existing legal tools and institutions; OR (3) To create a new legal framework, administered by some agency other than the

courts of law, designed specifically for this purpose.

Note: The adoption of the third option is focuses on the concept of administrative law.

Purpose of Administrative Law Administrative law is the body of law that governs how people exercising power pursuant to the

delegation of power in a statute (or occasionally the royal prerogative) go about their business. o Generally, individuals who have this form of power (typically given to them by a statute)

are members of the executive branch of government.

The purpose of this subject is to make sure that the people with this power exercise it “properly”.

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o Administrative law is about decided what we mean by “properly”.

The Subject Matter of Public Administration: The following is not a comprehensive list of public programs. However, the following exemplify

areas of activity, which have often given rise to litigation under administrative law principles.o 1. Employmento 2. Regulated industrieso 3. Economic activitieso 4. Professions and tradeso 5. Social controlo 6. Human rightso 7. Income supporto 8. Public services

INSTITUTIONS OF THE ADMINISTRATIVE STATE

Legislatures From a legal point of view, nearly all public programs originate with a statute enacted by either

the provincial or federal legislature to create new legal rights and duties.o Therefore, the legislatures will have a role to play in its subsequent administration.

E.g. The legislature may consider regulations made by the Cabinet, or a minister, under a power delegated by the statute to flesh out the often bare-bones terms of the legislation.

o Additionally, the minister responsible for the particular program may be questioned in the legislature about its operation.

Cabinet and ministers The governor (or lieutenant governor) in council, or individual minister, may be empowered to

supplement the statute with delegated legislation.o In addition, the ministers, through departmental officials, may exercise discretionary

powers that directly affect individuals. In general, the minister is normally responsible for appointing the department’s

members.

Note: Some statutes provide a right of appeal to the Cabinet from decisions of independent agencieso Ex. CRTC

Note: Through its control of the allocation of funds, the Cabinet plays a decisively important role in determining the shape and scope of public programs.

Municipalities Some of the programs that have the most frequent impact on people are administered at the local

level of government. o The elected members of municipal councils debate and pass the by-laws and resolutions

at public meetings. However, municipalities are subject to a measure of provincial control in these

areas: standards may be set by the enabling legislation, ministerial policy directives or guidelines or by the terms on which provincial funding is provided.

Crown corporations

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Crown corporations enjoy substantial independence in their day-to-day operations so that they can make commercial decisions without government interference.

o However, through the power of the purse, and the appointment of individuals to the board of directors, the government exerts considerable influence over them.

These bodies operate on the fringes of public and private law in the sense that they may compete with privately owned corporations, much of their decision making will be based on commercial principles, and their legal relations with suppliers and customers are governed by contract.

However, they also have governmental characteristics: for example, they are established by statute, they are in public ownership, their boards are appointed by government, and they report to the legislature through the minister responsible.

o Sadly, Crown corporations generally are NOT as instruments for delivering public policy programs.

Private bodies and public functions Some bodies derive their legal authority purely from contract, but, by virtue of the control that

they in fact exercise over particular activities and the nature of the functions they perform, they may resemble administrative agencies.

o Perhaps the most familiar example of this type is the associations that govern many sports

E.g. In boxing, athletes, trainers and managers may require a license to participate in events under the control of the government body.

o Therefore, while licensing cannot be said to be a legal requirement per se to engage in the activity, it may well be a practical necessity.

Further examples include associations like the Real Estate Board of each province, as well as Canadian universities, whom nearly all operate under a statutory framework.

Independent administrative agencies The majority of administrative agencies came into existence after the Second World War as a

result of the rapid expansion of the responsibilities assumed by government. o However, because they are by no means homogeneous, they are not easily described in a

few sentences: they do include, however, boards, tribunals and commissions.

Note: In our current society, administrative boards are tribunals created in the executive branch will regulate and enforce a specific statute.

Some Family Likenesses The independent agencies most frequently encountered in administrative law have at least 4

features in common.

(1) They enjoy a measure of independence from the government department with overall responsibility for the policy area in which they operate.

o This means that a minister CANNOT direct them to come to a certain conclusion in a matter before them.

o Furthermore, this means that an administrative agency is not politically accountable to the legislature for their decisions.

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Note: However, certain statutes may enable the Cabinet to influence the making of particular decisions, either by issuing policy guidelines, or, on appeal, reversing, varying or remitting a decision of the agency.

(2) Those liable to be affected by a decision are given an opportunity to participate in the decision-making process by producing evidence and making submissions.

o To a large extent, procedural openness underpins the legitimacy of administrative agencies and makes good much of the “democratic deficit” inherent in the appointive nature of their members’ position, and the lack of direct political accountability.

(3) Independent agencies typically operate at or close to the “sharp end” of the administrative process: that is, at the point when the public program is applied to the individual.

o However, some agencies also operate at the level of policy-making, and hold hearings to allow those interested to participate in the formulation of a policy.

(4) All administrative agencies are specialized; they deliver a particular public program or a part of one.

o Some agencies may work within just one statute, while others may derive their jurisdiction from several.

Some Differences (1) Decisions made by agencies can be found along a continuum that ranges from those

resembling courts to those that are more akin to the decisions made in the political process. o At one end, there are agencies that determine individual rights on the basis of past events

or facts, a relatively precise statutory standard, and a limited degree of discretion that is exercised in the light of the particular circumstances of the case.

o Other agencies, have a much larger policy-making mandate, and will be guided more by their view of the broader public interest by the conduct or impact of the decision on individuals.

For these agencies, the hearing represents one component of the process by which they inform themselves.

(2) Agencies also vary greatly in the place that they occupy in the overall decision-making process.

o For instance, some only make recommendations to the body with final decision-making powers, such as Commission of Inquiry, which investigate and report to the responsible minister.

o In contrast, other agencies make the first, and sometimes final, determination of individuals’ legal rights.

o Some agencies can hear appeals, which may be from another independent agency or from a decision made by an officer in a government department.

(3) Another important difference among independent administrative agencies is in the effect that their decisions have on individuals.

o The truth is that independent administrative agencies occupy a unique position, with one foot planted firmly in the world of government and bureaucracy and the other in the world of law and the judiciary.

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Agencies are properly regarded as part of government in that they are responsible for advancing the public interest through their implementation of the program that they administer.

On the other hand, like courts, they conduct hearings and must be able to justify their decisions.

Independent Agencies or Government Departments ? Because most administrative agencies are insulated from the pressures of day-to-day partisan

politics, it is easier for agencies to maintain an open process and to develop longer-term and consistent policies.

o The other side of the coin is that ministers can shed political responsibility for individual decisions and can blame the administrative agency if there is an issue.

From the perspective of the individual who is in dispute with a government department, it is very important that the matter can be taken for reconsideration to a body that is independent of the government.

o When they enact a regulatory statute, legislatures cannot foresee or answer many of the policy questions that will inevitably arise in the course of delivering the programs.

Hence the broad grants of discretion given to many independent administrative agencies.

o However, it has been a principle of the Westminster system of government that major issues of public policy should be made in the name of a minister or by the Cabinet collectively, so that ministers can be held politically accountable in the legislature for their decisions.

One attempt to square the circle has involved allocating to the political branch of government responsibility for formulating policy and leaving to the independent agencies the administrative task of applying it to the individual cases.

o It is argued, however, that to authorize the minister to formulate a policy solution for the agency to apply is likely to leave little for the agency to do, and thus, to remove the benefits of independent decision-making.

o Another device to correct this problem has been to provide a right of appeal from regulatory agencies to the Cabinet.

However, commentators generally agree that Cabinet appeals are highly unsatisfactory, which are suspected of being more responsive to short-term considerations.

Independent Agencies or Courts ? There are many reasons why individuals may want to receive relief from an independent agency

rather than a Court. o (1) The nature of the decisions are simply inappropriate for the courts.

They are much more governmental than judicial. o (2) Experience and expertise in areas other than law may be required, as well as an

approach to the issues that is more sympathetic to the aims of the programs than that often displayed by judges.

o (3) Many of the disputes with which we are concerned involve relatively small sums of money.

To process them through the courts would be a wasteful use of public resources.

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o (4) A more informal process may enable decisions to be made more expeditiously and reduce the need for legal representation.

The court’s adversarial model leaves the entire responsibility for presenting the evidence and arguments necessary for making the decision, and reduces the decision maker to the relatively passive role of ensuring the proceedings are orderly and fair and deciding the case on the relative strength of the presentations of the parties.

o It would be inefficient to deny the decision maker the benefit of a broad range of staff expertise in defining and exploring the issues – which is the case in the adversarial model.

Some Current Concerns: On Doing More with Less In the last 20 years or so, the demands on public administration have grown enormously.

o Pushing administrators from one direction are public demands for more “transparency” and responsiveness in government decision-making, the increasing effectiveness of single-issue pressure groups, and a climate of “rights consciousness”, generated in part by the Charter.

However, the budgets available for most of these purposes have remained constant and in some instances have shrunk.

Furthermore, some independent agencies have been abolished. Those that provide advice to government departments seem particularly vulnerable; their advisory function can be performed less expensively by civil servants or not at all.

o Some agencies have been reduced in size, while other agencies, or their administrative structure, have been amalgamated.

Note: Here are 2 examples of the likely impact of shrinking budgets: o (1), if everyone with a right to a hearing exercised it, the system would quickly grind to a

halt or require a massive injection of additional funds. Thus, ingenuity and imagination are going to be needed, perhaps by harnessing advances in technology and developing informal dispute resolution techniques.

o (2), a general public suspicion of the traditional political process has combined to focus attention on the members appointed to independent administrative agencies and the process by which appointments are made.

Administrative Tools Public officials and institutions typically have available a wide range of tools with which to

deliver the public program for which they are responsible:

o (1) Adjudication For many administrative agencies, adjudication is an important tool;

o However, the agency’s adjudicative functions should always be seen within the context of its overall mandate.

E,g, the self-governing professions: while they all employ some form of adjudicative function, adjudication is only one way in which they discharge their statutory responsibilities. Another would be maintaining and enhancing the quality of service provided to the public by members of the profession.

o (2) Testing

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In other administrative schemes, testing plays an important part in decision-making.

o E.g. Eligibility for a driver’s license is determined by a driving test, not a hearing.

o (3) Inspection Inspection is another familiar tool in administrative decision-making and is used

extensively to ensure compliance with health and safety standards.o E.g.

o (4) Contract Public bodies may pursue their objectives through contract.

o E.g. a government department may award a major construction contract to a company in an area of high unemployment as part of its regional development policy.

POLITICAL AND ADMINISTRATIVE REDRESS OF INDIVIDUAL GRIEVANCES

Legislative Oversight of the Administrative Process: The legislatures’ involvement with public programs does not end with the enactment of the

enabling statute.o Instead the legislature deals with reports from standing committees and from the agency

itself may have to be considered, and the minister with overall responsibility for the program may be subject to questioning.

However, legislative oversight is inadequate for investigating complaints from individuals.

o Legislators have neither the time nor the legal powers needed for the job.

Therefore, every province in Canada except Newfoundland has an officer of the legislature with the title of ombudsman to investigate complaints from individuals.

o An Ombudsman has many powers: (1) The ombudsman is empowered to investigate action taken in the

administration of a government organization that affects individuals. (2) The ombudsman has the power to obtain information in connection with the

investigation, which is conducted in private. (3) In order to set the investigative process in motion, the complainant merely has

to file a complaint. o Complaints to the ombudsman bear none of the burden, financial or

otherwise, of seeking relief against the government. (4) The ombudsman can consider a range of possible errors that may have been

committed in the course of delivering a public program. (5) In the event that the ombudsman concludes that something has gone awry, the

organization will be asked to provide a remedy. o If the recommendation is not acted on, the ombudsman may report the

matter to the relevant committee of the legislature. o However, since the ombudsman’s conclusions are NOT legally

binding, any recommended remedy is ultimately enforceable only through whatever political pressure can be exerted by the legislature and public opinion.

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THE CONSTITUTIONAL BASIS OF JUDICIAL REVIEWProcedural Fairness:

The first question a court should ask itself on judicial review for procedural fairness is the “threshold” question:

o Is the kind of decision that should attract some kind of procedural right?

The Supreme Court in Baker identified 5 factors in determining the general level of procedural fairness:

o (1) the nature of the decision and the process followed in making it; o (2) the nature of the statutory scheme; o (3) the importance of the decision to the individual affected; o (4) the legitimate expectations of the parties; AND o (5) the procedure chosen by the tribunal.

Having determined the general level of procedural fairness owed, the court will then decide, from a range of possibilities, what specific procedures are required. These include:

o (1) Notice that the decision is going to be made;o (2) Disclosure of the information on which the tribunal will base its decision;o (3) Some opportunity to participate or make views known;o (4) Full hearing similar to that which occurs in a court;o (5) Opportunity to give evidence and cross-examine;o (6) Right to counsel; ANDo (7) Oral or written reasons for its decision.

Although historically administrative law has focused primarily on procedural review, the courts can also engage in substantive review.

o Substantive review occurs when the courts will look at the decision itself and asks what the standard of review is, has gained in importance. The three standards are:

Correctness The most exacting standard of review

Reasonableness The decision can be one that falls within a band of reasonable

decisions even if it was not the exact decision that a court would itself have reached

Patent Unreasonableness the most forgiving standard of review

Note: The modern approach to the standard of review is to treat the existence of a privative or preclusive clause, and of a statutory right of appeal, as just one of many factors (albeit a significant one) in determining the appropriate standard.

Historically, the courts' remedial powers were the prerogative writs:o Certiorari: to quash or set aside a decisiono Prohibition: to order a tribunal not to proceed

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o Mandamus: to order the performance of a public dutyo Habeas corpus: to order the release of the unlawfully imprisoned

The courts have developed a three-part test to determine whether or not an administrative tribunal is in fact acting like a s. 96 court (seen in Re Residential Tenancies Act, 1979):

o (1) Historical inquiry – whether the impugned power broadly confers to a power exclusively exercised by a superior, district, or county court at the time of Confederation

o (2) Is the impugned power a “judicial” power, as opposed to an administrative or legislative power? (A judicial power is one where there is a private dispute between parties, adjudicated through the application of a recognized body of rules, and adjudicated in a manner consistent with fairness and impartiality.)

o (3) Has the power in its institutional setting changed its character sufficiently to negate broad conformity with superior, district, or county jurisdiction?

Provincially constituted statutory tribunals cannot constitutionally be immunized from review of decisions on matters of jurisdiction by the Superior Courts: Crevier.

o The trend in the case law is that, implicit in ss. 96-100, there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality.

When you take an administrative law matter to court, you are asking to hold the government accountable for what it has done.

o Three things to figure out: where do I go, what do I complain about, what do I ask for

forum, o forum will typically be resolved by statute

ground, o grounds are usually procedural fairness (such as reasonable

apprehension of bias) and substantive unfairness (something about the outcome of the decision that suggests the decision-making body acted inconsistently with the law that created it – “errors of law” refer to interpreting their own statute incorrectly; another possibility is that the body interpreted their law in an unreasonable way, or making a decision in a capricious way, failing to take facts or evidence into account)

even if the statute does not explicitly purport to guarantee procedural fairness, the court can draw on principles developed through the common law, such as the duty of fairness owed by decision-makers to people affected by their decision, so it can import these interpretive devices and principles

remedyo remedy: in administrative law, under judicial review, you do not get

a new outcome – on judicial review, the best you can get in that sense is a new hearing at the forum of first instance

it may be that the new outcome is in a sense predetermined by what the court has decided

Note: There are various other subcategories of remedies

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o Sometimes the statute will create a right to an appeal to the courts Unlike in criminal right, where there is an appeal as of right, the statute

must create this statutory appeal possibility and set out the criteria by which an appeal can be brought

Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC):

The issues raised in Baker on appeal were: o (1) What is the legal effect of a stated question under s. 83(1) of the Immigration

Act on the scope of appellate review?o (2) Were the principles of procedural fairness violated in this case?

Were the participatory rights accorded consistent with the duty of procedural fairness?

Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?

Was there a reasonable apprehension of bias in the making of this decision?

o (3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children?

The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not the certified question. Once a question has been certified, all aspects of the appeal may be considered by the appellate court, within its jurisdiction.

Procedural Fairness:

A duty of procedural fairness attaches to H&C decisions. o The fact that a decision is administrative and affects “the rights, privileges, or

interests of an individual” is sufficient to trigger the application of the duty of fairness.

o Underlying all of the factors identified in Baker is the notion that the purpose of participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

The five factors identified (not exhaustive):o The nature of the decision being made and the process followed in making it –

the more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness

o The nature of the statutory scheme and the “terms of the statute pursuant to

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which the body operates” - greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted

o The importance of the decision to the individuals affected – the more important the decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protections that will be mandated

o The legitimate expectations of the person challenging the decision – if the claimant has a legitimate expectation that a certain procedure will be followed, or that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; nevertheless, the doctrine cannot lead to substantive rights outside the procedural domain

o The choices of procedure made by the agency itself – particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances

Legitimate Expectations:

In this case, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. Therefore, she had no legitimate expectation affecting the content of the duty of fairness.

Participatory Rights:

The circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. The flexible nature of the duty of fairness, however, recognizes that meaningful participation can occur in different ways in different situations.

In these circumstances, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled, particularly given the fact that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard. The opportunity for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.

The Provision of Reasons:

Any reasons requirement under the duty of fairness must leave sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.

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In Ms. Baker's case, the provision of written reasons are necessary, but the requirement was fulfilled by the provision of the notes of Officer Lorenz. These are both sufficient to satisfy the requirement under the duty of fairness, and to represent the reasons for decision themselves.

Reasonable Apprehension of Bias:

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.

o The test for reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?”

The notes of Officer Lorenz demonstrate a reasonable apprehension of bias, as the well-informed member of the community would perceive bias when reading his written reasons.

o His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes.

Review of the Exercise of the Minister's Discretion:

The language of the legislation signals an intention to leave considerable choice to the Minister on the question of whether to grant an H&C application.

It is inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision-making.

The “pragmatic and functional” approach recognizes three standards of review on a continuum of deference owed:

o patent unreasonableness, o reasonableness simpliciter, and o correctness.

o The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, he language of the provision and the surrounding legislation, whether a decision is “polycentric”, the intention revealed by the statutory language, and the amount of choice left by Parliament to the administrative decision-maker.

In this case, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the

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inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness.” Thus, the appropriate standard of review is reasonableness simpliciter. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.

Officer Lorenz was completely dismissive of the interests of Ms. Baker's children, and the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section. These reasons show that Officer Lorenz' decision was inconsistent with the values underlying the grant of discretion, and therefore they cannot stand up to the somewhat probing examination required by the standard of reasonableness.

The exercise of the H&C discretion was also unreasonable because the discretion granted by the ministerial guidelines is confined within certain boundaries, and attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H&C decision to be made in a reasonable manner.

Administrative Remedies Sometimes there are formal levels of appeal that can be pursued within the agency and,

independent administrative agencies often have an express statutory power to reconsider their own decisions.

Statutory rights of appeal are now commonly provided to an independent appeal tribunal from decisions made by government departments about individual entitlements.

Administrative appeal tribunals are generally able to reconsider the whole case after hearing form the parties and to substitute the decision that in their view the original body should have made.

Courts and Administrative Agencies Public litigation is generally a remedy of last resort.

o The cost of taking the administration to court is high; the prospects of success in court is limited; and even when a favourable judicial decision is obtained, the possibility always remains that, having corrected the legal error, the administration may not change the substance of the decision that gave rise to the complaint.

Note: On the other hand, litigation can be a useful tactic for delaying the implementation of an agency’s decision.

Original Jurisdiction When the legislature has not established a mechanism specifically for the purpose, a person may

take their claim against the government directly to court. o This is possible when the administrative action in question infringes an individual’s

private legal rights by constituting a tort, breach of contract, or some other wrong for which an award of damages may be made or specific relief granted

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Additionally, persons claiming that a governmental body has violated a right protected by the Charter may seek a remedy directly from a court under sec. 24 of the Charter.

Appeals: It is important to appreciate at the outset that rights of appeal are purely the creation of statute:

courts have no inherent appellate jurisdiction over administrative agencies – contrast with proposition below which holds that Superior Courts are courts of general jurisdiction and enforce that right absent any empowering statute

Rights of appeal come in different sizes. o The most generous provide for an appeal on questions of law, fact and discretion and

authorize the appellate court to substitute its opinion for that of the agency. Others limit the appeal to questions of fact and law, while the narrowest are

confined to law and jurisdiction.

If the court concludes that the agency erred, it may refer the matter back to the agency or reverse the decision and find in favour of the appellant.

o There seems to be an emerging pattern that, in the absence of some strong reason to the contrary, there should be a statutory right of appeal to a court from independent administrative agencies with the power to make decisions restricting the exercise of an individual’s common law rights or refusing some significant social security benefit – the major exceptions to this general rule are in the regulation of labour relations and employment. This is partly because these agencies are regarded as having an understanding of the underlying issues of labour relations that the courts do not; and partly because the courts and the common law have been perceived as generally unfavourably disposed to the claims of labour, especially those based on collective rights.

Courts’ Inherent Judicial Review Jurisdiction: Even in the absence of a statutory right of appeal, the provincial superior courts exercise a

supervisory jurisdiction over the institutions and officials with responsibility for administering our public programs.

o It is argued that the superior courts of the provinces inherited this role from the English Royal Courts of Justice.

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

Judicial remedies of administrative law The courts exercised this supervisory jurisdiction through remedies that were available only in

respect of public duties or powers. There were known as the prerogative writs. Four are particularly important

o 1 Certiorari – to quash or set aside a decisiono 2 Prohibition – to order a tribunal not to proceed in a mattero 3 Mandamus – to order the performance of a public dutyo 4 Habeas Corpus – issued to determine the legality of a person’s detention

Even in respect of federal agencies, the superior courts of the provinces retain their jurisdiction to issue habeas corpus; the Federal Court has only a limited capacity to grant this remedy

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Unlike awards of damages for the violation of a private legal rights, the prerogative remedies and their modern statutory equivalents are granted in the discretion of the court on the basis of public interest considerations

In addition, applicants do not have to show that the administrative action complained of affected them in a way that infringed their private law rights; a court may grant relief on the basis that the applicant was an appropriate person to assert the public interest in ensuring that governmental bodies do not act unlawfully.

o However, with the emergence of general principles of judicial review of administrative action, the organizing ideas of administrative law shifted from the technicalities of the remedies to the grounds of review and to ensure that, in deciding to grant relief, the courts attended more to achieving an appropriate balance between private rights and public interest than to the anachronism of the law of the prerogative writs.

Grounds of review When the legislature has provided no right of appeal, in what circumstances may a court

intervene in the administrative process?o There are four principal grounds to judicial review:

(1) Procedural Impropriety – o Before taking action that may adversely affect the interests of individuals, administrators

are generally under a legal duty to act in a manner that is procedurally fair. This typically requires them to give prior notice to those likely to be affected and

a reasonable opportunity to respond. Impartiality in the decision maker is another attribute of procedural fairness.

o Much of the law defining administrative action has been developed by the judges as a matter of common law and, since 1982, under the rubric of the Charter.

In addition, legislation may prescribe the procedures to be followed by the particular agency.

When relief is granted, the agency will normally be free to decide again, after complying with its procedural duties; its second decision may be the same as the first.

(2) Illegality o Administrative action that is NOT authorized by law has NO legal validity.

For the most part, the legal powers of concern to administrative law are statutory. This means that the courts must determine the scope of the legal powers and duties of the agency by interpreting the relevant legislation.

(3) Unreasonablenesso There is a legal duty on administrators not to exercise their powers unreasonably.

There must be some evidence to support material findings of fact on which an agency bases its decision.

An administrative agency’s interpretation of its enabling legislation must not be patently unreasonable.

Conversely, when administrative action infringes a Charter right, it may be justified under sec. 1 as a reasonable limit prescribed by law.

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(4) Unconstitutionalityo Since the adoption of the Charter, it has become increasingly common for lawyers to

frame court challenges to administrative action in terms of both the common law and the Constitution.

E.g. a breach of the common law duty of fairness may also amount to a denial of liberty or security of the person contrary to sec. 7 of the Charter.

o There are two points to be made about the relationship between administrative law and constitutional law.

First, regardless of whether it is authorized by statute, administrative action may always be impugned in court on the ground that it breaches either the division of powers or the individual rights provisions of the Constitution – namely, the Charter.

Second, both are branches of our public law, and their concerns overlap; it is important, therefore, that the standards imposed by constitutional law are informed by previous experience with the problem at the level of administrative law.

For example, balancing procedural fairness against administrative efficacy.

Additionally, it is equally important that the non-constitutional legal standards to which public administration is held through legislation and the common law reflect the constitutional values and principles emerging from Charter litigation in all contexts – recall the constitutional law doctrine that the common law should develop or be amended so as to be in conformity with Charter principles

The Reach of administrative law It has become important to administrative agencies for a range of purposes to know whether, and

to what extent, the remedies and grounds of review of administrative law apply to them. It the course of that determination, it may be asked whether the institution in question is “government” for the purpose of being subject to the Charter. For example, while universities are apparently not for the most part subject to the Charter, our courts have generally held that, despite their institutional autonomy and the contractual nature of their relationships with students and faculty members, the decisions of university committees administering discipline to students or denying tenure to professors are subject to the prerogative orders.

The Rule of Law and the Administrative State The rule of law is an ideal to which appeals are regularly made by proponents and their critics of

measures relating to the design and delivery of public programs. o Like the concepts of liberty and democracy, the rule of law has no generally agreed

meaning as applied to law and administration.o However, the root idea, namely that government should be subject to law, is on that, like

democracy and liberty, will not go away.

Reference Re: Secession of Quebec o The Supreme Court recognized the rule of law as one of the four underlying principles of

the Canadian Constitution: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.

Dicey and the Liberal Idea of the Rule of Law:

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The most important elements of Dicey’s definition of the rule of law are that no one should be made to suffer except for a distinct breach of the law and that government and citizens alike are subject to the general law of the land administered in the ordinary courts.

This definition has been employed to attack the statutory grant of broad discretion enabling public officials to restrict individuals’ freedom of contract and property rights.

o The principle objections to such powers are that they may be used to discriminate improperly against or to favour particular individuals or groups, it is difficult to hold officials democratically accountable for such essentially discretionary decisions, and individuals should be able to plan their lives in accordance with known rules of general application.

An equally important influence of Dicey’s definition of the rule of law is that it insists that, in the common law world as opposed to the legal systems that are derived from or influenced by the Napoleonic Code, there is no separate body of public law, administered outside the “ordinary courts”, applicable to relations between the government and individuals. This proposition has led to two important developments in Canadian administrative law.

o First, Dicey’s assertion has provided a theoretical justification for the exercise by the superior courts of their supervisory jurisdiction over administrative agencies on the grounds of procedural unfairness and illegality, even when the legislature has apparently expressly excluded judicial review. In Crevier v. A.G. of Quebec, the Supreme Court held that it is beyond the constitutional competence of provincial legislatures to remove the superior court’s supervisory jurisdiction over administrative agencies. That principle was extended to federal Parliament in MacMillan Bloedel Ltd v. Simpson.

o Second, entrenching the superior courts as the arbiters of disputes between individuals and the administrative institutions of the state has given a dominant role in shaping the legal framework of public program delivery to patterns of thought about law that are associated with the common law. For example, legal notions of procedural propriety in administrative decision making have been much more influenced by the paradigms of litigation and the judicial process than by the bureaucratic model or the notion of participatory democracy. Additionally, when reviewing for legal error an agency’s interpretation of its enabling statute, the courts have approached the task as they would if hearing an appeal from a court occupying a lower position in the same hierarchy. Thus, while the agency may have an expertise in the policy aspects of the program that it is administering, the interpretation of legislation to determine individuals’ rights is the province of the judiciary.

The Functionalist Critique: Functionalist criticisms of the liberal version of the rule of law are three fold.

o First, writers began challenging the historical accuracy of Dicey’s assertions that the rights of English people were subject to general law, and not to official discretion, and that there was in England no special body of public law for regulating legal relations between citizens and the state.

For example, that at common law the Crown was immune from liability in tort.

o Second, they have pointed out that Dicey’s disapproval of broad administrative discretion and his support for affording to the “ordinary courts” a key position in the resolution of disputes between the individual and the administrative state could only thwart the effective implementation of legislatively enacted public interest programs of regulation and redistribution.

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The litigation process reduces to a “question of law” or an issue of procedural “fairness” complex policy choices that are more helpfully considered in the context of the program that the agency is administering than in the context of general legal principles.

o Third, it has been argued that the positivist legal tradition, of which Dicey’s thought is a part, has failed to appreciate that law is inextricably intertwined with policy.

Given the limitations of legislative foresight and the inherent ambiguities of language, it is normally not possible to determine, when contested, the meaning of a provision in an agency’s enabling legislation without also considering the consequences that one interpretation rather than another would have for the program that the legislation had been created by the legislature to deliver. It is argued that the specialist agency is more likely than any reviewing court to be in a position to make an informed assessment of the interpretation that will enable the program to be most effective.

Thus, a functionalist approach to administrative law stresses that, as regulator and provider of benefits, the state should be regarded as a source of good.

o It is the function of the law to enable administrative agencies to carry out effectively and efficiently the tasks assigned to them by the legislature.

This approach has exerted a significant influence on developments in the law of judicial review of administrative action in Canada since the early 1980s.

The Rule of Law, Democratic Values, and Fundamental Rights: There is no doubt that the functionalist analysis has provided an important corrective to the view

of the rule of law propounded by Dicey. o However, it seems that the functionalist approach tends to attach insufficient weight to

considerations of democratic accountability and to fundamental rights and to the positive contributions that the courts can make to realize these goals. In fact, the courts seem to enjoy more public confidence than most other institutions of government.

It seems possible to rework some of the elements of the liberal version of the rule of law so as to provide a role for the law of judicial review in advancing these values in the contemporary administrative state, especially in the age of the Charter.

o First, at a time when there has been a dilution in public confidence in the capacity of the traditional political process, it is appropriate for administrative law, both through statutory reform and judicial review, to ensure procedural openness and enhance accountability in public administration.

Direct public participation in decision making at the level of the agency delivering a program may go some way to compensate for the limited oversight exercisable by the legislature. However, because of the limitations of their institutional competence, courts should not lightly intervene if the agency has come up with a procedure that represents a good faith attempt to balance the claims of democratic accountability against program effectiveness and efficiency.

o Second, while reviewing courts should normally show a measure of deference to a specialist agency’s interpretation of its enabling statute, it is appropriate to scrutinize more closely decisions that seem contrary to the interests of the intended beneficiaries of the legislation or to that aspect of the public interest that the legislation was enacted to protect. In this way, the courts can provide a counterweight to the pressure that private economic interests so often are able to bring to bear on public agencies.

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o Third, the force of the functionalist claim is appreciated, which asserts that it is often futile to imagine that the legislature had a “meaning” in mind when it enacted a provision in a statute that has to be applied to a set of facts that was almost certainly not foreseen, and that the most reliable guide to the “intention of the legislature” is an interpretation that best furthers the purpose of the statute, a matter that the agency will often be better placed to determine than a reviewing court. However, as is suggested by the notion of the separation of powers, the independence of the judiciary and its experience across a wide spectrum of the legal system make it appropriate for the courts to be prepared to intervene when satisfied that, after making due allowance for agency expertise, linguistic ambiguity, and an approach to statutory interpretation that emphasizes legislative purpose, the agency’s interpretation was wrong.

o Fourth, since the Charter applies to governments and legislatures, agencies charged with the implementation of a public program should be alert to the possibility that administrative action may violate a Charter right. However, the courts have also said very clearly that the Charter gives no mandate to the judiciary to roll back the statutory protections of the welfare and regulatory state: infringements of Charter rights must be carefully weighed against other competing public interests. Thus, it should not be presumed that to remain within its legal authority an administrative agency must implement a statutory scheme for the delivery of a public program with minimum interference to individual Charter rights.

The Constitutional Basis of Judicial Review There is a common understanding that public statutory authorities have only those powers that are

conferred on them by legislation.o Therefore, their powers are legally limited; and it is ultimately the function of the courts

to determine what those limits are, especially when they threaten the rights of individuals.

It is agreed that a legislature cannot oust the courts’ power to review a decision of an administrative agency, or its enabling statute, on the ground that either is beyond the constitutional capacity of that legislature.

o Thus, legislation conferring power on public authorities and those public authorities in the exercise of that power are always subject to challenge on the basis that there has been a disregard of the division of powers between Parliament and the provincial Legislatures – based on sec. 91 and sec. 92 of the Constitution Act 1867. Additionally, legislation cannot take away the right to lunch a constitutional challenge on other grounds, such as a violation of the Charter, and now even the unwritten principles – namely, conventions – as recognized by Reference Re Secession of Quebec.

o However, neither the Constitution Act 1867 nor the Constitution Act 1982 contains a provision that expressly deals with the power of the courts to review decisions of administrative agencies.

Since administrative agencies are very much the creation of the 20th century, it is hardly surprising that the need for such guarantees was not addressed at the time of Confederation.

Unlike the constitutions of some other federations, our constitution does not contain a general separation of powers doctrine. In the absence of such a doctrine, the argument for implying a constitutionally guaranteed right to judicial review of administrative action has centered on the judicature provisions of the Constitution Act 1867, sec. 96-101.

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Courts and Tribunals: Some Constitutional Background

Hogg, Constitutional Law of Canada : The novel tasks of adjudication which are entailed by new schemes of regulation have commonly

been entrusted to administrative tribunals rather than to the courts. Hogg identifies five reasons. o First is the desire for a specialist body: specially qualified personnel can be appointed to

the tribunal. o Second is the desire for innovation: a tribunal can be given broad discretion to develop

policies and remedies required to implement a new scheme of regulation.o Third is the desire for initiative: a tribunal can be given power to initiate proceedings, to

undertake investigations, to do research, and to play an educative and policy-formulating role as well as an adjudicative one.

o Fourth is the problem of volume: if adjudication is required with great frequency, the tribunal can develop procedures to hand a case-load that would choke the ordinary course system.

o Fifth is economy: a tribunal can be structured and mandated to be less formal, speedier and less expensive than the ordinary courts.

Regardless of all these potential benefits, “ordinary courts”, through their exegesis of sec. 96 and the other judicature sections of the Constitution Act 1867, have assumed the power to review legislation investing a provincially established administrative tribunal with adjudicative functions.

Re Residential Tenancies Act – requirements for sec. 96 challenge to admin. tribunal power Justice Dickson, speaking for the Supreme Court, suggested a three-step approach to the

resolution of a sec. 96 challenge to an administrative tribunal’s powers. o The first step is an historical inquiry into whether the impugned power broadly conforms

to a power exercised by a superior, district or county court at confederation. o The second step, reached only if the answer to the first is yes, is an inquiry into whether

the impugned power is a “judicial” power. o The third step, reached only if the answer to both of the above questions is yes, is an

inquiry into whether the power in its institutional setting has changed its character sufficiently to negate the broad conformity with superior, district or county court jurisdiction.

The first step involves an investigation of whether the impugned power was one that was within the powers of a superior, district or county court at confederation.

o For a tribunal’s power to be held to be a sec. 96 power at confederation, the impugned power must have been within the exclusive jurisdiction of sec. 96 courts at confederation.

If there was even concurrent jurisdiction in inferior courts or tribunals at confederation, then the tribunal will pass the historical inquiry.

o This rule places great weight on the way in which the impugned power is characterized.

For example, a tribunal’s remedial powers may have been within the exclusive jurisdiction of sec. 96 courts at confederation, while its subject-matter jurisdiction was only concurrent.

In Sobeys Stores v. Yeomans, Justice Wilson, for the majority, suggested that the court should lean in the direction of the choice that would fail the historical test, so as to protect the traditional jurisdiction of sec. 96

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courts. Therefore, the historical inquiry step plays only a limited role in establishing a sec. 96 challenge; the validity would be resolved in steps two and three.

The second step involves the task of characterizing the impugned power as “judicial” (in which case the sec. 96 inquiry must proceed) or as “administrative” or “legislative” (in which case the sec. 96 inquiry can stop).

o In Re Residential Tenancies Act, Dickson suggested that a power was “judicial” if it involved:

1 A private dispute between parties 2 The dispute must be adjudicated through the application of a recognized

body of rules 3 The dispute must be adjudicated in a manner consistent with fairness and

impartiality

The third step involves an examination of the power in its institutional setting to see whether it still broadly conforms to a sec. 96 power.

o This step was emphasized in Tomko v. Labour Relations Board (Nova Scotia), where, in upholding a labour relations board’s power to issue a cease and desist order, Laskin, for the majority of the Supreme Court, said that the superficially close analogy with superior court injunctions was not decisive, because it was necessary to consider not the “detached jurisdiction or power alone”, but rather “its setting in the institutional arrangements in which it appears”. Therefore, the court-like adjudicative function of the labour relations board was ancillary to a broader administrative and policy making role.

Re Residential Tenancies Act – qualification to third stepo The Supreme Court held that, although the rent tribunal did perform other functions in

the administration of Ontario’s residential tenancy legislation, the other functions were ancillary to the central function of adjudicating disputes between landlords and tenants.

Therefore, the “institutional-setting” step will not save an adjudicate function which, having been held to be a sec. 96 function at confederation (step 1), and having been characterized as judicial (step 2), is the “sole or central function” of the tribunal.

A.G. of Quebec v. Farrah The Supreme Court held that the sole function of the Quebec Transport Tribunal was to sit on

appeal from a tribunal of first instance and decide “any question of law”: this was held to be an unconstitutional sec. 96 function.

Crevier v. A.G. of Quebec The Supreme Court held that the sole function of the Quebec Professions Tribunal was to sit on

appeal from several tribunals of first instance: the Professions Tribunal also had the power to decide questions of law.

In both of the above two cases, a privative clause in the enabling legislation purported to exclude superior court review of the appellate tribunal’s decisions.

o In Crevier, Justice Laskin, as well as holding the privative clause unconstitutional, also held that the fact that the sole function of the Quebec Professions Tribunal was that of “a general tribunal of appeal” was a fatal flaw by itself.

Critique of Three-Step Approach

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It is argued that the three-step approach is not satisfactory as a constitutional law doctrine. Each of the three steps is vague and disputable in many situations and small differences between the provinces in their history or institutional arrangements can spell the difference between the validity and invalidity of apparently similar administrative tribunals. This has led to pressure from the provinces for an amendment to sec. 96.

Statutory Removal of Judicial Review Crevier v. A.G. of Quebec – distinction b/w ancillary judicial function & solely judicial in nature

- & def’n of effect of privative or preclusive clauseo This case concerns the validity of aspects of the Professional Code. The novel feature of

this statute was the creation of a Professions Tribunal, with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final.

o Justice Laskin delivered the judgment of the Supreme Court. He pointed to two issues. The first issue concerns the perceived similarity of this case with a Tomko v.

Labour Relations Board (Nova Scotia) situation. The Professions Tribunal is given no function other than that of a general tribunal of appeal in respect of all professions covered by the Professional Code. The Professions Tribunal is not so much integrated into any scheme as it is sitting on the stop of the various schemes and with an authority detached from them. Laskin drew support for distinguishing Tomko by relying on the recent judgment of the Supreme Court in Reference Re Residential Tenancies Act. In that case, Dickson said this concerning Tomko:

“It is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by a sec. 96 court. What must be considered is the “context” in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once was exercised by the sec. 96 courts. It will all depend on the context. It may be that the impugned “judicial powers” are merely subsidiary or ancillary to general administrative functions assigned to the tribunal, or the powers may be necessarily incidental to the achievement of a broader policy goal of the Legislature. In such a situation, the grant of judicial power to provincial appointees is valid. The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal so that the tribunal can be said to be operating like a sec. 96 court ” .

The second issue concerns the effect upon sec. 96 of a privative clause of a statute which purports to insulate a provincial adjudicative tribunal from any review of its decisions. Laskin held that where a provincial Legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal as a sec. 96 court. Laskin cited the case of Farrell et al v. Workmen’s Compensation Board & A.G. of B.C., where there was a preclusive provision against judicial review of board decisions on questions of law but not on questions of jurisdiction, and there was no doubt that the board had jurisdiction. The conclusion of the Supreme Court in Farrell was that there is no constitutional impediment for a province to restrict judicial review to

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matters of jurisdiction, excluding in the meantime questions of law, and other reviewable grounds. Laskin drew more support for this proposition from the case of L’Alliance des Professeurs Catholiques de Montreal v. Quebec Labour Relations Board et al, where it was held that “any restriction on the powers of control and of surveillance of a superior court is necessarily inoperative when it is a question of its preventing the execution of a decision, of an order or of a sentence rendered in the absence of jurisdiction”. Therefore, it is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction.

Crevier : Context and Criticism:o Prior to Crevier, there had been considerable controversy among commentators about

whether the right to judicial review of administrative agencies was constitutionally guaranteed.

One school of thought was represented by then Professor Bora Laskin. He argued the following:

“… We may well feel that judicial supremacy is the highest of all values under a democratic regime of law, and a value to which even the legislature should pay tribute. But we have not enshrined it in any fundamental constitutional law or in our political system. On the contrary, the cardinal principle of our system of representative government, inherited from Great Britain, has been the supremacy of the legislature…”

o Another view, also expressed by Laskin (but now as a Supreme Court Chief Justice) took place in a discussion on the separation of powers under the Canadian Constitution. He argued the following:

“…it is obvious that such agencies cannot escape making determinations of law in the course of their regulatory or quasi-judicial operations, and to deny them such leeway would weaken considerably their utility. The reasonable compromise here is to deny them unreviewable authority to make such determinations, and equally to deny them power to determine finally the limits of their jurisdiction. These are maters with which Canada is quite familiar without being bound by a strict separation of powers doctrine…”

The narrow point settled by Crevier is that a provincial legislature may not protect from review on jurisdictional grounds the decisions of a provincially created appellate tribunal, even though its jurisdiction is not confined to errors of law committed by the tribunal of first instance. As a result, the Supreme Court entrenched in the constitution the right to judicial review on jurisdiction grounds, thereby reinforcing the notion that administrative agencies and the courts are part of the same decision-making system of which the courts sit at the apex and the “inferior tribunals” at the bottom. An essential element of Dicey’s concept of the rule of law has, thus, been incorporated into our formal constitution.

However, an assessment of Crevier may depend on the way that the courts define the scope of jurisdiction error. If jurisdictional review were confined to procedural unfairness, patently unreasonable interpretations of the agency’s statute, and errors of general law, then Crevier might not be so controversial.

Crevier: Federalism or Separation of Powers?

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Is Crevier fundamentally about preventing the provinces from trenching on the federal government’s power to appoint judges to the superior courts by the creation of tribunals that have an essential characteristic of superior courts? Or is it about protecting the individual’s right to seek from an independent judiciary, constituted pursuant to sec. 96 and with the attributes prescribed in sec. 97-100, a determination of the legality of administrative action?

o While the historical origin of the judicature sections of the Constitution Act 1867 was probably to ensure a large element of control by the federal government over the justice system, they are now understood primarily as entrenching individuals’ access to an independent judiciary to protect their legal rights, or otherwise to ensure that the administration observers the limits of its legal authority.

UES, Local 298 v. Bibeault Justice Beetz said the following:

o “When an administrative tribunal exceeds its jurisdiction, the illegality of its act is as serious as if it had acted in bad faith or ignored the rules of natural justice. The role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection.”

On the other hand, when writing for the majority in Sobeys Stores Ltd v. Yeomans, Justice Wilson cited Crevier as authority for the proposition that “a broad privative clause will offend the Constitution by creating a sec. 96 court”. This suggests that sec. 96 is offended by conferring on an administrative tribunal the power to determine the extent of its own jurisdiction free from the superior courts’ inherent supervisory power, rather than by removing from the sec. 96 courts a core function.

o If the Supreme Court has endorsed the view that there is a constitutionally guaranteed right to seek judicial review on the grounds of jurisdictional error or illegality, then two practical consequences follow. First, Crevier extends to all manner of administrative agencies exercising legally limited powers, including appellate tribunals and ministers and municipalities that are vested with statutory discretion. The second consequence is that it also applies to judicial review of federal administrative agencies.

Preclusive Clauses and Federal Tribunals:o If the concepts of the rule of law and a limited notion of the separation of powers are the

bases of Crevier, a constitutional right to judicial review for jurisdictional error should apply as much to federally created administrative tribunals as it does to those established by provincial legislation.

However, if review for jurisdictional error were based solely on the view that sec. 96 implicitly prohibits the conferral of a superior court power on another body, a federal tribunal would probably not be regarded as falling within the words “a superior, district or county court in each province”

There is now considerable support for the proposition that Parliament is subject to precisely the same limitations as provincial legislatures.

C.I.B.C. v. Rifou o A majority of the Federal Court of Appeal held that the constitutional principle of an

independent judiciary would be seriously eroded if Parliament were free to assign to federal agencies jurisdiction over matters historically falling within the jurisdiction of superior courts

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Even if the majority in Rifou were wrong to think that sec. 96 prevents the conferral on federal administrative agencies of original jurisdiction over matters historically associated with sec. 96 courts, it is still possible that the concept of the rule of law on which Crevier is based requires that federal administrative tribunals at least be subject to jurisdictional review in a superior court.

Pringle v. Fraser – legislature can oust superior court review if higher court can still reviewo The Supreme Court held that there was no constitutional objection to provisions of the

Immigration Act, then in force, that removed jurisdiction from sec. 96 courts to review immigration decisions and vested it in the Immigration Appeal Board.

However, the decisions of the board were subject to appeal to the Supreme Court, whose judges are appointed and hold office on terms essentially similar to sec. 96 court judges.

MacMillan Bloedel Ltd v. Simpson – “core jurisdiction” of superior court cannot be removedo A majority of the Supreme Court held that Parliament could not legislate to remove the

right of superior courts to punish for contempt ex facie of its orders. Legislation taking this power away from the provincial superior courts and conferring it on statutory Youth Courts was, therefore, unconstitutional.

Justice Lamer citied with approval a passage written by Justice Laskin in Crevier, where he said:

“…I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.”

o Lamer argues that that passage establishes that powers which are “hallmarks of superior courts” cannot be removed from those courts. Lamer also cites with approval a passage written by Justice Estey in A.G. of Canada v. Law Society of B.C., where he stated:

“The provincial superior courts… are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction.”

Lamer argues that in Canada, the provincial superior court is the only court of general jurisdiction and as such is the centre of the judicial system. None of our statutory courts (which include provincial courts, federal courts and the Supreme Court) has the same core jurisdiction as the superior court and, therefore, none is as crucial to the rule of law. To remove the power to punish contempt ex facie by youths would maim the institution which is at the heart of our judicial system.

Therefore, the core jurisdiction of the superior courts is constitutionally immune from removal by either the federal Parliament or the provincial Legislatures. Moreover, the endorsement of Crevier assumes to indicate strongly that alone with the power to punish for contempt ex facie of their orders, the superior courts have as part of their core the authority to review for jurisdiction error.

Judicial Review and Charter Rights: It is arguable that adequate access to judicial review is a requirement of the principle of

fundamental justice for the purpose of sec. 7.

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o Thus, it would be contrary to the Charter for a legislature to create an agency whose decisions could deprive individuals of an interest falling within the phrase “life, liberty or security of the person”, UNLESS the agency’s decisions’ were subject to adequate judicial review.

The argument is not that the agency itself acted unconstitutionally when it made its decision, but that the absence of an adequate opportunity to ensure that the agency complies with its statutes violates the principles of fundamental justice.

Partial Preclusive Clauses: The court in Crevier was faced with a statutory provision that purported to preclude judicial

review altogether.o But what of a clause that merely restricts access to the courts by, for example, requiring

that an applicant first obtain leave of a judge, who could refuse leave without reasons, and from whose refusal of leave the applicant had no right of appeal?

Re Board of Trustees of Wainwright School Division No. 32 & CUPE, Local 1606 o The validity of a statutory limitation period of 30 days was unsuccessfully

challenged Judge Cook, sitting in the Alberta Superior Court, said:

“Given the need to address matters in an expeditious manner in this area of the law, I do not consider the 30 day limitation to be unreasonably short or otherwise colourable.”

Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) – extension of definition of privative clause – preclusive features judged by effect not words

o The issue in this case was whether a legislature can validly deny an applicant access to evidence relevant to proving that an administrative tribunal exceeded its jurisdiction

It was argued that the applicant, who applied for judicial review on the ground that the tribunal had breached the duty of fairness, was statutorily precluded from summoning a member of the tribunal for examination on its decision-making process

Sec. 31 of the Pay Equity Act purported to provide that, without the consent of the tribunal, members could not be required to testify in any proceeding respecting any information acquired in the discharge of their duties.

Judge O’Leary stated the following:o “I have no doubt that, generally speaking, the legislature has

that power. The issue is, can it in that way prevent a superior court from finding out whether or not a quasi-judicial tribunal has acted beyond its jurisdiction... In my view, the legislature cannot in that way effectively immunize an inferior tribunal from judicial review”

O’Leary went on to cite Crevier stating the following:o “While in Crevier Justice Laskin was dealing with a privative

clause, in my view his remarks apply to any legislation which would effectively prevent review by a superior court of a tribunal’s decision on a question of jurisdiction. Here, sec. 31 would prevent the court from finding out whether indeed the tribunal acted beyond its jurisdiction…”

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o O’Leary said that to interpret Crevier in the way argued for by counsel for the Attorney-General would mean that the legislature could so whittle down the right to review (but still leaving some right to review), to the point that judicial review would be virtually impotent. He argued that any attempt by a legislature to insulate an administrative tribunal from superior court review of its exercise of jurisdiction is an attempt to constitute that tribunal as a superior court. However, the provinces cannot create superior courts, and thus, the attempt to insulate the tribunal from review is ultra vires the powers of a province.

o A second argument proposed by counsel for the Attorney-General was that the province has the authority to create tribunals that at least in some of their functions may create an apprehension of bias and so deny that aspect of natural justice to those with whom they deal. This proposition, if true, it is suggested, would support the argument that the province is entitled to enact sec. 31, even if in the result it prohibited the court from determining whether in this case there has been a denial of natural justice. Counsel placed reliance on the case of Brett v. Ontario (Board of Directors of Physiotherapy). O’Leary addressed this argument by holding that there was nothing in the material before the three-member board to suggest that they could not, having seen the material, pay attention with an open mind when they veracity of the material was tested on cross-examination, listen with an open mind to the applicant and give them a fair trial. In O’Leary’s view, the case (Brett) merely confirms that some overlap between the investigative, prosecutorial and adjudicative functions may exist without such creating a reasonable apprehension of bias. It does not mean the court will tolerate what it considers to be a reasonable apprehension of bias on the part of the tribunal.

o Does O’Leary’s description of Brett mean that the common law duty of fairness is constitutionally entrenched for all provincial administrative tribunals, and not only those subject to sec. 7 of the Charter?

Ellis-Don Ltd v. Ontario (Labour Relations Board) – different approach than Glengarry In a decision by the Ontario Superior Court, the following explanation was given:

o “… A legislature clearly has the jurisdiction to modify the common law requirements of natural justice. Here, it has specifically and clearly prohibited one way in which a party might seek to establish a breach of natural justice. An exemption for natural justice cannot reasonably be read into the section without undermining to a substantial degree its central purpose.”

The Role of Judicial ReviewIntroduction

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Baker v. Canada (Minister of Citizenship and Immigration) Sec. 114(2) of the Immigration Act empowers the Minister to facilitate the admission to Canada

of a person where the Minister is satisfied that admission should be facilitated or an exemption from the regulations made under the Act should be granted

o Factual Background Mavis Baker (appellant) is a citizen of Jamaica who entered Canada as a visitor

in August of 1981 and has remained in Canada since then. She never received permanent resident status.

The appellant was ordered deported in Dec 1992. She applied for an exemption from the requirement to apply for permanent residence status from outside Canada, based upon humanitarian and compassionate considerations, pursuant to sec. 114(2) of the Act

The response to this request was contained in a letter signed by Immigration Officer M. Caden, stating that a decision had been made that there were insufficient humanitarian and compassionate grounds to warrant processing Ms. `’s application.

The letter contained no reasons for the decision Upon request of the appellant’s counsel, she was provided with the notes made

by Immigration Officer G. Lorenz, which were used by Officer Caden when making his decision.

Following the refusal of her application, Ms. Baker was served with a direction to report to Pearson Airport for removal from Canada. Her deportation was stayed pending the result of the appeal.

o Judgment – Federal Court – Trial Division Judge Simpson rejected the appellant’s argument that the Convention on the

Rights of the Child mandated that the appellant’s interest be given priority in sec. 114(2) decisions, holding that the Convention did not apply to this situation, and was not part of domestic law – convention can be found at page 60

Sec. 83(1) of the Immigration Act provided that a judgment of the Federal Court – Trial Division may be appealed to the Federal Court of Appeal only if the Trial Division has certified that a serious question of general importance is involved and has stated that question. Simpson stated the question as “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under sec. 114(2)?”

o Judgment – Federal Court of Appeal JA Strayer held that pursuant to sec. 83(1), the appeal was limited to the question

certified by Judge Simpson. He held that although legislation should be interpreted, where possible, to avoid

conflicts with Canada’s international obligations, interpreting sec. 114(2) to require that the discretion it provides for must be exercised in accordance with the Convention would interfere with the separation of powers between the executive and the legislature – one perspective

Additionally, he held that the deportation of a parent was not a decision “concerning” children within the meaning of Article 3 – which provides: “In call actions concerning children… the best interests of the child shall be a primary consideration”

o Issues

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The issues raised by this appeal are as follows: 1 What is the legal effect of a stated question under sec. 83(1) of the

Immigration Act on the scope of appellate review? 2 Were the principles of procedural fairness violated in this case?

o (i) Were the participatory rights accorded consistent with the duty of procedural fairness?

o (ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?

o (iii) Was there a reasonable apprehension of bias in the making of this decision?

3 Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children?

o Analysis – States Questions under sec. 83(1) In Pushpanathan v. Canada (Minister of Citizenship and Immigration), the

Supreme Court held that sec. 83(1) does not require that the Federal Court of Appeal address only the stated question and issues related to it:

“The certification of a question of general importance is the trigger by which an application is justified. The object of the appeal is still the judgment itself, not merely the certification question”

L’Heureux-Dube agrees with this finding. She held that the wording of sec. 83(1) suggests, and Pushpanathan confirms, that if a “question of general importance” has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does NOT confine the Federal Court of Appeal or the Supreme Court to answering the stated question or issues directly related to it. All the issues raised by the appeal can, therefore, be considered.

o Analysis – The Statutory Scheme and the Nature of the Decision Applicants for permanent residence must, as a general rule, be made from outside

Canada, pursuant to sec. 9(1) of the Act. One of the exceptions (challenged provision is exception – take into account) to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, an H&C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers.

Immigration officers who make H&C decisions are provided with a set of guidelines. The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. The guidelines also set out the bases upon which the discretion conferred by sec. 114(2) and the Regulations should be exercised. Two different types of criteria that may lead to a positive sec. 114(2) decision are outlined – public policy considerations and H&C grounds.

Guideline 9.07 states that H&C grounds will exist if “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if they had to leave Canada.”

o Procedural Fairness The first ground upon which the appellant challenges the decision made by

Officer Caden is the allegation that she was not accorded procedural fairness. She suggests that the following procedures are required by the duty of fairness when parents have Canadian children and they make an H&C application: (1) an oral interview before the decision-maker, (2) notice to her children and the other

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parent of that interview, (3) a right for the children and the other parent to make submissions at that interview, and (4) notice to the other parent of the interview and of that person’s right to have counsel present. She also alleges that procedural fairness requires the provision of reasons by the decision-maker, Officer Caden, and that the notes of Officer Lorenz give rise to a reasonable apprehension of bias.

The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness. Thus, it has long been recognized that the duty of fairness applies to H&C decisions.

o Factors Affecting the Content of the Duty of Fairness The existence of a duty of fairness, however, does not determine what

requirements will be applicable in a given set of circumstances. The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.

One important consideration is the nature of the decision being made and the process followed in making it. The closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making. The more the process provided for resembles judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.

Second is the nature of the statutory scheme and the “terms of the statute pursuant to which they body operates”. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.

Third is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandate.

Fourth , the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in the given circumstances – legitimate expectation in Canada can only give rise to procedural fairness, not substantive results. In Reference Re Canada Assistance Plan, the Supreme Court held that the doctrine of legitimate expectation is part of the doctrine of fairness or natural justice, and that it does not create substantive rights. If a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. Similarly, if a claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require more extensive procedural rights than would otherwise be accorded. This doctrine is based on the principle that the “circumstances” affecting procedural fairness takes into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

Fifth , respect should be shown for the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.

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The above list of factors is not exhaustive. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.

o (1) Legitimate Expectations In L’Heureux-Dube’s view, the Articles of the Convention and their wording did

not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. The Convention , in her view, is not the equivalent of a government representation about how H&C applications will be decided. Therefore, there was no legitimate expectation affecting the content of the duty of fairness.

o (2) Participatory Rights The next issue is whether the failure to accord an oral hearing and give

notice to Ms. Baker or her children was inconsistent with the participatory rights required by the duty of fairness in these circumstances.

At the heart of this analysis is whether, considering all of the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.

First, an H&C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors.

Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law, which favours a more relaxed requirements –due to the fact that it creates an exception to the rule, and not a right of privilege. On the other hand, there is no appeal procedure, which favours more strict requirements. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result, which leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases.

Having regard to the contextual factors of his case, L’Heureux-Dube said that the claimant and others whose interests have been affected must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation.

Therefore, taking into account all the factors relevant to determining the content of the duty of fairness, the lack of an oral hearing, in L’Heureux-Dube’s opinion, did not constitute a violation of the requirements of procedural fairness.

(1) The Provision of Reasons The appellant submitted the duty of fairness, in these circumstances, required that reasons be

given by the decision-maker. She argued either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision be taken to be a breach of the principles of fairness.

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The Federal Court of Appeal held that reasons are unnecessary. It has also been held that the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons. Additionally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions.

However, the importance of reasons for decisions was emphasized in Reference Re Remuneration of Judges of the Provincial Court of P.E.I. In that case, reasons, it was argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed.

Yet others have expressed concerns about the desirability of a written reasons requirement. They feel that it may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it might in some cases include a lack of candour on the part of the administrative officers concerned.

Some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant. In the case of RDR Construction Ltd v. Rent Review Commission, the court held that because of the existence of a statutory right of appeal, there was an implied duty to give reasons.

In L’Heureux-Dube’s opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. In cases such as this, where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. L’Heureux-Dube held that this was one of those cases.

However, L’Heureux-Dube held that the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. Because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents of subordinate officers is part of the flexibility that is necessary when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies.

(2) Reasonable Apprehension of Bias The respondent argued that Judge Simpson was correct to find that the notes of Officer Lorenz

cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker.

However, in L’Heureux-Dube’s opinion, the duty to act fairly and, therefore, in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. In addition, the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.

The test for reasonable apprehension of bias was set out in Committee for Justice and Liberty v. National Energy Board:

“… That test is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly?”

It has been held that the standards for reasonable apprehension of bias may vary depending on the context and the type of function performed by the administrative decision-maker involved.

The context, in this case, is one where immigration officers must regularly make decisions that have great importance to the individuals affected by the, but are also often critical to the interests of Canada as a country.

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Having regard to the comments of Officer Lorenz, L’Heureux-Dube concluded that the well-informed member of the community would perceive bias in this case. She held that the statements made by Officer Lorenz in his notes give the impression that he may have been drawing conclusions based not on the evidence before him, but on the facts that Ms. Baker was a single mother with several children, and had been diagnosed with a psychiatric illness.

Review of the Exercise of the Minister’s Discretion The appellant submits that the decision should be held to a standard of review of correctness, that

principles of administrative law require this discretion to be exercised in accordance with the Convention, and that the Minister should apply the best interests of the child as a primary consideration in H&C decisions.

The respondent submits that the Convention has not been implemented in Canadian law, and that to require that sec. 114(2) and the Regulations made under it be interpreted in accordance with the Convention would be improper, since it would interfere with the broad discretion granted by Parliament, and with the division of powers between the federal and provincial governments.

(1) The Approach to Review of Discretionary Decision-Making The legislation, and the Regulations made thereunder, signals an intention to leave considerable

choice to the Minister on the question of whether to grant and H&C application. The concept of discretion refers to decisions where the law does not dictate a specific

outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.

Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations. A general doctrine of unreasonableness has also sometimes been applied to discretionary decisions.

In L’Heureux-Dube’s opinion, these doctrines incorporate two central ideas. The first is that discretionary decisions must be made within the bounds of the jurisdiction conferred by the statute, BUT that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and, second, determining the scope of the decision-maker’s jurisdiction.

It is, however, inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making. In addition, there is not easy distinction to be made between interpretation and the exercise of discretion.

The pragmatic and functional (now defunct – altered) approach to judicial oversight recognizes that standards of review for errors of law are seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less. Under this approach, three standards of review have been defined: (1) patent unreasonableness, (2) reasonableness simpliciter, and (3) correctness. This approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and the surrounding legislation. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis under this approach.

Therefore, the pragmatic and functional approach takes into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. However, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.

(2) The Standard of Review in This Case

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The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause. There is no privative clause contained in the Immigration Act, although judicial review cannot be commenced without leave of the Federal Court – Trail Division. Pushpanathan shows that the existence of this provision (privative clause, or its equivalent) means there should be a lower level of deference on issues related to the certified question itself.

The second factor is the expertise of the decision-maker. The decision-maker here is the Minister of Citizenship and Immigration. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.

The third factor is the purpose of the provision in particular, and of the Act as a whole. In this case, the decision involves considerable choice on the part of the Minister, as well as the application of relatively “open-textured” legal principles. Both of these factors militate in favour of greater deference. Moreover, the purpose of the provision in question is to “exempt applicants” in certain circumstances. This factor, too, is a signal that greater deference should be given to the Minister. On the other hand, this decision relates directly to the rights and interests of an individual in relation to the government, which militates in favour of a stricter standard.

The fourth factor considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person’s case. Given the highly fact-based nature of this decision, this is a factor militating in favour of deference.

L’Heureux-Dube concluded that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, and held that the appropriate standard of review is reasonableness simpliciter.

(3) Was This Decision Unreasonable? L’Heureux-Dube quoted Justice Iacobucci from the case of Southam, where he said:

“An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”

In particular, the examination of this question should focus on the issues arising from the serious question of general importance.

In L’Heureux-Dube’s opinion, the approach taken to the children’s interests in Officer Lorenz’s notes showed that this decision was unreasonable in the sense contemplated by Southam. She believed that the failure to give serious weight and consideration to the interests of the children constituted an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of an immigration officer.

L’Heureux-Dube held that a reasonable exercise of the power conferred by the section required close attention to the interests and needs of the children. Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H&C powers should be exercised may be found, for example, in the purpose of the Act, in international instruments, and in the guidelines for making H&C decisions published by the Minister herself.

With regards to the objectives of the Act, sec. 3(c) states: “… to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad”. She inferred from this section that Parliament placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada.

With regards to international law, the ratification by Canada of the Convention on the Rights of the Child implies that some consideration should be made of children’s interests during an H&C application. L’Heureux-Dube acknowledged that international treaties and conventions are not part of Canadian law unless they have been implemented by statute. Nevertheless, the

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values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.

With regards to the ministerial guidelines, L’Heureux-Dube held that immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values, such as keeping connections between family members and avoiding hardship by sending people to places where they long have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the court in determining whether the reasons of Officer Lorenz are supportable. She held that the fact that Officer Lorenz’s decision was based on criteria that was contrary to the directive was of great help in assessing whether the decision was an unreasonable exercise of the H&C power.

L’Heureux-Dube concluded that because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.

L’Heureux-Dube disagreed with the Federal Court of Appeal’s decision in Shah that a sec. 114(2) decision is “wholly a matter of judgment and discretion”. She held that the wording of sec. 114(2) and of the Regulations shows that the discretion granted is confined within certain boundaries.

In regards to the certified question, it asks whether the best interests of children must be a primary consideration when assessing an applicant under sec. 114(2) and the Regulations. L’Heureux-Dube held that for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor. That is not to say that children’s best interests must always outweigh other considerations. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.

Therefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H&C discretion was unreasonable, she allowed the appeal and returned the matter to the Minister for redetermination by a different immigration officer.

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FAIRNESS: THE THRESHOLDHistorical Overview

A restrictive interpretation to judicial review on procedural fairness grounds marked most beginnings of administrative law.

R v. Legislative Committee of the Church Assembly – restrictive interpretation exampleo According to Lord Hewart, for the rules of natural justice to be imposed and for

certiorari and prohibition to be available, it was necessary that the respondent (agency) have “legal authority to determine the rights of subjects” as well as the “superadded” characteristic of “a duty to act judicially”.

o The first part of Hewart’s formula came to be interpreted as precluding the possible application of the rules of natural justice in situations where the respondent was not acting in a final and determinative manner, and as also creating a distinction between matters of strict legal rights and mere privileges.

o The second part of the test proved even more restrictive. In one sense, it is question-begging in that the whole issue of implied procedural protection arises only where the relevant statute is silent as to whether such a duty exists. What is required is elucidation of how otherwise any duty to act judicially might be present. What did seem clear, however, was that it was not sufficient to establish simply that the impugned decision was one that removed in a determinative manner strict legal rights. There was still the need to find additional reasons for the imposition of the duty to act judicially on a “superadded” basis.

Nakkuda Ali v. Jayaratne – privilege vs. right dichotomyo The Privy Council employed Lord Hewart’s approach in deciding that a textile dealer

was not entitled to the benefit of a hearing before his license was removed because his entitlement to trade in textiles was a “privilege” accorded by the state, and not a right.

Calgary Power v. Copithorne – adoption of restrictive approach in Canadao The Supreme Court embraced not only the Hewart formula, but also the Nakkuda Ali

judgment holding that a landowner was not entitled to a hearing by the Minister before the making of an order expropriating a right of way over his land for the locating of a power transmission line.

o Justice Martland relied heavily on the absence of any statutory indicators of a superadded duty to act judicially. Along with a sense that the decision-making process was not one involving a dispute between two parties, but rather was a policy decision by a minister of the Crown for which he would be accountable in the legislature, this consideration led to the denial of relief.

Ridge v. Baldwin – move-away from restrictive approach – adoption of functional analysiso This case, decided by the House of Lords, consigned Nakkuda Ali to virtual oblivion by

distinguishing it restrictively as a case confined to its own set of facts.

o According to Lord Reid, at least in some circumstances, the mere fact that rights were being affected could on its own lead to the implication of a duty to comply with the rules

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of natural justice. More generally, the presence of judicial characteristics was to be inferred from the nature of the power itself.

Durayappah v. Fernando – formulation of functional analysis test for judicial reviewo Lord Upjohn, delivering the advice of the Privy Council, referred to Ridge and then

prescribed the following analysis: “… there are three matters which must always be borne in mind when

considering whether the principle should be applied or not. First, what is the nature of the property, the office held, the status

enjoyed or service to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person

claiming to be entitled to exercise the measure of control entitled to intervene.

Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other.”

R v. H.K. – expansion of functional analysis approach – no requirement of judicial similarityo Lord Parker made the following crucial pronouncement:

“… I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.”

o This led to a sweeping away of the last vestiges of the concept that the implication of procedural obligations and the availability of certiorari and prohibition were contingent on the presence of a judicial or quasi-judicial function.

Procedure Fairness: The Dimension and Limitations

Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners Nicholson served as a constable for 15 months and was discharged by the board without being

given an opportunity to make submissions. He sought judicial review and succeeded in the Divisional Court. An appeal by the board was allowed, and Nicholson appealed to the Supreme Court. Justice Laskin gave the judgment and reasons of the court.

Considerable emphasis was placed by the Ontario Court of Appeal on the position of a constable at common law as an office holder at pleasure who could claim no procedural protection against peremptory removal from office. It was contended in this court that the words in sec. 27 of the Regulations (made under the Police Act), which states “… but nothing herein affects the authority of a board or council”, points to a preservation of some pre-existing authority as contrasted with a grant of power; and hence, it was not only proper but necessary to examine the position of a constable at common law. – rejection of the “at pleasure argument”

The position at which Laskin arrived at was this: a constable is “the holder of a police office,” exercising, so far as his police duties are concerned, an original authority confirmed by the Police Act and by the oath of office prescribed by that Act. He is a member of a civilian force, and Laskin regarded his assimilation to a soldier to be an assimilation related only to whether an action per quod lies against a tortfeasor at common law for the loss of his service, and not to assimilation for other purposes, such as liability to peremptory discharge.

In so far as the judgment of the Ontario Court of Appeal is based on reading the words “at pleasure” (as importing arbitrary power) into sec. 27(b), or the term “probationary” (with similar

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import), it results in reducing the status of the office of police constable to that involved in a master-servant relationship merely because there has been less than 18 months’ service in the office, and Laskin did not regard this as either obvious or a necessary gloss on sec. 27(b). As a result, the constable will not be considered as holding office at pleasure, and thus, there must be just cause for dismissing him.

Having established that the constable was entitled to at least some procedural safeguards, Laskin said that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than 18 months’ service (the length of the probationary period specified in the Police Act), he cannot be denied any protection. He held that he should be treated fairly and not arbitrarily. Therefore, Laskin espoused the common law principle “that in the sphere of the so-called” quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness.

Laskin argued that the present case fell into the “administrative or executive” field, and thus, the constable was entitled to a general duty of fairness. He argued that a notion of fairness, which involved something less than the procedural protection afforded by traditional natural justice, had emerged. He cited with approval the following quote:

o “… Since 1967, the concept of a duty to act fairly has often been used by judges to denote an implied procedural obligation. In general, it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial, but administrative. Given the flexibility of natural justice, it is not strictly necessary to use the term ‘duty to act fairly’ at all. But the term has a marginal value because of (i) the frequent reemergence of the idea that a duty to observe natural justice is not to be imported into the discharge of administrative functions, and (ii) a tendency to assume that a duty to ‘act judicially’ in accordance with natural justice means a duty to act like a judge in a court of law.”

Laskin said that what rightly lies behind this emergence is the realization that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question.

Laskin held that the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing, to respond. Status in office deserves this minimal protection, however brief the period for which the office is held.

Elaborations of New Doctrine The question, whether there was any significance to distinctions between the concepts of judicial

and administrative functions, was one that came to be explored by the Supreme Court shortly after Nicholson.

Martineau v. Matsqui Inmate Disciplinary Board – expansion of certiorari to all procedural requirements Martineau and Butters, inmates, were disciplined, and alleged that they were not given a hearing.

They made an application for review in the Federal Court of Appeal, which was dismissed because the court did not have jurisdiction. They also made an application for certiorari in the Federal Court – Trial Division, which has jurisdiction to grant the usual remedies for review. Their application was based on the fairness requirement.

The respondents argued that certiorari can be used to review only judicial or quasi-judicial functions.

The respondent’s argument was rejected by the Supreme Court, which appeared to expand the limits of certiorari to include enforcement of procedural requirements generally. Dickson gave the opinion of the court.

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Dickson held that the fact that a decision-maker does not have a duty to act judicially, with observance of formal procedure which that characterization entails, does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules.

An inmate disciplinary board is not a court. It is a tribunal which has to decide rights after hearing evidence. It is, nonetheless, subject to a duty of fairness and a person aggrieved is entitled to seek relief on an application for certiorari. However, not every breach of prison rules of procedure will bring intervention by the courts. Therefore, the question is not whether there has been a breach of prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question.

Dickson argued that it is wrong to regard natural justice and fairness as distinct and separate standards and to seek to define the procedural content of each. Fairness involves compliance with only some of the principles of natural justice. What the content of the principles of natural justice and fairness is, and their application to the individual case, will vary according to the circumstances of each.

MNR v. Coopers & Lybrand – criteria for classification of function as judicial/quasi-judicial In this case, Dickson provided a restatement of the basis for classification. He laid down the

criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi -judicial basis . The following list is not meant to be exhaustive.

o 1 Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

o 2 Does the decision or order directly or indirectly affect the rights and obligations of persons?

o 3 Is the adversary process involved?o 4 Is there an obligation to apply substantive rules to individual cases rather than, for

example, the obligation to implement social and economic policy in a broad sense?

Cardinal v. Director of Kent Institution – adoption of new categories – legislation & rights-privileges It was held by the Supreme Court that a hearing was required for a decision by prison officials to

keep a prisoner “dissociated” for security reasons. In so holding, Justice Le Dain stressed the “serious effect” on the prisoner and stated that:

“The court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual… The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision… It is not for the court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.”

Analysis: Le Dain’s formulation of the circumstances in which the duty of procedural fairness arises does contain the genesis of a new threshold, one in which the dividing lines are expressed in terms of “legislative” and all other functions are predicated also on whether the decision is one that affects “rights, privileges or interests”.

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Dunsmuir v. New Brunswick – brings to an end procedural fairness concerns in dismissal process of public office holder – holding office at pleasure gives way to rights under contract

Factual Background The appellant was employed by the Department of Justice for the Province of New Brunswick. 

He held a position under the Civil Service Act and was an office holder “at pleasure”. The employer concluded that D was not right for the job. Cause for the termination was explicitly not alleged

The appellant commenced the grievance process under sec. 100.1 of the Public Service Labour Relations Act, alleging that the reasons for the employer’s dissatisfaction were not made known, that he did not receive a reasonable opportunity to respond to the concerns, that the employer’s actions in terminating him were without notice, due process or procedural fairness, and that the length of the notice period was inadequate. 

The grievance was denied and then referred to adjudication The adjudicator held that Dunsmuir was entitled to and did not receive procedural fairness in the

employer’s decision to terminate his employment.  He declared that the termination was void ab initio and ordered Dunsmuir reinstated.

On judicial review, the Court of Queen’s Bench quashed the adjudicator’s preliminary decision. On the merits, the court found that Dunsmuir had received procedural fairness by virtue of the grievance hearing before the adjudicator,

The Court of Appeal held that where the employer elects to dismiss with notice or pay in lieu of notice, sec. 97(2.1) of the Public Service Labour Relations Act does not apply and the employee may only grieve the length of the notice period.  It agreed with the reviewing judge that D’s right to procedural fairness had not been breached.

Review of the Adjudicator’s Procedural Fairness Determination McLachlin, for the majority, reexamined the principles of procedural fairness that were

established in Knight v. Indian Head of School Division No. 19. The following is her reasoning: The appellant asserts in his grievance letter that the reasons for the employer’s dissatisfaction

were not specified and that he did not have a reasonable opportunity to respond to the employer’s concerns.  There was, in his view, lack of due process and a breach of procedural fairness. Although ultimately we do not agree with the appellant, his contention raises important issues that need to be examined more fully.

(A) Duty of Fairness Public decision makers are required to act fairly in coming to decisions that affect the rights,

privileges or interests of an individual. However, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”.

The grievance adjudicator concluded that the appellant had been denied procedural fairness. This conclusion was said to flow from this court’s decision in Knight, where it was held that the holder of an office “at pleasure” was entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed.

While the majority opinion in Knight properly recognized the important place of a general duty of fairness in administrative law, in our opinion, it incorrectly analyzed the effects of a contract of employment on such a duty. The majority in Knight proceeded on the premise that a duty of fairness based on public law applied unless expressly excluded by the employment contract or the statute, without consideration of the terms of the contract with regard to fairness issues. It also upheld the distinction between office holders and contractual employees for procedural fairness purposes.

In our view, where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law.

(1) The Preliminary Issue of Jurisdiction

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The respondent argues that allowing adjudicators to consider procedural fairness risks granting them the inherent powers of a court. We disagree. We can see nothing problematic with a grievance adjudicator considering a public law duty of fairness issue where such a duty exists.  It falls squarely within the adjudicator’s task to resolve a grievance.

(2) The Development of the Duty of Fairness in Canadian Public Law In Canada, the modern concept of procedural fairness in administrative law was inspired by the

House of Lords’ landmark decision in Ridge v. Baldwin. Central to the reasoning in that case was Lord Reid’s distinction between (1) master-servant

relationships (i.e. contractual employment), (2) offices held “at pleasure”, and (3) offices where there must be cause for dismissal. According to Lord Reid, only the last category of persons was entitled to procedural fairness in relation to their dismissal since both contractual employees and office holders employed “at pleasure” could be dismissed without reason.

The principles established by Ridge were followed by this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police.

Although Ridge and Nicholson were concerned with procedural fairness in the context of the dismissal of public office holders, the concept of fairness was quickly extended to other types of administrative decisions. In Cardinal v. Director of Kent Institution, Le Dain J. stated that the duty of fairness was a general principle of law applicable to all public authorities.

In Knight, the court relied on the statement of Le Dain J. in Cardinal that the existence of a general duty to act fairly will depend on “(1) the nature of the decision to be made by the administrative body; (2) the relationship existing between that body and the individual; and (3) the effect of that decision on the individual’s rights”

In Knight, L’Heureux-Dube, for the majority, held that contrary to Lord Reid’s holding in Ridge, holders of an office “at pleasure”, were also entitled to procedural fairness. The fact that the director’s written contract of employment specifically provided that he could be dismissed with three months’ notice was held not to be enough to displace a public law duty to act fairly.

(3) Procedural Fairness in the Public Employment Context While Knight extended a duty of fairness to office holders during pleasure, it nevertheless upheld

the distinction between office holders and contractual employees as an important criterion in establishing whether a duty of fairness was owed.

However, in practice, a clear distinction between office holders and contractual employees has been difficult to maintain.

In Knight, the majority relied on whether the public employee’s position had a strong ‘statutory flavour’ but as some have observed, there is no simple test for determining whether there is a sufficiently strong ‘statutory flavour’ to a job for it to be classified as an ‘office’. This has led to uncertainty as to whether procedural fairness attaches to particular positions.

Further complicating the distinction is the fact that public employment is for the most part now viewed as a regular contractual employment relationship. Indeed, in Wells v. Newfoundland, the court recognized that most civil servants and public officers are employed under contracts of employment, either as members of unions bound by collective agreements or as non-unionized employees under individual contracts of employment

There would appear to be three main reasons for distinguishing between office holders and contractual employees and for extending procedural fairness protections only to the former, all of which, in our view, are problematic. First, historically, offices were viewed as a form of property, and thus could be recovered by the office holder who was removed contrary to the principles of natural justice. Employees who were dismissed in breach of their contract, however, could only sue for damages, since specific performance is not generally available for contracts for personal service. Public offices are no longer treated as a form of private property. A second reason for the distinction is that dismissal from public office involves the exercise of delegated statutory power and should therefore be subject to public law controls like any other administrative decision. In contrast, the dismissal of a contractual employee only implicates a

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public authority’s private law rights as an employer. A third reason is that, unlike contractual employees, office holders did not typically benefit from contractual rights protecting them from summary discharge. The holders of an office “at pleasure” were in an even more tenuous position since by definition they could be dismissed without notice and without reason. Therefore, because of this relative insecurity it was seen to be desirable to impose minimal procedural requirements.

In our view, where a public office holder is employed under a contract of employment the justifications for imposing a public law duty of fairness with respect to their dismissal lose much of their force.

The appellant, in this case, was dismissed pursuant to sec. 20 of the New Brunswick Civil Service Act , but that section provides that the ordinary rules of contract govern dismissal. He could, therefore, only be dismissed for just cause or on reasonable notice, and any failure to do so would give rise to a right to damages.

Furthermore, while public law is rightly concerned with preventing the arbitrary exercise of delegated powers, the good faith exercise of the contractual rights of an employer, such as the right to end the employment relationship on reasonable notice, cannot be qualified as arbitrary.

Moreover, where public employers do act in bad faith or engage in unfair dealing, the private law provides a more appropriate form of relief and there is no reason that they should be treated differently than private sector employers who engage in similar conduct.

Of course, a public authority must abide by any statutory restrictions on the exercise of its discretion as an employer, regardless of the terms of an employment contract, and failure to do so may give rise to a public law remedy. A public authority cannot contract out of its statutory duties.

It is true that the remedy of reinstatement is not available for breach of contract at common law. In this regard, it might be argued that contractual remedies, on their own, offer insufficient protection to office holders. However, it must be kept in mind that breach of a public law duty of fairness also does not lead to full reinstatement. The effect of a breach of procedural fairness is to render the dismissal decision void ab initio. A breach of the duty of fairness simply requires that the dismissal decision be retaken. It, therefore, is incorrect to equate it to reinstatement.

In addition, a public law remedy can lead to unfairness. The amount of unpaid wages and benefits an office holder is entitled to will be a function of the length of time the judicial process has taken, rather than criteria related to the employee’s situation. As a result, an employee may recoup much more than they actually lost.

In contrast, the private law offers a more principled and fair remedy. The length of notice or amount of pay in lieu of notice an employee is entitled to depend on a number of factors including length of service, age, experience and the availability of alternative employment.

It is important to note as well that the appellant, as a public employee employed under a contract of employment, also had access to all of the same statutory and common law protections that surround private sector employment. In short, the appellant was not without legal protections or remedies in the face of his dismissal.

(4) The Proper Approach to the Dismissal of Public Employees The starting point, therefore, in any analysis, should be to determine the nature of the

employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. Where this is the case, disputes relating to dismissal should be resolved according to the express or implied terms of the contract of employment and any applicable statutes and regulations, without regard for whether the employee is an office holder. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies.

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However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who “fulfill constitutionally defined state roles”. It may also be that the terms of appointment of some public office holders expressly provide for summary dismissal or, at the very least, are silent on the matter, in which case the office holders may be deemed to hold office “at pleasure”. A second situation occurs when a duty of fairness flows by necessary implication from a statutory power governing the employment relationship. Whether and what type of procedural requirements result from a particular statutory power will of course depend on the specific wording at issue and will vary with the context.

Emergencies On occasion, despite the fact that the basis for action will be the conduct of an individual and the

consequences of that action the imposition of sanctions or diminution in property rights, there will be no requirement of a prior hearing. That is the case of emergencies.

