Administrative Law – Raso (Winter 2020)

Statutory Interpretation............................................................................................................5Modern Principle of Statutory Interpretation..........................................................................5Textualism...............................................................................................................................5Plain Meaning Rule.................................................................................................................5Examples of different forms of interpretation – Mossop case study.......................................6

The Rule of Law and Judicial Review.....................................................................................7Diceyan View..........................................................................................................................7Liston’s View...........................................................................................................................8Dyzenhaus’ View.....................................................................................................................8Rule of Law and Jurisdiction...................................................................................................9Rule of Law and Judicial Intervention.....................................................................................9

Roncarelli v Duplessis – Muscular intervention............................................................................10Domtar v Quebec – Deferential approach.....................................................................................11

Part I: Is Judicial Review Available? ......................................................................................... 12 Common Law Grounds for Denying to Judicially Review..................................................13Deferential Approach..............................................................................................................13Superior Courts’ Jurisdiction.................................................................................................14

Crevier v Quebec (AG), [1981] 2 SCR 220....................................................................................15

Threshold Question 1: Public Decisions................................................................................15Air Canada v Toronto Port Authority, 2011 FCA 347...................................................................15

Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, 2018 SCC 26.....17

Threshold Question 2: Standing.............................................................................................19Finlay v Canada (Minister of Finance), [1986] 2 SCR 607..........................................................19

Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45........................................................................................................................................................20

Threshold Question 3: Which Forum to go to?....................................................................21Threshold Question 4: Timing................................................................................................21Threshold Question 5: Have all the other alternatives been exhausted.............................21

Part 2: Grounds for Judicial Review ......................................................................................... 22 Procedural Obligations Arising from Statutory Frameworks............................................22

Thamotharem v Canada.................................................................................................................22Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61.......................24

General procedural codes......................................................................................................25

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Common Law Procedural Obligations..................................................................................25When do Common Law Procedural Obligations Arise?.......................................................25

Cardinal v Directors of Kent Insitution, (1985 SCC)....................................................................25Homex Realty and Development v Wyoming (Village), (1980 SCC) (Distinguishing legislative vs administrative decisions)................................................................................................................26Canada v Inuit Tapirisat of Canada, (1980 SCC) (Distinguishing legislative vs administrative decisions)........................................................................................................................................27

History of common law obligations......................................................................................28Nicholson v Haldimand-Norfolk Police (1978 SCC).....................................................................28

Baker v Canada (1999 SCC)..........................................................................................................29Suresh v Canada (Minister of Citizenship and Immigrations), 2002 SCC 1.................................32

Synthesizing Baker................................................................................................................33Content of the Duty: Notice....................................................................................................34

Gough v Canada (Nationale Parole Board), (1990 FC aff’d FCA 1991).....................................34Mission Institution c Khela, 2014 SCC 24.....................................................................................35

Content of the Duty: Right to a Hearing...............................................................................36Baker v Canada (1999 SCC)..........................................................................................................37Singh v Canada..............................................................................................................................37

Khan v University of Ottawa..........................................................................................................38

Content of the Duty: Reasons.................................................................................................38Baker v Canada (1999 SCC)..........................................................................................................39

Canada v Vavilov...........................................................................................................................40Canada v Mavi...............................................................................................................................41

Constitutional Procedural Obligations..................................................................................42The Charter............................................................................................................................42

Singh v Canada (Minister of Employment and Immigration) (1985 SCC)....................................43Suresh v Canada (Minister of Citizenship and Immigration) (2002 SCC)....................................43

The Right to State-Funded Legal Counsel.............................................................................45Undue Delay..........................................................................................................................45Ex Parte, in Camera Hearings................................................................................................45

Duty to Consult........................................................................................................................46Mikisew Cree First Nation v Canada.............................................................................................48Clyde River v Petroleum Geo-Services Inc (SCC, 2017)...............................................................49

Individual Bias.........................................................................................................................50Baker v Canada (1999 SCC)..........................................................................................................53

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Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) (1992 SCC).....................................................................................................................................54

Old St. Boniface Residents Assn Inc v Winnipeg (City) (1990 SCC).............................................55

Impartiality, Independence, and Institutional Bias..............................................................56Administrative Independence................................................................................................56

Canadian Pacific v Matsqui Indian Band......................................................................................57

Ocean Port Hotel v British Columbia............................................................................................58

Perceptions of Institutional Bias............................................................................................59IWA v Consolidated Bathurst Packaging.......................................................................................60

Sparvier v Cowessess Indian Band No 73......................................................................................61

Substantive Review: Standard of Review..............................................................................62Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC, 1998).......................63

Dunsmuir v New Brunswick (SCC, 2008)......................................................................................65Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65.................................67

Substantive Review: Correctness...........................................................................................71Barrie Public Utilities v Canada Cable Television Assn...............................................................71Bell Canada v Canada...................................................................................................................73

Substantive Review: Reasonableness.....................................................................................74Dunsmuir v New Brunswick, (2008 SCC)......................................................................................75Note on Celgene.............................................................................................................................76

Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65.................................76

Substantive Review: Charter Values.....................................................................................80Doré v Barreau du Québec (2012 SCC)........................................................................................80

Law Society of British Columbia v Trinity Western University (2018 SCC).................................81Abdi v Canada................................................................................................................................84

Do Administrative decision-makers have authority to consider whether their home statute complies with Canada's Constitution.....................................................................................86

Part III: Which Remedies are Most Appropriate .................................................................... 86 Prerogative Writs...................................................................................................................87

D’Errico v Canada – Mandamus instructing on results................................................................88Canada v Khadr – Declaration example and limits of mandamus................................................88

Mission Institution v Khela – Habeas Corpus................................................................................89

Statutory Reform...................................................................................................................90Private Law Remedies...........................................................................................................90

Part IV: Indigenous Peoples and Administrative Law ............................................................ 91 Negotiation Tribunals, Indigenous Self-Government..........................................................91

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Administrative Law in Indigenous Governance...................................................................93context of self-government and review of indigenous governments and decision-makers...93beyond judicial review: recognizing authority of indigenous law.........................................93

Aboriginal Law and Standard of Review..............................................................................94Attawapiskat First Nation v Canada..............................................................................................94Simon v Canada (Fed Ct)...............................................................................................................96

Canada v Simon (FCA)..................................................................................................................97Pictou Landing Band Council v Canada........................................................................................98

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Statutory Interpretation

Modern Principle of Statutory Interpretation The modern principle (reflects an intentionalist approach)

o "The words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament"

o Insistence on the complex, multi-dimensional character of statutory interpretation Part of it is try to identify legislation intent which can be viewed as composed of 4 elements

o The expressed intention - the intention express by the enacted words o The implied intention - the intention that may be legitimately implied from the enacted wordso The presumed intention - the intention that the courts will int eh absence of an indication to

the contrary impute to Parliament; and Presumed intention embraces the entire body of evolving legal norms which contribute

to the legal context in which official interpretation occurso The declared intention - the intention that Parliament itself has said may be or must be or

must not be imputed on it Under the modern principle an interpreter who wants to determine whether a provision applies to

particular facts must address the following questions o What is the meaning of the legislative text? o What did the legislature intend? That is, when the text was enacted, what law did the

legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these?

o What are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect?

Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms

An appropriate interpretation is one that can be justified in terms of : o Its plausibility, that is, its compliance with the legislative texto Its efficacy, that is, its promotion of legislative intent; and o Its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and

just Key Evidence

o Ministerial statements that state what parliament is trying to achieve (at least the majority)

o Compliance with legal norms (Underlying principles) o Test (specific words; and structure) o Extrinsic and intrinsic evidence

Textualism Text as the best indicator of legislative intent. Sticking to the plain meaning of the text as the best

guarantor of the rule of law

Plain Meaning Rule General propositions of plain meaning rule (at odds with modern principle)

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1. Upon reading a legislative text it is possible to determine the meaning of the text and whether it is plain or ambiguous

2. If a text has a plain meaning, extra-textual evidence of legislative intent (like legislative history or presumed intent) is inadmissible to contradict that meaning. The plain meaning constitutes definitive evidence of legislative intent and it is impermissible to rely on other factors to contradict it. Furthermore, other factors may not be relied on to create ambiguity - that is, cast doubt on the meaning of a text that is otherwise plain

3. If a text is ambiguous, interpretation is required. In interpretation, extra-textual factors such as legislative history and presumed intent may be relied on to resolve the ambiguity

Resurgence o Assumption that one can determine the one true meaning

Language is plain Meaning does not change over time Judges can determine plain meaning on its face

o Warning signs Statement that meaning is clear Refusal to consider extrinsic evidence

Examples of different forms of interpretation – Mossop case study

Tribunal decision o In the view of the tribunal, the interpretation of the term “family status” as used in the Act

must be governed by the principles of interpretation of human rights codes in general and the Act in particular

This is enunciated in SCC decisions such as O’Malley and Bhindero This is not simply a mechanical exercise because the principles of interpretation are

themselves expressed in broad terms o Must recognize the dynamic relationship between specific words and the context in which

they are usedo The idea is that there is harmony between the words and their contexto The accepted rules of construction are flexible enough to recognize in the construction of a

human rights code the special nature and purpose of the enactment”o The SCC has held that human rights codes based on their broad purposes relating to

“individual rights or vital important” are legislation of a special natureo The goal is that of equal opportunity for each individual to achieve the life that he/she is

able and wishes to have Raso: can think of this as a principle of interpretation

o The term “family status” included homosexual couples was drawn from the Tribunal’s reasoning evolving around three main propositions, namely

the Supreme Court has indicated that the same purposive approach taken to the interpretation of the Charter has to be taken to the interpretation of human rights codes;

there is a problem of interpretation as to the definition to be given to the word “family” as it appears in the Act; and

in seeking to solve this problem of interpretation, one should not try to find the reasonable definition but simply a reasonable one and, in that respect, the functional definition given by the sociological approach is, in view of the goal to be achieved, quite acceptable.

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FCA decision o The term family is not ambiguous

It is a group of individuals with common genes, blood or ancestors There are various degrees of extension

- Today is generally seen as including individuals connected by affinity or adoption, an inclusion rendered normal by the fact that marriage was made the only socially accepted way of extending and continuing the group, and adoption a legally established imitation of natural filiation

This does not affect the core meaning of the word o There are differences between being akin to a family and a familyo A status is primarily a legal concept which refers to the particular position of a person with

respect to his/her rights and limitations as a result of being a member of some legally recognized and regulated group

The only approach to take to interpreting “family status” is a legal one- “Even if we were to accept that two homosexual lovers can constitute

“sociologically speaking” a sort of family, it is certainly not one which is now recognized by law as giving its members special rights and obligations”

SCC Majority o On the question of whether there was discrimination on the basis of "family status", the

court found that there was no grounds for Mossop's claim because Parliament intentionally excluded sexual orientation from the list of prohibited grounds of discrimination

o Since the intent was clear, both the Federal Court and Tribunal were bound to apply the lawo The court is upset with the appellant who refused to deal with the claim on the ground of

sexual orientation, which was new at the time However, Mossop sticks with family status

o The majority says that you cannot interpret "family status" to include Mossop’s situation unless you also discuss the ground of sexual orientation, and as Mossop refuses to do so he cannot be successful.

o La Forest concurs, but instead looks to the definitions in the Act and tries to figure out what the government meant to protect under "family status"

He determines that this specific field was not intended to be covered SCC Dissent

o L'Heureux-Dubé says that "family status" should have a very broad interpretationo She looks to the broader social context of limiting it as the majority does, and further that

by looking at the plain meaning given in the statute you are really just taking the majority's opinion of the definition, which is exactly what you try to avoid in human rights issues

o She also suggests that when there are overlapping grounds, you should select the one that will succeed and proceed with that one.

The Rule of Law and Judicial Review

Diceyan View The rule of law possesses 3 features

o 1) The absence of arbitrary and discretionary authority in government, but especially in the executive branch and the administrative state

o 2) Formal legal equality so that every person – including and especially public officials would equally be subject to the law

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o 3) The existence of constitutional law as a binding part of the ordinary law of the land Institutional advantage of the courts mean that they were best placed not only to control the

political executive in the name of rule of law, but also to provide superior protection of common law rights like liberty and property in the English system

Justification for judicial intervention o The institutional role of the courts as the principal external check on executive and

agency powers o The specific task allocated to the courts through administrative law to constrain

administrative discretion by ensuring that an administrative body did not overstep the jurisdiction that the legislature had set down in the statute

o The judicial perception that a fundamental role of courts was to protect and vindicate the private autonomy of affected individuals, primarily through common law rights derived from contract, tort and property law

Parliament was held to institutionally sovereign and supreme over the other two branches of government. Parliament was considered the primary source of law – not common law courts - as well as the source of most government power

Liston’s View Legal principle and unwritten constitutional principle Should guide the discretion of decision-makers Deference as respect Deference protects individual rights by requiring reasons

o Not enough to just say a decision has been made o Courts intervene where deficient o Allow decision makers to make their decision so long as they are justified and within

their jurisdiction 4 components

o 1) Means everyone is formally equal before the law including public officials (Dyzenhaus too)

o 2) Public standards guide law creation, revision and enforcement Should be open and transparent

o 3) Individuals will be treated fairly by government and the legal system o 4) Legal system enables all to access processes to resolves disputes

Should be able to redress Access to independent justice

Dyzenhaus’ View Highly textured legal principle Can be defined broadly but is quite impactful Deference as respect – Not submitting to administrative decision makers and legislative intent,

but the court will only intervene when the decision maker does not earn the respect of the courtso First accepted by courts in Baker - Justifies an attitude of judicial humility and respect

toward other decision-makers when their procedures and resulting decisions are fair, reasonable, proportionate, and communicated though quality reasons.

o Deference is a requirement of the law of judicial review and supports the separation of powers

o The function of reviewing courts is not to routinely second guess substantive outcomes made by public authorities in the executive branch

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o Deference is owed to the special role some administrative actors perform, to their function, and to their expertise in fact-finding, policy formation, knowledge, and interpretative skills

o This attitudinal disposition also demands that a reviewing court properly construct legislative intent

Rule of Law and Jurisdiction Rule of Law is intimately related to jurisdiction

o Administrative powers always comes from somewhere o Administrative power is always limited - Roncarelli o Connection implies that someone has to be reviewing these powers

Administrative decision-makers power is always limited o Even with broad powers o Even with prerogative powers o Ex: Baker and Roncarelli

Administrative decision-makers never have the final say on the boundaries of their power o Separation of power o Decision makers cannot determine their own authority o If you want people to have law apply equally you cannot have a decision maker act

outside their bounds

Rule of Law and Judicial Intervention Rule of law guides how courts should review

o How are they ensuring access to justice? o How are they ensuring the law is being applied equally?

Muscular/Interventionist o Diceyan view

Belief that judge mage law and unwritten constitutional principles are better because they are less likely to be interfered with by the executive

o Constraining arbitrary decisions o View judges as pinnacle decision makers o Skepticism of administrative decision makers o Notions of individual autonomy, parliamentary supremacyo Limited discretion for administrative decision makers o Challenges

Practically speaking, courts cannot supervise all executive decisions - access to justice issue

Deferential o More popular in Canada o Courts should be respectfully deferring to Administrative decision makers o Legislative intent - assuming parliament intended the administrative decision

makers to make these decisiono Expectation of expertise

Professions Front-line workers Courts should be cognizant that they are not the only one's with expertise

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o Notions of legal pluralism Courts are not the final say on statutory interpretation

o Rooted in Dyzenhaus Deference as respect - not submitting to administrative decisions and intent of

legislature but courts where only intervene where the administrative decision maker does not earn respect

o Protects individual rights by requiring reasons Not enough to just say they made the decision Where deficient, courts begin to intervene Courts should be allowing administrators in certain circumstances as long as

there are reasons and they are acting in their jurisdiction o Discretion is still limited

Reasons Administrator not doing enough to earn respect Acting outside their mandate No reasons

Roncarelli v Duplessis – Muscular intervention Facts Roncarelli was the proprietor of a restaurant in a busy section of Montreal which

was passed down from his father The restaurant had a continuous liquor license for approximately 34 years While his application for annual renewal was before the Liquor Commission, the

existing license was cancelled and his application for renewal rejected, to which was added a declaration by the respondent that no future license would ever issue to him

Roncarelli is a Jehovah’s Witness There was increasing tensions between the Roman Catholics and the JVs in

Quebec at the time and Roncarelli furnished bail for 375 of Jehovah's Witnesses in three years, many of whom were arrested multiple times

Extensive testimony showed the government actors believed that Roncarelli was disrupting the court system, causing civil disorder and so was not entitled to the liquor license

Roncarelli received news of the revocation in December 1946, and while he tried to keep his business open without the license, it was not profitable, and he put it up for sale within six months

Consequently, he brought an action against Duplessis for $90,000 in damagesIssue Did the Premier of Quebec overstep his authority in revoking the liquor license of

Roncarelli?Decision

Duplessis wrongfully caused the revocation of Roncarelli's liquor license

Reasons The Commission has the right to grant and revoke liquor licenses at its discretion However, the decision must be made by referring to relevant considerations which

serve the purposes of the statute or the administration In this case, Duplessis' intention to punish Roncarelli for acting contrary to state

interests was not a valid reason to revoke his license and destroy his means of livelihood

Purpose of revoking license: to punish for the appellant for a part he played and to warn others that they may equally be stripped from provincial “privileges”

Liquor commission has complete administration over liquor in Quebec

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The decisions by the commission are to be made “at its discretion”, based upon a weighing of considerations pertinent to the object of the administration

o Use of good faith is necessary This case, the reasons for revocation were irrelevant to the functions of the

commission It seems to be a gross abuse of legal power Duplessis’ act was an intrusion upon the functions of the statutory body

o The injury was a fault engaging liability If such decisions were regularly taken, there would be disintegration of the rule of

law principle.

Ratio Discretion is not unlimited. The discretion is confined to the relevant legislation and should be exercised in good faith

Notes Example of muscular review o Rand J. interfered quite heavily o Protection of individual rights- Roncarelli’s individual rights to livelihood

is protected o Underlying assumption that limits discretion – regardless of wording

discretion must be used in good faith

Domtar v Quebec – Deferential approach Facts The appellant, an employee of the respondent company, was injured in an industrial

accident three days before the temporary closure of the plant Citing the closure, the company refused to compensate the employee for more than

those three days The Commission de la santé et de la sécurité du travail and the Bureau de révision

paritaire affirmed the company's decision and dismissed the complaint of the employee, who argued that under he was entitled to an income replacement indemnity covering the entire period of his disability, that is a period of 14 days

On appeal, the Commission d'appel en matière de lésions professionnelles ("CALP") found for the employee and ordered the company to pay him, pursuant to s. 60, 90 percent of his net salary or wages for each day or part of a day he would normally have worked according to his usual work schedule, regardless of the plant closure

The Superior Court dismissed the company's motion in evocation because, in its view, the CALP had acted within its jurisdiction and its decision was not unreasonable

The Court of Appeal reversed this judgment and granted the application for evocation

While of the opinion that the CALP's decision was not patently unreasonable, the court nevertheless observed that with respect to the interpretation of s. 60 it was in the interest of justice to resolve at once the conflicting decisions of the CALP and the Labour Court, which has jurisdiction over penal proceedings under the A.I.A.O.D

Abandoning traditional curial deference, the court consequently intervened to resolve the unstable situation and held that under s. 60 an employer is not required to pay a salary or wages to an employee injured in an industrial accident when there is a plant closure

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Issue Was the CALP's decision patently unreasonable? If so, it is open to judicial review. If not, does the fact that there were, at least apparently, divergent interpretations of the same legislative provision by two administrative tribunals give rise to judicial review?

Decision

Not unreasonable. Also, nothing wrong with the divergent interpretations

Reasons Assuming however, without deciding the point, that the CALP's interpretation and that of the Labour Court create a jurisprudential conflict, such a conflict does not constitute an independent basis for judicial review

When decisions made within jurisdiction are not patently unreasonable, the principles underlying curial deference should prevail.

Consistency in the application of the law is a valid objective but is not an absolute one

o This objective must be pursued in keeping with the decision-making autonomy and independence of members of the administrative bodies

o Legal pluralism Inquiring into a case of decision-making inconsistency and solving it where there

is no patently unreasonable error means altering the institutional relationship between administrative tribunals and courts

o Such intervention by a court of law risks eliminating the decision-making autonomy, expertise and effectiveness of the administrative tribunal and risks, at the same time, thwarting the original intention of the legislature, which has already determined that the administrative tribunal is the one in the best position to rule on the disputed decision

Administrative tribunals have the authority to err within their area of expertise, and a lack of unanimity is the price to pay for the decision-making freedom and independence given to the members of these tribunals

Recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of those principles given that administrative tribunals and the legislature have the power to resolve such conflicts themselves.

Notes Example of the deferential approach o Multiple acceptable interpretations o Different avenues for recourse and access to justice o Emphasis on expertise

Administrative officials in labour relations o Respect for parliamentary intent

Part I: Is Judicial Review Available?A court’s decision whether to grant judicial review is intimately bound up with the core tension that underlies all administrative law

What the SCC has called “an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers”

Courts are the indispensable guardians of the rule of law, but they still need to operate within their sphere of authority

o They must respect the fact that, through enabling statutes, legislatures grant authority over certain things to administrative tribunals, and not the courts

The main concern here is whether to grant judicial review at all

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o It is fundamentally discretionary in a way that appeals are not

Common Law Grounds for Denying to Judicially Review

Adequate Alternative remedy available o Other legal avenues must be exhausted before judicial review

Prematurity o Applying for judicial review prior to decision makers decisiono Often, procedural or bias issues emerge early, but you cannot bring an application before

going through the hearing o Raises practical evidentiary issues (not a sufficient record)o Reasons underlying

Issues that may be of concern could be resolved Better record Administrative decision making are meant to be quicker access to justice

Delay/Acquiescence o Should be noted o Courts will assess the delayor and if both parties will often deny

Mootnesso If a decision no longer affects the party o Remedy no longer does anything

Bad faith/Unclean hands o Still understood to be a value reason

Deferential Approach

Courts must have skeptical deference: Courts must exercise discretion “judicially and in accordance with proper principles” when deciding to grant judicial review

Overlay to the common law grounds and other considerations that the courts should consider Stems from the move towards deference as respect, which is reflected in Domtar and traceable

through Baker, Dunsmuir, and potentially Vavilov Courts must exercise discretion, judicially and in accordance with proper principles when

deciding whether to grant JRo Canada v Khosa

A series of factors the courts should take into account when considering whether to hear a JR application

Underlying this approach is the new vision of the rule of lawo Domtar excerpt (L’Heureux Dube): when we look at questions of law, certainty is

relative, and the independence of administrative decision makers means that their decisions must be respected to be effective

Judges don’t hold certainty/all of the answers to certain questions, administrative decision makers contribute as well and have their own way of interpreting statute

Rule of law must be qualified: a way of understanding the rule of law in a different perspective from AV Dciey

Certainty and consistency are still part of it, but the qualified notion indicates that it is important to respect legislative intent and if legislature

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intended these administrative officials to have some degree of power this should be respected

o McLachlin Article: courts don’t have a monopoly on things like reasons and fairness, allows courts to respect and advance the roles of administrative tribunals

Courts moving from being root guardians of the rule of law to partners with administrative bodies of the rule of law

Judges do not have all the legal answers some decision makers have a role to play Rule of Law must be qualified

o Way of understanding the rule of law to mean that it is important to respect legislative intent and the choice to have first instance decision makers

o Different from Dicey Deferential approach today

o Common law grounds: guide the courts, and underlie the analysis o Standard of review principles: for substantive review questions o Balance of convenience: Asks if judicial review is appropriate in the circumstances and

what impact it might have to third parties Courts should be using the deferential approach and exercise discretion very cautiously

(MiningWatch)o A decision to deny JR should ne exercised with the greatest care because it may make

inroads on the rule of lawo If courts defer too much, this might allow for government actors to behave poorly and

receive deference anywayso Shows the “other side” to Domtar and the McLachlin Articleo This is still considered a deferential approach, just with some competing notions to the

other sideo These concerns underlie the Vavilov decision

Superior Courts’ Jurisdiction

Courts have three sources of review power: 1. Original Jurisdiction – Courts have jurisdiction over the decisions of administrative decisions

makers when they are challenged by way of direct actions by a citizen in contract or tort on the ground that the state has infringed an individual’s private legal right (Associated with common law jurisdiction)

2. Statutory right of appeal (Distinct from judicial review) – There is no automatic right to appeal, it must be provided for in a statute. Must review the statute establishing the administrative agency and see whether any right is provided for and on what grounds.