R v. Randolph o What was significant in this case was that the action in question is interim only , and is

open to reassessment in the context of a subsequent hearing.o Indeed, the court only accepted a gloss over the procedural fairness requirements because

of the existence of an explicit provision for an after-the-event hearing. Cardinal v. Director of Kent Institution

o The entitlement to procedures, in this case, was in the context of the reassessment of whether the inmates should be continued in administrative segregation.

o No question was raised about the entitlement of the director to immediately place them in administrative segregation on their arrival from another penitentiary.

o Justice Le Dain argued that “because of the emergency nature of the decision, there could be no requirement of prior notice and an opportunity to be heard before the decision.”

Note, however, that the court is not sanctioning a general rule of after-the-event hearings. Whether initial action without a hearing is justified depends on an assessment of whether there is genuinely a need for such action. Nevertheless, it is highly likely that the court will pay considerable deference to the relevant authority’s judgment as to the urgency of the situation.

Decisions of a Legislative and a General Nature The notion in Knight that legislative functions were excluded from the ambit of any implied

procedural requirement finds its genesis in the judgment of Judge Megarry in Bates v. Lord Hailsham of Marylebone.

Prior to Knight, however, in the case of Martineau, Dickson said:“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.”

What counts as a “legislative” function for these purposes? What are the badges of a “purely ministerial decision, on broad grounds of public policy”?

Cabinet and Cabinet AppealsA.G. of Canada v. Inuit Tapirisat of Canada – Cabinet decisions provide little to no protection

Factual Background

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The CRTC had power to regulate the rates of utilities, including Bell Canada. The crucial statutory provision for these purposes was sec. 64(1) of the National Transportation Act – see page 132.

In 1976, Bell made an application for approval of a rate increase. The Inuit Tapirisat intervened to oppose parts of the application. More particularly, it wanted the CRTC to condition Bell’s rate increase on an obligation to provide better service for remote Northern communities.

After an unfavourable decision, it appealed to the Cabinet. The CRTC made a submission to the Cabinet through the Department of Communications, and

Bell also made a submission. The department made a statement that summarized the positions of the parties and gave the opinions of the department about the facts, the issues, and the proper disposition of the appeal.

The Inuit Tapirisat was given none of this material, except the submission by Bell. At the Cabinet meeting at which the appeal was discussed, the Minister of Communications made

a recommendation to dismiss the appeal, which was accepted. The Inuit Tapirisat made a motion in the Federal Court for a declaration that a hearing should

have been given, or that, if a hearing had been given, it did not comply with the principles of natural justice.

The government applied for an order dismissing the action on the ground that the statement disclosed no reasonable cause of action.

The government’s application was granted by the Federal Court – Trail Division An appeal by the Inuit Tapirisat succeeded, and the government appealed to the Supreme Court.Judgment – Given by Justice Estey The substance of the question before the court in this appeal is: is there a duty to observe natural

justice in, or at least a lesser duty of fairness incumbent on, the Cabinet in dealing with parties such as the respondents upon their submission of a petition under sec. 64(1)?

It is contended that, once validly seized of the respondents’ petition, the Cabinet did not fulfill the duty to be fair implicitly imposed upon them by sec. 64(1). It is, therefore, necessary to closely examine the statutory provision in question in order to discern whether it makes the decision maker subject to any rules of procedural fairness.

In Estey’s view, the essence of the principle of law operating here is that the Cabinet must keep within the law as laid down by Parliament or the Legislature. Failure to do so will call into action the supervising function of the Superior Court.

Under sec. 64(1), it is clear that the CRTC is empowered to approve all charges for the use of telephones of Bell Canada. There is, thereafter, a secondary delegation of the rate-fixing function by Parliament to the Cabinet, but this function only comes into play after the CRTC has approved a tariff of tolls. However, while the CRTC must operate within a certain framework when rendering its decisions, Parliament has in sec. 64(1) NOT burdened the executive branch with any standards or guidelines in the exercise of its rate review function. Neither were procedural standards imposed or even implied.

While it is true that a duty to observe procedural fairness, as expressed in the maxim audi alteram partem, need not be express, it will not be implied in every case. It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply.

Indeed, it may be thought by some to be unusual and even counter-productive in an organized society that a carefully considered decision by an administrative agency, arrived at after a full public hearing in which many points of view have been advanced, should be susceptible of reversal by the Cabinet. On the other hand, it is apparently the judgment of Parliament that this is an area inordinately sensitive to changing public policies and hence it has been reserved for the final application of such a policy to be the executive branch of Government. Given the interpretation of sec. 64(1) which Estey adopted, there is no need for the Cabinet to give reasons for its decision, to hold any kind of a hearing, or even to acknowledge the receipt of a petition.

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In reaching this conclusion concerning the procedures to be followed with reference to sec. 64(1), Estey was assisted by the reasoning of Judge Megarry in Bates, where he stated:

“… Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy… I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.”

However, Estey acknowledged that the dividing line between legislative and administrative functions is not always easy to draw, but left that question for another day.

Case Analysis Notwithstanding this decision, there is authority holding that, at least in some contexts, the

Cabinet may be subject to certain implied procedural obligations. The Australian case of FAI Insurances v. Winneke is illustrative and relevant because of its reliance on lower Canadian court authority.

FAI Insurances v. WinnekeFactual Background Legislation and regulations in the state of Victoria required that insurers providing workers’

compensation insurance have approval from the Cabinet. FAI had provided insurance for 20 years, and its license had been renewed yearly.

In 1979, the renewal was for only 6 months, and the Minister of Labour and Industry gave warning that some of the criteria for approval were not being met.

After another 6 month approval, the Minister told FAI that he would recommend that the current application not be approved.

FAI made a request for more information and an opportunity to make submissions. This was refused and the Cabinet rejected the application.

FAI sought a declaration that it was entitled to an opportunity to be heard. At both first instance and on appeal, the claim was dismissed. However, on further appeal to the

High Court of Australia, FAI succeeded.Judgment In dealing with the argument that the Cabinet could not be subjected to any implied obligation of

procedural fairness, Justice Mason had this to say: I do not accept the view that the statutory discretion given to the Minister is absolute or

unlimited. At all times the central question seems to have been: was the applicant a fit and proper person to

act as a worker’s compensation insurer? The answer to this question seems to have turned on the financial position of the appellant. In these circumstances the appellant had a legitimate expectation that its approval would be renewed or at the very least that it would not be refused without its having an opportunity of meeting objections raised against it (note: a legitimate expectation in the outcome of a ministerial decision amounts to a substantive application of the doctrine – in Canada, the doctrine does not extend to the substance of decisions, but merely to procedural rights – see below)

We are left with the argument that the Cabinet is intrinsically unsuited to the making of an inquiry of the kind suggested, because of the very heavy demands which are made on the time of many of its members in the performance of their principal duties as Ministers. Rather, it is argued, the Cabinet is adapted to the making of a formal decision based on the recommendation of the responsible Minister expressed in the papers presented to them. For this reason, it is suggested, the court should be less inclined to hold that the Cabinet is under an obligation to comply with the rules of natural justice.

But where, as here, the function reposed in the Cabinet (that of granting or refusing an application by an individual – a matter to be decided in the circumstances of this case) not

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on issues of general policy , but principally by reference to the financial position and commitments of the applicant – would unquestionably attract a duty to comply with the rules of natural justice.

The difference in the nature and character of the Cabinet is not sufficient, in my opinion, to deny the existence of some duty to accord natural justice, though the difference will be reflected in the content of the duty and what is to be expected by way of discharge of the duty.

Case Analysis Therefore, where the decision is directed at a specific individual and is based on factors

peculiar to that individual, the function in issue will not be classified as legislative despite the political nature of the decision maker.

By-Laws and RulemakingHomex Realty and Development Co. Ltd. v. Wyoming (Village) – right to be heard when gov body seeks to alter property rights – further develops principle that legislative action reviewable if law is specific to individual

Factual Background The municipality and Homex quarreled about the obligation to install services in a subdivision

owned by Homex. Without giving notice to Homex, the municipality made a by-law designating the plan as a plan “deemed not to be a registered plan of subdivision.” The effect of this designation was that lots in the subdivision could not be conveyed unless a new plan was registered or consents were obtained from the committee of adjustments of the municipality and, in either way, the municipality would have been able to impose conditions.

Homex made an application for review to quash the by-law and succeeded. An appeal by the municipality also succeeded, and Home appealed to the Supreme Court.

Judgment Justice Dickson discussed the applicability of natural justice to municipal by-law enactment. He

ruled that the municipality violated the appellant’s procedural rights and that there should be a rehearing. The majority, while agreeing with Dickson on his application of natural justice to municipalities, dismissed the appeal on the basis that the appellant behaved badly. Dickson did not consider this point. He stated the following:

There is a long line of authority which establishes that before a public body can limit or abrogate the property rights of citizens, it must first give the individuals concerned an opportunity to be heard. As a result, where statutory bodies seek to limit property rights , the courts will imply a right to be heard unless there is an express declaration to the contrary.

The Village advances several arguments in justification of its failure to give notice and to grant a hearing. These include:…(2) in passing the by-laws, the municipality was exercising a legislative function, to which no common law right to be heard applied; and (3) even if a common law right of fairness does apply here, the municipality has satisfied the onus placed upon it.

A “Legislative” Function? In the Court of Appeal, emphasis was placed on the “legislative” character of the acts performed

by the Village. The court held that the municipality is dealing with the public interest – namely, who could bear the cost of servicing; the function was legislative in nature and no right to a hearing can be implied

First, the distinction sought to be made here is that there is no conflict between the competing interests of private individuals, but a question of public interest. However, this reasoning leads to anomalous results. Thus, if there were two identical by-laws, each affecting only one particular piece of property, and one by-law was opposed by other private individuals or groups but the other was not, only one of the two owners would be entitled to a hearing. The right to a hearing, however, does not spring from the fact that there are competing groups or individuals. Rather, it results from the fact that the by-law interferes, in particular, with the private property rights of this one owner.

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Second, the presence of a compelling public interest does not alone abrogate or diminish a citizen’s right to procedural protection. The public interest, it seems to me, is best served by affording the private interest full disclosure and a fair opportunity to be heard. One cannot label an act “legislative” for the purpose of dispensing with fairness. A by-law may, in the public interest, operate to the detriment of particular individuals but not without giving those individuals a right of hearing.

Third, it was suggested that a right to a hearing only existed in circumstances where the process was judicial or quasi-judicial in nature. This line of authority has been authoritatively rejected in both England (Ridge) and in Canada (Nicholson and Martineau). In Martineau, it was said that review by certiorari is available whenever a public body has power to decide “any matter affecting the rights, interests, property, privileges or liberties of any person ”.

Once it is clear that rights are being affected, it then becomes necessary to determine the appropriate procedural standards. There is, as it were, a spectrum. A purely ministerial decision, on broad grounds of public policy, will typically afford the individual little or no procedural protection. In determining where upon the spectrum the case at bar falls, it is not important to determine whether the function of the municipality is classified as “legislative” or as “quasi-judicial”. Rather, one must look to the nature of the function and to the facts of each case.

What we have here is not a by-law of wide and general application which was to apply to all citizens of the municipality equally. Rather, it was a by-law aimed deliberately at limiting the rights of one individual , the appellant Homex . In these circumstances, I would hold that Homex was entitled to some procedural safeguards. At a minimum, the municipality was under a duty to give Homex notice of the proposed by-law and the opportunity to be heard.

Case Analysis The fact that a municipality made a policy decision that had an immediate and specific

target was crucial in the court’s decision that Homex was entitled to procedural protections. However, where a by-law or subordinate legislation of a more general character is being enacted or promulgated, claims to procedural entitlements even by those affected immediately may be either diminished or eliminated.

Policy Making Where the impact of the decision being made is diffuse, affecting a broad spectrum of the public

in a generally undifferentiated manner, claims to participatory rights will be hard to justify, unless the legislation contains some indication of public participation or obligations of consultation.

Where hearings are warranted, however, considerations of who should be entitled to participate will be at the forefront of the assessment.

Bezaire v. Windsor Roman Catholic Separate School Board – existence of guidelines and regulations (or similar instruments) can give rise to duty of procedural fairness in circumstances in which they would otherwise not exist

Factual Background Faced by a financial crisis, the board decided to close nine schools within its jurisdiction. While

there was awareness in the community that such a step could be taken, the affected parents and students at the schools ultimately targeted for closure had no opportunity for input into that decision before it was made, though there was a form of consultation after the decision had been announced.

Acting under statutory authority, the minister had issued a procedural policy for board closures of schools and the board had produced its own policy. Neither the ministerial policy nor the board’s own policy was followed in this case.

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Judgment This case took place in Ontario’s Division Court, which hears most judicial review applications.

The three-member panel had this to say: Counsel for the respondent takes the position that there is no obligation on a school board to “act

fairly” in exercising its administrative power to close a school. He cites the case of Vanderkloet v. Leeds & Grenville.

The Vanderkloet Case This case involved the reorganization of three elementary schools. Thus, it was not a school

closing case. In that case, a motion was brought before the motions court judge, who held that the resolution in

question constituted a closing of the school and was passed contrary to the statutory guidelines requisite upon a closing of a school. In the alternative, the manner in which the resolutions were passed rendered them invalid by reason of procedural unfairness. JA Dubin stated:

“Counsel for the appellant submitted that the justice erred in holding that the reallocation of students within the school district constituted a school closing. With respect to the contrary view, I do not think that the impugned resolutions in this case closed the school… The closing of a school is obviously a different subject-matter, and it is only in that respect that the policies established by the Board from guidelines issued by the Minister must be followed.”

He continued, stating:“I am not satisfied that the principles of procedural fairness are applicable to a board of education, who, in good faith and within the jurisdiction assigned to it by the Legislature, resolve to reallocate the student body within its school district.”

There is nothing in that judgment that would suggest that the above statement would have any application to a school closure.

The guidelines and policies premised on public consultation attract the duty in the circumstances of this case. Thus, the guidelines result in the applicability of the doctrine of fairness that was enunciated in Nicholson . Read as a whole, they are clearly premised on the principle that the closing of a school is the business of the community, and the community, in one way or another, must be consulted.

The court went on to hold that neither the ministerial nor the board’s own procedural guidelines had been followed, with the consequences that the parents and their children had been denied procedural fairness, a denial that was not cured by a form of consultation after the decision had been taken.

Canadian Association of Regulated Importers v. A.G. of CanadaFactual Background At issue here was a ministerial decision changing the quota distribution system for the imposition

of hatching eggs and chicks, a change that significantly affected historic importers. In challenging the change, the historic importers claimed they had not been consulted.Judgment Omitted is the first instance judgment, which was overruled by the Federal Court of Appeal. See

page 147. JA Linden wrote for the Federal Court of Appeal, where he stated the following: Generally, the rules of natural justice are not applicable to legislative or policy decisions, as both

Martineau and Inuit Tapirisat suggest. More particularly, it has been held that the principles of natural justice are not applicable to

the setting of a quota policy, although they may be to individual decisions respecting grants of quotas. In Re Bedesky and Farm Products Marketing Board of Ontario, Judge Morden stated:

“No authority was cited to us for the proposition that the principles of natural justice respecting the right to notice and the right to be heard are applicable to govern a body

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such as the Chicken Board with respect to the devising and adopting of a quota policy. In fact, the law would appear to be to the contrary…”

I can see no reason to differentiate the situation where, as here, it is a Minister rather than a Board that is establishing the quota. The exercise is essentially a legislative or policy matter, with which the courts do not normally interfere.

There are statutes in which regulations or polices cannot be promulgated without notifying and consulting the public. No such legislative provision appears in the Export and Import Permits Act.

Individualized Decision Making Based on Exercise of Broad Discretionary Powers This whole question of the limits of procedural claims in the context of individualized decision

making is raised by the judgment of the Supreme Court in Idziak v. Canada (Minister of Justice)

Idziak v. Canada (Minister of Justice) - o In this case, the claim advanced was that the Minister of Justice had an obligation of

procedural fairness in deciding whether to actually surrender a person to a foreign power after a deportation order had been made.

o In describing this function as “being at the extreme legislative end of the continuum of administrative decision making”, Justice Cory made it abundantly clear that there was not a clear dichotomy in the court’s mind between “legislative” decisions and decisions that have as their target a particular individual.

o Nonetheless, Cory did accept that the Minister had a duty to act fairly. Part of the role of the courts in cases such as this is that of evaluating the legitimacy and weight

of those claims against the individual interest that is at stake with a view to determining whether there are any reasons of principle or utility for allowing that interest to be trumped at the procedural fairness level.

Decisions Affecting Rights, Privileges, or Interests When Justice Le Dain spoke in Cardinal about the existence of a duty of fairness whenever

“rights, privileges or interests were at stake, it is quite possible that he was doing so not for the purposes of setting up a test in which “rights, privileges or interests” stood in contrast to some less form of claim. Rather, that it was no longer necessary to establish that a “right” was affected but that mere privileges and interests qualified as well provided the decision in question was not a general or legislative one.

Re Webb and Ontario Housing Corporation is an important judgment for a number of reasons, including its treatment of the intersection between procedural fairness claims and the sliding scale in procedural fairness claims depending on the nature of the interest at stake.

Even if the threshold no longer depends on a distinction between rights on the one hand and privileges and mere interests on the other, the extent of the procedures to be accorded clearly can.

More particularly, however, Webb is included at this juncture for a point about the distinctions between an applicant for accommodation in government-subsidized housing and an existing resident in such housing. This suggests a continuing relevance for threshold purposes between benefit holders and those seeking such benefits.

Re Webb and Ontario Housing Corporation – duty of procedural fairness even when revocation of benefit is in issue

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Background The Ontario Housing Corporation (OHC) owned some high-rise apartments in downtown

Toronto that were managed for it by Meridian Property Management and that were leased at less than market rents to persons with low incomes.

Webb and her children became tenants in August 1970. In 1973, Meridian recommended termination of the lease because of problems caused by Webb’s children. OHC officials and its board of directors approved, and an application for termination of her lease was brought under the Landlord and Tenant Act.

Webb made an application for review of the OHC decision, and the application under the Landlord and Tenant Act was stayed.

Webb’s application was dismissed, and she appealed.Judgment Justice MacKinnon wrote the Ontario Court of Appeal’s judgment. He stated the following: Counsel for the appellant has submitted three arguments: (1) that the Statutory Powers Procedure

Act applies to a meeting of the directors of OHC when they are considering the question of terminating a tenant’s lease; (2) if the Statutory Powers Procedure Act does not apply, the court should grant an order in the nature of certiorari on the ground that the board of directors were conducting a judicial or quasi-judicial hearing to which the rules of natural justice applied and, in particular, the principle of audi alteram partem; and finally (3) even if the board of directors was performing an administrative function, on the facts of the case there was a “duty to act fairly”, and the appellant had a “legitimate expectation” she would be treated fairly and this expectation was not met.

Although there is a public aspect to this matter, the decision taken is only part of the administrative duties imposed on the OHC. There is no judicial or quasi-judicial quality to its action in this regard. Therefore, in my view the board of directors was not a tribunal here exercising a statutory power of decision conferred by an Act. Accordingly, the determination to terminate the tenancy did not fall under the Statutory Powers Procedure Act – response to argument #1

Equally, I do not accept the argument that there was here a quasi-judicial act which, at common law, required the strict application of the audi alteram partem principle – response to argument # 2

The question then becomes, should the respondent have the right, without notice or “hearing”, to deprive the appellant of a benefit, granted by it in the carrying out of a public interest and, substantially, as an ancillary to the appellant’s established welfare status?

It is clear in the instant case that the appellant is a welfare recipient who was accepted as a tenant because of that fact. Once the appellant become a tenant she acquired a very real and substantial benefit because of her reliance on and eligibility for welfare. The determination to grant her this benefit was made when she was accepted as a tenant. That decision was on which, in my view, could be made by OHC without any intervention of a rule or principle of procedural “fairness”. However, once she became a tenant and thus “qualified” for an received the very real benefit of a reduced and subsidized rent, the situation changed – note how he draws a difference b/w a person who is applying for welfare, and a person who is appealing a decision that is already on welfare – the latter being entitled to greater procedural fairness

As pointed out by Le Dain in Inuit Tapirisat, what is in issue in these cases is what is appropriate to require of a particular authority in the way of procedure, given the nature of the authority, the nature of its power and the consequences of the exercise of that power to the individuals affected, and, I would add, the nature of the relationship between the authority and the individuals affected.

In my opinion, OHC, in exercising its power of termination and thereby depriving the appellant of the benefit of the lease, was required, under the circumstances, to treat the appellant fairly by telling her of the complaints or case against her and giving her an opportunity, if she wished, to make an answer to those complaints. I reach this conclusion as a

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result of the obvious fact that the deprivation of the benefit of subsidized housing, which she cannot secure elsewhere, would have serious adverse effects on her and on her family. She does not have the resources to substitute equivalent housing.

However, having found that the appellant was entitled to that procedure, there is evidence, which the appellant does not dispute, that the property manager wrote to her to advise her that there had been numerous complaints about the behaviour of her children. Additionally, a community relations worker employed by the OHC, swore that she had visited the appellant and her children on a number of occasions.

Therefore, I am of the opinion that the OHC did treat the appellant fairly. It let her know of the complaints and gave her an opportunity to remedy or answer them. While the appellant has succeeded in establishing, on the facts of this case, that there was an obligation on the OHC to treat her “fairly”, the evidence discloses that she was, in fact, treated “fairly”. Accordingly, the appeal must fail and is dismissed.

Case Analysis At one level, this case may be seen as progressive in that it at least recognizes that the holders of

various forms of state assistance are entitled to some measure of procedural fairness before assistance is cut off or removed. However, it does not eliminate entirely the vestiges of the hold hierarchy of claims or interests. Indeed, once the initial threshold is crossed, rankings of interests still play a significant role in the assessment of what procedures are due. For example, why should Webb be accorded fewer procedural protections than a professional whose license is being suspended?

However, keep in mind that in situations where, either as a matter of legislation or policy, qualifications and/or criteria are established for receipt of the benefit in question, distribution without regard to those qualifications and criteria would be illegal. Thus, in a sense, process is inevitable. It, therefore, is quite inappropriate to maintain that procedural fairness has no relevance to the allocation of benefits. Rather, the question is what level or type of process demanded.

Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 – procedural fairness due to license applicant if circumstances necessitate them

Factual Background In March 1984, Dr. Hutfield applied to be appointed to the medical staff of Fort Saskatchewan

General Hospital. The Hospitals Act gave the hospital board a general responsibility for its affairs and a power to make by-laws. Sec. 11 of the by-laws provided that applications for appointments were to be sent to the College of Physicians and Surgeons of Alberta for its recommendation and to the chief of its medical staff and to its appointments committee.

The application was sent to the College, which approved Hutfield, but in October 1984 the board rejected him. In December 1985, he applied again. The application was not sent to the college. The appointments committee considered it, without asking Hutfield to appear, and gave an oral adverse recommendation. Hutfield asked to appear before the board when it considered the application, but he was refused, and in February the board rejected him again and refused to give reasons.

He sought certiorari to quash its decision and mandamus to compel reconsideration.Judgment Judge McDonald wrote the decision of the Alberta Court of the Queen’s Bench. He stated the

following: It is true that there are few judicial decisions evidencing the availability of certiorari, or the

imposition of a duty to act judicially or fairly, when the exercise of the public duty has resulted in a refusal of a grant of permission or license.

There has been a tendency to grant prerogative relief or impose such a duty only where there is some special circumstance. For example (1), where the permission sought is a zoning or

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development permit, because the refusal to grant the permit limits the common law right of ownership of land.

Another example (2), finding its origin in recent English decisions, which have held that judicial review will protect enhanced procedural protection when there is on the part of the applicant a “legitimate expectation” of obtaining the permission sought, as compared with a mere hope of success. In McInnes v. Onslow-Fane, V-C Megarry said that where a decision merely refuses to grant the applicant a right or position which he seeks, such as a license to do certain acts, the applicant, particularly if he has had previous license applications which have been unsuccessful, had no legitimate expectation of success. In that situation, the duty of fairness applied, but required the decision-maker only to determine the application “honestly, and without bias or caprice.”

A final example (3) is found where the public authority has given an undertaking as to the procedure it will follow, and fails to follow that procedure, thus, defeating a legitimate expectation.

There are, however, cases in which the rules of natural justice were applied where what the complainant had sought was in the nature of an initial license or permission. These cases have been predicated on their rejection or diminution of the distinction between the scope of judicial review in cases of the modification or extinguishment of existing rights and interests, and the scope of judicial review in cases of an application for a permission or consent not previously enjoyed. This distinction is based primarily on the misconception that the remedy of certiorari and the standards of natural justice ought to apply only where the conduct of the authority exercising the public duty determines rights in the sense of a right to which there is a corresponding obligation in law. However, that notion no longer governs in light of the following developments:

o 1 The recognition that it is not only rights, but “interests” that the courts will protecto 2 The recognition that certiorari is available not only where there is a duty to act

judicially, but also where there is a duty to act fairlyo 3 The recognition that where there is a duty to act fairly, the content of that duty will

vary from one situation to another Three additional elements that may be present, and in this case are present, that will invite an

inference that there is a duty to act judicially or fairly, and that certiorari will be an available remedy – 3 factors to take into account of why procedural fairness is due to an applicant of a licensee

o 1 Sec. 11(3) of the by-laws requires the Chief of Staff and the staff committee to “investigate the credentials, training, suitability, experience and references of the applicant”. These must, by implication, be the subject of reasons given in the recommendation to the board, and must, by implication, be in issue before the board itself.

o 2 Where a refusal of a license casts a slur on the applicant’s reputation or financial stability, the duty to act fairly may well require that the body should offer an opportunity for a hearing.

o 3 The general interests of the public may be, and in the present case, are affected by the decision of the board to grant or not to grant hospital privileges to Dr. Hutfield. The refusal impairs his ability to provide medical diagnosis and treatment that his license entitles the public to assume is within his professional reach.

Therefore, a body, if its decision will modify, extinguish or affect a right or interest of a person when that person’s rights are interests are being considered and decided upon in a way that is in law or for practical purposes final, or final subject to appeal, must adhere to procedural standards, the precise nature of which will depend upon the nature and extent of the right or interest. A failure of that duty by the adjudicating body will attract the quashing

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of the decision by certiorari and, if thought necessary or desirable, the remedy of mandamus may be used in aid.

In this case, there is no doubt that Dr. Hutfield’s professional interests would be affected by the decision. Moreover, if the staff committee recommends that he be denied hospital privileges, it is a justifiable inference that there has been a finding adverse to him in regard to one or more of his “credentials, training, suitability, experience or references”, and such a recommendation, therefore, casts a slur upon his reputation.

For these reasons, in my view, Dr. Hutfield’s interests are affected sufficiently, directly and substantially that, if the appropriate standards of procedural fairness have not been complied with by the medical staff committee in the first place, or by the board in the second place, certiorari is available to quash its decision.

Case Analysis In McInnes, which was cited in the judgment above, the issue was the rejection of an application

for a boxing manager’s license. V-C Megarry was not convinced that McInnes had such an expectation or any entitlement to a hearing even though he had held various other forms of license from the British Boxing Board of Control. Quite the opposite was the result in this case. Judge McDonald was persuaded that even though Hutfield did not have an expectation in terms defined by recent English authorities, he had, nonetheless, “built up” an entitlement to a hearing. Is such a difference between the two cases justified?

In Lazarov v. Secretary of State of Canada, which involved an application for Canadian citizenship, the Citizenship Act provided that an applicant must satisfy the citizenship court that they met a set of specified requirements, and gave the secretary of state power, if the court was satisfied, to grant citizenship “in his discretion”. Lazarov applied and satisfied the court about the requirements, but the secretary refused, “in light of confidential information” without giving Lazarov any opportunity of responding to this information. On appeal, the government based its argument on its discretion and on the absence of any right to citizenship. Justice Thurlow, sitting in the Court of Appeal, had this to say:

“Leaving aside any question of declining the grant of certificates to particular classes of persons on grounds of broad general policy, it seems to me that whenever the reason for contemplating refusal of an applicant is one that is peculiar to the particular applicant, the nature of citizenship and its importance to the individual are such that the applicant ought at least to have an opportunity of some kind and at some stage of the proceedings to dispute its existence… In my opinion, therefore, the rule of audi alteram partem applies whenever the Minister proposes to exercise his discretion to refuse an application on the basis of facts pertaining to the particular applicant or his application and where he has not already had an opportunity in the course of the proceedings before the Citizenship Court he must be afforded a fair opportunity in one way or another of stating his position with respect of any matters which, in the absence of refutation or explanation, would lead to the rejection of his application.”

Similarly, in the case of Everett v. Canada (Minister of Fisheries and Oceans), the Federal Court of Appeal held that a fisherman was entitled to procedural fairness notwithstanding the fact that the legislation stated that renewal of the license in question was in the absolute discretion of the Minister. To the extent that the non-renewal was based on allegations of serious infractions of conservation regulations (which makes the decision particular to the individual and not one of general policy), there was a strong claim for a hearing entitlement. A similar result was reached in the Australian case of FAI Insurance.

Does this decision put into question the judgment in Webb, which held that no procedural protections are afforded for those applying for a benefit?

Government Procurement Practices

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Businesses of various kinds have an intense interest in the process that governments employ in procuring that which they need from the private sector – Ex. government construction contracts

Until recently, the bulk of the jurisprudence in this area had it that disputes over procurement processes were not subject to the remedies of public law, but only claims for damages for breach of contract.

Assaly (Thomas C.) Corp. v. Canada – procurement of gov contracts, if guidelines states qualifications = decision must be made based on those qualifications

o Took place in the Federal Court – Trial Division o Judge Strayer applied the doctrine of procedural fairness for the benefit of an

unsuccessful bidder on a government construction contract. o Despite being the lowest bidder, Assaly did not secure the contract on the ostensible basis

of qualitative criteria. o To the extent that the call for tenders did not draw attention to the need to address

these qualitative considerations, Strayer held that there had been a failure of procedural fairness.

Volker Stevin NWT Ltd v. Northwest Territories (Commissioner) o The NWT Court of Appeal distinguished the actual procurement of specific contracts

from the designation of a company as being eligible to bid on or have a preferential place in bidding on contracts.

o In the latter situation, obligations of procedural fairness were held to apply to any removal of such a designation notwithstanding the fact that the source of the designation was an executive or prerogative, rather than, statutory scheme.

Shell Canada Products Ltd v. Vancouver (City) o The Supreme Court held that resolutions of the city to the effect that it would not do

business with Shell so long as it continued to do business in apartheid South Africa were held to be amenable to public law principles and judicial review.

o Justice McLachlin stated the following: - argument of both for and against judicial review of gov procurement of contracts

“The assumption that government procurement is immune from judicial review rests on the traditional view that contract law is wholly in the realm of private law… In more recent times, however, some courts have been willing to review governmental contractual powers… Against allowing judicial review of the purchasing power of governments, it has been said that a public body which seeks to procure goods or services is in the same position as any private individual or corporation which seeks to contract with another party… Therefore, it is argued that it would be inappropriate to allow both a public law and a private law remedy in situations involving government contracts where no particular procedure is prescribed by statute or regulation. Adding weight to that argument is the potential for excessive litigation… In favour of allowing judicial review, it is argued that while this principle is valid for private contracts, the public nature of municipalities renders it inapplicable to them… The most important difference is the fact that municipalities undertake their commercial and contractual activities with the use of public funds. Another consideration is the fact that a municipality’s exercise of its contracting power may have consequences for other interests not taken into account by the purely consensual relationship between the council and the contractor. For example, public concerns such as equality of access to government markets, integrity in the conduct of government business, and the promotion and maintenance of community values require that the public procurement function be viewed as distinct from the purely private realm of contract law… On balance, it is my

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view that the doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality’s power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review.”

R v. Ron Engineering & Construction (Eastern) Ltd o The Supreme Court has also become more vigilant under the rubric of contract in

policing the fairness of the process under which those opening contracts to tender deal with those who bid.

o More specifically, they are ensuring that the person calling for bids abides by the express terms of the call of tenders and even certain implied terms of these processes, such as a prohibition on undisclosed policies of local preferences.

Non-Dispositive Decisions In the traditional doctrine, two functions were distinctive: investigating and recommending. Until

the late 1970s, the doctrine was clear: no hearings were required, and this proposition was a product of the general doctrine about the threshold – the functions were not judicial.

Guay v. Lafleur o Lafleur was authorized under the Income Tax Act to investigate the financial affairs of a

number of taxpayers, which included Guay.o Lafleur began to examine witnesses, and Guay requested to be allowed to be present and

to be represented by counsel during these examinations.o Lafleur refused, and Guay sought an injunctiono The Supreme Court held that Guay had no right to a hearing because the function was

“purely administrative” – Lafleur was not deciding or adjudicating. Very shortly after Nicholson and Webb were decided, the issue came to be reexamined.

Re Abel and Advisory Review Board – where a purely administrative process (such as an investigation) may have an effect on the outcome of some adjudicative or quasi-judicial process, then a duty of fairness may be required during the administrative phase

Factual Background The Advisory Review Board was created by order in council under the Mental Health Act. Its

major function was to review annually all patients who were confined in psychiatric institutions under warrant of the lieutenant governor after being charged with criminal offences and being found not guilty by reason of insanity. It made a report about each patient to the lieutenant governor, which included any recommendations for release.

The lawyers for some patients, in preparing for this review, requested disclosure of the files kept by the institution about the patients, especially reports that were to be submitted to the board. This request was refused.

At the hearing, the lawyers asked for disclosure of the reports given to the board. The chairman refused on the ground that he had no authority, and an application for review was made.

The claim for access to the files of the facility failed because this disclosure was clearly prohibited by the Act. The difficult issue was disclosure from the board.

Judgment The judgment as written below took place in Ontario’s Divisional Court. However, on appeal, the

Court of Appeal affirmed the decision, citing substantially the same reasons. Judge Grange said: The Lieutenant-Governor is, of course, not bound to act upon the recommendations in the report,

but realistically, a patient’s only hope of release lies in a favourable recommendation by the board.

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Likewise, the board need not act upon the information and reports of the officer in charge, but there can be no question that these will influence the board and may in, many cases, be decisive

It is, thus, argued that the board is not subject to judicial review, because it does not bind the Lieutenant-Governor and, therefore, the minimum rules for proceedings under the Statutory Powers Procedure Act do not apply.

One of the difficulties in determining the matter is the distinction between judicial and quasi-judicial functions on the one hand, and those which are considered purely administrative on the other. I align myself with those who have said that this distinction is not important, at least when the question of the duty to act fairly is concerned.

On that basis, it is suggested by some that the degree of proximity between the investigation and the decision and the exposure of the person investigated to harm are matters of paramount concern. Here, the proximity is great.

Moreover, one of the fundamental rules of natural justice is that a party must have an adequate opportunity of knowing the case has to meet, of answering it and of putting his own case. One can readily imagine those reports containing allegations of fact detrimental to the applicant, which could readily be refuted

The central problem in this case is that the Chairman denied the request for production upon the ground that he had no jurisdiction, which he no doubt meant that he had no jurisdiction to order the Medical Centre to produce the files. However, he needed no jurisdiction to hand over to the applicants’ counsel the reports which the board had received.

What was needed in this case was consideration of whether or not those reports should be disclosed to the applicants – the consideration could include such things potential harm to the administration of the Centre. However, when the Chairman failed to consider that question and answer it according to proper principles, there was a failure of natural justice.

Having regard to Re Nicholson and Re Webb, while neither of those cases concerned a non-binding report, they both reaffirmed and perhaps extended the duty of fairness required of all persons or bodies exercising power even though the exercise of that power might be classified as administrative rather than judicial or quasi-judicial.

The obligation to “act fairly” perhaps lacks precision of definition and doubtless it involves something less than the strict application of the rules of natural justice, but it may in some circumstances involve the application of some or all of those rules.

In failing to give to that question that consideration, the board, in my respectful opinion, failed to meet the legal test of fairness.

Case Analysis One of the questions left dangling in this case is whether the affected person’s entitlement to

procedural fairness is exhausted at the recommendatory level or whether there might either generally or in some instances be a further claim for procedural fairness from the executive official to whom the recommendation is made

Conway v. A.G. of Ontario o The Ontario Divisional Court held that, in the context of the Advisory Review Board,

there could be continuing obligations of procedural fairness even at the Lieutenant-Governor stage, particularly in relation to reports prepared for the royal representative, which might either add new material or present an unfair picture of the prior proceedings and recommendations of the Advisory Review Board

o However, this did not mean an oral or in-person hearing before the Lieutenant-Governor, but rather, access to the relevant material and an opportunity to make written submissions.

Note also the type of disposition made in this case. The outcome was not an order for production, but rather, a quashing and remission back for reconsideration of the procedural claims made by Abel and his counsel. This indicated at least some predisposition on the part of the court not to

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usurp the review board’s discretion in relation to procedural matters and suggests that, at least on occasion, procedural rulings by tribunals are entitled to a measure of deference and are not to be reviewed on a simple correctness basis.

Dairy Producer’s Co-operative Ltd v. Saskatchewan (Human Rights Commission) – procedural fairness obligations at the investigatory phase of human rights complain – the various scenarios

Factual Background Following a complaint of workplace sexual harassment, the commission had appointed an

officer to investigate and provide the commission with a report on whether there was a sufficient basis for recommending the appointment of a board of inquiry to adjudicate on the complaints. This process of investigation was provided for in detail in regulations promulgated under the Act.

The company was informed of the complaint and the investigation proceeded. However, throughout its progress, the company sought unsuccessfully to secure further and better particulars of the complaint.

Ultimately, the investigator reported that there was probable cause to believe that there had been an infringement of the Act. As a consequence, the commission, acting under its mandate, attempted to settle the matter. In the course of these abortive efforts, the company was provided with full details of the complaints and the evidence supporting them.

When settlement attempts failed, a board of inquiry was established. At this juncture, the company applied to the court for orders quashing the establishing of the

board of inquiry and the investigator’s report that there was “probable cause” to believe that there had been an infringement of the Act. This application was based on allegations of breach of the rules of procedural fairness during the process leading up to the striking of the board of inquiry.

Judgment This case took place in the Saskatchewan Court of the Queen’s Bench. Judge Wright stated: The test to be applied to an investigation was settled in Syndicat des employes de production du

Quebec et de l’Acadie v. Canadian Human Rights Commission. The Supreme Court stated the following:

“…the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather, the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in the relevant legislation in met. Accordingly, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness.”

Additionally, the Divisional Court of Ontario’s decision in Re Dagg and Ontario Human Rights Commission is telling. The court stated the following:

“…But even assuming that the Commission and the Minister were under a duty in exercising their administrative functions to be ‘fair’ as has been suggested in some of the cases, it is our view that duty only required the Commission and/or the Minister to receive the representations of the applicant and to give to the applicant the substance of the information upon which the Commission and Minister relied in arriving at their respective decisions.”

Moreover, in Federation of Women Teachers’ Association of Ontario, the court reached this conclusion:

“…the duty of fairness owed when dealing with an investigative body is to inform an interested party of the substance of the case against it, and allow an opportunity for responding representations or submissions.”

Justice Sopinka made the following statement in Syndicat:

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“…the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.”

All these decisions have one thing in common: they all presuppose that the report and/or recommendation of the investigating officer will result in a decision affecting another person’s rights. The importance of this point is emphasized in Hawrish v. Cundall. In that case, an investigative committee of a provincial law society, after an investigation, recommended the suspension of a member. The court concluded that the committee was not bound to act fairly in the broad sense of the term as its recommendation did not affect the rights of Hawrish. In a sense, he held, the committee was analogous to the prosecutor who decides if a process should be initiated which may, ultimately, affect the rights of a person.

Analysis Did the investigating officer have a duty to act fairly? The investigating officer had no power

to affect the rights of the applicant . At most, she could report that “probable cause” existed. That in itself did not affect the rights of the applicant. It was the Commission which decided the next step.

The next step, if the complaint was not dismissed, was settlement. The settlement negotiations were not a determination of the rights of the applicant. It was only after that process was completed, unsuccessfully, that the Commission might act to set up the Board of Inquiry. – the commission’s mandate under most human rights codes is that if their investigation reveals a foundation for the complaints, their next step is to facilitate an settlement b/w the parties – since settlement precedes adjudication, the rights of the accused are not yet at stake – thus, the commission’s decision does not directly and immediately affect the rights of the accused upon the positive holding of a foundation for the complaint

Case Analysis – Comparable Cases Where a complaint that there has been a violation of human rights code proceeds to a board of

inquiry or tribunal, there is always a full hearing. Despite this, the weight of authority is that there is, nonetheless, a duty on human rights commission to act in a procedurally fair manner before taking that step or recommending that a board of inquiry or tribunal be struck.

In Cashin v. CBC, the court went as far as to hold that, in the case of the dismissal of a complaint by a human rights commission without recourse to a formal hearing, there was an obligation to afford some form of oral hearing with cross-examination rights when that decision was based at least in part on an assessment of conflicting evidence.

Later cases, however, do not appear to case the procedural fairness rights at the commission stage in terms of any sort of oral hearing

In the Dairy Procedures’ Co-operative case, the court, by analogy to police investigations resulting in the laying of criminal charges, was not prepared to impose any duties of procedural fairness on the official charged by the commission with investigating a complaint that the Human Rights Code provision had been violated. This identifies at least one domain where procedural fairness obligations do not arise in an investigative arena.

However, the issue in Masters v. Ontario involved allegations of unfairness leveled at investigators appointed by the premier of Ontario to report on allegations of sexual harassment made against the agent general of the government of Ontario in New York (a prerogative appointee). Judge Adams, sitting in the Ontario Divisional Court, held that the investigators owed Masters a duty of procedural fairness in the conduct of the inquiry, though not one that amounted to a full trial-type hearing. He then concluded that that duty had been fulfilled even though Masters was not given access to the questions that were asked of those interviewed, the names of those conducting specific interviews, or any notes, transcripts, or tapes of those interviews. It was sufficient that Masters was provided with a summary of the allegations and the opportunity to interview the witnesses himself or by his lawyer (though few agreed to be interviewed).

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Irvine v. Canada (Restrictive Trade Practices Commission) – example of case where statutory powers for the investigation phase are circumscribed to a number of different actors who have limits on their powers to influence any decision-making adjudicative function – principle highlighted in red below

Factual Background Under the Combines Investigation Act, there was a provision for a two-stage process in relation

to suspected unlawful trade practices. The first stage was in the form of an inquiry conducted by a hearing officer appointed by the chair of the commission. This produced a report that was submitted to the commission, which then had to decide whether a full-flown public inquiry was indicated.

The hearing officer proceeded in camera (in private) and, in several other respects, did not normally adhere to what are generally considered to be elements of the rules of natural justice or procedural fairness. In particular, rulings by the hearing officer limited the right of witnesses and those under investigation to be present when other witnesses were being examined and also restricted cross-examination rights.

A challenge to these rulings reached the Supreme Court.Judgment Justice Estey delivered the judgment of the Supreme Court. He engaged in a detailed elaboration

of the statutory structure, emphasizing the separation b/w those engaged in the investigation and to whom they report, those engaged in the hearing process, and those who may actually press charges. He said the following:

The foregoing statutory structure raises many question as to the meaning an intent of some of its provisions. The operations of the Director, the Commission and the three Ministers involved are not coordinated in detail or completely.

In his functions, the Director makes no decisions in the sense of a final determination of a right or an interest. Rather, he makes recommendations and allegations and forms opinions for consideration by others and sometimes only fathers facts.

The Commissions role is largely performed in the second stage and consists of processing of information gathered by the Director in the exercise of his investigatory function.

The Act authorizes actions of one type or another by three Ministers, the Minister of Consumer and Corporate Affairs, the Minister of Finance and the Attorney General of Canada.

The Minister of Consumer and Corporate Affairs is the primary Minister responsible for the administration of the statute. The statute confers no power on the Minister to act upon any report, recommendation or finding by the Commission except to decide whether to publish the Commission’s report.

The Attorney General of Canada may institute and prosecute charges under the Act, but does not receive recommendations in that connection from the Director, nor is the Director involved in the process of the laying of charges or the prosecution.

The Minister of Finance is given no express authority under the Act but presumably, as an advisor to the Cabinet, he may serve as the link between the Commission and its recommendations

The entire administration of this Act is done in private, except where publication of the Commission’s report or the conduct of Commission hearings is directed, and the conduct of prosecutions.

After considering the case history of procedural fairness and investigative functions, he said: It follows that neither the Act nor the doctrine of fairness provides the appellants with a right to

cross-examine the witnesses at the inquiry. Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in

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train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel.

The appellants argue that the consequential impact of the reduced scope of counsel activity allowed by the Hearing Officer will result in a loss of reputation, exposure to criminal prosecution, reduction of freedom to compete with others by reason of loss of protection under existing customs tariffs, and the exposure to adverse actions by other federal agencies, who may receive representations from the Director

Such a loss or prejudice might be suffered by an appellant if the Director published a report on the evidence gathered in his investigation. The statute, however, does not require a report from the Director, but only a statement of evidence. This statement is not published but is delivered by the Director only to the persons against whom an allegation is therein made, and to the Commission. The Commission thereafter is required to consider the statement as well as “other evidence or material” as the Commission considers advisable, and shall make a report to the Minister. Where the report is made “against any person”, the Commission shall make no such report unless such person has been allowed “full opportunity to be heard in person or by counsel”.

Thus, the procedure stipulated by the Act largely offsets any hardship incurred by the denial of cross-examination at this preliminary stage before the Hearing Officer. Any “recommendations” or “findings” which reach the Minister shall be those of the Commission and not of the Hearing Officer or the Director. However, none of these potential developments has yet been realized in the stage that the statutory process has reached in these proceedings. We are engaged only in the first stage of information gathering.

There are two other steps which the Director may take or may be called upon to take. The Act authorizes a Director to remit any records or evidence to the Attorney General of Canada “for consideration as to whether an offence has been or is about to be committed… and for such action as the Attorney General may be pleased to take.” The Director’s role in this section is clearly of a purely investigatory nature and entirely preliminary to any action which might adversely affect any person. – it is the AG who will make the determination of whether or not to pursue an investigation against accused – director’s report only states preliminary evidence

Additionally, the Act authorizes the Minister to require the Director to submit to him an interim report in which the Director shall set out “the evidence obtained and the Director’s opinion as to the effect of the evidence.” However, the statute neither directs nor authorizes the Minister to take any further action. Similarly, there is no provision for the publication of the interim report by either the Director or the Minister, and all of these inquiries must be held in private.

Courts must, in the exercise of its discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention. Where, on the other hand, the investigation is conducted by a body seized of powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene.

In the present case, it was sufficient that the Hearing Officer allowed all the parties to be represented by counsel who could object to improper questioning and re-examine their clients to clarify the testimony given to ensure that the full story was communicated by the witness counsel represented.

The area under investigation concerns trading crimes which by nature are difficult of investigation. The demonstration of the crime generally requires that early and active investigative action by the state itself. An awareness of these concerns by the legislators is apparent when the investigative program established in the Act is read as a whole. The appeal is dismissed.

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Case Analysis Note the difference between this case and the case of Dairy Products, which held that when the

statute simply establishes an investigative capacity, there is much more of a possibility that the courts will see this capacity as being the equivalent of a police investigation, not giving rise to any hearing entitlements to those under investigation.

In other contexts, however, the inquiry and investigative functions are set up by reference to general inquiries legislation, while others will contain their own procedural regimes. However, the creation of such statutory investigative regimes does not mean that there are clear answers to all procedural questions. Often, the entitlement to participate is spelt out in ambiguous terms or expressed in the form of an exercisable discretion and, not surprisingly, such provisions generate disputes. There is also the possibility that the procedures set out in the relevant legislation will not be exhaustive of the issues that can arise.

Legitimate Expectation In certain circumstances, procedures will be required by reason of expectations generated

in an affected person and not be entirely contingent on a detached analysis of the statutory power in question.

To the extent that entitlements to procedural fairness are argued to depend on the circumstances of particular exercises of a statutory power, theories of a forgetful or an impliedly authorizing legislation become even more stretched than they normally are. In such contexts, it is rather more difficult to infer from legislative silence that there has been an implicit delegation to the courts of the task of selecting those occasions on which the decision maker owes obligations of procedural fairness to affected persons on those where no such entitlement arises.

In the English case of Schmidt v. Secretary of State for Home Affairs, Lord Denning made the following statement:

“The speeches in Ridge show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation of which it would not be fair to deprive him without hearing what he had to say.”

Initially, the concept was on that was treated as just another means of expressing the notion that the applicant’s stake in the outcome was on that indicated the need for procedural fairness. However, short after his judgment in Schmidt, Denning gave the concept a rather different content.

R v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association o In this case, municipal officials had given express undertakings to the association that the

number of taxi licenses would not be increased without a hearing, and, subsequently, following a hearing, that there would be no increases unless a private Act of Parliament was procured.

o Denning was prepared to make these undertakings and conduct the foundation of a requirement that the association be heard or consulted if the municipality was of a mind to resile from its undertaking as to the procuring of a private Act.

o Denning grounded an entitlement to such opportunities on the particular factual circumstances and thereby laid the foundations for the modern doctrine of “legitimate expectation”, though without specifically using the term.

It may be established by way of (1) an expectation of a hearing arising out of express representations, (2) a practice of holding such hearings, or (3) a combination of the two.

The doctrine has been acknowledged in the Canadian context by the Supreme Court in four cases, though in each case the court held that the grounds for successful invocation of the doctrine had not been made out. As a consequence of the lack of an example of a positive application of the doctrine, there main many doubts as to the precise reach of the Canadian version.

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Old St. Boniface Residents Association Inc v. Winnipeg – doctrine of legitimate expectations applies only where there is an absence of procedural fairness which are due in the circumstances of the case – however, if procedural safeguards already exist, and the court deems them to be sufficient given the circumstances, the legitimate expectations must give way to was is provided for and given in the circumstances

o In this case, the Supreme Court was confronted with an argument that there was an expectation on the part of the residents’ association that there would be no more development of the kind in issue until such time as there was a new city plan in place, a process in which the association expected to participate.

o The court held that such a claim could not be made in the face of all the other procedural protections provided for in the relevant legislation. Sopinka made the following observations about the reach of the doctrine:

“The principle is an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity . The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that their rights would not be affected without consultation.”

Reference Re Canada Assistance Plan – court established two principles in this case – (1) doctrine of legitimate expectations does not give rise to substantive rights, and (2) doctrine cannot be applied to a legislative body in its statutory-making function

Factual Background The Canada Assistance Plan, a federal statute, authorized the government of Canada to enter into

agreements with the provinces for sharing the costs of provincial social assistance and welfare programs

Sec. 8 of the Plan provided that these agreements would continue in force for as long as the relevant provincial law was in operation, subject to termination by consent, or unilaterally by either party on one year’s notice.

As a part of a deficit reduction policy, the federal government introduced a bill that limited the increase in its financial contribution to B.C., Alberta and Ontario to a figure below that provided in the Plan and the agreements with the provinces. No prior notice had been given.

One of the questions referred by B.C. to the courts was whether the government was precluded from introducing a bill by virtue of the legitimate expectation that amendments would only be made to the agreements by consent.

Judgment Justice Sopinka gave the judgment of the Supreme Court. He stated the following: The action taken by the federal government is alleged to have been illegal because it violated a

legitimate expectation of B.C. in not obtaining the province’s consent. This must be contrasted with a claim that there was a legitimate expectation that the federal government would not action without consulting B.C. If the doctrine of legitimate expectation required consent, and not merely consultation, then it would be the source of substantive rights; in this case, a substantive right to veto proposed federal legislation. There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. Where it seems to be applicable, however, is in a right to make representations or to be consulted, depending on the context in which it arises.

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Moreover, the rules governing procedural fairness do not apply to a body exercising a purely legislative function. In Martineau, Dickson wrote:

“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be found upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.”

The formulation and introduction of a bill are part of the legislative process with which the courts will not meddle.

The respondent seeks to avoid this proposition by pointing to the dichotomy of the executive, on the one hand, and Parliament, on the other. He concedes that there is no legal impediment preventing Parliament from legislating, but contends that the government is constrained by the doctrine of legitimate expectations from introducing the bill into Parliament.

This submission, however, ignores the essential role of the executive in the legislative process of which it is an integral part. Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to prevent the government from introducing legislation in Parliament. Such expectations might be created by statements during an election campaign. Furthermore, it is fundamental to our system of government that a government is not bound by the undertakings of its predecessor. The doctrine would place a fetter on this essential feature.

Case Analysis Sopinka clearly rejects any notion of the doctrine of legitimate expectation being anything other

than a source of procedural claims. In other words, it never generates a claim to a substantive outcome, only hearing entitlements.

However, what is clear in the wake of Baker is that in Canada substantive expectations can generate an entitlement not to substantive outcomes, but procedural protections if the decision-maker is of a mind to defeat those substantive expectations.

In Canadian Union of Public Employees and Service Employees International Union v. Ontario (Minister of Labour), the Ontario Court of Appeal held that the unions had an entitlement to procedural fairness arising out of their legitimate expectation that the government would not change the system for the appointment of interest arbitrators.

Council of Civil Service Unions v. Minister for Civil Service (GCHQ) – English case Factual Background The Government Communications Headquarters (GCHQ) was established in 1947 to ensure the

security of official and military communications and to provide the government signals intelligence. This function required handling much secret information vitiation to national security.

From its creation, its employees were permitted to belong to national trade unions, and most of them did. There was also a well-established practice of consultation between the government and the unions about important alterations in the terms and conditions of employment.

However, in the late 1970s and early 1980s, the unions initiated substantial work disruptions to support their efforts to improve the conditions of work for civil servants generally. Negotiations failed and, in late 1983, the Minister for Civil Service made an order forbidding the employees at GCHQ to belong to national trade unions.

A council of unions and some individual employees brought an action for a declaration that the order was void because it was made without consultation.

Judgment The House of Lords decided that the order could be reviewed in the same way as a statutory

power, even though it was made under the prerogative, and that the employees and the unions

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had a legitimate expectation that they would be consulted before it was made, but their claim failed because the national security might outweigh this expectation and this choice must be made by the executive and not the courts. Lord Fraser said:

“Counsel for the appellant submitted that the Minister had a duty to consult before making an important change in their conditions of service. His main reason for so submitting was that the employees had a legitimate, or reasonable, expectation that there would be such prior consultation before any important change was made in their conditions… But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law… Legitimate expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue… The present case is of the latter type. The test of that is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case… The evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly, in my opinion, if there had been no question of national security involved, the appellants would have had a legitimate expectation that the minister would consult them."

There seems to be, however, a caveat or qualification to the doctrine of legitimate expectation. In the pre-Canada Assistance Plan case of Sunshine Coast Parents for French v. Sunshine Coast (School District No. 46), the B.C. Superior Court held that only those who were aware of previous consultative practices could actually rely on those practices as generating a legitimate expectation. This proposition is strongly echoed by the Newfoundland Court of Appeal

Furey v. Roman Catholic School Board for Conception Bay Centre – establishes two principles: (1) doctrine of legitimate expectation can only be exercised by those who know of the previous practice or were aware of the procedural safeguard promised by the agency, and (2) in deciding to close a single school (thereby making it a specific, individual-like decision), the power being exercised, while technically administrative/legislative, is in effect adjudicative because of its specific nature, but where decision to close affects entire area or district, decision is administrative/legislative in nature

Factual Background The board decided to close an elementary school under its jurisdiction. Thirteen residents, most with children attending the relevant school, sought relief in the nature of

certiorari to quash the decision of the board. They alleged that the decision was taken without an opportunity for public input and this constituted a breach of the duty of procedural fairness.

A few years later, when the question of the need to consolidate elementary schools with the board’s jurisdiction had first arisen, parents had been involved in the discussions and these discussions had continued through the middle of 1989, at which point a decision was taken to consolidate two schools but to leave open the school that was now in jeopardy.

Thereafter, in early 1991, the issue of elementary school consolidation again arose in the context of a discussion paper presented to the board by the superintendent of schools. On the basis of this paper and subsequent discussions and negotiations in which the public (parents and residents) were not involved, a motion was put at the May public meeting of the board that the school in question be closed as of the end of the 1991-1992 academic year.

At the meeting, that motion was amended to close the school as of the end of the current academic year and that amendment carried as did the amended motion.

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In 1988, the Department of Education had issued guidelines to be followed in the case of planned consolidations and closing. These guidelines established a process of consultation and timeframes for various steps in the decision-making process. Those guidelines had not been observed by the board in this instance.

1st Instance Judgment Judge Wells made the following observations: Some Canadian jurisdictions require, by statute, that the concept of procedural fairness be

applied. However, the legislation in Newfoundland is silent on that point, and I am therefore required to consider whether or not, in the absence of specific legislation, the common law doctrines as developed by the courts with respect to procedural fairness permit this court to find that its absence is sufficient ground for setting aside a decision to close a school

I have no hesitation in finding that the decision of the school board in closing Assumption Elementary was an administrative decision, and not in any sense legislative. My understanding of the authorities is that legislative decisions are usually general decisions of broad application. Administrative decisions usually deal with specifics, as was the case here.

I am satisfied that the actions of the board in 1988 and 1989 in employing a consultative process, together with certain public communications made to parents after 1989, which referred to guidelines, did have the effect of creating the impression that the Board was operating under a system of guidelines which allowed for procedural fairness.

The 1989 procedure, and subsequent communications, could not do otherwise than raise in the minds of the parents the expectation that there would be procedural fairness in future decision making with respect to school closure.

It is, therefore, reasonable to contend that the parents concerned had a reasonable expectation that the board would follow a process of procedural fairness before taking a final decision to close Assumption Elementary. As such, I grant an order in the nature of certiorari and further direct that the matter be referred back for reconsideration and the making of a decision.

Appeal Judgment On appeal to the Newfoundland Court of Appeal, the court reversed the judgment of Judge Wells. The court, however, accepted Well’s conclusions for holding that this was an administrative,

not a legislative, function and, in so doing, distinguished Sunshine on the basis that the elimination of the French immersion program in that was a decision that affected a whole school district while this decision involved a single school.

However, on perusing the affidavits of 2 of the 13 applicants for relief, the court was unable to find any evidence that those deponents had believed that the past practice would be followed in this instance.

Case Analysis Should the doctrine’s application depend upon whether the applicants can bring themselves

within the principles normally associated with estoppel as a private law concept: with knowledge of the promise or assurance in question, the applicants acted to their detriment in such a way as to make it inequitable for the other party to now assert the strict letter of the law.

However, just as private law estoppel is now moving away from any need for proof of actual detrimental reliance, it may not be absolutely necessary, if the analogy between the two concepts is employed in practice, to look for anything other than a reasonably held belief that past practice will be followed.

One ideological impediment to the practical application of the of estoppel standards to the doctrine of legitimate expectation is that in applying those standards, the courts would be going against one of the apparent limitations of the doctrine of legitimate expectation: its inapplicability beyond the realm of procedures.

Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) – Ministerial decision to cut funding from hospital after it detrimentally relied on promise of funding – SC held hospital was entitled to

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rely on previous representations of funding, but did not use doctrine of legitimate expectation or public law estoppel to reach its decision

Factual Background For many years, the hospital had been functioning in violation of its license. Its character had

changed from a long-term care facility to a short and medium-term care facility. Discussions took place with the Minister and it was agreed that, if the hospital relocated, its

license would be regularized The hospital engaged in extensive fund-raising efforts and relocated. When it sought to have its license updated, a different Minister in a different government refused,

primarily on the basis that to issue the license would be to commit the government to additional financial support of the hospital and that this was not one of the government’s current priorities.

The hospital sought mandamus to compel the Minister to issue the revised license. The Quebec Superior Court refused to make such an order on the basis that the doctrine of

legitimate expectation could not be used to achieve substantive outcomes. The Quebec Court of Appeal accepted this but ruled that the hospital was entitled to a revised

license on the basis of the doctrine of public law estoppel. The Minister appealed to the Supreme Court. Justice Bastarache delivered the judgment of the

majority of the court and held that it was not necessary to deal with the issues of public law estoppel and legitimate expectation. The case turned on the fact that earlier Ministers had already made a decision conditional on the hospital relocating and this was a decision that the current Minister did not have any basis for overturning. As a consequence, the hospital had an entitlement to the formal issuance of a license in terms of that initial decision.

The concurring judgment saw it somewhat differently: the current Minister had made a patently unreasonable decision and failed to act in a procedurally fair manner in refusing the license. Since there was only one other possible outcome, mandamus was available to compel the issuance of the license.

Both judgments turned to a significant degree on the finding that the Minister’s reasons for refusing the modified license were not supported by the facts: there was no evidence that the grant of the license in the terms sought would involve any commitment of additional funds on the part of the government.

However, before reaching this conclusion, Justice Binnie (with McLachlin concurring) did deal with the public law estoppel and legitimate expectation arguments.

Judgment(C) The Doctrine of Legitimate Expectation

- In the English case of R v. North and East Devon Health Authority, ex parte Coughlan, the English Court of Appeal confirmed that, in their legal system, the doctrine of legitimate expectations does give rise to substantive remedies. Lord Wolf stated:

“Fairness in such a situation, if it is to mean anything, must include fairness of outcome. This in turn is why the doctrine of legitimate expectation has emerged as a distinct application of the concept of abuse of power in relation to substantive as well as procedural benefits.”

- Part of the difficulty with the approach of English law to the doctrine of legitimate expectation is that it performs a number of functions that in Canada are kept distinct. Lord Wolf identified the unifying theme as “administrative fairness” of which procedural fairness and substantive fairness are connected parts. On the substantive side, Lord Wolf said:

“Policy (within the law) for the public authority alone, both it and the reasons for adopting or changing it will be accepted by the courts – in other words, as not ordinarily open to judicial review. The court’s task is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power… Where no administrative or ministerial accommodation is made, it is

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for the court to say whether the consequent frustration of the individual’s expectation is so unfair as to be a misuse of the authority’s power.”

- The intrusion by the courts into the substance of administrative and/or ministerial decision-making is said to be justified by the multiplicity of conflicting decisions by a public authority on the same point directed to the same individual. Lord Wolf said:

“In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process. The present case is visibly different. It involves not one but two lawful exercises of power (the promise and the policy change) by the same public authority, with consequences for individuals trapped between the two.”

- The Canadian-approach to the scope of the doctrine of legitimate expectation is influenced by the concern that using a Minister’s prior conduct against him as a launching pad for substantive relief may strike the wrong balance between private and public interests, and blur the role of the court with the role of the Minister.

- Moreover, under our case law, the availability and content of procedural fairness are generally driven by the nature of the applicant’s interest and the nature of the power exercised by the public authority in relation to that interest. The doctrine of legitimate expectation, on the other hand (as defined by English case law), looks to the conduct of the public authority in the exercise of that power, including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified.

- The doctrine of legitimate expectations is sometimes treated as a form of estoppel. There appears to be some authority condemning the comparative analogy between the two doctrines. For example, the High Court of Australia espoused the following view:

“…the notion of legitimate expectation is not dependent upon any principle of estoppel… Legitimate expectation does not depend upon the knowledge and state of mind of the individual concerned, although such an expectation may arise from the conduct of a public authority towards an individual.”

(note, however, that while Canadian case law may concur in the result of the above statement, it may not concur with its reasoning, on the basis that certain Canadian cases have held that a requirement of individual knowledge of the representation and/or past practice of the public authority is needed in order for the individual(s) affected to employ the doctrine of legitimate expectation)

- Moreover, given the current level of evidence required by an individual seeking to employ the doctrine of legitimate expectation (which is low by relative standards), one would normally expect more instrusive forms of relief (Ex. reversing a Ministerial decision) to be accompanied by more demanding evidentiary requirements.

- In Reference Re Canada Assistance Plan, Sopinka regarded the doctrine of legitimate expectations as “an extension of the rules of natural justice and procedural fairness” which may afford “a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity.” Thus, Sopinka was not limiting relief just to representations but intended to include whatever procedural remedies might be appropriate on the facts of a particular case. The door was shut only against substantive relief. It seems to me that this conclusion should be affirmed.

- However , in affirming that the doctrine of legitimate expectations is limited to procedural relief, it must be acknowledged that in some cases it is difficult to distinguish the procedural from the substantive. For example, in Bendahmane v. Canada, the majority of the Federal Court of Appeal considered the applicant’s claim to the benefit of a refugee backlog reduction program to be procedural, whereas the dissenting judge considered the claimed relief to be substantive.

(D) Promissory Estoppel

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- The Quebec Court of Appeal concluded that while the Minister was not required by the doctrine of legitimate expectations to issue the modified permit, he was estopped by his earlier representations and conduct from refusing to do so.

- I agree with the Court of Appeal that estoppel may be available against a public authority, including a Minister, in narrow circumstances .

- It is to be emphasized, however, that the requirements of estoppel go well beyond the requirements of the doctrine of legitimate expectations. The doctrine of legitimate expectations does not necessarily, though it may, involve personal knowledge by the applicant of the conduct of the public authority as well as reliance and detriment. Estoppel clearly elevates the evidentiary requirements that must be met by an applicant.

- In this case, the Court of Appeal adopted the private law definition of promissory estoppel provided by Justice Sopinka in Miracle v. Travellers Indemnity Co. of Canada, where he provided the following criteria:

“… The party relying on the doctrine must establish that the other party has, (1) by words or conduct, made a promise or assurance (2) which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, (3) in reliance on the representation, (4) he acted on it or in some way changed his position… The promise must be unambiguous but could be inferred from circumstances.”

- The respondents argue that if the Minister is allowed to reverse his promise of a modified permit after they made changes to their hospital operations, including the fund-raising campaign and the move to Montreal, they would have acted on the Minister’s promise to their detriment.

- If this were a private law case, I would agree that the elements of promissory estoppel are present. However, this is not a private law case. Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped . The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text.

- In the case at bar, the Minister is mandated in broad terms to act in the public interest, and if the public interest as he defines it is opposed to the award of the modified permit, then I do not think a court should estop the Minister from doing what he considers to be his duty.

- Therefore, the wording of the particular statutory power in question and who wields it (a Minister) are important. The cases that are relied upon by the respondents generally deal with lesser powers or a narrower discretion at a lower level of officialdom.

Case Analysis- To the extent that the majority in this case did not express any concluded opinion on the issues of

legitimate expectation dealt with by Justice Binnie, they presumably remain open and the Supreme Court may one day have to evaluate whether it agrees with the position espoused by McLachlin and Binnie.

- There has been considerable interest in whether “fairness” itself as applied in administrative law has substantive as well as procedural dimensions. In particular, it has been suggested that fairness might involve certain guarantees of formal justice such as equality of treatment, consistency in decision making, proportionality, as well as the protection of legitimate expectations and the recognition of estoppel based on reliance.

- In Woolworth Canada Inc. v. Newfoundland (Human Rights Commission), the court held that inconsistency of treatment may give rise to reviewable error in the domain of procedural rights. This case involved a challenge to the appointment of a board of inquiry after investigation by the commission of a complaint of discrimination. In the course of the formal investigation, the complainant was given participatory opportunities (such as access to and the right to comment on the investigator’s report) that were not afforded to the respondent. This caused the appointment of the board of inquiry to be set aside.

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- Additionally, in Reference re B.C. Motor Vehicle Act, the Supreme Court has held that the “principles of fundamental justice” as enshrined in sec. 7 of the Charter have both a procedural and substantive component. As a consequence, for those statutory authorities that affect “life, liberty and security of the person” interests, there is obviously the possibility of review by reference to substantive principles of justice.

Fault as an Element in Procedural Fairness Assessments- On occasions, hearings do not happen or are flawed because of the intervention of external

agents: for example, notices sent do not arrive because of the negligence of the courier service, or lawyers may fail their clients by not representing them properly at the hearing or by failing to alert them to an impending hearing date.

- Should this kind of situation ever give rise to a claim of breach of the rules of procedural fairness or natural justice?

- In Canada, there is not definitive answer to the question whether fault or responsibility on the part of the decision maker is always a necessary ingredient in establishing a reviewable absence of procedural fairness. However, consider the following cases:

- Shirwa v. Canada (Minister of Employment & Immigration) – procedural unfairness may be established by claimant as a result of his own counsel’s incompetence – requirements below

o Judge Denault of the Federal Court – Trial Division was prepared to hold that the total incompetence of the applicant’s representative at an immigration hearing was, on the facts, grounds for a holding that there had been a reviewable breach of the rules of procedural fairness.

o In doing so, the court recognized the dangers of allowing cases to be built on allegations of incompetence on the part of the representatives but felt that this was a problem that could be controlled by careful exercise of judicial discretion and a requirement of exceptional circumstances for intervention.

- Toronto Housing Co. v. Sabrie o Judge Archie, sitting in the Ontario Divisional Court, held that the Ontario Rental

Housing Tribunal had violated the principles of procedural fairness in relation to proceedings in which the person seeking a review of his eviction from rental housing did not attend because he was hospitalized at the time for a mental disorder, a fact of which the tribunal was not aware.

Constitutional Dimensions –- Both the Charter and the Bill of Rights subject explicitly primary legislation as well as

subordinate legislation and decisions to judicial scrutiny. Additionally, there is also the possibility that the constitutional rights to procedures will have an impact on the common law of procedural review. As a result, the identification of the thresholds to the applicability of their procedural protection becomes an issue of great importance. However, there are still a great many doubts about the precise influence of both statutes in the arena of administrative decision making, notwithstanding the fact that the Bill of Rights is now over 40 years old, and the Charter is in its third decade.

- There are two dimensions to the identification of the thresholds to the procedural protections of both the Charter and the Bill of Rights. First, there is the matter of the general reach of both these statutes – what areas of administrative decision making do they affect? Second, there are the thresholds established in each statute by the specific provisions containing procedural guarantees. Our main attention will be directed to the second of these categories.

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The Charter and the Bill of Rights: Issues of General ApplicabilityBill of Rights- The Bill of Rights is a federal statute. As such, its area of application is confined to the federal

domain.- It purports to be applicable to both prior and subsequent legislation in that it declares its

primacy over all other legislation, unless that legislation contains an express provision to effect that it overrides the Bill of Rights – sec. 2. This “manner and form” requirement has generally been treated as effective to achieve its purposes and as giving the Bill its constitutional or quasi-constitutional status.

- The Bill applies to the “laws of Canada”, a term specified to include not only Acts of Parliament and “any order, rule or regulation thereunder” but also “any law in force in Canada” – sec. 5(2). This is presumably broad enough to encompass decisions and actions taken by those deriving their powers from federal law (including prerogative powers and action taken under them).

- However, there is an argument that, unlike the Charter, the reach of the Bill corresponds generally to that of judicial review under the Federal Court Act.

Charter- The Charter applies throughout Canada.- It is clear, however, that the ambit of the Charter is not coterminous with that of judicial review.

By virtue of sec. 32(1) of the Charter, its application is restricted to the Parliament and government of Canada and the legislatures and governments of the provinces and territories. This has been held by the Supreme Court to have the effect of restricting the Charter ’s application in the administrative law arena to bodies or at least activities that can be brought within the concept of “government”.

- McKinney v. University of Guelph o The majority of the Supreme Court held that, notwithstanding their statutory status,

universities were not government and, therefore, not generally amenable to the Charter with respect to actions and decisions that would expose them to judicial review

- The same held true for B.C. hospital boards, but not that province’s community colleges, a differentiation that indicates that the dividing line between that is “government” for these purposes and what is not is certainly not a bright-line distinction.

- Harvey v. Law Society (Newfoundland) – contrast with McKinneyo The Newfoundland Superior Court held that the Charter reached the disciplinary

functions of the Law Society.o Given the self-regulating status of the legal profession, why is that so? What sorts the

Law Society out from the university, given that each now operate under a statutory umbrella?

- Eldridge v. B.C. – qualification on “non-governmental entities” immunity from Chartero The Supreme Court held that decisions of B.C. hospital boards on whether to provide

translation facilities for hearing impaired patients were subject to the Charter since, in the delivery of health care services, hospitals were implementing a specific government policy.

o Thus, a statutory authority that is not in general government becomes subject to the Charter when charged with responsibility for the effectuation of government programs.

- Also, bodies that are not generally directly subject to the Charter may, nevertheless, be affected by it. To the extent that the respondent universities in McKinney were subject to the Ontario Human Rights Code prohibitions against age discrimination and justified their mandatory retirement provisions on the exemptions from those prohibitions, their policies stood to be

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affected by a conclusion that the Ontario legislature (to which the Charter clearly applies) had transgressed sec. 15(1) in providing for such exemptions – recall that the human rights code is an ordinary statute (notwithstanding its supremacy clause) and as such must be interpreted in conformity with the Charter

The Charter and the Bill of Rights: Sources of Procedural ProtectionsBill of Rights- For the purposes of administrative law, the principal procedural protections of the Bill are to be

found in sec. 1(a) and sec. 2(e).- Sec. 1(a) provides as follows:

“It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely… (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law”

- Sec. 2(e) provides as follows:“Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed an applied as not to derogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed and applied so as to… (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.”

- Thus, the sections are viewed as a vehicle for rendering inoperative federal statutes that do not provide the protections of “due process of law” and “fundamental justice” respectively.

- There are three threshold dimensions of the Bill that promise a more extensive reach in terms of procedural protections than provided by the key Charter provision, sec. 7:

- First , the use of the term “individual” and “person” in the Bill as opposed to “everyone” in the Charter. In Irwin Toy v. Quebec, the Supreme Court held that “life, liberty and security of the person” in sec. 7 of the Charter are attributes possessed only by natural persons and, hence, “everyone” does not include corporations. Whether the same holds for sec. 1(a) and sec. 2(e) has not been resolved definitively by the Supreme Court. While there is lower court authority to the effect that corporations are excluded from the benefit of sec. 1(a), there is no reason why the same should be so for sec. 2(e). In fact, sec. 2(e)’s application to corporations was assumed by the Federal Court of Appeal in Central Cartage. It should be noted, however, that in R v. Wholesale Travel Group, the Supreme Court held that a corporation (at least in the context of a defense to a criminal charge or in answer to a civil claim or regulatory proceedings) can argue that a legislative provision is invalid because it would violate sec. 7 in its application to an individual.

- Second , the inclusion of “enjoyment of property” in sec. 1(a). Quite deliberately, sec. 7 did not include protection for “property” rights. However, there is considerable room for debate about the nature of the “property rights” that are included within sec. 1(a). Nonetheless, this represents the most significant difference in terms of coverage.

- In 785072 Ontario Inc. v. Canada (Minister of National Revenue), which had to do with the confiscation under the Excise Act of a rental vehicle in which smuggled alcohol had been found. Under the relevant legislation, there was no guarantee that the owner of the vehicle, in this case a company that had leased the car to another company for rental purposes, would receive notice of the situation before the vehicle became forfeited to the Crown. While dealing with the issue of notice by reference to common law and statutory interpretation principles, Judge Rothstein also suggested that, in the event that that conclusion could not be justified on a proper

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reading of the statute, the legislation itself might be contrary to the Bill. The forfeiture of the vehicle to the Crown affected the ownership “rights” of the leasing company and the fact that this could occur without notice to it of either the seizure or the confiscation seemed to constitute a denial of the benefit of the “principles of fundamental justice”.

- Third , the attachment in sec. 2(e) of procedural guarantees to the “determination of rights and obligations”. Initially, the term “rights and obligations” was interpreted narrowly by the courts and restricted to the taking away of “strict, legal rights”. However, in Singh v. Canada (Minister of Employment and Immigration), three members of the Supreme Court held that the immigration authorities came within sec. 2(e) when deciding upon a convention refugee claim. This involved “determining” whether the claimant had a statutory “right” to remain in Canada. Although the precise dimensions of sec. 2(e) still remain murky, at the very least, this mode of reasoning ensures that it will be determined by reference to quite different and much more expansive criteria than is the case with “life, liberty and security of the person”.

- Four , while the Bill does not contain an equivalent to sec. 1 of the Charter, the Quebec Court of Appeal in Air Canada c. Canada (Procureure generale) held that, in determining the demands of the principles of fundamental justice for the purposes of sec. 2(e), the court should engage in a sec. 1-style balancing process akin to that set out in R v. Oakes.

National Anti-Poverty Organization v. A.G. of CanadaFactual Background- This case involved a revisitation of the issue raised in Inuit Tapirisat – namely, the procedural

obligations of the governor in council (Cabinet) in the context of “Cabinet appeals” from the decisions and orders of regulatory agencies.

- At first instance, at the suit of the National Anti-Poverty Organization (NAPO) and an individual subscriber to the Bell Canada telephone system, Judge Muldoon determined that Inuit Tapirisat had been decided per incuriam by the Supreme Court because it had not been confronted by any submission as to the applicability of sec. 2(e) of the Bill. Indeed, Muldoon went on to hold that the Cabinet in such cases was determining the “rights and obligations” of subscribers to the Bell Canada system and was, therefore, bound to act in accordance with the “principles of fundamental justice” in doing so.

- The Attorney General appealed to the Federal Court of AppealJudgment- The judgment was written by JA Stone, where he said the following:

Does Sec. 2(e) of the Canadian Bill of Rights Apply?- The trial judge was of the opinion that Inuit Tapirisat may be regarded as having been overtaken

somewhat by the recent amendments to the Constitution and by revivification of the Canadian Bill of Rights in Singh. He elaborated his views of his reasons for judgment:

“It [the Cabinet] was about to exercise its power of corrective guidance in a particular matter of a determination of the parties’ rights and obligations… The Cabinet went ahead, simply ignoring NAPO’s request to be ‘heard’ in the sense of making written submissions… The Cabinet, in the absence of emergency or security intelligence exigencies, cannot lawfully do so.”

- The fine point, in my view, is whether the Cabinet in exercising its discretion under sec. 64(1) of the Act, thereby determined any “rights and obligations” of the respondents.

- The appellant advances two contrary arguments. They say that sec. 2(e) can have no application to what Inuit Tapirisat has classified as the “legislative” act represented by an order in council made pursuant to sec. 64(1) of the Act. They say too that in performing an act of this nature, being directed to the public at large, no “rights and obligations” of the respondents were put at stake; it was not intended to be subject to the procedural safeguards that might otherwise be available in a matter involving individual concern or unique right.

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- The intervention of the NAPO in the CRTC proceedings was on behalf of members of the general public. They were entitled to participate in that capacity. As such, no “rights” or “obligations” unique to them were determined by that decision; such rights, if any, flowed to all of Bell Canada’s subscribers regardless of whether they participated or not.

- Therefore, with respect, it was not for the learned trial judge nor is it for this court to assume that the Supreme Court overlooked sec. 2(e) when it decided Inuit Tapirisat . I must agree with the appellant that sec. 2(e) of the Bill of Rights can have no application in this matter.

Charter- The guarantee of the principles of fundamental justice in sec. 7 is not conditioned by any

reference to a hearing. As a consequence, it was held by the Supreme Court to have a substantive as well as a procedural component – Reference Re B.C. Motor Vehicle Act.

- Any thought that sec. 15 and its promise of equality “before and under the law” provided a guarantee of equality as among participants in administrative proceedings in terms of procedural rights was dashed by Andrews v. Law Society of B.C. This case established that sec. 15 was essentially an anti-discrimination provision with its protections only benefiting “discrete and insular minorities” as reflected in the categories of victim specified in the second half of the section as well as those possessing analogous characteristics.

- As for sec. 11 and its guarantees of “an independent and impartial tribunal”, of no unreasonable delay in the conduct of proceedings, and of presumptions of innocence, its direct effect has been confined to criminal proceedings and those with “true penal consequences” – R v. Wigglesworth. There does, however, remain a question as to whether a fine of sufficient magnitude levied by a tribunal (such as a securities commission) would ever be a “true penal consequence”.

- There are also sections providing against self-incrimination (sec. 13) and guaranteeing access to an interpreter (sec. 14). These have obvious ramifications for administrative hearings generally (assuming that “proceedings” is not interpreted narrowly).

- In addition, the protections against “unreasonable search and seizure” (sec. 8) and arbitrary detention or imprisonment (sec. 9) have an impact on those administrative regimes with search, seizure and detention powers.

- Finally, the right in sec. 12 “not to be subjected to any cruel and unusual punishment” has potential benefits for those who are incarcerated in penitentiaries or mental institutions.

- It should also be noted that sec. 8-14 may also be invoked indirectly in the context of arguments as to the content of that term in cases brought under sec. 7, and where “life, liberty and security of the person” are otherwise affected. In Shubley, Justice McLachlin stated the following:

“Having concluded that the disciplinary proceeding to which the appellant was subject is not a proceeding for an offence within sec. 11(h) on the principles set out in Wigglesworth… I agree with Wilson’s conclusion in that case that it is preferable to restrict sec. 11 to the most serious offences known to our law… The importance of this is illustrated by considering the impact of the application of sec. 11 to prison discipline proceedings. Prison discipline proceedings must be expeditious and informal if the crises that inevitably occur in centres of incarceration are to be avoided.”

- While this statement may seem, on this face, to be advocating a position contrary to the one being advanced, it clearly accepts that applications of the principles found in sec. 11 will not automatically apply or necessarily be as rigorous when they are contended for indirectly and by way of analogy in the context of sec. 7.

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Singh v. Canada (Minister of Employment and Immigration) – sec. 7 applicability to the procedural mechanisms set out under the empower Act – not on their actual application to the case at bar – sec. 26 of the Charter keeps the Bill of Rights in power

Factual Background- The appellants were all convention refugee claimants who were landed in Canada. Under the

procedure then place, the Minister, acting on the advice of the Refugee Status Advisory Committee, had determined that they were not convention refugees. They all then applied to the Immigration Appeal Board for a redetermination of their status. However, their applications were not referred to an oral hearing because the Board determined on the strength of the material submitted by the applicants that there were no reasonable grounds for believing that they could establish their claims at a hearing.

- The appellants then applied to the Federal Court of Appeal for review of the Board’s decision alleging that the statutory scheme infringed sec. 7 of the Charter. The applications failed and the appellants secured leave to appeal to the Supreme Court.

- After the conclusion of oral argument in the Supreme Court, the parties were directed to make further written submissions on whether the statutory scheme was consistent with sec. 2(e) of the Bill of Rights.

Judgment- The decision is written by Justice Wilson, with Dickson and Lamer concurring. She said the

following:2. The Scheme of the Immigration Act, 1976

- The appellants allege that the procedural mechanisms set out in the Immigration Act, as opposed to the application of those procedures to their particular cases, have deprived them of their rights under the Charter.

- If, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for the resort of the Charter. They issue may be resolved on other grounds.

(a) The Rights of Convention Refugees under the Immigration Act, 1976- At common law, an alien has no right to enter or remain in Canada except by leave of the Crown

– Prata v. Minister of Manpower and Immigration.- However, the Immigration Act does provide Convention refugees with certain limited rights

to enter and remain in Canada. The Act envisages the assertion of a refugee claim under sec. 45 in the context of an inquiry, which presupposes that the refugee claimant is physically present in Canada. When a person who is in Canada has been determined to be a Convention refugee, sec. 47(1) requires the adjudicator to reconvene the inquiry held pursuant to sec. 23 or sec. 27 in order to determine whether the individual is a person described in sec. 4(2) of the Act. Sec. 4(2) provides that a Convention refugee “while lawfully in Canada has a right to remain in Canada…” except where it is established that he or she falls into the category of criminal or subversive persons. If it is determined that the person is a Convention refugee, sec. 47(3) requires the adjudicator to allow the person to remain in Canada notwithstanding any other provisions of the Act or Regulations.

- Therefore, a Convention refugee who does not have a safe haven elsewhere is entitled to rely on this country’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees = exception to general rule

(b) The Procedures for the Determination of Convention Refugee Status- After analyzing the relevant sections, which can be found on page 217, Wilson stated:- It is difficult to characterize this procedure as a “hearing” in the traditional sense. The procedure

is technically “non-adversarial” since only the claimant is entitled to be represented by counsel.

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- After detailing the law with respect to procedural fairness and the need for the court to consider the content of the obligations of procedural fairness within the relevant statutory framework, Wilson stated:

- It is clear from sec. 45(4) that the Act does not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Nor does the Act appear to envisage the refugee claimant’s being given an opportunity to comment on the advice of the Refugee Status Advisory Committee has given to the Minister.

- In substance, therefore, it would appear that the Refugee Status Advisory Committee acts as a decision-making body isolated from the persons whose status it is adjudicating and that it applies policies and makes use of information to which the refugee claimants themselves have no access.

- The refugee claimant’s status, however, need not be conclusively determined by the Minister’s decision on the advice of the Refugee Status Advisory Committee made pursuant to sec. 45. Under sec. 70(1) of the Act, a person whose refugee claim has been refused by the Minister may apply for a redetermination of his claim by the Immigration Appeal Board. Sec. 70(2) requires the refugee claimant to submit with such an application a copy of the transcript of the examination under oath, and a declaration under oath setting out the basis of the application, the facts upon which the appellant relies and the information and evidence the applicant intends to offer at a redetermination hearing.

- Wilson then detailed the contents of sec. 71, which outlines the duties of the Immigration Appeal Board when considering an application for redetermination – sec. 71 is located on page 219 – she continued stating:

- If the Board were to determine pursuant to sec. 71(1) that the application should be allowed to proceed, the hearing which would take place pursuant to sec. 71(2) would be a quasi-judicial one to which full natural justice would apply. This did not happen, however, because the Board concluded that the appellant had not established that there are reasonable grounds to believe that his claim could, upon the hearing of the application, be established.

- The substance of the appellants’ case, as I understand it, is that they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet.

- I do not think there is any basis for suggesting that the procedures set out in the Immigration Act were not followed correctly in the adjudication of these individuals’ claims.

- Accordingly, if the appellants are to succeed, I believe that it must be on the basis that the Charter requires the court to override Parliament’s decision to exclude the kind of procedural fairness sought by the appellant.

(3) The Application of the CharterAre the Appellants Entitled to the Protection of sec. 7 of the Charter?- Counsel for the Minister concedes that “everyone” is sufficiently broad to include the

appellants in its compass, and I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence, amenable to Canadian law.

- The question then becomes whether the rights the appellants seek to assert fall within the scope of sec. 7.

- Counsel for the Minister submits that the exclusion or removal of the appellants from Canada would not infringe “the right to life, liberty and security of the person”. He advances a reliance on the “single right” theory. In counsel’s submission, the words “the right to life, liberty and security of the person” form a single right with closely inter-related parts and this right relates to matters of death, arrest, detention, physical liberty and physical punishment of the person.

- It seems to me that in attempting to decide whether the appellants have been deprived of the right to life, liberty and security of the person within the meaning of sec. 7, we must begin by determining what rights the appellants have under the Immigration Act.

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- The Act does accord a Convention refugee certain rights which it does not provide to others, namely the right to a determination from the Minister based on proper principles as to whether a permit should issue entitling him to enter and remain in Canada; the right not to be returned to a country where his life or freedom would be threatened; and the right to appeal a removal order or a deportation order made against him.

- We must, therefore, ask ourselves whether the deprivation of these rights constitutes a deprivation of sec. 7?

- As I understand the “single right” theory, it is not suggested that there must be a deprivation of all three of these elements. In other words, it is consistent with the “single right” theory to suggest that a deprivation of the appellants’ “security of the person”, for example, would constitute a deprivation of their “right” under sec. 7, whether or not it can also be said that they have been deprived of their lives or liberty.

- It will be recalled that a Convention refugee is, by definition, a person who has a well-founded fear of persecution in the country from which he is fleeing. In my view, to deprive him of the avenues open to him under the Act to escape from that fear of persecution must, at the least, impair his right to life, liberty and security of the person in the narrow sense advanced by counsel for the Minister. The question, however, is whether such impairment constitutes a “deprivation” under sec. 7. Can it be said that Canadian officials have deprived a Convention refugee of his right to life, liberty and security of the person if he is wrongfully returned to a country where death, imprisonment or another form of persecution may await him? His return may result in his deprived of life or liberty by others, but it is not certain that this will happen. – note: at this point, the applicants have not established themselves as Convention refugees yet – thus, if they have rights under sec. 7, it must be from the threat of harm

- I cannot, however, accept the submission of counsel for the Minister that the denial of the rights possessed by a Convention refugee under the Act does not constitute a deprivation of his security of the person.

- It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, “security of the person” must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. I note particularly that a Convention refugee has the right under sec. 55 of the Act note to “…be removed from Canada to a country where his life or freedom would be threatened…” In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of sec. 7.

- However, it must be recognized that the appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not.

- From some of the cases dealing with the application of the Canadian Bill of Rights to the determination of the rights of individuals under immigration legislation, it might be suggested that whatever procedures the legislation itself sets out for the determination of rights, constitute “due process” for purposes of sec. 1(a) and “fundamental justice” for purposes of sec. 2(e). This has led some to conclude that these findings are based on the practice of the courts in consistently holding that immigration is a privilege, and not a right. The creation of this dichotomy between privileges and rights played a significant role in narrowing the scope of the application of the Canadian Bill of Rights.

- I do not think this kind of analysis is acceptable in relation to the Charter (privilege not a right argument). It seems to me, rather, that the recent adoption of the Charter as part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterized their approach to the Bill of Rights ought to be re-examined. I am accordingly of the view that the approach taken by Laskin dissenting in Mitchell is to be preferred.

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- In Mitchell, the issue was whether the Bill of Rights required sec. 16(1) of the Parole Act to be interpreted so as to require the Parole Board to provide a parolee with a fair hearing before revoking his parole. Laskin focused on the consequences of the revocation of parole for the individual and concluded that parole could not be characterized as a “mere privilege” even although the parolee has no absolute right to be released from prison.

- It seems to me that the appellants in this case have an even stronger argument to make than the appellant in Mitchell. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a “well-founded fear of persecution”, it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status

- In summary, I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of sec. 7. It is necessary, therefore, to consider whether the procedures for the determination of refugee status as set out in the Act accord with fundamental justice.

Is Fundamental Justice Denied by the Procedures for the Determination of Convention Refugee Status Set Out in the Act?- All counsel were agree that at a minimum, the concept of “fundamental justice” as it appears in

sec. 7 includes the notion of procedural fairness articulated by Justice Fauteux in Duke v. The Queen, where he stated the following:

“Under sec. 2(e) of the Bill of Rights, no law in Canada shall be construed or applied so as to deprive him of a fair hearing in accordance with the principles of fundamental justice. Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon this rights must act fairly, in good faith, without bias and in a judicial temper, and must give him the opportunity adequately to state his case.”

- On that basis, it is possible that an oral hearing before the decision maker is not required in every case in which sec. 7 is called into play. However, I must confess to some difficulty in reconciling counsel for the Minister’s argument that an oral hearing is not required in the context of this case. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances.

- My greatest concern about the procedural scheme envisaged by sec. 45-48 and sec. 70-71 is with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet.

- Counsel for the Minister argued that since the procedure under sec. 45 was an administrative one, it was quite proper for the Minister and the Refugee Status Advisory Committee to take into account policy considerations and information about world affairs to which the refugee claimant had no opportunity to respond. However, in my view the proceedings before the Immigration Appeal Board were quasi-judicial and the Board was not entitled to rely on material outside the record which the refugee claimant himself submitted on his application for redetermination.

- In response to this, counsel for the Minister submits that there was no case against the refugee claimant at that stage; it was merely his responsibility to make a written submission which demonstrated on the balance of probabilities that he would be able to establish his claim at a hearing. If the applicant had failed to bring forward the requisite facts, his claim would not be allowed to proceed, but there was nothing fundamentally unfair in this procedure.

- It seems to me that the basic flaw in counsel for the Minister’s characterization of the procedure under sec. 70-71 is his description of the procedure as non-adversarial. It is, in fact, highly adversarial by the adversary, the Minister, is waiting in the wings. What the Board has before it is a determination by the Minister based in part on information and policies to which the applicant has no means of access that the applicant for

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redetermination is not a Convention refugee. The applicant is entitled to submit whatever relevant material he wishes to the Board, but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister’s case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of “fundamental justice” as set out in sec. 7.

- I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act do not accord refugee claimants fundamental justice in the adjudication o those claims and are, thus, incompatible with sec. 7 of the Charter .

Can the Procedures be Saved under sec. 1 of the Charter?- Counsel for the Minister’s submissions with respect to sec. 1 were that Canadian procedures with

respect to the adjudication of refugee claims had received the approbation of the office of the United Nations High Commissioner for Refugees and that it was not uncommon in the Commonwealth and Western European countries for refugee claims to be adjudicated administratively without a right to appeal. He further argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim had been made would constitute an unreasonable burden on the Board’s resources.

- I have considerable doubt that the type of utilitarian consideration brought forward by counsel for the Minister can constitute a justification for a limitation on the rights set out in the Charter .

- The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in sec. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles.

- Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of sec. 1.

- Justice Beetz, with Estey and McIntyre concurring, wrote the following:- I conclude that these appeals ought to be allowed. However, I do so on the basis of the Canadian

Bill of Rights.- Sec. 26 of the Charter should, however, be kept in mind. It provides

“The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”

- Thus, the Bill of Rights retrains all force and effect- The main issue, as I see it, is whether the procedures followed in these cases for the

redetermination of Convention refugee status are in conflict with sec. 2(e) of the Bill .- In his written submissions, counsel for the Minister makes a concession in the following terms:

“They Attorney General of Canada does not dispute that the process of determining and redetermining refugee claims involves the determination of rights and obligations of the refugee claimants. It is only in that respect that his submissions with respect to sec. 2(e) differ from his submissions with respect to sec. 7 of the Charter.”

- It seems clear to me that the ambit of sec. 2(e) is broader than the lists of rights enumerated in sec. 1, which are designated as “human rights and fundamental freedoms”, where as in sec. 2(e) what is protected by the right to a fair hearing is the determination of one’s “rights and obligations”, whatever they are and whenever the determination process is one which comes under the legislative authority of the federal Parliament.

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- It is my view that it is possible to apply sec. 2(e) without making reference to sec. 1 and that the right guaranteed by sec. 2(e) is in no way qualified by the “due process” concept mentioned in sec. 1.

- Accordingly, the process for determining and redetermining appellants’ refugee claims involves the determination of rights and obligations for which the appellants have, under sec. 2(e), the right to a fair hearing in accordance with the principles of fundamental justice.

- What remains to be decided is whether in the cases at bar, the appellants were afforded “a fair hearing in accordance with the principles of fundamental justice”.

- I have no doubt that they were not . What the appellants are mainly justified in complaining about in my view is that their claims to refugee status have been finally decided without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claims on the merits.

- However, I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases. The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.

- Threats to life or liberty by a foreign power are relevant with respect to the type of hearing which is warranted in the circumstances.

Case Analysis- One of the alleged consequences of this decision was that its apparent mandating of an oral

hearing at some point in the process by someone empowered to actually render a decision made the system of refugee claim determinations immensely expensive and unworkable.

- This led to legislative reform. One of these reforms was to the effect that Canada would no longer accept as refugee claimants those who arrived here by way of a “third safe country”. A third safe country was on where the refugee would have passed through before travelling to Canada.

- Does Singh provide any basis for a claim that that provision (third safe country provision) is a violation of the Charter? Can Canada turn away a refugee claim without a hearing in such circumstances? To what extent does this decision depend on their being a statutory right to make a refugee claim? It that statutory right is taken away or restricted by legislation, is there any basis for a challenge to that legislation?

- This raises very important questions about the extent to which sec. 7 procedural claims are founded on the existence of statutory substantive rights as opposed to independent or free-standing constitutional rights.

- While the Supreme Court has never returned directly to the issue whether the Charter does apply to convention refugee determinations, the assumption in later cases has been that the three judges who were of that view in this case were correct. More recently, the application of sec. 7 was simply assumed by the Supreme Court in a challenge to proceedings deporting a convention refugee – Suresh v. Canada .

- However, in this context, two qualifications on Singh have clearly emerged: first, sec. 7 does not always require an oral hearing and, second, in addition to the balancing of interests that must occur in making determinations as to the precise procedures that the “principles of fundamental justice” mandate, there is also room for sec. 1 to be invoked in justification of sec. 7 violations.

Chiarelli v. Canada (Minister of Justice) – where an order effects someone’s life, liberty or security of the person, that person must know the case against him and have an opportunity to respond – however, the right to know the case against you is qualified by interests of national security – sufficient to give summary of confidential details

Factual Background

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- C, a permanent resident of Canada, was deported because of a conviction for an offence that carried with it the possibility of a term of imprisonment for five or more years – as per the Immigration Act, sec. 27(1)(d)(ii). In such cases, a deportation order was automatic [as per sec. 32(2)]; however, there was a right of appeal to the Immigration Appeal Board under sec. 27 of the Act on the basis of any error of law or fact, or on the basis that, “having regard to all the circumstances of the case”, the appellant should be allowed to remain in Canada.

- C commenced an appeal under sec. 72. However, before the appeal could be heard, the Solicitor General and the Minister of Employment and Immigration made a joint report under sec. 82.1(2) of the Act to the Security Intelligence Review Committee (SIRC) that C was a person who, if allowed to remain in Canada, would be involved in serious organized crime. The hearing of the appeal was, therefore, postponed pending the outcome of this other process.

- In conducting their proceeding, SIRC was subject to sec. 48(2) of the Canadian Security Intelligence Act, which provided that, while persons subject to an investigation were entitled to a hearing, they were not entitled to “be present during, to have access to or to comment on the representations of any other person.” As a result, C and his counsel were excluded when detailed evidence was given by the RCMP as to C’s involvement in organized crime. While a summary of that evidence was later provided, it was without reference to the RCMP’s sources of information.

- Ultimately, SIRC reported to the Governor in Council (Cabinet) that C was indeed a person who would be involved in organized crime, and recommended that the Cabinet direct the Minister to issue a certificate under sec. 83(1) of the Act. This recommendation was accepted and, as a result, the Board was precluded from considering further any appeal by C that, having regard to all the circumstances, he should be allowed to remain in Canada.

- C then gave notice to the Board that he intended to raise certain constitutional questions and, with the agreement of the parties, the Board ultimately stated a number of constitutional questions to the Federal Court of Appeal under sec. 28(4) of the Federal Court Act.

- First, the court was asked whether sec. 27(1)(d)(ii) and sec. 32(2) of the Act infringed sec. 7, sec. 12 and sec. 15 of the Charter. Second, the court was asked whether sec. 82.1 and sec. 83 of the Act infringed the same provisions of the Charter. Third, the court was asked whether the certificate filed under sec. 83 in C’s case infringed his right under sec. 7 of the Charter. In each instance, the court was also asked whether, in the event of a Charter violation being found, it could be justified by reference to sec. 1.

- The Federal Court of Appeal held that sec. 27(1)(d)(ii) and sec. 32(2) of the Act did not infringe sec. 7, sec. 12 or sec. 15 of the Charter, and that sec. 82.1 and sec. 83 of the Act did not infringe sec. 12 or sec. 15 of the Charter. The question whether sec. 82.1 and sec. 83 contravened sec. 7 of the Charter was held not to be one that the Board could refer to the court, pursuant to sec. 28(4) of the Federal Court Act. However, the court held that reliance on the certificate would violate the accused’s right under sec. 7, and that violation was not justified by sec. 1.

- The Minister appealed to the Supreme Court, and C cross-appealed, attacked the general scheme of the legislation authorizing the deportation of permanent residents convicted of certain criminal offences. The summary of the judgment below deals solely with the issue of whether the proceedings before SIRC or the Review Committee comported with the principles of fundamental justice.

Judgment- Justice Sopinka wrote the judgment of the Supreme Court, where he stated the following:- The respondent submitted that his sec. 7 rights were violated as a result of the procedure

followed by the Review Committee.- I have already concluded that the respondent can assert no substantive right to an appeal on

compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided.

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- The question then becomes, does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice?

- I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.

- These proceedings took place within the framework of several legislative provisions and Review Committee Rules.

- Sec. 48(2) of the CSIS Act provides that no one is entitled as of right to be present during, to have access to, or to comment on, representations made to the Review Committee by any other person. Pursuant to sec. 39(1) of the Act, the Review Committee adopted the “Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function Under Paragraph 38(c) of the CSIS Act”.

- These rules made it is within the committee’s discretion, in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties, and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the representations made by the other party should be disclosed to that party.

- In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research), La Forest explained that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual.

- In a similar circumstance to the case at bar, Lord Denning in R v. Secretary of State for Home Department, ex parte Hosenball, emphasized the need for confidentially in national security cases.

- Additionally, on the general need to protect the confidentiality of police sources, the court in Ross. Kent Institution, held that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the parole board as long as he is informed of the substance of that information .

- In this case, the respondent was first provided with the “Statement of Circumstances” giving rise to the making of a report by the Solicitor General and the Minister of Employment and Immigration to the Security Intelligence Review Committee. This document set out the nature of the information received by the review committee from the Ministers.

- Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities, and a “Summary of Interpretation of Intercepted Private Communications”.

- Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented.

- In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.

- The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera.

- Having regard to the information that was disclosed to the respondent, the procedural opportunities that there available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate the principles of fundamental justice.

Case Analysis

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- Would it have been more appropriate to have dealt with the issue of access to relevant information in the context of a sec. 1 justification exercise, rather than as part of a balancing of interests’ calculation under sec. 7?

“Life, Liberty and Security of the Person”- To the extent that administrative processes have similar “liberty” dimensions to those typical of

the criminal law context, it is important to note that the courts have rejected arguments to resurrect a species of rights-privileges dichotomy as a basis for denying the incarcerated procedural entitlements under sec. 7.

- Cadieux v. Director of Mountain Institution o Judge Reed, in response to the argument that the revocation of an unescorted temporary

absence permit was not covered by sec. 7 because it was a matter of privilege not right, said the following:

“With respect to present Canadian law, the Supreme Court decision in Martineau clearly indicates that the distinction between ‘rights’ and ‘privileges’ is not one which should ground a difference between allowing and not allowing judicial review… It is true that sec. 7 specifically applies to the ‘right to life, liberty and security of the person’. But ‘right’ is a word used in two senses: it is used in a narrow sense, as distinct from ‘powers’, ‘privileges’, etc.; at other times it is used in a more generic sense as encompassing all those concepts. I take it as being used in the later sense in sec. 7.”

Wilson v. B.C. (Medical Services Commission)Factual Background- In the B.C. medical care plan, doctors bill the government for treatment given to patients. In

1983, the commission established a scheme for limiting the numbers of practicing doctors and restricting the geographic areas of their practices; the purposes of this scheme were to control the total costs of health services and to ensure the appropriate allocation of doctors throughout the province. Doctors were required to have a “practitioner number” in order to bill for their services, and there was agreement throughout that having a number was essential to practice. These numbers were assigned to current practitioners, and “newcomers” had to apply for them. The applications were made to the commission (which was one person), which was advised about need by local and regional committees.

- This scheme was challenged in 1983 in Re Mia. Judge McEachern in the B.C. Supreme Court (Superior Court) concluded that it was not authorized by the legislation about medical services, and he also said that it violated sec. 6 and sec. 7 of the Charter. About sec. 7, he said:

“There are some rights enjoyed by our people including the right to work or practice a profession that are so fundamental that they must be protected even if they include an economic element.”

- The government then enacted legislation under which regulations were passed implementing the previous scheme and, almost two years after Mia, the Charter challenge was made again and sec. 6, sec. 7 and sec. 15 were invoked.

- The plaintiffs were doctors whose personal circumstances presented different elements of the claim; for example, some sought to come from outside the province and had been denied “practitioner numbers”, while others had been granted numbers subject to geographic restrictions. Their claim failed at trial, and they appealed.

Judgment- The case was heard before the B.C. Court of Appeal. The court stated the following:- The question then arises whether “liberty” in sec. 7 is broad enough to encompass the

opportunity of a qualified and licensed doctor to practice medicine in B.C. without restraint

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as to place, time or purpose, even though there is an incidental economic component to the right be asserted.

- Common sense, our history and our daily experiences tell us that liberty is no unrestrained. Sec. 7 recognizes the validity of competing societal interests by providing that a person may be deprived of life, liberty and security in accordance with the principles of fundamental justice – note the approach that is taken by the court here – the question posed at the end of Chiarelli of whether the restriction of disclosure should have been part of the sec. 7 analysis, or whether it was more appropriate under sec. 1 – here the court is taking the former approach – this is consistent with Hogg’s theory of narrowing the scope of the Charter-right, but instituting a rigorous sec. 1 justification requirement – this makes more sense – if sec. 7 was interpreted so broadly, as the question above suggests, then any state-intrusion into a person’s autonomy would constitute a breach of sec. 7, requiring justification under sec. 1.

- Notwithstanding sec. 7’s recognition of unrestrained liberty, “liberty” within the meaning of sec. 7 is not confined to mere freedom from bodily restraint. It does no, however, extend to protect property or pure economic rights.

Is this a Case Involving Pure Economic Rights?- The trial judge appears to have concluded that the appellants, in asserting a right to pursue their

profession, were asserting economic rights generally, or the right to work in particular.- The trial judge has characterized the issue as “right to work” (a purely economic question),

when he should have directed his attention to a more important aspect of liberty, the right to pursue a livelihood or profession (a matter concerning one’s dignity and sense of self-worth)

- The appellants’ case is that the government has deprived them of the opportunity to pursue their profession, or has restricted their mobility in such a way as to deprive them of “liberty” in the broad sense in which that freedom is to be interpreted under the Charter.

- The issue then is not payment or no payment for medical services- In considering the economic interests involved, we must not overlook the fact that the plan

does not guarantee an income to doctors. It ensures that a percentage of the bills submitted by physicians for medical services performed for insured patients will be paid.

- The economic component of the freedom which the doctors seek to assert is the right to be paid by or on behalf of the patient for such services as may be rendered. The problem with the impugned legislation is that the opportunity to pursue their profession, and the freedom of mobility in practice, can be denied by refusing to allow patients the right to have the doctor reimbursed under the plan. The rights being asserted in this case are personal rights affecting the freedom and quality of life of individual doctors.

The Economic Rights Cases- The court discussed a group of cases in which the liberty the plaintiff was alleged to have been

deprived was a purely economic interest or freedom. A representative case in this group was Smith Kline & French Laboratories Ltd. v. A.G. of Canada.

- At issue in Smith Kline and & French, was legislation which granted patentees exclusivity for 17 years (medical patents). Justice Strayer, of the Federal Court of Appeal, was of the view that the concepts of life, liberty and security of the person have to do with the bodily well-being of a natural person. He said:

“As such, they are not apt to describe any rights of a corporation nor are they apt to describe purely economic interests of a natural person.”

- We do no quarrel with the conclusion reached in those cases involving corporation business interests and pure economic rights, but we do not think that they detract from the conclusion reached in Mia, that denying doctors the opportunity to pursue their profession falls within the rubric of “liberty” as that word is used in sec. 7.

The Right to Work Cases

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- To support his conclusion that sec. 7 did not extend to the rights being asserted by the appellants, the trial judge equated this case with those in which it was said that there is no common law right to work.

- In our opinion, these cases ought not to be regarded as cases involving the regulation of business. They established the principle that “liberty” in sec. 7 is not synonymous with unconstrained freedom and that sec. 7 does not extend “to an unconstrained right to transact business whenever one wishes”.

- In our view, the phrase “right to work” was used in these cases to describe the right being claimed in those cases – the right not to be regulated. It had little to do with the important personal right of otherwise qualified professional people to have an opportunity to attempt to build a practice in their province and in their chosen communities. One may be deprived of such a right in accordance with the principles of fundamental justice; however, the arbitrary nature of the deprivation effected by the Medical Services Act and Regulations, excludes resort by the Crown to this exception.

- Finally, such a right may be overridden by important societal concerns which satisfy the requirements of sec. 1 of the Charter. In this case, government does not assert or rely on such concerns.

- We are not persuaded that the foregoing authorities relied upon by the trial judge support the conclusion that the appellants have not been deprived of the “liberty” to pursue their chosen profession.

- Furthermore, we are not persuaded that the appellants are pursuing a mere economic interest in the nature of an income guaranteed by the government.

Mobility: A Component of Liberty- As McEachern demonstrated in Mia, history shows that restrictions on movement for the

purpose of employment were, short of imprisonment, the most severe deprivation of freedom and liberty.

- In our view, mobility is a fundamental right, and the right to “liberty” bears directly on the right to free movement.

- It may be argued that if movement within the province is a protected freedom that such right must be found in sec. 6. We do not agree. Sec. 6 may or may not be restrictive to guaranteeing the right of free movement from province to province. Whatever the answer to that question may is, does not detract from the constitutional and fundamental importance of mobility as it affects the life, liberty and security of the person: “Liberty” must touch the right of free movement.

- We are of the opinion, therefore, that the geographic restrictions imposed by government on the right to practice medicine in B.C. constitute a violation of the right to liberty protected by sec. 7, unless that right has been removed in accordance with the principles of fundamental justice, or unless the deprivation can be demonstrably justified under sec. 1 of the Charter .

The Principles of Fundamental Justice- The appellants submit that the legislation, and the regulatory scheme which operates under it, are

unfair in both procedure and substance.- In our opinion, the scheme offends the principles of fundamental justice. It is based on the

application of vague and uncertain criteria, which combined with areas of uncontrolled discretion, leaves substantial scope for arbitrary conduct.

- The court also concluded that the discriminations among doctors, new and established and in and out of the province, denied fundamental justice on substantive grounds.

Case Analysis- The Supreme Court denied leave to appeal in this case.- Is the Court of Appeal ruling that the B.C. legislature could not restrict numbers practicing

medicine in the province either generally or in certain geographic areas, or is it holding that this

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particular way of doing it was constitutional impermissible – I suggest the latter option – the court specifically pointed out that method employed by the province in assigning doctors to certain areas were inherently arbitrary – a more detailed system, perhaps one where the commission had actual knowledge of the need for doctors in certain areas, would probably pass constitutional muster – what is problematic to me is in not considering the notion that the practice of medicine is not a privilege, by rejecting the right-privilege dichotomy, the court is effectively holding that a license holder has an unconstrained right to practice, subject to the reasonable restrictions on liberty envisaged by sec. 7, and to reasonable limitations envisaged by sec. 1 – in applying that theory to, say, telecommunications companies, which are regulated by the CRTC, it contradicts the practice in that industry where licenses are granted based on the need of the market (cell-phone companies were for years restricted to the demand of the Canadian market), as well as restrictions on those companies, which could include geographical restrictions, as a part of their license. For example, a TV station in Toronto does not have a license to broadcast in Ottawa – in applying this to the case at bar, the practice of medicine in B.C. by those who are not already licensed there would mean that conditions could be placed on their license – additionally, if one espouses the licensing argument advanced criminal law for the imposition of strict and absolute liability offences on regulated industries, it is implicit in that argument that those who engage in a regulated field should be subject to regulations – therefore, the better view is that geographic restrictions on the practice of doctors would be upheld if the legislation was more thorough in how those doctors were allocated to certain regions, especially by implementing a system where regional demand is reported to and known by a central appointing commission.

- Consider whether Wilson can stand in the face of the following extract from the concurring judgment of Lamer in Prostitution Reference:

Prostitution Reference“In my view, it is not clear that the statement by the Chief Justice in Reference Re Public Service Employment Relations Act, quoted at length by the B.C. Court of Appeal in Wilson, is support for the view that sec. 7 of the Charter protects a ‘right to pursue a livelihood or profession’ as distinct from a ‘right to work’ which is not protected. In the Reference case, the issue was not whether there existed an independent right to work or pursue a profession, but rather whether the freedom of association protected by sec. 2(d) of the Charter included the freedom to form and join associations and the freedom to bargain collectively and to strike. It was the view of the Chief Justice that the right to bargain collectively and to strike was essential to the capacity of individuals to ensure equitable and humane working conditions. It was in that context that the Chief Justice spoke of the importance of work to a person’s sense of dignity and self-worth… Further, it is my view that work is not the only activity which contributes to a person’s self-worth or emotional well-being. If liberty or security of the person under sec. 7 were defined in terms of attributes such as dignity, self-worth and emotional well-being, it seems that liberty under sec. 7 would be all-inclusive. In such a state of affairs, there would be serious reason to question the independent existence in the Charter of other rights and freedoms, such as freedom of religion and conscience or freedom of expression… I, therefore, reject the application of the American line of cases that suggest that liberty under the Fourteenth Amendment includes liberty of contract… The American provision speaks specifically of a protection of property interests while our framers did not choose to similarly protect property rights… The state in certain circumstances has created bodies, such as parole boards and mental health review tribunals, which assume control over decisions affecting an individual’s liberty and security of the person… There are also situations in which the State restricts other privileges or, broadly termed, ‘liberties’ in the guise of regulation, but uses punitive measures in cases of non-compliance… In all these cases, in my view, the liberty and security of the person interests protected by sec. 7 would be restricted, and one would then have to determine if the restriction was in accordance with the principles of fundamental justice. By contrast, as I have stated, there is the realm of

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general public policy dealing with broader social, political and all issues which are much better resolved in the political or legislative forum and not in the courts… Put shortly, I am of the view that sec. 7 is implicated when the State, by resorting to the justice system, restricts an individual’s physical liberty in any circumstances. Sec. 7 is also implicated when the State restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity. Finally, sec. 7 is implicated when the State, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance . ”

- It should be noted, however, that the other majority judges in this case did not feel it necessary for the purposes of disposing of the appeal to engage in an analysis of these issues. As a consequence, Lamer’s statements are technically no more than dicta , though highly influential dicta, as their subsequent use in more recent cases exemplifies.

- Indeed, Walker v. P.E.I., in denying the protection of sec. 7 to certified general accountants, may be read as settling the issue, although the judgment of Lamer for the Supreme Court is both short and cryptic.

- In terms of the reach of sec. 7 for the purposes of administrative law, probably the most critical question is whether involuntary subjection to the administrative process in general generates a “life, liberty and security of the person” claim.

New Brunswick (Minister of Health and Community Service) v. G.(J.)- The Supreme Court held that at least some drastic administrative proceedings may affect an

individual’s security of the person.- Here, the minister had sought to extend a judicial order granting the Minister custody of the

appellant’s three children for an additional six months- Did fundamental justice require that she be provided with legal aid? Before that issue could be

addressed, it had to be determined that the custody affected her security of the person.- Lamer, speaking for a unanimous court on this issue, concluded that given the nature of the

custody proceedings and their impact, she had crossed the threshold. He stated:“… The separation of parent and child contemplated by the Minister’s application would unquestionably have profound effects on both parent and child… This court has held on a number of occasions that the right to security of the person protects both physical and psychological integrity of the individual – R v. Morgentaler… For a restriction of security of the person to be made out, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. I have little doubt that state removal of a child from parental custody constitutes a serious interference with the psychological integrity of the parent… Besides the obvious distress arising from the loss of companionship of the child, the parent is often stigmatized as ‘unfit’ when relieved of custody. As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct.”

Blencoe v. B.C. (Human Rights Commission)Factual Background

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- In March 1995, while serving as a Minister in the government of B.C., the respondent was accused by one of his assistants of sexual harassment. A month later, the Premier removed the respondent from Cabinet and dismissed him from the NDP caucus.

- In July and August 1995, two complaints of discriminatory conduct in the form of sexual harassment were filed with the B.C. Council of Human Rights (later the B.C. Human Rights Commission) against the respondent by two other women, W and S. The complaints were centered around various incidents of sexual harassment alleged to have occurred between March 1993 and March 1995. The respondent was informed of the first complaint in July 1995, and of the second in September 1995. After the Commission’s investigation, hearings were scheduled before the B.C. Human Rights Tribunal in March 1998, over 30 months after the initial complaints were filed.

- Following the allegations against the respondent, media attention was intense. The respondent suffered from severe depression. He did not stand for re-election in 1996. Considering himself “unemployable” in B.C. due to the outstanding human rights complaints against him, the respondent commenced judicial review proceedings in November 1997 to have the complaints stayed. He claimed that the Commission had lost jurisdiction due to unreasonable delay in processing the complaints. The respondent alleged that the unreasonable delay caused serious prejudice to him and his family that amounted to an abuse of process and a denial of natural justice.

- His petition was dismissed by the Supreme Court of B.C. (Superior Court). However, a majority of the B.C. Court of Appeal allowed the respondent’s appeal and directed that the human rights proceedings against him be stayed. The majority found that the respondent had been deprived of his right under sec. 7 of the Charter to security of the person in a manner that was not in accordance with the principles of fundamental justice.

Judgment- The majority judgment of the Supreme Court was written by Justice Bastarache, with McLachlin,

L’Heureux-Dube, Gonthier and Major concurring. He stated the following:(5) Issues

- The following are the central issues to be determined for the disposition of this appeal: o 1 Does the Charter apply to the actions of the B.C. Human Rights Commission?o 2 Have the respondent’s sec. 7 rights to liberty and security of the person been

violated by state-caused delay in the human rights proceedings?o 3 If the respondent’s sec. 7 rights were not engaged, or if the state’s actions were in

accordance with the principles of fundamental justice, was the respondent entitled to a remedy pursuant to administrative law principles where the delay did not interfere with the right to a fair hearing?

o 4 If the respondent is entitled to a Charter or administrative law remedy, was the stay of proceedings an appropriate remedy in the circumstances of this case?

(6) Analysis(A)  Does the Charter Apply to the Actions of the B.C. Human Rights Commission?

- One threshold issue which has been raised in this case is whether the Commission and the Tribunal are agents of government pursuant to sec. 32 of the Charter. 

- The following three factors have been put forth to support the argument that these bodies are not bound by the Charter:  (1) the organizations in question are required to be independent of government; (2) the challenge in this case is not to any statutory provisions that might be said to be within the legislative sphere; and (3) the organizations in question must act judicially since their functions are analogous to those exercised by courts of law.

- In my opinion, these claims are misguided with respect to their approach to the application of the Charter.

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- The mere fact that a body is independent of government is not determinative of the   Charter ’s application, nor is the fact that a statutory provision is not impugned. Bodies exercising statutory authority are bound by the   Charter   even though they may be independent of government – Eldridge v. A.G. of B.C.

- Additionally, there is no doubt that the Charter also applies to action taken under statutory authority. As Professor Hogg states:

“Action taken under statutory authority is valid only if it is within the scope of that authority.  Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter.”

- There is no doubt that the Commission is created by statute and that all of its actions are taken pursuant to statutory authority. One distinctive feature of actions taken under statutory authority is that they involve a power of compulsion not possessed by private individuals. The Human Rights Code grants various powers to the Commission to both investigate complaints and decide how to deal with such complaints. In Eldridge, a unanimous Court concluded that a hospital was bound by the Charter since it was implementing a specific government policy or program. The Commission in this case is both implementing a specific government program and exercising powers of statutory compulsion.

- With respect to the claim that the Commission exercises judicial functions and is thereby not subject to the Charter, the decision of this Court in Slaight Communications Inc. v. Davidson is conclusive. Lamer J held that the Charter applies to the orders of a statutorily appointed labour arbitrator. The labour arbitrator (in Slaight) and the Commission (in the case at bar) each exercise governmental powers conferred upon them by a legislative body.

- It is the administration of a governmental program that calls for Charter scrutiny.  Once a complaint is brought before the Commission, the subsequent administrative proceedings must comply with the   Charter .

(B) Have the Respondent’s Section 7 Rights to Liberty and Security of the Person Been Violated by State-caused Delay in Human Rights Proceedings?

(b) Applicability of Sec. 7 outside the Criminal Context –- There is no longer any doubt that sec. 7 of the Charter is not confined to the penal context. This

was most recently affirmed by this court in New Brunswick (Minister of Health and Community Services) v. G.   (J.) . Sec. 7 can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration”.

- The question to be addressed, however, is not whether delays in human rights proceedings can engage sec. 7 of the Charter, but rather, whether the respondent’s sec. 7 rights were actually engaged by delays in the circumstances of this case. Various parties in this case seem to have conflated the delay issue with the threshold sec. 7 issue.  Whether the respondent’s sec. 7 rights to life, liberty and security of the person are engaged is a separate issue from whether the delay itself was unreasonable.

(d)  Liberty Interest –- The liberty interest protected by sec. 7 of the Charter is no longer restricted to mere freedom

from physical restraint.  Members of this court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices.

- In Godbout v. Longueuil (City), La Forest J reiterated his position that the right to liberty in sec. 7 protects the individual’s right to make inherently private choices and that choosing where to establish one’s home is one such inherently personal choice. He said:

“… sec. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference… I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs… Rather, as I see it, the autonomy protected by the sec. 7 right to liberty

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encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence . ”

- In the circumstances of this case, the state has not prevented the respondent from making any “fundamental personal choices”.  The interests sought to be protected in this case do not in my opinion fall within the “liberty” interest protected by sec. 7.

(e)  Security of the Person –- The principle that the right to security of the person encompasses serious state-imposed

psychological stress has recently been reiterated by this Court in G.   (J.) . However, Lamer also set boundaries in G.   (J.)  for cases where one’s psychological integrity is infringed upon.

- Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress” (Dickson C.J. in Morgentaler). The words “serious state-imposed psychological stress” delineates two requirements that must be met in order for security of the person to be triggered.  First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state.  Second, the psychological prejudice must be serious.

(1) Was the Harm to Mr. Blencoe the Result of State-Caused Delay in* the Human Rights Process?- While it is incontrovertible that the respondent has suffered serious prejudice in connection with

the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for sec. 7 to be triggered.

- The appellants assert that the largest measure of prejudice to Mr. Blencoe resulted not from any delay but from the publicity surrounding the events, especially his dismissal from Cabinet and later from the NDP caucus.

- I also have doubts whether, on the facts, the psychological harm suffered by the respondent can be seen as the result of state-caused delay in the human rights process.

- At this juncture, Bastarache detailed the impact of the complaints and proceedings on Blencoe’s life and that of his family, but noted that these were mostly consequences that had occurred before there was any delay, indeed in number of instances before the commencement of the proceedings. He also suggested that some of the fallout during the period of the delay was not attributable to the delay but to collateral causes. He also suggested that the delay had not exacerbated the prejudice suffered by Blencoe or at least in a sufficiently serious manner.

- Because I find in the next section that the state has not directly intruded into a private and intimate sphere of the respondent’s life, I assume without deciding that there is a sufficient nexus between the state-caused delay and the prejudice to Mr. Blencoe.

(2) Quality of the Interference –- McEachern concluded that liberty and security of the person under sec. 7 protect both the privacy

and dignity of individuals against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by Mr. Blencoe.

- The question which arises is whether the rights of   “liberty and security of the person” protected by sec. 7 of the   Charter   include a generalized right to dignity , or more specifically, a right to be free from stigma associated with a human rights complaint?  In my opinion, they do NOT.

- The “right to dignity” relied upon by McEachern rests on several ideas.  First, it is based on previous statements by this court as to the importance and value of dignity.  Second, it is based on the recognition in cases such as Morgentaler and O’Connor that state-induced psychological stress can infringe sec. 7.  Third, McEachern imports the notion of “stigma” as developed under sec. 11(b) of the Charter in the criminal law context.

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1.  Dignity- Respect for the inherent dignity of persons is clearly an essential value in our free and democratic

society which must guide the courts in interpreting the Charter.  This does not mean, however, that dignity is elevated to a free-standing constitutional right protected by sec. 7 of the Charter.

- In cases such as Morgentaler, Rodriguez and B.   (R.) , dignity was linked to personal autonomy over one’s body or interference with fundamental personal choices.  Indeed, dignity is often involved where the ability to make fundamental choices is at stake.

- In my view, the notion of “dignity” in the decisions of this Court is better understood not as an autonomous   Charter   right, but rather, as an underlying value .

- According to the respondent, the human dignity of a person is closely tied to a person’s reputation and privacy interests.

- While this Court found in Hill v. Church of Scientology of Toronto, that reputation was a concept underlying   Charter   rights; it too is NOT an independent   Charter   right in and of itself. Respect for a person’s reputation, like respect for dignity of the person, is a value that underlies the Charter.  These two values do not support the respondent’s proposition that protection of reputation or freedom from the stigma associated with human rights complaints are independent constitutional sec. 7 rights.  Moreover, the above passages from Hill regarding the protection of reputation were made in the context of a defamation case.

2. State Interference with Psychological Integrity – - In order for security of the person to be triggered in this case, the impugned state action must

have had a serious and profound effect on the respondent’s psychological integrity. There must be state interference with an individual interest of fundamental importance. Lamer stated in G.   (J.) :

“It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person.”

- He continued, saying:“Not every state action which interferes with the parent-child relationship will restrict a parent’s right to security of the person. For example, a parent’s security of the person is not restricted when his or her child is sentenced to jail or conscripted into the army. Nor is it restricted when the child is negligently shot and killed by a police officer…the quality of the “injury” to the parent is distinguishable from that in the present case. In the aforementioned examples… the state is not directly interfering with the psychological integrity of the parent.”

- The quality of the injury must therefore be assessed .- The alleged right to be free from stigma associated with a human rights complaint does not fall

within this narrow sphere. The state has not interfered with the respondent’s right to make decisions that affect his fundamental being. The prejudice to the respondent in this case is essentially confined to his personal hardship. He is not “employable” as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically.

3. Importing the Notion of “Stigma” from the Criminal Law Context –- In Mills, Lamer J., in dissent, found that the combination of loss of privacy, stigma, and

disruption of family life engaged an individual’s security of the person in the context of sec. 11(b) of the Charter, stating that:

“…security of the person is not restricted to physical integrity; rather, it encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation”… These include stigmatization of the accused, loss of privacy,

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stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.”

- However, it must be emphasized that this statement was made in the context of sec. 11(b) of the Charter which provides that a person charged with an offence has the right “to be tried within a reasonable time”. The qualifier to this right is that it applies to individuals who have been “charged with an offence”. The sec. 11( b ) right, therefore, has no application in civil or administrative proceedings.

- There is no analogous provision to sec. 11(b) which applies to administrative proceedings, nor is there a constitutional right outside the criminal context to be “tried” within a reasonable time.

- As stated by Dickson C.J. in Canada (Human Rights Commission) v. Taylor:“It is essential, however, to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.”

- I do not doubt that parties in human rights sex discrimination proceedings experience some level of stress and disruption of their lives as a consequence of allegations of complainants. However, if the purpose of the impugned proceedings is to provide a vehicle or act as an arbiter for redressing private rights, some amount of stress and stigma attached to the proceedings must be accepted. Moreover, the Commission’s investigations are not public, the respondent is asked to provide his version of events, and communication goes back and forth. While the respondent may be vilified by the press, there is no “stigmatizing” state pronouncement as to his “fitness” that would carry with it serious consequences such as those in G.   (J.) .

(f) Conclusion on Liberty and Security of the Person – - To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of

his right to liberty or security of the person.  The framers of the   Charter chose to employ the words, “life, liberty and security of the person”, thus limiting sec. 7 rights to these three interests.   While notions of dignity and reputation underlie many   Charter rights, they are not stand-alone rights that trigger sec. 7 in and of themselves.

- It may well be that sec. 7 rights can be engaged by a human rights process in a particular case.  I leave open the possibility that in other circumstances, delays in the human rights process may violate sec. 7 of the Charter.(C) Was the Respondent Entitled to a Remedy Pursuant to Administrative Law Principles?

- The question to be addressed in this section is whether the delay in this case could amount to a denial of natural justice even where the respondent’s ability to have a fair hearing has not been compromised.

(a) Prejudice to the Fairness of the Hearing –- Delay, without more, will not warrant a stay of proceedings as an abuse of process at

common law. In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

- Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy.

- The respondent alleges that two witnesses had died and that the memories of many witnesses might be impaired by the passage of time. The first instance judge referred to these claims as “vague assertions that fall far short of establishing an inability to prove facts necessary to respond

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to the complaints. The respondent also argued at first instance that he was not provided with a copy of Ms. Schell’s timeliness submissions for a two-month period and that he had not received proper disclosure.

- With respect to the alleged failure to disclose information to the respondent, this is not, in my opinion, a case in which the unfairness is so obvious that there would be a denial of natural justice, or in which there was an abuse of process such that it would be inappropriate to put the respondent through hearings before the Tribunal.

- Therefore the delay in this case is not such that it would necessarily result in a hearing that lacks the essential elements of fairness. Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing.

- The question which must be addressed is, therefore, whether the delay in this case could amount to a denial of natural justice or an abuse of process even where the respondent has not been prejudiced in an evidentiary sense.

(b) Other Forms of Prejudice –- The question is whether one can look to the psychological and sociological harm caused by

the delay rather than merely to the procedural or legal effect, namely, whether the ability to make full answer and defense has been compromised, to determine whether there has been a denial of natural justice.

- In the past, courts and tribunals have referred to other types of prejudice than trial fairness, holding that, where a commission or tribunal has abused its process to the detriment of an individual, a court has the discretion to grant a remedy.

- I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.

- Thus, the difficult question before us is: what is an “unacceptable delay” that amounts to an abuse of process?

(c) Abuse of Process – Principles –- Abuse of process is a common law principle invoked principally to stay proceedings where

to allow them to continue would be oppressive.- There is, however, no support for the notion that a stay is the only remedy available in

administrative law proceedings.  A stay accords very little importance to the interest of implementing the Human Rights Code and giving effect to the complainants’ rights to have their cases heard.

- Where a respondent asks for a stay, he or she will have to bear a heavy burden . I wish to underline that my inquiry here is directed only at the determination of the existence of an abuse of process on the facts of this case.

- In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”.

(d) Was the Delay Unacceptable? –- There is no abuse of process by delay per se.  The respondent must demonstrate that the delay

was unacceptable to the point of being so oppressive as to taint the proceedings.  While I am prepared to accept that the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, I am NOT convinced that the delay in this case was “inordinate”.

- The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. The

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determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.

- With respect to the actual length of the delay in this case and whether it had been “unacceptable”, the first instance judge noted that there was no extended period without any activity in the processing of the complaints from receipt to referral, except for an inexplicable five-month period of inaction. However, during those five months, the Council referred to a period of “adjustment” where investigative resources were being transferred from the Employment Standards Branch to the Council and that from then on the Council was to conduct its own investigations. The Council stated that it appreciated the parties’ patience in waiting to be notified as to when the investigation would begin.

- With respect to calculating the delay, the first instance judge found that the only time that could be considered for the delay was between the filing of the complaint to the end of the investigation process. Following the judge’s reasoning, the delay would be computed until July 1997, thus reducing the delay from 32 months to 24 months.

- During those 24 months, the Commission also had to deal with a challenge by the respondent as to the lateness of the complaints and his accusation that the complaints were in bad faith. As a result, the process was delayed for some eight months. The Commission should not be held responsible for contributing to this part of the delay.

- The principles of natural justice also require that both sides be given an opportunity to participate in reviewing documents at various stages in the process and to review the investigation report.  The parties therefore have a chance to make submissions before a referral is made to the Tribunal.  These steps in the process take time.

- The respondent argues that the Commission should have been sensitive to his particular needs and to have consequently expedited his complaints on a priority basis.  However, as found by the trial judge, there is, “little if anything in the record to suggest that Mr. Blencoe raised with the Commission any of the hardship he has suffered or that he sought to be afforded any priority on that basis.

- Moreover, in assessing what the appropriate amount of time that a case like this should be disposed of, the delay in the case at bar should be compared to that in analogous cases.  In Nisbett, the sexual harassment complaint had been outstanding for approximately three years. In Canadian Airlines, there was a 50-month delay between the filing of the complaint and the appointment of an investigator.

- A review of the facts in this case demonstrates that, unlike the aforementioned cases where there was complete inactivity for extremely lengthy periods, the communication between the parties in the case at bar was ongoing.

- In my opinion, the five-month inexplicable delay or even the 24-month period from the filing of the complaints to the referral to the Tribunal was not so inordinate or inexcusable as to amount to an abuse of process.

- As noted in the discussion pertaining to the application of sec. 7 of the Charter, I am also concerned with the causal connection in this case. There must be more than merely a lengthy delay for an abuse of process; the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected. While Mr. Blencoe and his family have suffered obvious prejudice since the various sexual harassment allegations against him were made public, as explained above, I am not convinced that such prejudice can be said to result directly from the delay in the human rights proceedings.

(7) Conclusion- To summarize, it cannot be said that the respondent’s sec. 7 rights were violated or that the

conduct of the Commission amounted to an abuse of process.

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- Nevertheless, I am very concerned with the lack of efficiency of the Commission and its lack of commitment to deal more expeditiously with complaints. Lack of resources cannot explain every delay in giving information, appointing inquiry officers, filing reports, etc.; nor can it justify inordinate delay where it is found to exist. In R. v. Morin, this Court stated that in the context of sec. 11(b) of the Charter, the government “has a constitutional obligation to commit sufficient resources to prevent unreasonable delay”. The demands of natural justice are apposite.

- I would allow the appeal.  The Court of Appeal decision is set aside and the Tribunal should proceed with the hearing of the complaints on their merits.

Deference to Procedural Rulings –- Since the late 1970s, one of the key principles of Canadian judicial review law has been that of

deference to the judgment of statutory authorities (particularly tribunals) on matters within their expected area of competence or expertise.

- Canadian courts refer frequently to the following standard of review enunciated by Justice Dickson in CUPE, Local 963 v. New Brunswick Liquor Corporation:

“Was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?”

- There is clearly something to the assertion that the design of appropriate procedures is situation-sensitive and that, in many instances, the agency, with a fuller awareness of the nature of the issues that are likely to arise , of the problems of getting at the truth in the area it is regulating, and of its own personnel and budgetary limitations may have a far better appreciation than the courts of what represents an appropriate compromise among the competing claims of fairness, efficiency, effectiveness, and feasibility.

- Despite this, the traditional position of the Supreme Court accepted the pre-eminence of the regular courts on procedural questions and relegated deference to procedural rulings to an apparently limited domain. Moreover, when Charter rights are at stake, there seemed to be no basis for any degree of respect for tribunal expertise on procedural questions.

- Bibeault v. McCaffrey o A union made an application to be certified, and a commissioner was assigned to

determine the appropriate bargaining unit under sec. 32 of the Labour Codeo The Code also contained a privative clause.o Some employees wished to participate in the hearing and the commissioner refusedo They sought review and failed. Lamer stated the following:

“As this is a case of evocation and both the commissioners and the Labour Court are protected by a privative clause, it was unnecessary, in order to decide whether they exceeded their jurisdiction and whether to issue a writ, to find that their interpretation of sec. 32 was the correct one… It would have been sufficient to conclude that this interpretation is not patently unreasonable… The commissioners, as a consequence of the privative clause, are immune from review by the Superior Courts unless it is patently unreasonable.”

- This raised the issue whether such a deferential standard applies only where the agency is engaged in the interpretation of a statutory provision respecting procedures.

- CAIMAW v. Paccar of Canada Ltd. o In the course of deciding on the extent of the Labour Relations Board’s participatory

rights in a judicial review application in which its substantive decision was being challenged for patent unreasonableness, La Forest made the following statement:

“There is, however, no conflict if it is recognized that the right to be heard was, in that case, a statutory right, and the issue for decision by the Labour

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Commissioners was as to the scope of that right. It is not in every case in which a denial of natural justice will flow from a patently unreasonable interpretation of a statute. In the latter case, however, the administrative tribunal will be able to make certain limited submissions.”

- While La Forest’s comments were dicta, they do suggest that, in certain cases, patent unreasonableness may be founded on grounds other than the agency’s interpretation of a statutorily imposed procedural process. Additionally, his dicta implicitly begs the question as to why deference should be confined to cases where the procedural entitlement is a matter of “statutory right” and where the tribunal has to interpret the scope of that statutory right. In terms of traditional theory, the whole basis for the court implying procedural protections in the case of a silent statute is, after all, one of implied statutory right.

- More generally, however, there is the issue whether the legislative conferral of discretion explanation of Bibeault can also be carried over to cases of legislative silence. Can that not also be interpreted as a legislative instruction to the decision maker to develop its own procedural standards as for the making of decisions?

- Baker v. Canada (Minister of Citizenship and Immigration ) o This case suggests far greater scope for judicial deference to statutory authority

developed procedural rules as well as specific procedural rulings. On that issue, the court stated the following:“…The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has expertise in determining what procedures are appropriate in the circumstances… While this, of course, is not determinative, important weight must be given to the choice of procedures made by the tribunal itself and its institutional constraints.”

- In the above statement, it is noteworthy that the need for deference is expressed in terms of two situations: (1) where there has been an express conferral of discretion, and (2) where the decision maker has expertise.

- Indeed, it is also of great significance that in Suresh v. Canada (Minister of Citizenship and Immigration), the court states that this conclusion also bears upon the delineation of what constitute the principles of fundamental justice when a sec. 7 right is at stake. In other words, tribunal choice and expertise are to receive some degree of deference even when Charter procedural claims are being adjudicated – this is contrary to the general principle advocated for years by the Supreme Court that procedural rules will receive little to no deference by the courts when Charter rights are at stake.

- In recent years, the general policy of the courts has been this: to the extent that the procedure followed is the result of a rulemaking exercise in which affected constituencies (Ex. the affected individual) have participated or the product of a process in which the procedural question has been argued and specifically decided upon by the tribunal by reference to the competing demands of fairness and the operating exigencies of the tribunal, there is a strong argument that deference has been earned.

- Canada (Director of Investigation and Research, Competition Act) v. D & B Companies of Canada Ltd

o Justice Strayer, delivering the judgment of the Federal Court of Appeal, made the following statement in the context of an appeal from a Competition Tribunal ruling that certain documents were exempt from discovery in proceedings before the tribunal on the basis of public interest privilege:

“…a certain curial deference is due to tribunals even on statutory appeals when the issue in question, whether factual or legal, is within the particular

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expertise of the tribunal. The establishment and definition of a class of documents privileged from disclosure in discovery proceedings involves in these cases a balancing of two public interests: that of full disclosure for the best administration of justice, and that of protection of sources which are necessary for administration of the law. This balancing must be done by the tribunal within the particular context of a proceeding under the Competition Act, and its assessment of the relative public interest at stake must depend in part on its special expertise in the problems of protecting competition in the market place. A court should not lightly substitute its own views of the proper balance in these circumstances.”

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Introduction –- Arguments about the threshold can scarcely avoid being influenced by the details of the

procedural entitlements that the court perceives are being asserted as exemplified most graphically by the judgment of the Supreme Court in Inuit Tapirisat.

- As the threshold for the assertion of procedural claims has been lowered, the issues of procedural content has become that much more prominent and perhaps controversial.

- Recollect that in Singh v. Canada (Minister of Employment and Immigration, Justice Wilson dismissed summarily the government’s attempt to justify the denial of fundamental justice by reference to sec. 1 of the Charter. Not only was the evidence presented in that case totally inadequate, but she also doubted whether it was appropriate to defend derogations from sec. 7 rights by means of cost-benefit-analysis.

- More generally, there is the issue of the extent to which the courts are or should be willing to diminish the content of fundamental justice based on countervailing considerations. This gives rise to the further question of what are legitimate countervailing considerations and where should they be considered: in the context of teasing out the content of “fundamental justice”, or as the basis for a sec. 1 justification of what is otherwise a violation of the principles of fundamental justice?

Suresh v. Canada (Minister of Citizenship and Immigration)Factual Background- Suresh was an applicant for landed immigration status. The Minister issued a certificate under

sec. 53(1)(b) of the Immigration Act to the effect that Suresh was a danger to the security of Canada.

- While Suresh had an opportunity to make written submissions and file material with the Minister, he did not have a copy of the immigration officer’s report, on which basis the certificate was issued and, as a consequence, was not able to respond to it orally or in writing. That report was itself based on material emanating from CSIS.

Judgment(3) Are the Procedures for Deportation set out in the Immigration Act Constitutional Valid?

- This appeal requires us to determine the procedural protections to which an individual is entitled under sec. 7 of the Charter .

- In elaborating what is required by sec. 7, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations.

- The principles of fundamental justice of which sec. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, “The common law rules of procedural fairness are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as sec. 7”.

- We, therefore, find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of sec. 7.

- The court here sets out the five Baker factors.o 1 The nature of the decision – asks whether the decision is more for the purpose of

resolving dispute, protecting individual rights or some other judicial purpose rather than a decision that balances many interests and primarily considers policy

o 2 The importance of the interest at stake in the decision relative to other interests.

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o 3 The statutory scheme under which the decision is made – focuses on whether the decision is final and conclusive or if whether it is preliminary or if there is a right of appeal.

o 4 The legitimate expectations   of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection.

o 5 The procedural choices available to the ADM – ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate.

- While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. We, therefore, conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards.

- The nature of the statutory scheme suggests the need for strong procedural safeguards. While the procedures set up under sec. 40.1 are extensive and aim to ensure that certificates under that section are issued fairly and allow for meaningful participation, there is a disturbing lack of parity between these protections and the lack of protections under sec. 53(1)(b). In the latter section, there is no provision for a hearing, no requirement of written or oral reasons, and no right of appeal – no procedures at all, in fact. As L’Heureux-Dube stated in Baker, “greater procedural protections…will be required when no appeal procedure is provided within the statute.”

- The third factor requires us to consider the importance of the right affected. The appellant’s interest in remaining in Canada is highly significant because of the risk of torture he may face on return to Sri Lanka. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under sec. 7. It follows that this factor militates in favour of heightened procedural protections under sec. 53(1)(b). Additionally, Article 3 of the CAT explicitly prohibits the deportation of persons to states where there are “substantial grounds” for believing that the person would be “in danger of being subjected to torture”. Given Canada’s commitment to the CAT, we find that the appellant had a right to procedural safeguards, at the sec. 53(1)(b) stage of the proceeding.

- The final factor we consider is the choice of procedures made by the agency. In this case, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister, since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice how to best make it.

- Weighing these factors together with all the circumstance, we are of the opinion that the procedural protections required by sec. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial review process.

- Accordingly, we find that a person facing deportation to torture under sec. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, this means that the material on which the Minister is basing her decision must be provided to the individual.

- Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the materials the Minister based much of her decision on, Suresh and his counsel had no knowledge of which factors they specifically needed to address.

- The refugee must also be given an opportunity to challenge the information of the Minister where issues are to its validity arise. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity

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to present evidence and make submissions as to the value of such assurances. It may be useful to comment further on assurances. We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past.

- The Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are so substantial grounds to believe that the individual who is the subject of a sec. 53(1)(b) declaration will be subject to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments.

- In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion.

- It should be noted, however, that it is for the refugee to establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility of instituting these procedural safeguards.

Saved by Sec. 1?- The Minister argues that even if the procedures used violated Suresh’s sec. 7 rights, that violation

is justified as a reasonable limit under sec. 1.- Despite the legitimate purpose of sec. 53(1)(b) in striking a balance between the need to fulfill

Canada’s commitments with respect to refugees and the maintenance of the safety and good order of Canadian society, the lack of basic procedural protections provided to Suresh cannot be justified under sec. 1.

- The limitations must be connected to the objective and be proportional.- Here the connection is lacking. A valid purpose for excepting some Convention refugees from the

protection of sec. 53(1) of the Act does not justify the failure of the Minister to provide fair procedures where this exception involves a risk of torture upon deportation.

General Statutes about Procedures –- There are at least two kinds of reasons for adopting statutes which generally govern the

procedures to be used in an administrative tribunal. - The first is a belief that the content of the common law is unsatisfactory and that the courts are

not likely to make appropriate changes.- The second is a desire for some distinctive attributes of the form of legislation or the legislative

process.- There are also two kinds of difficulties with these statutes.- The first is the technical or craft challenge of drafting, especially the needs to avoid

inconsistencies or gaps and to integrate the statute with the common law.- The second difficulty is the need to accommodate diversity among the agencies, and change. The

change may be in the preferences about specific procedural requirements, the common law background, or the functions of agencies.

Specific Content Issues – - Particularly since the advent of the procedural fairness doctrine, a clear division between the pre-

hearing and the actual hearing stage in a proceeding is not a model that fits all forms of decision making to which procedural fairness obligations attach. This point in made cogently clear by Bayne in the follow extract in which he draws a distinction between adjudicative style processes and decision making made in an administrative environment:

“The administrative process is not confined largely to the one continuous hearing which is characteristic of the adversarial process. Rather, the interchange of information and submission between the decision-maker and the person affected takes various forms, such

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as through letters, telephone calls, and sometimes personal interview. These interchanges occur over a lengthy period, and from the decision-maker’s point of view, occur at the same time as many other matters call for attention. The decision-maker will be presented not only with new information, but sometimes with a new theory of just what are the central issues in the matter…”

Pre-Hearing IssuesNotice –

- Notice is necessary simply because, without notice, the other rights cannot be exercised effectively.

- Most of the problems about notice can be put into one or other of four groups: (1) problems about form, (2) problems about the manner of service, (3) problems about time, and (4) problems about the contents.

- Two forms of notice are common – written and oral. Written notice is the more usual.- Personal service – that is, notice handed to or told to the party in some personal way- Some agencies make decisions that affect large and indefinite numbers of persons, which may

require a method unique for the circumstances. In scenarios like this, the means of giving notice is specified by legislation, and it is usually some form of public notice.

- Re Central Ontario Coalition and Ontario Hydro – type of notice required in the circumstances should reflect any adverse consequences that might occur as a result of the foregoing proceeding – objective assessment should be conducted in assessing whether a reasonable person would understand the notice the way it was meant to be understood

o Ontario Hydro operated a large nuclear power plant on the east shore of Lake Huron. o Hydro wanted to build another power line coming from the plant. It proposed that the line

go south, toward London, and proposed alternatives, especially one in which the line ran east.

o This proposal was submitted to a ‘joint board’, which was formed from the Ontario Municipal Board and the Environment Assessment Board under provincial legislation.

o Clearly, notice to the affected public was required and, just as clearly, service of everyone who might have been affected was not required.

o The Board made an order for notice that included personal service on some municipalities and individuals and for publication in newspapers. The notices were published in newspapers circulating in the location of the alternative route, but the lines were described simply as being in “Southwestern Ontario”.

o The Board rejected the original plan, and decided that the lines should go east along the alternative path.

o A group of people living or owning properties in this path sought review on the ground that the phrase “Southwestern Ontario” did not denote the alternative route, and succeeded. Judge Reed, sitting in the Ontario Divisional Court, said:

“To anyone not already familiar with Hydro’s plants and what Hydro used the term ‘Southwestern Ontario’ to mean, the notice published in the newspapers of the Board’s first hearing would convey very little… No idea was given, beyond that vague term, of the size or location of the six areas that were being proposed by Hydro for locating transmission lines… When it is considered that the first meeting was the first step in a process that could lead to the expropriation of private property and that people who did not appear or were not represented at that meeting would receive no further notice of plan stage hearings, the inadequacy of the notice, judged in light of the applicable statutes and of the common law, was, in my opinion, obvious… In reaching this conclusion I have not overlooked Hydro’s reliance on the extensive efforts it made to acquaint the

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public with its plan… In determining whether or not Hydro fulfilled its duties to give notice in the particular circumstances that we have before us, one must ask himself the following question: would a reasonable person have understood it, in all the circumstances, notwithstanding its inadequacy?... One should take the circumstances into account in determining whether a notice was ‘reasonable’… There is no question that Hydro made a conscientious effort to publicize its proposed expansion before the Board’s hearings commenced, yet there is simply no basis for concluding that, as a result, all, or even most, affected persons in the M3 route study area would, as a result, comprehend from the notice given that their property might be affected.”

- Re Joint Board under the Consolidated Hearings Act and Ontario Hydro – contrast w/ above case

o This time, Ontario Hydro sought to construct transmission lines in the eastern part of the province and used the term “Eastern Ontario” in the notices.

o JA Zuber referred to the Central Ontario Coalition case and said:“It is necessary only to say that that case is readily distinguishable from the case at hand. In the Central Ontario case, it was the view of the Divisional Court that the use of the term ‘Southwestern Ontario’ rendered the notice inadequate since it was far from clear that the term included the area where the undertaking was to be located. In the case at hand, it cannot be said that the term ‘Eastern Ontario’ does not plainly include the area where the undertaking is proposed to be build . ”

- Giving notice by mail creates the possibility that it will not be received in time – or not be received at all.

- The following are two cases that consider whether the crucial date – the date on which the notice was “given” – is the date of mailing or the date of receipt.

- Re City of Winnipeg and Torchinsky – this case interpreted the provision’s time limitation for appeal applications as shielding the statute from any possible defect that may occur in the deliverance of the notice

o This case involved assessment procedures specified by the City of Winnipeg Act. Sec. 182(2) provided that, if a new assessment was made, the assessor “shall send by mail or leave with the person assessed…a notice of assessment”.

o Owners were entitled to appeal the assessments to the Board of Revision.o Sec. 187(1)(b) required any owner who wished to appeal to give notice to the bard at

least ten days before the first day of the hearings.o Sec. 187(3) prohibited the Board from hearing an appeal about a property if the appeal

was not made “within the time limited by this section”.o A new assessment was made of Torchinsky’s property and on April 10, 1981 the assessor

mailed her notice, which described the right of appeal and gave May 12 as the date for beginning the hearings.

o This notice did not arrive until May 12. Torchinsky gave notice within a few days, and they city sought to prohibit the Board from hearing the appeal on the ground that the notice of appeal was late.

o Judge Dewar dismissed the claim and said“The choice of messenger was an unfortunate one… If the specified date is not subject to extension or variation…the situation is as if notice has not been given… The purpose of sec. 183 is to preserve the validity of an assessment affected by technical or procedural error of defect… It does not affect or purport to affect the right to complain.”

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- Re Rymal and Niagara Escarpment Commission – contrast to Torchinsky – court stated that disruptions in the mail could constitute a factor that it may consider in its decision of whether or not it should prohibit the Minister from considering a late application, based on an application by another interested party

o The Niagara Escarpment Commission Act gave landowners affected by decisions of the Commission a right to appeal to the Minister of Housing. It required the Commission to mail notices of decisions to owners and specified that notices of appeal must be received by the Ministry within 14 days of the date of mailing by the Commission

o On September 8, 1980, the Commission mailed notices of a decision to permit a residence to be built.

o One owners, Spencer, received this notice on September 17 and immediately mailed a notice of appeal that did not arrive until September 23 – one day late

o The owner who had sought the decision made an application to prohibit the Minister from considering the appeal and failed.

o The Divisional Court exercised its general discretion is granting remedies. Its decision was affirmed by the Court of Appeal, where Justice Cory said:

“The unreliability of the mail is a relatively new factor that has entered the lives of Canadians. This statute…clearly assumed that the mail service would be reliable and reasonably prompt… The disruption of the mail is an aspect of this case that could properly be taken into account by the court in refusing to exercise its discretion and grant the judicial relief sought.”

- Clearly, the length of time needed will depend on the nature of the interests and the issues.- The notices must also give enough information about the issues to enable the party to

prepare to respond.- R v. Ontario Racing Commission, ex parte Taylor – establishes that what must be included in the

notices is assessed based on the circumstances of the case – including the level of knowledge that the affected person should have (given his position, etc…)

o One of Taylor’s horses had an intestinal upset and he had a veterinarian give medication that, unknown to him, contained a prohibited substance, procaine.

o He was questioned by the stewards, who showed him their ruling and referred it to the Commission.

o After a hearing, he was suspended and fined. He sought certiorari and succeeded. Judge Osler said:

“In considering the effect of this notice and whether it was adequate to advise Mr. Taylor of the danger in which he stood, it is useful to refer to the Royal Commission Inquiry Into Civil Rights, known as the McRuer Commission, which makes the forthright statement that when the rules of natural justice apply to a power of decision, ‘notice of the intention to make a decision should be given to the party whose rights may be affected’. In this case, the intention of the Commission was to make a decision as to whether or not Mr. Taylor should be deprived, temporarily or permanently, of the license given to him to work at his trade as a trainer of horses under the jurisdiction of the Commission. Certainly no notice of this possible result was given to Mr. Taylor and, in my view, it is not sufficient that he was advised that he was entitled to employ counsel and to summon witnesses to give evidence on his behalf. He should have been clearly advised that penalties up to and including the suspension or revocation of his license might be imposed on him in the event of adverse findings by the Commission.”

o The Commission appealed, and the appeal was dismissed. However, the Ontario Court of Appeal disagreed with Osler about the adequacy of the notice. Justice Gale said:

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“I now turn to the other issue as to whether or not the respondent was denied natural justice by the action of the Board. The cases establish beyond peradventure that whether a notice given in any particular case is sufficient depends entirely upon the circumstances of the case. We think in the circumstances of this case the notice given to Mr. Taylor was adequate. When the notice itself as well as the wording of the ruling given to Mr. Taylor by the stewards before referral are taken into consideration, then we can only conclude that a man of his knowledge and experience in the racing business must have realized that he could be adversely affected by the decision of the Commission following the hearing.”

- R v. Chester – more details are required in the notice if a response to allegations made in the notice is to be considered in the final decision-making process

o Chester was imprisoned in B.C., and the prison officials considered moving him to a special handling.

o The special handling units were specialized institutions designed for especially dangerous prisoners, and they imposed severe restrictions.

o Chester was given notice that told him that a transfer was being considered and invited submissions. It specified, “your violent behaviour and your assault on a staff member which occurred on July 6, 1982”.

o Chester made submissions about the incident on July 6. o Judge Holland considered the notice, and said:

“The notice given to Chester was at least equivocal. A person reading that notice could fairly conclude that the reason behind the consideration was the incident of July 6, 1982… Chester’s response is confirmation that this is the manner in which he interpreted the notice. His entire letter is directed to explaining his conduct on July 6, 1982. If the right of the inmate to respond in writing is to be given any weight in the sense that such response will be fairly considered in the decision to be made, then more particulars are required in the contents of the notice than was given to Chester. I find that the notice was misleading and inadequate having in mind the severity of life in the SHU.”

o Notice here that the potential severity of the decision factors into the details that must go into the notice.

A.G. of Canada v. Canada (Commission of Inquiry on the Blood System in Canada – Krever Commission – this case establishes that where a commission’s mandate is made known to the parties (in this case, the possible finding of misconduct of certain entities), those parties cannot rely on the commission’s process leading to an adverse findings as an undisclosed potential consequences of the investigation, and claim lack of notice – moreover, in relation to adequate time to respond after issuance of notice, the time required will depend on the circumstances (ex. whether there is any potential injury to the parties)

Factual Background- More than 1,000 Canadians became directly infected with HIV from blood and blood products in

the early 1980s. Approximately 12,000 Canadians become infected with Hepatitis C from blood and blood products during the same time period.

- This tragedy prompted the federal and provisional Ministers of health to agree in September of 1993 to convene an inquiry which would examine the blood system.

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- On October 4, 1993, the Government of Canada appointed Justice Krever of the Ontario Court of Appeal (the Commissioner) to review and report on the blood system in Canada.

- On November 3, 1993, an announcement of the Commissioner’s appointment and a description of his mandate were published in newspapers across Canada. Subsequently, all those with an interest were provided with an opportunity to apply for standing before the inquiry and for funding. Twenty-five interest parties were granted standing, including the appellants.

- The appellant Baxter Corporation chose not to seek standing, but subsequently participated in the proceedings by supplying relevant documents and providing witnesses.

- The Order in Council authorized the Commissioner to “adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry”. In consultation with the parties, the Commissioner adopted rules of procedure and practice. The rules, which were agreed to by all parties, provided that in the ordinary course, Commission counsel would question witnesses first, although other counsel could apply to be the first to question any particular witness.

- The Commission held public hearings throughout Canada between November 1993 and December 1995.

- In describing his mandate and intention, the Commissioner emphasized that the inquiry “is not and it will not be a witch hunt. It is not concerned with criminal or civil liability.” As such, he would not permit the hearings to be used for ulterior purposes.

- At the same time, he made it clear that he interpreted his mandate as including a fact-finding process focusing upon the events of the early 1980s.

- On October 26, 1995, Commission counsel delivered a memorandum to all parties inviting them to inform the Commission of the findings of misconduct they felt should be made by the Commission. 

- The memorandum explained that under sec. 13 of the Act, the Commissioner is required to give notice to any person against whom he intends to make findings of misconduct. The parties’ submissions would help ensure that the notices gave warning of all the possible findings of misconduct which might be made by the Commission. 

- These confidential submissions would be read only by Commission counsel, and would be considered for inclusion in notices issued by the Commissioner. Only those possible findings which were supported by evidence adduced in the public hearings and which were anticipated to be within the scope of the Commissioner’s final report were included in the notices.

- On December 21, 1995, the final day of scheduled hearings, 45 confidential notices naming 95 individuals, corporations and governments, each containing between one and 100 allegations, were delivered pursuant to sec. 13 of the Act. The notices advised that the Commission might reach certain conclusions based on the evidence before it, that these conclusions may amount to misconduct within the meaning of sec. 13, and that the recipients had the right to respond as to whether the Commissioner ought to reach these conclusions. The recipients were given until January 10, 1996 to announce whether and how they would respond to the notices in their final submissions.

- A number of the recipients of notices brought applications for judicial review in the Federal Court.  On June 27, 1996, Richard J declared that no findings of misconduct could be made against 47 of the applicants for judicial review, but otherwise dismissed the applications. 

- Many recipients whose notices were not quashed appealed.  The Federal Court of Appeal quashed the notice against Dr. Craig Anhorn, but dismissed the remaining appeals.

JudgmentRelevant Statutory Provisions

- Sec. 13 of the Inquiries Act provides as follows:

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“No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.”

What can be Included in a Commissioner’s Report?- The primary role, indeed the raison d’être, of an inquiry investigating a matter is to make findings

of fact.- From the findings of fact the Commissioner may draw appropriate conclusions as to whether

there has been misconduct and who appears to be responsible for it. - However, the conclusions of a Commissioner should not duplicate the wording of the Code

defining a specific offence. If this were done it could be taken that a Commissioner was finding a person guilty of a crime.

- As well, efforts should be made to avoid language that is so equivocal that it appears to be a finding of civil or criminal liability.

- Indeed, the very relaxation of the evidentiary rules which is so common to inquiries makes it readily apparent that findings of criminal or civil liability not only should not be made, they cannot be made.

The Need for Procedural Fairness- It is true that every witness enjoys the protection of the Canada Evidence Act and the Charter

which ensures that the evidence given cannot be used in other proceedings against the witness.- Nonetheless, procedural fairness is essential for the findings of commissions, which may

damage the reputation of a witness. For most, a good reputation is their most highly prized attribute.

Fairness in Notices- That same principle of fairness must be extended to the notices pertaining to misconduct required

by sec. 13 of the Act. A commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report.

- As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings.

- Therefore, in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the Commissioner that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that Commissioners will not exceed their jurisdiction.

Application of the Principles to the Case at Bar- It must be remembered that in this case, the challenge brought by the appellants was triggered not

by any findings of the Commission, but by sec. 13 notices. Therefore, these reasons are not concerned with any challenge to the contents of the commission report or any other specific findings.

- The question is, therefore, whether the Commissioner exceeded his jurisdiction in the notices delivered to the appellants. I think NOT. The potential findings of misconduct cover areas that were within the Commissioner’s responsibility to investigate. The mandate of the inquiry was extremely broad, requiring the Commissioner to review and report on “the events surrounding the contamination of the blood system in Canada in the early 1980s…” The content of the notices do not indicate that the Commissioner investigated or contemplated reporting on areas that were outside his mandate.

- If the Commissioner’s report had made findings worded in the same manner as the notices, then further consideration might have been warranted. However, under the circumstances, it is

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impossible to say what findings he will make or how they will be framed. Quite simply, the appellants have launched their challenge prematurely.

- Even if it could be said that the challenge was not premature, the notices are not objectionable. They indicated that there was a possibility that the Commissioner would make certain findings of fact which might amount to misconduct.

- It will be remembered that the Commissioner, from the outset, wisely emphasized that he did not have the intention or the authority to make any legal determinations. While many of the notices come close to alleging all the necessary elements of civil liability, none of them appears to exceed the Commissioner’s jurisdiction. For example, if his factual findings led him to conclude that the Red Cross and its doctors failed to supervise adequately the Blood Transfusion Service and Blood Donor Recruitment, it would be appropriate and within his mandate to reach that conclusion. 

- Some of the appellants object to the use of the word “failure” in the notices; I do not share their concern.  As the Court of Appeal pointed out, there are many different types of normative standards, including moral, scientific and professional-ethical.  To state that a person “failed” to do something that should have been done does not necessarily mean that the person breached a criminal or civil standard of conduct.  The same is true of the word “responsible”.  Unless there is something more to indicate that the recipient of the notice is legally responsible, there is no reason why this should be presumed.

- There are phrases which, if used, might indicate a legal standard had been applied, such as a finding that someone “breached a duty of care”, engaged in a “conspiracy”, or was guilty of “criminal negligence”. None of these words has been used by the Commissioner.

If the Commissioner Originally had such Jurisdiction, Did He Lose it by Failing to Provide Adequate Procedural Protections or by the Timing of the Release of the Notices?

(a) Procedural Protections- The appellants argue that they did not have the benefit of adequate procedural protections.  As a

result, they contend that the Commissioner has lost the authority to make the type of findings which are referred to in the notices. They submit that they interpreted comments made by the Commissioner during the Inquiry as assurances that he had no intention of making the type of findings suggested by the notices. If these assurances had not been given the appellants say that they would have insisted upon tighter evidentiary procedures, greater ability to cross-examine, and other procedural protections.

- Yet the three corporate appellants were not uninformed bystanders. Rather, they had detailed and intimate knowledge of the blood system.

- The Canadian Red Cross Society and Bayer Inc. participated in the proceedings of the Inquiry. As a result it is difficult to accept that they could have been surprised by the fact that the notices were critical. In fact, the prospect of the Commissioner’s ultimately making findings adverse to a witness was specifically raised by counsel for the Red Cross during discussions among counsel in November 1993 concerning the procedural rules. In response, counsel for the Commission referred to sec. 13 of the Act and indicated that a notice would have to be provided to any party who might face an adverse finding. No concern about the procedure was raised at that time. The third corporate appellant, Baxter Corporation, was not involved in the meeting and was not a party at the Inquiry. However, it knew about the Inquiry and its goals, and participated by offering witnesses and entering documentary evidence.

- I am not sure what further protections the appellants could have realistically expected. The procedure adopted was eminently fair and any objections to it must be rejected. Nor can I accept that the appellants could have been misled or that they suffered prejudice as a result of any “misunderstanding” about the type of findings which would be made by the Commissioner. That submission as well must be rejected.

Timing of the Notices

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- The appellants submit that because the Commissioner waited until the last day of hearings to issue notices identifying potential findings of misconduct which might be made against them, their ability to cross-examine witnesses effectively and present evidence was compromised. They submit that there is no longer any opportunity to cure the prejudice caused by the late delivery of the notices, and that they must therefore be quashed. For the following reasons, I must disagree.

- While I appreciate that it might be helpful for parties to know in advance the findings of misconduct which may be made against them, the nature of an inquiry will often make this impossible. Broad inquiries are not focused on individuals or whether they committed a crime; rather they are concerned with institutions and systems and how to improve them. It follows that in such inquiries there is no need to present individuals taking part in the inquiry with the particulars of a “case to meet” or notice of the charges against them, as there would be in criminal proceedings.

- So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure.

- The timing of notices will always depend upon the circumstances . Where the evidence is extensive and complex, it may be impossible to give the notices before the end of the hearings. In this case, where there was an enormous amount of information gathered over the course of the hearings, it was within the discretion of the Commissioner to issue notices when he did.

- Further, the notices were delivered on December 21, 1995, and parties were initially given until January 10, 1996 to decide whether and how they would respond. This period was then extended following requests from the parties. The time permitted for the response was adequate. It cannot be said that the timing of the delivery of the notices amounted to a violation of procedural fairness.

Discovery –- Fuelled by the judgment of the Supreme Court in R v. Stinchcombe was an increasing concern

with the question whether notice entitlements in the administrative process involve a claim to pre-hearing “discovery” of all relevant information in the possession of the “other side”

- In their work on the issue, Reid and Mulcahy suggested the following:“…the principles of Stinchcombe do not add anything new to administrative law. The principle of full disclosure is already part of the duty of fairness as set out in Nicholson… Stinchcombe is important, though, because it emphasizes the required degree of disclosure. One must know the case one must meet. Disclosure must not be perfunctory; it must be complete, subject only to privilege or relevance.”

- However, this approach hides a number of questions of some considerable importance.- Even assuming that some level of advance notice of the contrary evidence is generally part of the

obligations of procedural fairness, does that always encompass the levels of information sharing that have traditionally characterized the civil litigation process and now are part of the criminal procedure under Stinchcombe?

- Are there distinctions to be made in terms of the nature of the information in question as, for example, between material in the possession of the parties and that held by the tribunal?