3. Courts’ inherent judicial review jurisdiction (Constitutionally protected under section 96 and the division of powers) – Superior courts have a jurisdiction that is normally broader than statute may confer whatever. Superior courts may hear any matter unless there is a specific statute that says otherwise or grants exclusive jurisdiction to another court or tribunal

Courts ability to review can be limited by statute either federally or provincially through a privative clause – subject to section 96

Justification is parliamentary sovereignty – Parliament is supposed to be able to dictate its will and the courts should defer

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Crevier v Quebec (AG), [1981] 2 SCR 220 Facts Quebec passed the Professional Code that created a professions tribunal that had exclusive

jurisdiction via a full privative clause (Total bar on substantive review) to hear appeal from the disciplinary committees of most of the statutory bodies in Quebec

Issue What are the limits of the provincial legislature’s power to create an administrative tribunal and give it authority over matters conventionally dealt with by section 96 and section 101 courts

Decision Appeal Allowed – Court’s cannot bar judicial review on questions of jurisdiction. There is a constitutional right of judicial review on jurisdictional grounds

Reasons Jurisdictional questions are always reviewable because Parliament would never intend for decision-makers to act outside their authority

It is enough to deflect s.96 if the privative clause is construed to preserve Superior Court jurisdiction over matters of jurisdiction

Provincial legislatures that purport 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 constitution the tribunal a s.96 court

Issues of jurisdiction are not that far removed from issues of constitutionality. It cannot be left to the provincial statutory tribunal, in the face of s.96 to determine the limits of its own jurisdiction without appeal or review - It would allow the executive to determine its own limits and undermine the purpose of judicial review in the first place which is to ensure the legality of state decision making

Ratio If a provincially constituted statutory tribunal tries to insulate/immunize itself from a superior courts review on questions of jurisdiction through its legislation then the legislation is unconstitutional.

Threshold Question 1: Public Decisions

If a decision is not public, Judicial Review will not apply. In making this determination, sometimes decisions come down to whether they are public “enough”

Air Canada v Toronto Port Authority, 2011 FCA 347 Facts Air Canada sought judicial review of two information bulletins issued by the Toronto

Port Authority, the first “announcing a process . . .through which it intend[ed] to award [takeoff and landing] slots” at the City Airport and the second “announcing a Request for Proposals process”.

Air Canada argued that these bulletins constituted unfair and unreasonable “decisions” the effect of which was to give Porter Airlines priority use of terminal facilities and takeoff and landing facilities

Decision was the port authority's allocation of takeoff and landing scheduling Decision Maker = Port Authority (Port authorities are arm’s length private/public

entities) Who is impacted? -> other airlines but not the public at large

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Issue Was the Toronto Port Authority acting in a public capacity to warrant judicial review? Decision

Appeal dismissed – Toronto Port authority was not acting in a public capacity

Reasons In order to be acting as a "federal board, commission or other tribunal" the power being exercised must be of a public nature

An authority does not act as a "federal board, commission or other tribunal" when it is conducting itself privately or is exercising a power of a private nature

There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts of the case and the overall impression registered upon the Court. Some of the relevant factors disclosed by the cases are as follows:

o Character of the matter for which review is sought Guiding question: Is it a private, commercial matter, or is it of

broader import to members of the public Admin law should not be applied to things that are essentially a

matter of private commercial lawo Nature of the decision maker and its responsibilities

Is the decision-maker public in nature, such as a Crown agent or a statutorily-recognized administrative body, and charged with public responsibilities?

Is the matter under review closely related to those responsibilities?o The extent to which a decision is founded in and shaped by law as opposed

to public discretion If the particular decision is authorized by or emanates directly from

a public source of law such statute, regulation or order, a court will be more willing to find that the matter is public

This is all the more the case if that public source of law supplies the criteria upon which a decision is made

Matters based on a power to act that is founded upon something other than legislation, such as general contract law or business considerations, are more likely to be viewed as outside the ambit of judicial review

o The Body's relationship to other statutory schemes or other parts of government

If the body is woven into the network of government and is exercising a power as part of that network, its actions are more likely to be seen as a public matter

o The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity

Private persons retained by government to conduct an investigation into whether a public official misconducted himself may be regarded as exercising an authority that is public in nature

A requirement that policies, by-laws or other matters be approved or reviewed by government may be relevant

o The suitability of public law remedies If the nature of the matter is such that public law remedies would

be useful, courts are more inclined to regard it as public in nature o The existence of compulsory power

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If the body has compulsory power over the public at large or over a defined group, such as a profession, may be an indicator that the decision is public in nature. This is to be contrasted with situations where parties consensually submit to jurisdiction

o An "exceptional" category of cases where the conduct has attained a serious public dimension

Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment.

Key facts o Port authority is acting on its own absent of the federal government

Not acting as an agent of the crown o Restricted activities in letters patent

Has to be restricted to private self-sufficiency Managerial and operational seem private

o No statute to indicate close relationship Lack of statute suggests no constraints on the authority of the port

authority How much weight is given to impact to the public

o Not exceptional enough case with people being impacted for administrative purposes

Ratio If the power being exercised by the legislatively enabled body is private in nature. Then it is not eligible to be judicially reviewed

Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, 2018 SCC 26 Facts The Congregation is a voluntary association that is not incorporated and has no

articles of association or bylaws, no statutory foundation, it does not own property nor are any members bound in any way outside of their volunteering

Wall was a member of the congregation since 1980 Wall was disfellowshipped by the congregation Judicial Committee and Wall failed

to appeal to regain membership After the appeal decision Wall filed an originating application for judicial review Decision at issue: Disfellowship of wall by the choice of the congregation

Who made it: o The Highwood Congregation judicial committee and appeal committee

What authority: o Voluntary association is private and has no statutory regime

Who is impacted: o Wall and his ability to participate

Issue Can the courts review decisions made by private organizations for procedural fairness? Decision Appeal allowed – Courts may not judicially review decisions of private organizations Reasons A decision will be considered to be public where it involves questions about the

rule of law and the limits of an administrative decision maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean

that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making.

Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review

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jurisdiction of the Federal Court was engaged. The proposition that private decisions of a public body will not be subject to judicial review does not make the inverse true. Thus it does not follow that “public” decisions of a private body — in the sense that they have some broad import — will be reviewable.

The present case raises no issues about the rule of law - The Congregation has no constating private act and the Congregation is in no way exercising state authority

Ratio If the private organization is not exercising statutory authority in a public nature then the court has no jurisdiction to review the matter

McDonald v Anishinabek Police Service (2006), 53 CCEL (3d) 126 (Ont SC)Facts The applicant, Allan McDonald, was a First Nations Constable with the Anishinabek

Police Service ("APS"). During a training course at the Ontario Police College, a number of complaints of sexual misconduct were made against him. On November 29, 2001, he was expelled from the training program and simultaneously, the Chief of Police of the APS terminated his employment.

He brings this application for judicial review alleging that the Police Chief was without statutory authority to discharge him and that there was a lack of procedural fairness and a denial of natural justice. He seeks reinstatement and payment of his wages from the date of his termination.

Decision at issue Termination of McDonald and expulsion from the training The decision was made by the police chief

How was the decision made and on what authority? Tripartite agreement (Like Toronto Port authority) Power to self-administrate granted under the Indian Act

o This highlights the unique circumstances and agreements that characterize Aboriginal administrative law

o Constables are given power under the Indian Act Issue Is there jurisdiction to conduct a judicial review?Decision

Certiorari granted – Judicially reviewable it is a public body fulfilling a governmental function as part of the machinery of government and is therefore subject to judicial review.

Reasons In determining whether a body is subject to judicial review the court must look not only at the source of the power, but the nature of body's functions - If the body is fulfilling a governmental function, then the body is part of the machinery of government and is subject to public law

The scheme of this Agreement is to mesh the Indian Act responsibilities of Canada with the police responsibilities of Ontario so as to create an autonomous Aboriginal police force to police the reserves with cultural sensitivity, but with a limited degree of traditional police involvement at the key points of entry into and exit from the police service

The Code of Conduct is not a statute and in terminating the applicant's employment without a hearing, the Chief of Police was not exercising a "statutory power" or a "statutory power of decision". His authority to discipline the applicant is a creature of contract, rather than statute

In this case, review was sought of a decision of a board established, not by statute, but pursuant to the prerogative powers of the executive branch of government.

The APS was created by government action through the Tripartite Agreement and, but for the Agreement, the Government would directly occupy the area through either

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the RCMP or the OPP. The source of the power exercised by the APS is entirely public. Its constables derive their police powers from a statutory appointment by the Commissioner. It exercises this power without the need for consent from those affected and can seriously affect the rights of citizens and police alike. As First Nations Constables, APS police officers exercise the powers of police officers across the province. It is funded by Ontario and Canada with public funds.

Dicta Contrasting this with Toronto Port Authority o Policing services are typically public o Not just the contractual power being exercised it is traceable through the

tripartite (contractual agreement) to the Indian Act and the prerogative powers of the executive

Initial decision to delegate in the tripartite agreement

Threshold Question 2: Standing Parties have to have standing to bring judicial review applications

o People that are not directly parties to the matter may bring matters under the “Public Interest Standing”

Finlay v Canada (Minister of Finance), [1986] 2 SCR 607 Facts Finlay was a resident of Manitoba who relied on social assistance

Finlay sought declaratory and injunctive relief to the effect that the transfer payments made by the federal government to Manitoba under the Canada Assistance Plan

The basis for the claim was the relevant Manitoba social welfare legislation did not comply with the Plan’s requirements for transfer payments to the provinces

Compliance allegedly would have produced a higher level of assistance for Finlay Issue 1) Does Finlay have sufficient personal interest to challenge federal action?

2) Does Finlay have a public interest standing?Decision

Finlay has a public interest standing

Reasons Issue 1: Finlay does have a genuine interest, but the relationship is too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule

Issue 2: Finlay does have a public interest standing o Finlay raises a serious justiciable issue regarding the legality of administrative

action Question on the limits of statutory authority

o Finlay has a genuine interest Finlay is 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 and not a mere busybody

o There is no other reasonable and effective means to resolve the matter It is clear from the nature of the legislation in issue that there could be

no one with a more direct interest than the plaintiff in a position to challenge the statutory authority to make the federal cost-sharing payments

o Judicial concerns that animate the test

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The allocation of scarce judicial resources, the need to screen out mere busybodies, that the determination of the issues should include the contending points of view of those most affected, and the proper role of courts and their constitutional relationship to other branches of government

Ratio Test for Public Interest Standing (from Borowski)

Does the applicant raise a serious, justiciable issue regarding the legality of administrative action?

Was the decision procedurally unfair? Has the administrative agency acted unconstitutionally? Does it appear that the decision-maker was biased?

Does the applicant have a genuine interest in the outcome or are they a “mere busybody”?

This is to preclude vexatious litigation. Recognizes that while the litigant might not have formal legal rights, they may

nonetheless have a genuine interest.

Is there another reasonable and effective manner to bring this issue before the court? Is the Attorney General or another interested party likely to bring an application for judicial review?

Is there another potential litigant who might be more directly affected to bring this action?

Courts like to see that the AG has been apprised but has refused to take action; that a public interest litigant has unsuccessfully tried other means to bring this issue before the court.

Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 Facts Downtown Eastside brought a Charter challenge against the prostitution provisions of

the Criminal Code asserting both private interest and public interest standing Issue Does Downtown Eastside have public interest standing? Decision Public Interest grantedReasons The test from Borowski is a set of interrelated factors

o They should not be treated as hard fast, free-standing requirements o Should be weighed cumulatively, in light of the underlying purpose of limiting

standing and applied in a flexible and generous manner that best serves those underlying purposes

Interpreting “reasonable and effective” manner (third step) o There is no binary yes, no. Must be interpreted flexibly o Courts should consider whether the proposed action is an economical use of

judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality

o Illustrative, non-exhaustive factors: Plaintiff’s capacity to bring forward a claim

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Examine the plaintiff’s resources expertise and whether the issue is in a sufficiently concrete well-developed factual setting

Whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action

Are there realistic alternative means which would favour more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination

Practical and pragmatic approach Does the plaintiff bring a useful or distinct perspective? Are there other proceedings underway by more direct people?

The potential impact of the proceedings on the rights of others who are equally or more directly affected should be taken into account

Would failing to grant standing prejudice future claims? Was a direct or personal stake deliberately refrained from

suing?

Threshold Question 3: Which Forum to go to? Is it provincial or federal?

Look to the source of the decision-maker’s powero If the statute is provincial likely provincial superior court o If the statute is federal likely the federal courts o Prerogative power is likely to be federal

Threshold Question 4: Timing Are there important deadlines that were missed?

Always check the administrative body’s enabling statute

Alberta Rules of Court Rule 3.15(2): Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.

Alberta Rules of Court Rule 3.16(1): An originating application for an order in the nature of habeas corpus may be filed at any time and must be served under rule 3.15(3) as soon as practicable after filing.

Federal Court Act – section 18.1(2): An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

Threshold Question 5: Have all the other alternatives been exhausted

Check the enabling statute and the rules of court

Example: Federal Courts Act section 18.5: Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of

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Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.

Part 2: Grounds for Judicial Review

Procedural Obligations Arising from Statutory Frameworks 3 major sources of procedural obligations (in their order of supremacy)

1) Constitutional 2) Statute 3) Common law

2 Statutes to Consider 1) Enabling Act

a. Includes: Home statute, Delegated legislation and soft law 2) General Procedural Codes

a. Ex: Alberta Administrative Procedures and Jurisdiction Act

These statutes advise certain decision makers the process they must follow

Enabling Act Is the source and sets out the power decision maker’s have Sets out everything – details and the process by which they can or cannot do something Delegated legislation

o Regulations and rules Soft law (ie: Policies, guidelines, forms, checklists)

o Not legally binding o Guide decisions – useful for vague binding rules o Even though not legally binding, in practice, this is what is used o Cannot fetter decision makers discretion o Cannot be understood as rules that must be followed

Differentiating between delegated or soft law Indicia

o Was cabinet involved? Or Members involved (minister in council, etc.) Does not have to have this to be legally binding (50/50)

o Statutory provision saying they can create binding rules and regulations***o Some statutes say guidelines, but do not say or indicate legally binding - likely soft law o Rules that are typically binding are more accessible but non-binding are often are

available non-conclusiveo Binding rules are typically more accessible and non-binding soft-law are often in-house

or are available but non-conclusive

Thamotharem v Canada Facts Mr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September

2002 on a student visa. In January 2004, he made a claim for refugee protection in

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Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam

Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing

RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.

Issue 1) Is guideline 7 hard or soft law? 2) Is guideline 7 an unlawful fetter on the decision-maker’s discretion

Decision 1) Guideline 7 is soft law 2) Guideline 7 is not an unlawful fetter on the decision-maker’s discretion

Reasons Issue 1 o 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

o The scheme of IRPA is different, particularly the inclusion of a potentially overlapping rule-making power and the absence of a provision that guidelines are binding on adjudicators.

Issue 2o 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, such as that members have routinely refused to consider whether the facts of particular cases require an exception to be made.

o The language of Guideline 7 is more than “a recommended but optional process”. However, 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

o There was evidence that, when requested by counsel, members of the RPD had exercised their discretion and varied the standard order of questioning in cases which they regarded as exceptional. No such request was made on behalf of Mr Thamotharem. In any event, members must permit a claimant to be questioned first by her or his counsel when the duty of fairness so requires.

o Those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities that members rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances

o 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. On a voluntary basis, members complete, infrequently and inconsistently, a

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hearing information sheet asking them, among other things, to explain when and why they had not followed “standard practice” on the order of questioning. There was no evidence that any member had been threatened with a sanction for non-compliance.

Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61 Facts Kanthasamy is a Tamil from northern Sri Lanka. In April 2010, fearing for his

safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle

When he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97, which permit applicants to seek refugee status based on a “well-founded” fear of persecution.

The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country

Filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act, seeking to apply for permanent resident status from within Canada. He was then 17 years old. The denial of relief would result in his removal from Canada.

The Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations. Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate

Issue Did the officer give too much weight to the guidelines Decision

The Officers reliance on the guidelines was unreasonable

Reasons The humanitarian and compassionate discretion in s. 25(1) was, therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words of Janet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”

According to the Guidelines, applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined as hardship that is “not anticipated or addressed” by the Immigration and Refugee Protection Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”

The Officer failed to consider Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate,” then appeared to discount each from her final conclusion because it failed to satisfy that threshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of

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improperly restricting her discretion The three adjectives are merely descriptive, not separate legal thresholds to be

strictly construed. (Cannot use non-binding documents as a legal test) Checklist treatment of guidelines led to insufficient weighing of child status

Dissent The officer considered the evidence as whole sufficiently

General procedural codesIn addition to procedural obligations set out in the enabling statutes, regulations, rules, policies and practices unique to a decision-maker, some administrative decision-makers are also subject to procedural obligations set out in general procedural statues

General procedural codes have been enacted in QC, ON, AB and BC These statutes set out common procedures that govern the decision-making bodies that fall within

the scope of the statutes Each jurisdiction has taken different approaches to application

o In AB, the Administrative Procedures and Jurisdiction Act (APJA) applies to tribunals designated by the Lieutenant Governor in Council or by express terms of a decision-maker’s enabling statute

o It does not relieve a tribunal from complying with procedures in other applicable statutes; it can operate in conjunction with them

The 4 general procedural codes also represent different approaches to the appropriate level of specificity in a common set of procedures

Alberta’s Administrative Procedures and Jurisdiction Act Notice – must be adequate (s 3) Evidence – parties effected must be given the opportunity to present evidence (s 4) Cross-examination – there is broad right to cross examine in the interest of parties (s 5) Oral hearing – there is no right to an oral hearing (it can be a paper hearing) (s 6) Counsel – not required to be represented by counsel (s 6)

Who is regulated by this Act? The Land Compensation Board, Surface Rights Board, Alberta Transportation Safety BoardNatural Resources Conservation Board

*** on exam, first determine whether the body you are analyzing is or is not governed by the AB APJA***

Common Law Procedural Obligations Common law is used to fill in the gaps of statute and therefore requires one to prioritize statutes.

First, look to the statute to see if it has procedural provisions If statute is silent look to common law If statute is not silent, but has things that harmful look to constitutional obligations

When do Common Law Procedural Obligations Arise?

Cardinal v Directors of Kent Insitution, (1985 SCC) Facts Cardinal was in “administrative segregation” in a maximum security prison.

He was involved in a hostage-taking incident at a different institution, before being transferred to a maximum security prison, where he was segregated.

Segregation is to be reviewed once per month by the Classification Board. Board began recommending that Cardinal be taken out of segregation, but the Director

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of the institution did not follow that recommendation. He believed that reintroducing Cardinal into the general population would introduce an

unsettling dynamic – although he had no reasons for this other than instinct.Issue Does the director owe a duty of procedural fairness to the prisoners Decision

The Director breached PF when he failed to afford the appellants a fair hearing or reasons as to why he would not accept recommendation of the Segregation Review Board that Cardinal be released into the general population.

Reasons When does the common law duty of procedural fairness arise?o There is, as a general common law principle, a duty of procedural fairness lying

on 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

Because of the serious effect of the Director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution

o Court found and filled gap in the discretion of the Director o Director still has discretion, but that is not unlimited (Like Roncarelli)

There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security

Ratio If the decision made by an authority is 1. A decision made by a public authority 2. Is not legislative/administrative in nature 3. Affects/impacts the rights privileges or interests of an individual

Then the general common law principle of a duty of procedural fairness arises

2 Exceptions to common law procedural fairness obligations 1) Contractual Employment Relationships

a. Look to contract – procedures likely provided in contract2) Legislative Decisions

Homex Realty and Development v Wyoming (Village), (1980 SCC) (Distinguishing legislative vs administrative decisions)Facts Property developer building a subdivision in Wyoming, ON

There was a dispute over who should pay for servicing the lots in the property development. Developer wants Municipality to pay and municipality says developer should pay larger share because he is profiting.

Without giving notice, the village passes a bylaw revoking the subdivision plan, significantly decreasing its property value. Homex applied for judicial review to quash the zoning bylaw.

Homex argues that municipality acted unfairly and should have given Homex notice that it was considering this type of bylaw and given Homex opportunity to respond.

Issue Was there a duty of fairness owed to the property developer? Was it breached?Decision A duty of fairness was owed and breached. But the property developer is not given a

remedy because it did not seek equitable relief with clean hands. Criticism: Admin law shouldn’t be about private conduct being unseemly – it

should be about public conduct having integrity.

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Reasons The decision is quasi-judicial and not legislative in function o The decision was directed at inter partes rights and was clearly targeting and

affecting Homex individually and not the public Council’s action was not in substance legislative but rather quasi-judicial in character

so as to attract the principle of notice and the consequential doctrine of audi alteram partem

The statute did not displace the rule of audi alteram partem and the resultant duty in Council to hear first and decide later

There was no hearing in the formal and ordinary sense by the Council and, while each side was fully aware of the other’s position, Homex did not receive an opportunity to make known its position once fully aware of the Council’s final position

The conduct of Homex to rid itself of the obligations under the agreement with Atkinson were such that it should be denied a discretionary remedy

Canada v Inuit Tapirisat of Canada, (1980 SCC) (Distinguishing legislative vs administrative decisions) Facts CRTC has power to regulate the rates of utilities. National Transportation Act

authorizes the Cabinet to vary or rescind any order, decision, rule, or regulation of the CRTC. Appeal lies from the Commission to the Federal Court of Appeal.