- Canadian Pacific Airlines Ltd. v. Canadian Air Line Pilots Association – power of compulsion of agency must firmly be rooted in statute – no presumption of power will be given – additionally, provision granting power of compulsion must be interpreted carefully – this case, did not apply to pre-hearing or investigative phase

o This case involved an order for the production of documents and other information made by the Canada Labour Relations Board at the investigative, pre-hearing stage of an application by Canadian Air Line Pilots Association for a “single employer” declaration.

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o When Canadian failed to produce the information voluntarily, the Board attempted to secure it relying on sec. 118(a) and sec. 121 of the Canada Labour Code.

o Sec. 118(a) provided the Board with the following power:“…to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding.”

o Sec. 121 empowered the Board to do such things “as may be incidental to the attainment of the objects of this Part”.

o According to Justice Gonthier, delivering the judgment of the majority of the Supreme Court, the Board had no inherent or incidental powers, only those conferred on it by statute. Furthermore, the provisions relied on did not authorize compulsory discovery orders outside the context of a formal hearing.

o While the context of this judgment was a detailed exercise in statutory interpretation of a specific regime, what it does make clear is that any claim to exercise such a power will have to be rooted firmly in the empowering statute and that there is not likely to be an presumption drawn as to the existence of such authority in the absence of express authority to make such orders.

Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital) – may not be good law – decision rendered before release of SC reasons in Canadian Pacific above

Factual Background- A board of inquiry was set up under the Ontario Human Rights Code to hear a complaint of

racial discrimination made by ten nurses employed by the hospital.- In the context of that inquiry, the following order was made:

“I order the Commission to provide the respondents with all statements made by the complainants to the Commission and its investigators at the investigation state, whether reduced to writing or copied by mechanical means. I further order the Commission to provide the respondents with the statement and identity of any witness interviewed by the Commission or its agents who the Commission does not propose to call and whose statements might reasonably aid the respondents in answering the Commission’s case.”

- The Commission applied for judicial review of that order.Judgment- The judgment of the Ontario Divisional Court stated the following:

Reasons for the Decision of the Board of Inquiry- In rejecting the claim of privilege, the board of inquiry separated the investigation stage from the

subsequent conciliation stage and the third “prosecution” stage. The board of inquiry expressed their view “that documents, including statements reduced to writing, would only very exceptionally be privileged at the investigation state”.

- The board concluded that the following statutory enactments are relevant to any power to order disclosure in a given case: Sec. 8 of the Statutory Powers Procedure Act provides:

“Where the good character, propriety or conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.”

- The board expressly rejected the submission of the Commission that Stinchcombe had no applicability to human rights litigation. The board did not feel bound by Stinchcombe, but it did believe that the case provided an important analogy between Crown counsel and Commission counsel.

- In the context of what is reasonably required in the way of disclosure in order to achieve the duty of fairness the board concluded:

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“In a case such as this, I have decided that the Stinchcombe doctrine ought to be applied. The exclusion of the element of surprise in the interests of the fairness of a hearing is, I believe, now required.”

Decision of this Court- The important principle enunciated by Justice Sopinka in Stinchcombe is that “justice was better

served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met.” It does not take a quantum leap to come to the conclusion that in the appropriate case, justice will be better served in proceedings under the Human Rights Code when there is complete information available to the respondents.

- Stinchcombe also recognized that the “fruits of the investigation” in the possession of the Crown “are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice be done.”

- We are of the opinion that this point applies with equal force to the proceedings before a board of inquiry and that the fruits of the investigations are not the property of the Commission.

- The court when went on to accept the ruling of the board of inquiry that any claim to litigation privilege for the information in question did not extend to the investigative functions of the Commission. It further held that there was no class privilege for communications between complainants and officers of the Commission.

- It has been submitted on behalf of the applicant that the disclosure as ordered by the board in this case could discourage victims of racial discrimination from making complaints if they knew that their original statements might be carefully scrutinized at some later stage

- On the other side of the coin, however, it is of public interest as well that the complainants appreciate that allegations of racial discrimination are indeed serious and, therefore, should be made in a reasonable and conscientious fashion.

- As such, we dismiss the application of the Commission and uphold the decision of the Board.Case Analysis- In the light of Canadian Pacific, it is significant that the court in this case is not particularly

careful about locating precisely the source of the board’s authority to make the order that it did. Was it sec.8 or sec. 12? Recall that in Canadian Pacific, the majority’s reasons rested heavily on the interpretation that it gave the enabling provisions.

- In terms of the precedential value of this judgment, note that the court in this case released its decision on November 8. The judgment in Canadian Pacific was released on October 21, and is not cited by the Divisional Court in this case.

May v. Ferndale Institution – Stinchcombe does not apply in administrative context – in interpreting the statutorily required level of disclosure, one must assess whether the legislative has identified certain situations where disclosure can be refused – if it has, then silence with regard to the refusal of disclosure in the circumstances of the present case must be interpreted in favour of the applicant seeking disclosure

Factual Background- The appellant inmates are prisoners serving life sentences. They were each involuntarily

transferred from a minimum- to a medium-security institution.- There were no allegations of fault or misconduct on the part of these inmates. The transfers were

the result of a direction from the Correctional Service of Canada (“CSC”) to review the security classifications of all inmates serving life sentences in minimum-security institutions who had not completed their violent offender programming. 

- CSC used a computer application to assist the classification review process. This application, the Security Reclassification Scale (“SRS”) provides a security rating based on data entered with respect to various factors related to the assessment of risk.

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- The inmates applied to the provincial superior court for habeas corpus with certiorari in aid directing correction officials to transfer them back to the minimum-security facility.  From the outset, they requested the scoring matrix for the SRS, but were told it was not available.

- Before the hearing in this court, the inmates filed a motion to submit the cover page of a scored copy of an assessment and a current version of the scoring matrix as new evidence

Judgment(1) Whether the Stinchcombe Rules of Disclosure Apply

- The appellants contend that the disclosure requirements set out in Stinchcombe apply to the present case because the transfer decisions involved the loss of liberty. On the other hand, the respondents argue that the proper context in which to deal with involuntary transfers is administrative law and not criminal law. The Stinchcombe disclosure standard is fair and justified when innocence is at stake but not in situations like this one.

- We share the respondents’ view. The requirements of procedural fairness must be assessed contextually in every circumstance.

- It is important to bear in mind that the Stinchcombe principles were enunciated in the particular context of criminal proceedings where the innocence of the accused was at stake. These cases do not involve a criminal trial and innocence is not at stake. The   Stinchcombe   principles do not apply in the administrative context.

- In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction.

- Therefore, the fact that Stinchcombe does not apply does not mean that the respondents have met their disclosure obligations.

(2) The Applicable Statutory Duty of Disclosure- In order to assure the fairness of decisions concerning prison inmates, sec. 27(1) of

the CCRA imposes an onerous disclosure obligation on CSC. It requires that CSC give the offender, at a reasonable period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary of that information”.

- The extensive scope of disclosure which is required under sec. 27(1) is confirmed by the fact that Parliament has specifically identified the circumstances in which CSC can refuse to disclose information.

- The Regulations adopted pursuant to the CCRA shed additional light on the duties imposed upon prison authorities which applies to involuntary transfers on an emergency basis, provides a right of information to inmates after their transfer to a new facility. An opportunity to make representations must also be given to the inmate. Finally, written notice of the final transfer decision must be provided.

- Having determined that the applicable statutory duty of disclosure in respect of the transfer decisions is substantial and extensive, we must now go on to consider whether it was respected in these cases.

(3) Whether the Applicable Duties of Disclosure Were Respected- The appellants submit that the respondents’ refusal to disclose the scoring matrix for a

computerized security classification rating tool is a breach of sec. 27(1) of the CCRA. We agree. Considering the (1) legislative scheme, (2) the nature of the undisclosed information and (3) the importance of the decision for the appellants, there was a clear breach of the statutory duty to disclose “all the information to be considered in the taking of the decision or a summary of that information”.

- The matrix contains the information that would allow them to understand how the numerical results were arrived at. This tool is necessary in order to determine if there had been an error in

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assigning scores to the various factors and to evaluate the accuracy of the final computerized score that was generated.

- In the courts below, the respondents claimed that the scoring matrix was not available. In addition, the respondents insisted that SRS was simply a preliminary assessment tool, the results of which were not entirely determinative of the security rating since reviewing officers may override the results. The transfer decisions provided the appellants with the questions and answers used in the SRS along with the computerized score and classification. After the SRS assessment was completed, CSC would undergo a case-by-case review to ensure that the reclassification was justified.

- Before the hearing, the appellants filed a motion to submit new evidence. The evidence sought to be admitted consists of two documents. The first is the cover page of a scored copy of an SRS assessment. The second is the Security Reclassification Scale: Functional Specification, Version 4.0.3 (SRSFS), produced by CSC and updated as of June 2001. It explains the grading of each factor and how the factors should be applied in computing the SRS score. Strictly speaking, the SRSFS is the “scoring matrix” requested by the appellants.

- In our view, the information provided by the respondents to the courts below as to the nature and role of the matrix was misleading. At the hearing before this court counsel explained that it was thought to be a duplication of information already disclosed.

- The new evidence clearly provides information on the numerical values to be assigned to each factor and to the manner in which a final score is generated by the computerized tool. Given that the appellants had repeatedly requested this information — and not solely the factors used to establish their security classification — it is disingenuous to suggest that the information was believed to be duplicative.

- The duty to disclose information used in making transfer decisions is substantial. Therefore, if the scores generated by the computerized tool played a role in the transfer decisions, its scoring matrix should have been disclosed. In fact, it does appear that the scores generated by the computerized tool played an important role. This is evidenced by the fact that the SOP 700-14 states that security reclassification shall be determined primarily by using the SRS. The SRS classification is only subject to variation in limited situations. Discretion is provided when the score is within 5 percent of the sanctioned cut-off values.

- The override must also be approved by a supervisor or, in some cases, by the Assistant Commissioner, Correctional Operations and Programs. It is noteworthy that the override function was not used in the instant cases. This suggests that the computer application ultimately fixed the security classification of each appellant.

- Based on the evidence, we cannot accept the respondents’ argument that the SRS was only a preliminary assessment tool. Although it is true that an individual assessment of each inmate’s security classification is made subsequently to the SRS assessment, in our view, the SRS presumptively classifies inmates and constitutes an important aspect of the classification process.

- Hence, given the importance of (1) the information contained in the scoring matrix, (2) the presumptive validity of the score and (3) its potential effect on the determination of security classification, it should have been disclosed. The respondents had a duty to do so under sec. 27(1) of the CCRA. The importance of making that information available stems from the fact that inmates may want to rebut the evidence relied upon for the calculation of the SRS score and security classification.

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board) – criminal-standard disclosure is not required in administrative setting, regardless of potential economic severity

- The judgment of the Federal Court of Appeal was written by Justice MacGuigan. He stated:- This appeal has to do with the extent of the disclosure required to the appellant of documents in

the hands of the Patented Medical Prices Review Board.

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- Utilizing its powers under the Patent Act, the Board scheduled a hearing to determine whether the drug Habitrol marketed in Canada by the appellant is being sold at an excessive price.

- The consequences of such a finding under sec. 83 of the Act could be an order for a price reduction in the selling price, a payment to Her Majesty in the Right of Canada to an offs

- The amount from estimated excess corporate revenue.- In deciding to hold a formal hearing, once a patentee has refused to make a voluntary compliance

order, the Chairman of the Board considers a report from the Board staff to the effect that the market price charged for the drug in Canada exceeds the Board’s guidelines.

- The appellant seeks the disclosure to it of all documents in the Board’s possession which relate to the matters in issue in the sec. 83 hearing, particularly the report on which the Chairman acted in ordering the hearing. In its view, such disclosure should extend to all the facets of the staff investigation and to all documents in the hands of the Board or its Chairman.

- The Board refused the appellant’s request for such exhaustive disclosure for the following reasons:

“… It is the Board’s view that, in matters of the disclosure and production of information and documents in the context of a public hearing, the Board must balance its duty to give every opportunity to a respondent to be heard against its responsibility to ensure that its orders do not have the effect of limiting its ability to discharge its responsibilities in the public interest on an ongoing basis. In order to discharge such responsibilities the Board must be confident that it is getting candid, complete and objective advice from its staff… This balancing need not in any way affect the Board’s duty in law to make its decisions on the basis of the evidence placed and tested it during a hearing.”

- On a judicial review proceeding, Judge McKeown upheld the Board’s decision as follows:“The Board has made a decision refusing disclosure of the documents requested and I should give such a decision curial deference unless fairness or natural justice requires otherwise… Certainly, the subject of an excess price hearing is entitled to know the case against it, but it should not be permitted to obtain all the evidence which has come into the possession of the Board in carrying out its regulatory functions in the public interest on the sole ground that it may be relevant to the matter at hand. The Board’s function is not to obtain information solely for investigative purposes; its primary role is to monitor prices. In its decision, the Board recognized the need to balance its duty to the applicant against limiting its ability to discharge its responsibilities in the public interest on an ongoing basis… When the statutory scheme of this Board is looked at, the Board is a regulatory board or tribunal. There is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal court… To require the Board to disclosure all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint. Fairness is always a matter of balancing diverse interests. I find that fairness does not require the disclosure of the fruits of the investigation in this matter.”

- We are all agreed that the Motions Judge has correctly stated and applied the law. Indeed, counsel for the appellant expressly agreed that the “concept of procedural fairness is eminently variable, and its content is to be decided in the specific content of each case”

- The only real issue between the parties is as to the effect to be given to the reasons for Sopinka’s decision in Stinchcombe.

- After referring to the Northwestern General Hospital case, Justice MacGuigan continued:- This is where any criminal analogy to the proceedings in the case at bar breaks down. There are

admittedly extremely serious economic consequences for an unsuccessful patentee at a sec. 83 hearing, and a possible effect on a corporation’s reputation in the market place.

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- However, as Judge McKeown found, the administrative tribunal here has economic regulatory functions and has no power to affect human rights in a way akin to criminal proceedings.

- We are all agreed with McKeown that “law and police require that some leeway be given to an administrative tribunal with economic regulatory functions…in pursuing its mandate.”

Case Analysis- As indicated not only by D & B Computers of Canada, but also by both CIBA-Geigy,

Northwestern General Hospital and Dofasco, the evaluation of pre-hearing discovery claims may not be based solely on considerations of administrative convenience and what is procedurally fair to those affected. As well, confidentiality and privacy claims will regularly be advanced as a justification for not providing any or full disclosure: public interest privilege, litigation privilege, solicitor-client privilege, personal information and relevance, and protection of commercially sensitive information acquired in confidence, are but some examples.

- Nonetheless, it is worth keeping in mind that, to the extent that confidentiality claims are relative or contingent, it is not beyond the bounds of possibility that despite the fact that, at a pre-hearing stage, the balance will favour confidentiality, an access claim maybe able to be reasserted and ultimately succeed at the actual hearing stage. At that point, it may have become clear that the ability to respond adequately does indeed depend on fuller information than has been provided prior to the hearing on discovery.

Delay –- In recent years, the notion that undue delay in the conduct of administrative proceedings could

amount to a breach of the rules of natural justice or procedural fairness achieved a measure of acceptance. There are a variety of causes which contribute to delay.

- First , many administrative agencies are strapped for resources and simply cannot handle their caseload in a timely fashion.

- Second , particularly in the domain of professional discipline, hearings are often delayed pending the outcome of criminal proceedings against the member accused of professional misconduct.

- Third , there is an increasing tendency on the part of agencies that deal with complaints against individuals to accept such complaints even though they are based on conduct that occurred sometimes years previously.

- In all these situations, the potential exists for the person who is the target of the proceedings to be prejudiced by the delay.

- To these practical considerations can be added the impact of the Charter, with is guarantee in sec. 11 of a trial “within a reasonable time”. While this provision’s direct impact is restricted to the criminal process or situations involving true penal consequences, it has had an indirect impact on the interpretation of the principles of fundamental justice for the purposes of sec. 7 of the Charter and on the common law in this arena .

- All of this surfaced in Blencoe where the Supreme Court accepted that both for the purposes of the Charter and the common law of procedural fairness, delay had both dimensions in the context of statutory decision making: delay that affected the ability of a person to respond adequately to proceedings in which he or she was responding to allegations and delay in its abuse of process sense. However, irrespective of category, the court in Blencoe also indicated that the argument was one that would be difficult to make out under with the Charter or the common law, at least where the applicant was seeking a stay of proceedings as opposed to an order for an expedited hearing.

The Actual Hearing

Oral Hearing –

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- Traditionally, an oral hearing was usually required as an element of natural justice, although not always.

- With the emergence of the procedural fairness doctrine, the presumption in favour of oral hearings as the norm disappeared in the expanded common law procedural terrain.

- Indeed, recollect that in the first major Canadian procedural fairness judgment – Nicholson – Justice Laskin, in describing the applicant’s procedural entitlements at any resumed consideration of his status as a police officer, clearly left the discretion on whether to proceed by way of oral or written hearing in the hands of the Board of Commissioners of Police.

- The need for deference to the procedural choice of certain decisions makers achieved even stronger affirmation in Baker , where the Supreme Court sustained the immigration authority’s holding of a written hearing at least in that instance.

- The countervailing tendency is to be found in the context of decisions affecting rights protected by the Charter and the Bill of Rights. In this regard, recollect Justice Beetz’s judgment in Singh, condemning the statutory structure by reference to the Bill on the basis that the applicant’s claim to Convention refugee status could be “finally denied without their having been afforded a full oral hearing at a single stage of the proceeding before any of the bodies or officials empowered to adjudicate on their claim on the merits”. It is also to be recalled that Justice Wilson reiterated the conventional wisdom as to the need for such a procedure “where a serious issue as to credibility is involved.”

- Recollect also Kindler v. Canada (Minister of Justice), in which it was held that the Minister’s obligation to adhere to the principles of fundamental justice in extradition matters did not warrant the imposition of an oral or in-person hearing prior to the making of an order surrendering a person to the requesting jurisdiction. Any submissions as to whether such an order should be made could be made adequately in writing.

- Claims to an oral hearing are also ones that are situation sensitive in the sense that their necessity may depend on the matters that are at the issue in the particular proceedings as opposed to being a feature of all exercises of the relevant statutory power.

- The conventional view has always been that the claim to an oral hearing is at its highest when credibility is an issue in the proceedings. Today, that view is not unchallenged and, in certain situations, is seen as being subject to competing values. Thus, arguments are made that it is preferable to gather evidence in certain kinds of cases by inquisitorial methods and to neither allow others to be present nor expose those interviewed to cross-examination. One example where such claims are made frequently is in the context of sexual harassment complaints, the justification advanced being that the trauma associated with having to confront one’s harasser and to be cross-examined simply acts as too great an obstacle to formal complaints being lodged.

Masters v. Ontario – judicial review on extent of disclosure using prerogative power – also establishes that deference must be made to decision-maker who has already established a Directive/Guidelines on the procedure to be followed in a sexual-assessment investigation

Factual Background- Masters was the Ontario agent general in New York. He had been appointed by the Premier in the

exercise of prerogative power. - Following complaints of sexual harassment against Masters, the Premier requested a team of

external investigators to ascertain the facts. Ultimately, this produced a report to the effect that Masters had sexually harassed seven women.

- Following a response by Masters (who had been suspended at the outset of the inquiry), the Premier determined that Masters should no longer be agent general but be reassigned to another position in the civil service.

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- Rather than accept reassignment, Masters resigned on the basis of a financial settlement. He then applied for judicial review of the investigators’ report alleging various breaches of the rules of natural justice in the conduct of the investigation.

- Among the concerns identified in his application were that the 45 “witnesses” had been interviewed by the investigators without Masters or his counsel being present; that he had been refused access to the list of questions that were asked, the copies of any notes, transcripts, or tapes that were made during the interviews, and the names of the investigators who had conducted the interviews; and that, while Masters was allowed to interview the witnesses himself, few agreed to meet with him.

Judgment- Judge Adams of the Ontario Division Court stated the following:- Counsel for the appellants’ central submission was that where credibility will determine the main

issue before a government decision maker, particularly where that main issue is vital to an interest party’s professional career, the general duty of fairness and the rules of natural justice require that an impartial decision maker first be designated to determine credibility by way of a full trial-type hearing permitting witnesses to be subjected to cross-examination.

- After a discussion of the authorities and particularly Knight as to diminished weight to be attributed to procedural fairness claims in relation to offices held at pleasure and to investigative as opposed to adjudicative functions, Judge Adams stated:

- Masters clearly understood that his continued employment was at the discretion of the Premier and was specifically subject to the continuing confidence of the Premier. The nature of the employer and employee relationship in these circumstances, therefore, involves complete Ministerial discretion.

- Further, the Premier was not acting pursuant to a statute, but rather was exercising a prerogative to consider revoking one of his earlier appointments. These features of the decision place it even more towards the discretionary or legislative end of the spectrum referred to in Martineau.

- On the other hand , neither the decision-making nor the investigation focused on “broad grounds of public policy”. Rather, the issues became whether or not Masters could be said to have engaged in sexual harassment as alleged.

- The well-being of the women involved and the fundamental need for a harassment-free workplace, however, were also pressing concerns. Indeed, the Government of Ontario recognized the need for a harassment-free workplace by adopting the Workplace Discrimination and Harassment Prevention Directive, which was to be promulgated through the Management Board. As such, the Premier, on advice of the Board, decided to apply the investigatory procedures of the Directive to the accusations against Masters. Thus, the problem was NOT dispatched by the exercise of a sweeping discretion on the broad policy grounds of the Primer’s continuing confidence. Therefore, the submission by counsel for the appellant that he was entitled to a trial-type hearing before an impartial decision maker is without merit.

- Judge Adams relied principally on authorities governing investigative functions.- The duty of fairness did not require the government to use its coercive powers as employer and

direct witnesses to subject themselves to counsel’s questions. All that was required was that it provided an opportunity for witnesses to be questioned. In this respect, nothing more was required. – meaning, applicant was entitled by Directive to examine potential witnesses – however, if they refused, that was not relevant to procedural protections question

- Additionally, counsel for the appellant was well aware that the investigators were following up on his client’s responses to the allegations by reattending in New York and Boston to speak with the witnesses. I find that the witnesses’ responses to Masters’ denials and counter-accusations did not amount to material changes in the allegations against him. The substance of the accusations remained constant. In the circumstances, therefore, the investigators were not obliges to obtain

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further responses from Masters, particularly in light of the Supreme Court’s adoption in Knight of the excerpt from Selvarajan v. Race Relations Board, requiring that “broad grounds,” but not “every detail” be given.

- Furthermore, Masters was in fact given the opportunity by the Premier to make legal argument and to respond to all additional details, an opportunity which he exercised.

- For similar reasons, there was no need to provide the applicant with all the witness statements. Disclosure of the substance of the accusations against him was sufficient. -

- I conclude that the procedures adopted were adequately tailored to the distinctive nature of harassment allegations having regard to all of the circumstances. It is not a basis, through the fairness doctrine, for requiring the implementation of a trial or trial-like procedure prior to the discretion being exercised. The requirements of the duty to act fairly in the scope of the employer-employee relationship in the case at bar were met.

Khan v. University of Ottawa – strong case for oral hearing when creditability is in issue & potential for a seriously negative impact on person – also, no need to prove actual prejudice – reasonable apprehension sufficient

Factual Background- The appellant sought judicial review following the dismissal of her appeal from a failing grade,

first to the Faculty of Law Examinations Committee and then to the Senate Committee.- Three examinations booklets were evaluated and the existence of a fourth booklet, which was not

evaluated, was the issue before the two university committees.- The appellant received no notice of the Faculty of Law Examinations Committee meeting and

was not given an opportunity to appear before the Committee. - She appealed the law faculty’s decision to dismiss her appeal, in writing, to the Senate Committee

but did not appear before that committee.- The Divisional Court dismissed her application for judicial review of the decisions denying her

appeals.Judgment- Justice Laskin wrote the decision of the Ontario Court of Appeal. He stated the following:- Ms. Khan thought that the Evidence exam was two hours long. During the first two hours, she

answered all the exam questions in the three examination booklets. She then looked up and saw the proctor writing on the blackboard that 35 minutes remained. Realizing that she had been mistaken about the time, she began writing in a fourth examination booklet, which she used to supplement her answers with. She labeled this examination booklet “INSERT”. However, she did not writing anything on the first three booklets to notify the instructor of the fourth booklet.

- On January 18, 1996, she was allowed to view her examination. She realized that the fourth booklet was missing. A university administrator looked through the files, but could not locate the fourth booklet.

- Her failing grade in Evidence lowered her GPA below the level required to pass. In my opinion, a university student threatened with the loss of an academic year by a failing grade is entitled to a high standard of justice.

- In my opinion, procedural fairness before the Examinations Committee in this case required the following: first, and most important, the Committee should have given Ms. Khan an oral hearing because her credibility was a critical issue on her appeal… Third, the Committee should have given Ms. Khan an opportunity to correct or contradict the three “factors” it relied on in its decision. The Examination Committee did not observe these requirements and, therefore, denied Ms. Khan procedural fairness.

(1) Was Ms. Khan Entitled to an Oral Hearing?

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- Under para. 12.03(b) of the Regulations, students who appeal their grades to the Examinations Committee have the onus “to identify specific facts or evidence suggesting that a significant error or injustice may have occurred”. In her cross-examination, the Chair of the Examinations Committee acknowledged on behalf of the university that a grade given without considering the fourth booklet would amount to a significant error or injustice.

- However, the only direct evidence that the fourth booklet existed was Ms. Khan’s word. In short, the Committee had to decide whether Ms. Khan was telling the truth. As such, Ms. Khan’s credibility was the central issue before the Committee. The Chair of the Committee also recognized that the Committee’s decision turned on Ms. Khan’s credibility.

- In my view, the Committee should not have made an adverse finding against Ms. Khan’s credibility without affording her an in-person hearing and an opportunity to make representations orally.

- Justice Laskin here dealt with the authorities, including Singh.- The university submits, however, that an oral hearing was not required because Ms. Khan was not

charged with any kind of misconduct. Admittedly she was not charged with dishonesty or any other wrongdoing, and the proceedings before the Committee were not strictly adversarial. However, because Ms. Khan’s appeal turned on her credibility and because of the serious consequences to her of an adverse finding, fairness required an oral hearing.

- Additionally, Ms. Khan need NOT show actual prejudice to prove that she has been denied procedural fairness. She need only show that the Committee’s breach of its duty of fairness may reasonably have prejudiced her – as per Kane v. University of British Columbia

Open Hearings –- The matter of whether it should be open to the public was treated traditionally as a question

within the discretion of the tribunal- However, in Ontario, for tribunals subject to the SPPA, while openness is still a matter for

tribunal discretion, sec. 9 conditions the exercise of that discretion with a presumption in favour of openness and creates specific considerations that are to form the basis of any decision to proceed in camera either in whole or in part.

- A contrast to the Ontario statute can be found in sec. 69 of the Immigration Act, where the presumption in the other way.

- Pacific Press Ltd. v. Canada (Minister of Employment & Immigration) o Sec. 29(3) of the Immigration Act provided that inquiries conducted by the adjudicators

of immigration tribunals were to be held in camera. The Federal Court of Appeal held that the section infringed sec. 2(b) of the Charter, in that it infringed the freedom of expression and freedom of the press.

o Proceeding on the basis that such inquires were sufficiently judicial to qualify them as court proceedings for the purpose of sec. 2(b) analysis, Justice MacGuigan held that sec. 29(3), as an infringement of the freedom of the press and expression, was over inclusive in terms of the objectives at which it was aimed (the protection of refugee claimants and their families) and could not be justified by reference to sec. 1.

o It was not restricted in its application to hearings in which a refugee claim was being advanced; the onus it placed on the public seeking an open hearing was on that was impossible to discharge; it did not contemplate any intermediate possibility such as a publication ban; and it was not part of an otherwise “watertight” system, in that considerable information about refugee claims was potentially otherwise available on the public record.

- In response to Pacific Press, the government amended the Immigration Act to provide that all hearings before adjudicators were henceforth open to the public. However, an exception was made in the case of situations where an adjudicator was satisfied that there was a serious

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possibility that the life, liberty and security of any person would be endangered by reason of an inquiry being conducted in public – sec. 29(2).

- In contrast, in Convention refugee hearings before the Refugee Division of the Immigration and Refugee Board, the hearing is still conducted in camera unless the claimant applies to have it held in public and, even then, the panel hearing the case can make orders for maintaining the confidentiality of the proceedings.

- One of the other domains in which this issue has surfaced most frequently is that of professional discipline. The justification of the professional bodies has usually been the protection of their members. However, in an era of strong assertions of the need for greater public accountability of professions, this justification for secrecy has sounded increasingly hollow.

- Ottawa Police Force v. Lalande – example of “in-favour” of open hearingso A senior police officer was charged in disciplinary proceedings with having sexual

relations with prostitutes while on duty. o His request to have the hearing held in camera was rejected by Judge Hogg, who said:

“I believe that the press table is as much a part of any courtroom or hearing as the judge’s bench, the witness box, the counsel table or the dock. Reporters bring out the exchanges between counsel and the judge and listen to the evidence and to the submissions. They should be a neutral link between the court or hearing and the vast public beyond its doors… Unless there are compelling reasons to the contrary, a hearing, such as this, or a trial, that affects the public must be open to all citizens… The circumstances here do not outweigh the desirability of adhering to the principle that the hearing be open to the public.”

The Right to Counsel –- In most hearing situations, the right of the parties to representation by counsel or an agent is

assumed and, indeed, in many cases will be provided for statutorily. Thus, sec. 10 of the SPPA permits representation by counsel or an agent for parties to proceedings governed by that Act.

- However, sec. 11 of the SPPA places constraints on the extent to which witnesses, as opposed to parties, are entitled to be represented by counsel. Therefore, representation by counsel is not necessarily a universal right.

- We define qualifications to include not only outright denial of such an entitlement but also limitations on the extent of counsel’s participatory entitlements and on the concept of counsel “of one’s choice”.

Re Men’s Clothing Manufacturers Association of Ontario and Toronto Joint Board, Amalgamated Clothing and Textile Workers’ Union

Factual Background- Disputes in the men’s clothing industry in Toronto were resolved by arbitration, and the process

had been conducted for decades without lawyers. After this particular grievance was begun, the association made a general statement that it wished to change this practice and use lawyers for some disputes. The preliminary ruling was made by the arbitrator.

Judgment- The judgment of the labour arbitrator has been omitted. Judge Southey of the Ontario Divisional

Court stated the following:- Not only did the common law authorities to which the learned arbitrator referred not deal with

arbitrations under collective agreements, they also did not deal with the right of a corporation or association to representation at an arbitration hearing.

- In the case at bar, none of the parties to the proceedings before the learned arbitrator is a natural person.

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- It is not question that the association, the company, and the union are all entitled to appear at the arbitration hearing and to be heard by the arbitrator. The only way in which they can appear is by natural persons acting as their agents. By ruling that the applicants could not be represented by legal counsel, the learned arbitrator limited the parties in their choice of agents, by denying them the right to retain as agents a particular class of persons whose members are widely retained in such matters in other industries.

- In my judgment, the learned arbitrator had no authority thus to limit the rights of persons who were clearly entitled to appear before him by agents, and he erred in law in doing so. As a general rule, in my judgment, a party entitled to be represented by an agent before a domestic tribunal, cannot be restricted by the tribunal in the choice of its agents, in the absence of an applicable rule or agreement containing such restriction.

- Where the arbitration arises out of an agreement, one must look at the intention of the parties as it appears from the words of the agreement and the surrounding circumstances.

- In the industry with which the learned arbitrator was concerned, however, neither side had been represented by legal counsel in arbitrations throughout a history of about 60 years. It would be impossible to find in these circumstances that the parties clearly intended to be represented by legal counsel at an arbitration hearing, if desired, and to find an implied term to that effect in the collective agreement. The result is that a natural person in the industry in question does not have an absolute right to representation by legal counsel.

- The learned arbitrator, having found that the applicant had no absolute right to representation by legal counsel, declined to exercise his discretion to permit such representation in this case, except to a very limited extent.

- The company established the following points in affidavit evidence that were not contradicted:o 1 That the general manager of the company, who might otherwise have conducted the

arbitration proceedings, did not feel capable of conducting the proceedings in this case because of the complexity of the legal issues;

o 2 That the company would cease to be an economically viable business if the arbitrator rules that it must cease the practices under attack by the union;

o 3 That the compensation sought by the union could be assessed in an extremely large amount, which, if awarded by the arbitrator, would jeopardize the continued existence of the company.

- In view of the vital importance of the controversy to the applicant company, and the apparent complexity of the matter both in law and in fact, natural justice, in my view, requires that the applicants be represented by legal counsel at the arbitration hearing without any limitation, even if the applicants had no absolute right thereto. For this reason, the learned arbitrator, in my judgment, was in error.

Case Analysis- There may be occasions when, in the course of hearings, counsel will be allowed to be present but

not the parties counsel present. The most common example of this is in proceedings where information of commercial significance is being adduced and it is thought inappropriate for business competitors to be present.

Re ParrishFactual Background- The captain of a ship that had been involved in a collision with another ship was summoned to

appear before an investigator appointed by the board to be examined in the context of an investigation being conducted under sec. 14 of the Canadian Transportation Accident Investigation and Safety Board Act.

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- The captain appeared with two counsels, but the investigator refused to allow the captain to have counsel at the hearing. The investigator had previously allowed counsel to be present when members of the crew of the other ship were interviewed.

- As a result, the captain refused to testify. - The Board put a question to the Federal Court – Trail Division under sec. 18(3) of the Federal

Court Act as to whether it could require the captain to attend and give evidence under oath without the presence of counsel.

Judgment- The judgment was written by Judge Rouleau. After setting out the facts, legislative scheme, and

arguments of counsel, he proceeded to deal with the submission that Irvine was determinative and the captain had no claim to be represented by counsel as a matter of course or for review of the investigator’s exercise of discretion in denying him representation – Irvine was discussed in chapter 4.

- There is no doubt that both statutes contain many similarities, but I am of the view that Irvine…is quite distinguishable from the legislation governing this Board insofar as privilege extended to witnesses. In fact, what Justice Estey was determining in Irvine was whether or not counsel could exercise greater functions, such as the cross-examination of other witnesses.

- I think it is important to point out the distinctions between the enabling legislation of this Board and the Restrictive Trade Practices Commission. In Irvine, the Hearing Officer could not make public the transcript of evidence. In contrast, before this Board transcripts can, in certain circumstances, be made available. Additionally, in Irvine, the evidence gathered was not published but was delivered by the Director only to those against whom an allegation may have been made and that person was to be allowed full opportunity to be heard in person or by counsel. It is obvious from the evidence before me that such is not the case before this Board.

- The scope of the fairness principle depends on the consequences and nature of the inquiry as well as the repercussions on the individuals involved. In this particular case, a witness could be faced with a negative report seriously affecting his rights without being given a fair opportunity to present his case with the assistance of counsel.

- I accept that the participation of counsel may be limited, nevertheless a witness should be provided with adequate safeguards.

Conclusion- My review of the jurisprudence reveals that the duty to act fairly implies the presence of

counsel when a combination of some or all of the following elements are either found within the enabling legislation or implied from the practical application of the statute governing the tribunal:

o 1 Where an individual or witness is subpoenaed, required to attend and testify under oath with a threat of penalty

o 2 Where absolute privacy is not assured and the attendance of others is not prohibited

o 3 Where reports are made publico 4 Where an individual can be deprived of his rights or his livelihoodo 5 Where some other irreparable harm can ensue

- I do not intend this list to be exhaustive.- However, I have no doubt that boards or tribunals are masters of their own procedure and it is

certainly within the Board’s domain to limit not only the number of counsel but also the scope of their participation.

Case Analysis

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- The considerations that led Judge Rouleau to distinguish Irvine were his views as to the potential impact of the inquiry on Parrish’s reputation and career was well as a perception that counsel might well be essential to the protection of those interests.

Dehghani v. Canada (Minister of Employment and Immigration) – contrast to Parrish – right to counsel will depend on the stage the proceedings are in – this case, no right to counsel at secondary interview stage for customs clearance

Factual Background- At stake here was the procedure employed at ports of entry to Canada when the initial

immigration officer has concerns about the admissibility of a person. In such cases, the person seeking entry was referred to a secondary examination at which there was no entitlement to representation by counsel.

- Dehghani had been referred to a secondary examination on arriving in Canada without any documents and asserting a Convention refugee claim.

- Later, the notes taken at that secondary examination were entered at the “credible basis” stage of the Convention refugee process, at which point Dehghani was represented by counsel. He was found not to have a “credible basis” for his claim and a removal order was made.

- In the ensuing judicial review proceedings, Dehghani claimed that the denial of access to counsel during the course of the secondary examination infringed both sec. 10(b) and sec. 7 of the Charter.

Judgment- The Supreme Court held that sec. 10(b) did not apply because the reference of a person

seeking entry to Canada to a secondary examination was not a “detention”. Second, while assuming that sec. 7 applied to such a process and conceding that it might provide residual protection notwithstanding the rejection of the sec. 10(b), the court was not prepared to see access to counsel as a necessary component of the “principles of fundamental justice”, at least at this stage of the process. Justice Iacobucci made the following statement:

“The purpose of the port of entry review was…to aid in the processing of the applicant’s application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering.”

R v. Secretary of State for the Home Department, ex parte Tarrant – six grounds of consideration that agency must exercise when deciding whether to grant counsel-privileges using its statutory power of discretion

Factual Background- Rules made under the Prison Act 1952 required hearings of disciplinary charges by boards of

visitors and gave each prisoner a “full opportunity of hearing what is alleges against him and of presenting his own case”.

- Five prisoners were charged, and their requests to be represented by counsel were refused. - They sought certiorari to quash decisions made against them and succeeded: there was no

common law right to be represented, but the boards had discretion to allow representation that was derived from their general power to regulate their own procedures and that had not been implicitly denied by the legislation.

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- The Board had refused the requests on the ground that representation was simply not allowed, and without considering this discretion.

- Some of the charges raised difficult issues of interpretation and the others involved severe penalties.

Judgment- Judge Webster held that representation by the Board could not reasonably have been refused. He

laid down the following six factors to be considered in prison disciplinary proceedings:- 1 The seriousness of the charge and of the potential penalty- 2 Whether any points of law are likely to arise. There is a duty to ensure that the prisoner

understands the charge. While there are law clerks who sit with the Board, they are not legally qualified and there may be cases where a legal point arises with which the prisoner, without legal representation, cannot properly deal.

- 3 The capacity of a particular prisoner to present his own case. A study was conducted by the Home Office on prisoners before and after adjudication of their cases. The study concluded that most were poorly educated, spoke poor English and some had psychiatric problems

- 4 Procedural difficulties – many prisoners are kept separated from other prisoners while awaiting adjudication which may have the effect of inhibiting the preparation of his defense. Without the capacity to interview potential witnesses, prisoners are often unable to satisfy boards that it is reasonable to call a witness.

- 5 The need for reasonable speed in making their adjudication- 6 The need for fairness as between prisoners and as between prisoners and prison officers.

Howard v. Stony Mountain InstitutionFactual Background- This is an appeal from a judgment of the Federal Court – Trial Division which dismissed the

appellant’s application for an order prohibiting the respondent from continuing or concluding the hearing of certain charges against the appellant under sec. 39 of the Penitentiary Service Regulations in the absence of legal counsel as requested by the appellant.

- The issue in this appeal is whether the request of the appellant was unlawfully refused.Judgment- It was not disputed by counsel for the respondent that the disciplinary court has authority and

indeed a duty to permit counsel to conduct the defense of an accused inmate where to deny it would breach the obligation to deal fairly with him – this is referred to as discretion.

- The appellant does not contest the fact that discretion may be exercised on his right to counsel. - What is in issue is, thus, solely whether the appellant had an undeniable right to counsel and,

more particularly, whether sec. 7 of the Charter guaranteed him that right .- On December 31, 1982, he was involved in incidents with officers of the institution as a result of

which five charges were laid against him under sec. 39 of the Regulations.- On January 6, 1983, the appellant appeared before a presiding officer and entered pleas of guilty

to the charges of possessing contraband and disobeying a lawful order, and pleas of not guilty on the remaining three charges.

- Subsequently, charges of having contraband on January 4, 1983, and failing to obey a lawful order on January 20, 1983, were laid. To these the appellant pleaded not guilty.

- On February 3, 1983, by which time he had secured counsel, the appellant appeared before the presiding officer who thereupon adjourned the hearing in order to obtain written submissions from counsel for the appellant and for the Department of Justice on the request of the appellant to have counsel represent him at the hearing.

- The request was denied on April 11, 1983. The presiding officer held that sec. 7 does not create “a new wave of rights” and, as he was not persuaded that there were circumstances in the

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particular case which precluded the possibility of a fair hearing in the absence of counsel, he exercised his discretion and denied the request.

- On May 10, 1983, the appellant had 267 days of earned remission standing to his credit and was due for release on mandatory supervision on June 9, 1983.

- We were informed by counsel for the appellant that the hearing in the inmate disciplinary court proceeded on June 9, 1983, when the appellant was found guilty on six of the seven counts and was sentenced to forfeiture of 70 days of his earned remission.

- Justice Thurlow then summarized the structure for discipline and concluded that even after the Supreme Court’s decision in Martineau, the appellant has no absolute right to counsel, whether under the principles of natural justice, or the duty to act “fairly”. At most, he had a chance that the disciplinary court would exercise their discretion in his favour.

- He went on to discuss a number of cases, the major on being R v. Secretary of State for Home Department, ex parte Tarrant, and cited the six factors enunciated by that court.

- I come then to sec. 7 of the Charter and whether it has the effect of affording an inmate in a disciplinary proceeding a right to counsel that is not subject to denial by the presiding officer on discretionary grounds.

- What was said to be at stake in the disciplinary proceedings is the liberty and security of the inmate and his right not to be deprived of them except in accordance with the principles of fundamental justice. The inmate’s liberty was said to be at stake because his earned remission was in jeopardy.

- I accept this analysis so far as the appellant’s liberty is involved and that, as I view it, is sufficient to present purpose.

- It appears to me that in interpreting sec. 7, and its meaning in the Charter, it is desirable to consider the wording of the provision in an effort to determine its ordinary meaning in its context. The subject-matter of sec. 7 is the right to life, liberty and security of the person. The fact that liberty and the security of the person are lumped together with life itself shows that the importance of the right to them is in the same class with that of the right to life itself.

- However, I am of the opinion that the enactment of sec. 7 has NOT created any absolute right to counsel in all such proceedings . Whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defense.

- As such, it follows that whether or not an inmates’ request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion, but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel.

- This brings me to the question whether the present case was a case in which the appellant’s request could lawfully be refused. Its principle feature was that the whole of the appellant’s 267 days of earned remission was in jeopardy. In my view, that alone suggests his need for counsel. Moreover, one of the three charges is that of an act calculated to prejudice discipline and good order, a notoriously vague and difficult charge for anyone to defend.

Joplin v. Chief Constable of the City of Vancouver – where a possible outcome of the proceedings would be the loss of one’s job or career, the duty of fairness will almost always require the right to counsel

Factual Background- The validity of rules made about the right of police officers to be represented by counsel in

discipline proceedings was challenged.- The Police Act authorized the lieutenant governor in council to “make regulations…for the

government of police forces and governing…dismissal and punishment of members of police forces”.

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- The lieutenant governor made regulations that provided that if the maximum penalty was dismissal or a reduction in rank, then the officer could be represented by counsel; if the penalty was a lesser one, the officer could be represented by a member of the police force only.

- The validity of this rule was challenged as being ultra vires and contrary to sec. 7 of the Charter.Judgment- At trial, Judge McEachern of the B.C. Divisional Court chose to consider only the ultra vires

challenge This decision was affirmed on appeal. He concluded:“I do not think it possible to treat any disciplinary proceedings under this disciplinary code…as other than serious. In today’s society, where career decisions must be made at an early age…and where good conduct is obviously an important factor in promotion and, therefore, salary…it is clearly untenable to argue that a recorded conviction for a disciplinary default…is not serious… When the Lieutenant-Governor in Council established a formal legal procedure he could not, with fairness, leave out the most important safeguard in the legal process, that is, the right to counsel. I am satisfied that justice and fairness cannot tolerate a procedure where a layman is expected to deal with legal concepts which are strange to him, and at the same time advise himself objectively. It follows, in my view, that the Lieutenant-Governor in Council has exceeded the authority given by the Legislature when it enacted sec. 18(2) of the Regulations, and that provision is accordingly ultra vires and of no force of effect.”

New Brunswick (Minister of Health and Community Service) v. G.(J.) – right to counsel under sec. 7Factual Background- As stake was whether sec. 7 of the Charter required that a mother be provided with counsel for

the purposes of resisting an application by the Child Welfare authorities for renewal of an order placing her three children in the custody of the state.

- A policy under the Legal Aid plan prohibited the granting of legal aid certificates in custody-order renewal proceedings.

Judgment- Justice Lamer wrote for the majority of the Supreme Court. He stated the following.- In the circumstances of this case, the appellant’s right to a fair hearing required that she be

represented by counsel. I have reached this conclusion through a consideration of the following factors: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant.

- The interests at stake in the custody hearing are unquestionably of the highest order. Not only is the parent’s right to security of the person at stake, the child’s is as well.

- Of particular importance is the fact that the state was seeking to extend a previous custody order by six months. It is even more significant when considered in light of the fact that the appellant had already been separated from her children for over a year.

- At issue in this appeal is whether the custody hearing would have been sufficiently complex that the assistance of a lawyer would have been necessary to ensure the appellant her right to a fair hearing. I believe that it would have been.

- Additionally, although a custody hearing is more an administrative function than it is criminal, it is effectively an adversarial proceeding which occurs in a court of law.

- In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case. There is no evidence to suggest that the appellant possessed such capacities.

- I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual’s right to life, liberty or security of the person. Where it is necessary for the parent to be presented by counsel is

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directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent.

- Additionally, the level of seriousness varies in custody hearings depending on the length of the proposed separation of the parent from the child. There is also a difference in the seriousness of the interests at stake in custody hearings depending on the length of any previous separation.

- The parent’s capacities are also variable. Some parents may be well educated, familiar with the legal system, and possess above-average communication skills and the composure to advocate effectively. Therefore, it follows that the more serious and complex the proceedings are, the more likely it will be that the parent will need to possess exceptional capacities for there to be a fair hearing if the parent is unrepresented.

- I, therefore, conclude that the potential restriction of the appellant’s right to security of the person would not have been in accordance with the principles of fundamental justice had the custody hearing proceeded with the appellant unrepresented by counsel. The potential violation in this case would have been the result of the failure of the Government of New Brunswick to provide the appellant with state-funded counsel.

Sec. 1 Analysis- Although this case involves a prospective violation of sec. 7, it is still necessary to engage in a

sec. 1 analysis.- The appellant quite rightly is not directly challenging the Legal Aid Act, but rather administrative

decisions made pursuant to it.- Assuming without deciding that the policy of not providing state-funded counsel to respondents

in custody applications was a limit proscribed by law, that the objective of this policy – controlling legal aid expenditures – is pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal impairment of sec. 7, I find that the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings.

- As Re B.C. Motor Vehicle Act has demonstrated, sec. 7 violations are not easily saved by sec. 1. This is for two reasons. First, the rights protected by sec. 7 – life, liberty and security of the person – are very significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit justified in a free and democratic society.

- The Government of New Brunswick argues that the objective of limiting legal aid expenditures is of sufficient importance to deny the appellant a fair hearing.

- I must respectfully disagree. The additional costs of providing state-funded counsel in these circumstances are insufficient to constitute a justification within the meaning of sec. 1. Moreover, the government is not under an obligation to provide legal aid to every parent who cannot afford a lawyer. Rather, the obligation only arises in circumstances where the representation of the parent is essential to ensure a fair hearing where the parent’s life, liberty or security of the person is at stake.

Case Analysis- In crafting an appropriate remedy, Lamer concluded that where a parent in a custody matter wants

a lawyer, but is unable to afford one, the judge should first inquire whether the parent has applied for legal aid. If the parent has not exhausted all possible avenues for obtaining state-funded assistance, proceedings should be adjourned to give the parent a reasonable time to make appropriate applications provided the best interests of the child is not compromised. The court should then consider whether the parent can receive a fair hearing if unrepresented applying the factors identified in the judgment. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role. If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing, and there is no other way to

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provide the parent with a lawyer, the judge should order the government to provide the parent with state-funded counsel under sec. 24(1) of the Charter .

Disclosure and Official Notice –- Imagine that an agency hears oral evidence and representations from one party in the absence of

another party and does not disclose this evidence to the other part or give an opportunity to respond to it. Or imagine that the same agency receives documentary evidence or representations from one party and does not disclose it to another party or give an opportunity to respond. In these circumstances, if the agency relies on the evidence or representations, its decisions can be challenged.

- The general principles are clear; a party is entitled to know what evidence and representations have been given and is entitled to an adequate opportunity to respond.

- Kane v. Board of Governors of the University of B.C. o Kane was a professor at UBC and was suspended by the president for improper use of

computer facilities. o He appealed to the Board of Governors, of which the president was a membero The Board held a hearing, attended by Kane and the president.o After the hearing, the Board had dinner and met, without Kane, to discuss the case.o A member of the Board made an unchallenged and unelaborated statement that the

president did not participate in the discussion or vote, but gave the Board “the necessary facts”.

o Justice Dickson said the following:“The Board was under an obligation to postpone further consideration of the matter until such time as Dr. Kane might be present and hear the additional facts adduced; at the very least the Board should have made Dr. Kane aware of those facts and afforded him a real and effective opportunity to correct or meet any adverse statement made… The Board heard the further facts, deliberated, and ruled against Dr. Kane. In doing so, it made a fundamental error.”

- Disclosure is a basic element of the common law of natural justice and is usually required unless some competing interest prevails. The justification for the requirement is simply to enable the party to know and respond to information that the agency has and that may influence its decision.

- However, limits are placed on disclosure in the name of confidentiality claims of various kinds.

Access to Information Statutes- Many jurisdictions in Canada now have “freedom of information” and privacy laws.- At times, access to information requests may be an important aspect of preparing for a regulator

hearing, particularly as a surrogate for pre-hearing discovery.- However, what should also be realized is that just because information is exempted from

disclosure under freedom of information legislation does not necessarily mean that its disclosure will also be denied in proceedings to which the rules of natural justice or procedural fairness apply. Thus, under the federal freedom of information legislation, it is provided that the Act is without prejudice to other laws governing access to information. This clearly includes the common law of natural justice and procedural fairness.

Crown or Executive Privilege- At the federal level in Canada, the common law of Crown or executive privilege has been

codified in provisions in the Canada Evidence Act. - As opposed to the situation with the Access to Information Act, these privileges are applicable to

proceedings before administrative agencies.- For reference to the Canada Evidence Act, see page 407-409.

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- Outside the federal domain , the matter of Crown or executive privilege is still regulated by the common law. In Carey v. Ontario, the Supreme Court held that there is no room for absolute privilege and the last word on any claim for privilege rests with the courts, not the executive.

Other Common Law Evidential Privileges- The common law also provides for various other forms of privilege. For example, solicitor-client

privilege and adjudicative privilege.- The difficulties in deciding about the existence and extent of a right to disclosure are usually the

effect of competing interests. The typical difficulties and choices can be demonstrated in four groups of situations:

o 1 An agency may have collected information about an individual, and the individual may wish disclosure of this information

o 2 An agency may have collected information about an individual from other persons, and the individual may wish to know their identity

o 3 An agency may have collected information about a business, usually as a required part of an application, and other parties, often competitors, may wish disclosure

o 4 An agency may have material that it has created itself – for example, staff reports about particular corporations or about general economic conditions, or guidelines or statements of policy. Any party – for example, competitors of the particular corporations – may wish disclosure of this material.

#1 – Access to Agency Information- This problem has arisen frequently in attempts to access the files of workers’ compensation

boards, especially disclosure of the medical reports in these files.- Three major kinds of argument can be made for disclosure. The first is the basic and powerful

belief that individuals should have the right to know what government knows about them. The second is that disclosure would increase substantially the effectiveness of the participation of workers in the decision-making process, because it would enable them to respond to information to be used by the board. The third is that disclosure would tend to improve the quality of the reports, by exposing carelessness and vagueness.

- An important reason for refusing disclosure was the attitude of doctors. One specific fear was the prospect of litigation and ability. More generally, doctors suggested that disclosure would reduce the frankness and detail of the reports.

- The Ontario Medical Association made the following statement in a brief to the Commission on Freedom of Information and privacy:

“… The fear of such comments being read aloud in a court of law has caused many doctors to refrain from including in medical records statements which might be embarrassing under such circumstances, even though they may be extremely helpful in the care of the patient.”

Re Napoli and Workers’ Compensation Board – establishes process on how to assess whether the extent of the disclosure provided by the agency of information it has gathered on the individual is sufficient in the circumstances

Factual Background- The issue before us is basically this: was the Judge right in finding that the boards of review and

the commissioners of the WCB breached the rules of natural justice in failing to give the worker a full opportunity to peruse his file when he appealed from the original decision of a disability awards officer or commissioner?

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- In order to answer that question, one must first examine the procedures provided for in such appeals.

- Under sec. 55 of the Act, an injured worker may apply for compensation. The application is heard by a disability awards officer or by a commissioner. On such an inquiry, the officer or commissioner can compel the attendance of witnesses, examine them on oath and order production of documents. The WCB may then act on the report and award compensation.

- If an officer awards compensation to the worker, the worker may appeal that ruling to the board of review within 90 days. The boards of review are independent bodies.

- If the board of review does not uphold the officer’s finding, its decision goes to the WCB for reconsideration. At this stage, the final decision is made by a majority of the commissioners present at the WCB meeting.

- If the worker is dissatisfied with the decision of the board of review, he may in some cases appeal the finding to the commissioners of the WCB

- Following Napoli’s injury he was advised, by a disability awards officer that his compensable disability was 5% of total disability.

- Prior to the hearing before the board of review, a WCB compensation consultant provided Napoli’s counsel with a four page summary of the information in his file.

- Subsequently, the board of review heard Napoli’s appeal. At the same time, it declined to disclose medical reports in Napoli’s file. In its recommendation to the WCB, the board of review suggested that Napoli’s appeal be denied.

- Napoli appealed for leave to appeal the decision of the board of review to the commissioners of the WCB, and leave was granted.

Judgment- The trial judge held that the rules of natural justice applied to proceedings before the boards of

review and the commissioners, and that the files should be disclosed to the workers. He found that summaries of the file contents did not satisfy the requirements of natural justice.

- Did the learned trial judge error? In my opinion, he did not.- The issues resolve themselves into (a) do the rules of natural justice in cases of this genre require

disclosure, and (b) if disclosure is required, what is its extent?- As far as the first issue is concerned, I have no difficulty in answering that question in the

affirmative.- I now turn to the second issue. Counsel for the WCB argued that the summaries in the Napoli

case were sufficient to comply with the rules of natural justice.- In assessing this ( whether extent of disclosure is sufficient ), one should note that none of the

experts are named, and there is no way of ascertaining the extent of their original reports. Additionally, it is instructive to read the summary when one assess whether it constitutes a proper means of disclosing to Napoli the case made against him. I need only quite a few items from this summary to indicate its inadequacies:

“… There was evidence of an elaboration of his medical complaints and evidence of depression suggesting development of neurotic problems… Throughout the examination, he exaggerated and simulated.”

- The above represents a sampling of damaging statements which counsel would undoubtedly wish to challenge in the interests of his client. To do so effectively would require production of the original reports. – more disclosure is required when contentious statements are made about the individual, especially ones which have the effect of threatening his livelihood

- In these circumstances, a high standard of justice is required particularly since Napoli’s future will be largely shaped by the decision of the final domestic tribunal.

- Counsel for the WCB drew our attention to the WCB’s reasoning for justifying its procedure of only providing summaries in cases of this kind. He quoted the following statement:

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“Our survey, since late 1978, of those who provided information for claim files…has convinced us that if we were to open our files to scrutiny by claimants or their representatives, there would be a significant adverse effect on the nature and extent of evidence submitted on claims… First, there is concern about the loss of accuracy and frankness that would be likely to result… The likely result could be reports that are vague and unreliable to the point of being worthless. More examinations by Board doctors may then be needed with a consequential increase in administrative costs.”

- In my respectful opinion, this reasoning does not conform to the tenets expressed by the courts in applying the rules of natural justice. In particular, this reasoning glosses over the valid contrary view that persons preparing reports which they know will be amenable to scrutiny will prepare them with greater care and diligence, and, more important, that fairness requires that the original reports be disclosed in order that the claimant can effectively answer the case against him.

- It is my view that the provision of summaries was not sufficient compliance with the rules of natural justice in the circumstances of this case.

Charkaoui   v.   Canada (Citizenship and Immigration) – sec. 7 is engaged when a breach of the rights that it guarantees will or may happen as a result of the agency – administrative justifications for limiting sec. 7 are not to be dealt with in the sec. 7 stage of the inquiry – they are to be dealt with in the sec. 1 inquiry – what will be relevant at the sec. 7 inquiry stage is the degree of procedural protections which is required in the circumstances.

Factual Background- The Immigration and Refugee Protection Act (IRPA) allows the Minister of Citizenship and

Immigration and the Minister of Public Safety and Emergency Preparedness to issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of security, among others (sec. 77), and leading to the detention of the person named in the certificate. The certificate and the detention are both subject to review by a judge of the Federal Court, in a process that may deprive the person of some or all of the information on the basis of which the certificate was issued or the detention ordered (sec. 78). Once a certificate is issued, a permanent resident may be detained, and the detention must be reviewed within 48 hours; in the case of a foreign national, the detention is automatic and that person cannot apply for review until 120 days after a judge determines the certificate to be reasonable (sec. 82-84). The judge’s determination on the reasonableness of the certificate cannot be appealed or judicially reviewed [sec. 80(3)]. If the judge finds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and which may be immediately enforced (sec. 81).

- Certificates of inadmissibility have been issued by the Ministers against the appellants C, H and A. While C is a permanent resident, H and A are foreign nationals who had been recognized as Convention refugees. All were living in Canada when they were arrested and detained on the basis of allegations that they constituted a threat to the security of Canada by reason of involvement in terrorist activities.  C and H were released on conditions in 2005 and 2006 respectively, but A remains in detention. Both the Federal Court and the Federal Court of Appeal upheld the constitutional validity of the IRPA certificate scheme.

Judgment(A) Does the Procedure Under the IRPA for Determining the Reasonableness of the Certificate Infringe

Sec. 7 of the Charter, and if so, Is the Infringement Justified Under Sec. 1 of the Charter?(1) Is Sec. 7 of the Charter Engaged?

- This requires a claimant to prove two matters: first, that there has been or could be a deprivation of the right to life, liberty and security of the person, and second is that the deprivation was not or

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would not be in accordance with the principles of fundamental justice. If the claimant succeeds, the government bears the burden of justifying the deprivation under sec. 1.

- The provisions at issue clearly deprive detainees such as the appellants of their liberty .  The person named in a certificate can face detention pending the outcome of the proceedings.

- The detainee’s security may be further affected in various ways.  The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened. A person who is determined to be inadmissible on grounds of security can be deported to torture if the Minister is of the opinion that the person is a danger to the security of Canada.

- In Suresh v. Canada (Minister of Citizenship and Immigration) this Court stated that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by sec. 7 of the Charter.”

- The appellants claim that they would be at risk of torture if deported to their countries of origin.- The individual interests at stake suggest that sec. 7 of the Charter, the purpose of which is to

protect the life, liberty and security of the person, is engaged. - This leads to the question whether the IRPA impingement on these interests conforms to the

principles of fundamental justice. - The government argues relying on Medovarski   v. Canada (Minister of Citizenship and

Immigration) that sec. 7 does not apply because this is an immigration matter. The court in Medovarski cited the court in Chiarelli v. Canada (Minister of Employment and Immigration) and stated that “the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”.  The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by sec. 7”.

- On closer analysis, one can conclude that Medovarski does not stand for the proposition that proceedings related to deportation in the immigration context are immune from sec. 7 scrutiny.

- In determining whether sec. 7 applies, we must look at the interests at stake , rather than the legal label attached to the impugned legislation.  As Professor Hamish Stewart writes:

“…the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings.”

- I conclude that the appellants’ challenges to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security, and that sec. 7 of the   Charter   is engaged .

(2) How Do Security Considerations Affect the Sec. 7 Analysis?- Societal interests may be taken into account in elucidating the applicable principles of

fundamental justice.- However, unlike sec. 1, sec. 7 is NOT concerned with whether a limit on life, liberty or

security of the person is   justified , but with whether the limit has been imposed in a way that respects the principles of fundamental justice.

- Sec. 7 does not permit “a free-standing inquiry…into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general”. As the majority in Malmo-Levine noted, to hold otherwise “would entirely collapse the sec. 1 inquiry into sec. 7”

- The question at the sec. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation.

- It follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the sec. 7 stage of the analysis.

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- In the instant case, the context is the detention, incidental to their removal or an attempt to remove them from the country, of permanent residents and foreign nationals who the ministers conclude pose a threat to national security. This context may impose certain administrative constraints that may be properly considered at the sec. 7 stage. Full disclosure of the information relied on may not be possible.

- At the same time, the seriousness of the individual interests at stake also forms part of the contextual analysis. As this court stated in Suresh, “the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under sec. 7 of the   Charter ”.

- The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. The protection may not be as complete as in a case where national security constraints do not operate.  But to satisfy sec. 7, meaningful and substantial protection there must be. 

(3) Relevant Principles of Fundamental Justice- The overarching principle of fundamental justice that applies here is this: before the state can

detain people for significant periods of time, it must accord them a fair judicial process.- This basic principle comprises (1) the right to a hearing. It requires that the (2) hearing be before

an independent and impartial magistrate. It demands a (3) decision by the magistrate on the facts and the law. And it entails the (4) right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for sec. 7 to be satisfied, each of them must be met in substance.

- The IRPA process includes a hearing. Thus, the first requirement, that of a hearing, is met.- However, questions arise on the other requirements, namely: (1) that the judge be independent

and impartial; (2) that the judge make a judicial decision based on the facts and the law; and finally, (3) that the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question or counter it. 

- I conclude that the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements, which are interrelated here.

(4) Is the Judge Independent and Impartial?- It is not enough that the judge in fact be independent and impartial; fundamental justice requires

that the judge also appear to be independent and impartial. This flows from the fact that judicial independence has two facets: actual independence and perceived independence.

- The question here is whether, from an institutional perspective, the role assigned to designated judges under the IRPA leads to a perception that independence and impartiality are compromised.

- When reviewing the certificate, the judge sees all the material relied on by the government. But if the government claims confidentiality for certain material, the judge cannot share this material with the named person.

- Additionally, part of the hearing may be held in camera, where there is no one to speak for the person or to test the evidence put against him or her.

- These circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial.

- Three related concerns arise with respect to independence and impartiality.  First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government. Second is the concern that the designated judge functions as an investigative officer rather than a judge. Third is the concern that the judge, whose role includes compensating for the fact that the named person

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may not have access to material and may not be present at the hearing, will become associated with this person’s case.

- The first concern is linked to the degree of deference that the judge accords to the minister. In practice, however, judges working under this process have eschewed an overly deferential approach, insisting instead on a searching examination of the reasonableness of the certificate on the material placed before them. They are correct to do so, having regard to the language of the provision. The statute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructing the judge to do so “on the basis of the information and evidence available”. I conclude that a non-deferential role for the designated judge goes some distance toward alleviating the first concern, that the judge will be perceived to be in the camp of the government.

- The second concern is that the judge may be seen to function more as an investigator than as an independent and impartial adjudicator. However, the mere fact that a judge is required to assist in an investigative activity does not deprive the judge of the requisite independence. The IRPA provisions before the court preserve the essential elements of the judicial role. The process established by the legislation at issue is not purely investigative; the judge’s task of determining whether the certificate is “reasonable” seems on its face closer to adjudicative review of an executive act than to investigation.

- The third concern is that the judge’s role as sole protector of the named person’s interest may associate the judge, in fact or perception, with that interest. This concern must be balanced against the opposite concern that the judge may appear to be part of the government scheme and hence in the government’s camp.  The critical consideration, however, is that the IRPA requires the judge to conduct the review in an independent and judicial fashion.

- I conclude that, on its face, the   IRPA   process is designed to preserve the independence and impartiality of the designated judge, as required by sec. 7.

(5) Is the Decision Based on the Facts and the Law?- To comply with sec. 7 of the Charter, the magistrate must make a decision based on the facts and

the law. In the extradition context, the principles of fundamental justice have been held to require, “at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law.

- The IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation.

- However, under the procedures established by the IRPA, the named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge’s decision, while based on the evidence before him or her, may not be based on all of the evidence available.

- In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. Unfortunately, the designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. The result is a concern that the designated judge may be obliged to make the required decision based on only part of the relevant evidence.

- Similar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the named person may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence.

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(6) Is the “Case to Meet” Principle Satisfied?- A fair hearing requires that the affected person be informed of the case against him or her,

and be permitted to respond to that case. - The question is whether the procedures “provide an adequate opportunity for an affected person

to state his case and know the case he has to meet.- Under the   IRPA ’s certificate scheme, the named person may be deprived of access to some

or all of the information put against him or her, which would deny the person the ability to know the case to meet.

- Rather, the IRPA provides that the judge “shall provide” the named person with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate. However, the summary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person.

- Consequently, the named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.

- At the same time, the right to know the case to be met is not absolute. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side.

- More particularly, this court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. These decisions made clear that societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice.

- In some contexts, substitutes for full disclosure may permit compliance with sec. 7 of the Charter. For example, in Chiarelli, this court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross-examine RCMP witnesses who testified in camera satisfied the requirements of fundamental justice.

- However, it is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention.

- If sec. 7   is to be satisfied in this case, then either the person must be given the necessary information, or a substantial substitute for that information must be found.   Neither is the case here.

- The only protection the IRPA accords the named person is a review by a designated judge to determine whether the certificate is reasonable. 

- The ministers argue that this is adequate in that it maintains a “delicate balance” between the right to a fair hearing and the need to protect confidential security intelligence information. 

- The appellants, on the other hand, argue that the judge’s efforts, however conscientious, cannot provide an effective substitute for informed participation.

- I agree with the appellants. The issue at the sec. 7 stage is not whether the government has struck the right balance between the need for security and individual liberties; that is the issue at the stage of sec. 1 justification of an established limitation on a   Charter   right.   The question at the sec. 7 stage is whether the basic requirements of procedural justice have been met, either in the usual way or in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected.

- The judge, working under the constraints imposed by the IRPA, simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing.  The judge sees only what the ministers put before him or her. The judge is, therefore, not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring.

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(7) Conclusion on Sec. 7- The secrecy required by the scheme denies the named person the opportunity to know the case

put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law.

- I therefore conclude that the IRPA’s procedure for determining whether a certificate is reasonable does NOT conform to the principles of fundamental justice as embodied in sec. 7 of the Charter.

(8) Is the Limit Justified Under Sec. 1 of the Charter?- The Charter does not guarantee rights absolutely. However, violations of sec. 7 are not easily

saved by sec. 1. - The Oakes test requires a pressing and substantial objective and proportional means. A finding of

proportionality requires: (a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective.

- The protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective. Moreover, the IRPA’s provisions regarding the non-disclosure of evidence at certificate hearings are rationally connected to this objective.

- This leaves the question whether the means Parliament has chosen minimally impairs the rights of non-citizens.

- The United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the   IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under sec. 1 of the Charter.

(a) Less Intrusive Alternatives- The U.K.’s special advocate system is a good example of a less intrusive alternative. Sec. 6(1) of

the Special Immigration Appeals Commission Act 1997 (U.K.) states that the special advocate is appointed to “represent the interests of an appellant” in any proceedings before SIAC from which the appellant and his or her legal representatives are excluded. 

- Sec. 6(4), however, specifies that the special advocate “shall not be responsible to the person whose interests he is appointed to represent”. Rule 35 of the Special Immigration Appeals Commission (Procedure) Rules 2003 sets out the special advocate’s three main functions: (1) to make submissions to the Commission at any hearings from which the appellant and the appellant’s representatives are excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make written submissions to the Commission. After seeing the protected information, the special advocate may not communicate with the appellant or the appellant’s representative without authorization from the Commission. If the special advocate requests such authorization, the Commission gives the Secretary of State an opportunity to object to the proposed communication before deciding whether to authorize it.

- That said, the U.K.’s special advocate system has also been criticized for not going far enough. A Committee set up to oversee the functioning of the Special Advocate System listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defense; and (3) they have no power to call witnesses.

(b) The IRPA Scheme Does Not Minimally Impair the Named Person’s Rights- The alternatives discussed demonstrate that the IRPA   does not minimally impair the named

person’s rights.

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- Under the IRPA, the government effectively decides what can be disclosed to the named person. Not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests.

- I conclude that the IRPA’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case.  Mechanisms developed abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA.

Re Egglestone & Mousseau and Advisory Review Board- The practice of the board, in exercising its mandate under the Mental Health Act, was to receive

from the administrator of the institution the file for each patient.- Egglestone requested disclosure of his hospital file, and the chairman made an order that

permitted only his counsel to read it, only in the presence of a member of the board, and only on the condition that it not be disclosed to Egglestone.

- He sought review and failed. Judge Griffiths said:“…it seems to me that this is the only reasonable order that could have been made by the chairman to achieve a balance between the right of the patient to disclosure of the relevant facts, as against the right, indeed the duty, of the Board to preserve confidentiality of information in sensitive areas.”

- Egglestone made another claim: two of the members of the board were psychiatrists and the usual practice was that they would examine the patient and report their findings to the board in private.

- Egglestone sought disclosure of their notes, to be present with counsel when they made their report, and to cross-examine.

- The entire Divisional Court refused cross-examination, because the statute left it to the discretion of the chair, and refused disclosure of the notes, but a majority allowed the request to be present. Judge Griffiths said:

“… Indeed, their analysis based on the interview and the review of the medical file may, in most cases, be a determining factor in the Board’s ultimate recommendation. Here, following the reports of the psychiatrists, the Board adopted their recommendation… I can see no difference in principle to the approach which should be taken to facts relied on by the Board, but contained in the reports of the Board psychiatrists and those contained in documents, which the Court of Appeal in Abel held were subject to disclosure, however conditional.”

Identity of Sources of Information- The second situation involves claims to disclosure of sources of information, and there is no

general rule beyond “reasonableness”. Consider these examples:o 1 A nurse is a psychiatric hospital has been charged with abuse of patients, and a

hearing will be held by the discipline committee of the College of Nurses. Clearly it must give particulars such as names of the patients and dates. Must it also disclose the names of the individuals who told it about the alleged abuse? Consider the possibility that they may be personal enemies, or staff bypassed in the nurse’s recent promotion.

o 2 Is an applicant entitled to know the identity of the persons who gave information about his citizenship application? Consider the possibilities that they may be on opposite sides of political fences in his homeland, or undercover RCMP agents who would prefer to remain undercover.

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Gallant v. Canada (Deputy Commissioner, Correctional Services Canada) – extent of disclosure required by procedural fairness must be assessed in light of any countervailing concerns – Ex. identity and safety of informants – sec. 7 (liberty) is invoked when inmate transferred to higher-security prison

Factual Background- G was a prisoner at Kent Institution, a maximum security penitentiary. He was advised that he

was suspected of involvement in extortion and drugs and that the warden intended to seek his transfer to the Saskatchewan Penitentiary, a maximum security facility.

- The formal notification to the prisoner explained that information had been received indicating that he was involved in the extortion of money and personal property from inmates and from members of the community, threats of violence to other persons, and the importation of drugs.

- More specific information was not disclosed to the prisoner on the ground that it would “jeopardize the safety of the victims” of his actions.

- G applied to the Federal Court – Trial Division for an order quashing the ultimate decision of T, a deputy commissioner, to transfer him.

- Certiorari was granted on the ground that the notice given to the prisoner was insufficient to satisfy the requirements of procedural fairness.

- T (deputy commissioner) appealed.Judgment - The first concurring judgment was written by Justice Pratte. He stated the following:

Natural Justice & Procedural Fairness Consideration- The requirements of procedural fairness, like those of natural justice, vary with the

circumstances.- In the present case, notice was given to the respondent, but that notice was drafted in so general

terms that it probably did not really enable the respondent, assuming his innocence, to refute the case against him.

- The appellant Warden contends that he could not give more particulars without disclosing the identity of six informants who would then “be in danger of death or serious bodily injury by other members of the inmate population”. I do not see any reason to contest the correctness of that opinion.

- The question, therefore, is whether these circumstances were sufficient to relieve the appellant from the obligation to give a more detailed notice.

- In my view, they were. Parliament cannot have intended, when it gave the Commissioner and his delegates the power to transfer inmates from one penitentiary to another, that they should be bound by the rules of procedural fairness even when the application of those rules would endanger the lives of other inmates.

Sec. 7 Consideration- This conclusion, however, does not dispose of the case since the respondent argued that the

appellant’s decision violated sec. 7 of the Charter as well.- Since the judgment of the Supreme Court in Martineau, it can no longer be doubted that the

decision to transfer an inmate to a penal institution where his freedom will be more severely restricted is, in effect, a committal to a “prison within a prison” which deprives the inmate of his liberty. Such a decision, therefore, must be made in accordance with the principles of fundamental justice.

- It can be said, without any risk of error, that the “right to a fair opportunity to be heard” is guaranteed by the principles of fundamental justice.

- However, one must first ask the question whether the rules of fundamental justice have the same flexibility as the rules of natural justice and procedural fairness. Before answering that question, it is necessary to observe that when it is said that the rules of natural justice and of fairness vary from case to case, two very different things may be meant. First, that assertion may merely mean

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that the same general rules will produce different results if it is applies to different factual contexts. In other words, they are flexible in the sense that in each case they will have to be applied so as not to frustrate the intention of Parliament. I have no difficulty with the proposition that the procedural rules of fundamental justice have, in this first sense, the same flexibility as the rules of natural justice. Second, it is equally clear, however, that the rules of substantive justice which must be applied by virtue of sec. 7 of the Charter are not “variable or flexible”. Indeed, those rules can only be modified by Parliament in accordance with sec. 1 of the Charter; otherwise, Parliament would have the unfettered power to reduce to nothing the protection afforded by sec. 7.

- As a result, the principles of fundamental justice do not have the same flexibility as the rules of natural justice and of fairness. – in their substantive sense – however, they have same flexibility in procedural sense

- For that reason, I cannot escape the conclusion that, in this case, the decision to transfer the respondent to the Saskatchewan Penitentiary was not made in accordance with the principles of fundamental justice since the respondent was not given a real opportunity to answer the allegation made against him.

- There remains to be decided whether that breach of sec. 7 was authorized by a law that met the requirements of sec. 1.

Sec. 1 Consideration- The Penitentiary Act gives the Commissioner and his delegates the discretionary power to

transfer an inmate from one institution to another. It is pursuant to that “law” that the decision to transfer the respondent was made and the question is whether a “law” giving such a wide discretion to the authorities of the Correctional Service meets the requirements of sec. 1.

- In my view, in a free and democratic society, it is reasonable, perhaps even necessary, to confer such a wide discretion on penitentiary authorities.

- I would, for these reasons, allow the appeal, set aside the order of the Federal Court – Trial Division and dismiss the application for certiorari made by the respondent.

- The concurring judgment was written by Justice Marceau. Note the different approach which he’s taken. He stated the following:

- I agree with Justice Pratte that the judgment appealed from here cannot be allowed to stand. I must say, however, that I have some difficulty with the reasons he gives in support for this conclusion.

- In my view, the question is not whether the rule of confidentiality respecting informers can relieve a decision-maker from his duty to act fairly. Rather, it is whether the rule of confidentiality can influence, as much as it did here, the content of that duty.

- The rationale behind the audi alteram partem principles, which simply requires the participation in the making of a decision of the individual whose rights or interests may be affected, is that the individual may always be in a position to bring forth information, in the form of facts or arguments, that could help the decision-maker reach a fair and prudent conclusion.

- As I see it, the problem here is whether the audi alteram partem principle, in the circumstances that prevailed, required that more information be given to the inmate before asking for his representations. In my judgment, having regard to the nature of the problem the appellant was facing and his responsibility toward those entrusted to his care, it did not.

- It seems to me that, to appreciate the practical requirements of the audi alteram partem principle, it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries. Not only those the various decisions differ as to the individual’s rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they also differ, and even more significantly, as to their purpose and justifications, something which cannot but influence the content of the information that the individual needs to be provided with.

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- Applying this approach, one can contrast the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, where fairness will dictate that the person charged be given all available particulars of the offence, with the case of a decision to transfer an inmate for the sake of the orderly and proper administration of the institution, which is based on the belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is.

- In the latter decision, it is merely the reasonableness and the seriousness of the belief on which the decision would be based.

- In the situation before us, guilt was not what had to be confirmed, rather, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer.

Gough v. Canada (National Parole Board) – different approach to disclosure – statute in question required Board either to rely on information but also have to disclose its source, or forego its use altogether – also establishes that statutory provisions limiting disclosure must not be overly broad

Factual Background- G had been on parole for five-and-a-half years and was subject to the least restrictive form of

parole. As a result of complaints made to the Correctional Service Office involving allegations of sexual assault and other forms of coercion as well as drug use, his parole was suspended and ultimately revoked. The National Parole Board, relying on sec. 17(5) of the Parole Regulations and the authority it created to refuse disclosure of information, never released at G’s post-suspension hearing or at any other time the details of the dates and places of the alleged incidents or the names of the victims.

- G applied to have the revocation quashed on the basis that it violated his rights under sec. 7 of the Charter. The application was allowed to the extent that the Board was given the option of an order either quashing the decision or requiring the submission of the relevant information to the court for an in camera hearing at which counsel for G would be given the opportunity of arguing that the non-disclosure was not justified.

- The Board chose the latter option and appealed the order to the Federal Court of Appeal. The court allowed the appeal on the basis that sec. 24(1) of the Charter did not extend to authorizing the court to compel the production of information for the purposes of such an in camera hearing. The matter was referred back to the Federal Court – Trial Division judge for a resumption of the hearing.

Judgment- Judge Reed stated the following:- It is argued that the non-disclosure is justified by virtue of sec. 17(5) of the Parole Regulations

which authorizes the Parole Board not to disclose information when, in the Board’s opinion, disclosure:

o (a) could reasonably be expected to threaten the safety of individuals;o (e) could reasonably be expected to be injurious to the conduct of lawful investigations or

the conduct of reviews pursuant to the Act or these Regulations, including any such information that would reveal the source of information obtained in confidence.

- The question is whether and in what circumstances the Board can revoke the parole of a person in the applicant’s position without giving him enough information to answer the case against him, and in doing so not offend sec. 7 of the Charter .

Sec. 7 Considerations- Both at common law and under sec. 7, the rules of fundamental justice require that an individual

is entitled to know the case against him in a decision-making process which leads to a diminution of his liberty. This is no not only to prevent abuses by people making false accusations, but also

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to give the person who has been accused the assurance that he or she is not being dealt with arbitrarily or capriciously.

- Having said that, it is also clear that the requirements of fundamental justice operate on a spectrum. The content of such requirements vary with the circumstances of the case.

Paroled Inmate – Conditional Liberty Only- The respondent argues that the applicant, as a paroled inmate, enjoys only a conditional liberty

and that this reduced right to liberty justifies the refusal by the Board to make the information in question available. It is argued that the public interest in non-disclosure must be weighed against the individual’s interest in having sufficient information to answer the case against him. Additionally, the respondent asserts that people must be able to supply information concerning the activities of paroled inmates on the understanding that that information will be kept confidential and that the Parole Board must be allowed to rely on this information in making decisions respecting the continuation of an inmate’s parole.

- However, I must also point out that an individual’s liberty (even the conditional liberty which a parolee enjoys) weighs very heavily in the scales when compared to competing interests.

Sec. 7 Requirements in the Parole/Penitentiary Context- Counsel for the respondent argues that the constitutional requirements have been met because

“the gist” of the allegations which are made against the applicant has been communicated to him.- In my view, however, what is required is enough detail to allow the individual to answer the

allegations. The respondent in the present case has not provided the applicant with “the gist” of the allegations.

- Therefore, the requirement to provide sufficient information so that one may know the case against them must be upheld, unless the respondent can demonstrate why it should not be.

Limitation “Prescribed by Law” – Sec. 1- In the case of sec. 7, since the rights guaranteed thereunder constitute a spectrum of guarantees,

this involves first determining the content of the principles of fundamental justice following from sec. 7 applicable to the particular decision-making process being challenged (by reference to the particular circumstances of the case, the nature of the interests involved, and the reasons and evidence which have been put forward to justify the limitations which have been placed in what are claimed as sec. 7 guarantees)

- Sec. 17(5) gives the Board discretion to withhold information that may be necessary for the applicant to know the case against him and respond to it. As such, it constitutes a limitation on the sec. 7 right to know the case against you and be able to respond effectively. Therefore, the burden is on the respondent to demonstrate that it is a “reasonable limit” .

National Parole Board’s Justification- The justifications set out in the affidavits can, in a general sense, be characterized as asserting

that non-disclosure is necessary for the operation and effective working of the parole system.- Another ground that was argued during this appeal was that non-disclosure can be justified on the

ground that the accuracy of the information is carefully checked before it is relied upon by the Board.

- In assessing the affidavits filed, it is important, first, to keep in mind that the issue in this case does not challenge the right of Correctional Service Officers to receive information in confidence and keep it confidential. Rather, the issue is whether the National Parole Board is required to either release information to the applicant (when disclosure will necessarily reveal the source of that information) or forego reliance on that information in making a decision on the applicant’s parole.

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- In regards to the respondent’s first argument – that of the effective operation of the parole system – it was established in Singh that administrative convenience cannot justify a denial of fundamental justice.

- The respondent also claims that the accuracy of the information in question has been carefully vetted. However, this assertion, that the information is accurate, is self-serving and it is no answer to the applicant’s perception that he is being dealt with arbitrarily and capriciously.