Bell applied to CRTC for rate increase, granted. Inuit appealed to Cabinet. CRTC and Department made submissions to Cabinet – Inuit Tapirisat is not provided with this material.

Minister of Communications made a motion at Cabinet to dismiss appeal which passed. Inuit made a motion in Federal Court that a hearing should have been given – appealed to SCC.

Issue Was there a duty of fairness incumbent on Cabinet in dealing with the Inuit Tapirisat to entitle IT to a hearing?

Decision No - this was a broad policy decision and would be impractical to allow a hearing. Reasons There was broad discretion granted to the minister

Key Indicator: a “legislative” decision is that there is no discrete individual right at stake, the Minister’s decision is binding on a large number of parties. This indicates it is a legislative decision because legislatures function to make decisions that govern a large number of people.

o Wide-ranging policy decision is “legislative action in its purest form” (legislative functions rationale).

o It would be impractical for all affected stakeholders to seek judicial review (logistical problems rationale).

Ratio If the decision does not target individuals rights, rather effects a large number of people then the decision is likely legislative and there is not duty of procedural fairness

Take-Away Points To determine if common law procedural obligations arise, start with the Cardinal framework

o Is this decision made by a public authority?o Is it an administrative or legislative decision?o Is it affecting individual, private rights or a large group?

Most important consideration

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Do any exceptions apply? Legislative decision or employment context

WHAT DOES COMMON LAW PROCEDURAL FAIRNESS REQUIRE?

1) Natural Justice- Old common law remedy

Nicholson decision

2) Procedural fairness- Baker v Canada- Suresh v Canada

History of common law obligations (Kate Glover from Administrative Law in Context pg. 186-191)Evolution from natural justice to procedural fairness

- Fairness used to suggest certain procedural requirements/processes used- If process flawed, outcome cannot stand

Process cannot be arbitrary, people need fair chance to have case heard- Fairness as cultural – based on Western ideologies on justice

Notice? Reasons? Oral hearings? In administrative law, processes required may be slightly different. Courts must analyze

what is necessary The requirements of what is fair have shifted over time.

Before 1979 and Nicholson decision- Processes decided by natural justice – this was an all or nothing framework

Natural justice as full court-like procedure- Court would categorize administrative proceedings – was the decision at hand judicial/quasi-

judicial, or was it administrative/legislative? If administrative/legislative – no natural justice protection If judicial/quasi-judicial – get full natural justice and all proceedings at common law are

available People unsatisfied with this all-or-nothing approach

- At common law, natural justice means: Audi alteram partem (hear the other side/hear both sides). Means all judicial processes

available (hearings, notice, evidence, cross-examination, etc.). Must hear all evidence to ensure decision is not arbitrary.

Nemo judex in sua causa (no person can be a judge in his/her own case). Means the judge should be neutral, that is, have no interest (personal, financial, relationship-based) in the matter at stake. Evident in the rule against bias.

Nicholson v Haldimand-Norfolk Police (1978 SCC) Facts Nicholson was probationary officer, sought overtime pay, request dismissed by

superior. Nicholson phoned a superior and then the Board of Police Commissioners fired him for insubordination. No reasons or hearing.

Nicholson challenged the termination on the ground that it was “unfair”. In this case – this was firing Nicholson without hearing his side of the story. In the regulations operative at time of Nicholson’s complaint, senior officers were given procedural

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rights which are not afforded to junior probationary officers. Nicholson tries to draw on the principle from Cooper that the police board has to abide

by a common law duty of procedural fairness before exercising their statutory right to terminate him.

Issue Was Nicholson entitled to procedural fairness in the decision to terminate him?Decision Nicholson should have been treated “fairly, not arbitrarily” (been told explicitly why he

was being terminated and been given opportunities to make submissions to the board). Vacated Police Board’s decision, restored Nicholson’s position.

Nicholson was entitled to notice (why he was terminated) and an opportunity to respond

Although Laskin did not explicitly reject the categorization of decisions as administrative or judicial, he extended some of the rules of natural justice into administrative decisions, 

o Court decides to create “middle ground” of procedural fairness obligations If decision judicial/quasi-judicial – full natural justice If decision administrative – procedural fairness obligations

Dissent Adopted Police Commissioners’ Argument: The Legislature granted procedural rights to a certain class (senior officers), and by implication, was excluding other classes (junior officers).

Ratio Any time a public actor is exercising a delegated statutory or prerogative power, a general duty of procedural fairness will be implied unless expressly excluded by statute. Lessened importance of distinction between “judicial” and “administrative” decisions.

Post-Nicholson Natural justice preserved for judicial or quasi-judicial decisions Procedural fairness introduced for administrative decisions Nothing for legislative

Baker v Canada (1999 SCC) Facts Baker was in Canada illegally, working as domestic worker, had 4 kids. Ordered

deported. Brought application for exemption on humanitarian grounds. Officer rejected her application without giving reasons. Baker got the decision notes and applied for JR

Fed Ct TD dismissed application for JR: assumed good faith by officer despite no reasons.

FCA said appeal was limited to the question certified by TD: Must fed immigration authorities treat the best interests of the Canadian child as primary consideration under s 114(2) even though Act does not incorporate intl obligations?

Issue Was does the duty of procedural fairness require here? Decision

Medium level of procedural obligations

Reasons Underlying all the factors is the notion that the purpose of the 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

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affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Several of the factors described above enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances

o 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

o Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law

o These factors militate in favour of more relaxed requirements under the duty of fairness

On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court -- Trial Division

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 -- the claimant and his or her close family members -- and this leads to the content of the duty of fairness being more extensive

Finally, applying the fifth factor described above, 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

The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis

Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model

Which procedures were required?

Found medium level of procedural obligations required Entitled to:

o Reasons – but notes of Officer Lorenz sufficient to meet this standardo Not entitled to an oral hearing – paper-based exchange of documents

sufficiento No legitimate expectations found

Ratio Baker Factors: Factors relevant to determining content of duty of PF but list is not exhaustive (Criteria does not tell you what is required, but will demonstrate the level of obligation owed: Heavy, medium, light)(1) nature of the decision being made and process followed making it

o The more the process provided for, function of tribunal, nature of the decision-making body, and the required determination of decision resemble judicial decision making the more likely that procedural protection closer to the trial model will be required

o Lighter procedural obligations: Administrative Decision impacts more people More informal discussion/no preservation of record

o Heavier procedural obligations: Judicial or quasi-Judicial Impacts a smaller number of people Hearing/trial

(2) nature of statutory scheme and the terms of the statute pursuant to which body operates

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o Greater procedural protection when no appeal procedure provided or when decision is determinative of the issue and further requests cannot be submitted

o Lighter procedural obligation: The statue enables someone to conduct more fact finding or preliminary decisions; Baker says seeking exemptions rather than applying a general rule

o Heavier procedural obligations: "End of the road" decisions (ie: no appeal)(3) the importance of the decision to the individual or individuals affected

o The more important the decision is to the lives of those affected and greater the impact, the more stringent the procedural protections that will be mandated

o Significant factor affecting content of PFo Lighter procedural obligation:

Example: Planning decision that affects your neighbourhood but not you necessarily

o Heavier procedural obligations: Section 7 of the Charter at stake because they represent a

significant individual right at stake Individual rights at stake: D'Errico - Although no clear section 7

the payment of benefits raises significant rights and interests (4) the legitimate expectation (LE) of the person challenging the decision

o Does not create substantive rights (Old St. Boniface) but if claimant has legitimate expectation that a certain procedure will be followed, the procedure will be required by duty of PF

o Similarly if claimant has LE that certain result will be reached in their case, PF may dictate more extensive procedural rights than would otherwise be accorded

o Based on principle that circumstances affecting PF take into account the promise or regular practice of admin 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 w/o according significant procedural right

(5) the choices of procedure made by agency itselfo Take into account and respect agency choices especially where the statute

leaves decision-maker the ability to choose its own procedure or when agency expertise in determining appropriate procedures in circumstances

o Lighter procedural obligation: Broad, discretionary powers Institutional constraints/capacity

Example: there is a backlog of cases and for efficiency's sake they should be able to go through cases quickly

Added flexibilityo Heavier procedural obligations:

Less discretionary

Post-Baker- Procedural fairness as spectrum to be assessed by courts- Assess quality of obligations that arise – heavy light – then ask what exactly is required.

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Suresh v Canada (Minister of Citizenship and Immigrations), 2002 SCC 1 Facts Complicated decision-making process occurred under Immigration Act

Suresh from Sri Lanka, initially applied for and granted refugee status in 1990s In 1995 Canadian Minister and Solicitor-General began deportation process – said

Suresh was funding terrorist activities in Sri Lanka4 Step process taken in deportation process:

i) Under Immigration Act s 40.1 – certificate issued based on information about Suresh received from CSIS on security groundsii) Certificate referred to Federal Court for assessment of reasonableness. Federal Court upheld security certificate as reasonableiii) Deportation hearing held. Adjudicator found no reasonable grounds to find Suresh linked to terrorist acts. But awarded deportation anyways because of his involvement with organization. iv) Ministerial opinion issued that Suresh was a danger to security of Canada.

Suresh makes submissions to opinion Immigration officer considers submissions and provides them to minister

with recommendation that Suresh be found a danger to Canada. These are understood as findings of fact.

Issue Are Suresh's s. 7 rights engaged so as to cross the procedural fairness threshold? If so, what is the nature of the procedural fairness owed?

Decision What procedures are required No oral hearing required But Suresh must be better informed of case against him through Notice Disclosure/information requirement – then additional opportunity to make

submissions/respond

Reasons Court uses Baker criteria to help determine what fundamental justice requires in s 7 of Charter

Fairness as one of the basic tenants of the legal system Objectives in Baker guide fundamental justice analysis under s 7 – inform

s 7, but not determinative of outcomei) Nature of decision:

Neutral Here, this was a judicial decision of a serious nature, which argued for

more procedural fairness, but there was also a discretionary and policy element which argued for less

ii) Statutory scheme: The Act contained extensive procedures under s 40.1 to ensure the

certificates are issued fairly and allow for meaningful participation of the person involved, but offered no protections at all under s 53(1)(b)

This, combined with no right of appeal, pushed towards more procedural protections

Because final decision, expect heavier procedural obligationsiii) Importance of right

Suresh had a very significant interest in remaining in Canada; there was a real risk of torture if he returned, plus deportation would entail serious personal, financial and emotional consequences

Section 7 of the Charter represent significant individual rights at stake iv) Legitimate expectations

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Article 3 of the Convention Against Torture explicitly prohibits deportation of persons to states where there are substantial grounds for believing they will face torture – this convention necessarily informs s. 7 of the Charter

"It is only reasonable that the same executive that bound itself to the [Convention Against Torture] intends to act in accordance with [its] plain meaning."

This is a pretty novel argumentv) Choice of procedures argument

Ministerial officials have discretion and deference is thus owed. Medium to light procedural obligations

Synthesizing Baker

Each criteria weighs towards heavier or lighter procedural obligations Once all weighed, they will produce some form of procedural obligations The list of factors is elastic and itself subject to modification when the context calls for it The overarching simple requirement is fairness. Assessing the Baker factors leased to a qualitative analysis - the goal is to gauge where a particular

decision-making context falls on a spectrum of fairness o Seeking to determine whether the burden of fairness is heavy, light or somewhere in between

Once the weight of the burden is determined, you then decide which specific procedures will satisfy the duty of fairness in the circumstanceso Context-specific and flexible - the range of possible procedures to be canvassed and

considered is open and flexible as the administrative state allows for a diversity of modes of participation, modes of decision making and modes of reason giving

o Usual range of possibilities includes procedures dealing with: Notice

Most fundamental of participatory rights Issue the rights of participation is meaningless without notice that a decision was

made Meant to afford those concerned a reasonable opportunity to present proofs and

arguments and to respond to those presented in opposition Disclosure Hearings Right to representation Opportunities to call evidence and Cross-examine witness Deadlines and the relevance of timeliness

Take away points: o When assessing common law procedural obligations, ask:

What level of procedural fairness is required (5 Baker criteria) Are any specific processes required?

Ex: Is notice required? Were the processes followed in this case adequate?

Did they meet the burden or obligation that the state had to provide a certain level of fairness

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Content of the Duty: Notice What is notice?

o It is the most fundamental of all participatory rights Practically speaking, it is impossible to exercise other participatory rights if you do not

know that the hearing is happening , what it is about and what is required of the person impacted

Enables people to participate in a decision and ensures the process itself is not arbitrary or capricious (See Gough)

o Adequate notice is required Enough to know how one might be affected Enough to prepare representations (evidence, arguments)

What quality is requiredo Form of the notice (Can it be understood?)

If you cannot understand it might not be appropriate Is individual notice required?

o Timing of the notice (is there enough time to think about, and gather evidence concerning the decision)

o Content of notice (is there sufficient information to know what decision is being made and the impact?)

Different forms in different contexts Might be disclosure (term is often is used interchangeability) or it could be just a letter Might require something like plain language in certain situations

Example: Look at Suresh (para 122) o Required general notice of the decision and a disclosure of the information so he could

respond

Gough v Canada (Nationale Parole Board), (1990 FC aff’d FCA 1991) Facts 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 ("the board"), relying on subsection 17(5) of the Parole Regulations and the authority it created to refuse disclosure of information, never revealed 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.

These were just allegations no criminal charges were laid

Issue How much notice is required to someone deprived of their liberty and what quality is required?

Decision

G is entitled to sufficient detail respecting the allegations being made against him to enable him to respond intelligently thereto unless the respondent can demonstrate otherwise

Reasons Gough's arguments o Hierarchy of procedural obligations - Regulation was clear, so no gap to be

filled. Instead, Gough grounds his argument in section 7 of the Charter through his liberty rights that he should have received some notice

Even though s.17(5) allowed the Parole board not to give notice, the constitutional requirements outweighed and required some notice

Officials arguments

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o Gough did the act so he already knows why he is being treated this way Court response: If he already knows then there is no harm in letting

him know. It is no answer to say that the applicant need not be given the information because he already knows it

It is not enough to say that prior knowledge of the actions is a defence of no notice - Still need information to participate intelligently

o Notice would jeopardize the safety of the informants Court response: Distinction between an incarcerated person and a

paroled person in terms of the level of risk they pose Court response: it is not clear that the notice Gough requires would

risk anybody An individual's liberty (even the conditional liberty which a parolee enjoys) weighs

very heavily in the scales when compared to competing interests.o There is also a public interest in employing procedures which are fair,

for dealing with all members of society including paroled inmates. Procedures which have the appearance of being arbitrary and capricious are by their very nature not in the public interest.

Administrative convenience does not justify a denial of fundamental justice Quality of notice

o Sufficient/adequate notice to enable him to respond intelligently This means he does not need the identity of the informants Notice is not black or white (ie: everything or nothing)

Does not require lengthy, robust or all encompassing notice or full disclosure

Possible problem/counterargument: Gough could still possibly infer the identity of the informants

Ratio 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

o The requirement that an individual is entitled to know and be given an opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations but also to give the person who has been accused the assurance that he or she is not being dealt with arbitrarily or capriciously

Mission Institution c Khela, 2014 SCC 24 Facts Khela was in a federal maximum security prison for first degree murder, they sent him

to medium after fix years, and then he allegedly had two inmates stab another inmate to death in exchange for three grams of heroin.

Khela was transferred to a maximum security prison, based on a Security Intelligence Report, where three anonymous informants gave evidence supporting the allegations against Khela.

Khela brought an application for habeas corpus on the grounds the decision was procedurally unfair because he was not provided sufficient notice of the allegations against him, to respond to them for the purposes of the decision to transfer him to a maximum security prison.

 

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Corrections and Conditional Release ActSection 27(1) of the CCRA establishes where an inmate is entitled by regulations to make representations, the decision maker must give him or her “all the information” to be considered in taking a final decision regarding the transfer, subject to section 27(3), which allows information to be withheld where its disclosure would jeopardize the safety of any person, the security of the prison, or the conduct of a lawful investigation.

Issue Did the decision not to provide Khela with notice of some information pertaining to the allegations against him pursuant to the CCRA, violate the warden’s duty of procedural fairness in making the decision to transfer him?

Decision Duty of procedural fairness violated. Therefore the resulting decision to transfer him to a maximum security prison was unlawful, and it was appropriate for it to be quashed.

Reasons The Warden was required to provide Khela sufficient notice of the allegations, (including sufficient time) that Khela could respond intelligently to them, which in this circumstances included a summary of all material relied on to make the decision to transfer him to a maximum security institution.

Pursuant to the CCRA, the Warden could withhold relevant information from Khela, but only if the Warden could establish that reasonable grounds existed for withholding the information for one of the reasons set out in the CCRA.

-However, this obligation only arises if the decision is challenged by the affected (in the Habeas Corpus application), the Warden may submit this evidence by way of a sealed affidavit presented to the Court, and the Court should review inferences drawn from that evidence deferentially due to the Warden’s perceived expertise in prison matters.

The Warden withheld certain information that it relied on in making its decision, from the affected, and did not discharge its burden to establishes there was a sufficient evidentiary basis that the Warden had reasonable grounds to believe disclosure of that information may cause a risk to the informants, the security of the prison, or the investigations against the accused.

o Needed to provide notice of why information is withheld o Summary of evidence considered was enough

Take away points form cases: o To determine the quality of notice ask

What degree of procedural fairness does the common law require (Baker factors) Are any specific processes required Was notice sufficient in this case

Notice is important, but even where liberty interests are at stake it can just be enough notice to participate intelligently

o Quality of notice Form Timing Content

Content of the Duty: Right to a Hearing

There are a range of hearings ranging from open format school board meetings to paper-based hearings

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There are 2 key principles that underlie the right to a hearing 1) Meaningful participation

a. This is broad and can look like many different things i. Can be:

1. Opportunities to present evidence such as checklists, letters, oral arguments

2. Opportunities to have them fully and fairly considered by the decision maker

2) Fair and non-arbitrary decision making that considers the facts a. Decision can be arbitrary because they are not transparent and overlook the evidence

The 2 principles need to be balanced against institutional constraints

Baker v Canada (1999 SCC) Facts Baker was in Canada illegally, working as domestic worker, had 4 kids. Ordered

deported. Brought application for exemption on humanitarian grounds. Officer rejected her application without giving reasons. Baker got the decision notes and applied for JR

Fed Ct TD dismissed application for JR: assumed good faith by officer despite no reasons.

FCA said appeal was limited to the question certified by TD: Must fed immigration authorities treat the best interests of the Canadian child as primary consideration under s 114(2) even though Act does not incorporate intl obligations?

Issue Was does the duty of procedural fairness require here? Decision

Medium level of procedural obligations

Reasons Which procedures were required? (See above for analyssi)

Found medium level of procedural obligations required Entitled to:

o Not entitled to an oral hearing – paper-based exchange of documents sufficient

Quality of paper-based hearing o Baker was entitled to have full consideration of her circumstances, a paper

based hearing satisfies this o Why: Robust set of records that were before the decision maker that

contained all the relevant information

Singh v Canada Facts Mr. Singh and six other applicants had been refused convention refugee status under

the Immigration Act. The Act provided that an applicant was to be examined under oath by a senior

immigration official; a transcript of that examination was to be sent to the Minister and the applicant; the Minister would seek advice on the matter from an Advisory Committee, then decide.

The Court concluded that a necessary implication of these provisions was that the Immigration Act did not allow for an oral hearing before the Minister.

Issue Does Singh have a right to an oral hearing? Decision

s.7 overrides statutory procedures. Singh had a right to an oral hearing

Reasons Pre-Baker but the quality of procedural obligations would likely be high

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o Factor: Significance to individual interests Extremely high stakes, Singh could be subject to torture Sometime all the dials do not have to be turned. An individual one

can be determinative o However, high procedural obligations is not determinative of right to an

oral hearing Oral hearing is required due to seriousness of credibility in making the decision

o Where the applicant is the key force of evidence (credibility_, it is necessary to have an assessment of credibility (Oral hearing)

o Provides Singh an opportunity to provide evidence in front of people and allows the minister to make an examination and test the credibility evidence

Ratio If the key evidence of the decision involves serious issues of credibility, then procedural fairness will likely require an oral hearing

Khan v University of Ottawa Facts Khan failed a law school exam

Khan claims that one of her 4 exam booklets were missing Professor only had 3 and they were numbered 1/3 2/3 3/3 4th booklet never located Committee met without providing her notice of the meeting or asking her to appear,

and dismissed her appeal solely on the basis of written materials. She appealed to the University Senate Committee, who also denied her appeal. She

sought judicial review.Issue Was an oral hearing required in the circumstances?Decision Yes. Quashes the Faculty’s decision and sends it back for a re-determination.Reasons Nature of interest affected = serious: delayed career, render valueless previous

academic success (BF3) Faculty committee relied entirely upon circumstantial evidence: strict procedure and

efforts of exam administrator, fact that there had never been an allegation of a lost booklet before, fact that booklets were numbered 1/3, 2/3 3/3 and fact that very little was written in 3rd booklet

Credibility was the central issue before the committee: did they believe her or not?o K had explanation for the facts on which committee relied – were obliged

to hear her before rejecting her explanation. When a decision turns on credibility a decision-maker should not make an adverse finding of credibility without affording the affected person an oral hearing. 

Ratio If the key evidence of the decision involves serious issues of credibility, then procedural fairness will likely require an oral hearing

Content of the Duty: Reasons

Traditional CL rule: No duty to give reasons. (increased cost, delay, lack of candour) Baker recognized a (non-universal) duty to give reasons where the decision has important

significance for the individual, when there is a statutory right of appeal, or in other circumstances

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Pro-Reasons: articulated reasoning, the process of writing reasons supports Rule of law by improving decisions, allows parties to challenge decision by giving appellate body something to assess, parties feel like treated fairly

Con-Reasons: too much burden on administrative officials (can be mitigated by ensuring reasons requirement can be met flexibly.

General trend in favour, with some exceptions: planning decisions, Ministerial decision to close community college, Debt collection proceedings against immigration sponsors (Canada v Mavi)

Do not have to be judicial-like rationales (Ex: CRA’s notice of assessment) Elements of Reasons

o Accessible (to outsiders), intelligible language, written o Justify or explain why a decision was reached

Why do reasons matter? o Important for the rule of law

If impactful and appealable the affected party should have reasons to know the decision and whether they should appeal

o Access to justice Better decisions by making the decision review and consider their choice carefully

o Contextuality Decision makers and judicial review justices can understand and be more alive to

the context of the decision When are reasons required?

o Like other procedural fairness requirements, it is decided on a contextual basis Heavier procedural obligations require more robust reasons not necessarily

judicial More likely to be required in appealable decisions

Baker v Canada (1999 SCC) Facts Baker was in Canada illegally, working as domestic worker, had 4 kids. Ordered

deported. Brought application for exemption on humanitarian grounds. Officer rejected her application without giving reasons. Baker got the decision notes and applied for JR

Fed Ct TD dismissed application for JR: assumed good faith by officer despite no reasons.