- This leaves for consideration the main focus of the respondent’s argument: the information was provided in confidence; the individuals who provided the information expressed concern that if their identities were known they would suffer reprisals at the hands of the applicant; the information cannot be disclosed without disclosing, at the same time, the identity of the informers. And, if the Parole Board cannot rely on such information, the ability of the Board to assess risk is seriously impaired and the functioning of the parole system undermined.

- In so far as the argument against disclosure goes, the assumption that the identity of the sources MAY be revealed does not constitute compelling evidence as to whether disclosure would have that consequence. Additionally, the argument against disclosure on the basis that the content of the allegations MAY give away the informant’s identity is also not compelling enough evidence to in fact yield that result.

- One has to question why the difficulty is any greater in this case than that of protecting many witnesses who testify at criminal trials.

Review by the Courts- The respondent was offered an in camera hearing for the purpose of establishing a factual

basis for its assertions, accompanied by an undertaking from counsel for the applicant that any confidential information to which he became privy would not be disclosed to his client.

- The respondent alleges that even this would have a serious and adverse effect on the working of the parole system.

- This is simply not credible. In this case, the respondent has not objection to the applicant’s counsel seeing the information; what was objected to was the setting of a precedent.

Limitation by Sec. 17(5)- I note, first of all, that sec. 17(5) is very broadly framed. No distinction is made between the

non-disclosure of information essential to allow an individual to know the case against them and the non-disclosure of information which is more peripheral in nature.

- In addition, sec. 17(5)(e) is so broad that it seems to authorize non-disclosure merely because the information was received in confidence. This can never be a justification for limiting the guarantees of fundamental justice.

- What is more, sec. 17(5)(a) seems to require only the possibility of a threat and not a probability that harm would likely to occur to an individual.

- In addition, I am not convinced that a system which puts in the hands of the same body both the decision on the merits (the parole revocation) and the decision as to how much of the information which is before it will be disclosed to the applicant, is one that can meet the requirements of sec. 1.

Conclusion- In conclusion, the applicant’s sec. 7 Charter rights have been infringed by the refusal to provide

him with the confidential information upon which the Board is relying.- The respondent has not established an evidentiary basis justifying non-disclosure neither

with respect to the specific circumstances of this applicant’s case, nor by justifying sec. 17(5) as establishing a reasonable limitation on the applicant’s right pursuant to sec. 1 of the Charter.

- Accordingly, an order will issue quashing the Board’s discretion and an order of mandamus will issue requiring a new hearing by a differently constituted panel of the National Parole Board.

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Commercially Sensitive Information- The third situation presents the possibility of disclosure of information about a business that may

generally be regarded as confidential and that may give competitors an advantage because, for example, it may reveal its pricing practices or contract terms.

- The Anti-Dumping Act established arrangements for determining whether dumping of goods into Canada caused “material injury to the production in Canada of like goods”. One of the stages was an inquiry under sec. 16 by the Anti-Dumping Tribunal. In regards to the evidence adduced during the hearing, sec. 29 provided:

“Where evidence or information that is in its nature confidential, relating to the business or affairs of any person, firm or corporation, is given or elicited in the course of any inquiry under sec. 16, the evidence or information shall not be made public in such a manner as to be available for the use of any business competitor or rival of the person, firm or corporation.”

- In Magnasonic Canada v. Anti-Dumping Tribunal, Justice Jackett sitting the Federal Court of Appeal had this to say about sec. 29:

“… What it does require is that, when information of a confidential character is tendered at a hearing, a decision must be made as to what steps are required to comply with sec. 29. The obvious first step in the ordinary case would seem to be that the evidence be taken in camera. What further steps require to be taken would depend on the circumstances. The most extreme step that might be required would be to exclude all competitors or rivals while the evidence is being taken and to provide such parties afterwards with the sort of report of the evidence taken in their absence.”’

Staff Studies- The fourth group is composed of claims to disclosure of materials created by an agency itself –

for example, reports prepared by its staff, or guidelines and statements of policy.

Toshiba Corporation v. Anti-Dumping Tribunal- Toshiba sought review of a decision of the Anti-Dumping Tribunal on the ground that it had

relied on two reports prepared by its staff and not disclosed to the parties.- The Federal Court of Appeal dismissed the appeal, and Justice Hugessen stated the following:

“… In the present case, the Tribunal’s staff prepared two reports, the first prior to the commencement of the public hearings and the second after the hearings were over. These reports raise different questions and it is appropriate to deal with them separately… The preliminary report is, in effect, an introduction to the subject-matter of the inquiry prepared with the intention of allowing the Tribunal members to approach their difficult task in an intelligent and rational manner. Inevitably it contains a number of statements of fact which bear directly upon the ultimate issue which the Tribunal was called upon to decide. It was not revealed to the parties or their counsel. This is a dangerous practice… Upon analysis, however, I am satisfied that everything contained in the preliminary staff report is either a matter of general or public knowledge or is based upon facts and sources which were, in due course, properly brought out at the hearing in such a manner that all the parties to that hearing had a full opportunity to test them. Thus, while, in my view, there might have been a technical breach of the rules of natural justice, it can be said with confidence that such a breach was minor and inconsequential and that the result of the inquiry would have not been different had such breach not occurred… Quite different considerations apply to the final staff report . It consists of summary and commentary on the evidence and submissions made at the inquiry. There is nothing whatever improper in this and it is not dissimilar to the kind of work that law clerks sometimes do for Judges. It is a proper part of the functions of the Tribunal’s staff. Nothing requires that such reports be revealed to the parties. They are simply part

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of the Tribunal’s own internal decision-making process for which, of course, the Tribunal alone is responsible. In my view, they should not even form part of the record in this court.” – note that his statement on the 2nd report is challenged in later cases

Trans-Quebec & Maritimes Pipeline Inc. v. National Energy Board- Trans-Quebec sought leave to appeal two decisions of the National Energy Board, and applied

for disclosure of any staff papers prepared for the Board.- The Federal Court of Appeal dismissed the application. Justice Thurlow said:

“As it appears to me, where the decision of a tribunal can be shown to have been based on staff reports to which the parties have not had access containing evidentiary material to which the parties have not had an opportunity to respond, it may well be possible to make out a case for requiring that they be included in the case for review. Further, in such a situation that fact that the reports were prepared and submitted on a confidential basis, in my view, would not afford them protection. But no such case has been made out here. The applicant indicates that the principal reason for seeking the inclusion of staff memoranda in the case is to attempt to establish the Board’s reasons for decision. However, the analysis and opinion in staff memoranda are irrelevant to the ascertainment of the Board’s reasons for decision because they cannot be assumed to have been adopted by it as its reasons. The Board’s reasons for decision are those which it chooses to express or which can otherwise be clearly shown form its own words or actions to have been its reasons. – this also is not left unchallenged by later cases

Case Analysis- Both the Trans-Quebec and Toshiba Corporation cases prompted academic criticism. Janisch

stated the following:“Close consultation between decisions makers and their advisers is likely to produce better decisions… There are, however, drawbacks associated with institutional decision making in that arguments may not be made directly to the real decision makers and outcomes may be greatly influenced by staff whose views and assessments are not made part of the public record… The view of Justice Hugessen in Toshiba Corporation that an analogy may be drawn between the role of a staff specialist and that of a law clerk has been decisively rejected… The judge’s decision is almost entirely personal, for he hears the evidence and the argument and makes the decision. He may have law clerks, who may sometimes play a significant role, but the decision is almost entirely his, almost never even partially theirs… Moreover, Justice Hugessen’s analogy to the law clerk is particularly inappropriate in view of his characterization of the final staff report as consisting of summary and commentary on the evidence and submissions made at the inquiry. Once it is conceded that staff do more than summarize, there must be concern as to how any evaluative role may be reconciled with procedural fairness. Consider, for example, Denton v. Auckland City… Justice Speight concluded by drawing a distinction between a ‘factual summary’ and ‘comment’. He was persuaded that any comment on the merits and demerits of particular points of objection had to be disclosed. As for purely factual summaries, he expressed the view that it might be better that there be disclosures in the interests of accuracy in a complex are where it is only natural that errors may creep in.”

Re League for Human Rights of B’nai B’irth and Commission of Inquiry on War Criminals – where commission employs the making of a report to be used in its decision, the report must be disclosed to all parties to the proceedings if its contents is directly in issue

- The Commission was appointed to investigate allegations about war criminals in Canada and make recommendations, including “what legal means are now available to bring to justice any

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such persons in Canada.” The Commission established a “working group” of academics and practitioners to consider the legal problems, and the league, which had been given standing by the Commission, sought disclosure of its report. The Commission refused and the league sought review.

- The Federal Court – Trial Division dismissed the application, and an appeal by the league was allowed. Justice Mahoney said the following:

“… In the particular circumstances of this commission, the reports of the working group will not play the peripheral or incidental role which legal opinions usually play in the result of an inquiry. Instead, they are directed precisely to matters which the commission is expressly required to address in its report. They are in the nature of expert evidence and to be dealt with accordingly. One would ordinarily expect the advice to a commission of any independent expert chose by it to carry significant weight… While there is, of course, no lis between the commission and any of the parties granted standing before it, it is pure sophistry to suggest that the opinions of the working group are not certain to be a significant part of the case against the interests of one or more of the appellant and others granted standing…what is required to discharge the duty of fairness varies with the circumstances of each case. In the present circumstances, I am satisfied that the opportunity to comment on the working group’s report is required.”

Official Notice –

Davis, Administrative Law – distinction b/w adjudicative and legislative facts – test to determine- Sec. 556(e) of the Administrative Procedure Act states that: “Where an agency decision rests on

official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.”

- However, this provision does not answer the principle question of whether or when an agency may properly go beyond the record for a material fact.

- The central problem here is to reconcile the needs of procedural fairness with the need for full and free use of whatever expertness the agency may have.

- In many circumstances, the only fair method for resolving some issues of fact is to put all the evidence in the record. Yet in some circumstances, an agency must be free to go beyond the record for some of its facts.

- The cardinal distinction which more than any other governs the use of extra-record facts by courts and agencies is the distinction between legislative facts and adjudicative facts.

- When a court or an agency finds facts concerning the immediate parties, the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts.

- When a court or an agency develops law or policy, it is acting legislatively, and the facts which inform the tribunal’s legislative judgment are called legislative facts.

- Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. Legislative facts are the facts which help the tribunal determine the content of the law and of policy to help the tribunal to exercise its judgment or discretion in determining what course of action to take.

- The reason we allow judicial or official notice to be taken of extra-record facts is not to promote fairness, but to promote convenience.

- The two major considerations in developing a system of judicial notice are fairness and convenience, and the essential problem is to accommodate the one to the other in such a way that neither will be unduly sacrificed.

- The basic principle is that extra-record facts should be assumed whenever it is convenient to assume them, except that convenience should always yield to the requirement of

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procedural fairness that parties should have opportunity to meet in the appropriate fashion all facts that influence the disposition of the case.

- What is the appropriate fashion depends on three main variableso 1 The extent to which the facts are adjudicative about the parties or legislative facts of

a general charactero 2 The degree to which the facts are critical or peripheralo 3 The extent of uncertainty or apparent certainty of the facts

Township of Innisfil v. Township of Vespra – where the Board seeks to rely on evidence adduced at a prior hearing for the making of its decision, it should give all parties notice of its intention and a chance to comment on that evidence – however, a distinction must be drawn b/w reliance on evidence adduced in prior proceedings as having a determinative effect on the Board’s decision, and the use of prior evidence simply as an example

- This case arose out of an application made by the city of Barrie to the Ontario Municipal Board for permission to annex land in three adjacent townships – Innisfil, Oro and Vespra. This applicant was authorized by the Municipal Act, which required the Board to give a hearing.

- Barrie claimed it needed the land to accommodate a projected population of 125,000. This figure had been recommended by a task force appointed by the government to study the future of the “Simcoe-Georgian Area” and this recommendation had been approved by the government.

- At the hearing, a letter from the Minister of Treasury, Economics and Intergovernmental Affairs was introduced, in which the approval was confirmed. The Board announced that it was obliged to accept this policy, and the only issue was how much land would be needed for a population of 125,000. It (Board) also refused to permit cross-examination of the representative of the Ministry who had brought the letter.

- The townships made a motion for review; the Divisional Court gave judgment, and the hearing resumed.

- The issues emerged again, and the Board continued and made a decision favourable to Barrie.- Innisfil appealed to the Divisional Court, and three issues were presented. The third issue arose

from the Board’s decision about the amount of vacant industrial land that would be needed for the projected population. The Board said the following:

“In spite of all the planning evidence that was given, none dealt with the question of what vacancy factor an industry requires in order to induce it to move… A good example of such vacancy requirement is right here in Barrie; it is Molson’s Brewery. Our Vice Chairman…remembers clearly the company representative stating that the price of the industrial land in Barrie was too expensive to induce the company to move, and it would only move if the annexation succeeded… The brewer’s present vacancy factor is greatly in excess of four times its present use… If we assume that in order to induce industries to move to Barrie they are going to have to be provided with industrial land at four times their present requirements, we would have to double the industrial requirements in the above figures.”

- The reference to the “above figures” is to a calculation of land area requirements on the basis of a lower vacancy factor. The opposing municipalities argued that there was no evidence for this conclusion. The question was whether the Board could rely on its own experience gathered from other cases. In regards to this, the three judges of the Divisional Court stated the following first, Judge Lerner:

“… Since there was no evidence, it is clear from the Board’s decision that it relied on the Vice-Chairman’s alleged recollection of evidence in a previous case… The vacancy formula as put forward by the Board was not, in my view, a matter of general knowledge of which the Board could take notice either in its quasi-judicial role or on the basis of the Statutory Powers Procedure Act… Furthermore, there were no means of testing the

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alleged statement… Since it was not arrived at on any evidence or general knowledge of which judicial notice could be taken, it follows that it could not be acted upon. It was outside the jurisdiction of the Board to make that finding in those circumstances.”

- Judge Henry said:“… If it (Board) intended to treat that as providing a formula that could be used to determine the vacancy factor, it ought in my opinion to have conveyed that information and intention to those appearing at the hearing and to have allowed them to make their submissions with respect to it, and if necessary to call evidence and cross-examine on this point. In adopting that information which was not disclosed in the hearing, the Board in my opinion erred.”

- The third member, Judge Craig, held that there was some evidence that supported the Board’s conclusion. On appeal, the majority of the Federal Court of Appeal agreed that there was some evidence. Justice Lacourciere said:

“I regard it as a sound rule for a tribunal intending to use any prior decision as a precedent to give parties to the hearing proper notice so that they may comment on it. It does not, however, appear to me that the Board based its decision upon its recollection of this past transaction. It appears from its reasons that the Board made its decision on the vacancy factor on the basis of general principles which it had accepted in previous cases and on other evidence which had been presented to it and used its previous experience in Barrie, not as a compelling precedent, but only as an example. I am, therefore, satisfied that the Board did not commit an error of law.”

- The Supreme Court of Canada affirmed the Federal Court of Appeal’s holding.

Lawal v. Canada (Minister of Employment and Immigration) – qualifications on reliance by Board on external evidence – especially in context of independent evidence gathering by Board

- Independent gathering and use of evidence will give rise to judicial review .- In this case, the panel had sought verification of the authenticity of a newspaper article that

had been submitted to it by console for the claimant after the conclusions of the oral hearing. - Not only had the panel approached the documentation centre, but it had also been in contact

with the newspaper and the Canadian High Commission in Nigeria.- The panel took the position that it had not exceeded its jurisdiction because it had forwarded the

material it gathered to the parties in the proceeding, and that these facts were of the kind that could be judicially noticed.

- The Federal Court of Appeal held that such conduct violated the claimant’s rights to have the evidence adduced in his presence at the hearing. The court also held that the material in question was not properly the domain of judicial notice.

Admissibility of Evidence –- What procedures may and should agencies use for fact finding, especially for facts that are

different from the kinds of facts that usually concern courts.- However, it is well settled that agencies are not governed by the rules of evidence used by

courts unless some statutory provision requires them to be.- Indeed, sec. 15(1) of the SPPA authorizes the disregard of the normal rules of evidence.- Nonetheless , to the extent that the rules of natural justice or procedural fairness condition

decisions about evidence, the discretionary authority of boards and tribunals over questions of admissibility and requirements of proof is subject to limits and those limits may, on occasion, be influenced by normal common law evidential principles.

- Additionally, discretionary decisions over admissibility of evidence must not remove the entitlement of affected persons to have a reasonable opportunity to make their case.

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- On the other hand, natural justice considerations can also arise by reason of the admission of and weight attributed to certain kinds of evidence. Given the historically more relaxed attitude of the court to the use of hearsay evidence in administrative proceedings, it is unlikely that the mere admission of hearsay evidence will lead to a breach of the rules of natural justice.

- However, exclusive reliance on hearsay evidence may give rise to a breach of natural justice.- Bond v. New Brunswick (Management Board) – the type of admissible evidence is proportional to

severity of the outcome on the partyo The N.B. Court of Appeal set aside an arbitrator’s sustaining of a dismissal for sexual

assault.o The victim did not testify. Rather, the arbitrator relied simply on hearsay evidence of that

the victim had told others as well as opinion evidence.o Given the sanction and the seriousness of the allegations, this was not sufficient to

meet the requirements of natural justice.- Re Clarke and Superintendent of Brokers, Insurance, and Real Estate – in admitting evidence

that is not normally admitted in court, the Board may properly attribute to it less weighto Clarke surrendered her license as a real estate salesperson when she was charged with

theft and fraud in connection with a sale of a home owned by Jackson.o She was acquitted and applied for the reissue of her license. This application was made to

the Superintendent, who held a hearing.o Counsel for the superintendent sought to introduce the transcripts of the evidence

Jackson had given at the criminal trial, with the explanation that her health did not permit her to attend. The transcripts were admitted, and the Superintendent decided not to reissue the license, although he said that he did not give much weight to Jackson’s evidence

o Leave to appeal to the Court of Appeal was refused. Justice Hutcheon said:“The consequence is that the transcript evidence of Mrs. Jackson was admissible and the Superintendent in admitting the evidence and giving it little weight made no error in law or in fact.”

Cross-Examination –- Re Toronto Guild and Globe Printing

o The guild applied to the Labour Relations Board to be certified as bargaining agent for employees of Globe Printing Company.

o The company, suspecting that some employees had left the union after the application was made, sought to cross-examine. The Board refused and refused to undertake cross-examination itself.

o On judicial review, Globe’s application for certiorari succeeded. Judge Gale said:“The most effective way in which the company could have tested the merits of the application was to cross-examine the person who was presenting it to the Board. Unfortunately, in this case the right to cross-examination was not granted and was tantamount to a denial of basic justice.”

Innisfil (Township) v. Vespra (Township) – where statutory authority grants a right to a hearing, where the individuals’ rights may be determined, clear wording in the statute will be required to oust the right to cross-examine – also, the board may not invoke its opinion as to the potential effectiveness of cross examination in an attempt to deny it

Factual Background- When this case reached the Supreme Court, the issue whether the Board was obliged to accept a

letter stating the government policy had been settled.

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- The major issue at the Supreme Court was whether the opposing municipalities were entitled to cross-examine the official of the ministry who had presented the letter.

Judgment- Justice Estey delivered the judgment of the Supreme Court. He stated the following:- I turn first to the question of the right of the appellant to cross-examine the department

representative. However, it will afford a better appreciation of the issue to set out the relevant parts of this letter:

“… I understand that my previous letters have not been placed in the record and that the Board would prefer that a witness be available to present such letters and to testify. In this regard, I have instructed Mr. Fleming to deliver this letter.”

- Counsel for an objector questioned Mr. Fleming’s competency for the task without some further description of his qualifications to testify on the population policy on behalf of the Minister.

- It is within the context of a statutory process that it must be noted that cross-examination is a vital element of the adversarial system applied and followed in our legal system, including, in many instances, before administrative tribunals since the earliest times.

- That is not to say that because our court system is founded upon these institutions and procedures that administrative tribunals must apply the same techniques.

- On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination.

- We are here concerned with that sector of the common law sometimes referred to as the principles of natural justice, fairness and audi alteram partem. These principles are of diminished impact in instances such as we have here where the constituting statute themselves outline the necessity for a hearing and, by direction and indirection, establish the procedure to be followed in the conduct of such hearing.

- It must be emphasized that if the appellant has here the right to cross-examine the representative of the Ministry, as I believe he does, it is not for the appellate court to withhold such right because in its judgment it is doubtful, or even impossible, in the view of the court for the appellant to advance its case by such cross-examination.

- The relationship of “independent” agencies of the executive branch of Government, in so far as that relationship affects the procedural rights of parties before the tribunal, can only be determined by reference to the agency’s parent statute, and other relevant statute common law prescribing procedural norms. Therefore, a court will require the clearest statutory direction to enable the executive branch of Government to give binding policy directions of an administrative tribunal and to make such directions immune from challenge by cross-examination or otherwise by objectors.

- However, this is not a case of the right to cross-examination being used to challenge the policies of the executive branch of Government in such a way as to bring the administrative tribunal into the political arena. It is merely the exercise by a party properly before the Board on an annexation application of a right accorded to that party by the Legislature. The Legislature has granted by sec. 14 of the Municipalities Act an identical right to all other parties who wish to object to application for annexation. The appeal must, therefore, be allowed.

Re County of Stratchona No. 20 and MacLab Enterprises – restrictions on ability to cross-examine may be permissible so long as other like-alternatives are furnished to parties – Ex. where expert witness is

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unavailable to testify, court may admit his report instead – so long as parties are given opportunity to respond to the report, fairness is maintained

Factual Background- The Provincial Planning Board directed that land owned by a developer be rezoned from

“agricultural general reserve” to “general urban”. This decision was appealed to a judge in chambers by a group that felt that the area was unsuitable for residential housing because of odours emitted by nearby industries.

- They succeeded on the ground that they had not been given an opportunity to test all the evidence by cross- examination.

- The developer appealed to the Alberta Court of Appeal.Judgment- Justice Johnson stated the following:- A person appearing before quasi-judicial bodies is entitled to be heard and to present his case,

and when this is not permitted there is a denial of natural justice.- However, it does not follow that the refusal of or the placing of limitations upon the right of

cross-examination will always require that the court quash an order made in proceedings in which these restrictions are enforced . If he is afforded an equally effective method of answer the case made against him, the requirements of natural justice will be met.

- Counsel for the appellant asked the Board to accept a report from a Dr. Bernhart who had made a study of pollution in this rea. He explained that Dr. Bernhart could not be present because he was then in Germany.

- It was vigorously argued by the respondents that the report should not be accepted unless Dr Bernhart was produced for cross-examination.

- The Board ruled, however, that the report be admitted, and that the respondents could file answers to any points raised in that report.

- Two documents, one by Dr. Turk and the other by Dr. Kleppinger, answered the Bernhart report and the arguments advanced by it. There

- The absence of the report’s author with the consequent inability to cross-examine him goes to the weight to be given to the report, not its admissibility.

- To one who reads the critique of Dr. Turk and the shorter one by Dr. Kleppinger, it is impossible to say the respondents have not taken full advantage of the opportunity afforded to them to “correct or contradict” any “statement prejudicial to their view” in the Bernhart report.

Re B and Catholic Children’s Aid Society of Metropolitan Toronto – potential severity of outcome on individual is proportional to Board’s decision to offer cross-examination alternative

Factual Background- The Child Welfare Act established a “child abuse register”. It was a list of individuals who had

been reported by the children’s aid societies has having abused children. If an individual was included on the list, he or she was entitled to notice and to make an application to be removed from the list to the director of the Ontario Centre for the Prevention of Child Abuse, or his or her delegate.

- A hearing was required for this application, and an appeal could be made to the Divisional Court.Judgment- Judge Craig, sitting in the Ontario Divisional Court, stated the following:- The appellant appeals to this court from the decision of Hearing Officer Barry Lowes, as affirmed

by the Director denying the appellant’s application to have his name expunged from the Child Abuse Register.

- The Catholic Children’s Aid Society of Metropolitan Toronto alleged that the appellant J.B. sexually molested Haley B.

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- During the hearing, Haley B was not called as a witness and as a result counsel for the appellant did not have the opportunity to test the veracity of her evidence by cross-examination.

- Counsel for the appellant appeals upon three grounds:o 1 The Hearing Officer found against the appellant on the hearsay evidence of

June De Maat, who reported the complaints and later denials made to her by Haley B; and that in so doing there was a denial of natural justice.

- In argument before us counsel for the respondent quite candidly admitted that the alleged victim was not called to testify because she had changed her “story” and would not say that she had been abused or molested by the appellant.

- As I understand the submission of counsel for the respondent, he conceded that he could not have succeeded had she been called as a witness because she would deny any molestation by the appellant.

- Because of sec. 15(1) of the Statutory Powers Procedures Act, the Hearing Officer was able to rely upon hearsay evidence. In so doing, he stated in part: “I believe the child’s first account of what happened.” He did not give any reasons why he rejected the denial evidence of the appellant J.B.

- It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice.

The Limits of the Trial-Type Hearing –- An important and general problem for lawyers is the appropriate uses and limits of the trial-type

hearing.- We suggest that the decision as to the content of the hearing has two characteristics that can

usefully be separated: (1) fact findings and (2) choice.

McGarity, “Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA

- The purpose of trial-type procedures it to increase the accuracy of agency factual determinations.

- However, a court should not insist that the agency utilize wasteful formal fact-finding procedures for issues in which such procedures cannot increase the accuracy of the agency’s decision.

- Similarly, no amount of confrontation and cross-examination will increase the accuracy with which an agency determines trans-scientific questions that cannot be resolved by experimentation. When experts disagree in their interpretations of scientific date, trial-type procedures at first glance might seem appropriate. Unfortunately, cross-examination usually reveals only the depth of the disagreement among the experts; it rarely reveals any basis for choosing on expert’s interpretation of the date over another’s.

- Instead, agencies should engage in formal fact-finding to enhance factual accuracy. But countervailing considerations exist in the form of reduced administrative efficiency and increased expense to all parties to the proceedings. Thus, even when formal fact-finding enhances accuracy, these “transaction costs” may outweigh any benefits derived from increased accuracy.

Robinson, “The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform”

- Challenges to the suitability of adjudicative methods (particularly the reliance on testimonial evidence and cross-examination) where the issues involve policy planning, appear to rest in large part on the notion that “policy” or “legislative fact”, is something pure, uncontaminated by particular data and questions, assumptions, opinions and biases.

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- However, a judgment on policy or “legislative fact” invariably involves an admixture of particular facts, opinions, and biases, some of which may and some of which may not be appropriate for exploration by testimony and cross-examination.

- The theory, apparently, is that predictive judgments or forecasts are a class apart from “historical facts”, and techniques of testimonial proof and cross-examination are inappropriate for determining the former even though appropriate for the latter. Such a distinction seems untenable.

- First, it is doubtful that predictive judgment is radically different from determinations of historical fact. In both cases, the determination must almost invariably rest on general conclusions that are inferred from particular factual data and an evaluation of probabilities that may be as appropriate for testimonial proof and cross-examination in one case as in the other.

- Second, in some cases, testimonial proof and cross-examination can serve a more valuable function in testing forecasts and generalized conclusions underlying future policy planning than in making findings concerning specific past events.

- Even if there is no dispute about specific identifiable “facts”, and even if the Board’s judgment cannot be proved or disproved as easily as its finding, it may still be desirable to force the Broad, through cross-examination of its experts, to disclose the particular premises, including facts, opinions, and reasoning, which underlie its “policy” conclusions.

- Additionally, cross-examination of Board witnesses could play an important role in exposing possible error, bias, or lack of solid foundation which cannot be effectively brought to light simply by introducing rebuttal argument against the generalized policy statements.

- Thus, the knowledge that judgments cannot simply slide surreptitiously into a giant record, but is subject to publicity by cross-examination, can have a healthy disciplinary effect on the presentation of the evidence and the ultimate decision-making process.

Johnson, The Canadian Radio-Television and Telecommunications Commission – A Study Prepared for the Law Reform Commission of Canada

- In broadcasting matters, the CRTC employes an informal hearing format similar to that of a debate. Applicants appear and speak to their applications and are questioned by the Commissioners and Commission Counsel on their written and oral presentations. Interveners then appear to make their oral presentations and questions are similarly addressed to them. Applicants are permitted a reply. In all of this, the evidence given is not sworn and there is no cross-examination beyond the questioning of the Commission. Evidence is not “led” by counsel for applicants. Parties generally read their oral submissions from a prepared text.

- The informal debating format has in some respects served the Commission well. It has allowed the free interplay of ideas between the Commissioners and parties on broad policy principles which govern the CRTC’s activities. It has encouraged members of the public to come forward and speak their minds to the Commission without being intimidated by complex rules of procedure. It has allowed the Commission to hear a much larger number of applications.

- At the same time, this format has not lent itself to a searching examination of the evidence presented to the Commission. Questioning has been performed only by Commissioners or Commission Counsel and has been, for the most part, of a non-adversarial nature. Questions have generally been asked for the purpose of clarifying points rather than discrediting them.

- This type of questioning has been adequate for some matters. Discussions of policy issues, applications where there are not serious interventions and general representations by members of the public on broadcasting concerns are examples.

- However, in applications where there is a real contest between parties and substantial interests are at stake, it would seem inappropriate for the Commission to carry the entire burden of questioning. In such cases, the Commission should adopt more strictly a role of pure

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adjudicator and allow the parties to thoroughly test each other’s evidence and positions through cross-examination.

- The Commission’s traditional concerns over cross-examination have been that it would be too time-consuming bearing in mind the CRTC’s extremely heavy hearing load and that it would so change the character and atmosphere of broadcasting hearings that public participation would be discouraged.

- However, a distinction needs to be drawn between public hearings involving matters that invite a general response from the public where an informal approach is accordingly both desirable and appropriate, and those where more court-like procedures are required. It would be fairly easy for the Commission to determine which approach would be desirable well in advance of a hearing from the nature of the subject-matter of the application and the interventions received.

- Therefore, it is recommended that in any application involving parties whose positions are clearly adversarial, the Commission should routinely permit, upon request by any such part, the right to cross-examination.

Post-Hearing Issues –Reasons

- Sec. 17(1) of the Statutory Powers Procedures Act requires decision-makers to give reasons for their decisions (though only on request).

- Until recently, the common law was reluctant to impose on statutory and prerogative decision-makers an obligation to give reasons for their decisions. All of that changed in 1999 with the judgment of the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration).

- In Baker, it was the importance of the interest at stake that triggered the obligation. That, in turn, begs the question of where the threshold of sufficient importance lies. Moreover, the judgment also seems to accept that the existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons.

- Therefore, the tendency of the courts since Baker has been to require the provision of reasons. However, that has not universally been the case.

The Content of the Duty to Give Reasons –- When an administrative body is legally required to give reasons for its decisions, what are the

contents of this duty? How do we measure the “adequacy of a tribunal’s reasons? Do they have to explain how the tribunal dealt with each and every point made in oral or written representations submitted to it?

- Any attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons. If the decision is challenged on an appeal or an application for judicial review, the court will test the adequacy of the reasons by asking whether, in light of the issues in dispute and the arguments and evidence advanced by the parties at the hearing before the tribunal, the tribunal’s reasons are sufficient to enable the court effectively to scrutinize the decision. To be balanced against these is the consideration that to require unduly elaborate and punctilious reasons and findings may put unjustifiable burdens on the tribunal.

- For example, if the decision involved an exercise of discretion, the reasons should demonstrate that the tribunal recognized that it had a power to choose and the factors that it considered in exercising it. When the tribunal’s application of a statutory standard depends on the existence of certain facts, the reasons should include the findings of fact made by the tribunal and indicate the evidence which the tribunal based its findings.

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- But when its findings depend on the assessment of the credibility of witnesses who gave conflicting accounts of the relevant facts, it may often be unrealistic to require a tribunal to elaborate its conclusion .

- However, courts are liable to require more specificity when the tribunal rejected the only viva voce evidence in favour of either hearsay or the tribunal’s general impression of the witness.

- Hilo v. Minister of Employment and Immigration o This case was an appeal from a rejection by the Immigration and Refugee Board of the

applicant’s claim to refugee status. The Board stated that:“…the claimant’s testimony lacked detail and was sometimes inconsistent. He was often unable to answer questions and sometimes appeared uninterested in doing so…the panel was not fully satisfied of his credibility as a witness.”

o In allowing the appeal, Judge Heald said:“The appellant was the only witness who gave oral testimony before the Board. His evidence was uncontradicted. The only comments as to his credibility are contained in a short passage written by the Board in its decision… That passage…does not amount to an outright rejection of the appellant’s evidence, but it appears to case a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt.”

- In the wake of Baker, some academics have expressed concern that the now seemingly broach reach of the duty to give reasons might lead to that requirement having only symbolic value and, in their early cases studies on the effect of Baker, some decisions have applied a watered down version of the reasons requirement.

- However, a case survey conducted in June 2001 By Bruce Ellis and Evan Smith shows that early academic fears of symbolic interpretation may not turn out to be wholly justified. In fact, there have been many cases that have applied Baker in a somewhat substantial way. Of these, 50 were chosen to comprise a survey regarding judicial interpretation of the Baker reasons requirement. Although several of the 50 cases did reflect a somewhat symbolic approach towards the reasons requirement, the great majority of cases studied reveal that the reasons requirement of Baker is being interpreted largely in a substantive manner. Twenty-three out of fifty cases had reasons which followed the formal requirement – in that they were more comprehensive. These decisions (the 23 cases) consisted largely of cases in which a Ministerial decision declared that the applicant was a “danger to the public” for deportation purposes. In most of those instances, the court felt that the adversarial nature of such a decision and its importance to the applicant called for a more formal issuance of reasons.

- Indeed, there is no clear Supreme Court authority supporting the provision of substantial reasons in such “danger to the public or the security of Canada” deportation cases at least in risk of torture and related situations. In Suresh, the court stated:

“The Minister must provide reasons for her decision. These reasons must articulate and sustain a finding that there are no substantial grounds to believe that the individual…will be subjected to torture, execution or other cruel or unusual treatment… The reasons must also articulate why, subject to privilege, the Minister believes the individual to be a danger to the security of Canada… In addition, the reasons must emanate from the person making the decision, in this case, the Minister, rather than from the form of advice.”

VIA Rail Canada Inc. v. National Transportation AgencyFactual Background- This is an appeal from a decision of the National Transportation Agency, which held that a

portion of VIA Rail’s Special and Joint Passenger Tariff constitutes an undue obstacle to the mobility of persons with disabilities.

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- In December 1993, a team of wheelchair basketball athletes travelled using VIA Rail. Each was accompanied by an attendant to assist them with their basic needs during the trip. In accordance with the provisions of the tariff, the attendants travelled for free. The group encountered a number of difficulties related to the accessibility of VIA’s services to the disabled passengers.

- Upon application, the Agency conducted an investigation into a number of specific complaints. The Agency concluded that certain actions and practices of VIA constituted obstacles to the mobility of the persons with disabilities, and that those obstacles “were undue because they could have easily been avoided by the carrier”.

- In the same decision, the Agency called attention to sec. 13(d) of VIA’s Special and Joint Passenger Tariff, which provided:

“A ticket maybe sold for the transportation of a disabled person and one adult attendant… The attendant must be capable of assisting the disabled person to get on and off trains and of attending to his/her personal needs throughout the trip.”

- With respect to the provisions of the tariff, the Agency made the following statements:“The Agency specifies that the presence of an attendant is no excuse not to provide assistance to a person during boarding and deboarding… Providing assistance during boarding and deboarding is the carrier’s responsibility. Consequently, this assistance should not be imposed on the attendant. The obligation imposed on the latter to board and deboard a disabled person constitutes an obstacle to the mobility of the person and the Agency believes that disabled persons are entitled to receive the same level of service whether they are travelling alone or with an escort.”

Judgment- Justice Sexton, sitting in the Federal Court of Appeal, stated the following:- The Agency issued an order that the words “the attendant must be capable of assisting the

disabled person to get on and off the trains” be struck from the tariff and that a provision be added to clearly indicate VIA’s responsibility to board and deboard all of its passengers.

- It is necessary, therefore, to deal with the questions of whether or not the Agency erred in law by failing to articulate adequate reasons for:

o 1 Its finding that sec. 13(d) of the tariff constituted an obstacle to the mobility of disabled persons; and

o 2 Its finding that such obstacle is “undue”.- I believe the reasons given by the Agency were inadequate.

The Duty to Give Reasons- What constitutes adequate reasons is a matter to be determined in light of the particular

circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which they duty to provide them was imposed. The decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue.

- In this case, I believe that the adequacy of the Agency’s reasons must be measured with particular reference to the extent to which they provide VIA with sufficient guidance to formulate their tariff without running afoul of the Agency and to the extent to which they give effect to VIA’s right of appeal by providing this court with sufficient insight into the Agency’s reasoning process and the factors that it considered.

Issue #1- Did the Agency provide adequate reasons for its finding that sec. 13(d) of the tariff constitutes an

obstacle to the mobility of passengers with disabilities?- In my view, the conclusion that the tariff was an obstacle is not supported by sufficient indication

of the reasoning process engaged in by the Agency. The reasons provide no intimation of what constitutes an obstacle to the mobility of a disabled passenger nor are they sufficiently clear. The Agency does not explain why the obligation of the attendant in respect of personal needs on

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board the train does not constitute an obstacle while any obligation in respect of being capable of providing help in boarding or deboarding does.

- I conclude, therefore, that the Agency erred in law. Its reasons did not provide sufficient insight into the reasoning process followed. Moreover, they were not sufficiently clear with respect to the conclusion that is in issue.

Issue #2- Did the Agency error in law by failing to provide adequate reasons for its conclusion that any

obstacle posed by the tariff was “undue”?- While “undue” is a word of common usage which does not have a precise technical meaning, the

Supreme Court has variously defined it to mean “improper, inordinate, excessive or oppressive” or to express “a nation of seriousness or significance”.

- Therefore, one can conclude from these definitions that the word “undue” is a relative concept. The proper approach to determine if something is “undue”, then, is a contextual one.

- In the case at bar, the Agency’s reasons do not reveal sufficient indicators of the reasoning process it followed in interpreting the term “undue”. They include no definition of the term, or any indication of a rule or standard defining what is “due”.

- In determining whether the obstacle was undue, the Agency should have first considered the aim of the National Transportation Act. Sec. 3(1)(g) of the Act provides that each carrier, so far as practicable, should conduct its business under conditions which do not constitute an undue obstacle to the mobility of disabled persons. The use of the words “so far as practicable”, in addition to the use of the term “undue” provides further support for my view that the Agency was required to undertake a balancing of interests such that the satisfaction of one interest does not create disproportionate hardship affecting the other interest. In its decision, the Agency made no mention of sec. 3 of the Act. I am forced to conclude that it did not have regard to it.

Effect of Breach of the Duty to Give Reasons –- If it is apparent from the reasons for a decision that the decision-maker misinterpreted the

legislation or committed some other error of law , the decision may be set aside. - In addition, if a tribunal’s reasons deal with some of the arguments and evidence adduced by the

individual, a reviewing court may conclude that the tribunal failed to consider other relevant issues at set the decision aside on this ground.

- The trend in the more recent case law is that a decision that is not accompanied by adequate reasons may be set aside as erroneous in law. There are also suggestions that, if no reasons are given at all, the decision is null and void.

- However , in cases where courts have shown ambivalence towards decisions of agencies which did not provide reasons for their decisions has stemmed from the difficulty of how to fashion the appropriate relief or remedy. If the case it to be remitted, for what purpose? If all that is required is that the tribunal must give better reasons, is this not an invitation to provide an ex post facto rationalization, and more than a mere formality ?

- A less drastic option is to remit the case for a rehearing on those aspects not adequately dealt with in the tribunal’s reasons. A more limited hearing of this nature should be conducted by the original members of the tribunal, although there possible unavailability may make this solution unattractive as a practical matter.

- One ground upon which a remedy may be refused is contained in the Ontario Judicial Review Procedure Act. Sec. 3 of the Act provides as follows:

“On an application for judicial review in relation to a statutory power of decision, where the sole ground for relief established is a defect in form or a technical irregularity , if the court finds that no substantial wrong or miscarriage of justice has occurred, the court may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding such defect.”

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- Re Howaston and Assiniboine Park Community Committee – contrast to sec. 3 of above Acto The court rejected an argument that the failure of a community committee, an advisory

body on planning matters, to support its recommendations with reasons, as required by statute, could be cured by a provision in the legislation relating to “formal defects or omissions”

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Delegation –- The Latin maxim delegates non potest delegare, a delegate may not re-delegate, deals with the

extent to which an authority may permit another to exercise a discretion entrusted by a statute to itself. It applies to all persons who are empowered by statute to do anything. Its most important application, however, is to authorities which are by statute empowered to exercise discretion affecting the rights and interests of the public.

- In applying it to a statute, there must be a consideration of the language of the whole enactment and of its purposes and objects.

- What is delegation? Delegation is the conferring of an authority to do things which otherwise that person would have to do himself. If, however, the authority exercises such a substantial degree of control over the actual exercise of the discretion so entrusted and it can be said to direct its own mind to I, there is in law no “delegation” and the maxim does not apply.

- For example, a county council which is empowered to grant movie licenses “on such terms and conditions as the council may by the respective license determine” delegates its powers if it inserts a condition “that no film be shown which has not been certified for public exhibition by the British Board of Film Censors”.

- When is delegation permissible? The answer to this question depends entirely on the interpretation of the statute which confers the discretion. A discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negative by any contrary indications found in the language, scope or object of the statute.

- In practice, the prima facie rule of delegates non potest delegare will readily give way, like the principles on which it rests, to slight indications of a contrary intent.

- What are these indications? To answer this the court must assess further questions: Is there anything in the nature of the authority which the discretion is entrusted, in the situation in which the discretion is to be exercised, in the object which its exercise is expected to achieve to suggest that the legislature did not intent to confine the authority to the personal exercise of its discretion?

- This question is answered in practice by comparing the prima facie rule with the known practices or the apprehended needs of the authority in doing its work. It weighs the presumed desire of the legislature for the judgment of the authority it has named against the presumed desire of the legislature that the process of government shall go on in its accustomed and most effective manner.

Vine v. National Dock Labour Board – authority for proposition that power to discipline cannot be delegated

Factual Background- The National Dock Labour Board was responsible for allocating dock labourers to stevedoring

companies, and had express power to delegate its functions to local dock labour boards.- Vine was assigned work but did not report; the company complained, and a discipline committee

of the local dock labour board ordered Vine discharged.- Vine brought an action for damages for wrongful dismissal and for a declaration that the action of

the discipline committee was void because the local board had no power to delegate its disciplinary powers.

- He succeeded at trial and before the Court of Appeal on the delegation issue, and the board appealed to the House of Lords.

Judgment

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- Lord Somervell stated the following:- In deciding whether a “person” has power to delegate one has to consider the nature of the duty

and the character of the person. - If, under a statute, a duty to appoint is placed on the holder of an office, he would normally have

no authority to delegate- I am, however, clear that the disciplinary powers, whether “judicial” or not, cannot be

delegated- Viscount Kilmuir stated the following:- It was urged that the very idea was negative by the fact that this was a quasi-judicial act. I am not

prepared to law down that no quasi-judicial function can be delegated.- Nevertheless, it is necessary to consider the importance of the duty which is delegated and the

people who delegate. In this case, the duty is to consider whether a man will be outlawed from the occupation of a lifetime.

- My view is, that this duty in this scheme is too important to delegate unless there is an express power.

IBM Canada Ltd v. Deputy Minister of National Revenue, Customs and Excise- The principle of non-delegation also requires that all members of the tribunal hearing a

dispute participate in a substantive sense in the making of the decision.- A decision of the Tariff Board was challenged on the ground that it was signed by only two of the

members; reasons of the dissenting member were released later.- The Federal Court of Appeal concluded that the applicant had failed to prove that the third

member of the quorum had not in fact participated in the deliberations. JA Decary said:“… Parliament…expects those who participate in the decision either as members of the majority or as dissenting members to act together up to the very last moment which is the making of one united, though not necessarily unanimous, decision… There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues.”

Deciding Without Hearing –- The rationale of the requirement is that a person is denied an adequate opportunity to influence

the decision if unable to address directly those who make or participate in making it.

Delegating the Duty to Hear

Local Government Board v. ArlidgeFactual Background- The Housing and Town Planning Act gave borough councils authority to make orders closing

dwelling houses that they were satisfied were unfit for human habitation. It also gave authority to terminate such orders if the council was satisfied that adequate corrective measures have been taken.

- The owner of a dwelling house was given a right of appeal to the Local Government Board, a government department, against both a closing order and a refusal to terminate.

- The Board was given the power to terminate its own procedure for these appeals, provided that it did not dismiss any appeal without holding a public local inquiry.

- The Hampstead Borough Council made a closing order against a house owned by Arlidge, and Arlidge appealed to the Board. The Board appointed an inspector who held a public inquiry and made a report.

- Arlidge made an application to present his case before the actual decision maker in the Board, but this was refused and the Board confirmed the order.

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- Arlidge then undertook repairs and applied to the council to have the closing order terminated. This application was refused and Arlidge appealed again to the Board.

- Another public inquiry was held and the Board again confirmed the decision of the council.- Arlidge sought certiorari on the ground that the order of the Board did not disclose the officer

who had made the decision, and therefore, the appeal could not be shown to have been decided by the Board or by someone authorized to act for it.

- The application was dismissed, and Arlidge appealed. The appeal succeeded, but the Board appealed to the House of Lords, which allowed their appeal

Judgment- Viscount Haldane stated the following:- The Minister at the head of the Board is directly responsible to Parliament. - The volume of work entrusted to him is very great and he cannot do the great bulk of it himself.

He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly.

- To try and extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency.

Case Analysis- The reasoning in this case about the propriety of the procedural arrangements made by the

Minister for hearing appeals must be considered within its wider doctrinal context: the reluctance of courts to apply the non-delegation principle to the exercise by civil servants of statutory powers conferred on their Minister.

- In Canada, however, while the courts do not require powers to be delegated expressly by the Minister to the civil servants in the department, they continue to find that some decisions exceptionally require the Minister’s personal decision. For example, in Suresh, the court seemed to demand that the Minister personally provide reasons when making a deportation order of a person likely to suffer torture on return to his or her country of origin.

Consultations among Agency Members- The question is whether, and if so, to what extent, the duty of fairness precludes the members of

an agency panel who heard a case from discussing it with other members of the agency after the hearing has ended, but before they have rendered their decision.

International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging LtdFactual Background- The union made an application to the Ontario Labour Relations board (OLRB) for determination

that the employer had failed to bargain in good faith, and raised a difficult and important issue about the extent of the employer’s duty to disclose its business affairs during negotiations for a collective agreement – in particular, a decision to close one of its plants.

- In its previous jurisprudence, the board had developed a test that imposed a duty of disclosure on the employer when it had taken a hard or firm decision to close a plant prior to or during the bargaining process.

- Three members of the board held a hearing. In the course of that hearing both the employer and the union argued that the current test should be changed. After the hearing was concluded three members discussed the case with other members of the board at a "full-board" meeting and then gave a decision upholding the existing test but in favour of the union’s application on the facts.

- The employer requested the board to reconsider this decision and argued that, if any evidence given at the hearing was discussed with other members or if any opinions of other members were considered, the decision had been improperly made.

Board Judgment

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- The meeting impugned by the respondent (employer) must be seen as only part of the internal administrative arrangements of the Board which have evolved to achieve a maximum regulatory effectiveness in a labour relations setting.

- Panels deliberate on their own in executive sessions following the conclusion of hearings. At this session, the vice-chairman is invariably charged with the responsibility of preparing a draft decision for the consideration of his or her two colleagues. A second executive session will usually be convened by the panel to consider the draft decision

- After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice-chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make.

- These “Full Board” meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.

- However, this institutional purpose is subject to the clear understanding that it is for the panel hearing the case to make the ultimate decision and that discussions at a “Full Board” meeting is limited to the policy implications of a draft decision.

- The decisions, therefore, remain the individual decisions of particular panels and vice-chairmen- As an extra-record event, “Full-Board” meetings are in substance no different from the post-

hearing consultation of a judge with his law clerks or the informal discussions that inevitably occur between brother judges.

Judgment- The employer made an application for judicial review, which succeeded before the Divisional

Court. The Court of Appeal reversed. The employer appealed to the Supreme Court. The majority decision is written by Justice Gonthier: He stated the following:

- The methods used at those meetings to discuss policy issues reflect the need to maintain an atmosphere wherein each attending Board member retains the freedom to make up his mind on any given issue and to preserve the panel members' ultimate responsibility for the outcome of the final decision. Thus, Chairman Adams states that discussions at full board meetings are limited to policy issues, that the facts of each case must be taken as presented and that no votes are taken nor any attendance recorded.

- There is no evidence that the particular meeting impugned in this case was used to impose any given opinion upon the members of the panel or that the spirit of discussion and exchange sought through those meeting was not present during those deliberations.

(3) Analysis(a) Introduction

- The appellant argues that the practice of holding full board meetings on policy issues constitutes a breach of a rule of natural justice appropriately referred to as “he who decides must hear."

- Thus, the appellant's position is that panel members must be totally shielded from any discussion which may cause them to change their minds even if this change of opinion is honest.

- It is important to note that the appellant’s argument raise issues with respect to two important and distinct rules of natural justice; namely, that an adjudicator be disinterested and unbiased, and that the parties be given adequate notice and opportunity to be heard.

- I agree with the respondent union that the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal.

- It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts of law.

- The main issue is whether, given the importance of the policy issue at stake in this case and the necessity of maintaining a high degree of quality and coherence in Board decisions, the

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rules of natural justice allow a full board meeting to take place subject to the conditions outlined.

(b) The Consequences of the Institutional Constraints Faced by the Board- The Board had a caseload of 3,200 cases to handle in 1982-83 and employed 12 full-time

chairmen and vice-chairmen, 4 part-time vice-chairmen, 10 full-time Board members representing labour and management as well as another 22 part-time Board members to hear and decide those cases.

- The first rationale behind the need to hold full board meetings on important policy issues is the importance of benefiting from the acquired experience of all the members, chairmen and vice-chairmen of the Board. Moreover, the tripartite nature of the Board makes it even more imperative to promote exchanges of opinions between management and union representatives. The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated experience of its members. On the contrary, the rules of natural justice should in their application reconcile the characteristics and exigencies of decision-making by specialized tribunals with the procedural rights of the parties

- The second rationale for the practice of holding full board meetings is the fact that the large number of persons who participated in Board decisions creates the possibility that different panels will decide similar issues in a different manner. Given the large number of decisions rendered in the field of labour law, the Board is justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases.

- Like many other judicial practices, however, full board meetings entail some imperfections, especially with respect to the opportunity to be heard and the judicial independence of the decision-maker.

- The question before this court is whether the disadvantages involved in this practice are sufficiently important to warrant a holding that it constitutes a breach of the rules of natural justice or whether full board meetings are consistent with these rules provided that certain safeguards are observed.(c) The Judicial Independence of Panel Members in the Context of a Full Board Meeting

- The appellant argues that persons who did not hear the evidence or the submissions of the parties should not be in a position to “influence” those who will ultimately participate in the decision.

- I agree that, as a general rule, the members of a panel who actually participate in the decision must have heard all the evidence as well as all the arguments presented by the parties.

- In this case, the members of the panel who participated in the impugned decision heard all the evidence and all the arguments. It follows that the cases cited by the appellant cannot support its argument, nor can the presence of other Board members at the full board meeting amount to “participation” in the final decision even though their contribution which took place at that meeting can be seen as a “participation” in the widest sense of that expression

- I am unable to agree with the proposition that any discussion with a person who had not heard the evidence necessarily vitiates the resulting decision because this discussion might “influence” the decision-maker. Discussions with colleagues do not constitute, in and of themselves, infringements on the panel members’ capacity to decide the issues at stake independently. A discussion does not prevent a decision-maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom.

- However, decision-makers are entitled to change their minds whether this change of mind is the result of discussions with colleagues or the result of their own reflection on the matter. A decision-maker may also be swayed by the opinion of the majority of his colleagues in the interest of adjudicative coherence. It follows that the relevant issue in this case is not whether the principles of holding full board meetings can cause panel members to change their minds, but whether this practice impinges on the ability of panel members to decide according to their opinions.

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- In my opinion, the danger that full board meetings may fetter the judicial independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this court in Committee for Justice and Liberty v. National Energy Board:

“…the apprehension of bias must be a reasonable one, held by reasonably and right minded persons, applying themselves to the question and obtaining thereon the required information… Thus, the test is: what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude...”

- The criterion for independence is not absence of influence, but rather, the freedom to decide according to one’s own conscience and opinions. In fact, the record shows that each panel member held to his own opinion since Mr. Wightman dissented and Mr. Lee only concurred in part with Chairman Adams.

- Thus, the Board’s practice of holding full board meetings would not be perceived by an informed person viewing the matter realistically and practically – and having thought the matter through – as having breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice.

(d) Full Board Meetings and the Audi Alteram Partem Rule- For the purpose of the application of the audi alteram partem rule, a distinction must be

drawn between discussions on factual matters and discussion on legal or policy issues.- The determination and assessment of facts are delicate tasks which turn on the credibility of

the witnesses and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result.

- The defined practice of the Board at full board meetings is to discuss policy issues on the basis of facts as they were determined by the panel.

- In this case, the record contains no evidence that factual issues were discussed by the Board at the meeting.

- In his reasons for judgment, Judge Rosenberg, sitting in the Divisional Court, was at odds with the proposition of whether discussions on policy issues can be completely divorced from the factual findings.

- With respect, I must disagree with his finding that it is not practical to discuss policy issues against the factual background provided by the panel.

- It is now necessary to consider the conditions under which full board meetings must be held in order to abide by the audi alteram partem rule. In this respect, the only possible breach of this rule arises where a new policy or a new argument is proposed at a bull board meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond. The parties must be informed of any new ground on which they have not made any representations.

- However, this is not a case where a new policy undisclosed or unknown to the parties was introduced or applied. The appellant does not identify any reasons as being new nor does it contend that it did not have an opportunity to be heard or deal with them.

- I, therefore, conclude that the consultation process described by Chairman Adams in his reconsideration decision does not violate the audi alteram partem rule provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting. It follows that the appellant has failed to prove that it has been the victim of any violation of the audi alteram partem rule.

Tremblay   v.   Quebec (Commission des affaires sociales) – deliberative secrecy applies only to thought process in arriving at the decision NOT to the process of deliberation the Board uses

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Factual Background- Gonthier, writing for the Supreme Court, stated the following:- This court is asked decide whether the decision of the appellant, the Commission, which refused

to reimburse the respondent Noémie Tremblay for certain dressings and bandages, was made contrary to the rules of natural justice. This decision of the Commission was the end result of an internal consultation process established by the Commission to ensure consistency in its decisions.

- At the relevant time, the respondent, Noémie Tremblay, was receiving social aid. The Ministère de la Main-d'oeuvre et de la Sécurité du revenu denied her claim to be reimbursed for the cost of certain dressings and bandages.

- The appeal was heard in the social aid and allowances division by a "quorum" consisting of a member of the Commission, Mr. Claude Pothier, and an assessor, Mrs. Dolorès Landry. As this point was purely one of law, the parties proceeded by admissions and argued in writing.  No witnesses were heard.

- At the close of the hearing, Mr. Pothier undertook to draft a decision which he then sent to Mrs. Landry for comments and approval. This draft decision was favourable to the respondent.  Mrs. Landry signed the draft, which was then sent to the Commission's legal counsel for verification and consultation in accordance with established practice at the Commission.  As the legal counsel was on vacation, it was the president of the Commission, Hon. Gilles Poirier, who reviewed the draft. He then sent the decision makers a memorandum in which he explained his position, which was contrary to their own. On receiving this memorandum, Mr. Pothier asked that the point of law raised by the case be submitted to the "consensus table" machinery of the Commission. The respondent's case was accordingly placed on the agenda for the next plenary meeting of the Commission.

- At that meeting, a majority of members present supported the viewpoint opposed to that originally taken by Mr. Pothier and Mrs. Landry. Shortly after this meeting, Mrs. Landry changed her mind and decided to write an opinion unfavourable to the respondent. As the quorum was thereby in disagreement, the matter was submitted to the president of the Commission, Judge Poirier, as required by the Act. Judge Poirier then decided the matter in the way he had already indicated to the decision makers in his memorandum of March 8, 1983. The Commission accordingly dismissed the respondent's appeal.

- The respondent then challenged the Commission's decision by an action in nullity:  she alleged a breach of the rules of natural justice. The respondent further asked that the first draft decision written by the members of the Commission who heard her appeal be declared the Commission's true decision.

4) Points at Issue- Principal Appeal

o 1 Should the Superior Court have allowed the objection to the evidence made by counsel for the Commission and based on deliberative secrecy?

o 2 Does the machinery established by the Commission to ensure adjudicative coherence give rise to a reasonable apprehension of bias? 

o 3 Is the part played by the president in the case at bar a breach of the rules of natural justice? 

- Incidental Appealo 4 Should document P-10 (the first "decision") be regarded as the Commission's true

decision?(5) Analysis

(1) Confidentiality of Deliberations- At the trial, counsel for the Commission made several objections to the evidence based on the

principle of deliberative secrecy. The Commission objected in particular to the Commission

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secretary answering the questions of counsel for the respondent on the process for dealing with draft decisions within the Commission (approval by legal counsel, discussion at plenary meeting, and so on)

- In my opinion, the objections made by the Commission should be dismissed. The questions raised by the respondent did not touch on matters of substance or the decision makers' thinking on such matters.   These questions were directed instead at the   formal process   established by the Commission to ensure consistency in its decisions .

- The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice. Accordingly, the very special way in which the practice of administrative tribunals has developed requires the Court to become involved in areas into which, if a judicial tribunal were in question, it would probably refuse to venture.

- Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature of judicial review to examine   inter   alia   the decision maker's decision-making process.

- Accordingly, administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.

- I would therefore dismiss this first ground of appeal.(2) Legality of the "Institutionalized" Decision-making Process Established by the Commission

- The Commission is arguing that the consultation machinery which it has created is consistent with the rules of natural justice. The purpose of which is not to impose any particular viewpoint but to assist the decision maker by informing him of the existence of precedents.

- It is true that, in view of the large number of decisions made by the Commission (on the evidence, 2,871 decisions for 1983), members and assessors very soon felt the need to consult their colleagues to ensure consistent and carefully reasoned decisions. As the Commission noted, the objective of consistency responds to litigants' need for stability but also to the dictates of justice. As the Commission's decisions are not subject to appeal, it is the Commission itself which has the duty of preventing inconsistent decision-making.

- However, that does not mean that the actual structure of the machinery created to promote collegiality is unimportant. Accordingly, they should not impede the ability of the members of an administrative tribunal to decide as they see fit nor should they create an appearance of bias in the minds of litigants.

- In the case at bar, although the "consensus tables" held by the Commission were optional in theory, it appeared from the testimony of the member Claude Pothier that these collegiate discussions were in practice compulsory when the legal counsel determines that the proposed decision is contrary to previous decisions.

- The Commission argued that under directive 45, the quorum still retains full control of its decision. As the Court observed in IWA, mere "influence" is to be distinguished from "constraint"; but what is crucial is to determine the actual situation prevailing in the body in question.

- The testimony of the member Claude Pothier depicts a system in which in actual fact constraint seems to have outweighed influence, regardless of any internal directive to the contrary.

- Additionally, the fact that under directive 5 the president of the Commission can raise a question at a plenary meeting without the approval of the quorum responsible for deciding the matter presents a particular problem. In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers.

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- Compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constraint.

- The referral process mentioned in directive 5 in cases of new subject matter also circumvents the will of the legislature by seeking to establish a prior consensus by persons not responsible for deciding the case. Ordinarily, precedent is developed by the actual decision makers over a series of decisions. The tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges.   There is no indication that the legislature intended it to be otherwise.

- There are other facts which support this conclusion of an apparent lack of independence. For example, plenary meetings of the Commission are held so as to arrive at a consensus:  a vote by a show of hands is generally taken, as well as attendance; minutes are kept. The process created by the Commission thus contains very few of the protective devices that were outlined in IWA.

- As it was said earlier in IWA, plenary meetings may be a consultation tool which is entirely in keeping with the rules of natural justice.   However, they should not be imposed on decision makers and should be held in such a way as to leave decision makers free to decide according to their own consciences and opinions.   Voting, the taking of attendance and the keeping of minutes are therefore not to be recommended.

- Accordingly, the Commission's decision, as a product of this system of internal consultation, seems to me to have been made in breach of the rules of natural justice.

(3) Part Played by President in the Case at Bar and Appearance of Bias- The Act respecting the Commission des affaires sociales gives the president of the Commission the

power to settle disputes that may arise within a quorum: when opinions are equally divided on a question, it shall be decided by the president or the vice-president he designates.

- In the case at bar, it is the president who raised the question by sending the quorum a memorandum in which he indicated the interpretation he would have given to the regulation at issue. This led to engaging the consultation process which eventually led to the disagreement between the two previously unanimous decision makers. Once the disagreement emerged, it was the president again who resolved the matter in the way he had indicated in his first intervention.

- Even if that machinery had been in keeping with natural justice, I feel that the fact that the president expressed his opinion to members of the quorum, inviting them to reconsider the decision, and then became a decision maker is hardly consistent with the rules of natural justice.

- The demands of natural justice must be reconciled with the deliberate intent of the legislature to give an administrative tribunal several overlapping duties. In the case at bar, the internal consultation procedure used by the Commission was not created by the legislature; and even if it had been, it does not contemplate the president taking control of cases in place of the legal counsel. There is, accordingly, less reason to tolerate the president playing several parts within the decision-making process.

- The active part played by Mr. Poirier in this matter thus seems to me likely to create a reasonable apprehension of bias in an informed observer.

- The respondent further argued that the procedure used infringes the audi alteram partem rule in that the president did not hear the parties when he finally decided the matter. The Court has already considered this point in   IWA .   It emphasized the importance of distinguishing between discussions bearing on questions of fact and those relating to questions of law.

- The question on which the Commission had to rule was clearly a point of law, namely whether "dressings and bandages were included in the definition of medical equipment.

- Furthermore, in the case at bar, there is no evidence that new arguments of law were raised at the "consensus table". The consultation process therefore did not infringe the audi alteram partem rule.

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- Therefore, the only blame which can attach to the president is thus of having resolved the disagreement between the decision makers when he had already spoken on the matter.

(4) Nature of First "Decision"- I consider that the first "decision" rendered by the members of the quorum was in their

minds only a draft, a provisional opinion.- In this regard, the intent of the decision makers must be analyzed in terms of the institutionalized

consultation process that existed at the time the decision was made, even though that process now proves to have contravened the rules of natural justice. The Court cannot disregard the setting in which the decision was made in deciding whether it was conclusive.

Mullan, “Common and Divergent Elements of Practices of the Various Tribunals: An Overview of Present and Possible Developments

- After describing the reasons given by Gonthier in Tremblay for distinguishing Consolidated-Bathurst, the author stated:

- To me, there are a significant number of problems with all of this: First, the determination of whether there has been illegitimate compulsion, as opposed to permissible pressure, seems to be related solely to form as opposed to substance

- To the extent that compulsion is illegitimate, it should be founded on hard evidence, not simply a structure of consultation that gives some cause for suspicion.

- Indeed, to ask whether the process of consultation amounted to effective compulsion amounts to answering without discussion the question that really needs to be asked in such cases: Why not compulsion on issues of law and policy?

- There has to be some way of ensuring uniform policies and a large measure of consistent treatment, and, to a certain extent, that may have to involve the heavy hand of executive or corporate dictation if the system is going to work.

- Indeed, it is also ironic that it was the level of formality and the fact that the practice had been laid down in rules that doomed the process in Tremblay, a process that had in fact resulted from a request by the members of the Commission.

- With respect to new argument of law and policy not raised at the hearing itself, there is always the discipline of the requirement to give reasons as a check on the intrusion of such arguments without the benefit of a reopening of the hearing to hear the parties’ views.

Ellis-Done Ltd v. Ontario (Labour Relations Board) – this case dealt with the tension b/w the fairness of the procedure used in decision-making and the principle of deliberative secrecy – the court held that the presumption of administrative regularity cannot be overturned w/o an evidentiary foundation – talks about hardship in establishing evidentiary foundation given deliberative secrecy

Factual Background- In 1962, the appellant entered into a collective bargaining agreement to contract or subcontract

only to individuals or companies whose employees were members of the affiliated unions of the Toronto Building and Construction Trades Council. In 1971 the Electrical Contractors Association of Toronto applied to the respondent board to be certified as a bargaining agent for the electrical contractors of Toronto. In that accreditation process, the IBEW, Local 353 filed a required document listing all employers for which it claimed bargaining rights but it did not include the appellant's name. In 1978, when province-wide bargaining was introduced, the bargaining rights of Local 353 were extended to Local 894.

- In 1990, Local 894 filed a grievance with the board alleging that the appellant had subcontracted electrical construction work to non-union subcontractors contrary to the provincial collective agreement. A three- member panel of the board heard the grievance.

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- The appellant argued that Local 353 had abandoned its bargaining rights in part because it omitted the appellant’s name on the document filed in the 1971 accreditation proceedings and Local 894 offered to explanation for the omission.

- A first draft of the panel's decision would have dismissed the grievance based on the abandonment of bargaining rights. However, after a full board meeting discussed the draft, a majority of the panel found that there had been no abandonment of bargaining rights and upheld the grievance.

- The appellant applied for judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change, and claimed that there was a breach of natural justice and a violation of the rules governing institutional consultations.

- Prior to the hearing of the application for judicial review, the appellant obtained an order compelling the chair of the board, the vice-chair who presided over the panel, and the registrar of the board to give evidence with respect to the procedures implemented by the board in arriving at its final decision. This order was reversed on appeal based on a finding of statutory testimonial immunity. The Divisional Court later dismissed the application for judicial review and the Court of Appeal affirmed the decision.

Judgment- Justice LeBel, who wrote for the majority of the Supreme Court, stated the following:- The final decision of the Board was silent as to what had happened during the full Board

meeting. As such, this case reveals a tension between the fairness of the process and the principles of deliberative secrecy.

- Even if this court has refused to grant the same level of protection to the deliberations of administrative tribunals as to those of the civil and criminal courts, the principle of deliberative secrecy has, nonetheless, played an important role in safeguarding the independence of administrative adjudicators.

- Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency.

- However, satisfying the requirements of consistency and independence comes at a price, this price being that the process becomes less open and that litigants face tough hurdles when attempting to build the evidentiary foundation for a successful challenge based on alleged breaches of natural justice.

- In the absence of any further evidence, this court cannot reverse the presumption of regularity of the administrative process simply because of a change in the reasons for the decision, especially when the change is limited on its face to questions of law and policy.

- A contrary approach to the presumption would deprive administrative tribunals of the independence that the principle of deliberative secrecy assures them. It could also jeopardize institutionalized consultation proceedings that have become more necessary than ever to ensure the consistency and predictability of the decisions of administrative tribunals.

Payne v. Ontario (Human Rights Commission) – principle of deliberative secrecy may give way to the audi alteram partem principle – if the Commission discussed its decision with staffers, then this may give rise to apprehension that the decision maker was not solely responsible for rendering the decision – applicant need not prove actual influence – look below

Factual Background- The appellant made a complaint to the respondent Commission alleging that she had been the

victim of discrimination at the hands of her employer.- The Commission staff investigated her complaint. A report of the investigation recommended that

the Commission refer the appellant’s complaint to a board of inquiry

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- The matter was considered at three meetings of the Commission. In the end, the Commission decided not to request the Minister to appoint a board of inquiry and, in effect, dismissed the appellant’s complaint.

- The appellant brought an application for judicial review, challenging the decision dismissing her complaint on the grounds that it was made on inappropriate grounds and that she had been denied procedural fairness.

- The appellant filed the affidavit of a former member of the Commission who had been present at the first of the three meetings at which the appellant’s complaint had been considered. The former member swore that when the complaint was considered, Commission staff members made recommendations to the Commissioners that the complaint not be referred to a board of inquiry based on facts or considerations that ought not to have been taken into account by the Commission. The statements or recommendations of the Commission staff were not revealed in the record filed by the Commission for the judicial review application.

Judgment- Justice Sharpe wrote for the Ontario Court of Appeal. He stated the following:- The principle issue on this appeal is whether the appellant is entitled to full disclosure and

production of all facts, arguments and considerations that were presented to the Commission when it considered her complaints.

- The short answer is that the appellant was not entitled to any right of discovery to rummage through the commission’s files. However, this did not mean that she was not entitled to a “more focused examination”. This conclusion was arrived at first by identifying what had to be disclosed in order to ensure that the procedures were fair, and then by considering whether concerns for deliberative secrecy should limit this disclosure.

- The only legitimate factor to be considered by the Commission is whether there is any merit in the complaint. If the Commission were to base its decision on some extraneous factor, the court would intervene on judicial review.

- Procedural fairness dictates that the complainant and other parties who may be affected by a decision of the Commission be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions.

- If the Commission were to proceed on a different recommendation or to base its decision on factors or considerations undisclosed to the complainant and the others there would be no opportunity to respond and the right to fairness would be infringed.

- Justice Sharpe then turned to consider whether concerns for deliberative secrecy should prevent even a focused examination. He noted that three purposes had been put forward in favour of deliberative secrecy: first, a practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations; second, the need for finality and the need for decisions to rest on reasons given; and, third, the need to protect the process of debate, discussions, and compromise inherent in collegial decision making.

- The right to conduct examinations designed to protect the interests of tribunal members must be balanced with the right of the citizen who has been affected by the tribunal’s decision to effective judicial review.

- The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles. As was pointed out by Justice Gonthier in Tremblay, an allegation that the right to natural justice has been infringed may require scrutiny of the decision-making process.

- I note that the application of deliberative secrecy to these proceedings is not without difficulty. The Commissioners apparently conduct their discussions at the same time they entertain submissions and input from staff members and it would seem difficult to identify a discrete, deliberative phase of the process.

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- In view of that practice, it seems to me that the claim of protection for deliberative secrecy has considerably less force than in cases where tribunal members actually retire to consider the case in private.

- There is a prima facie right to resort to examination in relation to an application for judicial review and there is no onus on the party seeking the examination to prove any facts as a precondition . However, as there is no general right to discovery on a judicial review application, the party serving notice of examination may be required to specify the scope of the proposed examination . The matters intended to be covered in the examination must be relevant to a ground that would justify judicial review. Furthermore, the evidence must not be excluded by statute. Examinations based on conjecture or mere speculation will not be allowed.

Agency Counsel –- Nearly all administrative agencies have access to legal counsel. Lawyers or staff involved in

investigations and prosecutions should not also be engaged in assisting those who adjudicate, particularly in the instance of files with which they have had some prior involvement.

At the Hearing- It is common for tribunals to have counsel available to advise on the admissibility of evidence,

procedure or other questions of law that arise during the hearing.- The parties should be apprised of counsel’s advice, and given an opportunity to make submission

to the tribunal before it decides the issue.- The problem most likely to arise from these arrangements is that counsel may overstep the

role of adviser to assume functions more appropriate for the chair or other members of the tribunal – for example, making rulings. This could give rise to a challenge

- The degree of intervention permitted may also depend on the nature of the proceeding – in an adversarial proceeding, less active intervention on the part of tribunal counsel is likely o be allowed by the duty of fairness than in a proceeding that is more inquisitorial.

- If an objection to the conduct of counsel at the hearing is not made at the time, an application for judicial review made after the tribunal releases its decision may be dismissed for acquiescence.

The Preparation of Reasons- Members of tribunals may find that they do not have the time needed to write reasons, or they

may have little experience with writing reports, which require them to make an explain findings of fact on the basis of the evidence and to draw legal conclusions from the parties submissions.

- The practical problem is this: how far may tribunals take advantage of the expertise of their staff, including their counsel, in the preparation of the reasons for decision, without breaching some aspect of the duty of fairness – the delegation doctrine and apprehended bias, in particular?

- The relevant black letter law can be stated simply. First, the decision made must be that of the tribunal members themselves. Second, the reasons for decision must be in substance those of the tribunal members, not their clerk’s or their counsel’s.

- The courts have recognized in two ways the difficulties that may be caused by insisting that agency members write their own reasons for decision. First, the court in Re Del Core and Ontario College of Pharmacists stated that when interpreting administrative decisions and other documents, courts should remember that their author may not be a lawyer and be prepared to overlook infelicities in expression or possible ambiguities, if the document otherwise gives a reasonably clear account of the reasons for decision. Second, the courts have also permitted tribunals to seek the assistance of counsel (or other staff member): Armstrong v. Canada (Commissioner of the RCMP).

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Spring v. Law Society of Upper Canada – writer of the reasons was separated from the decision-making process, and his final draft was reviewed by each member of the tribunal

- Judge Labrosse, sitting in the Ontario Divisional Court, stated the following:- In its reasons for decision, Convocation adopted the reasons of the Discipline Committee, which

found the appellant guilty of professional misconduct and conduct unbecoming a solicitor, and recommended that he be disbarred.

- One of the main grounds of appeal is that the decision and reasons of the Discipline Committee were not prepared by the Committee but by the clerk of the Committee.

- The affidavit of Roger Dennis Yachetti, a member of the Discipline Committee, establishes the following:

o 1 During deliberations the Committee made findings of fact and decisions respecting the credibility of the witness. The clerk was not present during any of those deliberations

o 2 Thereafter, the Committee again deliberated as to penalty. The clerk was not present and he did not contribute.

o 3 Subsequently, Mr. Yachetti discussed the Committee’s findings with the clerk and he instructed him to prepare a draft report.

o 4 The clerk prepared a draft report which Mr. Yachetti reviewed and reviewed again with the clerk. He made changes to ensure that the report fully and accurately reflected the reasoning of the Committee. The clerk then prepared the final report which he approved.

- In the present case, the deliberations, the findings and the decision, were all made without input from any third party. The clerk did not participate in or influence the findings or the decision. No part of the decisional process was delegated.

- I conclude that the reasons were the reasons of the Discipline Committee and there can be no reasonable apprehension of bias.

Khan v. College of Physicians and Surgeons of OntarioFactual Background- Khan had been found guilty of professional misconduct by the discipline committee of the

college and his license was revoked. He appealed to the Divisional Court, which allowed the appeal. The College appealed.

- The Ontario Court of Appeal allowed the appeal, holding that, despite the evidential errors that the Committee made, the case against Khan was so strong that the Committee would necessarily have reached the same result on the basis of the admissible evidence that it heard.

- Khan had also appealed on the ground that the Committee had acted in breach of the duty of procedural fairness by permitting its counsel to play so significant a role in the preparation of its reasons for decision as to create a reasonable apprehension of bias. The Divisional Court allowed the appeal on this ground as well. The following extract from the Court of Appeal’s judgment deals only with the “counsel” issue.

Judgment- Justice Doherty stated the following:

(E) Did counsel’s involvement in the preparation of the Committee’s reasons contravene the Health Disciplines Act or the principles of natural justice?

(1) Background- There is no suggestion that counsel’s conducting during the actual hearing was improper. It is

also not suggested that counsel played any role in the Committee’s deliberation or its decision. It is counsel’s involvement in the preparation of those reasons which is in issue.

- Counsel for Dr. Khan did not challenge the description provided in counsel’s letter to him describing counsel’s role in the preparation of the reasons. Therefore, this appeal must proceed on

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the basis that the counsel’s letter provides an accurate and complete description of the reason-writing process.

- That process has three distinct phases. First, a member of the Committee prepared a draft. That draft was then reviewed and revised by counsel for the Committee, in consultation with the chairman. This second draft then went back to the entire Committee for review, revision and eventual release. Counsel for the Committee was NOT involved in this final revision of the reasons. The final draft was approved and signed by each member of the Committee

(2) Sec. 12(3) of the Health Disciplines Act- The majority of the Divisional Court held that sec. 12(3) of the Health Disciplines Act precluded

the kind of assistance given by counsel during the drafting process. Judge Rosenberg for the majority stated the following:

“… Lawyers are not retained for their journalistic or administrative abilities and it is unlikely that a lawyer with the best of intentions can confine his advice to be only of journalist and administrative assistance.”

- Counsel for the Committee argued before us that sec. 12(3) has no application beyond the hearing stage of the discipline process. I agree. This is apparent form a consideration of sec. 12 as a whole, and the language of sec. 12(3).

- In my view, the hearing phase of the discipline process encompasses the taking of evidence, the hearing of argument and the rendering of the decision. It does NOT include the preparation of reasons for that decision.

- The hearing stage of the discipline process was over when the Committee announced its decision and imposed a penalty. Nothing done by counsel for the Committee after that point could contravene sec. 12(3).

- However, even if sec. 12(3) did reach beyond the hearing stage to the writing of the reasons for the decision, the section was not contravened in this case. I cannot accept the view that any advice given by counsel for the Committee which affects the substance of the Committee’s reasons amounts to legal advice. It is the nature of the advice, not its effect on the final product, which must be considered . Advice intended to improve the quality of the Committee’s reasons by, for example, deleting erroneous references to the evidence or adding additional relevant references to the evidence, is not advice on a matter of law but is rather advice as to how the Committee should frame its reasons in support of its decision.

- Counsel for the Committee submitted before us that the involvement of counsel for the Committee in the drafting process fell well within the bounds of permissible assistance and did not impair either the fairness or integrity of the discipline process. I accept those assertions.

- The line between permissible assistance and that which is forbidden must be drawn by regard to the effect of counsel’s involvement in the drafting process, on the fairness of the proceedings and the integrity of the overall discipline process.

- The nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal’s workload, and other factors will impact on the assessment of the propriety of procedures used in the preparation of reasons.

- It must also be recognized that the volume and complexity of modern decision-making all but necessitates resort to “outside” sources during the drafting process.

- To hold that any “outside” influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic, but also destructive of effective reason-writing.

- In my opinion, no legitimate concerns as to the fairness of the proceedings arise from counsel’s very limited involvement in the reason-writing process.

Reasons Review

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- Some agencies also employ lawyers to assist it in its corporate capacity to develop policy and oversee its implementation by panels of the agency.

- The argument is that, when sitting on a hearing panel, members exercise their powers, not with total independence, like judges, but as members of an agency with a statutory mandate to discharge, which accordingly gives to the agency a legitimate interest in the substance and technical quality of members’ decisions.

Bovbel v. Canada (Minister of Employment and Immigration) – no breach in procedural fairness arises from an agency policy which stipulates that counsel is to review the board’s reasons and identify any factual inconsistencies, and resolve those inconsistencies by reference to the applicant’s file

- Justice Pratte, sitting in the Federal Court of Appeal, stated the following:- The respondent attacked the decision of the Board on the ground that “contrary to the principles

of natural justice and the provisions of the Immigration Act, the Board had “referred a draft of its written decision to legal counsel who was not a member of the Board and who had no participated in or attended at the applicant’s hearing.

- The motion’s judge found that the members of the Board were governed by a Policy – the Reasons Review Policy – according to which they were expected to submit a draft of their reasons for decision to legal advisors before issuing them to the parties. The mere existence of that policy, according to the judge, was sufficient to create a reasonable apprehension of lack of independence on the part of its members.

- It should be noted that the record does not show whether the two members of the Board who disposed of the respondent’s claim actually followed the policy in this case.

- We have difficulty understanding the judge’s position on this point. If, as he found, the Reasons Review Policy prescribed a procedure that offended the principles of natural justice, certainly that defect could only affect the validity of decisions rendered in accordance with that procedure. However, the application for judicial review was not directed against the policy of the Board but against the decision determining that the respondent was not a Convention refugee.

- Thus, the appeal should be allowed for the reason that there was nothing wrong with the policy followed by the Board.

- When the practice followed by members of an administrative tribunal does not violate natural justice and not infringe on their ability to decide according to their opinion even though it may influence that opinion, it cannot be criticized.

- The main ground for the judge’s decision was based on the fact that the legal advisor reviewing the draft reasons had access to the entire file and on the recommendation made to legal advisors that they should “not spend a great deal of time verifying facts and names” and should “before embarking on a time consuming review of the transcript” look for “inconsistencies that single a problem with the facts”. From this, the judge inferred that the legal advisors had, according to the policy, the authority to discuss the findings of facts made by the members.

- We are all of the opinion that this reason is without merit. A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of fact made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved.

Agency Guidelines –- Guidelines can provide valuable assistance to agency members. They can be an effective way of

maximizing the coherence of agency decisions and of transmitting to individual members the benefit of the agency’s collective experience about the subject matter of the guidelines.

- Guidelines are proactive and can be used to formulate a general and comprehensive approach to a problem without being confined by the facts of a particular dispute.

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Thamotharem v. Canada (Minister of Citizenship and Immigration)(B) FACTUAL BACKGROUND

(1) Mr. Thamotharem refugee claim- Mr. Thamotharem is Tamil and a citizen of Sri Lanka. He made a claim for refugee protection in

Canada. The RPD dismissed Mr. Thamotharem's refugee claim and found him not to be a person in need of protection

- Mr. Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing.

- Mr. Thamotharem's application for judicial review was granted, the RPD's decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD's discretion in the conduct of the hearing.

(2) Guideline 7- Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of

individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it.(C) LEGISLATIVE FRAMEWORK

(1) IRPA- IRPA confers on the Chairperson of the Board broad powers over the management of each

Division of the Board, including a power to issue guidelines.- IRPA also empowers the Chairperson of the Board to make rules for each of the three

Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament.

(D) ISSUES AND ANALYSISIssue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members'

exercise of discretion in the conduct of hearings?(1) Rules, discretion and fettering

- Effective decision-making by administrative agencies often involves striking a balance between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments, including guidelines, can assist members of the public to predict how an agency is likely to exercise its statutory discretion, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis.

- It should be noted, however, that an administrative agency does NOT require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities Commission).

- This is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts, strive to ensure that similar cases receive the same treatment.

- Nonetheless , while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-makers’ exercise of discretion was unlawfully fettered. This level of compliance may only be achieved through the exercise of a statutory power to make "hard" law.

- Writing for the Court in Ainsley, Justice Doherty adopted the criteria formulated by the trial judge for determining if the policy statement was "a guideline" or was "mandatory"; namely, (1) its language, (2) the practical effect of non-compliance, and (3) the expectations of the agency and its staff regarding its implementation.