FCA said appeal was limited to the question certified by TD: Must fed immigration authorities treat the best interests of the Canadian child as primary consideration under s 114(2) even though Act does not incorporate intl obligations?

Issue Was does the duty of procedural fairness require here? Decision

Medium level of procedural obligations

Reasons Justification for reasonso This obligation is a salutary one.  It reduces to a considerable degree the

chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal

o Foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out.  The process of writing reasons for decision by itself may be a guarantee of a better decision.  Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review

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Which procedures were required? (See above for analysis) Found medium level of procedural obligations required Entitled to:

o Reasons – but notes of Officer Lorenz sufficient to meet this standard They inform baker what the officers were thinking

Reasons why the memo were sufficient o They fulfill public interest

Non-arbitrary decision and trust in decisions Enable appeals Better articulation

o Institutional constraints (Need to use this requirement flexibly to reflect the realities of administrative decision-making)

Burdensome in cost and time for decision makers Problem: Lack of candour might be inspires

Might get decision-makers to not use colourful language and not getting a truthful or them making non-appealable decisions (I.e.: Hiding the real reasons)

Ratio Recognized a (non-universal) duty to give reasons where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances

Canada v Vavilov Facts Vavilov was born in Canada to Russian spies

He had birth-right citizenship Lived in the United States and had his citizenship revoked Sought a new Canadian passport and was denied by the registrar of citizenship

Pursuant to the Citizenship Act o S.3(2)(a) - A person born in Canada is not a citizen if neither parent is

lawfully admitted to Canada and the parents are employees of a foreign government

Being spies constituted this per the Registrar Reasons provided to Vavilov

Registrar letter (Aug 2014) – Some statements to the facts used by the registrar and their position o How Vavilov’s parents being spies interact with the act

Junior analyst report (June 2014 – date this was written not provided)o 12 page detailed report

Notes Had Vavilov pursued PF Arguments what would you want to argue on his behalf regarding the reasons provided

o Letters was insufficient on its owno Problem

They are accessible and written not just disclosure And they explain the reasons Also, letter can be shorter than report, it is common practice for

internal notes to be longer than the final decision and reasoins Cases in which written reasons tend to be required include those in which the decision-

making process gives the parties participatory rights, an adverse decision would have a

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significant impact on an individual or there is a right of appeal Reasons explain how and why a decision was made. They help to show affected

parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power:

The process of drafting reasons also necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process

The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable

Canada v Mavi Facts Eight sponsors denied liability under family reunification undertakings that required

sponsors to cover their social assistance costs Social assistance undertaking had a robust statutory requirements, but enough

discretion that common law could fill gaps No appeal rights No other remedies

The nature of the decision is purely administrative as its just debt collection Issue What does is the content of procedural fairness

What are the quality of the procedural requirements Decision Reasons are not required by procedural fairnessReasons Content of procedural fairness must balance the costs of administering a fair process

and the ensuring that the decisions are fair Duty of fairness is not a one size fits all doctrine The simple overarching requirement is fairness, and this central notion of the just

exercise of power should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive

The content of the duty of procedural fairness does not require an elaborate adjudicative process but does oblige the government to

a. Notify a sponsor at their last known address of the claim b. Afford the sponsor an opportunity within limit to explain in writing his or her

relevant personal and financial circumstances that are said to militate against immediate collection

c. Consider any relevant circumstances brought to its attention keeping in mind that the undertakings were essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place

d. Notify the sponsor of the governments decision Given the legislative and regulatory framework (statute was clear regarding

collection of money), the non-judicial nature of the process and the absence of any statutory right of appeal, the government's duty of fairness in this situation does not extend to providing reasons in each case

When it comes to the decision to collect the debt there is not discretion. Only two options to defer or collect so reasons will not

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help. There is never a decision not to collect. Doctrine of legitimate expectations

o Test Government representations are binding when they

1. Give rise to clear, unambiguous and unqualified legitimate expectations

2. The representations are procedural in nature 3. Do not conflict with the decision makers statutory duty

o Application (para 72) The representations do not conflict with any statutory duty and are

sufficiently clear to preclude the government form denying the sponsor signatories the existence of discretion to defer enforcement

Given the legitimate expectations created by the wording of these undertakings it was not open for the bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other modification of enforcement procedures

Undertaking contract to set up the source of legitimate expectations

Made it clear that the government could take action on the debt

Also set up the legitimate expectations of discretion This is what gives the forms of procedural

obligations although in some light form

Constitutional Procedural Obligations

The Charter

When should you make a constitutional argument for procedural fairness? When the statute expressly excludes the common law duty of fairness or provides only a low

level of procedural protections (Singh) When the common law duty of fairness is unlikely to apply (Knight exclusions –

legislative/preliminary); or Arguing for an especially onerous duty of fairness, which implies trial-type procedures.

Note: The Charter can help cross the threshold for procedural fairness, but the common law Baker factors help to determine the content that the procedure must have to pass constitutional muster.

Note: Difficult to imagine cases where s 7/common law analysis would arrive at different content. If s 7 is engaged, procedural requirements will likely be the same or greater than common law requirements.

When do section 7 obligations arise? Does the decision jeopardize an individual’s life, liberty or security of the person?

o Life = Right to live and be free of state conduct that increases risk of dying (Basically death or immediate risk)

o Liberty = Freedom from physical restrain and freedom to make fundamental life choices (Used often with physical restraint like in prisons)

o Security of the person (Physical) = Threat of physical harm (quality of life included)o Security of the person (Psychological) = When the state imposes (or threatens to impose)

sever psychological harm

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If yes, is that process used to reach the decision in accordance with principles of fundamental justice?

o Fundamental justice does not require natural justice o Apply Baker factors, does the process meet the level that the common law would require?

Difficult to imagine cases where s 7/common law analysis would arrive at different content. If s 7 is engaged, procedural requirements will likely be the same or greater than common law requirements.

Singh v Canada (Minister of Employment and Immigration) (1985 SCC) Facts Singh & 2 others are claiming convention refugee status from Sri Lanka

Immigration officer denies the claim. Singh appeals. Immigration Act allows review board to deny hearing based on prima facie assessment of claim. Appeal was denied without Singh getting an opportunity for a hearing. Singh’s case was reviewed completely on paper using intelligence from Sri Lanka.

Singh’s lawyers raised 2 constitutional arguments for a hearing.Issue Was Singh owed a duty of fairness in the form of an oral hearing?Decision

Majority - Wilson J: Yes. An oral hearing was required under s 7 of the Charter.Concurring - Beetz J: Yes. An oral hearing was required under the Canadian Bill of Rights

Reasons Wilson J (Majority) The Charter applies – 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.

o Court’s cannot import common law duty of procedural fairness when incompatible with the decision-making scheme set up by parliament

o The Charter on the other hand, can require courts to override parliament’s decision to exclude the kind of procedural fairness sought

At a minimum, the concept of fundamental justice as it appears in s.7 of the Charter includes common law procedural fairness

An oral hearing before a decision maker is not required in every case that s.7 is engaged

However, where a serious issue of credibility is involved, fundamental justice requires credibility be determined on the basis of an oral hearing (the case here)

Utilitarian claims about the need to have an efficient or cost-effective decision-making process do not suffice as a section 1 justification

o Charter rights would be illusory if they could be ignored because it was administratively convenient to do so

Concurring – Beetz J Bill of Rights applies to Immigration Act. Determining Singh’s refugee claims involves a determination of rights and

obligations. Not in acc. with PFJ – there have been no appearances before the Refugee Status

Advisory Committee nor the Minister who had the power to decide, nor before the Immigration Appeal Board.

Ratio S. 7 principles of fundamental justice include procedural fairness. On issues of credibility, section 7 warrants an oral hearing

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Suresh v Canada (Minister of Citizenship and Immigration) (2002 SCC) Facts Complicated decision-making process occurred under Immigration Act

Suresh from Sri Lanka, initially applied for and granted refugee status in 1990s In 1995 Canadian Minister and Solicitor-General began deportation process – said

Suresh was funding terrorist activities in Sri Lanka4 Step process taken in deportation process:

i) Under Immigration Act s 40.1 – certificate issued based on information about Suresh received from CSIS on security groundsii) Certificate referred to Federal Court for assessment of reasonableness. Federal Court upheld security certificate as reasonableiii) Deportation hearing held. Adjudicator found no reasonable grounds to find Suresh linked to terrorist acts. But awarded deportation anyways because of his involvement with organization. iv) Ministerial opinion issued that Suresh was a danger to security of Canada.

Suresh makes submissions to opinionImmigration officer considers submissions and provides them to minister with recommendation that Suresh be found a danger to Canada. These are understood as findings of fact.

Issue Are Suresh's s. 7 rights engaged so as to cross the procedural fairness threshold? If so, what is the nature of the procedural fairness owed?

Decision What procedures are required No oral hearing required But Suresh must be better informed of case against him through Notice Disclosure/information requirement – then additional opportunity to make

submissions/respond Reasons that articulate and rationally sustain a finding that there are no

substantial grounds by which to believe the person will be subjected to torture, execution or other unusual treatment, so long as a the person under consideration raises those arguments

Reasons Court uses Baker criteria to help determine what fundamental justice requires in s 7 of Charter

Fairness as one of the basic tenants of the legal system Objectives in Baker guide fundamental justice analysis under s 7 – inform

s 7, but not determinative of outcomei) Nature of decision:

Neutral Here, this was a judicial decision of a serious nature, which argued for

more procedural fairness, but there was also a discretionary and policy element which argued for less

ii) Statutory scheme: The Act contained extensive procedures under s 40.1 to ensure the

certificates are issued fairly and allow for meaningful participation of the person involved, but offered no protections at all under s 53(1)(b)

This, combined with no right of appeal, pushed towards more procedural protections

Because final decision, expect heavier procedural obligationsiii) Importance of right

Suresh had a very significant interest in remaining in Canada; there was a real risk of torture if he returned, plus deportation would entail serious

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personal, financial and emotional consequences Section 7 of the Charter represent significant individual rights at stake

iv) Legitimate expectations Article 3 of the Convention Against Torture explicitly prohibits

deportation of persons to states where there are substantial grounds for believing they will face torture – this convention necessarily informs s. 7 of the Charter

"It is only reasonable that the same executive that bound itself to the [Convention Against Torture] intends to act in accordance with [its] plain meaning."

This is a pretty novel argumentv) Choice of procedures argument

Ministerial officials have discretion and deference is thus owed.Medium to light procedural obligations

These procedural protections need not be invoked every deportation because not every one involves torture

This showing need not be proof of the risk of torture to that person, but the individual must make out a prima facie case that there may be a risk of torture upon deportation

Ratio Baker factors inform s.7 analysis. What is important are the basic principles underlying these procedural

protections. The principles of fundamental justice of which s. 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 s. 7

The Right to State-Funded Legal Counsel The SCC has held that neither procedural fairness nor the rule of law in the administrative setting requires the state to fund legal representation

In certain circumstances, where a decision impairs a s 7 interest, the state must provide the individual with legal counsel in order to satisfy the requirements of the principles of fundamental justice

S 7 infringements are not easily saved under s 1 because the rights protected under s 7 are very significant

o Rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society

The consistent refusal of a majority of the SCC to find a s 7 infringement justified under s 1 signals the remarkable extent to which the right to a fair hearing has been constitutionalized

Undue DelayThe Constitution does not refer explicitly to unreasonable delays before administrative agencies

The majority in Blencoe acknowledged the possibility than an undue delay in the resolution of a human rights complaint could infringe the security of the person of interest protected under s 7

o Specifically, it is possible that an inordinate and undue delay could result in stigmatization and an impairment of the psychological integrity of the alleged wrongdoer

The threshold to cross is set very high, to the point of it being difficult to imagine a delay that could actually constitute an infringement under s 7

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Ex Parte, in Camera HearingsIn Camera hearings closed door hearings in which neither the person named on the certificate nor his/her lawyer is present

Under the IRPA, ex parte and in camera hearings were held at the request of the Crown if the judge believed that disclosure of some or all of the evidence on which the certificate was based could undermine national security

o The judge could provide to the named person a summary of the evidence, but not its sources or any other details that might compromise national security

o The judge could receive and rely on evidence withheld from the named person that would be inadmissible in a court of law, such as uncorroborated hearsay evidence provided by foreign security agencies known to use torture

o If the judge determined that the certificate was reasonable, there was no appeal or opportunity for future judicial review

The SCC found that these proceedings engaged s 7 because persons subject to security certificates face detention pending deportation (the liberty interest), because the person’s removal may be to a place where his/her life or freedom would be threatened (security interest)

o The review procedure violated the principles of fundamental justice because it denied the named person a fair hearing

A fair hearing requires a judge to decide the case on the basis of all the relevant facts and the law

Judges do not have the power to investigate and gather evidenceDuty to Consult

Haida Nation established a Crown obligation to consult and, if appropriate, accommodate Aboriginal rights prior to the proof or settlement of those rights

The source of this duty to consult is the “honour of the Crown”o This principle arises from the Crown’s assertion of sovereignty over AB people and de

facto control of land and resources that were formerly in the control of that people o The courts have called this principle a Crown policy since the Royal Proclamation of

1763o It includes a treaty obligation – it must guide the Crown’s treaty interpretation or the

litigation after the Crown has interpreted a treaty too narrowly o It is also recognized as part of s 35

As a constitutional principle. the honor of the Crown gives rise to specific obligations such as the duty to consult

o The duty to consult is sourced from this principle and it existed prior to the Constitution of 1982

It is also affiliated with s 35 but does not originate from ito Other obligations: purposive interpretation of treaties and statutes to reflect the

assumption that the Crown always intends to fulfil its promises, honourable Crown conduct in the negotiation and implementation of treaty commitments, diligent efforts to fulfil constitutional obligations

Question 1: Has the duty been triggered?Ask: In the circumstances, does the Crown have actual or constructive knowledge of a potential Aboriginal claim or Aboriginal treaty rights that might be adversely affected by Crown conduct?

For the Crown to meet this standard, three distinctive elements must be satisfied (Clyde River, Haida Nation):

o 1) The Crown must have knowledge, real or constructive, of established or claim rights or title

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Real knowledge exists when a claim has been filed in court or is indicated during negotiation

Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an AB community or an impact on rights may be reasonably anticipated

o 2) The Crown must be contemplating action that may cause an adverse effect on AB title, or a claimed right to title

o 3) The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending AB claims or rights

This requirement is to be interpreted generously in recognition of the irreversible adverse effects that action can have on AB rights, title or treaty rights before they are proven

Once each of these 3 elements is satisfied, the duty to consult is triggered and must be actively fulfilled in order for the Crown to be acting a way that is consistent with the Constitution

Question 2: What does the duty entail?Ask: In light of the particular decision being made or action being taken, what must the Crown do, in the eyes of Canadian state law, to act honourably?

TWO KEY CONTEXTUAL FACTORS: o Severity of impact on aboriginal rights o Strength of the indigenous peoples’ claim to the right at issue

This question must also be interpreted in light of reconciliation The courts have not expected or imagined that the Crown will achieve perfect consultation or

accommodationo The Crown is under no legal duty to agree with or adopt the positions submitted by

Indigenous individuals or groups during consultation The Crown is only legally obligated to act in good faith and ensure meaningful

consultation and responsive action Meaningful and responsive consultation requires that the Crown discharge its obligations to

consult before the impugned government action takes placeo If consultation takes place after a decision is made, the title or right that the Indigenous

community is seeking to enforce may be compromised or rendered meaningless The Crown must do more than just listen

o There is no duty for the parties to reach an agreement, but the obligation of the honor of the Crown to take steps to understand the concerns of Indigenous Peoples whose rights are at stake and to make real efforts to address those concerns

The extent of consultation and accommodation that the Crown must undertake is on a spectrumo The spectrum ranges from limited to deep consultation, depending on 2 factors:

The severity of the potential impact of the government action on the claimed AB or treaty right

The strength of the Indigenous community’s claim to the right Deep consultation may entail

o Indigenous Peoples and groups are provided the opportunity to make submissions, present evidence and offer a final argument

o Formal participation in the decision-making processes and funding to support that participation

o An oral hearingo Access to material submitted by other parties

The duty to accommodate is associated with the higher end of the spectrum

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o When a strong prima facie case for AB rights exists and the potential adverse effects are significant, a duty to accommodate may arise

o The duty calls on the Crown to take steps or change the court of its intended path in order to avoid irreparable harm or to minimize the effects of government action on AB rights, title and treaty rights

The content of the duty is to be interpreted in accordance with the principles of flexibility and contextuality

The Crown must regularly reassess its duties as it moves through various stages of a decision-making process

Mikisew Cree First Nation v Canada The federal government approved a 118km winter road that ran through the new

Mikisew FN Reserve The government did not engage in consultation directly with the Mikisew before

making this decision After the Mikisew protested, the winter road alignment was changed to track the

boundary of the Peace Point reserve instead of running through it, again without consultation

o The modified road traversed the traplines of approx. 14 Mikisew families who resided near the road and others who trap in that area, and the hunting grounds of as many as 100 Mikisew people whose hunt would be affected

This impact is significantIssue Did the Crown fulfill is duty to consult? Decision Crown was required to provide notice and engage directly with the Mikisew which was

more than treat it as an afterthought to public consultationReasons Duty to consult is triggered at a low threshold, but adverse impact is a matter of degree

as is the extent of the crowns duty Consultation that excludes form the outset any form of accommodation would be

meaningless. The contemplated process is not simply one of giving the Mikisew an opportunity to blow off steam before the minister proceeds to do what she intended all along.

Extent of the duty is guided b the controlling question of: What is required to maintain the honour of the crown and to effect reconciliation between the Crown and Aboriginal peoples with respect to the interests at stake

Kinds of duties are on a spectrum o Low end: Give notice, disclose information, and discuss any issues raised in

response to the notice Claim is weak or potential infringement is minor

o High end: In such cases deep consultation aimed at finding a satisfactory interim solution may be required. Some things may include: Formal participation in decision making process, opportunity to make submissions, provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision

Arises when a strong prima facie case for claim is established Factors to consider for determining the content of the duty

o Specificity of promises made (Treaty) o Seriousness of the impact

Applicationo In this case, given that the Crown is proposing to build a fairly minor winter

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road on surrendered land where the Mikisew hunting fishing and trapping rights are expressly subject to the taking up limitation. The Crown’s duties are on the lower end

o Crown was required to provide notice and engage directly with the Mikisew o Engagement ought to have included the provision of information about the

project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests

Clyde River v Petroleum Geo-Services Inc (SCC, 2017) Facts PGS applied to NEB for an authorization to conduct seismic testing in Baffin Bay,

where the Inuit have treaty rights to harvest marine mammals. NEB suspended its assessment after proponents unable to answer community questions. PGS then posted a 4000 page document, most of which was not translated into Inuktitut.

Inuit organizations wrote to the Minister stating concerns. The Minister disagreed in a letter, and the NEB advised that the environmental assessment report was complete that the authorization was granted. NEB Report said that proponents “made sufficient efforts” to consult and that “Aboriginal groups had adequate opportunity” to participate.

It was undisputed that the testing could negatively impact the treaty rights of the Inuit of Clyde River

Issues What degree of consultation and accommodation does s. 35 require here?Was the duty sufficiently discharged by the NEB (the Crown’s delegate) – did the NEB approval process fulfil the duty to consult?

Decision

Considering the importance of the established treaty rights at stake and the potential impact of the seismic testing on those rights, the consultation and accommodation efforts in this case were inadequate. NEB authorization quashed.

Reasons General DTC Principles: DTC seeks to protect Ab/Treaty rights while furthering reconciliation (Rio Tinto)Content of duty is flexible depending on strength of claim and seriousness of potential impact (Haida)The Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult/accommodate (Rio Tinto), the Crown always holds ultimate responsibility for ensuring consultation is adequate

Doesn’t necessarily mean that Minister must explicitly consider/engage directly in the consultation.Indigenous groups can request direct Crown engagement if they perceive process to be deficient.

NEB’s approval process triggered the duty to consultNEB is a statutory body that acts on behalf of the Crown when making a final decision on a project application. (in this sense it is gov’t action or Crown conduct (Rio Tinto).

The Crown may rely on steps undertaken by the NEB to fulfill the duty to consult. Whether and to what extent depends on whether the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances (Rio Tinto)

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Here, (1) NEB has procedural powers necessary to implement consultation; and (2) the remedial powers to, where necessary, accommodate affected claims/rights.

The NEB has the power to determine the constitutionality of its consultation efforts by virtue of its authority to decide relevant matters of fact and law. Power to decide Qs of law imply power to decide const. issues properly before it (R v Conway)When affected Indigenous groups have squarely raised concerns about Crown consultation with the NEB, the NEB must usually address those concerns in reasons, particularly in respect of project applications requiring deep consultation. (foster reconciliation (Haida, at para. 44).“a sign of respect (Kainaiwa), better decisions (Baker)

Deep consultation was required (severe impact on established right) but efforts fell short. Deep consultation is required when there is a strong prima facie for the claim is established. The strength of the Treaty rights to hunt and harvest marine animals and the potential severity of the seismic testing on the marine mammals harvested by the Inuit for spiritual, cultural, and economic well-being.

Deep consultation “may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision” (Haida)

Fell short because: No oral hearings, no participant funding, limited opportunities for participation and consultation. The Inuit were not provided answers to question regarding the basic elements of testing

Ratio Consultation cannot be merely tokenistic; must give affected group the ability for substantial participation in the process where deep consultation is required.