(2) Guideline 7 and the fettering of discretion

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(a) Is Guideline 7 delegated legislation?- In my view, despite the express statutory authority of the Chairperson to issue guidelines,

they do not have the same legal effects that statutory rules can have. In particular, guidelines CANNOT lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them.

- However, the meaning of "guideline" in a statute may depend on context. For example, in Society of the Friends of Oldman River v. Canada (Minister of the Environment) La Forest upheld the validity of mandatory environmental assessment guidelines issued under sec. 6 of the Department of the Environment Act, which, he held, constituted delegated legislation and, as such, were legally binding.

- In my view, Oldman River is distinguishable from the case before us. Sec. 6 of the Department of the Environment Act provided that guidelines were to be issued by an "order" of the Minister and approved by the Cabinet. In contrast, only rules issued by the Chairperson require Cabinet approval, guidelines do not. It would make little sense for IRPA to have conferred powers on the Chairperson to issue two types of legislative instrument, guidelines and rules, specified that rules must have Cabinet approval, and yet given both the same legal effect.

- I conclude, therefore, that, even though issued under an express statutory grant of power, guidelines issued under IRPA cannot have the same legally binding effect on members as statutory rules may.

(b) Is Guideline 7 an unlawful fetter on members' discretion?- The next question is whether, in its language and effect, Guideline 7 unduly fetters RPD

members' discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings. In my opinion, language is likely to be a more important factor than effect in determining whether Guideline 7 constitutes an unlawful fetter.

- Consequently, since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in the absence of clear evidence to the contrary.

- The texts of the provisions of Guideline 7 are of the most immediate relevance to this appeal. Paragraph 19 states that it "will be" standard practice for the RPO to question the claimant first; this is less obligatory than "must" or some similarly mandatory language.

- As Maple Lodge Farms makes clear, the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter , as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts.

- Additionally, evidence that the Immigration and Refugee Board "monitors" members' deviations from the standard order of questioning does not, in my opinion, create the kind of coercive environment which would make Guideline 7 an improper fetter on members' exercise of their decision-making powers.

- There was no evidence that any member had been threatened with a sanction for non-compliance.- Nor is it an infringement of members' independence that they are expected to explain in

their reasons why a case is exceptional and warrants a departure from the standard order of questioning. Such an expectation serves the interests of coherence and consistency in the Board's decision-making.

- In my opinion, therefore, the evidence in the present case does not establish that a reasonable person would think that RPD members' independence was unduly constrained by Guideline 7.

(iii) Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?

- In my view, structuring members' discretion over the order of questioning is within the subject-matter of the guidelines contemplated by sec. 159 .

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- The Chairperson did not need an express grant of statutory authority to issue guidelines to members. Paragraph 159(1)(h) puts the question beyond dispute.

- In my view, the present appeal raises an important question about the relationship between the Chairperson's powers to issue guidelines and rules. In particular, are these grants of legal authority cumulative so that, for the most part, the scope of each is to be determined independently of the other? Or, is the Chairperson's power to issue guidelines implicitly limited by the power to make rules of procedure? If it is, then a change to the procedure of any Division of the Board may only be effected through a rule of procedure issued under paragraph 161(1)(a) which has been approved by Cabinet and subjected to Parliamentary scrutiny in accordance with sec. 161(2).

- The argument in the present case is that the power of the Chairperson to issue guidelines may not be used to avoid the political accountability mechanisms applicable to statutory rules issued under sec. 161(1).

- It should first be noted, however, that the fact that Guideline 7 permits RPD members to exercise their discretion does not prevent it from being a rule of procedure: rules of procedure commonly confer discretion to be exercised in the light of particular facts.

- An analogous line of reasoning is found in the Ontario Court of Appeal's decision in Ainsley. In my opinion, however, Ainsley should be applied to the present case with some caution.

- First, when Ainsley was decided, the Commission had no express statutory power to issue guidelines and no statutorily recognized role in the regulation-making process. In contrast, the Chairperson of the Board has a broad statutory power to issue guidelines and, subject to Cabinet approval, to make rules.

- Second, the policy statement considered in Ainsley was directed at businesses regulated by the Commission and was designed to modify their practices by linking compliance with the policy to the Commission's prosecutorial power to institute enforcement proceedings, which could result in the loss of a license by businesses. Guideline 7, on the other hand, lacks the kind of coercive threat, against either claimants or members, in the event of non-compliance.

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Pecuniary and Other Material Interests –- The common law has always treated a direct pecuniary or other material interest in the outcome

of a matter as disqualifying an adjudicator or decision-maker automatically. Moreover, that rule is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.

- For the longest time, it was accepted that even the slightest whiff of a financial interest was sufficient to disqualify. However, the English Court of Appeal has sensibly recognized the de minimis exception – Locabail (UK) Ltd v. Bayfield Properties Ltd.

Energy Probe v. Canada (Atomic Energy Control Board)Factual Background- The AECB proposed to renew the operating license for a nuclear generating station operated by

Ontario Hydro, and Energy Prove made some objections, including an objection to participation by one Board member, Olsen.

- Energy Probe alleged that Olsen was president of a company that supplied cables to nuclear power plants and was an official or member of several organizations that supported use of nuclear power.

- AECB rejected this objection and renewed the license.- Energy Probe challenged this decision, and it limited its challenge to an allegation of material

interest.1st Instance Judgment- Judge Reed, sitting the Federal Court – Trial Division, stated the following:- The issues raised by this application are: (1) does the doctrine of fairness as enunciated by the

Supreme Court in Nicholson apply to the licensing function of the AECB and, particularly, does that doctrine of fairness include a requirement of a lack of bias on the part of the Board members?; (2) did Mr. Olsen have a pecuniary interest in the outcome of that decision sufficient to constitute pecuniary bias as that term has been defined?

Fairness Doctrine- The licensing function of the AECB is an administrative one and not quasi-judicial or judicial.

Therefore, the doctrine of fairness, enunciated by Nicholson, applies to licensing decisions.- Moreover, I have no doubt that the duty to act fairly must include a requirement for an unbiased

decision maker.Direct Pecuniary Bias?

- Only pecuniary bias has been alleged; there has been no allegation of reasonable apprehension of bias.

- The rule relating to pecuniary bias, as it has been articulated, is that a direct pecuniary interest, no matter how trivial, will constitute bias.

- However, in the case at bar, I can find no direct pecuniary interest, as that concept has been defined in the jurisprudence, held by Mr. Olsen at the date of the hearings in question.

- There was no certainty that Mr. Olsen would sell additional cables to Ontario Hydro during the life of the new license. The most that could be said of Mr. Olsen as of the date of the hearing was that he could entertain a reasonable expectation of pecuniary gain as a result of approval of the licenses.

- All of the jurisprudence respecting pecuniary bias that I have seen involves individuals who at the date of the hearing held some sort of direct relationship with the beneficiary of the

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decision such that pecuniary benefit might with certainty arise even though that benefit might be minuscule.

Federal Court of Appeal Judgment- The Federal Court of Appeal unanimously dismissed the appeal, and the majority essentially

agreed with Judge Reed. Justice Heald said, “Olsen’s interest was indirect and uncertain and too remote to constitute either direct pecuniary interest, or bias”.

Case Analysis- Subsequent to this decision, however, the Supreme Court adopted the position that

classification of the function as judicial or quasi-judicial was no longer a prerequisite to a challenge on the basis of bias.

Pearlman v. Manitoba Law Society Judicial Committee- The issue involved in this case was whether the authority of the Disciplinary Committee to award

costs against a member found guilty of professional misconduct gave rise to disqualifying bias rendering the relevant provision in the legislation invalid by reference to sec. 7 of the Charter.

- The Supreme Court, assuming but not deciding that a “life, liberty and security of the person” interest was at stake, held that any financial interest in the outcome of the proceedings on the part of the members of the Committee was indirect, rather than direct. It then found that that indirect interest was sufficiently attenuated and small as not to give rise to a reasonable apprehension that the members would be biased against those subject to discipline because of an incentive to find guilt and award costs, thereby potentially reducing their membership fees.

Bias Authorized by Statute- As with other forms of bias, a pecuniary or other material interest may be statutorily

authorized.- Burnbrae Farms v. Canadian Egg Marketing Agency

o A disgruntled egg procedure in Ontario withheld a levy imposed by the CEMA. o The agency held a hearing and withdrew its license.o The producer sought review on several grounds, including bias, and particularly because

some of the members who participated in the hearing were producers in other provinces and their interests under the marketing scheme, therefore, conflicted with his.

o However, the legislation and regulations required at least 7 of the 12 members to be procedures in other provinces

- Moskalyk-Walter v. Ontario (College of Pharmacy) – contrast with CEMAo This case involved discipline by the College of Pharmacy.o The Discipline Committee imposed a suspension on a pharmacist in Fort Erie, a town of

about 7,500 persons. o The pharmacist successfully appealed, because one of the members who participated in

the hearing owned one store in Fort Erie and operated another.

Bias: The General Test –- The general test applied by Canadian courts for the determination of whether an adjudicator or

other decision-maker should be disqualified is that of a reasonable apprehension of bias as

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stated for the first time by Justice Grandpre in Committee for Justice and Liberty v. National Energy Board:

“The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining thereon the required information. The test is: ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude ? ”

- Of somewhat more practical importance, however, is the question what knowledge is to be attributed to the observer of events. While this obviously involves a fictional construct, it may have a considerable impact on the evidence adduced by the parties and the admissibility of and relevance attached to that evidence by the court.

- Unfortunately, the Canadian courts have not been at all that consistent in the knowledge that is to be attributed to the reasonable bystander.

- A restatement by the House of Lords in R v. Gough (R.B). of the test to be applied, was addressed by Lord Goff:

“… I think it unnecessary if formulating the appropriate test, to require that the court look at the matter through the eyes of the reasonable man… For the avoidance of doubt, I prefer to state the test in terms of real danger, rather than real likelihood, to ensure that the court is thinking in terms of possibility, rather than probability, of bias. Accordingly, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.”

- To the extent that the fictional observer of events remains relevant under this formulation, what the House of Lords appears to be saying is that the initial impressions of that fictional observer may well be modified once the complete evidence is adduced in the judicial review proceedings. If that evidence now established that there is no real danger of biased appraisal, the fictional observer of events will be satisfied and the public’s interest in the appearance of justice will be maintained.

- Lord Simon-Brown of the English Court of Appeal in R v. Inner West London Coroner, ex parte Dallaglio, summarizes Gough as standing for the following propositions:

o 1 A decision maker may have unfairly regarded with disfavour on party’s case either consciously or unconsciously. Where the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision maker was unconsciously biased.

o 2 It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias, but rather, with establishing the possibility that there was actual though unconscious, bias…

o 3 It is not necessary for the applicants to demonstrate a real possibility that the decision-maker’s decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing considerations, and so decide the merits, unfairly.

- It is useful to break down the disqualifying conditions into four categories:o 1 Antagonism during a hearing by a decision-maker toward a party or his or her

counsel or witnesseso 2 An association between one of the parties and a decision-makero 3 An involvement by a decision-maker in a preliminary stage of the decision

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o 4 An attitude of a decision-maker toward the outcome

Antagonism during the Hearing- This category’s most common manifestations are unreasonably aggressive questioning or

comments about testimony.- Such conduct may also manifest into an attitude toward the issue to be decided. - In Yusuf v. Canada (Minister of Employment & Immigration), members of a penal of the

Immigration and Refugee Board had engaged in injudicious cross-examination (involving harassing and unfair comments) of a Convention refugee claimant.

- Additionally, as we saw in Baker, antagonism may also be a problem in written or paper hearings – that is, the court may disqualify a decision-maker who reveals in the course of a paper hearing an antagonism toward a party of a lack of sympathy with legislative objectives.

- The requirement of balanced and proper behaviour during the hearing also reaches lawyers who are employed to assist a tribunal at the hearing. In Brett v. Ontario (Board of Directors of Physiotherapy), during the course of the hearing, counsel had told the lawyer presenting the case against the member subject to discipline when to object to questions, when to put forward arguments favourable to the “prosecution”, and suggested to the prosecution’s witnesses answers to questions that assisted the prosecution’s case.

Association between Party and Decision-Maker

Marques v. Dylex Ltd.- An employer challenged a decision of the Ontario Labour Relations Board to certify a union

because one of the members of the Board, who had been a lawyer before his appointment, had been a member of a firm that acted for a union that became part of the union that was certified.

- The challenge by the employer failed. Judge Morden said:“… The vice-chairman had nothing to do with any aspect of the present proceedings, as part of his association with the law firm or otherwise, and neither did the law firm itself during the currency of his association with it… Almost a year had elapsed since his connection with the law firm terminated… The fact that a Judge in similar circumstances would not, I would think, have heard the case is not determinative… We can take judicial notice…that…the Government of Ontario looks to people with such a background in making appointments. Most, if not all of those appointed, are bound to have some prior association with parties coming before the Board . ”

CNG Transmission Corporation v. Canada (National Energy Board)- A meeting took place between representatives of one of the parties to a proceeding and

representatives of the National Energy Board (the chair, a member and counsel to the Board).- This encounter, in which matters relevant to the ongoing proceedings were discussed, was held

by Judge Cullen to have produced a reasonable apprehension of bias, a finding that was reinforced by the fact that, among the representatives of the part was a former chair of the Board.

- In seeking the meeting, the former chair has not gone through the Board’s secretary as required by the relevant protocol, but had contacted the present chair personally.

Involvement of Decision-Maker in Earlier Stage of Process

Committee for Justice and Liberty v. National Energy Board – degree of involvement of the decision-maker is directly proportional to a reasonable apprehension of bias

Factual Background

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- An application was made under the National Energy Board Act to the National Energy Board by Canadian Arctic Gas Pipeline for construction of a national gas pipeline.

- The Chairman of the Board at the time of the application was Marshall Crowe, who had been president of Canada Development Corporation before his appointment.

- The application, the Arctic Gas Pipeline Company, was formed in November 1972 but a “study group” of companies interested in constructing a pipeline from the north. This study group was formed in June 1972, and Canada Development Corporation became a member in the following November.

- Crowe had been involved in discussions and planning from the time the Canada Development Corporation became a member until he left to join the Energy Board.

- Some of the participants in the hearing claimed that this apparent commitment to a pipeline created a reasonable apprehension of bias, and a majority of the Supreme Court agreed.

Judgment- Justice Laskin stated the following:

“… The vice of reasonable apprehension of bias lies not in finding correspondence between the decisions in which Mr. Crowe participated and all the statutory prescriptions… but rather in the fact that he participated in working out some at least of the terms on which the application was later made and supported the decision to make it. The Federal Court of Appeal had no doubt that Mr. Crowe took part in the meetings and in the decisions taken which…dealt with fairly advanced plans for the implementation of the pipeline project . ”

Township of Vespra v. Ontario (Municipal Board) – a Board hearing a matter which has connections to an earlier matter that the exact same Board had heard and decided, in itself, does not give rise to a reasonable apprehension of bias

- This case was a sequel to the Innisfil case.- Barrie came to an agreement with Innisfil and decided not to proceed with the application to

annex the land in Oro. Therefore, only the application to annex the land in Vespra remained. - The hearing began again in early 1983, and the members of the Board were the same members

who had made the original decision.- Vespra objected that their presence created an apprehension of bias, but the hearing continued

despite this objection.- However, the Board refused to receive any new evidence because of a deadline imposed by the

Municipal Boundary Negotiations Act.- As a result, the Board made a decision on the merits, and Vespra made an application for review

and succeeded, because the refusal to hear evidence was considered to be a denial of the obligation to give a hearing.

- Judge Smith, sitting in the Ontario Divisional Court, said:“… Standing alone, these emphatic expression of opinion (made by the Board in its reasons for decisions- omitted) on the part of the panel would not lead this court to a conclusion that there was a reasonable apprehension of bias. But, when there is added to those strong statements the actually decision of 1983… made without jurisdiction and contrary to natural justice, based upon the evidence of 1976 without regard for any change in circumstances in the intervening seven-year period and, in particular, without evidence of population projections, the government policy having lost its relevancy, the reasonable apprehension of bias by Vespra is inevitable in our view.”

Law Society of Upper Canada v. FrenchFactual Background

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- The governing body of the Law Society of Upper Canada was the benchers, and allegations of misconduct were heard by the Discipline Committee.

- Sec. 33(12) of the Law Society Act provided that if the Committee found a member guilty of misconduct, it was to give a copy of its decision to the member, together with notice “of his right of appeal”. Sec. 37 gave the Committee power to reprimand the lawyer, and sec. 34 gave Convocation (the assembly of benchers) power to order disbarment or suspension. Sec. 39 provided that a member reprimanded under sec. 37 could appeal to Convocation and members of the Discipline Committee could not participate in considering the appeal.

- The Discipline Committee heard allegations of professional misconduct against French, found him guilty of seven of them, and recommended suspension.

- Convocation met to consider this recommendation and two members of the Committee were present.

- French objected to their participation; he was granted an adjournment and made a motion for review. He succeeded and an appeal to the Supreme Court was allowed.

- French’s claim was that the proceeding in Convocation was essentially consideration of an appeal from the Discipline Committee, and therefore, the participation of the two members created an apprehension of bias.

- One argument for the Society was even if the proceedings were an appeal, the maxim expression unius est exclusion alterius permitted the members to participate. Sec. 39 prohibited committee members from participating in one kind of appeal, therefore, implicitly permitting them to participate in others.

Judgment- Justice Spence, writing for the majority, accepted this argument. Considering the question of the

nature of the proceeding, Spence concluded that Convocation was not considering an appeal. He said that the discipline process was “a single proceeding in which there are two stages: First, the inquiry and the investigation into the complaint by the Discipline Committee, the results of which are embodied in a report to the benchers; and secondly, the consideration and disposition of the report by the Benchers in Convocation.

- That being so, he stated: “I can see no basis for the submission that the Benchers who were members of the Discipline Committee would be precluded from participating in the deliberations of the Benchers in Convocation.”

Statutory Authorization –

Brosseau v. Alberta (Securities Commission)Factual Background- Brosseau alleged that the chair of the commission was disqualified from sitting in an adjudicative

capacity because, at the request of a senior civil servant, he had instructed commission staff to review their files and information in the possession of the police about a company of which Brosseau was the solicitor. The chair had also received a copy of the resulting report of the commission staff.

- A notice of hearing was issued against Brosseau alleging that false or misleading statements were contained in the company prospectus filed with the commission.

Judgment- L’Heureux-Dube wrote the judgment of the Supreme Court. She stated the following:

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Reasonable Apprehension of Bias- In this case, it is contended that the Chairman, in acting as both investigator and adjudicator in the

same case, created a reasonable apprehension of bias.- As a general principle, this is not permitted in law.- However, as with most principles, there are exceptions. One exception is where the overlap

of functions which occurs has been authorized by statute.- In some cases, the legislator will determine that it is desirable, in achieving the ends of the

statute, to allow for an overlap of functions which in normal judicial proceedings would be kept separate.

- Therefore, in order to disqualify the Commission from hearing the matter in the present case, some act of the Commission going beyond its statutory duties must be found.

- Sec. 28 of the Securities Act provides authority for the Commission to carry out a full scale investigation. Because of the extensive nature of the powers granted to an investigator under sec. 28, such an investigation must be ordered by the Commission, and not by the Chairman alone.

- However, there is no evidence in the present case that a sec. 28 investigation was ordered by the Commission.

- Thus, the appellant contends that the only permissible route for an investigation is sec. 28, and that, therefore, there was no statutory authorization for the action taken by the Chairman.

- The respondent argues that the Act implies powers on a different level from the sec. 28 formal investigative procedures. It contends that an informal “enforcement review” is the mechanism used by the Commission to bring to its attention those matters which warrant a more in depth investigation.

- I am inclined to agree that the Commission must have the implied authority. It would be unreasonable to say that a securities commission requires express statutory authority to review the documents it has on file. To do so would be to make mandatory a resort to a sec. 28 investigation for what are often simple administrative purposes.

- Sec. 11 of the Act provides that the Chairman of the Commission is its CEO. As such, it appears to me that he would necessarily have the authority to receive information, pass this material along to the Director of the Commission, require that the Director verify the allegations and complaints, and receive a report of any review made. There is no evidence that his participation went beyond those bounds

- Moreover, securities commissions, by their nature, undertake several different functions . They will have repeated dealings with the same parties. The dealings could be in an administrative or adjudicative capacity. The Commission both orders the hearing and decides the matter. Given the circumstances, it is not enough for the appellant to merely claim bias because the Commission, in undertaking this preliminary review, did not act like a court. It is clear from its empowering legislation that, in such circumstances, the Commission is not meant to act like a court.

- Securities Acts in general can be said to be aimed at regulating the market and protecting the general public. This protective role gives a special character to such bodies which must be recognized when assessing the way in which their functions are carried out under their Acts.

- The particular structure and responsibilities of the Commission must be considered in assessing allegations of bias. Thus, in Latimer, Justice Dubin, sitting in the Ontario Court of Appeal, found that the structure of the Act, whereby commissioners could be involved in both the investigatory and adjudicatory functions, did not, by itself, give rise to a reasonable apprehension of bias.

- I am in agreement with this proposition. So long as the Chairman did not act outside of his statutory authority, and so long as there is no evidence to show involvement above and beyond the mere fact of the Chairman’s fulfilling his statutory duties, a “reasonable apprehension of bias” affecting the Commission as a whole cannot be said to exist.

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Case Analysis- In many senses, the type of attack in this case has more to do with the structure of the decision-

making process at issue than the state of mind of particular members of tribunals. In recent, times, this has spawned a classification of bias cases on the basis of whether they involve an allegation of bias against an individual or the decision-making process itself.

E.A. Manning Ltd. v. Ontario Securities CommissionFactual Background- In a policy statement, the OSC indicated that it considered the actions of some ten securities

dealers and salespersons, who were not members of the stock exchange, to be improper and to amount to unfair sales practices.

- Subsequently, the OSC issues two notices of hearing against the applicant, and its principals and various employees.

- In the interim, the Ontario Court of Justice had declared the policy statement to be without statutory authority and, in so doing, had also stated that the OSC had determined by that policy statement that certain dealers (including the applicant) had been guilty of various abuses – Ainsley Financial Corporation v. Ontario Securities Commission.

- The Commission appealed that decision and, in that context, issued a press release reiterating the concerns addressed in the policy statement. The chair of the OSC also gave a press interview to the same effect.

- The applicant applied for an order in the nature of prohibition to prevent the OSC from proceeding with the two hearings.

1st Instance Judgment- Judge Montgomery, in the Ontario Divisional Court, stated the following:- The conclusions stated in Policy 1.10 and the conclusions stated in the staff report, which the

OSC expressly adopted in approving Policy 1.10, demonstrate that the subject matter of the hearing has already been decided by the Commissioners.

- Even if OSC staff tried to separate their investigative role from the Commissioners’ role as adjudicators, the creation and adoption of Policy 1.10 and the additional evidence led by the OSC in Ainsley, lead me to the irresistible conclusion that the roles have become so interwoven that there is a reasonable apprehension of bias against all Commissioners who took office prior to November 1993.

- I conclude that Mr. Waitzer (the Chair of the OSC) cannot sit on either hearing because of a reasonable apprehension of bias.

- In Brosseau, Justice L’Heureux-Dube said:“… So long as the Chairman did not act outside of his statutory authority, and so long as there is no evidence to show involvement about and beyond the mere fact of the Chairman’s fulfilling his statutory duties, a ‘reasonable apprehension of bias’ affecting the Commission as a whole cannot be said to exist.”

- In the case at hand, the OSC did act outside its statutory authority in adopting Policy 1.10. In the process of formulating and deciding to issue the mandatory regulation presented by Policy 1.10, the Commissioners closed their minds to the issue of whether securities dealers, including the applicant, are guilty of unfair sales practices. This constitutes prejudgment.

- They pursued a course in excess of their policy and regulatory functions due to a too narrow focus on a small number of parties and very particular allegations of practices and that, in turn, has produced an overly specific regulation beyond the OSC’s jurisdiction.

- The Divisional Court then went on to deal with the argument that there was such a degree of corporate tainting that even those members of the Commission appointed subsequently were disqualified from sitting on this matter. This argument was rejected by the Divisional Court, which held that the hearing could proceed in front of two identified subsequent appointees as well

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as any later appointees. In so doing, the court doubted the existence of a doctrine of corporate taint; held that, in any event, it could not be invoked on the present facts; and stated further that, even if made out on the facts, it was subject to the overriding doctrine of necessity.

Appeal Judgment- The Ontario Court of Appeal sustained the judgment of the Divisional Court. Justice Dubin stated

the following:Disqualification by Reason of Corporate Taint

- I agree with the Divisional Court’s conclusion that such a finding did not disqualify new Commissioners.

- There was no evidence of prejudgment on the part of the new Commissioners . They were not involved in the consideration and adoption of the Policy Statement.

- Therefore, it must be presumed, in the absence of any evidence to the contrary, that the Commissioners will act fairly and impartially in discharging their adjudicative responsibility and will consider the particular facts and circumstances of each case. Additionally, even advance information as to the nature of the complaint and the grounds for it, which are not present here, are not a basis for disqualification.

Disqualification by Reason of the Comments of the Chair, Mr. Waitzer- The appellant submitted that the statements of the Chair exhibited a bias against them which was

reflective of the Commission as a whole, and therefore, they could not get a fair hearing from any members of the Commission.

- Mr. Waitzer’s comments were delivered in the context of a series of four articles published in the same issue of the Dow Jones News.

- Mr. Waitzer’s comments about getting the penny stock dealers into the self-regulating system is clearly a reflection of what he sees as the idea regulatory solution for the industry’s problems. I fail to see how what was said by Mr. Waitzer could form any basis for concluding that there was a reasonable apprehension of bias if here were to sit on either of the pending hearings, let alone disqualify the other Commissioners from conducting the hearings. In making the comments complained of here, Mr. Waitzer was fulfilling his mandate as Chair of the Commission.

- In Ainsley, Justice Doherty stated:“…regulators may, as a matter of sound administrative practice, and without any specific statutory authority for doing so, issue guidelines and other non-binding instruments… A provision is not a prerequisite for the use of those instruments by the regulator.”

- Mr. Waitzer’s comments did not in any way relate to the subject matter of the complaints made against the appellant in the pending proceedings. However, even if it could be said that the statements of the Chair exhibited some bias against the appellant that, in itself, would not disqualify the other Commissioners from conducting the hearings.

Bias Resulting from Commission’s Defense in the Ainsley Action- In the action, the plaintiffs alleged bad faith, harassment, intimidation, and intentional

interference with their business interests and claimed damages in the amount of $1 million.- There were very serious allegations and certainly called for a vigorous defense. - It would be a strange result if a securities dealer, whose conduct is under investigation,

could, by the institution of an action calling for a defense, prevent the Commission from taking proceedings against it.

- It was the Commission staffs, along with counsel, who were responsible for assembling the materials that formed the basis of the Commission’s response to the plaintiff’s allegations in the Ainsley action. None of the Commissioners, with the exception of the former Chair, participated in any way in assembling those materials.

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- In my opinion, it cannot be said that the defense of the action was a basis to conclude that the new Commissioners had prejudged the complaints which were the subject matter of the notices of hearing.

Doctrine of Necessity- In the view that I take on the matter, it is not necessary to consider the doctrine of necessity.Case Analysis- Sec. 3.5(4) of the Ontario Securities Act, now provides generally that members of the

commission who perform any of the commission’s duties with respect to investigations and examinations may not, save with the written consent of the parties, sit on any subsequent hearing involving those matters.

- It should be noted that in both Brosseau and E.A. Manning, much of the concern was with the way in which the respective Securities Commissions operated in an institutional sense.

- In the aftermath of these cases – discussed below in this chapter – the Supreme Court finally recognized that bias too could be both individual or personal and institutional . This meant that, on occasion, when a tribunal was set up in such a way as to create a reasonable apprehension of bias, the court could set aside a decision on the basis of institutional bias.

- Where the institutional problems were the result of internal choices about modes of operation, this intervention was on the basis of the common law. However, where the structures were statutorily provided for, as in Brosseau, the court needed a constitutional or quasi-constitutional basis on which to intervene.

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) – the roles of prosecutor and adjudicator can never be overlapped even if statutorily authorized

Factual Background- The Regie revoked the company’s liquor permits for violations of the state. - The company sought a declaration that various provisions of the Quebec liquor licensing statute

were invalid in terms of sec. 23 of the Quebec Charter. This section requires that were a tribunal is acting in a judicial or quasi-judicial fashion, it be both “independent and impartial”.

- In both the Quebec Superior Court and Court of Appeal, the company was successful and the government obtained leave to appeal to the Supreme Court.

Judgment- The judgment of the Supreme Court was written by Justice Gonthier. After concluding that the

Regie did exercise judicial or quasi-judicial powers for the purposes of sec. 23, he stated the following:

- Since R v. Lippe , there is no longer any doubt that impartiality has an institutional aspect. Lamer, speaking for the court on this pointed, stated:

“…the constitutional guarantee of an ‘independent and impartial tribunal’ has to be broad enough to encompass this…if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.”

(1) Institutional Bias- The determination of institutional bias presupposes that a well-informed person, viewing

the matter realistically and practically – and having thought the matter through – would have a reasonable apprehension of bias in a substantial number of cases .

- The informed person’s assessment will always depend on the circumstances. The nature of the dispute to be decided, the other duties of the administrative agency and the operational context as a whole will affect the assessment.

- Thus, greater flexibility must be shown toward administrative tribunals.(a) The Liquor Permit Cancellation Process

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- The arguments against the Regie relate primarily to its role at various stages in the liquor permit cancellation process. The Act authorizes employees of the Regie to participate in the investigation, the filing of complaints, the presentation of the case to the directors and the decision.

- Although an overlapping of functions is not always a ground for concern, it must, nevertheless, not result in excessively close relations among employees involved in different stages of the process.

- In the case at bar, the evidence established that, in practice, employees of the Regie are involved at every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication.

(b) Role of the Regie’s Lawyers- The issue of the role of the lawyers employed by legal services is at the heart of this appeal.- In my view, an informed person having thought the matter through would in this regard have a

reasonable apprehension of bias in a substantial number of cases.- The lawyers are called upon to review files in order to advise the Regie on the action to be taken,

prepare files, draft notice of summons, present arguments to the directors and draft opinions. The Act and Regulations leave open the possibility of the same lawyer performing these various functions in the same matter.

- The possibility that a lawyer who has made submissions to the directors might then advise them in respect of the same matter is disturbing, especially since some of the directors have no legal training.

- Therefore, prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner.

(c) Role of the Directors- The Court of Appeal’s decision was also based on the fact that the directors could intervene at

various stages in the permit cancellation process.- Although the evidence was silent as to the Regie’s practice, the decision to summon may be made

by the Chairman acting alone. Furthermore, once a notice of summons has been sent, the Chairman has the power to designate the directors responsible for deciding the case in question.

- Therefore, the Act and Regulations authorize the Chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she desired.

- Additionally, the annual report suggests that other directors sometimes make the decision to hold a hearing, and it does not rule out the possibility that those directors might then decide the case on its merits.

- In the case at bar, these factors can only reinforce the reasonable apprehension of bias an informed person would have in respect of the Regie.

- Having said this, I would like to point out that the fact that the Regie, as an institution, participates in the process of investigation, summoning and adjudication, is not in itself problematic.

- However, the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the decision-making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases.

Case Analysis- Note how in this context the court took account of the way in which the Regie in fact operated. In

other words, the mere fact that the relevant Act might leave open the possibility of a tribunal operating in a way that gives rise to a reasonable apprehension of institutional bias does not mean that the statute is flawed.

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MacBain v. Canada (Human Rights Commission) – Commission appointed investigator – if the Commission was satisfied that the investigator’s report substantiated the complaints, it could adopt it as its own – the Commission also appointed the Tribunal who would hear the case = overlap b/w prosecutor and adjudicator – the same body was responsible for appointing both

Factual Background- The Canadian Human Rights Act prohibited discrimination of various kinds and established the

Canadian Human Rights Commission to administer its requirements. If a complaint was made to the Commission, it could appoint an official to investigate and report.

- Sec. 36(3) provided that the Commission could “adopt the report if it is satisfied that the complaint to which the report relates has been substantiated. Sec. 39 provided that it could at any time after a complaint was filed appoint a human rights tribunal from a panel of prospective members “established and maintained by the Governor in Council.” The tribunal was to hold a hearing into the complaint, and “if it finds the complaint…is substantiated,” it had power to make various remedial orders.

- The complainant, Potapczyk, filed a complaint that MacBain had discriminated against her on the basis of her sex during the course of her employment.

- The Commission appointed a staff member to investigate and, after she made her report, the Commission decided that the complaint was substantiated and appointed a tribunal from the list established under sec. 39.

- MacBain sought a declaration that the legislation violated the Charter and the Bill of Rights because the arrangements specified by the Act for appointment of the tribunal created an apprehension of bias.

- The hearing proceeded, with the Commission prosecuting the complaint, and the tribunal concluded that the complaint was justified.

- MacBain’s actions was dismissed by the Trial Division of the Federal Court, and MacBain appealed and succeeded. One major issue was whether the Bill of Rights applied.

Judgment- Justice Heald, sitting in the Federal Court of Appeal, stated the following:- In the instant case, and pursuant to the scheme envisaged in the Act, the Commission

investigated, made findings of substantiation and then prosecuted this complaint; the very same Commission also appointed the Tribunal members who heard and decided the case.

- In my view, the apprehension of bias exists in this case because there is a direct connection between the prosecutor of the complaint (the Commission) and the decision-maker (the Tribunal). That connection easily gives rise, in my view, to a suspicion of influence or dependency.

Idziak v. Canada (Minister of Justice) – although the Minister’s role overlapped in the sense that he decided whether or not to pursue extradition proceedings, and that upon completion of proceedings where the outcome was a finding of sufficient evidence to extradite, the Minister then had discretion to surrender the person or not – court held that no bias existed bc’s there was a court proceeding in the middle of the decision

Factual Background- In this case, the dual functions of the Minister of justice in extradition proceedings were the

issue. - Under the Extradition Act, it was the responsibility of the Minister to decide whether to respond

favourably to a “requesting” nation and appoint an agent to “prosecute” a matter at an extradition hearing. Thereafter, if the extradition judge issued a warrant of committal, it was also for the Minister to decide whether to surrender the person to the requesting nation.

Judgment

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- Justice Cory, for the court, held that this overlapping of functions was not contrary to sec. 7 of the Charter and the “principles of fundamental justice”. In so doing, he emphasized the flexible content of those principles and, against this background, referred to the buffer provided by the extradition hearing conducted by a judge at which the affected individual had full procedural protections.

Bell Canada v. Canadian Telephone Employees Association(1) Introduction

- This appeal raises the issue of whether the Canadian Human Rights Tribunal lacks independence and impartiality because of the power of the Canadian Human Rights Commission to issue guidelines binding on the Tribunal concerning “a class of cases”.

(2) Background- A panel of Tribunal members was appointed to inquire into the original complaints. Bell brought

a motion before the panel urging that the Tribunal was institutionally incapable of providing a fair hearing in accordance with the principles of natural justice.

- At that time, the Act differed from the current legislation. The Commission’s guideline power was broader than it now is, permitting the Commission to make guidelines concerning the application of the Act in a particular case, and not only in “a class of cases”.

- The amendments transferred the power to extend appointments of Tribunal members to the Tribunal Chairperson, and limited the Commission’s guideline power.

- However, Bell argued that the 1998 amendments did not eliminate the problems of procedural fairness that had been identified.

- Bell then applied for judicial review of this decision. The Federal Court – Trial Division allowed the application.

- The Commission, CTEA, CEP and Femmes Action appealed. Before the Federal Court of Appeal, Bell argued that the Tribunal violated not only the requirements of procedural fairness, but also Bell’s right to a fair hearing under sec. 2(e) of the Canadian Bill of Rights. The Federal Court of Appeal rejected Bell’s view that the Tribunal violated the requirements of procedural fairness, and held it unnecessary to consider the arguments based on the Canadian Bill of Rights.

(3) Relevant Statutory Provisions- Canadian Human Rights Act :

o Sec. 27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.

o (3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.

- Canadian Bill of Rights o Sec. 2: Every law of Canada shall, unless it is expressly declared by an Act of the

Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

o (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

(4) Issues

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- (1) Are sec. 27(2) and sec. 27(3) of the Canadian Human Rights Act, as amended, inconsistent with sec. 2(e) of the Canadian Bill of Rights, and the constitutional principle of adjudicative independence and therefore inoperable or inapplicable?

(5) Analysis- Bell argues that the power of the Commission to issue guidelines binding on the Tribunal,

under sec. 27(2) and sec. 27(3), compromises the Tribunal’s independence because it places limits upon how the Tribunal can interpret the Act, and undermines the Tribunal’s impartiality because the Commission is itself a party before the Tribunal.

(B) Content of the Requirements of Procedural Fairness Applicable to the Tribunal- The procedural requirements that apply to a particular tribunal will “depend upon the nature and

the function of the particular tribunal.- Some administrative tribunals are closer to the executive end of the spectrum: their primary

purpose is to develop, or supervise the implementation of, particular government policies. Such tribunals may require little by way of procedural protections. Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures.

- In ascertaining the content of the requirements of procedural fairness that bind a particular tribunal, consideration must be given to   all   of the functions of that tribunal . It is not adequate to characterize a tribunal as “quasi-judicial” on the basis of one of its functions, while treating another aspect of the legislative scheme creating this tribunal — such as the requirement that the tribunal follow interpretive guidelines that are laid down by a specialized body with expertise in that area of law — as though this second aspect of the legislative scheme were external to the true purpose of the tribunal.

- On a proper consideration of all the evidence, it is my opinion that the main function of the Canadian Human Rights Tribunal is adjudicative. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court.

- The fact that the Tribunal functions in much the same way as a court suggests that it is appropriate for its members to have a high degree of independence from the executive branch.   A high degree of independence is also appropriate given the interests that are affected by proceedings before the Tribunal.

- Whether the Tribunal is impartial depends upon whether it meets the test set out by de Grandpré J in Committee for Justice and Liberty: would a well-informed person, viewing the matter realistically and practically, have a reasonable apprehension of bias in a substantial number of cases? As Justice Lamer stated in Lippé, allegations of institutional bias can be brought only where the impugned factor will give a fully informed person a reasonable apprehension of bias in a substantial number of cases.

- It should also be noted, however, that the content of the requirements of procedural fairness applicable to a given tribunal depends not only upon the enabling statute but also upon applicable quasi-constitutional and constitutional principles.

- Here, the Canadian Bill of Rights, quasi-constitutional legislation, applies: sec. 2(e). Canadian courts have held that the content of sec. 2(e) is established by reference to common law principles of natural justice (Singh v. Minister of Employment and Immigration).

- Thus, the Tribunal, though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under sec. 2(e) of the Canadian Bill of Rights.

(C) The Guideline Power

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- Bell alleges that the Commission’s power to issue binding guidelines regarding the proper interpretation of the Act undermines the Tribunal’s impartiality.

- It might be contended that sec. 27(2) and sec. 27(3) of the Act do not adequately empower the Commission to issue valid subordinate legislation, and that consequently, the guidelines are not “law”. In our view, this view is incorrect. The guidelines issued by the Commission under the Act are indistinguishable from regulations issued by other administrative bodies. They are, like regulations, of general application.

- While it may have been more felicitous for Parliament to have called the Commission’s power a power to make “regulations”, rather than a power to make “guidelines”, the legislative intent is clear. A functional and purposive approach to the nature of these guidelines reveals that they are a form of law, akin to regulations.

- The objection that the guideline power unduly fetters the Tribunal overlooks the fact that guidelines are a form of law.   It also mistakenly conflates impartiality with complete freedom to decide a case in any manner that one wishes.   Being fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints or influences.   Rather, it consists in being influenced only by   relevant   considerations, such as the evidence before the Tribunal and the applicable laws.

- The second version of Bell’s objection is that the Tribunal is more likely to favour the Commission during a hearing because the Commission has the power to issue guidelines that bind it. It is not evident to us why this would be so.

- The public does not, in other contexts, assume that a decision-maker will favour submissions by government representatives simply because the decision-maker must apply laws that the government has made .

- Bell objects that Parliament has placed in one and the same body the function of formulating guidelines, investigating complaints, and acting as prosecutor before the Tribunal.

- This overlapping of different functions in a single administrative agency, however, is not unusual, and does not on its own give rise to a reasonable apprehension of bias.

- In Public Service Alliance, Justice Evans noted that although it was unusual for Parliament to have conferred the power to make subordinate legislation on the Commission and not the Governor in Council, Parliament must have contemplated that “the expertise that the Commission will have acquired in the discharge of its statutory responsibilities was necessary in the formulation of the guidelines, and was more important than certain other goals.

- In our view, Evans J.’s conjecture regarding Parliamentary intent is correct. This point is related to our earlier discussion of the importance of considering the aims of the Act as a whole, in assessing whether the requirement of impartiality has been met.

- Bell’s real objection may be that placing the guideline power and the prosecutorial function in a single agency allows the Commission to manipulate the outcome of a hearing in its favour.

- This version of Bell’s objection might have been stronger had Bell provided some evidence that, in practice, the Commission had attempted to use the guidelines to influence the Tribunal’s views toward it. No such evidence was provided in this case. Bell seems to be overestimating the breadth of the guideline power.

- Counsel for Bell also argued that the Tribunal has no power to “escape the fetters of any guidelines imposed on it by declaring them ultra vires the Commission”. 

- On examination of the evidence, however, one can conclude that the guideline power is constrained. The Commission, like other bodies to whom the power to make subordinate legislation has been delegated, cannot exceed the power that has been given to it and is subject to strict judicial review.  The Tribunal can, and indeed must, refuse to apply guidelines that it finds to be   ultra vires   the Commission as contrary to the Commission’s

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enabling legislation, the Act, the   Canadian Charter of Rights and Freedoms   and the   Canadian Bill of Rights .

- In conclusion, we find that Parliament’s choice was obviously that the Commission should exercise a delegated legislative function. Like all powers to make subordinate legislation, the Commission’s guideline power under sec. 27(2) and sec. 27(3) is strictly constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend a “real likelihood of bias”.

Attitudinal Bias –

Paine v. University of TorontoFactual Background- This is an application for judicial review brought by Anthony Paine, an assistant professor,

following the denial of his application for tenure- In 1972, the “Haist Rules” were adopted by the Council and became part of the terms of

employment of all professional members of the staff of the university. These rules, which are not specifically authorized by any statutory provisions, deal with the subject of academic tenure

o Rule 5 Assistant professors shall be considered for tenure after a probationary period of 6 years

o Rule 6 In the spring term of the year preceding the last year of the probationary period, a Tenure Committee shall meet to decide whether or not the member of the professional staff shall be recommended for tenure. The Tenure Committee shall be appointed by the Dean of the Faculty, Director of the School or Principal of the College in consultation with the Chairman of the Department concerned. The Chairman of the Department shall be the Chairman of the Committee. The Committee shall, in addition to its Chairman, the Dean, Director or Principal, and the Dean of the School of Graduate Studies or his representative, consist of four members of the professional staff having tenure, at least two of them should be from the Department involved… A recommendation to grant tenure must be approved by at least give of the seven members of the Committee.

1st Instance Judgment- In our view, the one overwhelming consideration which points to procedural unfairness is the fact

that, with prior knowledge of the views that he had previously expressed, the Chairman of the Tenure Committee appointed to it a tenured senior member of the Department of Fine Arts who had submitted a thoroughly negative assessment of Mr. Paine’s merits as an instructor and artist concluding with a statement to the effect that the writer had concluded some time before that Mr. Paine was “not acceptable for tenure”.

- Regardless of the fact that there was an appeal to the Appeals Committee and indeed a second appeal directed by the president after receiving the report of the ombudsman, there was really no de novo hearing on fresh material

Court of Appeal Judgment- Counsel for the university argues that there was no unfairness at all, given the nature of the

process by which tenure is granted or withheld. Members of the Tenure Committee are tenured members of the professional staff of the candidate’s department, or a cognate department. As a matter, of course, they must all, in the course of their association with the candidate, have formed general opinions as to his suitability for tenure, and it makes little difference whether that opinion was expressed before or at the meeting of the committee .

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- There is much force in that argument. The Tenure Committee does not sit as a tribunal, acting only on the evidence placed before it. The members act on their own knowledge of the candidate, as well as the assessments and references that are provided to them.

- Thus, the question is whether, at the end of the day, Mr. Paine has shown that he was treated with such manifest unfairness as to call for intervention by the court.

- I think this is not a case where the court should intervene to substitute its own views for those of the review committees.

Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) – being an advocate for a certain cause will not automatically render you bias. However, if you are a party to a proceeding in which you are advocating a cause which is before you in current proceedings, you are apprehended to be bias

- Judge Montgomery, sitting the Ontario Divisional Court, stated the following:- It is the position of both A&P and the Union that there exists a real and reasonable apprehension

of bias, and perhaps acts of bias, on the part of Constance Backhouse as the Board appointed to hear and decide the complaints in issue.

- This position is based upon both the background of Miss Backhouse as an “advocate” in matters and issues involving sex discrimination, and the fact that of her being a party in proceedings outstanding before the Commission in which that issue is raised.

- During the course of argument, we advised counsel that we did not think it necessary to decide whether Miss Backhouse’s public advocacy in favour of the same positions advanced before her by the Commission in relation to systemic sex discrimination went so far as to create a reasonable apprehension of bias in relation to this case.

- Rather, we would counsel that for the purposes of determining this issue, our attention was focused only upon the fact of Miss Backhouse’s involvement in the proceedings outstanding before the Commission in which she was, at the relevant times, one of the complainants.

- In our view, the unique aspect of this case is that Miss Backhouse went beyond the position of an advocate and descended personally, as a party, into the very arena over which she has been appointed to preside in relation to the very same issue she has to decide.

- It is trite to state that simple justice requires a high degree of neutrality. We do not think that would be attained if Miss Backhouse was to continue as the Board.

- In our opinion, the appropriate test has not been met. Therefore, because there is, in our opinion, a reasonable apprehension of bias, the application of the Union in this respect is allowed and the proceedings before the Board are quashed.

Case Analysis- This case raises starkly the issue of the appointment of human rights activists to adjudicate on

complaints of discrimination under human rights codes.

Large v. Stratford (City) – a reasonable apprehension of bias is not raised because a person advocated a certain cause – to hold otherwise would, in effect, disqualify many qualified applicants who are knowledgeable in the field – especially human rights law

- Judge Campbell, sitting in the Ontario Divisional Court, stated the following:- The appellant (employer) argues that Board Chair Professor Robert Kerr was biased, as evidenced

by his public statements as president of the Canadian Association of University Teachers, after he released his decision in this case and before he dealt with the question of compensation.

- The professor took a public position on a public issue – the general desirability of mandatory retirement. That question was never in issue before him in this case and he was not called upon to decide it.

- Professor Kerr was called upon to decide quite a different issue, whether the evidence established that retirement at age 60 was a bona fide occupational requirement of the Stratford police force

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- These comments do not violate the well-established standards of administrative neutrality. Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude everyone who ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgably in a sensitive area of public policy.

- Whatever his views on questions which were not in issue in this case, there is no evidence of any reasonable apprehension of bias on the questions to be decided by the Board.

Variations in Standards – - The standard of what constitutes disqualifying bias may vary dramatically with context. This is

particularly so in the arena of prior involvement with and attitudes toward a matter to be decided.

Old St. Boniface Residents Association Inc. v. Winnipeg (City)Factual Background- S, a Winnipeg municipal councilor, was involved from the start in the movement through the

municipal approval process for a residential development, intra alia, required a change of zoning. S had been one of the city’s representatives who initially discussed the project with the developer. Subsequently, he had attended and spoken in favour of the project at in camera meetings of the finance committee, a committee of which he was not a member. This meeting was for the purpose of considering whether the development would be given an option to buy city lands that were an integral part of the development.

- Subsequently, after the option had been given and after the developer had been authorized to proceed with a rezoning application in respect of the city-owned lands, S was a member of the community committee of the ward in which the lands were located, which after public hearings had recommended that the developer’s application be approved subject to the city’s usual requirements as well as the necessary street closing bylaws.

- During these meetings, the association, having learned of S’s appearances before the finance committee, had asked him to withdraw from further participation but S had declined. Ultimately, the matter came before a plenary session of the city council and, after full debate, the council gave its approval to the rezoning and asked that a rezoning bylaw be prepared. It also gave approval to the necessary street closing bylaw.

- At this juncture, however, before the rezoning bylaw had been passed, the association moved for orders quashing the decision of the community committee, an order prohibiting the council from proceeding with third reading of the bylaw and an order quashing the street closing bylaw.

- The Court of the Queen’s Bench quashed the committee’s decision, prohibited the third reading of the zoning bylaw, and adjourned the motion to quash the street closing bylaw, but prohibited the city from implementing this bylaw until further order.

- The Manitoba Court of Appeal allowed the appeal form this judgment and dismissed the association’s cross-appeal in respect of the street closing bylaw.

- The association obtained leave to appeal to the Supreme Court.Judgment

(1) BiasNatural Justice: Application to Local Government Bodies

- The rules which require a tribunal to maintain an open mind and to be free of bias, actual or perceived, are part of the audi alteram partem principle which applies to decision makers .

- The appellant contends that it applies in its full vigour to members of a municipal council when deciding whether to vote in favour of a bylaw

- The content of these rules is based on a number of factors including the terms of the statute pursuant to which the body operates, the nature of the particular function of which it is seized and the type of decision it is called upon to make.

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- It is, therefore, necessary to examine all the factors under which a committee of council operates. - I start with the most significant fact that the statute provides for a hearing before a committee of

members of council. I must assume that the Legislature was aware that in this capacity the members of council will have fought an election in which the matter upon which they are called upon to decide may have been debated and on which they would-be councilors may have taken a stand some pro and some con. This degree of prejudgment would run afoul of the ordinary rule which disqualifies a decision maker on the basis of a reasonable apprehension of bias. Accordingly, it could not have been intended by the Legislature that this rule apply to members of council with the same force as in the cases of other tribunals whose character and functions more closely resemble those of a court.

- Judge Henry had further occasion to elaborate on the subject in Re McGill and Brantford (City). He stated the following:

“… It fortifies by law the right every ratepayer has to write to his alderman, organize and address a meeting or conduct a peaceable demonstration. By statute, he is to be heard, and that by the whole council, who must provide the opportunity to do so.”

- In his view, it was only when council had made an irrevocable decision on that matter that a disqualifying bias was made out. He continued:

“… So if it could be shown, the onus being on the objectors to do so, that the council before the hearing had irrevocably decided to pass the bylaw to close the roads, that would reflect disabling bias. No hearing in the true sense of that concept was or could be held. As such, a hearing is a condition precedent; its absence would be fatal to the exercise of legislative power.”

- I would distinguish between a case of partiality by reason of prejudgment, on the one hand, and by reason of personal interest, on the other. It is apparent from the facts of this case that some degree of prejudgment is inherent in the role of a councilor. That is not the case in respect of interest.

- Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty.

Application to this Appeal- The disqualifying conduct relied on in this case consists of councilor Savoie appearing before the

Finance Committee and speaking on behalf of the developer. This in itself would not necessarily lead to the conclusion that his mind could not be changed.

- It is, however, suggested that this places him in the role of advocate for the developer, thus giving him an interest in the issue which goes beyond the public interest. This submission would have substance if there was something to suggest that the councilor’s support was motivated by some relationship with or interest in the developer, rather than in the development. There is no evidence that suggests any relationship with the developer.

- It was error, therefore, for the learned Judge to apply the reasonable apprehension of bias test. This test would have been appropriate if it had been found that the councilor had a person interest in the development, either pecuniary or by reason of a relationship with the developer.

- In this case, no personal interest exists or was found and it is purely a prejudgment case. Councilor Savoie had not prejudged the case to the extent that he was disqualified on the basis of the principles outlined above. The Court of Appeal was right, therefore, in reversing the Judge of first instance on this point.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)- Justice Cory, writing for the majority in the Supreme Court, stated the following:- Two issues are raised on this appeal. The first requires a consideration of the extent to which an

administrative board may be permitted to comment upon matters before the board. The second,

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raises the question as to what the result should be if a decision of a board is made in circumstances where there is found to be a reasonable apprehension of bias.

The Factual Background- The Board is responsible for the regulation of the Newfoundland Telephone Company Limited.- Earlier, while a municipal councilor, Mr. Wells had acted as an advocate for consumers’ rights.

When he was appointed to the Board, Wells publicly stated that he intended to play an adversarial role on the Board as a champion for consumers’ rights.

- The Board commissioned an independent accounting firm to provide an analysis of the costs and of the accounts of Newfoundland Telephone. In light of the report, the Board decided to hold a public hearing

- Thereafter, a weekly newspaper reported that Wells had described the pay and benefit package of appellant’s executives as “ludicrous” and “unconscionable”.

- When the hearing commenced, the appellant objected to Wells’ participation on the panel on the grounds that his statements had created an apprehension of bias.

- Wells went on to make several other statements to media, and it is to be noted that all these comments were made before the Board released its decision on the matter.

- Upon rendering the decision, Mr. Wells and two others constituted the majority of the Board which disallowed the costs of the enhanced pension plan for executive officers of the appellant. A minority of the Board would have allowed this item as a reasonable and prudent expense.

AnalysisThe Composition and Function of Administrative Boards

- The composition of boards can, and often should, reflect all aspects of society.- Thus, there is no reason why advocates for the consumer or utilities user of the regulated produce

should not, in appropriate circumstances, be members of the boards. - A consumer advocate who has spoken out on numerous occasions about practices which he or she

considers unfair to the consumer will be expected to put forward the consumer point of view. Yet that same person will also strive for fairness and a just result.

- Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councilors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the Legislature. As a result, no useful purpose would be served by holding them to a standard of judicial neutrality. In fact, to do so might undermine the Legislature’s goal of regulating utilities since it would encourage the appointment of those who had never been actively involved in the field.

- Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior the hearing. This does NOT, of course, mean that there are no limits to the conduct of board members.

- When determining whether any rate or charge is “unreasonable” or “unjustly discriminatory”, the Board will assess the charges and rates in economic terms. In those circumstances, the Board will not be dealing with legal questions, but rather policy issues. The decision-making process of this Board will come closer to the legislative end of the spectrum of administrative boards than to the adjudicative end.

- As the evidence suggests, the Board has a duty to act as an investigator with regard to rates or charges and may have a duty to act as prosecutor and adjudicator with regard to these same expenses. What then of the statements made by Mr. Wells?

- During the investigative stage , a wide license must be given to board members to make public comments. As long as those statements do not indicate a mind so closed that any submissions would be futile, they should not be subject to attack on the basis of bias.

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- The statements made by Mr. Wells before the hearing began did not indicate that he had a closed mind.

- However, certain statements given by Mr. Wells were made three days after the hearing was ordered. Once the hearing date has been set, the parties were entitled to expect that the conduct of the commissioners would be such that it would not raise a reasonable apprehension of bias.

- The statements of Commissioner Wells made during and subsequent to the hearing, viewed cumulatively, lead inexorably to the conclusion that a reasonable person apprised of the situation would have an apprehension of bias.

The Consequences of a Finding of Bias- It is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension

of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision. Thus, the hearing, and any subsequent order resulting from it, is void.

- In my view, given the circumstances, there is no alternative but to declare that the Order of the Board of Commissioners of Public Utilities is void.

Case Analysis- Consider the following criticism of Justice Cory’s judgment:

“Suppose that Wells had in fact conducted himself as Cory suggested. That is, suppose that he had made his opposition very clear and public until the stage of hearing the matter had been reached and had then shut up. Would a reasonably informed bystander have any less reason to suspect that Wells’ views were continuing to operate on his judgment?... My reasonable bystander thinks that where decision makers have strong views it is better to have those views out in the open where they can be challenged at every stage of the decision process. She thinks that it is on a challenge-allowing openness that any hope of eliminating a biased decision rests.”

Independence –

Sethi v. Canada (Minister of Employment & Immigration)Factual Background- Sethi claimed to be a Convention refugee. The Minister disagreed, and Sethi made an application

to the Immigration Appeal Board for a redetermination.- He then claimed an apprehension of bias because of the apparent effects of proposed legislation

about the Board.- Bill C-55 abolished the Board and discharged the members without any compensation for the loss

of their jobs. The Bill created a replacement, the Immigration and Refugee Board, to which the members of the abolished Board would be eligible for appointment.

- Sethi’s argument was that the Board would not appear to be indifferent between him and the government, because hopes of appointment to the new Board by the government created a reasonable likelihood that members of the Board would be sympathetic to the government’s arguments against him.

1st Instance Judgment- At first instance, Judge Reed said:

“… In my view, given the fact that it is the government which will select from existing Board members those that will be reappointed full time, and it is the government which is opposing the applicant’s claim before the Board, I accept the applicant’s contention that a reasonable apprehension of bias exists.”

Appeal Judgment- The Federal Court of Appeal allowed the government’s appeal. Justice Mahoney said:

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“… In my opinion, no informed, right-minded person would conclude that members of the Board would, in fact, please the government if they decided that disagreement unfairly… In the second place, the mere expression of a government’s intention toward an administrative tribunal cannot, in my opinion, give rise to a probability that the tribunal will react to those intentions in a particular way relative to the decisions it is required to make.”

Alex Couture Inc. v. A.G. of Canada – Def’n of institutional bias- Justice Rousseau-Houle, sitting in the Quebec Court of Appeal, stated the following:

(1) The Interpretation of the Guarantees of Independence and Impartiality for the Purposes of sec. 11(d) of the Charter

- Justice Le Dain in R v. Valente, established the test or criterion for assessing the independence of the judge or tribunal, based on the test as laid down by Justice Grandpre in Community for Justice and Liberty:

“…the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?”

- In order to decide whether the guarantee of judicial independence has been respected, three essential conditions must, according to Justice Le Dain, be analyzed. They are:

o 1 Security of tenureo 2 Financial securityo 3 The institutional independence of the tribunal with respect to administrative

decisions bearing directly on the exercise of its judicial functions- These minimal conditions which arise from the status or collective independence of the judge

are in addition to the individual aspect of judicial independence which is reflected in the state of mind or attitude of the court in the exercise of its judicial functions in a particular case.

- Judicial independence in its individual aspect is closely related to the guarantee of impartiality.- In Valente, Justice Le Dain distinguished the concept of independence from that of

impartiality. He stated:“… Impartiality refers to a state of mind or attitude of the tribunal in relation to issues and the parties in a particular case… The word ‘independent’ in sec. 11(d) connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of government, that rest on objective conditions or guarantees.”

- In R v. Lippe, Justice Lamer noted that while the significance of the distinction between impartiality and independence is not always apparent, in a case involving allegations of partiality on an institutional level, it becomes particularly important.

- Moreover, like the requirement of judicial independence, the requirement of institutional impartiality must, for the purposes of sec. 11(d), form part of the constitutional guarantee.

(2) The Guarantee of Independence and Impartiality for the Purposes of sec. 11(d)Security of Tenure

- Security of tenure is the most essential condition of judicial independence for the purposes of sec. 11(d).

- In Valente, Justice Le Dain defined tenure as follows:“…tenure…is security against interference by the executive or other appointing authority in a discretionary or arbitrary manner.”

- It would, thus, be appropriate in the present case to examine whether the method and procedure for removing the lay members has the effect of destroying the security of tenure afforded by sec. 5(2) of the Act. Under the Act, the lay members may be removed before the

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end of their appointment by the Governor in Council (Cabinet). However, such removal must be for cause, which is related to the exercise of their function. In this regard, the method of removal would appear to be sufficient.

- Under the removal scheme adopted by the Act, should the Governor in Council be called upon to exercise his power to remove the lay member, he would be obliged to adopt a fair procedure which would provide the opportunity for the person in question to be heard.

- Moreover, sec. 69 of the Judges Act provides that, at the request of the Minister of Justice for Canada, the Canadian Judicial Council shall hold an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour should be removed from office for any of the reasons set out in sec. 65(2) of that Act. Additionally, the council would be required, pursuant to sec. 64 to afford the member an opportunity to be heard and to adduce evidence.

- The fact that the commencement of this inquiry process is left to the discretion of the Minister of Justice does NOT permit, in my view, the conclusion that the minimum standard required by Valente has not been met .

Financial Security- The essence of this security is that the right to salary and pension should be established bylaw and

not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.

- The Competition Tribunal Act provides that the lay members shall be paid such remuneration as may be fixed by the Governor in Council.

- The respondents submit that the salary of the lay members remains subject to arbitrary interference by the executive, because there is no guarantee in the Act that the initial salary, once set, will not be decreased.

- Upon examination of the evidence, including the Regulations made under the Act, one cannot conclude that the determination of the lay members’ salary is subject to arbitrary interference by the executive.

- With respect to the effect of their appraisal on their salary, the Regulation distinguishes between the appraisal of persons who hold an office reporting to a department or to the government and who are eligible for performance pay, and members of quasi-judicial agencies. In respect of the latter, their appraisals are completed by the head of the organization they report to and are submitted to the Privy Council Office for human resource planning purposes only.

- Therefore, it appears to me that a reasonably well-informed person could not seriously fear that the lay members of the tribunal did not enjoy, during their appointment, the guarantee of financial security required for the purposes of sec. 11(d) of the Charter.

Institutional Independence- In R v. Lippe, Justice Lamer held that the content of the principle of judicial independence,

analyzed in a context of the relationship existing between the judicial branch and the executive branch of government, must be limited to independence from the government.

- In the present case, the Superior Court judge held that the Competition Tribunal did not meet this condition of institutional independence because of the close connection existing between one lay member, Mr. Roseman, and the executive branch of government.

- Justice Rousseau-Houle came to the conclusion that the continuing exercise of both roles by Roseman, until such time as the outstanding work of the Restrictive Trade Practices Commission was concluded, did not jeopardize the institutional independence of the tribunal.

- With respect to the possibility that Mr. Roseman will hear a matter with which he has already been seized as a member of the commission, this is a purely hypothetical situation.

- However, should that happen, the appropriate recourse could be an application for his disqualification (recusation) or an application for prohibition to prevent him from hearing the matter.

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- Given the legislation applicable to this tribunal, the situation which prevails in its relationship with the government, the individual independence which its members enjoy because of their personal objective status guaranteeing their security of tenure and their financial security, one can conclude that a realistic and well-informed person would be of the view that there is no reason to apprehend that the tribunal would not feel totally free to render its decisions and that it, therefore, has the guarantees of independence required for the purposes of sec. 11(d) of the Charter.

The Guarantee of Impartiality- In my view, the appointment of lay persons on a part-time basis MAY constitute an

infringement of impartiality.- The lay member who at present sits part-time continues to have other functions in the area

of economics and finance . A conflict of interest may, therefore, result which could give rise to doubts as to the impartiality of the tribunal.

- The test for institutional impartiality is the same as the test adopted in Valente with respect to the issue of judicial independence, which is the apprehension of an informed person, viewing the matter realistically and practically, and having thought the matter through.

- In order to determine which occupations will raise a reasonable apprehension of bias on an institutional level, Justice Lamer proposed a two-step test:

o Step 1 Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

o Step 2 If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis. However, if the answer to that question is yes, this occupation is per se incompatible with the functions of a judge. At this point in the analysis, one must consider what safeguards are in place to minimize the prejudicial effects and whether they are sufficient to meet the guarantee of institutional impartiality under sec. 11(d) of the Charter.

- If we apply this test to the facts of the present case, it may happen that a consultant in the area of business acquisitions, who works for an accounting firm, and who dedicates this time the pursuit of the interests of clients, may be appointed to the Competition Tribunal. As a result, this consultant may be called upon to decide disputes which may involve persons whose interests are opposed to those of his clients.

- Be that as it may, in my view, the above situation is not likely to arise in a large number of cases. Additionally, the Competition Tribunal Act also contains sufficient safeguards to ensure the impartiality of the tribunal. For example, sec. 10(3) prohibits a member from sitting in a matter in which he has a direct or indirect financial interest – other safeguards are omitted.

- In these circumstances, one cannot successfully argue that there is an apprehension of bias on an institutional level. The Competition Tribunal, therefore, meets all the requirements of the constitutional guarantee of an independent and impartial tribunal under sec. 11(d).

Case Analysis- There is a sense in which independence and impartiality can be a two-edged sword. This is

exemplified by the B.C. Securities Commission, which is required by statute to be self-financing. To the extent that this empowers the commission to raise money to support its activities, such a requirement ensures a certain level of financial independence from government. On the other hand, to the extent that the commission obtains its funds from fines and awards of costs, there is at least an argument that it has a financial stake in the outcome of all of its proceedings.

Canadian Pacific Ltd v. Matsqui Indian BandFactual Background

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- Acting under authority conferred by the Indian Act, Indian bands across Canada passed bylaws creating a tax regime for real property on reserve land. Each of the regimes also included a means of challenging an initial assessment. The Matsqui Band bylaw created a two-tier internal appeal structure (a Court of Revision then an Assessment Review Committee) and then a further appeal on questions of law to the Federal Court of Canada.

- In regards to other bands involved in these proceedings, there was only one level of internal appeal before an appeal to the Federal Court.

- Members of the appeal tribunals could but need not be paid and they had no tenure of office. Band members were eligible appointees.

- CP and United were each assessed in respect of land they were using that ran through reserve lands and each applied to the Federal Court – Trial Division for judicial review of the assessment.

- They claimed that the bands lacked jurisdiction to impose a tax since the land in question was not, in terms of the legislation, "in the reserve."

- The assessing bands then moved for an order striking out this application and Judge Joyal allowed the application on the basis that the companies had an adequate alterative remedy – the relevant appeal regime.

- The companies appealed and their appeal was allowed. The Court of Appeal justified its interference with the motions judge's exercise of discretion on the basis, intra alia, that direct access to the Federal Court by way of judicial review was a more appropriate vehicle for contesting the validity of the assessment than by using the internal appeal routes.

- The bands obtained leave to appeal to the Supreme Court. - The appeal was dismissed by a nine judge court (five to four). Two members of the majority held

that the only reason for interference with the exercise of discretion by the trial judge was the lack of institutional independence enjoyed by the appeal tribunals. The other three members of the majority held that the companies should be allowed direct access to the Federal Court because they were raising a jurisdictional challenge to the imposition of the taxes (a ground rejected by the other two members of the majority) and expressly declined to rule on any other issue including that of institutional independence. The minority of four agreed with the first two members of the majority on every issue except that of institutional independence. As a consequence, the breakdown of the court on the institutional independence issue was four (no basis for challenge at this time), two (independence impaired), and three abstentions.

1st Judgment- Lamer rejected as too “speculative” the argument that there was a reasonable apprehension of

bias in a structural sense because band members serving on the appeal tribunals would have a financial stake in the outcome of the proceedings. He then moved on to consider the argument of lack of structural independence. He stated the following:

- I am left with the allegation that a reasonable apprehension of bias exists because tribunal members may not be paid, lack security of tenure, and are appointed by the Band Chiefs and Councils.

- While I agree that the larger context of Aboriginal self-government informs the determination of whether the statutory appeal procedures established by the appellants constitute an adequate alternative remedy for the respondents, I cannot agree with Justice Sopinka's conclusion that this context is relevant to the question of whether the bands' tribunals give rise to a reasonable apprehension of bias at an institutional level. 

- In my view, principles of natural justice apply to the bands' tribunals as they would apply to any tribunal performing similar functions.

- As such, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties.

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- However, I recognize that a strict application of these principles is not always warranted. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.

- In my view, this is a case where a more flexible approach is clearly warranted.- It is first necessary to examine the provisions of the assessment by-laws dealing with the powers

of appeal tribunals and the appointment and remuneration of their members.- Members of the Siska Board of Review and the Matsqui Court of Revision have no

guarantee of salary. Under the Matsqui By-law, members of the Court of Revision "may" receive remuneration.

- On the subject of security of tenure, the Matsqui tribunals are to be appointed each year, although the terms of appointment are to be left to the Chief and Band Council. However, there is nothing in the Matsqui By-law protecting members from arbitrary dismissal mid-term.

- In the case of all bands that are parties to this appeal, it would appear that tribunal members may be removed from their positions at any time by the bands, which leaves open the possibility of considerable abuse.

- A further factor contributing to an apprehension of insufficient institutional independence arises when one considers that the Chiefs and Band Councils select the members of their tribunals, in addition to controlling their remuneration and tenure.   This fact contributes to the appearance of a dependency relationship between the tribunal and the band.

- A party should not be required to present its case before a tribunal whose members have been appointed by an opposing party.

- The appellants rely heavily on the fact that members of the appeal tribunals are required to take an oath of office that they will be impartial. However, the fact that an oath is taken cannot act as a substitute for financial security or security of tenure.

- In my view, even a flexible application of the Valente principles leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable apprehension that members of the appeal tribunals are not sufficiently independent.

- In reaching this conclusion, I wish to emphasize that it is these three factors in combination which lead me to the conclusion that the appeal tribunals lack sufficient independence in this case. I am not saying that any one of these factors, considered in isolation, would have led me to the same conclusion.

- One final matter concerning the bias issue should be addressed. The appellants argued before this Court that all the allegations of bias raised here were speculative. Justice Sopinka adopts this position. While I agree that the allegations concerning an absence of institutional impartiality are premature,   I disagree that this necessarily results in the allegations surrounding institutional independence being premature as well.   The two concepts are quite distinct. It is mere speculation to suggest that members of the tribunals will lack impartiality, since we cannot possibly know in advance of an actual hearing what these members think.

- However, in assessing the institutional independence of the appeal tribunals, the inquiry focuses on an objective assessment of the actual structure of the tribunals. We can examine the by-laws, apply the Valente principles, and reach a conclusion. This kind of analysis is hardly speculative, since the by-laws are conclusive evidence that the tribunals are not sufficiently independent from the Band Chiefs and Councils.

2nd Judgment- Justice Sopinka first expressed agreement with Judge Joyal’s treatment of the Jack of

institutional independence argument as premature because it was raised only in oral argument and lacked a sufficient factual basis for determination. He then went on to say that the standards

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for appellate intervention in the exercise of discretion by a first instance judge (as articulated by La Forest in Friends of the Oldman River Society v. Canada ('Minister of Transport) had not been met in terms of a justification for interfering with Joyal’s discretionary determination that the matter of structural independence was premature.

- The self-government policy context is relevant to the entire exercise of judicial discretion . Justice Dickson J in Nowegijick v. The Queen stated:

“…treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.”

- Accordingly, before concluding that the by-laws in question do not establish band taxation tribunals with sufficient institutional independence, they should be interpreted in the context of the fullest knowledge of how they are applied in practice.

(4) Relevance of the Practice of a Tribunal as Depicted in the Context of an Actual Hearing in Order to Assess Institutional Independence

- I agree with Justice Lamer that the Valente principles are to be applied in the context of the test that applies in determining impartiality, that is, whether a reasonable and right-minded person would have a reasonable apprehension of bias.

- The difference between us in this regard is that, while Justice Lamer would limit the information to the procedure set out in the by-laws, I would defer application of the test so that the reasonable person will have the benefit of knowing how the tribunal operates in actual practice.

- Moreover, case law has tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment. 

- It is not safe to form final conclusions as to the workings of this institution on the wording of the by-laws alone. Knowledge of the operational reality of these missing elements may very well provide a significantly richer context for objective consideration of the institution and its relationships. Otherwise, the administrative law hypothetical "right- minded person" is right-minded, but uninformed. 

- Although in this appeal, information regarding the appointment of a tribunal was not provided and it is unclear whether the tribunal members who are to hear the taxation assessment appeal have even been designated, tenure and remuneration may be established by the bands on appointment of the taxation tribunals.

Case Analysis- Justice Lamer seems to accept that the structures created by the regulations simply cannot

operate without compromising the independence of the appeal structures. Justice Sopinka, however, is of the opinion that these concerns might be laid to rest by the way in which the tribunals operate in practice. He concludes, therefore, that given that the tribunals are new institutions, they should be given a chance to prove themselves.

- It should be noted that, as is the case with bias or impartiality, if the relevant statute clearly authorizes the existence of a statutory scheme that does not meet appropriate standards of independence for the tribunal in question, there will be no remedy available unless those affected can rely on a constitutional or quasi -constitutional argument .

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool)- After finding that they way the Regie operated in practice led to a reasonable apprehension of

bias in an institutional sense, the court went on to deal with the further argument of lack of independence.

(1) Security of Tenure

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- The respondent relied primarily on the term of office of the directors and the method of dismissal. They are appointed by the government for a term of not more than five years. Once appointed, the directors can be dismissed only for specific reasons (cause).

- In my view, the directors’ conditions of employment meet the minimum requirements of independence. Fixed-terms of appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive.

- In the case at bar, the orders of appointment provide expressly that the directors can be dismissed only for certain specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful dismissal. Therefore, I am of the view that the directors have sufficient security of tenure within the meaning of Valente, since sanctions are available for any arbitrary interference by the executive during a director’s term in office.

(2) Institutional Independence- It was suggested that the large number of points of contact between the Regie and the

Minister of Public Security was problematic. - In practice, the Regie is required to submit a report to the Minister each year, and the

Minister may require information from the Chairman on the agency’s activities. In addition, the Minister must approve any rules the Regie might adopt in plenary session for its internal management, and the government must approve the various regulations made by the Regie.

- I do not consider these various factors sufficient to raise a reasonable apprehension with respect to the institutional independence of the Regie. It is not unusual for an administrative agency to be subject to the general supervision of a member of the executive with respect to its management.

- Furthermore, the fact that the Minister of Public Security is ultimately responsible for both the Regie and the various police forces conducting investigations would not, in my view, cause an informed person to have a reasonable apprehension with respect to the independence of the directors. The directors swear an oath requiring them to perform the duties of their office honestly and fairly.

Case Analysis- The court seems to accept that, in the case of administrative tribunals, as long as the members do

not serve purely at pleasure, there will be sufficient security of tenure. In other words, terms of office as short as two years will do.

- Contrast this mainstream approach with the case of Katz, where the members of the Disciplinary Committee for the Vancouver Stock Exchange were not appointed for any particular term of office, and were not paid for their work. Nonetheless, the Supreme Court held that these were not problems (lack of tenure and remuneration). In the circumstances, the fact that the members did not depend on this work for their livelihood contributed to, rather than detracted from, their independence. Also, the way the tribunal operated in practice was that members seemed to continue to serve until voluntary resignation or death.

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This chapter involves the standard of review that the courts should apply in exercising their review powers over various forms of statutory authorities (and largely tribunals) charged with implementing the mandate imposed on them under the administrative scheme created by their empowering statute.

Privative and Preclusive Clauses –- A statutory direction that the decisions of a particular tribunal are not to be questioned or

reviewed in any legal proceeding whatsoever challenges the pervasive assumption that it is ultimately the constitutional function of an independent judiciary to determine the rights of individuals according to law

- Example of a Preclusive Clause; Ontario Labor Relations Act:o Sec. 116 – No decision, order, direction, declaration or ruling of the Board shall be

questioned or reviewed in any court and no order shall be made or process entered or proceeding taken in any court whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warrant or otherwise to question, review, prohibit or restrain the Board or any of its proceedings.

Reasons for Preclusive Clauses- 1 The protracted delays that would inevitably accompany applications to the courts for

judicial review to seek a second opinion would postpone the resolution of the grievance- 2 The conduct of litigation through courts is expensive and employers generally have more

resources- 3 Administrative tribunals sometimes have been created for the very purpose of keeping the

dispute out of the courts (expertise); to allow the courts to scrutinize the decisions made by these bodies for error of law would frustrate this purpose.

- An important underlying assumptions of those favoring judicial surveillance is that, left to its own devices, an administrative agency will tend to implement its enabling legislation in a way that expands its regulatory reach, at the expense of the existing legal rights of those engaged in the regulated activity, and without adequate regard to the limits imposed by the legislature on the scope of the agency’s mandate.

- A retort to this line of argument has been that the courts and the common law are no more neutral than administrative agencies, and their approach to statutory interpretation has generally exhibited anti-regulation and pro status quo bias.

Three Approaches to the Definition of Jurisdictional Review – - A jurisdictional error (including a breach of fairness) can be proved by extrinsic evidence,

whereas at common law the courts cannot set a decision aside for other errors of law unless they appear on the face of the tribunal’s record

- A tribunal can only be prohibited from proceeding in a matter before it has rendered its decision if the error relied on by the party seeking relief is one that would deprive the agency of its jurisdiction

- At common law an agency can participate as a party in judicial review proceedings brought to challenge its decision, but only to the extent that the agency’s jurisdiction is being impugned; anomalously, however, a breach of duty of procedural fairness does not count for this purpose as a jurisdictional challenge.

The “Preliminary Question” Doctrine

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- At one time, the courts allocated decision making power between reviewing courts and administrative agencies that were protected by a preclusive clause by distinguishing between those questions that were within the area of the decision making authority, or jurisdiction, of the agency, on the one hand, and those that that were either preliminary to the exercise of the agency’s jurisdiction, or collateral to the merits of the decision, on the other.

- Problem with this approach Any question of statutory interpretation was logically capable of being regarded as “preliminary” to the agency’s ultimate decision.

- The quest for finding the preliminary question also distracted attention from the substantive issues at stake.

- Also because the preliminary question doctrine lacked both logical and policy coherence, courts were able to set aside the decisions of administrative agencies whenever they disagreed with its determination of any question of law.

- Only a modest level of judicial craft was needed to present an issue of statutory interpretation as “preliminary”, and therefore, subject to judicial review for correctness.

Parkhill Bedding and Furniture Ltd v International Molders etc. Union- Earliest attempt to ground the preliminary doctrine question - Tried to rationalize the division between answering the question

Wrong Questions and Irrelevant ConsiderationsAnisminic Ltd v Foreign Compensation Commission

- Held that decision of an administrative tribunal could be set aside as being outside its jurisdiction if, in the course of making the decision, the tribunal had asked itself the “wrong question,” taken into consideration legally irrelevant factors or ignored factors that it was legally required to consider.

- Never fully embraced by Canadian courts but was semi-adopted

Metropolitan Life Insurance Co v International Union of Operating Engineers Local 796- Despite a comprehensive privative clause, the agency’s decision could be set aside if the

court thought it was based on an error of law, including a misinterpretation of the agency’s enabling statute.

- Criticisms of Metropolitan are that firstly, it defies logic of legislative supremacy, in that courts can still set aside an agency’s decision, despite the legislature’s intention that it be final, via a privative clause; and secondly it assumes the courts are uniquely qualified to determine the legislations correct meaning, and thus, since it boils down to a legal issue, the specialist expertise of the agency is made irrelevant to the exercise.

CUPE, Local 963 v. New Brunswick Liquor – change in approach- This is a starting point for any study of the present law on the standard of review of

administrative agencies’ interpretation of their legislation, when the legislature has expressly precluded the courts from reviewing their proceedings or decisions.

National Labor Relations board v Heart Publications Inc- Principle question of the court is whether the newsboys are “employees,” because Congress did

not explicitly define the term.

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- Respondents argue that the meaning must be determined by reference to common-law standards- It is not necessary in this case to make a completely definitive limitation around the term

“employee.” That task has been assigned to the Agency appointed by Congress- Vital to note that their hours of work on the job are supervised and to some extent prescribed by

the publishers of their agents. - Stating that the “primary consideration in the determination of the applicability of the statutory

definition is whether effectuation of the declared policy and purpose of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act,” the Board concluded that the newsboys are employees. The record sustains the Board’s findings and there is ample basis in the law for its conclusion.

Establishing the Modern Standard –

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation – in assessing an agency’s interpretation of its enabling statute (or a relevant statute) where there exists a quid pro quo, the reviewing court must assess whether the right balance has been struck in the agency’s interpretation

- Union complained that the corporation was replacing striking employees with management personnel contrary to the applicable act.

- Management do sometimes participate in sales even prior to strike- Sec. 102(3)(a); the employer shall not replace the striking employees or fill their position with

any other employee- Corporation argued that management personnel were not “employees” as defined in the presiding

act; as seven different classes of people are excluded from the definition of employee in sec.1 of the act including g) a person employed in managerial capacity

- Two major questions: 1. Does the Act prohibit management personnel replacing striking employees? And if sec. 2 did management personnel replace employees?

- This case eliminated the need to examine the “preliminary or collateral” question matter - There was a privative clause sec. 101(1); Except as provided in this act, every order, award,

direction, decision, declaration, or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be questioned or reviewed in any court.

- The rationale for protection of a labor board’s decisions within jurisdiction is straightforward and compelling. The labor board is specialized tribunal, which administers a comprehensive statue regulating labor relations.

- It was contended, in this case, that the interpretation of the board placed upon sec. 102(3)(a) was to patently unreasonable that the Board in the course of that inquiry did something which takes the exercise of its powers outside the protection of the privative clause.

- In Nipawin, examples of such a patently unreasonable decision were given. It was stated that acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not to remitted to it.

- Essentially, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

- The answer to that is no. In coming to that conclusion, Dickson, for the court, analyzed the purpose of sec. 102(3)(a). Clearly, the section is an attempt to maintain the balance of power with a quid pro quo. On the one hand, the striking employees are barred from picketing in or near any place of business of the employer. On the other hand, the employer is barred either from replacing the striking employees, or from filling their positions with any other employee. Therefore, if one were to read “with any other employee” as applicable to “replace”, then there is the obvious problem that any individual not an employee under the

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Act, as defined in sec. 1, would work in maintaining the employer’s operation. The result would be that the striking employees would be deprived of their right to picket, while the employer could maintain a high level of services, in the absence of the picket line. This interpretation would not strike the balance that the Act seeks to strike by providing a section which is clearly premised around a quid pro quo .

- Dickson J states: This appears to be a reasonable interpretation on first reading but, with all due respect, no more or less reasonable than the interpretation which found favor with the Board.

- Held that it is difficult to find the Board’s finding as patently unreasonable, at minimum, it seems to be the most reasonable of the choices available.

- Dickson stated that he did not think it was the responsibility of the court to resolve the ambiguity in the case at hand. It is a matter for the board, using its specialized knowledge.

- The message is clear – a cautious approach must be taken by the courts when considering whether a tribunal has lost jurisdiction as a result of something it did during a hearing. Unless a mistake is patently unreasonable, or so fundamentally erroneous that it cries for intervention, it should be left alone.