Individual Bias

Common law rule against biaso History of expectations of what administrative decision makers should be doing when

they make decisionso Even before the rule against bias test was articulated there were two Latin maxims that

provided guidance on this issue Nemo judex in sua causa: you cannot be the judge in your own cause

Identified as important to bias because if an adjudicator has a vested interest in the outcome of a decision, they may have incentive to sway a decision one way or another

Audi alteram partem: to hear both sides Decision-makers must hear both sides in a dispute, or all the different

sides in a dispute Cannot have an open mind to some interests and a closed mind to others This impacts bias because if a decision-maker is predisposed to one

outcome, they may not be open to hearing the evidence of other sides and considering it fairly

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Especially relevant for individual bias, but is also at play with institutional bias

Relating to Baker: demonstrated when Officer Lorenz was disregarding evidence that Baker brought forward in her proceedings (social worker and psychologist evidence)

The testo Source of this test is Committee for Justice and Liberty v National Energy Boardo “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?”

o Not just a test for “bias,” it is for the reasonable apprehension of biaso The informed person is not someone who is jumping to conclusions, they are not overly

sensitive in one way or another, they are realistic, practical, and they are considering policy goals, institutional idiosyncrasies, etc.

o “More likely than not” It needs to be evidenced on a balance of probabilities that there is bias in order

for this test not to be met Civil burden of proof There must be some sort of real likelihood that there is some kind of

impermissible bias functioning However, meeting the test may vary by context

How is bias classified?o Bias seems like it would be a procedural issue, and it is often described as such by courts

Because if there is bias, the litigant is likely not being afforded the type of fair procedure they require

o However, reasonable apprehension of bias is brought as a separate ground for judicial review

Even though it impacts procedural fairness, can also bring this as a separate action

Therefore, do not necessarily have to go through all the Baker factors if you are only raising a reasonable apprehension of bias issue

o Therefore, there are three grounds of judicial review: procedural fairness, bias, and substantive

Best practices when detecting biaso Should raise the issue of bias when you detect it, even if it is in the middle of proceedings

Not the wisest to wait until the end, or to jump to judicial review right away Raise the issue of bias with the decision maker

o One way to ensure that there is an evidentiary record is by raising the bias issue formally either orally or in writing

This gives the decision-maker a chance to respondo If the decision-maker’s response is unsatisfactory, this can be evidence for a further

judicial reviewo This is also the fairest to the decision-maker, as it gives them an opportunity to correct

their behaviour potentially before it gets to the point of judicial review

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Examples of individual biaso Pecuniary or material interest in the outcome

While this is easiest type of bias to establish, there needs to be some sort of direct interest in an outcome that would impact the hearing overall

If a decision-maker will lose or receive money based on the outcome of the decision

Having held shares previously in a corporation appearing before a board/tribunal, this may not be enough

If they are a present-day shareholder, this would likely be enough If the interest is no more than what the average person stands to lose. It is not

enough NOTE: often times boards and tribunals will have Codes of Conduct that govern

bias and provide guidance to the courts regarding what constitutes bias Gives another potential pathway for litigation

o Personal relationships Relationships between decision-makers and parties to a hearing, counsel, or even

witnesses may raise a reasonable apprehension of bias Very context dependent

Not enough in the labour context Two factors

Interest at stake: does the relationship at issue pose enough of a threat at current day to impair the decision-makers impartiality?

o Past relationships may not present a bias issueo Nature of the relationship and temporal connection are both

considered Administrative context: there are areas of the bar where people develop

close relationships o Ex: labour law

o Prior involvement or knowledge A decision-makers prior involvement or knowledge of a legal dispute may

indicate that their minds are not completely open to the facts before them These arguments were made against Justice Binnie in the Indian Band case

In 1985-1986, Binnie attended meetings that discussed the litigation and the claims made on behalf of one of the Indian Bands

Subsequent decision was in the early 2000’s, so there were arguments made pertaining to Binnie’s memory, etc.

Court evaluated Binnie’s involvement and found that while Binnie has more than a surface connection to the case, he did not have an active role in the dispute and the matter was out of his hands due to a transfer

You may have lawyers on files as counsel or as a researcher/junior associate who is appointed to a board later on, then when a later version of that file/dispute comes before the administrative agency, there is an argument to be made for bias

Highly context-dependant, as alwayso Attitudinal predisposition

If you have facts that do not fit into one of the other three examples of bias, you may be able to argue bias on these grounds

Generally, seems that the decision-maker has a closed mind to your client

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The trickiest form of bias to establish Difficult to gather evidence to prove this Courts assessment will shift depending on the context

o In some settings, where you have elected decision-makers it is understood that they are there because they have predispositions towards different sides of issues, which makes this hard to prove in these cases

Evidence Comments and attitudes of decision-makers within the hearing itself,

easier to establish with recorded hearings Antagonism displayed towards one of the parties

o Irrelevant or vexatious comments made either in the hearing or outside of the hearing room

o Decision-maker communicating with one party and excluding the other parties

Decision-maker acting as an advocate for one party In a more court-like setting, decision-makers need to demonstrate a

more open mind than in an inquisitorial setting Centres on whether the decision-maker’s mind is open enough given the context

of the proceeding

Baker v Canada (1999 SCC) Reasons Senior decision-maker (Officer Caden) informed by Officer Lorenz’s memo

o Officer Lorenz is an influential force guiding an institutional decisiono His role was central to the decision-making process even though he is not

the one that signed off on the decision Demonstrates that junior officers can be biased

This is an individualized decision because there aren’t many different interests at stake, it is mostly just Baker who will be impacted

o Therefore, this type of decision requires that individuals who have a significant impact must demonstrate sensitivity to Baker’s circumstances and they must demonstrate that they have an open mind

Officer Lorenz’s notes demonstrated bias against Bakero There was not a fair weighing of Baker’s evidence because it fell to

someone who was not as open to hearing it o Shows problematic attitudinal predisposition

In addition to the memo, there was evidence in the memo that Baker’s evidence was disregarded

o Psychiatric evidence was ignored and not consideredo Usually a very good indication of bias, especially when involving a

specific individual’s interests

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Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) (1992 SCC) Facts The Public Utilities Act established a Board of Commissioners that would hear and

make determinations about telephone policies, rates, etc. for the good of the people of Newfoundland

Proceeding occurring in late 1980’s regarding rate-setting for particular serviceso 5-member board was struck to hold the hearing and make a decision

regarding what the rates should be and whether the company should face penalties for their rate-setting decisions

Focus is on Andy Wells, who was appointed as a commissioner and had previously worked as a municipal counsellor known for his consumer rights advocacy

o This reputation was one of the reasons he was appointed…to represent “the little guy”

o Made comments to the local newspaper about the pensions that the executives of the telephone corporation were receiving and that increased cost of service should be born by the shareholders and not Newfoundland residents

o Telephone company objected to Wells’ participation based on these media statements

o Board ultimately ruled that they did not have the authority to make decisions about bias issues of their own members, and the hearing continued

o Wells continued to make comments to the media throughout the hearing Decision was made by the Board that the telephone company should repay

ratepayers using pensions from corporation executives

Issue Is there a reasonable apprehension of bias?Decision Decision Quashed - No reasonable apprehension of bias in inquisitorial stage. However,

when the hearing quality shifted to a more adjudicative function a reasonable apprehension of bias occurred.

Reasons The Court drew a line between different stages of the hearingo Same board engaged in the inquisitorial phase of the hearing as well as the

adjudicative phaseo Certain predispositions are permissible depending on the stage of hearing

you are in During the inquisitorial phase, Wells’ comments are considered

acceptable because they do not demonstrate the level of closed-mindedness that would impact the fairness of the inquisition

This is a stage where Wells is but one of 5 members and facts are still being gathered, so he is offset by the other 4 members

When we get to the adjudicative stage, a higher standard is required of decision-makers

Wells’ comments at this point demonstrated that he had a closed mind to the position of the telephone corporation

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and this closed mind is enough to suggest reasonable apprehension of bias

Even though there are 4 other board members, Wells’ opinions were so significant and loud that there were concerns that his bias could spread

Other contextual factors at play in this decisiono While Wells’ conduct was inappropriate, the fact that boards are made up

of people like this is the institutional reality Members need to be careful how they conduct themselves during

the adjudicative stage of decisions Case demonstrates that finding reasonable apprehension of bias depends on

context and the stage of the hearing

Ratio More latitude to decisions where the hearing is more inquisitorial. More open mind is required on decisions that are more adjudicative.

Old St. Boniface Residents Assn Inc v Winnipeg (City) (1990 SCC) Facts City of Winnipeg Act set out a number of different rules pertaining to procedures

and meetings regarding development proposals Ultimate decision made by city council, which was reached after a series of

different committee hearings that approved different levels of the development proposal

Councillor Savoie supported the development of two condo developments in the St Bonniface neighbourhood

o Neighbourhood was strongly opposed At various stages of the hearing, Councillor Savoie made many statements for the

developer and appeared to be personally involved in some way Prior to the final decision, there was a municipal election and Savoie campaigned Before council was going to hold it’s vote, the residents association tried to object

at Court of QB but it was rejected Condo developments were approved and slated for development

Issue Is there a reasonable apprehension of bias? How does the reasonable apprehension of bias test apply to local government bodies?

Decision

No Reasonable Apprehension of Bias

Reasons Court looked to the audi alteram partem doctrine to help them make their decision (Para 41)

Court held that municipal councils are very different from other administrative bodies

o They are there because they have strong opinions and it isn’t necessarily problematic that they express these opinions

o Councillors are voted in by the public who knows that these councillors have these strong views

o If Savoie had a close personal connection to the developer, this would likely be caught by the municipal Code of Conduct

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Court held that the process itself is structured in a way that elicits strong opinionso This contextual feature played into the courts analysis of the bias being

permissible The test for bias shifts slightly when involving municipal council decisions

o Not enough that council “pre-judged” in some wayo There would need to be very compelling evidence to show that in-fact, the

project was pre-judged such that any representations made regarding this project would be futile

This is a much higher standard than just having an open mind Court held that there was not a reasonable apprehension of bias in the context of the

municipal decision

Ratio In the context of municipal decisions of a policy nature, the RAB test will shift toward an open mind or “amenable to persuasion” test. This test is satisfied so long as the individual councilor does not have a pecuniary interest or has not declared they will never change their support.

Prior statements of support by a Municipal Councillor do not amount to a reasonable apprehension of bias, unless there is evidence that the municipal councilor had a personal interest in the outcome or was not amenable to persuasion.

Party alleging disqualifying bias must establish that there is a prejudgment of the matter to the extent that any representation at variance with the view adopted would be futile.

Municipal councilors can express strong positions on an issue – it’s only when they express statements that in NO CIRCUMSTANCES will they change their mind that courts will intervene to overturn a bylaw.

Impartiality, Independence, and Institutional Bias

Administrative Independence Development of the Law of Tribunal independence

o Theory of Judicial Independence Defined by the SCC in The Queen v Beauregard, [1986] 2 SCR 56 as:

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider--be it government, pressure group, individual or even another judge--should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence

3 structural conditions have been identified as necessary to guarantee independence (Valente Principles)

Security of tenure Protects against the government to remove judges when they make a

decision that does not make the government's approval Constitutionally protected

Financial security Section 100 of the constitution Two functions / goals

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1. Government cannot alter the renumeration of judges from arbitrary reasons

2. The amount that judges are paid is sufficient to keep them from seeking alternate means of supplementing their income

Administrative control (Not very important) Manner in which the affairs of the court are administered - from budgetary

allocations for buildings and equipment to the assignment of cases Unlike the first two, this one is focused intuitionally rather than

individually Overall, concerned that judges are not put in compromising situations where they

might make a choice for a reason other than their legal judgment Meant to protect the public not judges -> help boost public confidence in the

system o Judicial to Tribunal Independence

Test for independence is the one used for the reasonable apprehension of bias test Unlike judicial appointments, tenure is not required. All that is required is that

adjudicators be free from facing the possibility of being simply dismissed at the pleasure of the executive branch of government

o Second Wave: Parliamentary Supremacy versus Warding off interference Ocean Port

Narrowly, it addresses the issue of at pleasure appointments Broadly, it offers definitive opinions regarding the constitutional nature of courts

and tribunals and the distinction between the two Courts dicta offers reasons why administrative tribunals should not need

the same degree of independence as courts Constitutional protection of the judiciary is to protect the separation of

powers -> this does not apply here as administrative tribunals are part of the same branch as government (executive)

o Third Wave: Reasserting the Push for Independence: Unwritten Constitutional Principles, Tribunal Independence and the rule of law.

McKenzie - Anomalous case Unwritten constitutional principle Rule of law is better protected If the unwritten principles expand beyond judges to justices of the peace it should

apply here

Canadian Pacific v Matsqui Indian Band Facts Amendments were made to the Indian Act that enabled bands to establish their own

by-laws for levying taxes against real property on their reserve lands Application for judicial review was brought over a dispute over assessment of CP's

lands Motion to strike the Judicial review was partially brought on the fact that the appeal

tribunal provided an adequate remedy to contest the assessments TJ - found that there was an adequate remedy and used their discretion to decline to

judicially review the decision Issue Is the tax assessment appeal board sufficiently independent?Decision Appeal dismissed - The trial judge failed to appreciate the fact that the appeal tribunals

lacked sufficient independence and therefore did not provide an adequate remedyReasons Inquiry focuses on an objective assessment of the actual structures

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The function of institutional independence is to ensure that the tribunal is legally structured such that its members are reasonably independent of those who appoint them

Respondents allege apprehension of bias they question the appearance of impartiality of the members

Lack of financial security Lack of tenure Appointed by the band

When the respondents point to the lack of security of tenure, uncertainty to renumeration they are question the appearance of independence of these members They are alleging a reasonable apprehension flowing from the institutional structure

The independence of tribunal members If the bands lack sufficient institutional independence then this is a

relevant factor which must be taken into account in determining whether the respondents should be required to pursue their jurisdictional challenge before those tribunals

Combination of 3 factors lead to the conclusion of a lack of sufficient independence. Not necessarily that any in isolation is enough (Use of the Valente factors is based on the fact that the board is adjudicative in nature)

a. There is a complete absence of financial security for members b. Security of tenure is absent or ambiguous and inadequate c. The tribunals, whose members are appointed by the Band chiefs

and Councils, are being asked to adjudicate a dispute pitting the interests of the bands against outside interests. Effectively, the tribunal members must determine the interests of the very people, the bands, to whom they owe their appointments

Can satisfy this if they give sufficient pay and tenure to the board Sopinka (Dissenting)

Conditions of institutional independence must take into account their context

a. 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 with the fullest knowledge of how they are applied in practice

b. 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

Ocean Port Hotel v British Columbia Facts Liquor Appeal Board hears evidence and decides whether license holder has

violated provincial liquor legislation. Violation can lead to liquor license being taken away.

The Liquor Commission Act allows Board members to be appointed at Cabinet’s pleasure, so Board members did not have security of tenure in the same way as judges.

Raised a constitutional argument that judicial independence is protected by the

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Preamble to the Constitution Act, 1867. i.e. the lack of administrative independence on the part of the Liquor Commission (no security of tenure, salary, not subject to removal) was a constitutional problem because it mirrors judicial interpretation.

Issue What is the degree of independence required of members sitting on administrative tribunals?

Is there a constitutional guarantee of full independence? Decision

Appeal allowed – there is no constitutionally protected independence

Reasons No constitutional requirement of judicial independence for members of the Board. Like all principles of natural justice, degree of independence of tribunal may be

ousted by express statutory language or necessary implication.o Confronted with silent or ambiguous legislation, courts generally infer that

Parliament or the legislature intended the tribunal's process to comport with principles of natural justice. However, statute overrides the common law principles of natural justice

A constitutional argument for RAB is not applicable here because administrative tribunals exist under the executive branch to carry out a particular policy purpose.

o The board is not a court, nor does it approach the constitutional role of courts and therefore, cannot require constitutionally protected independence

o In this case a licencing agency is at its core an executive part of the body From a constitutional theory perspective, the administrative tribunal falls under the

executive – principle of ministerial responsibility where the Minister has to stand and account for administrative conduct under their ambit.

Policy-Making Function grounds administrative tribunals in the Executive: Such tribunals span the constitutional divide between the executive and the judiciary, even though their functions look quasi-judicial they are ultimately part of the executive.Judicial independence has historically developed to protect the judiciary from the executive branch of government, in contrast, administrative tribunals are not separate from the executive

o Administrative tribunals lack the constitutional distinction from the executive unlike the judiciary

o They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. 

Giving the legislature's willingness to countenance at pleasure appointments with full knowledge of the process and penalties involved it cannot be said to require a different structure

Ratio If a enabling statute is clear and articulates the degree of independence then there is not a requirement of natural justice which is constitutionally protectedNo independent constitutional principle of administrative independence.

Perceptions of Institutional Bias Same test as individual bias Take into account

o Context

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o Statutes o Practice

Perceptions of Institutional Bias o Bias, Adjudicative Independence, and Policy-Making

3 methods of policy making in administrative context 1. Decision-making 2. Informal rule making (Soft law - guidelines, bulletins, manuals) 3. Formal rule making (delegated legislation)

o Full board meetings Tension with consistency Bathurst trilogy set out guidelines

Relevant issue is whether there is any pressure on the decision maker to decide against their own conscience and opinions

Limited to law or policy and not factual issues o Lead cases

Problem is when a reasonable person would conclude that the lead case initiative was designed not only to generate consistency but also to reduce the number of certain outcomes

o Adjudicative independence and the Legislative process Issue is how can a tribunal communicate policy ideas to the executive while preserving

its impartiality and independence from the executive branch of government o Multifunctionality

Most prevalent issue is that the tribunal has the potential to act as both prosecutor and judge in the same matter

Generally, overlapping actions are not a problem so long as sanctioned by a statute that is in conformity with the Constitution or applicable quasi-constitutional enactment

IWA v Consolidated Bathurst Packaging Facts CBP brought an application for judicial review against a two decision made by the

labour board The labour board had board meetings to discuss policy implications

Issue Are the IWA's board meetings giving a reasonable apprehension of institutional bias? Question is the overall process or practice impacting the hearing process? Narrower question: Will someone perceive that the board members feel a

degree of constraint on their decision making?

Decision

Appeal dismissed - The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. An institutionalized consultation process will not necessarily lead Board members to reach a consensus but it provides a forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand.

Reasons Appellants arguments Board meetings breach the rule of natural justice "he who decides must

hear"

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Do not provide the parties with an adequate opportunity to answer arguments which may be voiced by board members who have not heard the case

Prevents panels form decision the topic freely and independently from the opinions voiced at the meetings

Respondent arguments Justified - the rules of natural justice must take into account the

institutional constraints faced by an tribunal (Accepted by court) Large number of persons participate and will decide similar issue in a different

manner. It is obvious that coherence should be fostered Given the large number of labour decision made, the board is justified in

taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases

Discussion 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 form adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom

Board meetings are designed to foster discussion without trying to verify whether a consensus has been reached

No minutes are kept No votes are taken Attendance is voluntary and the presence at the board meeting is not

recorded Board decisions are protected by privative clauses suggesting that consistency in

decision make is critical Do not have to communicate with parties unless new policy approach taken Policy issues must be approached in a different manner because they have, by

definition, an impact which goes beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint.

Ratio If the full board meetings are 1. only considering policy and not re-evaluating the merits of the facts 2. Not impinging on the ability of panel member to decide according to their

opinions Then they do not give rise to institutional bias concerns

Sparvier v Cowessess Indian Band No 73

Changes to Indian Act Decision at issue: there was an election that was challenged to an appeal board by someone who

was unsuccessful at the initial election. Then after the appeal made their decision, the person who complained ended up being elected. Then that decision of the appeal board was challenged by Sparvier (winner of first election).

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Events surrounding tribunal hearing: comments made by a member of the tribunal in close proximity to the hearing were at issue. This member recused themselves from the hearing but there was still a question of whether their comments and strong opinion tainted the decision.

Holding: Court found comments were significant and deemed them to play a large role in the decision. The comments were about Sparvier being too mean and how they “had to get him out.” These comments were made by a member of a tribunal who were part of a very close-knit community. Given the comments and the context of the community, it was enough to constrain the other decision-makers or enough to “poison the well.” (we can use this in other contexts to ask whether what one tribunal member did was enough to taint all other members).

Context: o Small knit community o Comments enough to poison the well

Substantive Review: Standard of Review

Foundations

Competing value and institutional roles underlie notions of substantive reviewo Judicial supremacy and the rule of law

Formalist Courts are constitutionally guaranteed and should exercise it muscularly

o Parliamentary supremacy Functionalists Allow parliament to dictate the bounds of review

Privative clauses were the basis for the early doctrine regarding standard of review)o Taken to be the thing to look to in order to understand what parliament intended o Tells the judiciary that administrative bodies have the final say on substantive questions

(Indicated a more deferential approach) Substantive review pre CUPE to Pushpanathan

o Early days o “Preliminary or collateral question doctrine” and the “asking the wrong question

doctrine” Used to help expand the notion that courts should be reviewing the substance of

decisions Courts begin to move to a more contextual/nuanced approach to review

boards Easily manipulated where the courts really characterize any question in one those

two ways o CUPE

Court found that the statute did not have one clear meaning Question asked in CUPE was not jurisdictional, but one of the boards expertise,

and the court should rarely interfere with those Opens the door to certain forms of review of non-jurisdictional questions

o Only justified when the decision was “patently-unreasonable” o Based on the idea the courts (1) respect for the expertise of

administrative tribunals (2) that statutes can have multiple interpretations

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Jurisdictional questions lose importance in determining whether it should intervene or not

Pragmatic and functional analysis with Pushpanathan o Multifactorial analysis/pragmatic and functional analysis is articulated to determine the

standard of review 4 factors:

Privative clause o Absence is not determinative that a correctness standard applied,

but provides strong evidence of correctness o Statutory right of appeal was strong indicator of correctness

Expertise of decision-maker o Expertise of the administrative body in relation to the court

Were these decision makers selected because of their expertise in the law of the field

Statute’s purpose o Might explain expertise o Important rights or interest may be articulated to justify more

judicial intervention Nature of the problem

Pushpanathan v Canada (Minister of Citizenship and Immigration) (SCC, 1998) Facts Pushpanathan came to Canada from Sri Lanka

Made refugee claim based on political affiliation and ethnic background Eventually, he relinquished his residency status and was on the track to

permanent residency Then, he was convicted of conspiracy to traffic in heroin; sentenced to 8 years in

prison Pushpanathan then revived his refugee claim (claiming that he would be in

serious danger if sent back) when Canada initiated deportation proceedings UN Convention on Refugees says: convention does not give its protection to

those guilty of acts “contrary to the purposes of the UN” Immigration/refugee Board found that trafficking in drugs was “contrary to the

purposes of the UN,” and denied Pushpanathan’s claim, thus continuing with the deportation proceedings

Issues What is the appropriate standard of review of the Board’s decision?

Decision

Correctness standard applies to determination of law by Board. Board was incorrect and made a mistake in interpreting the UN convention.

Reasons Private Clause: Existed, but there was an exception for allowing judicial intervention on questions of general importance. This case was an exception going to the court of appeal automatically. (less deference)

Purpose of the statute: There is a determination of individual rights and that type of question is more remote to the board’s expertise than the courts. (less deference)

Nature of the Question: Focus is on interpretation of treaty provision so is question of law. In particular, it is a question of law that is outside the expertise of the adjudicator. (less deference)

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Expertise: The Board may have expertise in domestic refugee law, and making factual determinations about the danger someone will face in a particular country, but court should not be deferential in interpreting international treaties. (less deference)

- Correctness allows for de novo review of the legal issue. - Court can draw on other international documents to interpret the phrase at issue "guilty of acts contrary to the purposes and principles of the UN"

the plain meaning of article 1F(c) (not enough on its own); the purposes and objectives of the Convention (humanitarian/human

rights); common law precedent which interprets Canada’s obligations under the

Convention (Ward v Canada); travaux préparatoires. Not steps, but an overall holistic examination encompassing all these

components

Court found, based on reading treaty in various languages, that the purpose of the article at issue in the Convention was much narrower – basically just meant to prevent the sheltering of war criminals as refugees

Ratio When a tribunal is interpreting its own enabling statute, deference is due – but in questions of law interpreting statutes outside the enabling statute/statutory mandate of the tribunal, court will be more interventionist.

Baker application of Pushpanathan Why use reasonableness simplicter

Legislature intended that the decision makers using their judgment why not patent unreasonableness?

Court application of Pushpanathan factors o Privative clause

There was not a formal privative clause identified Requires that there is leave from the federal court to seek judicial review (Not

considered)o Expertise of decision-maker - More deference

Understood that the minister had a certain degree of expertise in decision making - suggesting more deference

o Statute's purpose (whole, section) - Neutral Minister had considerable discretion - More deference Had to apply an open set of legislative principles - More deference Impacts individual rights, rather than being a balance of interests - Less

deference o Nature of the problem - More deference

Determining humanitarian and compassionate grounds is fact driven - did not require interpretation of legal rules - More deference

o Decides simpliciter Not able to stand up to a somewhat probing examination review

Even on the deferential status the decision cannot be upheld

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Pushpanathan to Dunsmuir

Problems with pragmatic approacho Use of multiple factors led to challenges

Could be weighed to produce very different and surprising results Provided minimal guidance to determine which standard should apply

o The 3 standards of review were difficult to work with in practice Especially the two reasonableness standards were not overly different

Dunsmuir v New Brunswick (SCC, 2008) Facts Dunsmuir worked as New Brunswick government lawyer (courthouse legal counsel)

3 prior incidents occurred where Dunsmuir was reprimanded He was scheduled for a performance review, and indicated he would be bringing his

lawyer to the review Employer faxes him a termination letter prior to the review (termination with

severance, not for cause) Dunsmuir grieves the termination (had right to do so under PSLRA, despite not

being unionized) Arbitrator (former QB Justice) finds that Dunsmuir was terminated for cause, and

demands access to the Province’s records to determine whether cause actually existed

Province applies for judicial review – QB (and I think CA) uphold arbitrator’s decision. Ultimately matter is appealed to SCC, which determines that it’s time to rework the Pushpanathan framework

Issues What was the appropriate standard of review for the adjudicator’s decision?Decision

The standard of review is reasonableness.

Reasons Majority: There should only be two standards of review: Correctness and Reasonableness

o Function of JR is to ensure legality, reasonableness and fairness of admin process and its outcomes

o Seeks to address an underlying tension between the rule of law and Parliamentary supremacy with ability to create admin bodies and endow them with powers

o All decision-making powers have legal limits – judicial review is the means by which the court supervises those limits by asking is the decision rationally defensible in light of the relevant law?

o Standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter

o Substantive review helps to ensure the rule of law because courts have last word on jurisdiction and legislative supremacy is assured because determining appropriate standard of review is accomplished by establishing legislative intent.

o Legislative action cannot remove judiciary’s power of review, even by privative clause, because power stems from judicature provisions of ss.96-101 of Constitution

o Deference is an animating principle of judicial review (per Raso) Justifications

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Respect for the legislator to leave some decisions to admin (Parliamentary supremacy)

Expertise of decision makers o One they have on appointment or develop

Underlie new substantive review framework that should leave to more deferential decisions

o Correctness Constitutional, true jurisdiction questions, questions that are

central to the legal system as a whole Policy: Seeks to promote best, consistent results on

these types of questions Courts should undertake their own analysis anew Was the outcome correct

o Reasonableness Courts should inquire into the qualities of what makes a

decision reasonable Dyzenhausian view of deference Show respect for the expertise, or field sensitivity that decision

makers might develop Respect for legislative intent

The standard of review is reasonableness.o DF1: Privative Clause (more deference)o DF2: Legislative purpose of the act is to establish a time and cost

effective method for resolving employment disputes (more deference) In order to achieve the purpose of the adjudicator role in

enabling legislation, judges should not intervene unless there is a very good reason

o DF3: The legal question at stake is within the adjudicator’s home statute and is not one that is of central importance to legal system or otherwise outside specialized expertise of the adjudicator (more deference)

o DF4: Mutually selected labour adjudicator has relevant expertise (field sensitivity) in interpreting collective agreements and interpreting enabling labour relations legislation (More deference)

Ratio Judicial review seeks to address an underlying tension between the rule of law and Parliamentary supremacy with ability to create admin bodies and endow them with powers. Substantive review maintains the rule of law because it…

Ensures that legislative intent is enforced with respect to decision makers acting within their proper jurisdiction (and not beyond it)

Ensures the “legality, reasonableness, and fairness of the administrative process and its outcomes”

Ensures transparency, intelligibility, and justifiability

Court ultimately gets rid of “patent unreasonableness” standard (too deferential, or too difficult to distinguish from reasonableness simpliciter), and gets rid of the term “pragmatic and functional test” – it’s now just called “standard of review analysis”

Where prior jurisprudence has established the standard – simply apply that standard

o Certain issues of high importance will attract a correctness standard:

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constitutional questions regarding division of powers, constitutional issues in general (pre-Doré), true question of vires (jurisdiction), general legal issue of significant enough importance

Other factors will weigh in favour of reasonableness- privative clause; statutory right of appeal- purposive understanding of tribunal, as set out in legislation, suggesting deference- question of fact; mixed law and fact- expert tribunalWhat makes a decision unreasonable is a more constrained category of errors – e.g. can’t just disagree with interpretation of enabling legislation; rather, no rational interpretation of enabling legislation could lead to the outcome arrived at. Can’t just disagree with how decision-maker applied the facts to reach its conclusion; rather, conclusion wasn’t rationally based on the facts.

Dunsmuir to Vavilov

Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 Facts Vavilov was born in Canada to Russian spies

He had birth-right citizenship Lived in the United States and had his citizenship revoked Sought a new Canadian passport and was denied by the registrar of citizenship

o Pursuant to the Citizenship Act S.3(2)(a) - A person born in Canada is not a citizen if neither parent is

lawfully admitted to Canada and the parents are employees of a foreign government

Being spies constituted this per the Registrar Reasons Determining the standard of review

The standard of review applied must reflect the legislature's intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law

o Starting point is a presumption that the legislature intended the standard of review to be reasonableness

o Connection that goes back to judicial review and parliamentary supremacy Presumption of Reasonableness

o It is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review

Expertise or institutional experience or other rationales may be all reasons that the legislature delegated decision-making authority, a reviewing court need not take that into account

o Remove uncertainty Dunsmuir contextual factors

o Respect for institutional design choice and the democratic principle, as well as the need for the courts to avoid undue interference with the administrative decision maker's discharge of it functions, is what justifies the presumptive application of the reasonableness standard

Presumption can be rebutted in 2 situations o 1) Where the legislature has indicated that it intends a different standard of

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review applies (Can be home statute, or separate statute) Legislature explicitly prescribes the applicable standard of review Legislature has provided a statutory appeal mechanism from an

administrative decision to a court, thereby signalling the legislature's intent that appellate standards apply when a court reviews the decision

The legislature may choose to establish a regime which does not exclude the court but rather makes them part of the enforcement machinery

3 important points Statutory regimes that provide for parties to appeal to a

court from an administrative decision may follow them to do so in all cases or only with leave of the court - The existence of a leave requirement will not affect the standard to be applied if leave is granted

Some provisions simply recognize that all administrative decisions are subject to judicial review and address procedural or other similar aspect of judicial review in a particular context. These provisions DO NOT give courts an appellate function, they do not authorize the application of appellate standards

Circumscribed statutory appeal right s in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decision, to which mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism

o 2) Where the rule of law requires that the standard of correctness be applied

Rationale: Respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinant answer is necessary

Constitutional Questions Questions regarding the division of powers between

Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s.35 of the Constitution Act, 1982, and other constitutional matters requires require a final and determinate answer from the courts

o Federalism, Indigenous rights, and potentially questions of Charter rights

A legislature cannot alter the scope of its own constitutional powers through statute - And although a legislature may choose what powers it delegates to an administrative body, it cannot delegate powers it does not constitutionally have

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General questions of law of central importance to the legal system as a whole

Impact / significant legal consequences for the administration of justice as a whole or for other institutes of government

The mere fact that a dispute is of wider public concern is not sufficient for a question to fall into this category - nor is the fact that the question, when framed in a general or abstract sense, touch on an important issue

Examples o When an administrative proceeding will be barred

by the doctrines of res judicata and abuse of process (Toronto (City) at para 15)

o The scope of the state's duty to religious neutrality (Saguenay at para 49)

o The appropriateness of limits on solicitor-client privilege (University of Calgary at para 20)

o The scope of parliamentary privilege (Chagnon at para 17)

Questions related to the jurisdictional boundaries between two or more administrative bodies

Rare Arises where one administrative body has interpreted the

scope of its authority in a manner that is incompatible with the jurisdiction of another

Rationale: The rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two or more administrative bodies, pulling a party in two different and incompatible directions

o 3) Not a closed list, but would be exceptional to recognize new category to rebut presumption

Has to be consistent with legislative intent or where the failure to apply correctness would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described

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Does Vavilov remove uncertainty? Does Dunsmuir still exist? Central importance to the legal system will likely be litigated

Standards in statutes

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Very few have done it to this point BC has in the Administrative Tribunals Act

o Part 9 - Accountability and Judicial Review Sets out grounds for review Connects grounds with standards of review

Includes old standards that no longer exists (Patent unreasonableness and reasonableness simpliciter)

 Take away points

Statutes play and increasingly important role post-Vavilov, but few actually specify which standard should apply - Statutes still overrode in Dunsmuir, but now if an appeal right exists then the existence of that right will determine the standard of review

Narrow the questions of law in Vavilov that attract correctness Some of categories are still on their face flexible enough to have expansion of correctness

Substantive Review: Correctness

What does correctness mean (Wildeman - ALC) To distinguish from reasonableness

o What does correctness mean? (Content) Is the outcome or result the one that courts think is correct

o How do courts determine if an administrative decision is correct By conducting their own review and seeing if the administrative decision

matches Should not find any engagement with the administrative decision makers reasons

o What principles underlie the correctness standard applied by the SCC Rule of law - On important legal questions the court views consistency is key.

Especially with important statutory interpretations Pushpananthan - settle controversial or important interpretations or disputes to

provide clarity and finality for decision makers Tell which outcome is the most appropriate Things of wider meaning outside the decision makers home statute

Courts then view themselves as more expert Correctness as a standard of review:

Meaning : Did the administrator “get it right”? Method : Court conducts its own analysis to determine correct answer to a legal question Principle : Rule of law (avoid inconsistency and unauthorized application of law), perhaps

legislative intent post-Vavilov? Categories of correctness:

Vavilov - correctness identified in statute plus 3 types of Qs of law

Barrie Public Utilities v Canada Cable Television Assn Facts The appellant - Canadian cable Television Association sought access to the power

poles of the respondent power utilities The decision maker the CRTC made an order requiring the Utilities to grant the

CCTA access to their power poles on terms stipulated by the CRTC Does transmission line include both provincial and federal Does the statute allow on private land

Issue Did the CRTC correctly interpret its act

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Decision

No they did – appeal dismissed

Reasons Standard of review Majority selected a correctness standard which in part on the existence of a

statutory right of appeal Question of pure statutory interpretation outside expertise Would Dunsmuir and Vavilov lead to a different one?

o Expertise might lead reasonableness under Dunsmuir o Vavilov likely correctness with appeal right

Without appeal right reasonableness Correctness analysis

Modern approach to statutory interpretationo Conducting its own, not giving any weight to the CRTC's decision

despite some noted expertise and considerations Grammatical and ordinary meaning

o "a person who provides services to the public" in s.43(5), but is broader than, the phrase "Canadian carrier or distribution undertaking" found elsewhere in the section

Any provider of services to the public, may apply to the CRTC to gain access to the supporting structure of a transmission line

o "Constructed on a highway or other public place" qualifies the phrase transmission line - therefore, on the grammatical and ordinary meaning of the provision, the CRTC may not grant access to transmission lines situated on private land

o Term "transmission line" is to be distinguished from a distribution line. Parliament should be taken to know the distinction between transmission and distribution lines

The Context o Section 43(5) is concerned with gaining access to the supporting

structures of pre-existing transmission lines o Sections 43(1) to 43(3) are entirely concerned with telecommunications

matters and not at all concerned with other supporting structures such as the Utilities' power poles. For s.43(5) to encompass power poles would be a surprising departure from the otherwise harmonious meaning of the section as the whole

o Other provisions Policy objectives

o Objectives is to encourage and regulate the development of an orderly, reliable, affordable and efficient telecommunications infrastructure for Canada

o Consideration of one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate legislative intent.

Dissent Bastarache J Application of reasonableness

The CRTC identified the proper approach to statutory interpretation The CRTC noted that it is to give a fair, large and liberal construction and

interpretation that best attains the remedial character of s.43(5) The CRTC presumed that Parliament would have known that some support

structures were located on public utility rights-of-way or easements, but would

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not have wanted its objective frustrated Gave 250 paragraphs of reasons justifying A purposive interpretation of the words public place would, arguable suggest

that land over which a public utility has a right of way and has built its infrastructure has become a public place for the pursuit of public goals

Determination that the CRTC's interpretation of its own statute is reviewable on correctness is a regressive step by this court

Court does not have relative expertise Pushpanathan did not diminish the Court's commitment to the notion of deference to

an expert decision maker, even absent a privative clause Similarities to Domtar

Correctness can thwart legislative intent when they establish an expert body to make decisions

Statutory interpretation is not an exact science

Bell Canada v Canada Facts CRTC decided that the Super Bowl should be exempt from the simultaneous

substitution regimes as of January 1, 2017 Pursuant to the federal Broadcasting Act

S.9(1) lists CRTC powers to issue licences and place conditions on the licence Issue What is the applicable standard of review?

Did the CRTC have the authority under s.9(1)(h) of the Broadcasting Act to issue the final order?

Does s 9(1)(h) empower the CRTC to impose conditions on "programming services" generallyo Is a specific simultaneous substitution exemption a programming service

Decision Appeal allowed - CRTC decision quashedReasons Statutory appeal mechanism = correctness standard

The Final order was issued on the basis of an incorrect interpretation of the scope of the authority conferred on the CRTC under s.9(1)(h)

Majority does not engage in the CRTC's reasons, but conducts their own analysis

Majority does the modern approach to statutory interpretation o Used in such a way to suggest only one possible interpretation which is

contrary to the idea that there are competing interpretations o However, in using the correctness approach the majority acts as if this is

the only possible interpretation Considers the text Considers the broader context

o Other Broadcasting act provisions that are related o Looks at regulations under the scheme

Looks to the intent of the legislation o History o Interaction with other legislation o Looks at past practice of the CRTC

Used this to order the mandatory carrying of channels that are viewed in the best interest of the public

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Section 9(1)(h) only authorizes the issuance of mandatory carriage orders - orders that require television service providers to carry specific channels as part of their cable or satellite offerings - that include specified terms and conditions

Section 9(1)(h) does not empower the CRTC to impose terms and conditions on the distribution of programming services generally

Dissent Abella J and Karatkatsanis J The majority's framework disregards the significance of specialized expertise and

results in broad application of the standard of correctness Deserves deference

Framework at 91 Judicial substitution is incompatible Rather they consider whether Bell and the NFL have raise any arguments that

would render the CRTC's decision unreasonable CRTC has the interpretive upper hand

o They defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist

The reasons provided by the CRTC in the order and accompanying regulatory policy set out a rational and persuasive line of reasoning which clearly outline the consequences, operational implications and challenges that motivated the decision

The CRTC evidently considered s.9(1)(h) in its context, including not only the objectives of the Broadcasting Act but also its broader statutory framework

The CRTC may not choose to pursue its objectives in ways that are incompatible with the purposes of the Copyright Act or which operationally conflict with its specific provisions

Substantive Review: Reasonableness

Dunsmuir Reasonablenss Use pre-Vavilov carefully

Does it signal a new approach or merely clarifies? Respectful deference to administrative decision makers Model of judicial review in Dunsmuir is based on an understanding of constitutional democracy in

which the rule of law (conceived in terms of the supervisory role of judges) is in tension with democracy (conceived as parliamentary supremacy)

Paragraph 47:  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

It is about process (reasoning) and outcome Follows Dyzenhaus' conception of deference as respect

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1. Reviewing courts must pay close (respectful) attention to the reasoning of administrative decision makers (deference requires respect); and

2. Administrative decision-makers must ensure their decisions are reasonably justified in light of the relevant law and facts (deference does not mean "submission)

Method Courts would consider the outcome in light of the reasons (justification) for that outcome Should inquire into the qualities that make a decision reasonable

o Process by which the reasons are articulated o Outcome

Context - Statutory framework will colour how courts assess a decision (Binnie is gesturing to this) Competing interests Achieve its mandate

Principles Dyzenhaus - Deference as respect not submission. Must pay respectful attention to the

decisions of an administrative decision maker Deference is earned through its reasons Rule of law - To earn deference the decision must be justified Parliamentary supremacy - Underlies the attention that courts would give the legislature and

their choice to delgate o Pay attention to the choice of legislation

Practice Problems Court abdication - too flexible -468-473 Reasonableness or Disguised correctness

o Indicia to find disguised correctness The court's review is unconcerned with the administrator's reasoning

Not engaging deeply Not looking at the record used to justify the administrator's reasons

The court identifies its own favoured reasoning and conclusion

Dunsmuir v New Brunswick, (2008 SCC) Facts Dunsmuir worked as New Brunswick government lawyer (courthouse legal counsel)

3 prior incidents occurred where Dunsmuir was reprimanded He was scheduled for a performance review, and indicated he would be bringing his

lawyer to the review Employer faxes him a termination letter prior to the review (termination with

severance, not for cause) Dunsmuir grieves the termination (had right to do so under PSLRA, despite not being

unionized) Arbitrator (former QB Justice) finds that Dunsmuir was terminated for cause, and

demands access to the Province’s records to determine whether cause actually existed Province applies for judicial review – QB (and I think CA) uphold arbitrator’s

decision. Ultimately matter is appealed to SCC, which determines that it’s time to rework the Pushpanathan framework

Issue Was the board’s decision reasonable? Reasons Move towards a single reasonableness standard does not pave the way for a more

intrusive review by courts and does not represent a return to pre-Southam formalism

Deference is both an attitude of the court and a requirement of the law of judicial review

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Deference in the context of the reasonableness. Standard therefore implies that courts will give due consideration to the determinations of decision makers

Deference 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

Was their decision be more reasonableness or disguised correctness? Disguised correctness

Find early on that the reasoning process is flawed and outside the range of acceptable outcomes

Short assessment of the statutory context The adjudicator had 2 competing legal instruments

Private contract Public relations act These considerations likely informed the decision maker's

analysis, but there is not a clear sense why they reached that decision, or what basis it centred it reasons and expertise

Reasoning process of the adjudicator was deeply flawed By giving the PSLRA an interpretation that allowed him to inquire into the reasons

for discharge where the employer had the right not to provide or even have - such reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed

There can be no justification for this; no reasonable interpretation can lead to that result

Binnie J – Concurring

Not just an assessment of rationality Reasonableness should be assessed in light of the statutory framework

Note on Celgene Contrasting example of a deferential reasonableness Was reasonable because

On the boards own scheme and reasoning it was justified Even though deferring interpretations Abella J. draws on the reasons of the tribunal (particularly where its reasoning departs from

the presumptions of commercial law), closely considering and even amplifying the tribunal's reasoning while nonetheless checking it against the statutory scheme and circumstances of the case

Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 Facts Vavilov was born in Canada to Russian spies

He had birth-right citizenship Lived in the United States and had his citizenship revoked Sought a new Canadian passport and was denied by the registrar of citizenship

o Pursuant to the Citizenship Act S.3(2)(a) - A person born in Canada is not a citizen if neither parent is

lawfully admitted to Canada and the parents are employees of a foreign

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government Being spies constituted this per the Registrar

Issue Was the registrar’s interpretation reasonable?Decision The Registrar failed to justify her interpretation of s.3(2)(a) of the Citizenship Act in light

of the constraints imposed by the text of s.3 of the Act considered as a whole, by other legislation and international treaties that inform the purpose of s.3 by the jurisprudence on the interpretation of s.3(2)(a) and by the potential consequences of her interpretation

Reasons Principles of Reasonableness The reviewing court must consider only whether the decision made by the

decisionmaker - including both the rationale for the decision and the outcome to which it led - was unreasonable

Court must look at the process and outcome A principled approach to reasonableness review is one which puts those reasons first .

A reviewing court must begin its inquiry into reasonableness of a decision by examining the reasoning provided with "respectful attention" and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion.