Life after CUPE: Two Steps Back and One Forward? – - CUPE did not, however, settle all the issues surrounding the appropriate standard of review. - First , despite the presence of a strong privative clause, an agency’s decision may be set aside as

in excess of its jurisdiction if it is based on an incorrect interpretation of the general law or enabling statute, which, on a pragmatic and functional analysis, the legislature should be held not to have left to the conclusive determination of the agency.

- Secondly , an agency exceeds its jurisdiction by placing a patently unreasonable interpretation on those provisions of its enabling statute, which, on a pragmatic and functional approach to the statutory scheme, the legislature should be regarded as having entrusted conclusively to the agency to interpret.

- Thirdly , privative clauses that fall short of outright prohibitions of judicial review do not provide as much protection from judicial review (such as those stating that the agency’s decisions are “final and binding”). However, they are to be taken into account as part of the overall statutory context when a reviewing court is determining whether, and to what extent, it should defer to the agency’s interpretation of its legislation

Jurisdictional Provisions: The Correctness StandardThe first important case in which the SC made it quite clear that it did not understand CUPE to have mandated a policy of curial deference to agencies’ interpretation of every aspect of their enabling statute was Syndicat des employes de production du Quebec et de l’Acadie v. Canada Labour Relations Board

- It was suggested in this case that it is not doubtful but manifest that the interpretation of these provisions raises a question of jurisdiction about which the Board cannot error without committing an excess of jurisdiction.

- Was argued that this was leaning towards an abandoning the policy of judicial restraint that had emerged towards labor boards.

Mississippi Power & Light Co. v. Mississippi ex rel. Moore: - Justice Scalia, in disagreeing with an argument that deference should be given to agency

interpretations, except when the interpretation is one that defines the agency’s jurisdiction, stated:It is plain that giving deference to an administrative interpretation of its statutory jurisdiction is both necessary and appropriate. It is necessary because there is no discernible line between an agency’s exceeding its authority and an agency’s exceeding

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authorized application of its authority. Virtually any administrative action can be characterized as either one or the other, depending upon how generally one wishes to describe authority. And deference is appropriate because it is consistent with the general rationale for deference: Congress would naturally expect that the agency would be responsible, within broad limits, for resolving ambiguities in its statutory authority or jurisdiction.

Union des employes de service, Local 298 v. Bibeault- The union representing the striking employees argued that the company that was awarded the

contract was a successor-employer and bound by the terms of the collective agreement between the union and original contractor.

- A preliminary or collateral question is said to be one that is collateral to the ‘merits’ or to the very ‘essence’ of the inquiry; it is not the main question which the tribunal has to decide

- Justice Beetz summarized in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error

o 1 If the question of law is within the tribunal’s jurisdiction, it will only exceed its jurisdiction if it errors in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review.

o 2 If, however, the question at issue concerns a legislative provision limiting the tribunal’s powers , a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.

- The idea of preliminary or collateral questions is based on the principle that the jurisdiction conferred on administrative tribunals and other bodies created by statute is limited, and that such a tribunal cannot by a misinterpretation of an enactment assume a power not given to it by the legislator

- This is misguided, as the only question that should be asked is “Did the legislator intend the question to be within the jurisdiction conferred on the tribunal.”

- Pragmatic and functional analysis is recommended by this court. The functional and pragmatic approach results in the following: only a patently unreasonable error results in an excess of jurisdiction when the question at issue is within the tribunal’s jurisdiction, whereas in the case of a legislative provision limiting the tribunal’s jurisdiction, a simple error will result in a loss of jurisdiction.

- The first step in the analysis necessary in the concept of a patently unreasonable error involves determining the jurisdiction of the administrative tribunal. At this stage, the court examines not only the wording of the enactment conferring jurisdiction, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.

- This approach offers three Advantages: (1) focuses on Court’s inquiry directly on the intent of the legislator, rather than on the interpretation of an isolated provision; (2) it is better suited to the concept of jurisdiction and consequences that flow from a grant of powers; (3) it puts renewed emphasis on the superintending and reforming function of the superior courts.

- What the pragmatic and functional approach entails: requires the courts to rise above the technicalities of all kinds, particularly legal and drafting technicalities, and to respond to the fundamental issues of democratic government, in particular, the paramount authority of Parliament and legislatures to confer ample jurisdiction on experienced people in statutory tribunals to regulate particularly difficult social interactions, and the obligation of the courts to check arbitrary acts against the individual or group beyond what parliament and legislatures must be taken to have conceived.

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The New Standard –Dunsmuir v. New Brunswick

(I) Introduction(A) Facts

- The appellant, David Dunsmuir, was employed by the Department of Justice for the Province of New Brunswick.

- The appellant was placed on an initial six-month probationary term.- The appellant’s probationary period was extended twice, to the maximum 12 months. At the end

of each probationary period, the appellant was given a performance review. At the end of the third probationary period, the Regional Director of Court Services noted that the appellant had met all expectations and his employment was continued on a permanent basis.

- However, the employer reprimanded the appellant on three separate occasions during the course of his employment.

- A review of the appellant’s work performance had been due but did not take place.- A meeting had been arranged between the appellant, the Regional Director, the Assistant Deputy

Minister and counsel for the appellant and the employer. While preparing for that meeting, the Regional Director and the Assistant Deputy Minister concluded that the appellant was not right for the job. The scheduled meeting was cancelled and a termination notice was faxed to the appellant. A formal letter of termination from the Deputy Minister was delivered to the appellant’s lawyer the next day.

- The appellant commenced the grievance process under sec. 100.1 of the Public Service Labour Relations Act by letter to the Deputy Minister.

- That provision grants non-unionized employees of the provincial public service the right to file a grievance with respect to a “discharge, suspension or a financial penalty”.

- The grievance was denied. The appellant then gave notice that he would refer the grievance to adjudication under the PSLRA. The adjudicator was selected by agreement of the parties and appointed by the Labour and Employment Board

(II) Issues- At issue, firstly is the approach to be taken in the judicial review of a decision of a particular

adjudicative tribunal.(III) Issue 1: Review of the Adjudicator’s Statutory Interpretation Determination

(A) Judicial Review- When a reviewing court considers the scope of a decision-making power or the jurisdiction

conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter.

- Thus, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent.

- The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government.  Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect. The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in sec. 96 to sec. 101 of the Constitution Act 1867.

(B) Reconsidering the Standards of Judicial Review- The current approach to judicial review involves three standards of review, which range from

correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle.

- We conclude that there ought to be two standards of review — correctness and reasonableness.

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- In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp (“CUPE”), Dickson J. introduced the idea that, depending on the legal and administrative contexts, a specialized administrative tribunal with particular expertise, which has been given the protection of a privative clause, if acting within its jurisdiction, could provide an interpretation of its enabling legislation that would be allowed to stand unless “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review”.

- CUPE  did not do away with correctness review altogether and, in Bibeault, the Court affirmed that there are still questions on which a tribunal must be correct.

- Bibeault  introduced the concept of a “pragmatic and functional analysis” to determine the jurisdiction of a tribunal, abandoning the “preliminary question” theory. In arriving at the appropriate standard of review, courts were to consider a number of factors including the wording of the provision conferring jurisdiction on the tribunal, the purpose of the enabling statute, the reason for the existence of the tribunal, the expertise of its members, and the nature of the problem.

- In Canada (Director of Investigation and Research) v. Southam Inc., a third standard of review was introduced into Canadian administrative law. The legislative context of that case, which provided a statutory right of appeal from the decision of a specialized tribunal, suggested that none of the existing standards was entirely satisfactory. As a result, the reasonableness simpliciter standard was introduced.  It asks whether the tribunal’s decision was reasonable. If so, the decision should stand; if not, it must fall. In Southam, Iacobucci described an unreasonable decision as one that “is not supported by any reasons that can stand up to a somewhat probing examination” and explained that the difference between patent unreasonableness and reasonableness simpliciter is the “immediacy” or “obviousness” of the defect in the tribunal’s decision. The defect will appear on the face of a patently unreasonable decision, but where the decision is merely unreasonable, it will take a searching review to find the defect.

- The operation of three standards of review has not been without practical and theoretical difficulties.

- One major problem lies in distinguishing between the patent unreasonableness standard and the reasonableness simpliciter standard.

- An even greater problem lies in the application of the patent unreasonableness standard, which at times seems to require parties to accept an unreasonable decision.

- The definitions of the patent unreasonableness standard that arise from the case law tend to focus on the magnitude of the defect and on the immediacy of the defect.

- However, looking to either the magnitude or the immediacy of the defect in the tribunal’s decision provides no meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision.

- Moreover, even if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable from a merely irrational decision, it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough.

(1) Defining the Concepts of Reasonableness and Correctness- As we see it, the problems that Southam attempted to remedy with the introduction of the

intermediate standard are best addressed not by three standards of review, but by two standards, defined appropriately.

- We therefore conclude that the two variants of reasonableness review should be collapsed into a single form of “reasonableness” review.  The result is a system of judicial review comprising two standards — correctness and reasonableness.

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- Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.   Instead, they may give rise to a number of possible, reasonable conclusions.   Tribunals have a margin of appreciation within the range of acceptable and rational solutions. 

- A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.   In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

- Deference in the context of the reasonableness standard requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

- It is without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law.

- When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question.   The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

(2) Determining the Appropriate Standard of Review- The existence of a privative or preclusive clause gives rise to a strong indication of review

pursuant to the reasonableness standard. - This conclusion is appropriate because a privative clause is evidence of Parliament or a

legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. 

- This does not mean, however, that the presence of a privative clause is determinative. Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction

- Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.

- Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. Adjudication in labour law remains a good example of the relevance of this approach.

- A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

o 1 A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.

o 2 A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). – test for expertise defined in Pushpanathan below

o 3 The nature of the question of law.  A question of law that is of “central importance to the legal system…and outside the…specialized area of expertise” of the administrative decision maker will always attract a correctness standard: Toronto (City) v. C.U.P.E .  On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so

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indicate. In summary, Courts must continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise

- An exhaustive review is not required in every case to determine the proper standard of review. Thus, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard. For example, correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867

- Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires.

- “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

- In summary, the process of judicial review involves two steps.   First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.   Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review .

- The analysis must be contextual.   As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal

Judicial Review Pro cedure Act Sec. 2(3) – Where the findings of a tribunal made in exercise of a statutory power of decision are required by any statute or law to be based exclusively on evidence admissible before it and on facts of which it may take notice and there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside a decision on an application for judicial review.

Federal Court ActSec. 18.1(4) Trial Division may grant relief under subsection (3) if it satisfied that the federal, board, commission or other tribunal

- (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.

Administrative Tribunals ActStandard of review if tribunal's enabling Act has privative clause

- Sec. 58(1) – If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

- (2) In a judicial review proceeding relating to expert tribunals under subsection (1)o (a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a

matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable – note abolishment of patent unreasonableness.

o (b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and

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o (c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.

- (3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion

o (a) is exercised arbitrarily or in bad faith,o (b) is exercised for an improper purpose,o (c) is based entirely or predominantly on irrelevant factors, oro (d) fails to take statutory requirements into account.

Standard of review if tribunal's enabling Act has no privative clause- Sec. 59(1) – In a judicial review proceeding, the standard of review to be applied to a decision of

the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

- (2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

- (3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

- (4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion

o (a) is exercised arbitrarily or in bad faith,o (b) is exercised for an improper purpose,o (c) is based entirely or predominantly on irrelevant factors, oro (d) fails to take statutory requirements into account.

- (5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.

Canada (Citizenship and Immigration) v. Khosa - This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in

this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise. 

- A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. 

- These general principles of judicial review are not ousted by sec.   18.1 of the   Federal Courts Act   which deals essentially with grounds of review of administrative action, not standards of review.

- A legislature has the power to specify a standard of review if it manifests a clear intention to do so.   However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply   Dunsmuir   principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on   Dunsmuir   including a restrained approach to judicial intervention in administrative matters. 

- Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like sec.   18.1 of the   Federal Courts Act   which is not limited to particular issues before a particular adjudicative tribunal, but covers the full galaxy of federal decision-makers who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. 

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- The language of sec. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. 

- Despite a difference in the meaning of the English and French versions in the relevant language of sec. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. 

- The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir.

Rearticulating the Modern Standard –- Application of Bibeault standards to justify a correctness standard of review of the relevant

question of law primarily on the basis that it was a question of general international law.

Pushpanathan v. Canada (Minister of Citizenship and Immigration)- This appeal raises two important questions relating to who may be admitted to Canada as a

refugee:  first, the proper standard of judicial review over decisions of the Immigration and Refugee Board.

(A) Standard of Review- The central inquiry in determining the standard of review exercisable by a court of law is the

legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: “Was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?”

(1) Factors to Be Taken into Account(i) Privative Clauses

- The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full   privative clause is “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded”. 

- At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review. In essence, a partial or equivocal privative clause is one which fits into the overall process of evaluation of factors to determine the legislator’s intended level of deference, and does not have the preclusive effect of a full privative clause.

(ii) Expertise- Described by Iacobucci J in Southam as “the most important of the factors that a court must

consider in settling on a standard of review”, this category includes several considerations.  If   a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded.

- Nevertheless, expertise must be understood as a relative, not an absolute concept. As Sopinka J explained in Bradco: “On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference”. 

- Making an evaluation of relative expertise has three dimensions : 

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o (1) The court must characterize the expertise of the tribunal in question; o (2) It must consider its own expertise relative to that of the tribunal; and o (3) It must identify the nature of the specific issue before the administrative

decision-maker relative to this expertise- The criteria of expertise and the nature of the problem are closely interrelated.- Once a broad relative expertise has been established, however, the Court is sometimes prepared

to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal’s constituent legislation. In Pezim v. British Columbia (Superintendent of Brokers), Iacobucci J. stated that “courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise”.

(iii) Purpose of the Act as a Whole, and the Provision in Particular- As Iacobucci J noted in Southam, purpose and expertise often overlap. - The purpose of a statute is often indicated by the specialized nature of the legislative

structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. 

- Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes.

- Also of significance is the range of administrative responses, the fact that an administrative commission plays a “protective role” and that it plays a role in policy development.

- That legal principles are vague, open-textured, or involve a “multi-factored balancing test” may also militate in favour of a lower standard of review.

- These considerations are all specific articulations of the broad principle of “polycentricity”.- A “polycentric issue is one which involves a large number of interlocking and interacting

interests and considerations”. While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint

(iv) The “Nature of the Problem”:  A Question of Law or Fact?- Even pure questions of law may be granted a wide degree of deference where other factors

suggest that such deference is the legislative intention.- Where, however, other factors leave that intention ambiguous, courts should be less deferential of

decisions which are pure determinations of law.- However, there is no clear line to be drawn between questions of law and questions of fact.- An appropriate litmus test was set out in Southam by Iacobucci J, who stated

…in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future.

- In Pasiechnyk, the creation of a legislative “scheme” combined with the creation of a highly specialized administrative decision-maker, as well as the presence of a strong privative clause was sufficient to grant an expansive deference even over extremely general questions of law.

- In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown.  Without an implied or express legislative intent to the contrary as manifested in Pasiechnyk, legislatures should be assumed to have left highly generalized propositions of law to courts.

(4) The Proper Standard: Correctness

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- In my judgment the decision of the Board in this case should be subjected to a standard of correctness.

- First , sec. 83(1) would be incoherent if the standard of review were anything other than correctness.  The key to the legislative intention as to the standard of review is the use of the words “a serious question of   general   importance” . The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? This view accords with the observations of Iacobucci J in Southam that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. This case involves a determination which could disqualify numerous future refugee applicants as a matter of law.

- Second , the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review here. A clear majority of this Court has found in a number of cases that deference should not be shown by courts to human rights tribunals with respect to “general questions of law”, even legal rules indisputably at the core of human rights adjudication.

- In Canada (Attorney General) v. Ward, La Forest J found the purpose underlying the Convention to be “the international community’s commitment to the assurance of basic human rights without discrimination”. Article 1F(c) is at the core of this human rights purpose.

- In the present case, the Board’s expertise in matters relating to human rights is far less developed than that of human rights tribunals. The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin. Unlike the situation of a human rights tribunal, the relationship between the expertise and the provision in question here is remote.  Only 10 percent of the members of the Board are required to be lawyers and there is no requirement that there be a lawyer on every panel.

- As such, the legal principle in this case is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value.

- The factual expertise enjoyed by this administrative decision-maker does not aid it in the interpretation of this general legal principle.

- Nor can the Board be characterized as performing a “managing” or “supervisory” function. The context in which the adjudicative function takes place is not a “polycentric” one of give-and-take between different groups, but rather the vindication of a set of relatively static human rights, and ensuring that those who fall within the prescribed categories are protected.

Focusing on the Nature of the Question – - As long as the reviewing court’s sense of itself is that it is as expert as the tribunal on the issues in

question, there is a large chance that correctness will emerge as the standard of review.

Trinity Western University v. British Columbia College of Teachers- The BBCT invokes the public interest reference as justification for considering the TWU

admissions policy in deciding the certification of its teacher education program - In Ross it was accepted that teachers are a medium for transmission of values. It is obvious that

the pluralistic nature of society and the extent of diversity in Canada are important elements that must be understood by future teachers because they are the fabric of the society within which teachers operate and the reason why there is a need to respect and promote minority rights.

- It would not be appropriate to limit the scope of the Act to a determination of skills and knowledge as the fulfillment of public functions is undertaken in a manner that does not undermine public trust and confidence.

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- Respondent argues that a correctness standard applies because the purpose of the decision is the protection of human rights and the Council does not have the expertise in that regard.

- The absence of a privative clause, the expertise of the BCCT, the nature of the decision and the statutory context all favor a correctness standard.

- There is no reason to give deference to the BCCT decision as it was based on perception rather than evidence of actual discrimination or real risk of discrimination.

- L’Heureux-Dube J (dissenting): at issue is the expertise; what the purpose of the act as a whole is and the provision in particular are; and whether the question at issue is one of law or fact. Everything leads to patent unreasonableness.

- In Pearlman it was emphasized that deference should be given to self-governing professions- Equality is a central component of the public interest that the BCCT is charged with protecting in

the classrooms of the province - Explicitly noted that an admin tribunal should be expected to consider Charter values- The BCCT’s equality based approach, focused on supportive atmospheres in public school

classrooms, merits a standard of review of patent unreasonableness- The judge considers a two-stage approach, first of considering administrative law, a sphere in

which the Pushpanathan factors indicate that deference is due to BCCT, and, then assessing the Charter claims advanced by TWU and third parties affected by the BCCT’s decision

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Inconsistency: A Species of Patent Unreasonableness –- Is inconsistency with a prior decision of a Tribunal a reviewable error or a badge of a particular

kind of unreasonableness or patent unreasonableness?

Domtar Inc. v. Quebec (Commission d’appel en matiere de lesions)- The requirement of consistency in the application of the law is unquestionably a valid objective and

so a persuasive argument.- Yet, as the courts have held, consistency in decision-making and the rule of law cannot be

absolute in nature regardless of the context. So far as judicial review is concerned, the problem of inconsistency in decision-making by administrative tribunals cannot be separated from the decision-making autonomy, expertise and effectiveness of those tribunals.

- The issue is between the expertise and effectiveness of administrative tribunals and curial deference, on the one hand, and consistency and predictability in the application of the law, on the other. 

- Where decisions made within jurisdiction are not patently unreasonable, the issue instead turns on whether the principles underlying curial deference should give way to other imperatives. In my opinion, the answer is no.

- Dealing with a case of administrative inconsistency and solving it means altering the already delicate institutional relationship between administrative tribunals and courts with reference to the impugned decision.

- In my opinion, there is a real risk that superior courts, by exercising review for inconsistency, may be transformed into genuine appellate jurisdictions.  Far from being neutral, the concept of consistency is an elusive parameter which, varying depending on the objective sought, may distort the very nature of judicial review.

- Since such intervention occurs in circumstances where the legislature has determined that the administrative tribunal is the one in the best position to rule on the disputed decision, it risks, at the same time, thwarting the original intention of the legislature.  Any inquiry into decision-making inconsistency where there is no patently unreasonable error thus diverts courts of law from the fundamental question which the legislature has in any case already answered

- There are undoubtedly clear cases of inconsistency where the dictates of equality and consistency in the application of the law will have full effect: is the fact that two bodies interpret the same legislative provision differently, but in the particular context of the jurisdiction of each, one in a penal and the other in an administrative matter, a "conflict in decisions"?  What about an isolated decision conflicting with a consistent line of authority? 

- As Gonthier J. pointed out in Tremblay, the consistency objective must be pursued in keeping with the decision-making autonomy and independence of members of the administrative body:

A consultation process by plenary meeting designed to promote adjudicative coherence may thus prove acceptable and even desirable for a body like the Commission, provided this process does not involve an interference with the freedom of decision makers to decide according to their consciences and opinions.

- Finally, in the same case, the Court noted that administrative tribunals could render contradictory decisions:

Ordinarily, precedent is developed by the actual decision makers over a series of decisions. The tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges. This of course is a longer process; but there is no indication that the legislature intended it to be otherwise.

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- Like the rules of natural justice, these objectives cannot be absolute in nature regardless of the context.

- In light of these considerations we must conclude that, for purposes of judicial review, the principle of the rule of law must be qualified.

Patently Unreasonable Findings of Fact –- This represents the only case to date where the standard of patent unreasonableness was accepted

to apply to findings of fact as well as findings of law.

Toronto (City) Board of Education v. OSSTF District 15- The sole issue in this appeal is whether the Board of Arbitration made a patently unreasonable

decision in ordering that Mr. Bhadauria be conditionally reinstated in his position as a teacher with the appellant Board of Education.

- Both the appellant and the respondent union agree, correctly in my view, that at the time that the letters were written, Mr. Bhadauria certainly did not exhibit the characteristics statutorily required of a person who is responsible for teaching young people. 

- The essential question before the Board was whether the failure to meet these standards was temporary and whether discharge was appropriate.  These issues were within the jurisdiction of the Board. Thus their decision can only be set aside if it was patently unreasonable.

What Constitutes a Patently Unreasonable Decision?- The test has been articulated somewhat differently for findings of fact and findings of law.- It has been held that a finding based on “no evidence” is patently unreasonable. However, it is

clear that a court should not intervene where the evidence is simply insufficient.- When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the

evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”.

- All these tests are strict. In PSAC No. 2, it was put in this way:…it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

The Review of the Record- As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import

Tribunal) observed “in some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in-depth analysis.” 

- Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time.

Was the Decision to Return Mr. Bhadauria to the Classroom Patently Unreasonable?- In making their “leap of faith” and holding that Mr. Bhadauria should be given another chance to

demonstrate that his teaching ability had not been “completely destroyed”, the majority of the Board of Arbitration made two key findings of fact. These findings are, in my view, the sole basis for the Board’s conclusion that the grievor was capable of returning to the classroom. The first was the finding that his unacceptable conduct was temporary because it could be attributed to the stress and frustration of the Board of Inquiry hearings. The second and related finding was that Mr. Bhadauria was “not beyond redemption”. If these findings were patently unreasonable in that there was no evidence upon which they could be based, then the decision of the arbitrators should be quashed.

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- In my view, it was simply not open to the Board to conclude both that the grievor was unfit to be in the classroom and that he should be allowed to return in the absence of evidence that he was fit to do so. 

- The reasonableness of the decision by the majority of the Board of Arbitration to return Mr. Bhadauria to his teaching duties hinges entirely on the inference made by the majority that his conduct was temporary.

- However, it is essential to recall the salutary caution expressed by Lamer J. in Blanchard:…courts should always be mindful of the fact that an arbitrator is in a far better position to assess the impact of the award… To this must be added the fact that the arbitrator saw and heard the parties.

- Nonetheless, I am of the view that, although the reasons of the majority of the Board of Arbitration are adequate from a legal perspective, they do contain a number of disquieting contradictions which are difficult to explain

- All the evidence before the Board not only contradicted the inference made by the majority that his conduct was temporary, but rather confirmed that it persisted. First, the majority of the Board of Arbitration accepted Ms. Green’s evidence that Mr. Bhadauria was not capable of fulfilling the duties of a teacher, and they rejected Mr. Bhadauria’s evidence explaining his conduct. Second, the medical evidence indicated that while Mr. Bhadauria was not likely to be physically violent, he was likely to continue his verbal attacks. Third, the majority had before them the third letter of Mr. Bhadauria which demonstrated a shocking lack of judgment and exhibited the same feelings of hatred and bitterness which prompted the first two letters.

(i) The Testimony of Mr. Bhadauria and the Employer- The majority of the Board unequivocally accepted and agreed with the testimony of Ms. Green,

the current Director of Education, that the grievor had failed to live up to the standards required of a teacher.

- By contrast, the majority emphatically rejected Mr. Bhadauria’s explanations of his conduct. They dismissed them as “shallow” and unable to “withstand the able cross examination of counsel for the Board”. As a result, the majority was not prepared to “give any credence to the grievor’s testimony in that regard”.

- Despite this apparently overwhelming evidence, the majority concluded that the grievor’s conduct could be attributed to the stress of the hearings before the human rights Board of Inquiry. They expressed the opinion that now that the Inquiry was over, it was likely that he would “return to a calmer state”. 

- In my view, this could only be a reasonable inference if some of the statements made by the experts who examined Mr. Bhadauria are taken out of context, and if the grievor had not sent the third letter.

- There was no evidence that would suggest that his feelings of bitterness and resentment had dissipated after the Board of Inquiry found that there was no discrimination in the hiring practices of the appellant Board of Education. In fact, all the evidence was to the contrary.

(ii) The Psychiatric and Psychological Assessments- The overwhelming evidence that Mr. Bhadauria’s conduct was not temporary can be found in

part in the assessments of the psychiatrists and the psychologist who assessed Mr. Bhadauria’s mental state.

- Dr. Malcolm’s first report did attribute Mr. Bhadauria’s actions to the stress of the hearings before the Board of Inquiry and to the perception, real or imagined, that he had been the victim of discrimination.  But Dr. Malcolm certainly did not say that Mr. Bhadauria would return to his prior state once the aggravating factors were removed. 

- Dr. Malcolm went on to express the opinion that Mr. Bhadauria would very likely continue to “issue very strong verbal commentaries in diverse media because that is his style”.

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- After the grievor sent the “Montreal Massacre” letter, he was assessed again by Dr. Malcolm. That report was also accepted by the majority. Dr. Malcolm repeated his opinion that Mr. Bhadauria was not likely to be physically violent, but that his verbal harassment would continue. He certainly gave no indication that this situation would be one of short duration.

- All of this evidence, accepted without qualification by the majority, indicates that Mr. Bhadauria would continue his verbal harassment.

(iii) The Third Letter- The final significant item of evidence which leads to the conclusion that the grievor’s conduct

was not temporary is the third letter. It was written several months after the Board of Inquiry’s decision had been rendered, and a month and a half before the hearing before the Board of Arbitration was to begin.  Curiously, the majority did not even refer to it.

- In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error for them not to do so.

- This letter is an admission by Mr. Bhadauria that he was still unable to control either his feelings or his impulse to express those feelings, however inappropriate they may be.

- In the face of this letter, it was patently unreasonable for the arbitrators to conclude that his conduct was temporary and to return him to the classroom.

- The evidence that Mr. Bhadauria’s misconduct was not temporary appears to be overwhelming. Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently unreasonable. 

- What does lead to that conclusion is that I can find no other evidence reasonably capable of supporting the conclusion that the misconduct was a momentary aberration. There was certainly no onus on the employee to demonstrate that his misconduct was temporary. The reasons of the majority clearly indicate, however, that they accepted the employer’s evidence that just cause had been established and that the employer had discharged its onus in that regard. Quite simply, the evidence that the arbitrators stated they were relying upon to support their findings pointed to the exact opposite conclusion. The absence of such evidence renders the decision patently unreasonable, and there was simply no basis for the “leap of faith” that he could return to the classroom.

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Introduction – - First, do administrative agencies have jurisdiction to decide Charter or other constitutional

challenges to the validity of the legislation that they administer, or are these issues that only superior courts may decide?

- The second and third questions arise if a positive answer is given to the first. Must a litigant resort exclusively to, or at least exhaust, the statutory remedies specifically provided before going to the superior courts?

- Third, may administrative agencies grant constitutional remedies and, more particularly, can an administrative tribunal ever be a court of competent jurisdiction for the purposes of s.24(1), the remedies provision in the charter?

- Finally, the last question is about the standard of review that should apply when an administrative agency legitimately makes a pronouncement on a constitutional question or provides a constitutional remedy.

Nova Scotia (Workers’ Compensation Board) v. Martin (IV) Issues

- Does the Nova Scotia Workers’ Compensation Appeals Tribunal have the authority to refuse to apply, on Charter grounds, benefits provisions of its enabling statute?

(V) Analysis- This Court has adopted a general approach for the determination of whether a particular

administrative tribunal or agency can decline to apply a provision of its enabling statute on the ground that the provision violates the Charter. 

- This approach rests on the principle that, since administrative tribunals are creatures of Parliament and the legislatures, their jurisdiction must in every case “be found in a statute and must extend not only to the subject matter of the application and the parties, but also to the remedy sought.

- Since the subject matter and the remedy in such a case are premised on the application of the Charter, the question becomes whether the tribunal’s mandate includes jurisdiction to rule on the constitutionality of the challenged provision.

- This question is answered by applying a presumption that all legal decisions will take into account the supreme law of the land. Thus, as a rule, “an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid”

- In each case, the first question to be addressed is whether the administrative tribunal at issue has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. This question is one of legislative intent, and thus, it is crucial that the relevant intent be clearly defined. The question is not whether Parliament or the legislature intended the tribunal to apply the Charter.

- Rather, one must ask whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, then the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of the Charter, unless the legislator has removed that power from the tribunal.

- Often, however, the statute will expressly confer on the tribunal jurisdiction to decide certain questions of law. It suffices that the legislator endows the tribunal with power to decide questions of law arising under the challenged provision, and that the constitutional question relate to that provision.

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- Absent an explicit grant, it becomes necessary to consider whether the legislator intended to confer upon the tribunal implied jurisdiction to decide questions of law arising under the challenged provision.

- Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include:

o (1) The statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively;

o (2) The interaction of the tribunal in question with other elements of the administrative system;

o (3) Whether the tribunal is adjudicative in nature; and o (4) Practical considerations, including the tribunal’s capacity to consider questions of

law.- If the tribunal is found to have implied jurisdiction to decide questions of law arising under a

legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

- Once this presumption has been raised, either by an explicit or implicit grant of authority to decide questions of law, the second question that arises is whether it has been rebutted. 

- The burden of establishing this lies on the party who alleges that the administrative body at issue lacks jurisdiction to apply the Charter. 

- In general terms, the presumption may only be rebutted by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations.

- The question to be asked is whether an examination of the statutory provisions clearly leads to the conclusion that the legislature intended to exclude the Charter, or more broadly, a category of questions of law encompassing the Charter, from the scope of the questions of law to be addressed by the tribunal.

- I refrain, however, from expressing any opinion as to the constitutionality of a provision that would place procedural barriers in the way of claimants seeking to assert their rights in a timely and effective manner, for instance by removing Charter jurisdiction from a tribunal without providing an effective alternative administrative route for Charter claims.

- The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (2)(b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations

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Paul v. British Columbia (Forest Appeals Commission)(I) Overview

- An official in the British Columbia Ministry of Forestry seized four logs in the possession of Thomas Paul, a registered Indian.

- Mr. Paul asserted that he had an aboriginal right to cut timber for house modification, and accordingly that sec. 96 of the Forest Practices Code of British Columbia Act, a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that Mr. Paul had contravened sec. 96. Mr. Paul then appealed to the Forest Appeals Commission (Commission).

- The issue in dispute is whether the Commission has jurisdiction to hear Mr. Paul’s defense that he cut the trees and possessed the logs in the exercise of his aboriginal rights.

- There are two prongs to the respondent’s challenge to the jurisdiction of the Commission.- The second prong of Mr. Paul’s challenge deals with the Commission’s statutory

jurisdiction. The respondent argued that the enabling provisions of the Code were insufficient to empower the Commission to decide the existence of aboriginal rights or title. Mr. Paul argues that the Legislature would need to confer the power to determine such questions, even ones arising incidentally to forestry matters, upon the Commission expressly. I note that the appellants agree with the respondent that the particular provisions of the Code fail to confer such power on the Commission. Only the Commission itself, intervening, believes it has been so empowered.

- The correct approach in a constitutional case such as the present appeal is the same as that in Martin, which concerns the Charter. That approach is to determine whether the tribunal is empowered to decide questions of law. If so, the judge must verify whether there is a clear implication arising from the statutory scheme that the power to decide questions of law was meant to exclude the legal issues under review. In this case, sec. 131(8) of the Code permits a party to “make submissions as to facts, law and jurisdiction”. It is therefore clear that the Commission has power to determine questions of law. 

- Nothing in the Code provides a clear implication to rebut the presumption that the Commission may decide questions of aboriginal law.

(II) Analysis(B) Statutory Interpretation: Does the Code Empower the Commission to Hear and Decide Section 35

Questions?(1) Are Section 35 Questions Distinct From Other Constitutional Matters?

- I note that there is no basis for requiring an express empowerment that an administrative tribunal be able to apply sec. 35 of the Constitution Act 1982. There is no persuasive basis for distinguishing the power to determine sec. 35 questions from the power to determine other constitutional questions, such as the division of powers under the Constitution Act 1867 or a right under the Charter.

- Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative tribunal from ruling, at first instance, on the border between those aboriginal rights and a provincial law of general application. 

- Moreover, the arguments that sec. 35 rights are qualitatively different — that they are more complex, and require greater expertise in relation to the evidence adduced — have little merit.

- To the extent that aboriginal rights are unwritten, communal or subject to extinguishment, and thus a factual inquiry is required, it is worth noting that administrative tribunals, like courts, have fact-finding functions. Indeed, the more relaxed evidentiary rules of administrative tribunals may in fact be more conducive than a superior court to the airing of an aboriginal rights claim.

- One difficulty with the argument about complexity is that it is difficult to draw the line between simple questions of aboriginal law, that boards like the Commission should be able to hear, and complex questions. In the hearing, counsel for the appellants was unable to provide

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a principled and convincing way to distinguish aboriginal law questions simple enough and therefore appropriate for the Commission from those that, in her view, were not.

- A further unconvincing argument was that aboriginal rights are, today, complicated and in a state of flux, but that in the future, when they have been settled, it may be appropriate for administrative tribunals to consider them. Again, such lines are not easily enough drawn for that to be the judicial test.

- I conclude, therefore, that there is no principled basis for distinguishing sec. 35 rights from other constitutional questions.

(2) The Appropriate Test: the Power to Determine Questions of Law- As Gonthier J notes in Martin, the principle of constitutional supremacy in sec. 52 of

the Constitution Act 1982 leads to a presumption that all legal decisions will take into account the supreme law of the land.

- I am of the view that the approach set out in Martin, in the context of determining a tribunal’s power to apply the Charter, is also the approach to be taken in determining a tribunal’s power to apply sec. 35 of the Constitution Act 1982.

- The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of sec. 35 or any other relevant constitutional provision. 

- Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in determining what is the most appropriate way of handling a particular dispute where more than one option is available.

(3) Application of the Test(b) The Nature of an Appeal to the Commission

- The respondent, Mr. Paul, made an argument based on the Commission’s role within the forestry administrative scheme. He submitted that the Commission is an appeal board without power to deal with a dispute de novo. Therefore, he submits, the Commission’s jurisdiction is limited in the same way as that of the District Manager and Administrative Review Panel. These bodies were found, by the chambers judge, to have no jurisdiction to determine whether a sec. 35 right could be invoked.

- In support of his position, the respondent referred to two cases, Dupras v. Mason and McKenzie v. Mason. Both relate to the right of appeal to the Supreme Court of British Columbia from a decision of the Chief Gold Commissioner under provincial mining legislation. The Court of Appeal in both cases held that the right of appeal did not permit a trial de novo.

- Those cases, however, dealt with an appeal from an administrative scheme to a superior court. It was on precisely that basis that the Court of Appeal in British Columbia Chicken Marketing Board v. British Columbia Marketing Board recently distinguished Dupras. The issue there was a statutory appeal from the Chicken Marketing Board to the Marketing Board. The former was not an adjudicative body. In contrast, the Marketing Board almost always conducted hearings with witnesses, sworn testimony and oral submissions; provided the opportunity for parties to be represented by counsel; and gave reasons for its decisions. The Court of Appeal held that the statutory appeal to the Marketing Board was a full hearing on the merits, there being no suggestion that significant deference was owed to the lower board. The Marketing Board was not a generalist court, but a specialized tribunal expected to use its expertise. That expertise would be squandered if the Marketing Board were bound to defer to the lower board and restrict its inquiry to the grounds before the lower board.

- I conclude, therefore, that the Commission has the power to decide questions relating to aboriginal rights arising incidentally to forestry matters. No argument was made that the Legislature has expressly or by clear implication arising from the statutory scheme withdrawn from the Commission the power to determine related questions under sec. 35 that will

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presumptively attend the power to determine questions of law. The Commission therefore has the power to hear and decide the incidental issues relating to Mr. Paul’s defense of aboriginal rights.

Constitutional Challenges and Remedies: The Appropriate Forum –- Now the book progresses to whether these considerations may support the view that a person who

alleges a violation of a constitutional right ought to be able to litigate it in court before it has been decided by a specialized administrative tribunal.

Administrative Tribunals Act

Discretion to refer questions of law to courtSec. 43

- (1) The tribunal has jurisdiction to determine all questions of fact, law or discretion that arise in any matter before it, including constitutional questions.

- (2) If a question of law, including a constitutional question, is raised by a party in a tribunal proceeding, on the request of a party or on its own initiative, at any stage of an application the tribunal may refer that question to the court in the form of a stated case.

- (3) If a constitutional question is raised by a party in an application, on the request of the Attorney General, the tribunal must refer that question to the court in the form of a stated case.

- (4) The stated case under subsection (2) or (3) musto (a) be prepared by the tribunal,o (b) be in writing,o (c) be filed with the court registry, and(d) include a statement of the facts and relevant

evidence.o (5) Subject to the direction of the court, the tribunal must

(a) to the extent that it is practicable in light of the stated case, proceed to hear and decide all questions except the questions raised in the stated case,

(b) suspend the application as it relates to the stated case and reserve its decision until the opinion of the court has been given, and

(c) decide the application in accordance with the opinion.- (6) A stated case must be brought on for hearing as soon as practicable.- (7) Subject to subsection (8), the court must hear and determine the stated case and give its

decision as soon as practicable.- (8) The court may refer the stated case back to the tribunal for amendment or clarification, and

the tribunal must promptly amend and return the stated case for the opinion of the court.

Tribunal without jurisdiction over constitutional questionsSec. 44

- (1) The tribunal does not have jurisdiction over constitutional questions.- (2) Subsection (1) applies to all applications made before, on or after the date that the subsection

applies to a tribunal.

Tribunal without jurisdiction over the CharterSec. 45

- (1) The tribunal does not have jurisdiction over constitutional questions relating to the Canadian Charter of Rights and Freedoms.

- (1.1) Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal.

- (2) If a constitutional question, other than one relating to the Canadian Charter of Rights and Freedoms, is raised by a party in a tribunal proceeding

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o (a) on the request of a party or on its own initiative, at any stage of an application the tribunal may refer that question to the court in the form of a stated case, or

o (b) on the request of the Attorney General, the tribunal must refer that question to the court in the form of a stated case.

- (3) The stated case musto (a) be prepared by the tribunal,o (b) be in writing,o (c) be filed with the court registry, ando (d) include a statement of the facts and relevant evidence.

- (4) Subject to the direction of the court, the tribunal musto (a) to the extent that it is practicable in light of the stated case, proceed to hear and decide

all questions except the questions raised in the stated case,o (b) suspend the application as it relates to the stated case and reserve its decision until the

opinion of the court has been given, ando (c) decide the application in accordance with the opinion.

- (5) A stated case must be brought on for hearing as soon as practicable.- (6) Subject to subsection (7), the court must hear and determine the stated case and give its

decision as soon as practicable.- (7) The court may refer the stated case back to the tribunal for amendment or clarification, and

the tribunal must promptly amend and return the stated case for the opinion of the court.

Administrative Procedures and Jurisdiction ActPart 2

Jurisdiction to Determine Questions of Constitutional LawDefinitions –Sec. 10 – In this Part,

- (a) “court” means the Court of Queen’s Bench of Alberta;- (b) “decision maker” means an individual appointed or a body established by or under an Act of

Alberta to decide matters in accordance with the authority given under that Act, but does not include

o (i) The Provincial Court of Alberta or a judge of that Court,o (ii) a sitting justice of the peace conferred with the authority to determine a question of

constitutional law under the Provincial Court Act,o (iii) the Court of Queen’s Bench of Alberta or a judge or master in chambers of that

Court, oro (iv) the Court of Appeal of Alberta or a judge of that Court;

- (c) “designated decision maker” means a decision maker designated under section 16(a) as a decision maker that has jurisdiction to determine one or more questions of constitutional law under section 16(b);

- (d) “question of constitutional law” meanso (i) any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to

the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or

o (ii) a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.

Lack of jurisdiction –

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Sec. 11 – Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so.2005 c4 s8

Notice of question of constitutional law –Sec. 12

- (1) Except in circumstances where only the exclusion of evidence is sought under the Canadian Charter of Rights and Freedoms, a person who intends to raise a question of constitutional law at a proceeding before a designated decision maker that has jurisdiction to determine such a question

o (a) must provide written notice of the person’s intention to do so at least 14 days before the date of the proceeding

(i) to the Attorney General of Canada, (ii) to the Minister of Justice and Attorney General of Alberta, and (iii) to the parties to the proceeding,

ando (b) must provide written notice of the person’s intention to do so to the designated

decision maker.- (2) Until subsection (1) is complied with, the decision maker must not begin the determination of

the question of constitutional law.- (3)  Nothing in this section affects the power of a decision maker to make any interim order,

decision, directive or declaration it considers necessary pending the final determination of any matter before it.

- (4)  The notice under subsection (1) must be in the form and contain the information provided for in the regulations.

Referral of question of constitutional law –Sec. 13

- (1) With respect to a question of constitutional law over which a designated decision maker has jurisdiction and in respect of which a notice has been given under section 12, if the designated decision maker is of the opinion that the court is a more appropriate forum to decide the question, the designated decision maker may, instead of deciding the question,

o (a) direct the person who provided the notice under section 12 to apply to the court to have the question determined by that court, or

o (b) state the question of constitutional law in the form of a special case to the court for the opinion of the court.

- (2) Before acting under subsection (1)(a) or (b), the designated decision maker may conduct any inquiries the designated decision maker considers necessary.

- (3) Where the designated decision maker acts under subsection (1)(a) or (b), the designated decision maker must, unless otherwise directed by the court, suspend the proceeding, or any part of the proceeding, as it relates to the question to be heard by the court under subsection (1) until the decision of the court has been given.

- (4) A question of constitutional law in respect of which an application has been directed to be made to the court under subsection (1)(a) must be brought on for hearing as soon as practicable.

- (5) The court must hear and determine the question of constitutional law submitted to it under this section and give its decision as soon as practicable.

- (6) The designated decision maker may and, at the request of the court, shall provide the court with any record and documentation that may assist the court in determining the question of constitutional law submitted to it under this section.

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Attorney General of Canada and Minister of Justice and Attorney General of Alberta –Sec. 14 – In any proceeding relating to the determination of a question of constitutional law before a decision maker or before the court under this Part, or in any subsequent proceeding on appeal or judicial review,

- (a) the Attorney General of Canada and the Minister of Justice and Attorney General of Alberta are entitled as of right to be heard, in person or by counsel,

- (b) no person other than the Minister of Justice and Attorney General of Alberta or counsel designated by the Minister of Justice and Attorney General of Alberta shall, on behalf of Her Majesty in right of Alberta, or on behalf of an agent of Her Majesty in right of Alberta, appear and participate, and

- (c) if the Minister of Justice and Attorney General of Alberta or counsel designated by the Minister of Justice and Attorney General of Alberta appears, the Minister of Justice and Attorney General of Alberta is deemed to be a party and has the same rights as any other party.

Transitional –Sec. 15 – Where proceedings to determine a question of constitutional law have commenced but have not been concluded before the coming into force of this Part, the decision maker hearing the question may continue the proceedings as if this Part had not come into force.

Regulations – Sec. 16 – The Lieutenant Governor in Council may make regulations

- (a) designating decision makers as having jurisdiction to determine questions of constitutional law;

- (b) respecting the questions of constitutional law that decision makers designated under a regulation made under clause (a) have jurisdiction to determine;

- (c) respecting the referral of questions of constitutional law to the court;- (d) respecting the form and contents of the notice under section 12(1).

Weber v. Ontario HydroSummary of Issues

- It is common ground that sec. 45(1) of the Ontario Labour Relations Act prevents the bringing of civil actions which are based solely on the collective agreement. This leaves the following issues:

o 1. To what extent does sec. 45(1) oust the courts' jurisdiction?: (a) generally; (b) over Charter claims?

-  2. Is the courts' jurisdiction ousted in this case?Analysis

(b) The Charter Claims- This brings us to the question of whether a labour arbitrator in this case has the power to

grant Charter remedies. The remedies claimed are damages and a declaration.- In applying the law of the land to the disputes before them, be it the common law, statute law

or the Charter, arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. 

- If an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies.

- This leaves the question of whether a labour arbitrator appointed under the Act can grant damages for Charter breach.

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- It is argued that the remedy of damages finds its source in sec. 24(1) of the Charter, and can only be granted by a court of competent jurisdiction.

- The test set out by the majority of this Court in Mills v. The Queen determines whether arbitrators are courts of competent jurisdiction for that purpose.

- The majority, per McIntyre J, rejected the view that sec. 24(1) created a special class of court which alone could grant Charter remedies.

- A tribunal will be a court of competent jurisdiction, McIntyre J concluded, if its constituent legislation gives it:

o (1) power over the parties, o (2) the issue in litigation and o (3) power to grant the remedy which is sought under the Charter

- It is, thus, Parliament or the Legislature that determines if a court is a court of competent jurisdiction, since it is their choice whether to endow the arbitrator with the characteristics listed above.

- It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought.

Summary of the Law- I conclude that mandatory arbitration clauses such as sec. 45(1) of the Ontario Labour Relations

Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. 

- The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. 

- The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal

The Standard of Review – - Although a board has jurisdiction to entertain the constitutional challenge to the validity of the

relevant provision, “it can expect no curial deference with respect to constitutional decisions. An administrative tribunal should not be able to extend the constitutional reach of the legislature that created it by some erroneous conclusion of law.

Multani v. Commission scolaire Marguerite - Bourgeoys (5) Preliminary Issues

(5.1) The Administrative Law Standard of Review Is Not Applicable- Although the appropriate standard of review in the case at bar was not argued at trial, it was in the

Court of Appeal. Based on the decisions in Chamberlain v. Surrey School District No.   36 , and Dr.   Q v. College of Physicians and Surgeons of British Columbia , the Court of Appeal concluded that the standard for reviewing the council of commissioners’ decision should be reasonableness simpliciter.

- My colleagues Deschamps and Abella see no reason to depart from the administrative law approach adopted by the Court of Appeal. They also believe that it is both sufficient and more appropriate, in the case at bar, to rely solely on the principles of administrative law to decide the substantive issue rather than applying the principles of constitutional justification.

- With respect for the opinion of Deschamps and Abella, I am of the view that this approach could well reduce the fundamental rights and freedoms guaranteed by the Canadian Charter to mere administrative law principles or, at the very least, cause confusion between the two.

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- An infringement of a protected right will be found to be constitutional only if it meets the requirements of sec. 1 of the Canadian Charter.

- Since it is the compliance of the commissioners’ decision with the requirements of the Canadian Charter that is central to this appeal, it is my opinion that the Court of Appeal’s analysis of the standard of review was inadequate and that it leads to an erroneous conclusion.

- As this Court recognized in Ross, judicial review may involve a constitutional law component and an administrative law component. In that case, since the respondent had also argued that the decision infringed his freedom of expression and religion under the Canadian Charter, the Court also had to determine whether the board of inquiry’s order that the school board remove the respondent from his teaching position was valid from the point of view of constitutional law. The Court therefore conducted an analysis under sec. 2(a) and sec. 2(b) and sec. 1 of the Canadian Charter to decide the constitutional issue. The administrative law standard of review is not applicable to the constitutional component of judicial review.

- In this case, sec. 76 of the Education Act grants the governing board the power to approve any safety measure proposed by a school principal.

- The council of commissioners, in turn, upheld the governing board’s decision pursuant to the power implicitly conferred on it in sec. 12 of the Education Act.

- There is no suggestion that the council of commissioners did not have jurisdiction, from an administrative law standpoint, to approve the Code de vie.

- Rather, the appellant argues that it was in applying the rule, that is, in categorically denying Gurbaj Singh the right to wear his kirpan, that the governing board, and subsequently the council of commissioners when it upheld the original decision, infringed Gurbaj Singh’s freedom of religion under the Canadian Charter.

- The complaint is based entirely on this constitutional freedom. The Court of Appeal therefore erred in applying the reasonableness standard to its constitutional analysis. The administrative law standard of review was not relevant. Moreover, if this appeal had instead concerned the review of an administrative decision based on the application and interpretation of the Canadian Charter, it would, according to the case law of this Court, have been necessary to apply the correctness standard (Nova Scotia (Workers’ Compensation Board) v. Martin ) .

- As was explained in Eldridge v. British Columbia (Attorney General), the Canadian Charter can apply in two ways:

o First, legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by sec. 1. In such cases, the legislation will be invalid and the Court compelled to declare it of no force or effect pursuant to sec. 52(1) of the Constitution Act   1982 . 

o Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to sec. 24(1) of the Charter.

- Deschamps and Abella take the view that the Court must apply sec. 1 of the Canadian Charter only in the first case.

- I myself believe that the same analysis is necessary in the second case, where the decision maker has acted pursuant to an enabling statute, since any infringement of a guaranteed right that results from the decision maker’s actions is also a limit “prescribed by law” within the meaning of sec. 1. 

- On the other hand, as illustrated by Little Sisters Book and Art Emporium v. Canada (Minister of Justice), when the delegated power is not exercised in accordance with the enabling legislation, a decision not authorized by statute is not a limit “prescribed by law” and therefore cannot be justified under sec. 1.

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- In the case at bar, however, no one is suggesting that the council of commissioners failed to act in accordance with its enabling legislation.

- As Lamer J. explained in Slaight Communications, where the legislation pursuant to which an administrative body has made a contested decision confers a discretion (in the instant case, the choice of means to keep schools safe) and does not confer, either expressly or by implication, the power to limit the rights and freedoms guaranteed by the Canadian Charter, the decision should, if there is an infringement, be subjected to the test set out in sec. 1 of the Canadian Charter to ascertain whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society. 

- If it is not justified, the administrative body has exceeded its authority in making the contested decision. 

- According to the CSMB, freedom of religion has not been infringed, because it has internal limits. The CSMB considers that, in the instant case, the freedom of religion guaranteed by sec. 2(a) must be limited by imperatives of public order, safety, and health, as well as by the rights and freedoms of others.

- According to this line of reasoning, the outcome of this appeal would be decided at the stage of determining whether freedom of religion has been infringed rather than at the stage of reconciling the rights of the parties under sec. 1 of the Canadian Charter.

- However, the Court has on numerous occasions stressed the advantages of reconciling competing rights by means of a sec. 1 analysis.

- In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, La Forest J, writing for the majority of the Court, stated the following:

This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under sec. 1 of the Charter… Sec. 1 is a much more flexible tool with which to balance competing rights than sec. 2(a).

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Introduction –- Hayek argues for a conception of justice according to which rules are just only if they are both

general in nature and would receive universal consent [utopian ideal]- By discretion it is meant an express legal power to choose a course of action from a range of

permissible options, including the option of inaction. The discretion may authorize administrative action, a decision that is aimed at an individual or a small group, or the making of a rule that will affect a large number.

- The following four observations indicate that it is misleading to attempt to draw too sharp a distinction between law and discretion as administration tools

o 1 The terms of an agency’s enabling statute frequently do not yield a clear meaning that identifies the “correct” answer to a specific problem. Filling the blanks involves an implicit form of discretion.

o 2 Even the most detailed and precise regulatory codes are not self-enforcing; typically, officials are left with ample and unstated discretion about the circumstances in which they will be actually enforced against individuals.

o 3 Just as rules contain grants of implicit discretion (both of interpretation and interpretation), so all express grants of discretion to public officials are subject to some legal limits, at least when their exercise affects the rights of interests and individuals.

o 4 Discretionary decisions must be made by reference not only to statutory purposes and other legal limits of the power, but they should also be informed by any policy objectives formulated by the agency, guidelines that it has issued, and its past practice.

Abuse of Discretion as a Ground of Judicial Review – Possible avenues for review for abuse of discretion

i) Bad Faithii) Wrongfully Delegated Poweriii) Fettered discretion by laying down a general rule and not responding to individualsiv) Irrelevant Considerations [Most common]- Considerations taken into account when determining scope of discretion afforded- The statutory language in which the discretion is granted, the nature of the interested affected of

discretionary power, the character of the decision, the character the decision maker- The four factors the courts will take into account when determining if an agency or individual

who has been granted discretion, has exceeded their bounds:o 1 The statutory language in which the discretion is granted – is it written in objective

or subjective terms? Is it related to a specific or general purpose?o 2 The nature of the interest affected by the discretionary power – is it one to which our

legal system normally gives a high degree of protection?o 3 The character of the decision – are there affective alternative checks that will

prevent the abuse of discretion – Ex. political accountability?o 4 The character of the decision maker – courts should show some deference to

tribunals with expertise, for example, and show respect for decisions made by the Cabinet, etc…

- In the absence of a statutory right of appeal from the exercise of discretion, the legal basis of court’s intervention was that of ultra vires.

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- In the realm of failing to take account of relevant factors, taking account of irrelevant factors, and even acting for an improper purpose, it is now necessary to ask whether the standard of review is that of incorrectness, unreasonableness or patent unreasonableness.

Suresh v. Canada (Minister of Citizenship and Immigration)(IV) Analysis

(1) Standard of Review- This appeal involves a consideration of (2) whether Suresh’s presence in Canada constitutes a

danger to national security; (3) whether Suresh faces a substantial risk of torture upon return to Sri Lanka.

- At this point, our inquiry is into the standard of review to be applied to the second and third issues — the Minister’s decisions on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture on deportation.

- The latter was characterized by Robertson J.A. as a constitutional decision and hence requires separate treatment. It is our view that the threshold question is factual, that is whether there is a substantial risk of torture if the appellant is sent back, although this inquiry is mandated by sec. 7 of the Charter.

- The first question is what standard should be adopted with respect to the Minister’s decision that a refugee constitutes a danger to the security of Canada.

- We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question and should set aside the Minister’s discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.

- In Pushpanathan, the Court emphasized that the ultimate question is always what the legislature intended. One looks to the language of the statute as well as a number of factors to determine that intention. 

- Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference. The factors to be considered are:

o (1) the presence or absence of a clause negating the right of appeal; o (2) the relative expertise of the decision-maker; o (3) the purpose of the provision and the legislation generally; and o (4) the nature of the question.

- The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister’s opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division, and that leave decision may not itself be appealed.

- The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker v. Canada (Minister of Citizenship and Immigration), “the fact that the formal decision-maker is the Minister is a factor militating in favour of deference”. The Minister has access to special information and expertise in matters of national security.

- The third factor — the purpose of the legislation — again favours deference. This purpose, as discussed in Pushpanathan, is to permit a “humanitarian balance” of various interests — “the seriousness of the danger posed to Canadian society” on the one hand, and “the danger of persecution upon refoulement” on the other. Again, the Minister is in a superior position to a court in making this assessment.

- Fourthly, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, the danger opinion “involves a considerable appreciation of the facts of

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that person’s case, and is not one which involves the application or interpretation of definitive legal rules”, suggesting it merits a wide degree of deference.

- It should be noted, However, that in our view a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter.

- However, this Court also made it clear in Baker that its approach “should not be seen as reducing the level of deference given to decisions of a highly discretionary nature”. To the extent this Court reviewed the Minister’s discretion in that case, its decision was based on the ministerial delegate’s failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.

- However, it is very important to note that Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but rather, draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors.

- This brings us to the question of the standard of review of the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation.

- In the case at bar, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of  the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces.

- Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger sec. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister’s decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors.

Re Sheehan and Criminal Injuries Compensation Board- This case was an application for judicial review of a decision made by the Criminal Injuries

Compensation Board, whereby the applications of Sheehan for compensation, resulting from a prison riot, were refused.

- On appeal to the Ontario Divisional Court, the majority, in assessing whether the Board had used its statutorily authorized discretion to grant compensation correctly, concluded that it had to assess the factors that the Board took into consideration in rendering its decision with the factors listed in its enabling statute. The Divisional Court concluded that the factors the Board had considered were irrelevant. It arrived at this conclusion by narrowly reading the statutory provisions and directing the Board to consider certain-set factors, rather than reading the provisions as providing a wide grant of authority to consider factors that it saw fit to consider in the circumstances.

- On Appeal to the Ontario Court of Appeal, the Divisional Court’s decision was overturned. The majority held that the Divisional Court had erred in holding that the Board was constrained in its consideration of factors to those in its enabling legislation. Rather, the majority took the view, mainly by considering a provision in the Board’s enabling statute which stated that “…the board may have regard to all such circumstances as it considers relevant”, that the Board was free to consider factors which it deemed relevant in the circumstances. Thus, the majority concluded that a structured assessment of the validity and relevance of the Board’s factors of consideration was not warranted. Instead, the Board must be regarded as having authority to consider whatever factors it deems relevant in the

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circumstances, so long as it acted in good faith and it’s consideration of certain factors were not patently unreasonable. This conclusion was also assisted by the inclusion of a privative clause in the Board’s enabling statute.

Dalton v. Criminal Injuries Compensation Board- In this case, the Board refused compensation to a woman who had been severely injured as a

result of being pushed onto the highway from a van after refusing sexual advances from a man with whom she had been drinking.

- However, in this case, following the decision of the Court of Appeal in Sheehan, amendments were made to the Compensation for Victims of Crime Act, which significantly altered the approach the court took in assessing whether the factors used by the Board in determining compensation were relevant. Sec. 17 of the Act provided that, in determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances… it goes on to expressly include certain circumstances which must be taken into account.

- Thus, in order to properly invoke the Act, the Board must weigh all the relevant circumstances; it must consider the steps required by the Act in order to ensure that its discretion is exercised in a proper manner.

- In light of this, it can be argued that Sheehan would be decided differently today in light of the statutory amendments.

Shell Canada Products Ltd. v. Vancouver (City)Facts

- The appellant is a subsidiary of Shell Canada Ltd. and is involved in retail and wholesale marketing of petroleum products in Vancouver.  It was periodically invited to tender bids for municipal contracts to supply petroleum products until Vancouver City Council passed resolutions that the City would not do business with Shell Canada "until Royal Dutch/Shell completely withdraws from South Africa".  Vancouver purchases petroleum products from another company which, through one of its subsidiaries, also does business with South Africa. The British Columbia Supreme Court quashed the resolutions as being ultra vires the municipality. The Court of Appeal reversed the judgment

Majority JudgmentReviewability

- The respondent submits that the Resolutions are not law enacted by it pursuant to its legislative powers but rather an exercise of its corporate power and hence not reviewable by the court.

- As creatures of statute, however, municipalities must stay within the powers conferred on them by the provincial legislature. It follows that the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires. As such, the authorities referred to in argument do not support the contention that the exercise of business or corporate powers is immune from review.

- The City of Vancouver took action herein by passing resolutions. Clearly this was a purported exercise of its statutory powers. Sec. 223 of the Municipal Act indicates that all powers of a council may be exercised by by-law or by resolution.

- However, the respondent argues that it could simply have refused to deal with the appellant. I have difficulty envisaging how this would have been possible without direction from Council. An individual who wishes to engage in conduct and avoid scrutiny of his or her reasons or motives can simply decide to act in a certain fashion. A municipality cannot do this. Any policy or plan not to deal with the appellant would require a decision of Council. Any such decision must be grounded in a statutory power and, whatever its form, would be reviewable. In the absence of such a decision, any attempt to have the staff refuse to deal with the appellant on

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the basis of a "wink and a nod" would be vulnerable to attack on the basis of absence of authority from Council.

Impermissible Purpose- In R. v. Sharma, Iacobucci J, speaking for the Court, adopted the principle that as statutory

bodies, municipalities…may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation.

- In most cases, as here, the problem arises with respect to the exercise of a power that is not expressly conferred but is sought to be implied on the basis of a general grant of power.

- The approach in such circumstances is set out in the following excerpt:In approaching a problem of construing a municipal enactment a court should endeavour firstly to interpret it so that the powers sought to be exercised are in consonance with the purposes of the corporation. The provision at hand should be construed with reference to the object of the municipality: to render services to a group of persons in a locality with a view to advancing their health, welfare, safety and good government.

- Any ambiguity or doubt is to be resolved in favour of the citizen, especially when the grant of power contended for is out of the "usual range"

- I must, therefore, determine whether the Resolutions were passed for a municipal purpose.- The explicit purpose is to influence Shell to divest in South Africa by expressing moral outrage

against the apartheid regime and to join the alleged international boycott of its subsidiaries and products until Shell "completely withdraws from South Africa". There is no mention as to how the good government, health or welfare of the City or its citizens is affected or promoted thereby.

- I therefore agree with the trial judge that the respondent was seeking to use its powers to do business "to affect matters in another part of the world", a purpose which is directed at matters outside the territorial limits of the City.

- No doubt Council can have regard for matters beyond its boundaries in exercising its powers but, in so doing, any action taken must have as its purpose benefit to the citizens of the City.

- The respondent relied on several other sections of the Vancouver Charter to support the Resolutions. Sec. 137 gives the City power to engage in commercial, industrial or business undertakings; sec. 190 empowers Council to acquire such personal property as may be required for the purposes of the City; and sec. 199 allows Council "to do all such things as are incidental or conducive to the exercise of the allotted powers". 

- These sections are general sections found in most if not all municipal Acts and must be construed subject to the limitations imposed by the purpose of the statute as a whole. Any powers implied from their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality.

Failure to Consider Relevant FactorsAn exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enabling statute expressly, or more usually, impliedly, obliged it to consider. Whether a particular factor was one that the agency had to take into account in exercising its discretion should be determined by reference to its importance to the discharge of its statutory mandate.

If any agency is found to have taken into consideration a factor that is irrelevant to the exercise of its discretion, or has acted for some improper purpose, this is normally because the reviewing court has

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rejected the agency’s interpretation of its statutory power. However, an allegation that an agency has failed to consider sometimes means not that it has misinterpreted its statute, but that it has overlooked evidence that would establish whether a legally relevant fact existed.

Canadian Union of Public Employees v. Ontario (Minister of Labour)Facts

- The HLDAA requires the hundreds of hospital boards and nursing homes within Ontario to bargain in good faith with the unions (if any) representing their respective employees to conclude a voluntary collective agreement. In the event the parties fail to reach an acceptable collective agreement, the HLDAA prohibits strikes or lockouts.

- Compulsory arbitration is imposed. It takes place before a single arbitrator if the parties can agree, or before an arbitral panel of three members, two of whom are appointed by the parties, and a third member to be chosen by the other two members. If the designated members fail to agree on a third member, the HLDAA provides in sec. 6(5) that “the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act”.

- The Minister decided to make his sec. 6(5) appointments from amongst retired judges.Analysis

- The Minister argues that the wording of his power of appointment makes it clear that he and not the courts was intended to have the last word on appointments to chair compulsory arbitration boards in hospital and nursing home disputes. He says that the HLDAA does not condition his power on following any particular process, and it was open to him, in furtherance of government policy, to proceed as he did.

- Thus viewed, the central issue in this case is statutory interpretation.- The sec. 6(5) power of appointment is an important element of the scheme, but it is only an

element, and the HLDAA, as any statute, must be read as a whole to ascertain the true legislative intent.

- The exercise of discretion, as stated by Rand J in Roncarelli, “is to be based upon a weighing of considerations pertinent to the object of the statute’s administration”. Here, as in that case, it is alleged that the decision maker ignored pertinent considerations (e.g., relevant expertise and broad acceptability of a proposed chairperson in the labour relations community).

(1) The Statutory Interpretation of Sec. 6(5) of the HLDAA- The appropriate approach to statutory interpretation is that “the words of an Act are to be read in

their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.

- The HLDAA contemplates the appointment of “a person who is, in the opinion of the Minister, qualified to act”. The Minister is a senior member of the government with a vital interest in industrial peace in the province.

- Dickson in Reference re Public Service Employee Relations Act (Alta.) pointed out:The purpose of such a mechanism [compulsory arbitration] is to ensure that the loss in bargaining power through legislative prohibition of strikes is balanced by access to a system which is capable of resolving in a fair, effective and expeditious manner disputes which arise between employees and employers

- The intervener, National Academy of Arbitrators (Canadian Region) contends:If arbitrators are, or are perceived to be, a surrogate of either party or of government, or appointed to serve the interests of either party or of government, the system loses the trust and confidence of the parties, elements essential to industrial relations peace and stability

- I conclude, therefore, that, although the sec. 6(5) power is expressed in broad terms, the legislature intended the Minister, in making his selection, to have regard to relevant labour

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relations expertise as well as independence, impartiality and general acceptability within the labour relations community.(5) Were the Minister’s Appointments Challenged in This Case Patently Unreasonable?

(b) Rejecting the Criteria of “Labour Relations Expertise and Broad Acceptability Within the Labour Relations Community”

(i) Exclusion from Consideration of Relevant Criteria- The principle that a statutory decision maker is required to take into consideration relevant

criteria, as well as to exclude from consideration irrelevant criteria, has been reaffirmed on numerous occasions.

- As Lord Denning pointed out in Baldwin & Francis Ltd. v. Patents Appeal Tribunal, the failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration.

- In Reference re Bill 30, an Act to amend the Education Act (Ont.), Wilson J noted:A power to regulate is not a power to prohibit. It cannot be used to frustrate the very legislative scheme under which the power is conferred.

- In my view, the appointment of retired judges as a class to chair HLDAA arbitration boards had the effect of frustrating “the very legislative scheme under which the power is conferred”.

- In Suresh, the Court restated this basic principle of administrative law:The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.

- Not every relevant factor excluded by the Minister from his consideration will be fatal under the patent unreasonableness standard. The problem here, as stated, is that the Minister expressly excluded factors that were not only relevant but went straight to the heart of the HLDAA legislative scheme.

(ii) Application of These Principles to the Facts of This Case- I agree with the observation of the Ontario Court of Appeal in this case that the matters before

a HLDAA “interest” arbitration were “not essentially legal but practical and require the familiarity and expertise of a labour arbitrator rather than the skills of a lawyer or a judge”.

- However, the Minister’s senior advisor charged with the search for retired judges, made clear in his cross-examination the Minister’s rejection of both expertise and broad acceptability as qualifications.

- I conclude that the Minister’s approach was antithetical to credibility because he excluded key criteria (labour relations expertise and broad acceptability) and substituted another criterion (prior judicial experience) which, while relevant, was not sufficient to comply with his legislative mandate.

- Speaking broadly, “the perspective” within which the HLDAA was intended by the legislature to operate is to secure industrial peace in hospitals and nursing homes. The HLDAA imposes a compulsory yet mutually tolerable procedure (if properly administered) to resolve the differences between employers and employees without disrupting patient care. In that context, appointment of an inexpert and inexperienced chairperson who is not seen as broadly acceptable in the labour relations community is a defect in approach that is both immediate and obvious. In my view, with respect, having regard to what I believe to be the legislative intent manifested in the HLDAA, the Minister’s approach to the sec. 6(5) appointments was patently unreasonable.

Multiple Purposes and Considerations

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The prevailing view appears to be that the court will only hold such decisions to be ultra vires if the unlawful purpose or consideration played a dominant or material role in the exercise of discretion. (Canadian Ass. Of Regulated Importers v Canada (Attorney General)

Purpose and ProofProblems of proof tend to be particularly difficult when the discretionary power is exercised by a multi-member agency that gives no formal reasons for its decision. The courts have been reluctant to probe the purpose for which legislative powers have been exercised by a deliberative body.

Discretion and the Charter, Underlying Principles of the Constitution, and International LawThe Charter improves in at least three ways on the protection of individual rights previously provided by the common law.

- While there is no authoritative list of rights regarded by the common law as fundamental, the Charter identifies those that, by their entrenchment in the constitution, are to receive particular protection. [s.7]

- The inclusion of s.1 makes it clear that Charter rights are not absolute- The Charter operates quite independently of the statute

Slaight Communications Inc v. Davidson- The question to be decided by this Court is whether paragraph (c) of sec. 61.5(9) of the Canada

Labour Code authorizes the adjudicator to order the employer to give the employee a letter of reference of specified content and to order the employer to say nothing further about the employee.

- Resolution of the problem involves (1) the construction and the true meaning and effect of paragraph (c), (2) whether the adjudicator's order in this case infringed freedom of expression under sec. 2(b) of the Charter, and (3) if so, whether the infringement is justified under sec. 1 of the Charter.

The Relationship Between Administrative Law Review and Review Under the Charter- The positive order made by adjudicator Joliffe (to draw up and to give the respondent a specified

letter of reference) infringes sec. 2(b) of the Charter but is saved by sec. 1. - However, with regard to the negative order (that any inquiry about the respondent's employment at

Q107 be answered exclusively by the letter of reference which is the subject of the positive order), I must respectfully disagree with the conclusion of Lamer J that it is patently unreasonable, thereby obviating the need to consider the Charter. Furthermore, not only am I of the view that the negative order is reasonable in the administrative law sense, but I also believe that it is reasonable and demonstrably justified in the sense of sec. 1 of the Charter.

- A minimal proposition would seem to be that administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter review.

- While patent unreasonableness is important to maintain for questions untouched by the Charter, such as review of determinations of fact, in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under sec. 1 of the Charter. 

- In contrast to sec. 1, patent unreasonableness rests to a large extent on unarticulated and undeveloped values and lacks the same degree of structure and sophistication of analysis.

Ross v. New Brunswick School District No. 15 - The Supreme Court indicated that the Dickson approach represented the invariable rule: that if the

exercise of a discretion that affected Charter rights and freedoms passed muster by reference to sec. 1, it was thereafter redundant to inquire whether it was, nonetheless, patently unreasonable.

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Chamberlain v. Surrey School District No. 36 (I) Introduction

- The question on this appeal is whether that resolution was valid. The appellants have challenged the resolution on two grounds: first, that the Board acted outside its mandate under the School Act, and second, that the resolution violates the Charter.

- I conclude that the resolution must be set aside on the first ground. The Board acted outside the mandate of the School Act by failing to apply the criteria required by the Act and by the Board’s own regulation for approval of supplementary material.

(A) Secular Decision Making: The Requirement of Tolerance- Sec. 76 of the School Act provides that “all schools and Provincial schools must be conducted on

strictly secular and non-sectarian principles”. It also emphasizes that “the highest morality must be inculcated, but no religious dogma or creed is to be taught in a school or Provincial school”.

- The Act’s insistence on strict secularism does not mean that religious concerns have no place in the deliberations and decisions of the Board. Board members are entitled, and indeed required, to bring the views of the parents and communities they represent to the deliberation process.

- What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community.

- The children attending B.C.’s public schools come from many different types of families.- Inevitably, some parents will view the cultural and family practices of certain other family types

as morally questionable. Yet if the school is to function in an atmosphere of tolerance and respect, in accordance with sec. 76, the view that a certain lawful way of living is morally questionable cannot become the basis of school policy. 

- Where the school curriculum requires that a broad array of family models be taught in the classroom, a secular school system cannot exclude certain lawful family models simply on the ground that one group of parents finds them morally questionable.

- The School Act’s emphasis on secularism reflects the fact that Canada is a diverse and multicultural society, bound together by the values of accommodation, tolerance and respect for diversity. These values are reflected in our Constitution’s commitment to equality and minority rights

- In summary, the Act’s requirement of strict secularism means that the Board must conduct its deliberations on all matters, including the approval of supplementary resources, in a manner that respects the views of all members of the school community. It cannot prefer the religious views of some people in its district to the views of other segments of the community. Nor can it appeal to views that deny the equal validity of the lawful lifestyles of some in the school community. The Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves.

(V) The Board’s Decision- Although the final decision was the Board’s and not the Superintendent’s, the above passage

appears to express the concerns on which the Board relied. It reveals a particular interpretation of the School Act and curriculum:

o First, it equates homosexuality and same-sex parented families and suggests that because of the controversial nature of these subjects, the legislature and Minister could not be taken to have intended them to be discussed, absent express language so requiring. 

o Second, it applies a criterion of necessity. o Third, it expresses a concern with maintaining the right of parents to be the primary

educators of K-1 children. o Fourth, it expresses a concern that approval of the books would engender controversy in

light of parents’ views and might undermine the relationship between home and school.- What the Superintendent and the Board did not consider is as telling as what they did

consider. The Superintendent’s statement does not refer to the absence of restriction on the

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curriculum’s direction to discuss different family types. It does not refer to the emphasis in the School Act and curriculum on tolerance, respect, inclusion and understanding of social and family diversity. And it does not refer to the secular nature of the public school system and its mandate to provide a nurturing and validating learning experience for all children, regardless of the types of families they come from.

- The chambers judge concluded that the Board’s decision was based on concerns that the books would conflict with some parents’ views on same-sex relationships:

On review of all the evidence in this case on the basis of the School Board’s decision, I conclude that when the School Board passed the Books resolution, some of the trustees who voted in favour of the resolution were motivated to a significant degree by concern that parents and others in the School District would consider the books incompatible or inconsistent with their religious views on the subject of same-sex relationships.

- The Board’s view was that addressing the subject of same-sex relationships in Kindergarten and Grade One classes would raise sensitive issues for parents, and weight must be given to their concerns.

(IV) Application of the Standard to the Impugned Decision- The Board was required to exercise its power to approve or reject supplementary classroom

resources in a manner that accorded with: (1) the secular mandate of the Act; (2) the regulation which the Board had put in place pursuant to Ministerial Order; and (3) the factors required to be considered by the Act, including the desired learning outcome for K-1 students found in the curriculum.

- Thus, its decision here must be set aside as unreasonable because the process through which it was made took the Board outside its mandate under the School Act.

- The Board’s first error was to violate the principles of secularism and tolerance in sec. 76 of the School Act. Instead of proceeding on the basis of respect for all types of families, the Superintendent and the Board proceeded on an exclusionary philosophy. They acted on the concern of certain parents about the morality of same-sex relationships, without considering the interest of same-sex parented families and the children who belong to them in receiving equal recognition and respect in the school system

- The religious origin of the parents’ objections is not in itself fatal to the Board’s decision. The requirement of secularism in sec. 76 does not preclude decisions motivated in whole or in part by religious considerations. It simply signals the need for educational decisions and policies, whatever their motivation, to respect the multiplicity of religious and moral views that are held by families in the school community.

- The Board’s second error was to depart from the regulation it had made pursuant to Ministerial Order as to how decisions on supplementary resources should be made. The Board’s regulation required it to consider whether a proposed resource is “appropriate for the particular community in which it will be used”, and recognized the existence of diverse communities within the School District and the Board’s duty to approach the needs of each with respect and tolerance. Contrary to this requirement, the Board gave no consideration to the needs of children of same-sex parented families and instead based its decision on the views of a particular group who were opposed to any depiction of same-sex relationships in K-1 school materials.

(VII) Conclusion- I conclude that the Board’s decision not to approve the proposed books depicting same-sex

parented families was unreasonable because the Board failed to act in accordance with the School Act. In light of this conclusion, it is not necessary to consider the constitutionality of the Board’s decision. The issues discussed by my colleague concerning whether the appellants have standing and whether the action raises a serious legal question are not, in my view, ones which it is necessary or appropriate to comment on, given that this appeal does not fall to be determined on the basis of the Charter.

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Lalonde v. Ontario (Commission de restructuration des services de santé)Issue 4: What is the relevance to Montfort of the unwritten constitutional principle of respect for and

protection of minorities?- The authority most pertinent to the respondents’ submissions before this court is the Supreme

Court’s decision in the Secession Reference. There, it affirmed the existence of unwritten constitutional rules “not expressly dealt with by the text of the Constitution” but which nonetheless have normative force as operative instruments of our constitutional order.

- The principle of respect for and protection of minorities is a fundamental structural feature of the Canadian Constitution that both explains and transcends the minority rights that are specifically guaranteed in the constitutional text.

The application of the principle to Montfort- Ontario (appellant) submits that, in the face of the very specific and detailed minority language

guarantees in the text of the Constitution, the Divisional Court erred by in effect adding to the list of protected rights. The text of the Constitution’s specific language rights gives the Franco-Ontarian minority no right to a French language hospital and, says the appellant, the courts have no role in adding to the list of protected rights.

- The respondents submit, on the other hand, that the absence of a specific right in the text of the Constitution is not fatal to their case. They say that in view of the importance of Montfort as a cultural, social, and educational institution in the Franco-Ontarian minority’s struggle for survival, the Constitution’s fundamental principle of respect for and protection of minorities properly may be invoked as a basis for reviewing the legality of the Commission’s directions.

- The Divisional Court explicitly recognized that “the constitutional validity or invalidity of a piece of legislation is not at issue.” The Divisional Court added: “What is at issue is whether certain conduct of a government agency falls within the parameters of what is permitted by the Constitution…. There is a difference between the validity of legislation and the possibility of unconstitutional behaviour under legislation.”

- We agree with the Divisional Court’s characterization of the constitutional issue.Issue 6: Are the Commission's directions reviewable pursuant to the unwritten constitutional principle of

respect for and protection of minorities?- It has long been established in Canadian law that “there is no such thing as absolute and

untrammeled ‘discretion’”: Roncarelli v. Duplessis. In Mount Sinai Binnie J. observed:… Yet the discretion, however broadly framed, is not unfettered. At the very least the Minister must exercise the power for the purpose for which it was granted

- In Arsenault-Cameron, Major and Bastarache JJ wrote:The Minister has a duty to exercise his discretion in accordance with the dictates of the Charter.

- The present case does not involve a written constitutional guarantee, but it does involve a situation with profound implications for Ontario’s minority francophone community that engages the constitutional principle of respect for and protection of minorities. Even if the text of the Constitution falls short of creating a specific constitutionally enforceable right, the values of the Constitution must be considered in assessing the validity or legality of actions taken by government.

- Similarly, the Charter does not apply as between private individuals, yet Charter values are to be applied by the courts in common-law decision making: R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.

- Thus, unwritten constitutional norms may, in certain circumstances, provide a basis for judicial review of discretionary decisions, because the statutory conferral of the power to make a discretionary decision does not immunize from judicial scrutiny the decision-maker who ignores the fundamental values of Canada’s legal order.

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- The possibility of the review of discretionary decisions on the basis of fundamental Canadian constitutional and societal values is reinforced by the Supreme Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration) . In Baker, the Court noting that a ministerial discretionary decision made pursuant to a broadly worded statutory mandate is ordinarily entitled to a high level of deference from the courts, L’Heureux-Dube J wrote that there were, nonetheless, significant judicially enforceable limits where fundamental constitutional and societal values are at stake. She stated:

Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.

- L’Heureux-Dube J. found that the Minister’s decision failed to respect the values expressed in the international Convention on the Rights of the Child. The Convention had been signed by Canada, but not adopted in statutory form by Parliament

- If the values of an international convention not adopted in statute form by Parliament have a bearing on the validity of the exercise of ministerial discretion, it must be the case that failure to take into account a fundamental principle of the Constitution when purporting to act in the public interest renders a discretionary decision subject to judicial review.

- The Commission was required by statute to exercise its powers "with respect to Montfort “in accordance with the public interest”.

- In determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities.

- We agree with the Divisional Court that the language and culture of the francophone minority in Ontario “hold a special place in the Canadian fabric.

- There is little doubt that the Commission’s directions themselves are entitled to a high level of curial deference. However, as pointed out in Baker, deference “requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”.

- The Commission offered no justification for diminishing Montfort’s important linguistic, cultural, and educational role for the Franco-Ontarian minority. The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective.

- While the Commission is entitled to deference, deference does not protect decisions, purportedly taken in the public interest, that impinge on fundamental Canadian constitutional values without offering any justification.

- The Divisional Court, viewing the matter in purely administrative law terms, and without considering the relevance of the constitutional issues to the standard of review, found the standard to be patent unreasonableness.

- Where constitutional and quasi-constitutional rights or values are concerned, correctness or reasonableness will often be the appropriate standard.

- In the circumstances, detailed consideration of the appropriate standard of review is neither necessary nor appropriate as it is clear that the directions cannot survive even the most deferential standard because the Commission refused to take into account or give any weight to Montfort’s broader institutional role (in other words, refused to apply normative constitutional principles).

Delegated LegislationGovernor or Lieutenant Governor In CouncilThorne’s Hardware Ltd. v. Canada

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- Appellants argue that the Order in Council expanding the harbor limits on the basis that it was passed for the sole purpose of increasing revenue amounted to “bad faith” on the part of the Governor in Council.

- Dickson, writing for the Supreme Court, began first by affirming that just because a statutory power is vested in the Governor in Council (Cabinet) does not mean that it is beyond judicial review. Rather, both law and jurisdiction are within the ambit of judicial control and courts are entitled to see that statutory procedures have been properly complied with

- However, Dickson went on to say that it would take an egregious case to warrant such an action. He concluded that this was not such a case.

- In responding to the appellant’s argument that the Order in Council was made in bad faith, Dickson said that Government’s do not publish their reasons for decisions, nor are they expected to do so; and further, that it is well known that Government’s make partisan decisions anyway.

R v. Toohey, ex parte Northern Land Council- The validity of a regulation was challenged on the ground that it had been made for an improper

purpose, namely to defeat a land claim, and not for purposes related to land-use planning or development. The commissioner held that he could not examine the validity of the regulation on this ground

- The problem is partly a practical problem of proof. In one case there is the difficult of translating individual motives into objective purpose. In the other case there is the difficult of deducing from individual motives the conclusion that a collective opinion was not a bona fide held opinion.