Larger emphasis on process Reasons should not be read against a standard of protection

A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker

It is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies

When procedural fairness requires reasons then the process as reflected in the reasons must be justifiable – not just the outcome

Contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions they may adopt

Respectful attention to a decision maker's demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operation impact of the decision

Burden is on the party challenging the decision. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision

What makes a decision unreasonable? Failure of rationality internal to the reasoning process (irrationality - may represent

of new direction of reasonableness review - See Binnie J in Dunsmuir) Must be able to trace the decision maker's reasoning without encountering any

fatal flaws in tis overarching logic, and it must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived

If it demonstrates logical fallacies Decision is untenable (Unjustified) in light of the relevant factual and legal

constraints that bear on it (conflicts with contextual restraints) Some constraints (Not a checklist)

o Governing statutory scheme Discretion must ultimately comply with the rationale and purview

of the statutory scheme under which it is adopted - Roncarelli

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Informs the acceptable approaches IF the decision maker has wide discretion it would be

inappropriate to fetter that discretion Did the legislature use open ended or highly qualitative language All of this is to say that certain questions relating to the scope of a

decision maker's authority may support more than one interpretation, while other questions may only support one, depending upon the text in which the statutory grant was made

o Relevant statutory or common law Precedents on the issue before the administrative decision maker

or on a similar issue will act as a constraint on what the decision maker can reasonably decide

If departure form judicial interpretation must explain why International law may inform statutory interpretation even if not

adopted by Canada - Baker o The principles of statutory interpretation (Does this constrain the policy

aiming goals of administrative bodies - Abella) Must consider text, context and purpose Whatever form the interpretive exercise takes, the merits of an

administrative decision maker's interpretation of a statutory provision must be consistent with the text, context and purpose of the provision

Where disputed, administrative proceedings must show in its reasons that is was alive to these essential elements

o The evidence before the decision maker and facts of which the decision maker may take notice

Decision must be based on the evidence introduced o Submissions of the parties

Failure to address key arguments will suggest that a decision maker was not alert, alive, attentive to the issues suggesting unreasonableness

o Past practices and decisions of the administrative body Diversity of decisions is not necessarily bad, but consistency has

value, and if the decision maker's are going to depart they must explain why

o Potential impact of the decision on the individual to whom it apples If harsh, the administrator must explain why it best reflects

legislative intent One indicator of the reasonableness is whether the decision maker

accounted for the impact in its reasons

Application Mr. Vavilov raised many of these considerations in his submissions in response to

the procedural fairness letter, the Registrar failed to address those submissions in her reasons and did not, to justify her interpretation of s.3(2)(a) do more than a cursory review of the legislative history and conclude that her interpretation was not explicitly precluded by the text of s.3(2)(a)

Wording of section 3(2)( c ) provides clear support for the conclusion that all of the persons contemplated by section 3(2)(a) including those who are employees in Canada of a foreign government must have been granted diplomatic privileges and

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immunities in some form The analyst and the Registrar chose a different interpretation without offering

any reasoned explanation for doing so PAST JURISPRUDENCE: Cited 3 cases in a footnote, but did not engage with those

cases Analyst failed entirely to engage with the arguments endorsed by Federal

Court that maid the key finding that 3(2)(a) only applies to children born to foreign diplomats or an equivalent

Two cases stated that for the purposes of section 3(2)(a) it is whether the individual has been granted diplomatic privileges and immunities and not on the functional duties or activities of the child's parents o It is about the existence of diplomatic status not duties o It was a significant omission for the analyst to ignore this reasoning

when determining whether the espionage activities of Vavilov's parents were enough to ground the application of s.3(2)(a)

POSSIBLE CONSEQUENCES: No consideration the potential consequences of expanding her interpretation of s.3(2)(a) to include individuals who have not been granted diplomatic privileges and immunities

Notes What if no reasons? Ie: Municipal council's, law societies - decisions reflected in votes or minutes

of meanings, but not robust reasons Where there are these types of decisions, courts will deduce the reasons

underlying by looking at the record o Debates between different elected people o Deliberations o Reports o Minutes o Any other relevant restraints

Outcome may play a more significant role when assessing reasonableness

Reasonableness summary Meaning: Respectful deference to administrators, even on questions of law Method: Courts consider the outcome in light of the reasons Principles: Rule of law and parliamentary supremacy

Deference as respect requires something of administrative decision makers

Is a Single Standard of Review Desirable? Abella's proposal

Flexible enough to allow respectful deference (where warranted) and scrutiny (where the rule of law requires it) o Wouldn't this just become arguments about how much deference is to be given

(Standard of review by a different name) Correctness is incompatible with respectful deference which underlies administrative

decisions from Baker on Deference might be diluted

o Disguised correctness Standard could be confusing

Problems if correctness becomes more pronounced Treats administrative decision makers decisions as superfluous

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Decision makers have expertise in particular contexts o Competing policy goals: who is better positioned

Ocean Port - important role administrative decision makers have in bringing policies to life What is lost when courts ignore the expertise of decision makers - ALC page 460

Substantive Review: Charter Values

Doré’s modified reasonableness framework: Does the administrative decision engage the Charter by limiting Charter protections?

(BOP = claimant) If yes, did the decision-maker strike the “appropriate balance” between Charter values

and its statutory mandate? (BOP = administrative officials) May change post-Vavilov How should courts review Charter-infringing administrative decisions

Options 1. Charter analysis of law, substantive review of decision

Oakes analysis then conventional substantive review 2. Charter analysis of both law and decision

Would use the charter rights infringement test, then section 1 Oakes test Problem - elements of Oakes test are difficult to apply to government action

rather than a law 3. Modified substantive review of decision influenced by Charter values - Doré line

Half-way house approach Admin law analysis influenced by Charter rights and Charter Values

Doré v Barreau du Québec (2012 SCC) Facts D appeared before a judge of the Superior Court of Quebec on behalf of a client.  In

the course of D’s argument, the judge criticized D.  In his written reasons rejecting D’s application, the judge levied further criticism, accusing D of using bombastic rhetoric and hyperbole, of engaging in idle quibbling, of being impudent and of doing nothing to help his client discharge his burden. 

D then wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust, and accusing him of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks.

D challenged the constitutionality of an administration decision as contrary to section 2(b) of the Charter

Issue Did the discipline decision of the Council reflect a proportionate balancing of the statutory mandate of ensuring lawyers behave with objectivity moderation and dignity with the lawyers freedom of expression right?

Decision Decision is reasonable as it proportionately balance Charter protections Reasons How to determine whether an admin decision dealing with Charter values is "reasonable"?

Decision should outline an attempt to balance Charter values with statutory objectives (show engagement with Charter values and the relevant law)

Decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the

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proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives

Kind of like a minimal impairment test Bottom line: "the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play."

Here, the decision to suspend D for 21 days was not before the Court. The only issue was whether the Council’s decision to reprimand D reflected a proportionate balancing of the lawyer’s expressive rights with its statutory mandate to ensure that lawyers behave with “objectivity, moderation and dignity” in accordance with art. 2.03 of the Code of ethics

In light of the excessive degree of vituperation in the letter’s context and tone, the Council’s decision that D’s letter warranted a reprimand represented a proportional balancing of D’s expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation and dignity”.  The decision is, as a result, a reasonable one.

Ratio If in assessing the impact of the relevant Charter protection that is engaged and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter rights and values at play with the statutory objectives then the decision is reasonable

Doré - Positives: Marketplace of ideas, greater diversity in Constitutional jurisprudence. Promotes access to justice because it does not necessarily require litigants to go to court to

vindicate their constitutional rights. Recognizes the capacity of administrative decision-makers to engage in the proportionality

exercise, aligns with the general trend toward deference to administrative decision-makers on questions of law that implicate their home statute.

Doré - Issues A focus on Charter “values” erodes the certainty required of the rule of law – there is no clarity

on the differences between values and rights. Administrative decisions are not like laws that can be objectively justified by the state – this is a

problem because s 1 guarantees rights except where the infringement can be “demonstrably justified”

Lack of educational pedigree of those deciding Charter issues (possibly an elitist argument)

Law Society of British Columbia v Trinity Western University (2018 SCC) Facts Trinity Western University (“TWU”) is an evangelical Christian postsecondary

institution that seeks to open a law school that requires its students and faculty to adhere to a religiously-based code of conduct, the Community Covenant Agreement (Covenant), which prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman”.

The Covenant would prohibit the conduct throughout the three years of law school, even when students are off-campus in the privacy of their own homes. The Law Society of British Columbia (“LSBC”) is the regulator of the legal profession in British Columbia.

The Benchers of the LSBC voted to hold a referendum of its members on the issue

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of the approval of TWU’s proposed law school and agreed to be bound by the results.

The members voted to implement a resolution declaring that TWU’s proposed law school was not an approved faculty of law because of its mandatory Covenant. The Benchers therefore passed the resolution.

Issue Was the bencher’s decision reasonable? Decision Decision of the Benchers proportionately balanced the Charter protection of freedom of

religion with the statutory objectives of the statute and is therefore reasonable Reasons Under the Doré/Loyola framework, if the administrative decision engages

the Charter by limiting its protections — both rights and values — the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play and the relevant statutory mandate

For a decision to be proportionate, it is not enough for the decision - maker to simply balance the statutory objectives with the   Charter protection in making its decision. The reviewing court must consider whether there were other reasonable possibilities that would give effect to   Charter protections more fully in light of the objectives. The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context.

The LSBC’s enabling statute requires the Benchers to consider the overarching objective of upholding and protecting the public interest in the administration of justice in determining the requirements for admission to the profession, including whether to approve a particular law school. As the governing body of a self-regulating profession, the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference. The public interest is a broad concept and what it requires will depend on the particular context.

The LSBC was not required to give reasons formally explaining why the decision to refuse to approve TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the LSBC’s statutory objectives. Not all administrative decision-making requires the same procedure. In this context, the vast majority of Benchers serve as elected representatives, and reached their decision by a majority vote. It is clear from the speeches that the LSBC Benchers made during their meetings that they were alive to the question of the balance to be struck. Reviewing courts may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Court found that Charter values was implicitly considered in the vote because facts were considered in a way that suggested it was considered by the benchers

Approving TWU’s proposed law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to   Charter   protections more fully in light of the statutory objectives .

Ratio Two discrete question: 1. Does the decision engage the Charter

Does it limit Charter rights or values in some way 2. Does the administrative decision reflect a proportional protection of

Charter values and advancement of the statutory objectives Dicta McLachlin (Concurring)

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There is also agreement with the majority that Charter-infringing administrative decisions are reviewed according to the Doré/Loyolaframework. This framework has two discrete steps. The reviewing court must first determine if the decision limits a   Charter   right, and then determine whether the limitation of the right is proportionate in light of the state’s objective, and hence is justified as a reasonable measure in a free and democratic society under   s.   1   of the   Charter . In most cases, the ultimate question will be whether the decision under review balances the negative effects on the right against the benefits derived from the decision in a proportionate way.

the initial focus must be on whether the claimant’s constitutional right has been infringed.   Charter   values may play a role in defining the scope of rights; it is the right itself, however, that receives protection under the   Charter .

Also, the scope of the guarantee of the Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. Since this is a matter of justification of a rights infringement under s. 1,  the onus is on the state actor that made the rights-infringing decision to demonstrate that the limits its decisions impose on the rights of the claimants are reasonable and demonstrably justifiable in a free and democratic society.

Wants a clearer distinction between rights and values, particularly at the first stage

Rowe J (dissenting) When courts review administrative decisions for compliance with

the Charter, Charter rights must be the focus of the inquiry — not Charter values. Charter values have no independent function in the administrative context and their scope is often undefined in the jurisprudence. This lack of clarity is an impediment to applying a structured and consistent approach to adjudicating Charter claims

This erodes the seriousness of finding Charter violations. It increases the role of policy considerations in the adjudication of Charter claims by shifting the bulk of the analysis to s. 1. And it distorts the proper relationship between the branches of government by unduly expanding the policy making role of the judiciary. The result is an unstructured, somewhat conclusory exercise that ignores the framing of the Charter and departs fundamentally from the Court’s foundational Charter jurisprudence.

Once the claimant has demonstrated that an administrative decision infringes his or her Charter rights, the second step of the Doré/Loyola framework requires the state actor to demonstrate that the infringement is justified. The Doré/Loyola framework does not shift this justificatory burden onto rights claimants. The justificatory burden must remain where the Charter places it, on the state actor. For the administrative state, this is no more than what s. 1 requires.

The Doré/Loyola framework does not deviate fundamentally from the principles set out in Oakes for assessing the reasonableness of a limit on a Charter right under s. 1. All the stages of the Oakes test have a role to play in the judicial review of administrative decisions for compliance with the Charter. Often, however, the main hurdle for the state will be the final stages of the Oakes  test: minimal impairment and balancing. The fact that most statutes reviewed under Oakes have failed at the minimal impairment or balancing stages does not mean that the rational connection stage and

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consideration of the pressing and substantial objective cease to be relevant. Similarly, in the administrative context, the fact that most decisions will be rationally connected to an identified statutory objective does not mean that the inquiry need not be carried out. It means only that this component of the analysis will often readily be met

Abdi v Canada Facts Abdi lived in a UN refugee camp before coming to Canada at the age of 6 with his

Aunt Upon his arrival he leaved in Nova Scotia where he lived in 35 foster homes and

never attained more than a grade 6 education Run ins with the law (Assault) Aunt applied on his behalf for citizenship while he was in foster care, but the public

department removed Abdi from a citizenship application Department did not apply for him until he was late in his teens where he had a

criminal record He was in jail for 4 years for aggravated assault

Triggered an admissibility proceeding that went to the minister delegate (DECISION HERE) where they decided to advance Abdi to a admissibility hearing

The Minister Delegate ("MD") stated that they considered the following factors: Length of residence Submitted humanitarian and compassionate grounds Severity of crimes Current behaviour Risk of re-offence and reintegration potential

Relevant legislation Fed Immigration and Refugee protection Act

o S.44(2) - Minister may refer for admissibility hearing if of the opinion the report is well founded

Signals discretionIssue Did the MD appropriately balance Charter values?Decision Decision was unreasonable as it failed to consider charter values Reasons The   Charter   is a fundamental constraint on the action of an administrative decision-

maker   [ Baker ]. Specifically, administrative decision-makers must   “always consider fundamental values”   when exercising their discretion and are   “empowered, and indeed required, to consider   Charter   values within their scope of discretion ” (Doré, at para 35). Therefore, decision-makers must render decisions in accordance with the Charter by considering Charter values themselves

It is the exercise of discretion that “triggers” the necessity to consider Charter  implications

The MD failed to properly assess the Charter arguments raised by Mr.Abdi. Under s.3(3) of the IRPA, which incorporates general principles of constitutional law, the MD was statutorily mandated to render a decision consistent with the Charter

The first issue for consideration is what discretion the MD had, if any, in making her decision. Specifically, in exercising this discretion, was the MD required to consider Mr. Abdi’s Charter submissions?

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The law is clear that administrative decision-makers, like the MD, must act consistently with the Charter when exercising their statutory discretion

In addition, the IRPA, the statute under which the MD was acting, incorporates the general concept that the MD must consider and render decisions in accordance with the Charter where it states at s.3(3)(d) as follows

Section 3 makes it clear that these decision-maker's have to consider the Charter values, but one can look to general constraints to have to consider Charter values (Baker)

In the context of referral decisions, the Supreme Court recently accepted that the MD has some discretion not  to refer a well-founded report to the ID in serious criminality cases such as Mr. Abdi’s

In exercising discretion, the MD is the legal and factual merits-decider. The MD must address relevant issues and compile a record to allow the Court to properly conduct its judicial review function. The Court cannot conduct judicial review of Charter  issues in a factual vacuum

The MD’s decision discloses no indication that the MD even considered Charter values. This is directly contrary to framework outlined in Doré and TWU, and the provisions of IRPA, all of which requires the MD to consider Charter values

As a result, this Court on judicial review cannot do what Doré and TWU mandate, which is to review the balancing of the statutory objectives and the Charter rights and values by the MD. Here the MD did not make a determination on whether the Charter rights and values put forward by Mr. Abdi were “engaged”. In fact, the Charter is not mentioned anywhere in the MD’s cover letter outlining the issues she considered or in the body of her decision. This is so despite Mr. Abdi’s extensive submissions on the Charter. This Court cannot therefore properly conduct its review role to consider if the MD’s balancing was proportionate since it is impossible to determine if the Charter issues were even weighed in the balance

In the companion case to TWU, Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 (CanLII) at para 29 [TWU Ontario], the Court concluded that despite the fact that there were no reasons offered by the decision-maker, the Court could conduct judicial review based on the reasons which   “could be offered”   and the record

That is not an option in this case because there is no evidence that the MD implicitly considered relevant   Charter   values pleaded by Mr. Abdi. There is no consideration by the MD of Mr. Abdi’s facts which could engage Charter rights. Again, while I acknowledge that there is no obligation for a decision-maker to consider every issue, there must be some evidence that the MD considered the   Charter   issues, or facts giving rise to an engagement of   Charter values, in light of the supremacy of the Constitution.

Mr. Abdi provided detailed submissions on his particular and unique facts, including the fact that he was a long-term ward of the state. With respect to his lack of Canadian citizenship, he highlighted the fact that the DCS intervened to remove his name from his aunt’s citizenship application. These factors may be relevant considerations with respect to a s.15 Charter value of non-discrimination in the MD’s referral decision. But they were not considered. There is no

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indication in the record or in the MD’s decision that she turned her mind to any of these considerations.

Courts cannot supplant the reasons actually provided by a decision-maker. Here, the MD provided exhaustive and detailed reasons on other elements of the claim, but left out the significant issue of the Charter. While it may appear to be a situation where the Court could simply fill in its own   Charter   analysis, the effect of doing so would supplant the MD’s reasons, which were exhaustive on every other matter but the   Charter . If Doré is correct, and administrative decision-makers are able to determine Charter considerations, the Court should allow the MD to do so without intervention.

In absence of any explicit or implicit reasons, and although Doré counsels deference, this Court cannot defer to nothing. Doré and TWU make it clear that administrative decision-makers must conform to the Charter by engaging with it.

Ratio Administrators must consider the Charter

Do Administrative decision-makers have authority to consider whether their home statute complies with Canada's Constitution

Decision Makers are creatures of statute and part of the executive Decision makers have to follow the legislation that creates them Determining the vires of enabling statute or consistent with the Charter

o Question of law analysis SCC concluded that an administrative decision maker has jurisdiction to

determine questions of law, then a court should find that the decision maker has the ability to decide constitutional questions

Statutes themselves can decide who has this jurisdiction Enabling acts that say they can consider questions of law then that decision

maker necessarily has jurisdiction However, statutes can limit this

Administrative Procedures and Jurisdiction Act (Alberta) - Only applies to provincially created board

Section 11 has a general prohibition against deciding constitutional questions Exception

o "unless the statute designates" If one can consider, they have to give notice to the Attorney General so they can intervene in

proceedings Labour relations board is given discretion to consider all constitutional questions

Part III: Which Remedies are Most Appropriate

IMPORTANT NOTE: Neither the old writs nor the reform statutes, which are based on old writs, permit a court on judicial review to substitute its views on the substantive matter.

The remedies available on judicial review have their roots in the ancient prerogative writs

Three Best Practice for Remedies1. Identify which remedies are most appropriate and why2. Identify the chosen remedy and cases it is used in

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3. Ensure the court has the authority to grant the remedy

Prerogative Writs Stay of proceedings

o Like and injunction o Intended to stop effects

Usually to stay the effects of the remedies (ie: Freeze the order so it does not have legal effects)

Certiorari: “cause to be certified” is the most commonly used writ o Results in a quashing (effectively invalidating) a tribunal’s order or decision o Generally, the court cannot substitute its decision for the decision a tribunal that the

courts finds had erred, because the court has not been granted statutory decision making

o Use it pretty much all the time o Ex posto facto remedy o Practically: Want it with something else

Prohibition: Blocks a proceeding from happening o Issued to prevent a lower court from exceeding its jurisdiction or to prevent a non-

judicial officer or entity from exercising a power o Prevents decision makers form doing something unlawful (unlawful assumption of

jurisdiction)o Provides pre-emptive relief as it arrests the proceedings of any tribunal, board or

person exercising judicial functionso Has to be sever to overturn ground of denying judicial review that the proceeding has

not played out Mandamus: “We command” Directions to the lower court or decision maker

o As a general rule, it cannot impose an outcome o See D’Errico

Declaration: Stating for the world the legal position or status o Less coercive impact o Used to declare some government actions ultra vireso See Khadr

Habeas Corpus: “Produce the body” see to bring a person before the court o Issued as of right o Function is to ensure the detainment of individuals is not done unlawfully o Bring a person before the court most frequently to ensure that the person’s

imprisonment or detention is not illegal o See Khela

Quo Warranto: “by what warrant/authority/legal mechanism” o Works with prohibition o Allow one to require an official to prove they are acting legally (show how they have

the lawful authority)

D’Errico v Canada – Mandamus instructing on results

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Facts D’Errico was in a car accident that caused her soft tissue injuries, depression and myofascial pain syndrome

She applied for a disability pension under CPP but her application and request for reconsideration were both denied

A review tribunal and Board dismissed her subsequent appeals The board’s decision was based on the fact that D’Errico’s disability was not

“severe” and she was “capable of substantially gainful employment” o This was based on the fact that she had been taking yoga for years to deal

with symptoms and she was still employed as a part-time yoga instructor Timeline:

The accident occurred in 2004, the pension application brought a series of decisions that took it all the way to the FCA in 2014 (10 years)

Issue What remedies are available? Is this an extraordinary circumstance where mandamus can grant instructions on result?

Decision Certiorari granted. Mandamus granted with instructions on resultReasons D’Errico asks for certiorari and mandamus

o Normally, in situations such as these, the Court grants certiorari and remits the matter to the Board for reconsideration. It is for the Board to decide the merits of cases, not this Court

o Normally, this Court awards mandamus only where the outcome of the case on the merits is a foregone conclusion – in other words the evidence can lead only to one result

The court can order a directed verdict in a number of circumstances, including where there has been substantial delay and additional delay caused by remitting the matter to the administrative decision maker for re-decision threatens to bring the administration of justice into disrepute

In such circumstances, the Court exceptionally may direct that a certain result be reached.

Mandamus grants instructions as to the result o It is a foregone conclusion she will get the benefits o It would be unfair that she would be further delayed on what is supposed

to be quick relief o Parliament could not have intended that it takes this long for a resolution

Ratio If the decision is a foregone conclusion and remitting the matter would bring the administration of justice into disrepute. Then in exception circumstances mandamus may instruct on outcome

Canada v Khadr – Declaration example and limits of mandamus Facts Khadr was 15 when he was taken prisoner on July 27, 2002 by US forces in Afghanistan

He was alleged to have thrown a grenade that killed an American soldier in the battle which he was captured; he was held at Guantanamo Bay as an adult

In Sept. 2004, he was brought before a Combatant Status Review Tribunal and was charged with war crimes. The trial has not yet occurred

Khadr had repeatedly requested that the Government of Canada ask the US to return him to Canada

o The PM announced his decision not to request Khadr’s repatriation In 2008, Khadr applied to the Federal Court for judicial review of the

government’s “ongoing decision and policy” not to seek his repatriation, alleging

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this infringed his s 7 rights The FC found that Canada had offended Khadr’s s 7 rights with the ongoing

refusal to request repatriationo The FC also held that to mitigate the effect of that violation, Canada must

present a request to the US for Khadr’s repatriation as soon as practicable The majority of the FCA upheld the FC decision, but defined the breach more

narrowlyo They found that the breach arose from the interrogation conducted with

the knowledge that Khadr had been sleep deprived (frequent flyer program technique)

This was found to be cruel and abusive treatment contrary to the principles of fundamental justice

Issue What is the appropriate remedy for the breach of Khadr’s s.7 rights Decision Declaration not granted, not mandamus Reasons The court concludes that the appropriate remedy is to declare that, on the record

before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter

o Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court

Reasons for not awarding Mandamus o Futility: can only compel Canadians -> cannot compel US to patriate him

to Canada Nor, should it fetter the flexibility of the executive to address the

issue or force them to detrimentally affect their foreign affairs o Interferes with constitutional power of the executive to manage foreign

affairs Question to repatriate is directly in the prerogative powers of the

courts

Mission Institution v Khela – Habeas Corpus Facts Khela was transferred from medium- to maximum- security prison on an “emergency

basis” after the Warden rec’d a security report that Khela hired two other inmates to carry out a stabbing. Filed for a writ of habeas corpus on the grounds that he was not provided sufficient information about the case to meet.

Issue Is habeas corpus available? Decision Granted, but moot Reasons Elements of a Habeas Corpus claim

o There needs to be a deprivation in some way (prison is obvious)o Legitimate ground to question the legality of the detention

Khela was concerned about the procedural fairness. Can be used

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because the lawfulness is being assessed on Administrative principles and the procedural and substantial elements go to that.

Moot because Khela was already released (but heard because of the precedential value)

Statutory ReformOvertime, prerogative writs became more and more problematic – potentially meritorious applications were dismissed because the applicant had petitioned for the wrong writ, or because the claim was barred by some technical limitation

The result was statutory reform The important statutory scheme in Alberta is the Federal Courts Act and the Alberta Rules of

Courto Alberta Rules of Court rule 3.15 – All writs are available and can request declarations and

injunctions o Federal Courts Act section 18(1) to 18(3) – All writs

Statutory reforms commonly provide for the following: Simplified application procedures

o E.g. a statute may state that applications for orders “in the nature of” mandamus, prohibition or certiorari shall be deemed to be applications for judicial review, to be brought by way of an originating notice or petition

It is sufficient for a party to set out the grounds on which relief is sought and the nature of the relief sought, without having to specify under which particular writ they might have proceeded at common law

Simplified remedies o Including the power to set aside a decision or direct the tribunal to reconsider its decision,

with or without directions Greater clarity as to who may be parties to a hearing

o Some statutes also provide that notice must be given to the AG, who is entitled as of right to be heard on the application

A right of appeal Judicial review mechanisms to challenge interlocutory orders and to resolve interim issues

Private Law Remedies

Summary: monetary awards are not available through judicial review. Clients will have to use the private law to seek monetary damages.

Courts on judicial review do not have the ability to order a range of remedies, including monetary damages.

Neither the old prerogative writs, nor the new statutory remedy of judicial review, allow a party to obtain monetary relief through judicial review

Attempts to obtain private law remedies from public bodies has seen the court respond in two main ways:

o (1) To clarify and elaborate upon those instances where public bodies, like administrative agencies, can be subject to purely private law remedies outside the scope of administrative action and judicial review

The crown and its servants can be liable to private parties for monetary relief A separate civil action for restitution must be initiated

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Government agencies can be sued, for example, for breach of contract, negligence, and the special tort of misfeasance (or abuse of) public office

This third action has a high threshold. To succeed, the plaintiff must establish, in addition to the basic elements of negligence, (1) deliberate and unlawful conduct by someone in public office, and (2) the public officer’s subjective knowledge that the conduct was unlawful and likely to harm the plaintiff

Because a public officer must be able to make decisions that are averse to some peoples’ interests, in the service of broader public policy goals, mere knowledge of that harm is insufficient

o The public officer must “deliberately engage in conduct that he/she knows to be inconsistent with the obligations of the office”

Note parties do not need to seek judicial review before they can bring a private law action for damages and the private law action does not constitute a collateral attack on government conduct

o (2) The Court may have to develop a claim for monetary relief grounded entirely in public, as opposed to private, law

The majority of the Federal Court of Appeal did this, in obiter, in Paradis Honey Rather than trying to adapt ill-fitted private law principles to public law

contexts, the majority argues for drawing on underlying principles of administrative law and judicial review to create a new test:

o That as a matter of public law, courts should grant relief when (1) a public law authority acts unacceptably or indefensibly in the administrative law sense and when (2) as a matter of discretion, a remedy should be granted

It’ s too soon to know whether this argument will be accepted in the common law

Part IV: Indigenous Peoples and Administrative LawAboriginal Administrative law vs Indigenous Administrative Law?

Aboriginal Admin Lawo ‘Aboriginal’ is used because it is the wording used in s 35 of the Constitution o The source of the authority is state-based law o The decision-making bodies under AB law can be judicially reviewed without much

thought about jurisdiction Indigenous Admin law is quite different

o It is not a state-based decision-making regimeo It is systems of internal governance that exist within specific Indigenous Nations that are

rooted in Indigenous legal systems

Negotiation Tribunals, Indigenous Self-Government With judicial emphasis on the need for negotiated settlements of AB rights, it seems logical that Parliament would have legislative frameworks enabling specialized and independent tribunals with a mandate to support negotiations, make recommendations for, and/or adjudicate the expedient settlement of claims – these are called Negotiation Tribunals

Negotiation Tribunals should be easily identifiable

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o Federal or provincialo Clearly identifiable administrative apparatuso Established by statute

Treaty negotiations don’t exclusively occur within these tribunals There are two provincial treaty commissions that focus on education and research about historic

treaties and treaty relationships rather than prompt and fair resolution of claims (SCT and BCTC) One tribunal has been created with authority to adjudicate: The Specific Claims Tribunal

o Legislative mandated to resolve claims arising from historic grievances Focuses on historic breaches of duty regarding the Crown’s implementation of

treaty promises, creation of reserve lands and other legal obligations The idea behind this body is that you have a group that is removed from the

treaty negotiations and can therefore review the treaty from an outsider’s perspective

o The tribunal’s mandate excludes claims based on AB rights, and title or treaty rights of an ongoing nature and allows only monetary remedies

The other tribunal is the British Columbia Treaty Commission, which, as a tripartite body, is constituted by federal and provincial legislation as well as by resolution of the BC FN Summit, but understood by a provincial entity

o BCTC plays a central role in the facilitation of treaty negotiations as well as a public education function

Comprehensive Claims Policy – federal policy that permits the negotiation of modern treaties respecting Indigenous claims to land, resources and self-government

o Groups who did not sign historic treaties can pursue treaties under this policy Criticism of these policies: expense, debt burdens for participating nations, clashes on principles

and mandates such as the required extinguishment or modification or AB rights in exchange for “certainty” under the CCP, lack of accountability measures, and a general lack of progress

Author’s concerns: o The lack of an independent body or commissioner to supervise negotiations, promote

accountability and report to Parliament on progresso The contradiction between policy statements that assure that negotiation processes are

intended to address constitutional rights, and Crown mandates for negotiations premised on government policy and not rights

Self-government bodieso Delegated authority under statuteo And/or self-government under a treaty

Ministerial Officials – most commono Prerogative authorityo Lack of statutory infrastructureo Federal administrative officials

Challenges this arrangement raises: Discretion – what limits their discretion if not set out in statute? This

makes review very hard (and rare) Lack of enabling statute – can’t determine what obligations arise for

procedural fairness; can’t really do a Dunsmuir analysis for standard of review because we don’t know what is reasonable under statute

Policy – the discretion in these cases is granted under Memorandums from the government to the Minister so everything looks like a policy decision and the courts don’t want to get involved

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Administrative Law in Indigenous Governance Unlike other administrative decision-makers, Indigenous governments have varied and multiple sources of authority, including Indigenous law, that adds complexity to questions of amenability to judicial review and the approach to deference required by reviewing judges

There is a conflict between using judicial review for Indigenous admin decisions conflicts with the constitutional requirement relating to the definition and recognition of an inherent right to self-government

Self-governance for Indigenous peoples in Canada is well accepted as an important step toward remedying colonial legacies and reconciliation

o Contentious issue one of process, scope, constitutional fit and implementation Only a handful of self-government agreements have been completed under this

policy, the rest are achieved through modern treaties The product of this policy and jurisprudential landscape are several different models or

approaches to governance, ranging from councils that roughly approximate municipal governments (i.e. Indian Act band councils) to governments that have a nation-to-nation relationship with Canada (i.e. modern treaties)

o Between these two “poles” sits forms of self-government that involve Indigenous participation within public institutions of government

There is no agreement among commentators on the nature of the sovereignty or status of the governments achieved through treaty negotiations

The goals and priorities of different nations are not uniform Summary: a simplification or rationalization of the landscape of Indigenous self-governance is

not on the horizoncontext of self-government and review of indigenous governments and decision-makersIndigenous legal traditions are often rich in mechanisms that reflect administrative law values

Nations have laws and legal theories the demonstrate concerns for transparency, accountability and accessibility

In spite of traditions of “administrative justice”, the decisions and laws made by Indigenous governments, and particularly those formed under statutes and agreements will not necessarily rely on Indigenous legal traditions

Judicial review within AB admin law encompasses a broader scope of decision than judicial review for consistency with AB rights

o In JR contexts, review of the decision of Indigenous decision-makers must proceed in an informed and eeply contextual manner to identify the source of authority, whether that authority has been exercised in accordance with requirements and restrictions of a “multilevel” or plural rule of law, and attend to not re-inscribing the harms of colonialism on Indigenous laws and governments by ensure full and equal treatment of Indigenous laws where relevant

Respect for Indigenous governance does not mean an absence of procedural and substantive fairness

The concern is for a contextual treatment of the potentially different processes and considerations at stake in what constitutes a fair and reasonable decision

beyond judicial review: recognizing authority of indigenous lawThere is a need for a plural rule of law most directly: the presence and emergence of Indigenous governance with authority founded in Indigenous law that is asserted and expressed without concern for obtaining recognition through self-government agreements or legislation

“Just do it approach” refers to nations that simply begin to exercise decision-making authority in a particular policy area

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o Does not imply an isolationist approach o E.g. Haida Nation has taken this approach

Conclusion Admin law has a lot of roles with Indigenous peoples

o It can be used as a tool to mediate disputes with state governments to address abuses of power in the provision of programs and services by the federal government

o It can be used to enrich and cross-pollinate the development of legal doctrines and forums to advance inherent rights and constitutional protections for those rights

o It can be employed to review the decisions of Indigenous governments pursuant to powers derived from statute, self-government agreements or their inherent rights and legal orders

For admin law to be used well in these areas – to facilitate reconciliation and decolonization – context is important

o The factors relevant in contextual analysis are not as well known Deference may not be well suited in this area, especially in terms of the delivery of services and

the implementation of AB rights, that the responsible governments and legislatures have yet to address through the ordinary democratic processes of law-making

Aboriginal Law and Standard of Review Underlying question: Whether the conventional doctrinal tools used to ensure accountability for the exercise of executive power over the individual are really transposable to the relationship between Canada and Indigenous Peoples

The SCT is the key venue for adjudicating breaches of fiduciary duty in Crown-Indigenous relations

o Members are drawn from a roster of Superior Court judges In the first case to reach the FCA, Kiselas First Nation, the court ruled that the standard of review

was correctness o The reasoning was that superior courts have concurrent jurisdiction over fiduciary law,

and the members of the SCT are in fact SC judges o Court also stated the need for consistency

The first case to reach the SCC, Canada v Williams Lake Indian Band, was reviewed on a standard of reasonableness (even though they found the SCT decision to be unreasonable)

The SCC in Haida applied principles that allocated the standard of review according to the type of question at stake:

o On factual assessments, including those relevant to the existence or extent of the duty to consult, courts should defer

o To the extent that the legal elements of the duty to consult can be extricated from the factual questions, the standard would be correctness, but if not, the standard is reasonableness

o On the actual implementation of consultation, the standard is reasonableness The government is required to make reasonable efforts to inform and consult

Note: adequacy of consultation is measured on reasonableness, but the court’s stance on procedural fairness is correctness

Attawapiskat First Nation v Canada Facts: AFN experiences a major housing crisis on reserve; it became a state of emergency with 5 families living in tents being noted as priority going into the winter

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- AFN submitted a proposal for emergency funding from Aboriginal Affairs and Northern Development Canada (AANDC) to renovate condemned houses on the reserve for the families living in houses

- AANDC confirmed that it would advance funds of approx. $500,000 for that purpose - The AFN continued to have issues, mostly related to the extreme crisis they faced

o Asked for more money – stated the lacked the resources and capacity to address the crisis - A Third-Party Manager [TPM] was implemented to co-manage the band. The Band was found in

default of their funding agreement and viewed as mismanaging the fund Issues:

1. Is judicial review available? Yes2. If so, what is the standard of review? Reasonableness4. Did the Minister err in appointing a TPM? Yes

Reasons: Is JR Available? Yes

- Respondents argued JR was not available because the issue was contractual in natureo This isn’t right – the issue is not purely commercial or to be considered a private matter

- The CFA was an agreement for the provisions of funding for essential services, such as housing, to the members of a FN living in the isolated and hostile environment of the north

o These members live on reserve created by treaty where such services are more than necessary

- The relationship between the Government and a FN is unique and cannot be analogized to the relationship between the government and a company bidding on a government contract (TPA)

- Treaty rights are not directly at issue, but they play an important role o This situation engages the honor of the Crown and therefore contains public law elements

- The power imbalance between government and this band dependant for its sustenance on the CFA confirms the public nature and adhesion quality of the CFA

- Conclusion it’s a public decision that impacts the ability to operate as people, is founded by a provision of public welfare, the Ministers relationship is intertwined with constitutional and statutory schemes, the DM is an agent of the government, and public law remedies would adequately address the decision to appoint a TMP

o Judicial review is therefore available Standard of Review

- On the first issue regarding the Minister’s interpretation of the CFA, and specifically whether the risk of compromise to the health, safety or welfare of AFN members must be caused by the Council before the Council can be found in default of the CFA (and the Minister can seek a remedy of appointing a TPM), the applicable standard of review is correctness

- On the second issue – choice of remedy – the parties agree that the applicable standard of review is reasonableness

o Raso: this looks like applying the CFA to the issue in AFN. Looks like a question of mixed fact and law.

Did the Minister err in appointing a TPM?- The courts must not interfere with the choice of remedy where that choice is reasonable in falling

within a reasonable set of outcomes given the facts o The Minister is entitled to a degree of deference in choice of remedies

- The reasonableness of the choice of remedies is conditioned by a reasonable and accurate appreciation of the facts and a consideration of the reasonable alternatives available

- Here, the Minister chose to appoint a TPM which is a financial tool, but the real issue was an operational problem

o The AFN knew how to manage their finances, they just didn’t have the material means to do so

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- The Minister never actually looked at any other remedy other than the appointment of a TPM despite the indications of problems with resources and equipment – also didn’t assess AFN’s actual need for a TPM (which there was none)

o “While the ADM concluded that the appointment of a TPM was a reasonable and necessary remedy in light of the AFN’s lack of capacity to address the housing crisis, the remedy he chose failed to deal with the problem at hand, which was not financial in nature”

- The remedy did not respond to the problem and is therefore unreasonable o The court doesn’t tell the Minister what they should have done; they just state that the

remedy was unreasonable. This is the court allowing for a range of potential outcomes under the CFA, just not the specific one chose

- Raso: this decision is more of the exception than the rule to Aboriginal administrative review

Simon v Canada (Fed Ct) Facts: The Minister of AB Affairs and Northern Development Canada (AANDC) made a decision to change the “reasonably comparable” approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria

- The applicants argue that the Minister’s decision to impose mirror provincial rates on First Nations reserves in the Maritimes is so flawed that it constitutes an abuse of discretion because it was made in the absence of proper consultation and without consideration of its impacts on recipients.

o The change in eligibility criteria from reasonably comparable to a strict adherence to provincial standard may mean that several types of income which are not currently calculated into a recipient’s gross income will now be calculated under provincial rules and render a person ineligible

Issues: Whether the decision was reasonable- Whether the Minister owed a duty of procedural fairness in the form of consultation

Held: Unreasonable decision; PF was owed, and no proper consultation occurred Reasons: Standard of Review

- The decision is subject to judicial review for compliance with the Constitution Act- The DIAND Act itself does not necessarily allow for judicial review, but the Minister’s decision

must also be in compliance with the Financial Administration Act and is therefore subject to judicial review

- This Court concludes that it has the appropriate authority to review the Minister’s Decision to interpret the meaning of the words “adopt”, “comparable” and “consistent with”, in the MOU, as meaning to mirror provincial rates

o This is a reasonableness standard - Procedural fairness will be reviewed on a standard of correctness

Analysis - Decision- The court finds that the Minister’s decision to mirror provincial rates will ensure that members of

First Nations living on reserves will receive at least a comparable level of social assistance benefits as other provincial residents

- The issue of whether the same type of income assistance would be available was considered and dealt with by the Minister

- The true significance of the change in policy is the effect on eligibility- The decision is in line with the Treasury Board’s Memorandum of Understanding

o But it is not reasonable because there is no data on the number of recipients who will lose their benefits as a result of the application of provincial eligibility criteria

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o The Minister failed to obtain data on the impact the strict application of provincial eligibility criteria would have on recipients, this omission renders his decision unreasonable

Analysis – Procedural Fairness in Consultation - The honor of the Crown is not at stake in this case; there is no existence of an aboriginal right or

title that may be adversely affected by the Decision- They were, however, entitled to procedural fairness

o The Decision was administrative in nature and would greatly affect the interests of a large number of individuals, in this instance the majority of social assistance recipients

- The different program manuals issued by AANDC were administrative in nature and not legislative as they were “meant for internal use as an interpretive aid for ‘rules’ laid down in the legislative scheme”

o The manuals are meant to set policy priorities, standards, rates and eligibility criteria in order to properly administer funds disbursed under the authority set down by the Treasury Board’s decision which is embodied in the MOU

- It appears that the First Nations were consulted about the implementation of the new Manual and chose to abandon the process

- However, there was never any meaningful consultation about the merits of a strict application of provincial rates and eligibility criteria before it was developed and implemented

(1) the nature of the decision being made, and the process followed in making it; - it was an administrative decision not judicial; less PF owed

(2) the nature of the relevant statutory scheme; - there is no legislative scheme providing for a right of appeal, there is no other mechanism to challenge this decision; more PF owed

(3) the importance of the decision to the individuals affected; - will have a significant impact on the FN recipients of social assistance though this was not evaluated by the Minister; more PF owed

(4) the legitimate expectations of the individual challenging the decision; - applicants had a legitimate expectation that they would be consulted before change to social assistance were decided and implemented; more PF owed

(5) the decision maker’s own choice of procedure – this factor is not relevant because it is not clear that the AANDC made any deliberate procedural choices, rather, it made choices on how it would communicate its decision

- Overall the Applicants were owed greater procedural fairness in the form of consultation before the Decision was made

o The Minister breached his duty to observe procedural fairness

Canada v Simon (FCA) Facts: Same as above. Issues: Did the judge err in concluding that the First Nations had to be consulted prior to the Minister deciding that the eligibility criteria for income assistance had to strictly adhere to provincial standards?Held: Yes Reasons: The MoU directs the Minister to provide income assistance to FNs on the same conditions in force in the province where the FN is situated

- Aboriginal Affairs had to dispense income assistance funds to First Nations on the same conditions as those which applied to other Canadians in the provinces

- The Minister has absolutely no discretion with respect to the application of the 1964 Directive and the 1990 MOU

o These documents require that eligibility criteria for the provision of income assistance to on reserve First Nations was to be the same as the eligibility criteria for the provision of income assistance to Canadians living off reserve. The Minister had no choice but to ensure that the 1964 Directive and the 1990 MOU were implemented

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TJ erred in stating the Minister had broad discretion - CA does not think a policy change even occurred - No procedural fairness was owed by way of consultation for 2 reasons

o The manuals are consistent with the direction found in the 1964 Directive and the 1990 MOU which require that the provision of income assistance to FNs be made on the basis of the eligibility criteria applicable in the provinces

o The Minister has no discretion in this regard and therefore consultations on the merits are not warranted and would be fruitless

- Respondents attempt to argue that irrespective of the language of the provision, the Minister still determined eligibility on a “reasonably comparable” standard

o Even if they did, result of appeal wouldn’t change - By giving notice, time and training to First Nations to allow them to adapt their income assistance

administration to the provincial eligibility criteria, the Minister met his duty of procedural fairness

Pictou Landing Band Council v Canada Facts: Pictou Landing Band Council is the elected government of the Pictou Landing FNs and the other applicant is Beadle, who’s son has high care needs (needs full time care)

- Beadle cared for her son full time without any government support until she had a stroke and was rendered unable to care for her son

- PLBC provided Beadle in home care for both her and her son; the cost of providing for them took up about 80% of the PLBCs total monthly budge for person and home care services funded by the AANDC

- The health director of the PLFN Health Centre contacted Health Canada and told them the son’s case met Jordan’s principle

o Jordan’s Principle aims to prevent First Nations children from being denied prompt access to services because of jurisdiction disputes between different levels of government; it is a child first principle that says the government department first contacted for a service readily available off reserve must pay for it while pursuing repayment of expenses

- A case conference was held to determine whether the son’s case met Jordan’s Principle - The Health Director ultimately asked for more funding so that the PLBC could continue to care

for the family- AAND and Health Canada concluded that there was no jurisdictional dispute in this matter as

both levels of government agreed that the funding requested was above what would be provided for a child living on or off reserve

o The son’s case did not meet the Jordan’s Principle o No additional funding was going to be provided

Government offered to pay for institutional care Issues: Whether judicial review of decision not to extend funding should be granted

- Whether costs should be awarded under s 24(1) of the Charter Held: Yes, JR allowed

- Did not consider the costs order Reasons: Was Jordan’s Principle Engaged?

- Jordan’s Principle says the government department first contacted for a service readily available off reserve must pay for it while pursuing repayment of expenses

- The government’s hold Jordan’s Principle is not engaged because they both agree to not extend the funding

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o Court: The absence of a monetary dispute cannot be determinative where officials of both levels of government maintain an erroneous position on what is available to persons in need of such services in the province and both then assert there is no jurisdictional dispute

- There is a maximum of funding prescribed for in home care, but the policy has been found to encompass exceptional cases that exceed the maximum

- Boudreau found that a person with multiple handicaps residing off reserve was entitled to receive home services assistance over the maximum limit

- Therefore, the Manager’s finding that Jordan’s Principle was not engaged was unreasonable Did the DM Properly Assess the Request for Funding?

- The Manager took part in case conferences in which provincial health officials, First Nation officials and other AANDC and Health Canada officials took part. As a result of taking part in these case conferences, she had a full understanding of the issues and care needs Jeremy required. She was able to obtain opinions from the health assessors as to what was needed in the son’s case

- The request for funding was actually “for ‘homecare’ 24 hours a day, 7 days a week, less the time his family can reasonable attend to his care”

o Not actually for 24/7 care- The Manger was required to assess the factual circumstances and the submissions made

o The manager erred in determining that the request was for 24/7 careo This finding was unreasonable

Application of Jordan’s Principle- Jordan’s Principle applies between two levels of government - Here, the PLBC was delivering programs and services required by AANDC in accordance with

provincial legislative standards o The PLBC is entitled to turn to the federal government and seek reimbursement for

exceptional costs incurred because Beadle could no longer care for her son- The son cannot be separate from his mother or institutionalized - The federal government took on the obligations espoused in Jordan’s Principle

o Therefore, Health Canada was required to reimburse PLBC- Alternatively: if the implementation of Jordan’s Principle is discretionary, the government

undertook to apply the principle in exceptional circumstances which is what arose here - Forceful mandamus remedy: Federal government must reimburse PLBC for the cost of

extended care

Take-Away Points – Indigenous Peoples and Administrative LawMany different administrative arrangements (tribunals, band councils, self-government bodies)

o Governed by statutes, treaties, Indigenous lawsBasic need servies (housing, water, social assistance) typically administered via prerogative power

o Funding agrements, MOUs, policy manuals can all structure powero Significant barriers to external reviews by courts

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