- A legislative power, which is purposive, is, like any other statutory discretion, open to attack for purpose.

- Murphy J (dissenting): if delegated legislative power could be subjected to this gauntlet race, not only would legislation by delegation be impracticable, but the judicial power could be invoked, and no doubt would be invoked, to question a multitude of laws as to extend greatly the possibilities of conflict between the judicial and legislative branches.

From a practical perspective, an allegation of improper purpose by a multi-member deliberative body is likely to present difficult problems of proof. When the body in question is the Governor General in Council, the problem will normally be insuperable because the Canada Evidence Act, sec. 39, generally exempts from discovery any information that is certified by the clerk of the Privy Council as “a confidence of the Queen’s Privy Council”. This latter term is defined to include any document prepared for consideration by the Cabinet, Cabinet agenda, and a record of discussions. However, there is no such blanket immunity for the provinces, where the common law doctrine of public interest immunity applies.

Ministers and Independent Agencies The courts have not imposed the same doctrinal limitations on the scope of review of delegated legislation made by ministers and independent agencies as apparently apply to that made by Cabinets. However, in recognition of the role of ministerial responsibility as the constitutional mechanism for holding the exercise the governmental power accountable to the people, enabling statutes sometimes provide that delegated legislation made by an independent agency is subject to Cabinet approval.

Cox v. College of Optometrists of Ontario- Optometrist challenged an order made by the Committee to discipline him for a conflict of

interest. The College had a statutory power under the Health Disciplines Act to make regulations in relation to professional misconduct and conflict of interest, but it was subject to the approval of the Lieutenant Governor in Council (Cabinet) and with prior review of the Minister of Health. However, the Act did not define conflict of interest. Rather, another section of the Act

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gave the Discipline Committee of the College the power to define professional misconduct and conflict of interest, as it saw fit to do under a Regulation made thereunder.

- Thus, the Court held that the standard of review should be one of great deference. The reasons given for this conclusion were that (1) the Cabinet and the Minster had some level of oversight over the Colleges’ powers to make regulations relating to professional misconduct; (2) the Legislative Assembly, in not defining what constituted a “conflict of interest”, clearly sought to leave the definition to the College. The court concluded that this was a rational inference since what constitutes a “conflict of interest” in one profession may not necessarily constitute a conflict in another. As such, the courts must pay a great deal of deference to the College’s definition of conflict.

- The court stated, however, that the standard of review was correctness. This was so because the Act contained no privative clause, and it included a section which gave a reviewing court wide powers to correct any errors in the Committee’s judgment. However, even while reviewing at the standard of correctness, the court stated that it was not in a position to substitute its own definition of what constitutes a conflict of interest for that of the College’s since they were in a much better position, given their experience with the profession, to define what relationships, conduct, or arrangements constitute a conflict.

Municipal BylawsGrounds of Review: General Principles

Immeubles Port Louis Ltee v Lafontaine (Village)- The appellant brought an action in nullity in the Superior Court, arguing that a taxing bylaw was

null and void because the municipality had not given public notice of the bylaw as required by the Act

Ultra Vires: Its Various Manifestations- The expression means “outside the jurisdiction of” and may be synonymous with absolute nullity. - In this case, we must first distinguish between lack of jurisdiction, abuse of jurisdiction, and

excess jurisdiction.Lack of Jurisdiction

- A municipality, which is a creature of statute, has only the powers expressly delegated to it or resulting directly from powers so delegated.

- The lack of jurisdiction may relate to the subject matter, the territory or the person- However, the courts have extended judicial review under this heading by applying the concept of

ultra vires not only to conditions which govern the existence of the power to act, but also those relating to the way in which that power is exercised. Thus, actions committed in exercising that power could affect its jurisdiction.

Abuse of Power- A municipality must exercise its powers in accordance with the purpose sought by the legislature.- The illegality that results from this type of abuse results not from the breach of specific

provisions, but from limitations imposed by the courts on the discretionary power of government and affects the substance of the disputed decisions, since it is the reasons for the act which must be assessed.

Serious Illegalities which are not Mere Irregularities or Formal Defects- Other forms of illegality relied on in the courts deal with an organization’s failure to observe the

necessary formalities in exercising its power.- The infringement cited by the appellant in this case, appears to be of this nature.- Thus, illegalities which impair the substance of a proceeding or which affect a fundamental right

are open to a broader challenge than the breaches of formalities which can be cured using the enabling act itself.

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- Insufficient or defective notice may, thus, impair the essential validity of an act and affect the rights which the legislature sought to protect.

- In this case, the municipality’s power is limited by the statutory requirement that persons affected have a right to be heard.

- The court held that, while lack of notice was sufficient to render the bylaw ultra vires, the appellant was out of time.

Unreasonableness, Oppression, and Discrimination- In the case where a company carry on business for their own profit, although incidentally for the

public advantage is where the judiciary should act as a supreme guard against the unnecessary and unreasonable abuse of power against the public advantage.

- In most Canadian provinces, municipal bylaws are not reviewable for unreasonableness: Municipal Act, SO 2001, c.25, s.272; states that a bylaw passed in the exercise of statutory power and in good faith, shall not be held invalid for unreasonableness

- But that doesn’t mean that the courts have not tried to challenge certain bylaws.- Perhaps the most regularly used, and restrictive, legal rule limiting the exercise of legislative

powers by municipalities is that, in the words of Lord Russell in Kruse v. Johnson, bylaws must not be “partial and unequal in their operations between different classes”.

Montreal (City) v. Arcade Amusements Inc.- A company appealed against its conviction for allowing persons under the age of 18 to use its

amusements machines and to frequent its arcades, contrary to a municipal bylaw.- The city had the power to enact bylaws to prohibit or regulate the use of slot machines and, more

generally, to unsure peace, order and good government of the city.- The company complained that, in prohibiting only minors, the bylaw was discriminatory, and the

court agreed- Delivering its reasons for judgment, Beetz, speaking for the court, accepted that the bylaw had

been passed “to protect child from commercial exploitation and to prevent crime, purposes within the city’s “peace, order and good government” power.

- However, he relied on Kruse as authority for the proposition that bylaws are unreasonable:“…which are discriminatory in the non-pejorative but most neutral sense of the word, and which are rendered as invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouratism and malice.”

- In the absence of an express or necessarily implied statutory delegation of authority, Beetz said:

“… The sovereign legislator has reserved to itself the important power of limiting the rights and freedoms of individuals in accordance with such fine distinctions. The principle transcends the limits of administrative and municipal law. It is a principle of fundamental freedom.”

Shell Canada Products Ltd v. Vancouver (City)- McLachlin (dissenting): Discrimination itself is not forbidden. What is forbidden is

discrimination, which is beyond the municipality’s powers as defined by its empowering statute. - The appropriate question is whether discrimination is expressly or impliedly authorized.- Even if the act is limited to granting exclusive rights to do business, it may be triggered by the

Resolutions since their effect is to grant to other oil companies the power to do business with the City to the exclusion of Shell.

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- The Resolutions are framed as prohibitions on doing business with Shell but they do not indirectly have the effect of granting to some persons rights and privileges not enjoyed by all person’s in this case.

- Even if one defines the class affected as narrowly as fuel companies dealing with South Africa, the municipality is still engaged in intra-group discrimination since it was doing business with another oil company with South African ties.

Unreviewable Discretionary Powers?

Prerogative Powers and Non-Justiciability

Council of Civil Service Unions v. Minister for the Civil ServiceLord Scarman

- I concluded, therefore, that where a question as to the interest of national security arises in judicial proceedings the court has to act on the evidence.

- Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could, in the circumstances, reasonably have made.

- If the subject matter upon which the prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of statutory power.

- Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source, but its subject matter

Lord Diplock- To qualify as a subject for judicial review, the decision must have consequences which affect

some person (or body of persons). It must affect such person either:o 1 By altering rights or obligations of that person which are enforceable by or against

him in private lawo 2 By depriving him or some benefit or advantage which either:

A He had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment

B He has received assurance from the decision-maker that the benefit or advantage will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.

- Where the prerogative power is the source of the decision-making power, the power is confined to executive officers of central as distinct from local government and in constitutional practice is generally exercisable by those holding ministerial rank.

- In regards to the standard of review, while I see no reason to rule out “irrationality” as a ground for judicial review of a ministerial decision taken in the exercise of prerogative powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only soruce of the relevant decision-making power a decision of the kind that would be open through the judicial process upon this ground. This is because the reasons for the decision-making in taking

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one course rather than another, do not normally involve questions to which, if disrupted, the judicial process is adapted to provide the right answer

- Lord Diplock stated that a decision made under a prerogative power was, in most cases, subject to review for procedural impropriety – aka natural justice or procedural fairness.

Operation Dismantle Inc v. Canada- The appellants sought a declaration that the testing of cruise missiles in Canada, pursuant to an

agreement with the United States, violated their Charter rights not to be deprived of life, or security of the person other than in accordance with the principles of fundamental justice. Their argument was that the testing increased the risk of nuclear war and of an attack on Canada by nuclear weapons.

Dickson- To succeed at trial, the appellants would have to demonstrate that the testing of the missile would

cause an increase in the risk of nuclear war. It is precisely think link between the cabinet decision to permit the testing of missiles and the increased risk of nuclear war which, in my opinion, they cannot establish.

- Since the foreign policy decisions of independent states are not capable of prediction to any degree of certainty, the nature of such reactions can only be a matter of speculation. Thus, the causal link cannot be proven.

- Dickson went on to say that he agreed with Wilson that the executive branch of government is subject to the Charter.

- I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts.

- My concerns in the present case, however, focus on the impossibility of the court finding, on the basis of evidence, the connection, alleged by the appellants, between the duty of the government to act in accordance with the Charter, and the violation of their rights under sec. 7.

- Thus, it becomes unnecessary to consider sec. 7 of the Charter.

Black v. Canada (Prime Minister)- The main question in this appeal was whether the prerogative power exercised by the PM to

advise the Queen on the conferral of honours was reviewable at all in the courts.- Laskin, sitting the Federal Court of Appeal, first concluded that the proper test for the review of

the prerogative was a “subject matter” test (established in GCHQ), and at the core of the subject matter test lay justiciablity. He stated that subject matters of the prerogative ranged from the signing of treaties (not judicially reviewable apart from Charter claims) to, at the other end of the spectrum, the refusal of a passport (clearly judicially reviewable). In between lay subject matters such as the “honours prerogative”.

- As I see it, the action of the PM complained of is his giving advice to the Queen about the conferral of an honour on a Canadian citizen. In so doing, the PM was essentially communicating Canada’s policy on honours to the Queen and advised her against conferring it on Mr. Black.

- Thus, the refusal to grant an honour is far removed from the refusal to grant a passport, where important individual interests are at stake.

Public Interest Immunity: Cabinet Documents, the Common Law, and Legislation- At common law, the Crown may object to the discovery of documents in its possession or to

questions put to a witness, on the ground that disclosure of the information sought would be prejudicial to the public interest.

- However, claims to public interest immunity are subject to judicial review; the judge will balance the public interest in maintaining the confidentiality of the documents against the public interest

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in the due administration of justice. The judge may privately examine the documents in question – Carey v. Ontario

- However, sec. 39 of the Canada Evidence Act provides that when a federal minister of the Crown objects to the disclosure of information and certifies that the information constitutes “a confidence of the Queen’s Privy Council in Canada”, disclosure shall be refused without examination or hearing of the information by the court. This is probably the most important example of a discretionary power of government that is immune from judicial review.

Government Funding- In the absence of fraud or some other extreme circumstance, the governmental power to decide

whether to allocate public money to fund projects or organizations seems not to be subject to review in the courts at all.

Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation)- When the government changed after an election, the Minister announced that, for environmental

reasons, no more funds would be provided to complete the projection- On review, Judge Callaghan stated:

“… While it would appear that in basing its decision on environmental concerns the government is ignoring the statutory framework established to deal with environmental matters, this does not affects its jurisdiction to make the decision in question. Such a decision is not subject to judicial review. It is in substance a decision for the disbursement of public funds. It has been a constitutional principle of our parliamentary system for at least three centuries that such disbursement is within the authority of the Legislature alone. The appropriation, allocation or disbursement of such funds by a court is offensive to principle.”

Preclusive Clauses and the Abuse of Discretion- Sec. 39 of the Canada Evidence Act is a form of a preclusive clause, because it expressly removes

from judicial review the executive’s discretion to claim public interests immunity for certain kinds of documents.

- First, a legislature can effectively reduce the scope of judicial review by granting power to administrative agencies in the widest possible terms. However, in Sheehan, the Court of Appeal insisted that there must be some rational connection between the factors considered by the board, and the statutory purpose

- Second, the Charter effectively limits the breadth of the discretionary powers that can validly be given to agencies when making decisions that encroach on Charter protected rights.

- Third, a standard “no certiorari” clause will not protect from judicial review a decision of an administrative agency that is challenged on the ground that it was based on an exercise of discretion that was ultra vires or patently unreasonable. Moreover, a clause that purported to go further in precluding judicial review would fall foul to Crevier.

- Fourth, one form of preclusive clause that has sometimes been used to protect delegated legislation from judicial review provides that rules made under the enabling legislation shall have the same force and effect as if enacted in the Act. However, it should come as no surprise that the courts have read both of these clauses against the constitutional background that, in a parliamentary democracy, statutes should normally only be amended by the same legislative process through which they were originally enacted.

The “Private” Powers of Public Authorities- Normally public bodies also have the capacity to enter into contracts and to own and manage

property

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- Sometimes, these powers are expressly granted, or their exercise regulated, by statute, and the public authority must observe the statutory limits imposed, often, though, the powers are implied in the body’s constitutive statute.

- The principal theoretical objection to the extension of the principles of administrative law to decisions taken by public authorities in their “private” capacity has been the strong belief that public bodies should be subject to the same law as private individuals

- On the other hand, it can be said that since public bodies enjoy powers of contract and property, not to advance their own interests but for the benefit of the public, it is mistaken to assume that their exercise should be subject only to the law that was developed to regulate the conduct of private individuals acting on their own behalf. To draw a bight line between administrative action and contract overlooks the fact that contract can be an important tool for implementing public policy.

- The decision in Webb represents in the context of landlord and tenant a private law relationship being subject to public law duty of fairness.

- The issue has also arisen at the level of constitutional law. The Supreme Court has held that the Charter limits the exercise of discretion by a public body over property that it owns

Guidelines

Ainsley Financial Corporation v. Ontario Securities Commission- Non-statutory instruments, like guidelines, are not necessarily issued pursuant to any statutory

grant of power to issue such instruments. Rather, they are an administrative tool available to the regulator so that it can exercise its statutory authority and fulfill its regulatory mandate

- Nor are pronouncements which are true guidelines rendered invalid merely because they regulate, in the broadest sense, the conduct of those at whom they are directed.

- However, their limits must also be acknowledged. A non-statutory instrument can have no effect in the face of a contradictory statutory provision or regulation.

- Nor can a non-statutory instrument pre-empt the exercise of a regulator’s discretion in a particular case.

- Most importantly, a non-statutory instrument cannot impose mandatory requirements enforceable by sanction

Confining and Structuring DiscretionTheoretical discussions within book [pg 1053-1085]

RemediesGeneral Introduction There are three areas in particular where first instance courts are frequently faced with difficult remedial issues.

1) In the context of applications for interim or interlocutory relief to prevent governmental action (including the holdings of hearings) pending the determination of an application for judicial review.

2) There are arguments to the effect that the court, as a matter of discretion and irrespective of the merits of claim being advanced, should deny relief – for example, in cases where another potentially effective avenue of redress if available.

3) There are the continuing problems of standings or locus standi to seek judicial review

Key Questions That May Arise at the Remedial End of a Case:

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i) Are there alternatives other than recourse to the courts for resolving the matter in dispute? Are there potential choices that have to be made as between tribunals other than the courts? If so, what legal and practical considerations in the making of these choices?

ii) If resource to the courts appears to be the only indicated course of action, what is the nature of that recourse: judicial review or some other form of common law, equitable, or statutory remedy? Factors listed on pg. 1090

iii) If judicial review is the appropriate course of action, is the matter in dispute one that involves provincial or federal agencies. If federal does the application for judicial review have to be made to the Federal Court of Canada under the FCA?

iv) Within the options provided by the public law of judicial review, what is the nature of the relief that is needed? What are grounds on which relief is being sought?

v) Are there any limitations available on the scope of judicial review as manifested in leave to apply requirements, privative clauses, limitation periods and immunities from suit and testifying? What are the notice requirements?

vi) From the perspectives of procedure and evidence, is the matter one that is capable of satisfactory resolution based on affidavit evidence in the context of summary proceedings or is a trial-type process with via voice evidence more desirable?

vii) Is there a potential problem with the standing of the person seeking review?viii) Are there are any discretionary reasons that may cause a court to refuse the limit the relief

that is available? Is this affected by the ground on which judicial review is being sought and the species of relief that is being pursued?

Remedies for Unlawful Administrative Action: Their Scope and Their Limits

The Domain of Common Law Judicial ReviewRemedies Available:

i) Certiorari ii) Mandamus iii) Prohibition iv) Habeas Corpus

Government in the Conduct of Business

Volker Stevin NWT (1992) Ltd. v. Northwest Territories (Commissioner)- Under a directive, an advisory committee was established for the purpose of designating

businesses as “northern businesses” eligible for various forms of government incentives. The directive set out the criteria for qualifying as a “northern business”

- The advisory committee revoked the applicant’s designation as a “northern business”.- The applicant applied for an order in the nature of certiorari quashing that decision.- At first instance, the application was rejected. On appeal, however, it was granted

Power of Review- 1 Judicial review is available to review decisions, not only of public bodies exercising

statutory duties, but also of those administrative bodies which obtain authority from prerogative powers, since their decisions affect the rights of others.

- 2 The Committee, the business incentives policy and authority exercised by virtue of the policy go beyond mere decisions by civil servants regarding procurement of government funds. The Advisory Committee is a public body exercising a power which affects the status of business enterprise, and their ability to compete effectively in the Northwest Territories.

Application to Cast at Bar

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- While I agree with the chambers judge that purely commercial decisions relating to the procurement by government of goods and services generally do not fall within the class of cases which will be subjected to judicial review, the decisions here go beyond this category.

- The decision of the Advisory Committee to reject an application or to revoke a designation affects, not the individual contract, but the ability of the business to compete with others in contracting with the government generally, and with organizations funded by the government.

- The decision also affects the availability of financial assistance through government departments.- It is this aspect that brings in the public duty and fairness component.

Analysis- The threshold to the availability of the remedy is determined on the basis of the need for

procedural fairness, rather than procedural fairness entitlements being contingent on the technical rules governing the limits of the remedy sough.

“Voluntary” AssociationsR v. Halifax-Dartmouth Real Estate Board, ex parte Seaside Real Estate Ltd.

- The Halifax-Dartmouth Real Estate Board expelled Seaside from membership - After the Council’s decision, they raised another point. Namely that certiorari die not lie at all in

this particular case, because there was no duty imposed by statute in the interests of the community and in the nature of public jurisdiction to act judicially

- The court held that that matters affecting membership in a real estate board are not interests of the community. They affect the community just as do the disciplinary regulations of other professional societies.

Ripley v. Investment Dealers Association of Canada (No. 2)- The applicant in this case argued that although the IDA is a non-statutory domestic tribunal, it

performs a public function and thus it is an inferior court over which the court has some control by way of the prerogative remedy certiorari.

- The respondent submits that the IDA does not derive any authority form statute and it is not exercising any government function by either implied or explicit delegation of the legislature, and therefore, its Disciplinary Committee is not subject to certiorari for error of law on the face of the record.

- In deciding the case, the court cited the decision in Chyz v. Appraisal Institute of Canada with approval

“…a voluntary association is a private organization incorporated with share capital. While membership in the association is certainly and obviously important to any person practicing or working in the field of competence of the association, membership is voluntary… There is no evidence before me that lack of membership in the association would preclude an individual or business from carrying on their practice, however prestigious and helpful membership in the association might be in the way of qualification… Certiorari and prohibition, generally speaking, will not lie against a private body which derives its jurisdiction from the consent of its members banded together in a voluntary association.”

- In summary, then, I find that the IDA and its Disciplinary Committee are not subject to certiorari for error on the face of the record since its authority over its members and employees of members is derived solely from contract, and although the organization is recognized by Statute, it does not derive any authority to discipline its members from the Statute nor is it acting as an agent or delegate of the Crown in the exercise of its functions.

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The Impact of Statutory Remedial Regimes Federal Court Act, RSC 1985, c. F-7Any body or any person or persons having, exercising jurisdiction or powers conferred by or under an Act of Parliament or by under an order make pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.

In Prince Edward Island a similar statute exists; Judicial Review Act, SPEI 1988, c.35b) “application for judicial review” means an application to determine whether or not authority conferred on a tribunal by an enactment has been exercised in accordance with the enactment in respect to a decision of the tribunal in relation to the legal rights, powers, privileges, immunities, duties or liabilities of a person or the eligibility of a person to receive, or continue to receive, a benefit or license…

Excluded Public BodiesSuperior CourtsThe general immunity of such judges from prerogative relief exists even though the court acknowledged that this meant that the only way in which an order could be challenged was by way of proceeding immediately to the Supreme Court and seeking leave to appeal under section 40(1) of the Supreme Court Act.

The Crown- Until the advent of the Crown proceedings liability legislation in the second half of the 20th

century, the Crown was generally immune from the process of the Superior Courts.- In the domain of the prerogative writs, this immunity is one that now has little practical

significance. While the prerogative writs and their modern statutory equivalents may still not technically be available against the Crown in the sense of the Queen in right of Canada or the provinces, to the extent that the modern day powers of the Crown are in very large measure exercised by officials or agencies named in statutes, the restriction is generally avoided by naming the designated official as the respondent or defendant.

- Indeed, the definition of “federal board, commission or other tribunal” in the Federal Court Act now makes it clear that its judicial review provisions apply to persons “exercising or purporting to exercise jurisdiction or powers conferred by or under an order made pursuant to a prerogative of the Crown.

Injunctive Relief against the CrownCanada (Attorney General) v. Saskatchewan Water Corporation

- Applications were made for an interlocutory injunction halting construction of a dam by a crown corporation until such time as the principal issues between the parties could be determined

- The trial judge said the application for relief would equate to an award against the Crown. - On reversing the trial judge’s decision, the Court of Appeal drew on English criticisms of

Factortame to draw up the proper principles of the law governing Crown immunity. - To determine whether the Crown immunity attaches to a particular government person or

agency, one must look not only at who the person or agency is, but at what function or power the person or agency is exercising at the critical time. If it is a function or power of the Crown (Ex. Order in Council, proclamation or writ), the immunity attaches. However, if it is a function or power conferred by statute upon the person or the agency itself, immunity does not attach.

- In situations where the person or agency’s enabling statute seems to confer both an individual character, as well as a “Crown-character”, one must assess, again, what type of power is being used by the person or agency. For example, if the enabling statute states that certain types of

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decisions or actions taken by the person or agency are subject to the approval of the Governor in Council, but also states that the person or agency may enter into contracts in its own name, the Crown agent may be liable for the contracts on their own right, and may be so liable whether or not the words “on its own behalf” appear in the statute.

- It should be noted that the two other members of the Saskatchewan Court of Appeal, while agreeing in the result, did not espouse this approach in determining Crown liability.

Allocation of Review Authority: Federal Court of Canada and Provincial Superior CourtsJudicial Review jurisdiction in Canada is divided between the provincial superior courts and the Federal Court of Canada. In most instances, the choice as to whether to proceed in the Federal Court of Canada or the provincial superior courts will depend on whether the source of power or authority in question is federal or provincial in nature. However, this is not totally determinative in that the provincial superior courts will continue to possess jurisdiction over certain aspects of federal statutory regimes.

May v. Ferndale InstitutionHere, the Court of Appeal erred in barring access to habeas corpus as neither of the two recognized exceptions are applicable.  First, these cases involve administrative decisions in the prison context, not criminal convictions.  Second, Parliament has not enacted a complete, comprehensive and expert procedure for review of a decision affecting inmates’ confinements.  The language of the Corrections and Conditional Release Act (“CCRA”) and its regulations make it clear that Parliament did not intend to bar federal inmates’ access to habeas corpus.  The scheme of review and appeal which militates against the exercise of habeas corpus jurisdiction in the immigration context is substantially different from the grievance procedure provided in the CCRA.  Moreover, when the habeas corpus jurisdiction of provincial superior courts is assessed purposively, the relevant factors favor the concurrent jurisdiction approach.  This approach properly recognizes the importance of affording inmates a meaningful and significant access to justice in order to protect their liberty rights.  Timely judicial oversight, in which provincial superior courts must play a concurrent if not predominant role, is still necessary to safeguard the human rights and civil liberties of inmates, and to ensure that the rule of law applies within penitentiary walls. 

The inmates knew what the factors were, but did not know how values were assigned to them or how those values factored into the generation of the final score.  Since CSC concealed crucial information and violated in doing so its statutory duty of disclosure, the transfer decisions were made improperly.  They are, therefore, null and void for want of jurisdiction. 

Relevant Provisions of Federal Court ActFederal Court Act RSC 1985, c. F-7 (as amended by SC 1990, c.8)2(1) Federal board, commission or other tribunal means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under s.96 of the Constitution ActEntire Act on pg. 1133

Reza v. Canada- The Federal Court Trial Division refused him leave to seek judicial review of the denial of his

refugee status. After the refusal, Reza applied for declaratory and associated interlocutory relief from the Ontario Court (General Division). He asserted that various provisions of the Act were contrary to the Charter.

- The issue at heart here was whether the provincial superior court should decline to hear an application for a remedy under the Charter in deference to a prospective litigation of the issue in the Federal Court?

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- Arbour JA expressed the view that, assuming that both the Federal Court and the Ontario Court had jurisdiction, the prima facie choice of jurisdiction should have been that of the respondent. There should be no reason why the Ontario Court should defer to the expertise of the Federal Court since this was not an immigration case, but a constitutional one.

- Abella dissented and held that a categorical denial of a superior court judge’s discretion to decline to exercise jurisdiction in favor of a tribunal of concurrent jurisdiction was not warranted. She held that the discretion not only existed, but also should not have been interfered with as it was reasonably exercised.

Supreme Court Ruling- The Supreme Court agreed with Justice Abella. They held that there was no basis for interfering

with first instance judge’s decision to stay the proceedings.- Thus, The Ontario Court (General Division) and the Federal Court had concurrent jurisdiction to

hear the respondent’s application (because it was constitutional in nature), but that under sec. 106 of the Courts of Justice Act, any judge of the General Division had discretion to stay the proceedings.

- They held that Judge Ferrier properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum. Thus, since Ferrier took into account all relevant considerations in exercising his discretion to grant a stay, there was no basis for an appellate court to interfere with his decision.

The Federal Court Act’s Allocation of Jurisdiction as between the Federal Court and Provincial CourtsThe fact that the Federal Court was established with the objective of providing a special forum for the judicial review of federal statutory authorities does not mean that the court of necessity has jurisdiction over all such bodies. The Federal Court has jurisdiction over any particular federal statutory power depending on whether there has been a specific conferral of that jurisdiction either in the Federal Court Act or the legislation establishing that statutory authority.

- The Courts have held that unless the statute expressly provided otherwise, sec.96 court judges exercised all powers conferred on them by statute in their capacity as superior court judges and their decisions in such matters were not reviewable under the Federal Court Act.

- It has now also become clear that the provincial superior courts in the exercise of their inherent jurisdiction can issue interlocutory injunctions in aid of administrative process created by federal legislation

- Also the provincial courts may be involved in review of federal administrative action where there is a claim of damages against the federal Crown.

May v. Ferndale Institution(II) Facts and Judicial History

- Each of the appellants are prisoners serving life sentences for murder and/or manslaughter.- After varying periods of incarceration, the appellants became residents of Ferndale Institution, a

minimum security federal penitentiary located in British Columbia.- All five appellants were involuntarily transferred from Ferndale Institution to medium-security

institutions.

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- Consequently, the appellants filed grievances and also applied for habeas corpus relief with certiorari in aid directing the responsible correction officials to transfer them back to Ferndale Institution.

- The Supreme Court of British Columbia dismissed the habeas corpus application, and the British Columbia Court of Appeal also dismissed the appeal.

(III) Issues and Position of the Parties- These cases revolve around two core issues. First, whether the Supreme Court of British

Columbia should have declined habeas corpus jurisdiction – only concerned with the first.- The appellants argue that the jurisdiction of provincial superior courts to grant habeas corpus is

not affected by the fact that the unlawful detention results from a breach of relevant statutory and regulatory rules and of principles of natural justice by a federal authority. The applicant is entitled to choose the forum in which to challenge unlawful restrictions of liberty in the prison context.

- On the other hand, the respondents submit that the Court of Appeal did not err in holding that the lower court should have declined habeas corpus jurisdiction in the instant case. Habeas corpus jurisdiction should be assessed purposively, in view of the comprehensive statutory schemes that provide effective comparable remedies.

(IV) Analysis(A) Did the Superior Court of British Columbia Properly Exercise Its Habeas Corpus Jurisdiction?- Accordingly, we will review and discuss five subjects: (1) the nature of habeas corpus; (2)

the Miller, Cardinal and Morin trilogy, and the concurrent jurisdiction of the superior courts and of the Federal Court; (3) the rise of a limited discretion of superior courts to decline to exercise their habeas corpus jurisdiction;

(1) The Nature of Habeas Corpus- Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the

Charter: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (sec. 7); and (2) the right not to be arbitrarily detained or imprisoned (sec. 9)

- In Martineau v. Matsqui Institution Disciplinary Board, Dickson J (as he then was) laid the cornerstone for the modern theory and practice of judicial review of correctional decisions. Dickson J made it clear that “certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interest, property, privileges, or liberties of any person”, including prisoners.

(2) The Miller, Cardinal and Morin Trilogy and the Concurrent Jurisdiction of the Superior Courts and the Federal Court

- In 1985, in the trilogy of Miller, Cardinal, and Morin, the Court expanded the scope of habeas corpus by making the writ available to free inmates from restrictive forms of custody within an institution, without releasing the inmate. Habeas corpus could thus free inmates from a “prison within a prison”.

- In Miller, Le Dain J, writing for the Court, concluded “that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by sec 2 of the Federal Court Act”.

(3) The Emergence of a Limited Discretion to Decline Jurisdiction- Historically, the writ of habeas corpus has never been a discretionary remedy. It is issued as of

right, where the applicant successfully challenges the legality of the detention. Thus, as a matter of general principle, habeas corpus jurisdiction should not be declined merely because of the existence of an alternative remedy.

- However, in consideration of the development of various forms of judicial review and of rights of appeal in the law of civil and criminal procedure, questions have arisen as to the proper scope of the traditional writ of habeas corpus and about the existence of a discretion of superior courts to

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decline jurisdiction. Courts have sometimes refused to grant relief in the form of habeas corpus because an appeal or another statutory route to a court was thought to be more appropriate. These situations have primarily arisen in two different contexts

- First, in the criminal context, habeas corpus cannot be used to challenge the legality of a conviction. The remedy of habeas corpus is not a substitute for the exercise by prisoners of their right of appeal. Our Court reaffirmed this in R. v. Gamble. In Gamble, Wilson J, writing for the majority, and referring to the criminal process, she confirmed that:

Under sec. 24(1) of the Charter, courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process, but neither should they bind themselves by overly rigid rules about the availability of habeas corpus which may have the effect of denying applicants access to courts to obtain Charter relief.

- A second limitation to the scope of habeas corpus has gradually developed in the field of immigration law. It is now well established that courts have a limited discretion to refuse to entertain applications for prerogative relief in immigration matters:  Peiroo v. Canada (Minister of Employment and Immigration). In the words of Catzman J.A. in Peiroo:

Parliament has established in the Immigration Act, which is a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act… In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the Supreme Court of Ontario, it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus.

Similarly, in Idziak v. Canada (Minister of Justice), the decisive issue was whether Parliament had created with respect to extradition a comprehensive statutory scheme similar to the scheme created by Parliament for immigration matters. The Court held that it had not. Accordingly, there was no reason for provincial superior courts to decline to exercise their habeas corpus jurisdiction.

- To sum up: o 1 The jurisprudence of this Court establishes that prisoners may choose to challenge

the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review.

o 2 As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. 

o 3 Habeas corpus jurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court.

o 4 Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its habeas corpus jurisdiction.

A For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be, habeas corpus will not be available (i.e. Gamble). 

B Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision (i.e. Peiroo).

As between Federal Court – Trial Division and Court of AppealThe allocation of jurisdiction is now much more sensibly effective by the listing in sec. 28 of the Federal Court Act of those that are subject to the initial review jurisdiction of the Federal Court of Appeal leaving all other decision makers covered by the Act to the Federal Court – Trail Division.

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Claims for Damages in Federal CourtWhile all applications for judicial review in the Federal Court are now commenced by way of application (18.1), claims for damages against the Crown and federal statutory authorities must still be commenced by way of action. This seems to preclude the joining of proceedings for judicial review and damages in relation to exercises of federal statutory powers.

Modes of ReliefStatutory Appeals

- It should be recognized that the most common way of challenging administrative action is by the huge variety of statutory appeals that exist in individual statutes creating specific tribunals, agencies, and statutory powers.

- Not only may a statute provide for a more extensive mode of relief then allowed for under the principles of judicial review but also you may be expected to use that avenue of recourse even where its reach is the same as, or in some cases even narrower than, that of judicial review

Judicial ReviewCollateral Attack

- This is where the validity of an order is not the direct target of the proceedings. (Cooper)- The Supreme Court has made it clear that collateral attacks are not a matter of right and should be

carefully circumscribed by the use of judicial discretion (Consolidated Mayburn)

Direct Attack- Sec.2 of the Federal Court Act creates a single application for judicial review comprehending the

reach of the existing remedies of judicial review and apparently serving as a replacement for those remedies.

- In large measure the species of relief specified in this modern legislation do no more than codify the remedial outcomes of a successful application for the former remedies – certiorari quashed or nullified; prohibition and the injunction prohibited or enjoined; mandamus directed the performance of duties; and the declarations declared rights.

- Of course, such statutory reforms or codes have not meant the disappearance of all remedial problems and uncertainties. They suffer generally from the defect that the new judicial review remedy cannot be linked with a claim for monetary relief. Such claims still have to be commenced separately in the context of an action for damages or a claim in restitution.

Effect of the Grant of Certiorari-Type Relief- In some instances the award of relief in the nature of certiorari or prohibition (or a declaration or

an injunction for that matter) will have the effect of leaving the authority under attack with no residual jurisdiction in the matter.

- However, judicial review does not always undermine the whole authority of the decision maker under attack. Thus, the quashing of a certification on the basis of the impropriety of a pre-hearing vote in Re Little Narrows Gypsum Co. Ltd did not bring into question the general jurisdiction of the board to consider the application of the bargaining unit for certification.

- In Gill v. Canada (Minister of Employment and Immigration), an Immigration Appeal Board decision was set aside and the matter referred back to it where the board had decided that it did not have authority to reopen a Convention refugee hearing that had been tainted by breaches of the rules of natural justice, sec. 2(e) of the Bill and sec. 7 of the Charter. However, the Federal Court of Appeal held that even absent a specific statutory authority to reopen or rehear a case, a tribunal in such circumstances had the implied authority to do so and rectify such wrongs.

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- In Brett v. Ontario (Board of Directors of Physiotherapy), the Ontario Court of Appeal, while conceding that a tribunal might theoretically be entitled to rehear a matter without a direction from the court following a setting aside of its original decision, any such reassertion of jurisdiction would be subject to subsequent judicial review and “severe penalties by way of costs”.

Limits on Relief in the Nature of MandamusKaravos v. City of TorontoMandamus is appropriate to overcome the inaction or misconduct of persons charged with the performances of duties of a public nature but before the remedy can be given, the applicant for it must show:

1) “A clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced.”

2) “The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform.”

3) That duty must be purely ministerial in nature, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers.

4) There must be a demand and refusal to perform the act, which it is sought to coerce by legal remedy.

Definitions of above categories- Ministerial – should include both administrative as well as judicial and quasi-judicial functions- Public – not all powers created by statute can be considered “public” for the purposes of judicial

review – note the Halifax-Dartmouth Real Estate Board case.- Clear Legal Right to Perform the Duty – includes individual persons, but also may include a

wider class of person, as a result of the liberalization of standing requirements.- Duties – it should be noted that not all statutory provisions stated in terms of “duties” will give

rise to a claim of enforcement. Sometimes they will be stated at such a level of generality as to make it clear that the provision is for the guidance of the statutory authority, and is not intended to confer rights on members of the public.

Mandamus is sometimes sought in conjunction with certiorari: certiorari to quash a decision already taken, and mandamus to compel its retaking in accordance with the law.

Interim and Interlocutory Relief and Stays of ProceedingsIntroduction

- In the modern judicial review regimes, express provision is made for the award of interim relief pending the disposition of an application for judicial review.

- These provisions overcome an apparent limitation of the prerogative remedies – interim relief was not available as an adjunct to the seeking of such relief

- This seemingly obliges those needing interim relief to proceed by way of an action for an injunction, as opposed to the seeking of a prerogative writ.

- However, some courts have asserted the availability of an application to stay proceedings.- In general, the availability of interim relief, whether in the form of a stay or interlocutory

injunction or under the relevant judicial review procedure legislation or rules, tends to be subject to the same general principles that govern the availability of interim injunctions in the private domain

- However, the public interest in the efficient and timely exercise of statutory power looms as an explicit consideration in the balancing of the various interests involved and serves to differentiate these kinds of cases from most situations in which interlocutory relief is sought in private litigation.

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- Moreover, in many cases, there is also the added dimension of Charter interests being at stake, which serves to add a countervailing consideration in the exercise of the court’s discretion over the availability of such relief.

- However, in recent years, another potential use of interlocutory relief has emerged; namely, the seeking of interlocutory relief to prevent actions being taken by those subject to that process pending the conclusion of a hearing or investigation.

Staying the Administrative ProcessManitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.

(1) The Usual Conditions for the Granting of a Stay- A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence

of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules.

- I propose to give an outline of the three main tests currently applied- The first test is a preliminary and tentative assessment of the merits of the case. The House of Lords,

in American Cyanamid Co. v. Ethicon Ltd., held that all that was necessary to meet this test was to satisfy the Court that there was a serious question to be tried as opposed to a frivolous or vexatious claim.

- The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages.

- The third test, called the balance of convenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

(2) The Balance of Convenience and the Public Interest- A review of the case law indicates that, unless the public interest is also taken into consideration in

evaluating the balance of convenience, courts very often express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the merits. The following are reasons why:

(i) Difficulty or Impossibility to Decide the Merits at the Interlocutory Stage- First, the extent and exact meaning of the rights guaranteed by the Charter are often far from clear

and the interlocutory procedure rarely enables a motion judge to ascertain these crucial questions.- Second, in Charter cases, the factual situation as well as the law may be so uncertain at the

interlocutory stage as to prevent the court from forming even a tentative opinion on the case of the plaintiff.

- Third, in many Charter cases such as the case at bar, some party may find it necessary or prudent to adduce evidence tending to establish that the impugned provision, although prima facie in violation of a guaranteed right or freedom, can be saved under sec. 1 of the Charter. But evidence adduced pursuant to sec. 1 of the Charter essentially addresses the merits of the case – which should not be addressed in a hearing of this kind.

- However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate sec. 2(a) of the Charter, could not possibly be saved under sec. 1 of the Charter and might perhaps be struck down right away.

(ii) The Consequences of Granting a Stay in Constitutional Cases- Either (1) the law enforcement agency is enjoined from enforcing the impugned provisions in all

respects until the question of their validity has been finally determined, or (2) the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant or

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litigants who request the granting of a stay. The first branch of the alternative can be referred to as a suspension case. The second branch of the alternative can be called an exemption case.

- Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted are generally passed for the common good.

- The question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves.

(iii) Conclusion- Suspension cases and exemption cases are governed by the same basic rule according to which, in

constitutional litigation, an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in the balance of convenience and weighted together with the interest of private litigants.

- The reason why exemption cases are assimilated to suspension cases is the precedential value, in that to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case.

- I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. That is also the rule even where there is a prima facie case against the enforcement agency, such as one which would require the coming into play of sec. 1 of the Charter.

- I should point out that I would have reached the same conclusion had sec. 24 of the Charter been relied upon by counsel – assuming for the purpose of the discussion that this provision applies to interlocutory relief.

RJR-MacDonald Ltd v. A.G. of Canada- The Supreme Court made clear that indeed American Cyanamid provided the general test for the

availability of interlocutory relief in Canada, be it in the private or the public law domain.- However, the court acknowledged two exceptions to the American Cyanamid test:

o 1 Where the result of the interlocutory proceedings would effectively resolve the matter in dispute

o 2 Where the question of constitutionality presented itself as a simple question of law alone

- The court then went on to refine what the concept of “irreparable harm” meant in a public law setting. They held that, while damages had been awarded in Charter cases under sec. 24(1), it will still be impossible in most cases for a judge on an interlocutory application to determine whether adequate compensation could be obtained at trial. Therefore, until further case law develops on the area, it is appropriate to assume that the financial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutes irreparable harm.

- Next, the court built on Justice Beetz’s identification of how the public interest should be dealt with in this kind of Charter litigation. They stated that the Attorney General is not the exclusive representative of a monolithic public in Charter disputes, nor does the applicant always represent only an individualized claim. Most often, the applicant can also claim to represent one vision of the “public interest”.

Injunctions in Aid of the Administrative Process

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On occasion, administrative tribunals are given authority to make interim rulings pending the disposition of a matter that is before it. What happens if there is no such explicit power?

Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd.

- At issue in this case was whether the B.C. Supreme Court had jurisdiction to award an interlocutory injunction restraining an employer from implementing a change to work schedules pending the outcome of the arbitration of a union grievance brought under the collective agreement.

(IV) Points in Issue- 1 Do the superior courts in British Columbia have jurisdiction to issue injunctions in

connection with disputes between federally regulated employers and employees concerning the interpretation, application, administration or alleged contravention or collective agreements?

- 2 Can the superior courts in British Columbia issue interlocutory injunctions in circumstances where there is no cause of action to which the injunction is ancillary?

- It was established in St. Anne that where no adequate alternative remedy exists the courts retain a residual discretionary power to grant interlocutory relief such as injunctions, a power that flows from the inherent jurisdiction of the courts over interlocutory matters.

(V) Analysis(A) Jurisdiction of the Superior Courts in B.C. to grant an Injunction

- The governing principle on this issue is that notwithstanding the existence of a comprehensive Code for settling labour disputes, where “no adequate alternative remedy exists”, the courts retain a residual discretionary power to grant interlocutory relief

- The residual discretionary jurisdiction in courts of inherent jurisdiction to grant relief not available under the statutory arbitration scheme was most recently affirmed by the Supreme Court in Weber v. Ontario Hydro.

- Thus, the first question is whether the Canada Labour Code provides an adequate remedy for the claim raised before the B.C. Supreme Court.

- It is not disputed that the collective agreement and the machinery provided under the Code provided no means to secure the postponement of implementation of the new schedule.

- The B.C. Supreme Court, by sec. 36 of the Law and Equity Act, is empowered to grant interlocutory injunctions such as that which the union sought in the exercise of its inherent jurisdiction.

- Additionally, in Weber, the court affirmed that deference to labour tribunals and exclusivity of jurisdiction to an arbitrator are not inconsistent with a residual jurisdiction in the courts to grant relief unavailable under the statutory labour scheme.

(B) Need for an Underlying Cause of Action- The appellant employer submits that a court has power to grant an interim injunction only as an

adjunct to a cause of action properly instituted in the court. It contends that the jurisdiction to grant interim injunctions under sec. 35 of the Act is ancillary to and dependent upon a claim for final relief to the court from which the interim relief is sough.

- However, the House of Lords in Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd. categorically rejected the submission that to grant interim relief, the courts must have jurisdiction over the cause of action.

- Canadian courts have since applied Channel Tunnel for the proposition that the courts have jurisdiction to grant an injunction where there is a justiciable right, wherever that right may fall to be determined.

Canada (Human Rights Commission) v. Canadian Liberty Net

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- In this case, the Federal Court – Trial Division had issued an interlocutory injunction at the suit of the Canadian Human Rights Commission.

- However, unlike the situation of the B.C. Supreme Court, the Federal Court was a statutory court with no inherent jurisdiction. However, the Supreme Court find a concurrent jurisdiction in sec. 44 of the Federal Court Act.

- The court then went on to deal with whether, as a matter of discretion, the Federal Court – Trail Division should have issued an interlocutory injunction in a case involving potential violations of freedom of speech as enshrined by the Charter.

Second Question: Was the Exercise of Jurisdiction Appropriate?- In my view, the Cyanamid test is inappropriate to the circumstances presented here. The

main reason for this is that Cyanamid involved the commercial context in which the criteria of “balance of convenience” and “irreparable harm” had some measureable meaning and which varied form case to case.

- Moreover, where expression is unmixed with some other commercial purpose of activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression. The reason for this is that the speaker usually has no tangible or measureable interest other than the expression itself, where as the party seeking the injunction will almost always have such an interest.

- The Cyanamid test has been rejected in relation to an interlocutory injunction in the context of defamation. The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify (truth/justification) the statements complained of, unless the plaintiff can satisfy the court that the interlocutory stage that the words are both clearly defamatory and impossible to justify.

Chapter 14: StandingThe chapter is principally concerned with standing to seek judicial review of administrative action. What are the limitations on the bringing of judicial review applications by individuals and groups concerned with apparently unlawful administrative action?

- Mere strangers could seek certiorari and prohibition but the court possessed an overriding discretion to refuse relief at the suit of such a person.

- For mandamus, the person seeking the remedy had to be a person to whom performance of the duty was owed or, in terms of more recent authority, someone sufficiently interested in its performance.

- When declaratory and injunctive relief were being sought, the plaintiffs were required to show interference with a private right of theirs or, when the interference was with public rights, to show that they would be affected or suffer loss over and above other members of the community. Otherwise, the only appropriate plaintiff was the attorney general.

- The Supreme Court began to liberalize the requirements for standing in the constitutional law arena and eventually we saw the question in relation to administrative law reach the Supreme Court.

- The growth of various public interest groups led to a demand to be recognized as not only having the right to participate in regulatory process, but also to challenge the outcome of those process in the courts whether by way of statutory appeal or judicial review.

- Generally, the attempts to secure recognition in judicial review proceedings took one of two forms. One was the group itself commenced the proceedings asserting the collective interest, or the second was the group sponsored an individual, presumably with a recognized interest. Initially, the first method proved risky and the second much more safe.

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- However, the courts’ attitude began to change. The most significant development were the decisions of the Supreme Court in Thorson v. A.G. of Canada, Nova Scotia Board of Censors v. McNeil and Minister of Justice of Canada v. Borowski. Each of these cases involved attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers. For example, Thorson was mounting an attack on the validity of the Official Languages Act. In each case, the Supreme Court upheld the applicant’s status to commence the particular declaratory proceedings and, more generally, the court held that judges had a broad discretion, at least in constitutional matters, to allow proceedings to be commenced by private individuals with no particular stake.

Finlay v. Canada (Minister of Finance)II

- The issue of standing in this appeal, as I conceive it, may be approached by asking the following questions:

o 1 Does the respondent have a sufficient personal interest in the legality of the federal cost sharing payments to bring him within the general requirement for standing to challenge an exercise of statutory authority by an action for a declaration or an injunction?

o 2 If not, does the Court have discretion to recognize public interest standing in the circumstances of the present case?

III- The nature of the interest required by a private individual for standing to sue for declaratory or

injunctive relief where, as in the present case, a question of public right or interest is raised, has been defined with reference to the role of the Attorney General as the guardian of public rights.

- Thorson , McNeil and Borowski represent a departure from or exception to that general rule, but before considering their application in the present case it is necessary to consider whether the respondent has a sufficient interest in the legality of the federal cost-sharing payments to bring him within the general rule.

- The statement of the rule that has been most often cited is that of Buckley J. in Boyce v. Paddington Borough Council. Buckley J. stated the rule as follows:

A plaintiff can sue without joining the Attorney General in two cases: first, where the interference with the public right is such that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of the premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

- The "private right" referred to by Buckley J has been said to be "a right the invasion of which gives rise to an actionable wrong within the categories of private law. The exception for private rights applies not only to common law rights but to a right created by statute for the benefit of a plaintiff.

- The nature of the interest reflected by the words "special damage peculiar to himself" in the second exception in Boyce has been variously characterized. In Cowan, in which the standing requirement laid down in Boyce was applied by the Ontario Court of Appeal, Schroeder J.A. said:

A plaintiff, in attempting to restrain, control or confine within proper limits, the act of a public or quasi-public body which affects the public generally, is an outsider unless he has sustained special damage or can show that he has some "special interest, private interest, or sufficient interest". These are terms which are found in the law of nuisance but they have been introduced into cases which also involve an alleged lack of authority. Therefore, in an action where it is alleged that a public or quasi-public body has exceeded or abused its authority in such a manner as to affect the public, whether a nuisance be involved or not,

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the right of the individual to bring the action will accrue as it accrues in cases of nuisance on proof that he is more particularly affected than other people.

- The respondent argues that it is the federal failure to insist on provincial compliance with the conditions and undertakings imposed by the Plan that permits or encourages such continued non-compliance by the province. What the respondent seeks by a declaration that the federal payments are illegal and an injunction to stop them is to compel the province to comply with the conditions and undertakings imposed by the Plan.

- Counsel for the appellants contended that there was an insufficient "nexus" between the alleged provincial non-compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal payments to satisfy the general requirement for standing to bring an action for a declaration.

- I am of the opinion that a requirement of directness or causal relationship between the alleged prejudice or grievance and the challenged action is implicit in the notions of interference with private right and special damage.

- I am of the view that the relationship between the prejudice allegedly caused to the respondent by the provincial non-compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal payments is too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule.

- It is accordingly necessary to consider whether the respondent should be recognized as having standing, as a matter of judicial discretion, by application of the principle or approach reflected in the decisions of this Court in Thorson, McNeil and Borowski,

- In my view, an affirmative answer should be given to this question.- The traditional judicial concerns about the expansion of public interest standing may be

summarized as follows: o (1) The concern about the allocation of scarce judicial resources and the need to screen

out the mere busybody; o (2) The concern that in the determination of issues the courts should have the benefit of

the contending points of view of those most directly affected by them; and o (3) The concern about the proper role of the courts and their constitutional

relationship to the other branches of government.- The concern about the proper role of the courts and their constitutional relationship to the other

branches of government is addressed by the requirement of justiciability. The requirement of justiciability was considered by this Court in Operation Dismantle Inc. v. The Queen. In that case, the court affirmed that where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government. The particular issues of provincial non-compliance raised by the respondent's statement of claim are questions of law and as such clearly justiciable.

- The judicial concern about the allocation of scarce judicial resources and the need to screen out the mere busybody is addressed by the requirements affirmed in Borowski that there be a serious issue raised and that a citizen have a genuine interest in the issue. I think the respondent meets both of these requirements. The status of the respondent as a person in need within the contemplation of the Plan who complains of having been prejudiced by the alleged provincial non-compliance shows that he is a person with a genuine interest.

- The judicial concern that in the determination of an issue a court should have the benefit of the contending views of the persons most directly affected by the issue – a consideration that was particularly emphasized by Laskin C.J. in Borowski – is addressed by the requirement affirmed in Borowski that there be no other reasonable and effective manner in which the issue may be brought before a court. In Borowski, the majority and the minority differed on the question whether there was anyone with a more direct interest than the plaintiff who would be likely to challenge the

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legislation. Here it is quite clear from the nature of the legislation in issue that there could be no one with a more direct interest than the plaintiff. In so far as a prior request to the Attorney General to intervene might be considered to be necessary I do not think it should be regarded as necessary in a case such as this one, where it is clear from the position adopted by the Attorney General in the case that he would not have consented to the institution of proceedings.

- For all of these reasons I am of the opinion that the respondent should be recognized as having standing.

Conclusion- The general rule respecting standing to seek a declaration or an injunction, to which I have referred

above, has generally been regarded as essentially the same for the two forms of relief – that is, declaration and injunction.

- I can see no sound reason why the exceptional recognition of public interest standing, as a matter of judicial discretion, which is being affirmed in these reasons should not apply to injunctive as well as declaratory relief.

- Whether a plaintiff should be granted either declaratory relief or injunctive relief in a particular case is a matter of judicial discretion to be exercised according to criteria and considerations which are somewhat different for the two forms of relief.

- In the exercise of that discretion in the present case, consideration would have to be given to the role of injunction as a public law remedy, including the question whether it will lie against Ministers of the Crown. Those are questions to be left to the trial court.

- The respondent should in my opinion be recognized as having standing to seek the injunctive relief prayed for in his statement of claim.

Public Interest StandingIn the context of Charter challenges, the Supreme Court revisited the issue of public interest standing and the discretionary considerations identified by Justice Le Dain in Finlay. In particular, the focus has tended to be on the question whether there is a more appropriate litigant of the issues than the individual or public interest group bringing the cause of action.

Canadian Council of Churches v. Canada (Minister of Immigration)Factual Background

- The Canadian Council of Churches (the Council), a federal corporation, represents the interests of a broad group of member churches.

- The Council together with other interested organizations has created an organization known as the Concerned Delegation of Church, Legal, Medical and Humanitarian Organizations. Through this body the Council has commented on the development of refugee policy and procedures both in this country and in others.

- In 1988, the Parliament of Canada passed amendments to the Immigration Act. The amended act changed the procedures for determining whether applicants come within the definition of a Convention Refugee.

- The day after the amended act came into force, the Council commenced this action, seeking a declaration that many if not most of the amended provisions violated the Charter and the Bill of Rights. 

- The Attorney General of Canada brought a motion to strike out the claim on the basis that the Council did not have standing to bring the action and had not demonstrated a cause of action.

Issues- The principal question to be resolved is whether the Federal Court of Appeal erred in holding that the

Canadian Council of Churches should be denied standing to challenge many of the provisions of the Immigration Act.

The Question of Standing in Canada

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- Courts play an important role in our society. If they are to continue to do so care must be taken to ensure that judicial resources are not overextended. This is a factor that will always have to be placed in the balance when consideration is given to extending standing.

- On the other hand there can be no doubt that the complexity of society has spawned ever more complex issues for resolution by the courts.

- In Borowski, Martland J set forth the conditions which a plaintiff must satisfy in order to be granted standing:

…to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.

- Those then were the conditions which had to be met in 1981. In 1982, with the passage of the Charter, there was for the first time a restraint placed on the sovereignty of Parliament to pass legislation that fell within its jurisdiction. 

Should the Current Test for Public Interest Standing be Extended- It is essential that a balance be struck between ensuring access to the courts and preserving judicial

resources.- The whole purpose of granting status is to prevent the immunization of legislation or public acts

from any challenge. - The granting of public interest standing is not required when, on a balance of probabilities, it

can be shown that the measure will be subject to attack by a private litigant. - The principles for granting public standing set forth by this Court need not and should not be

expanded because the decision whether to grant status is a discretionary one with all that that designation implies.

- Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.

The Application of the Principles for Public Interest Standing to this Case- When public interest standing is sought, consideration must be given to three aspects. 

o First, is there a serious issue raised as to the invalidity of legislation in question?  o Second, has it been established that the plaintiff is directly affected by the legislation or if

not does the plaintiff have a genuine interest in its validity?  o Third, is there another reasonable and effective way to bring the issue before the court?

(1) Serious Issue of Invalidity- The statement of claim makes a wide sweeping and somewhat disjointed attack upon most of the

multitudinous amendments to the Immigration Act. Some of the allegations are so hypothetical in nature that it would be impossible for any court to make a determination with regard to them.

- However, I am prepared to accept that some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation.

(2) Has the Plaintiff Demonstrated a Genuine Interest?- There can be no doubt that the applicant has satisfied this part of the test. The Council enjoys the

highest possible reputation and has demonstrated a real and continuing interest in the problems of the refugees and immigrants.

(3)Whether there is Another Reasonable and Effective Way to Bring the Issue Before the Court- It is this third issue that gives rise to the real difficulty in this case. - The challenged legislation directly affects all refugee claimants in this country. Each one of

them has standing to initiate a constitutional challenge.- The applicant Council recognizes argues that the disadvantages which refugees face as a group

preclude their effective use of access to the court. - I cannot accept that submission.

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- The Federal Court of Appeal has a wide experience in this field. MacGuigan J.A., writing for the court, took judicial notice of the fact that refugee claimants were bringing forward claims akin to those brought by the Council on a daily basis.

- It is clear therefore that many refugee claimants can and have appealed administrative decisions under the statute.

- The appellant also argued that the possibility of the imposition of a 72-hour removal order against refugee claimants undermines their ability to challenge the legislative scheme. 

- I cannot accept that contention. - It is clear that the Federal Court has jurisdiction to grant injunctive relief against a removal

order. Further, from the information submitted by the respondents it is evident that persons submitting claims to refugee status in Canada are in no danger of early or speedy removal since it required an average of five months for a claim to be considered at the initial "credible basis" hearing. 

- It is therefore clear that in the ordinary case there is more than adequate time for a claimant to prepare to litigate the possible rejection of the claim.

- From the material presented, it is clear that individual claimants for refugee status, who have every right to challenge the legislation, have in fact done so. There are, therefore, other reasonable methods of bringing the matter before the Court. On this ground the applicant Council must fail.

- It must be remembered that the basic purpose for allowing public interest standing is to ensure that legislation is not immunized from challenge. Here there is no such immunization as plaintiff refugee claimants are challenging the legislation. Thus, the very rationale for the public interest litigation party disappears.

Lexogest Inc. v. A.G. of Manitoba - This case involved a challenge to the validity of a Manitoba regulation restricting health

insurance coverage for abortions to those performed in public hospitals.- A corporation owning an operating an abortion clinic in Winnipeg and two of the physicians

employed at that clinic challenged the regulation on both administrative and constitutional law grounds.

- The Court of Appeal had no difficulty in according them standing to raise the administrative ultra vires issue – it directly impacts on their entitlement to payment for a required medical service. However, it rejected their standing to raise Constitutional and Charter issues; these could be brought more effectively to the court’s attention on the initiative of the patients affected by it.

Vriend v. Alberta- Vriend and three homo organizations sought a declaration that the omission of sexual orientation

from the list of proscribed species of discrimination was contrary to sec.15 of the Charter. However, they did not confine their challenge to the employment provisions of the Act, but sought to raise the issue generally in relation to all provisions in the Act spelling out the proscribed species of discrimination.

- The respondent challenged their standing to make such a broad challenge. (A) Standing

- The respondents on this appeal submitted that the appellants should have standing to challenge only the sections of the IRPA relating to employment since the factual background of the case involves discrimination in employment.

- In Canadian Council of Churches, it was held that three aspects should be considered:o 1 Is there a serious issue as to the invalidity of legislation in question?o 2 Has it been established that the plaintiff is directly affected by the legislation or, if

not, does the plaintiff have a genuine interest in its validity?o 3 Is there another reasonable and effective way to bring the issue before the court?

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- It is my opinion that these criteria are met with respect to all of the provisions named by the appellants.

- A serious issue as to the constitutional validity is raised with respect to all of these provisions. The issue is substantially the same for all of the provisions from which sexual orientation is excluded as a prohibited ground of discrimination.

- Further, Vriend and the other appellants have a genuine and valid interest in all of the provisions they seek to challenge. Both Vriend as an individual and the appellant organization have a direct interest in the exclusion of sexual orientation from all forms of discrimination. Insofar as the particular situation and factual background of the appellant Vriend is relevant to establishing the issues on appeal, it is the denial of access to the complaint procedures of the Alberta Human Rights Commission that is the essential element of this case and not his dismissal from King’s College. Likewise the appellant organizations; there is nothing to restrict their involvement in this appeal to matters of employment.

- With respect to the third criterion, the only other way the issue could be brought before the court with respect to the other sections would be to wait until someone is discriminated against on the ground of sexual orientation in housing, goods and services, etc. and challenge the validity of the provision in each appropriate case This would not only be wasteful of judicial resources, but also unfair in that it would impose burdens of delay, cost and personal vulnerability to discrimination for the individuals involved in this eventual cases.

Canadian Egg Marketing Agency v. Richardson- The Supreme Court added a further dimension to the standing doctrine by recognizing an

overriding discretion to hear a case even in situations where the normal rules of standing and public interest standing might not indicate the according of status to the plaintiff or applicant.

- Justice Iacobucci and Bastarache adopted the position of a lower court decision in Jamieson v. A.G. of B.C. Judge Aikins stated the following:

“… Where a case has been fully argued on the merits then, notwithstanding that in the general argument it may appear that the plaintiff has no status to maintain the action, if the question involved is one of public importance then the court has a discretion to decide the case on the merits.”

- The court, in granting an extension of the doctrine, based it on an extension of the principle laid down in R v. Big M Drug Mart, whereby companies could challenge the validity of legislation by reference to Charter provisions that applied only to natural persons in situations where they were subject to criminal prosecution.

- In this case, the court extended the rule to regulatory regimes affecting corporations. As a result, the company did not have to rely on either public interest standing or the residuary discretion.

Harris v. CanadaFactual Background

- Harris, a taxpayer, sought a declaration that the Minister of National Revenue had acted illegally in providing another taxpayer with a favourable private advance ruling while maintaining a different position publicly on the taxability of the funds in question.

- He alleged that the Minister had ulterior motives for providing this preferential treatment.- The Minister sought to have the proceedings struck out for Harris’s lack of standing.- A prothonotary granted the motion to strike out. However, the Federal Court – Trial Division

reversed that decisions, and the Minister appealed to the Federal Court of Appeal.Judgment

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- In Distribution Canada Inc.   v.   M.N.R. , a case in which a plaintiff sought to require the Minister to comply with certain provisions of the Customs Tariff, Desjardins J.A. held that public interest standing may exist where "the matter raised…is one of strong public interest and there may be no other way such an issue could be brought to the attention of the Court, were it not for the efforts of the public interest litigant.

- Similarly, in Federation of Self-Employed, Lord Scarman did not permit the public interest litigant's leave application to proceed further because he concluded that the Inland Revenue Commissioners had ample statutory authority to conclude compromise agreements with taxpayers. However, he added that if the Federation had presented "reasonable grounds for believing that the failure to collect tax [...] was an abuse of the Revenue's managerial discretion or that there was a case to that effect which merited investigation and examination by the court," the Federation would have "shown a sufficient interest for the grant of leave to proceed further with its application."

- Indeed, I think that if Revenue Canada concludes compromise agreements or covert deals or provides preferential treatment to certain taxpayers without statutory authority, public interest standing may be granted to challenge the tax treatment that Revenue Canada affords to taxpayers who benefit from those actions.

- I now turn to the four criteria established in Finlay.- In regards to the first requirement, in my view, Mr. Harris' statement of claim raises a justiciable

issue. His claim that the Minister of National Revenue acted illegally or improperly or for ulterior motives raises a question of a potential violation of the Act that a Court may assess

- The second criterion was that a public interest litigant must raise a serious issue. The issues raised by Mr. Harris are "far from frivolous. He alleges that the Minister of National Revenue acted for ulterior motives with a view to favouring particular taxpayers.

- The third criterion is that the public interest litigant must have a genuine interest in the issue. Mr. Harris is a taxpayer. He is a member of an organization that seeks to ensure the fair administration of the taxation system. Accordingly, I conclude that Mr. Harris has a genuine interest in the issues he raises.

- Finally, in exercising its discretion to recognize public interest standing, a court must be satisfied that there is no other reasonable and effective manner in which the issue may be brought before a court. Mr. Harris requested the Attorney General to do so twice, but to this date, the Attorney General has not yet complied. It cannot be seriously contended that the taxpayers who were provided with the 1991 ruling favourable to them would raise the issues brought by Mr. Harris. Therefore, I conclude that there is no other reasonable and effective manner in which the issue could be brought before a court.

Conclusion on Standing- Public interest standing has been granted in analogous cases. - For example, in Greater Victoria Concerned Citizens Assoc.   v.   Provincial Capital Commission , a

citizens group successfully obtained standing to seek to obtain a declaration that an agreement to lease certain heritage property as a tourist attraction was beyond the Provincial Capital Commission's jurisdiction.

- I do not think that there is a principled basis for concluding that the Minister of National Revenue is somehow protected from a similar action by a public interest litigant to compel the Minister to perform his or her statutory duties. Accordingly, I conclude that Muldoon J. properly ruled that Mr. Harris could be granted public interest standing and therefore correctly set aside the Prothonotary's granting of the Crown's motion to strike.

- I wish to emphasize the narrow cause of action for which public interest standing has been granted. Mr. Harris does not merely seek to obtain the interpretation of a particular provision of the Act.

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The Role of the Attorney GeneralThe Attorney General was traditionally regarded as the only appropriate person to commence litigation in the name of public interest but this was re-evaluated after Finlay. There may be situations where the courts will accept that law enforcement is in the hands of the Attorney General or other designated enforcement with authorities and will not recognize private citizens or groups as surrogates. However, Harris clearly suggests that there are certainly a range of situations where citizens will have status to assume a law enforcement role. Moreover, up until the emergence of public interest standing, the assumption was that the status of the Attorney General to seek judicial review was beyond question. Nevertheless, this proposition was brought into issue in the following case:

Energy Probe v. Canada (Atomic Energy Control Board)Factual Background

- Energy Probe challenged the renewal of a nuclear reactor’s license on the basis of the bias of a member of the licensing authority. The Board challenged Energy Probe’s standing, but the court accorded the public interest group public interest standing.

- In addition, Energy Probe contested the Attorney General of Canada’s right to be a party to the proceedings.

Judgment- I have no doubt that this is an appropriate case in which the Attorney General should be given

permission to be added as a party. The Attorney General has a direct interest in the outcome of this case. It is alleged that one of the members of the AECB has a pecuniary bias in the decisions of the Board. If a bias exists in this case, then the Board member will be an ineffective member for many decisions which the Board makes. Thus, the issued raised challenges the practice of the Governor-in-Council (Cabinet) in appointing as part-time AECB members persons having interests in the industry.

- In addition, I think the Attorney General should be added on the ground that a “question of general importance is raised” in these proceedings on which the court should have his arguments. I cannot accept Energy Probe’s argument that the issue here is merely confined to Mr. Olsen’s alleged bias and is a “one-shot affair”. The ramifications are much broader.

- My argument: It is often better for the Attorney General to litigate the case instead of the Board whose decision is being challenged. From an optics standpoint, an active and often aggressive participation on the part of the Board in litigation concerning its decision, can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.

The Status of Authority under AttackNorthwestern Utilities Ltd. v. City of Edmonton

- In this judgment, Justice Estey elaborated the appropriate role for a statutory authority under challenge and the reasons for this stance. He stated the following:

- Where the right to appear and present arguments is granted, an administrative tribunal would be well advised to adhere to the principles enunciated by Justice Aylesworth in International Association of Machinists v. Genaire Ltd.:

“… Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may present argument to the appellant tribunal (the court). We think in all propriety, however, such argument should be addressed not the merits of the case as between the parties appearing before the Board, but rather, to the jurisdiction or lack of jurisdiction of the Board. If argument by counsel for the Board is directed to such matters as we have indicated, the impartiality of the Board will be better emphasized and its dignity and authority the better preserved, while at the same time the appellate

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tribunal (court) will have the advantage of any submissions as to jurisdiction which counsel for the Board may see fit to advance…”

- Moreover, where the enabling statute of the Board is silent as to the role or status of the tribunal in appeal or review proceedings, this court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question – as per vide Central Broadcasting Co. Ltd. v. Canada (Labour Relations Board).

- It should be noted that jurisdiction does not include the tribunal’s failure to adhere to the rules of natural justice.

- To allow an administrative Board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions. In Re Canada Labour Relations Board and Transair Ltd., Justice Spence, speaking on this point, stated:

“… The issue of whether or not a Board has acted in accordance with the principles of natural justice is surely not a matter upon which the Board, whose exercise of its functions is under attack, should debate, in appeal, as a protagonist and that issue should be fought out before the appellate reviewing court by the parties and not by the tribunal whose actions are under review.”

CAIMAW v. Paccar of Canada Ltd – exception to Northwestern- Justice La Forest, in addressing the proposition that an administrative board cannot use a finding

of patent unreasonableness to invoke a jurisdictional argument, adopted the approach of the B.C. Court of Appeal in BCGEU v. Industrial Relations Council, where Justice Taggart stated:

“… The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.”

- In this case, La Forest accepted the submissions of the Industrial Relations Council (the administrative board in question) on two points. Its first point was on the standard of review applied by the Court of Appeal, which it argued should have been reasonableness simpliciter rather than correctness. The second branch of the Council’s submission was to show that the Board had considered each of the applicant’s submissions before it, and had given reasoned, rational rejections to each of the arguments. The arguments before the court emphasized, that the Council had made a careful review of the relevant authorities and had made a decision that was within its exclusive jurisdiction. At no point did it argue that the decision of the Board was correct. Rather, it argued that it was a reasonable approach for the Board to adopt.

Ferguson Bus Lines Ltd. v. ATU, Local 1374Factual Background

- This case involved an application to review and set aside a determination by the Canada Labour Relations Board that the employees represented by ATU were engaged in a federal undertaking and, therefore, subject to federal jurisdiction and that there had been a sale of part of the relevant business to Ferguson, which thereby became bound by the existing collective agreement between the previous owner and ATU.

- Before the Federal Court of Appeal, the Board attempted to justify its ruling on the constitutional status of the undertaking and its determination that a sale of part of the business had taken place.

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Judgment- The decision of the Supreme Court in Paccar does not, in my opinion, vest the Board with a

respectable excuse to demand to be heard in every case where one of its decisions is alleged to be patently unreasonable. As stated in Paccar, it is only when its expertise may cast some light imperceptible to ordinary mortals on the subject that participation so potentially damaging to it should be countenanced.

- Nothing in the record or argument leads me to suspect that the expertise of the Board endows it with anything of particular value when it comes to deciding whether or not the sale of a business has occurred.

- Lastly, it should be carefully noted that a challenge to the legislative jurisdiction of Parliament is not a challenge to the Board’s jurisdiction within the contemplation of Northwestern Utilities. The Board had no right to be heard on the constitutional issue. Should the public interest require representation in such a case, it is the right and the responsibility of the Attorney General, not the Board, to provide it.

Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers – exception to NorthwesternFactual Background

- At issue in this case was the legal status of executive discussion by the whole of the Ontario Labour Relations Board of cases before particular panels of the Board. In this context, a question arose as to whether the Board should be allowed to defend this practice.

Judgment- The short reason for our decision to hear the Board’s submission is that what was proposed to be

submitted to us did go exclusively to jurisdiction and not to the merits. - The Board is required by sec. 102(13) to “determine its own practice and procedure”- What was objected to in the application before us was a practice which has been followed

by the Board. Thus, the Board’s submissions did not go to the merits of its decision, but as to its jurisdiction to establish and follow the particular practice contemplated of.

- Moreover, in Ontario, the Judicial Review Procedure Act provides, in sec. 9(2), as follows:“… For all purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application.”

- We do not regard the word “may” as giving us discretion to refuse the Board standing as a party. We consider that, both as a matter of right and in any case as a proper exercise of our discretion; the Board should be heard on the matter of the questioned procedure.

IntervenorsIssues of standing can also arise in the context of applications for status to participate in litigation to which the applicant has not been named as a party. In general terms, such applications take one of two forms: (1) an application to be added as an intervenor party, or (2) an application to be added as a friend of the court – amicus curiae. The difference between the two categories is that the first confers on a successful applicant all the rights of the original parties to the litigation, including the right to appeal, while the second is restricted to the level of participation specified by the court and does not extend to conferring appeal rights.In general, intervention is covered by the appropriate rules of the court and the interpretations and common law principles developed under those rules. In Ontario, intervenors are statutorily governed by Rules of Court legislation – page 1241 & 1242It was argued in Energy Probe that the Attorney General derives his power as intervenor from the prerogative in the absence of any statutory conferral of the right to intervene. Re Clark and A.G. of Canada

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- In assessing an application for intervention, the court will be required to factor in the following:o 1 Concerns about broadening the issueso 2 Taking the litigation out of the hands of the original partieso 3 Increasing the cost of litigation both to the existing parties and in terms of the

court’s time and resources.- Moreover, Justice Evans also stated:

“…it is my view that intervention amici curiae should be restricted to those cases in which the court is clearly in need of assistance because there is a failure to present the issues (Ex. where one side of the argument has not been presented to the court). Where the intervention would only serve to widen the lis between the parties or introduce a new cause of action, the intervention should not be allowed.”

Chapter Fifteen: The Discretion of the CourtIntroductionThe courts employ an overriding discretion to deny relief. The discretionary grounds for the refusal for relief have the potential to legitimate unlawful administrative action and part of the objective in this chapter is to raise questions as to when it is appropriate for the courts to take that risk of allowing an unlawful decision or course of action to achieve de facto legal status.

Alternative Remedies The question of alternative remedies is dealt with by reference to the courts’ overriding discretion to refuse relief even where the substance of the applicants or plaintiff’s case may have been out. In such instances, the questions asked tend to be about the relative or comparative convenience of judicial review as opposed to the alternative forms of relief that are also available.

Statutory AppealsHarelkin v. University of Regina [1979] 2 SCR 561 (Sask.)

- Student applied for ceritorari and mandamus, rather than pursuing the available right of appeal to a committee of the university senate

- The student argues that the alternative remedy was not adequate and that the principle audi alteram partem in this case has been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.

- The court held that the appellant was not entitled to assume that the senate committee would have denied him a hearing. Nor should he have assumed that since one governing body of the school denied him natural justice, another body of superior jurisdiction would of the same. He should have assumed the opposite.

- The appellant’s right of appeal to the senate committee provided him with an adequate alternative remedy. In addition, this remedy was in my opinion a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness.

- The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right.

- Accordingly, the council committees refusal to grant a rehearing is not a sufficient reason to issue certiorari and mandamus.

- Dickson J (Dissenting): Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding a right of appeal to administrative or domestic body, where that body exercises purely appellate functions.

- Other then exceptional circumstances, which are not present here, breach of the rules of natural justice cannot be cured on appeal.

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- Dickson argued that the appellant should be able to look to the Courts for relief if he is treated unfairly by the council, regardless of what might have occurred before the senate, had he pursued that route. He also had no assurances that the senate appeals committee would hear him.

Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3 (Can.)- The question was whether the trial judge exercised proper discretion in refusing to entertain the

respondents’ application for judicial review, which then forced them to pursuer their judicial challenge by means of appeal procedures established by the Indian Act

- The presiding judge held that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an application to proceed through a statutory appeal procedure.

- These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities.

- The judge held that the original findings were not unreasonable. All he had to decide was whether it was a adequate alternative, not if it was a better forum.

- However, the trial judge failed to take into account the lack of the Indian tribunal’s lack of independence.

Alternative Methods of Establishing Rights or Enforcing Observance of Statutes and OrdersShore Disposal Ltd. v. Ed de Wolfe Trucking Ltd. (1976), 72 DLR (3d) 219 (NS SCAD)

- The trial judge held that the appellant was a carrier of freight for gain, that it had no license from the Public Utilities Board and it was therefore violating the Act. He granted a declaratory judgment.

- The judge declined to grant an injunction to restrain the appellant from engaging in the business of collecting and disposing of garbage until such time it was licensed under the Act.

- The judge based his refusal on the fact that the Act “contains sufficient remedies to ensure due compliance with its provisions, without the necessity in this instance of a Court injunction.”

- The respondents are merely special prosecutors seeking condemnation of past crimes by declaration alone without due process of criminal law; they have no special rights, which might have warranted granting them an injunction to ensure their future protection.

Prematurity Prematurity involves an assertion by the court that, while the applicant may potentially have good cause of action, the matter is inappropriate for judicial intervention at present. There are a number of reasons why this might be so. First, there is the possibility that the matter may be resolved internally or without the need for court intervention.

The following case brings together the issues of prematurity and availability of an adequate right of appeal in that the applicant for relief was confronted by the dual argument that the tribunal itself had not finally ruled on the issue that there was a right of appeal from the ultimate decision of the tribunal anyway.

Howe v. Institute of Charter Accountants of Ontario (1994), 19 OR (3d) 483 (CA)- The presiding judge agreed with the Divisional Court that this application was premature. The

courts should only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it

- Laskin JA (dissenting): There are two branches to the argument that this application is premature. The first is that the court should not encourage applications for judicial review of preliminary rulings or interlocutory orders of an administrative tribunal, especially where the aggrieved party has an adequate right of appeal. The second is that the appellant is entitled to renew his motion

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for disclosure before the panel that will hear the charges of professional misconduct and that that panel should be given the opportunity to rule on the motion.

- Although an application for judicial review does not require an administrative tribunal to bring its proceedings to a halt, an aggrieved party should not be encouraged to rush off to Divisional Court’s every time it is dissatisfied with a ruling made by a tribunal.

Air Canada v. Lorenz [2000] 1 FC 494 (TD)- The judge held that it would be inappropriate for the Court to make a ruling before the

adjudicator has rendered a final decision on the unjust dismissal complaint. - Air Canada put fourth an argument that there was a sense of bias and if the judge rules against it,

they can simply put fourth an application for judicial review at that stage. - Various factors were considered in this case; the first was that the apprehension of bias would

cast a cloud of hardship on Air Canada. This is not determinative as the hearing is far from conclusion. The application for judicial review has also extended the substantive issues involved in Mr. Lorenz’s complaint.

- In essence it is not disputed that Air Canada has a right to a fair hearing before an adjudicator that is free from any reasonable apprehension of bias. The question, here, however, is the point in the administrative process at which the applicant is entitled to a determination of its allegation and the grant of relief if it is upheld. It is the opinion of the judge that the substantial delay that has arisen has affected the aggrieved party and the application should be refused.

MootnessBy the time an application for judicial review comes on for a hearing or by the time it reaches the appropriate Court of Appeal or SCC, the dispute will ceased to have practical significance for the applicant.

DelayDelay in commencing proceedings may go either to the jurisdiction or the discretion of the reviewing court. Failure to adhere to mandatory limitation statutes or provisions will prevent the court from even considering the case. However, if there is no limitation period, or even within a limitation period, the courts will on occasion deny relief to the applicant on the ground of undue delay, the doctrine of laches.

Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR 3- The last substantive issue raised in this appeal is whether the Federal Court of Appeal erred in

interfering with the motions judge’s discretion not to grant the remedies sought, namely orders in the nature of certiorari and mandamus on the grounds of unreasonable delay and futility.

- There is no evidence that Alberta suffered any prejudice from any delay in the taking of the action by the society and there is no indication whatever that the province was prepared to accede to an environmental impact assessment under the Guidelines Order until it had exhausted all legal avenues, including an appeal to this Court.

- Stevenson J (dissenting): he argues that the society knew of the government’s plans 14 months beforehand and not two months as argued by the society.

Garland v. Consumers’ Gas Co., [2004] 1 S.C.R. 629; 2004 SCC 25This action does not constitute an impermissible collateral attack on the OEB’s orders.  The OEB does not have exclusive jurisdiction over this dispute, which is a private law matter under the competence of civil courts, nor does it have jurisdiction to order the remedy sought by the appellant.  Moreover, the specific object of the action is not to invalidate or render inoperative the OEB’s orders, but rather to recover money that was illegally collected by the respondent as a result of OEB orders. 

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R v. Consolidated Mayburn Mines Ltd. [1998] 1 SCR 706 (Ont.)- Whether a penal court may determine the validity of an administrative order on a collateral basis

depends on the statute under which the order was made and must be answered in light of the legislature’s intention as to the appropriate forum.

- In doing this, it must be presumed the legislature did not intend to deprive a person to whom an order is direct of an opportunity to assert his or her rights. For this purpose, the five factors suggested by the Court of Appeal, as reformulated here, constitute important clues for determining the legislature’s intention as to the appropriate forum for raising the validity of an administrative order.

- These factors were, a) the wording of the statue b) purpose of legislation c) availability of appeal d) the nature of collateral attack e) the penalty on a conviction for failing to comply with the order.

- In this case, the appellants elected to disregard not only the order, but also the appeal mechanism, preferring to wait until the charges had been laid before asserting their position.

- The appellants are now in effect suffering from the consequences of their inflexibility in relation to their attitude with the Ministry.

Misconduct of ApplicantOn occasion, the courts will deny a remedy because of the way in which the person seeking relief has behaved. This follows the old maxim of equity that whoever comes to equity must come with clean hands.

Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.)- Homex’s illicit dealings with the Atkinson village forced the court to deny the issuance of the

order of judicial review.

WaiverOn occasion relief may be denied to an applicant on the basis of waiver or acquiescence (knowing your rights but not enforcing them).

Balance of Convenience Essentially, the refusal of relief because the applicant had other avenues of recourse available or on the basis that there was a chance that the completion of the proceedings by the tribunal would eliminate the applicant’s concerns is based on the premise that it is more convenient to use alternative means of solving the problem before or as a substitute for seeking judicial review.

How to Tackle an Administrative Law Problem QuestionThe first step is to ask: Is there discretionary reasons why the case should not be allowed to proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether it is Federal or Provincial. Overall, courts will deny an application for judicial review when alternative procedures are available. [16] However, S. 2(5) of the Judicial Review Procedure Act [17] a court can still grant relief.

The second step is to ask: What standards of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v New Brunswick Liquor Corporation [18] which introduced the 'Pragmatic and Functional approach' which consisted of three standards of correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v Canada (Minister of Citizenship and Immigration)[19] which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v New Brunswick [20] where the Supreme Court eliminated 'patent unreasonableness' consequently leaving

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only correctness and reasonableness. The standard of review analysis must be analysed before judicial review.To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as a whole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review - Correctness (which there is no deference) or Unreasonableness (possibly patent unreasonableness).

The third step is to ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere.Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated legislation and whether it is an unreviewable discretionary power (eg privileges - not reviewable; prerogative powers - reviewable)

Step four concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias.Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan)where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker). Is the right to counsel in question? Is there a requirement for reasons to be provided?

Protection against bias - This is the second fundamental principle of procedural fairness - the affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.

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