Académique Documents
Professionnel Documents
Culture Documents
Subject Matter
1.
Procedural Fairness
Substantive Constraints
Challenging Administrative Decisions and Remedies of Judicial Review
CB 77-85; 278-285
Pay attention to some of the exceptions and constraints on the triggers as well.
So, for legitimate expectation, note the courts views on procedural versus substantive
promises. For the Knight trigger, the readings talk about nal versus preliminary
decisions (and the related issue of investigations and recommendations). Note also
exceptions to this exception See Grange J application of test in Abel
Knight v. Indian Head School Division No. 19 (1990)
Leading decision of the Supreme Court of Canada on procedural fairness in
Canadian administrative law. The Court created a threshold test to determine whether an
administrative process invoked a common law duty of fairness based on the nature of
the decision, relationship between the parties, and the effect on the individual claimant.
Ronald Gary Knight was dismissed as superintendent of a school board. His
position was held at pleasure. His dismissal was not for personal reasons, but he
claimed procedural fairness should apply and a hearing should have been held.
THREE PRONG TEST per LHeureaux-Gube J (for the majority of the Supreme
Court):
1. Nature of the decision to be made by the administrative body:
a. Administrative v. Legislative use of power - Administrative powers
attract procedural fairness while legislative powers do not
b. Final decision maker - Preliminary or interlocutory decisions dont
invoke procedural fairness
2. Relationship existing between that body and the individual:
The body is exercising a power stemming from a statute or
prerogative power.
3. Effect of that decision on the individual's rights (privileges / interests)
Low threshold requiring only that applicant have an interest and
that it be impacted
If all of these criteria are met then procedural fairness is triggered and the court
will decide what procedures the applicant is due. But note that if the statute specifically
excludes procedural fairness, then the court has no choice but to follow the legislatures
intent.
Basic requirements of the duty to act fairly is to give reasons for dismissal and a
hearing. Note that every administrative body is master of its own procedure and
therefore you must allow administrative bodies to work out a system that is flexible,
adapted to their needs and fair NO need to make it a court process.
Note Dunsmuir v. New Brunswick changed the law re: procedural fairness
applicable to public office holders. Where a public office holders employment is
governed by an employment contract, disputes re: dismissal must be resolved according
to terms of the contract and any applicable statutes and regulations; i.e., a public
authority that dismisses an employee pursuant to an employment contract is not subject
to an additional public law duty of fairness. Remedies of employee are only contractual.
Reasons:
Hard to determine in practice if a position had a strong enough
statutory flavour
Public law remedy of overturning the dismissal and re-instating
employee (who is entitled to accrued salary and benefits from time of dismissal to
courts order of judicial review) is less principled than private law remedy of
proper notice and pay in lieu of notice because the amount of relief depends not
on employees situation but length of time to resolve the judicial application; i.e.,
common law entitlements of notice period, salary in lieu and wrongful dismissal
claim provide enough protection.
Dunsmuir noted that the public law duty of fairness can still apply:
Where the public employee is not protected by an employment
contract
Where the office-holder is expressly subject to summary dismissal
Where the duty of fairness flows by necessary implication from the
statutory power governing the employment relationship e.g. statute provides for
notice to be given to employee of a motion to dismiss.
whether there has been a breach of the duty to act fairly in all the circumstances.
The rules are of some importance in determining this latter question.
Dickson argued that it is wrong to regard natural justice and fairness as distinct
and separate standards and to seek to define the procedural content of each. Fairness
involves compliance with only some of the principles of natural justice. What the content
of the principles of natural justice and fairness is, and their application to the individual
case, will vary according to the circumstances of each.
Cardinal v. Director of Kent Institution adoption of new categories legislation & rightsprivileges
It was held by the Supreme Court that a hearing was required for a decision by
prison officials to keep a prisoner dissociated for security reasons.
In so holding, Justice Le Dain stressed the serious effect on the prisoner and
stated that:
The court has affirmed that there is, as a general common law
principle, a duty of procedural fairness lying in every public authority
making an administrative decision which is not of a legislative nature and
which affects the rights, privileges or interests of an individual The denial
of a right to a fair hearing must always render a decision invalid, whether or not it
may appear to a reviewing court that the hearing would likely have resulted in a
different decision It is not for the court to deny that right and sense of justice on
the basis of speculation as to what the result might have been had there been a
hearing.
Analysis: Le Dains formulation of the circumstances in which the duty of
procedural fairness arises does contain the genesis of a new threshold, one in which the
dividing lines are expressed in terms of legislative and all other functions are
predicated also on whether the decision is one that affects rights, privileges or
interests.
More particularly, however, Webb is included at this juncture for a point about the
distinctions between an applicant for accommodation in government-subsidized housing
and an existing resident in such housing. This suggests a continuing relevance for
threshold purposes between benefit holders and those seeking such benefits.
Re Webb and Ontario Housing Corporation [1978] - duty of procedural fairness even when
revocation of benefit is in issue
Webb was a low income tenant in a building owned by Ontario Housing
Corporation and managed by Meridian Property Management for OHC. After 3 years,
Meridian recommended terminating the lease because of problems caused by Webbs
kids. OHC officials and its board of directors agreed and an application for termination
of her lease was brought under Landlord and Tenant Act. Webb applied for a review of
the decision.
Three Arguments:
Statutory Powers Procedure Act 1971 applies to a meeting of the
directors of OHC when considering terminating a lease;
If the Act doesnt apply, rules of natural justice apply as they were
conducting a judicial or quasi judicial hearing; and
Duty to act fairly as Webb had a legitimate expectation she
would be treated fairly and this expectation was not met.
Judge held directors were not a tribunal exercising a statutory power of decision
under the Ontario Housing Corporation Act where it was required to give the parties an
opportunity for a hearing. Determination to terminate tenancy does not fall within
Statutory Powers Procedure Act 1971. He also dismissed argument (b).
Case is important because it distinguishes between an applicant for subsidized
housing and someone already in subsidized housing. Decision by OHC to grant Webb
subsidized housing was not one that could be subject to procedural fairness. Once
Webb became a tenant, she qualified for and acquired a benefit. What is at issue in
these cases is what it is appropriate to require of a particular authority in the way of
procedures given the nature of the authority, the nature of its power and the
consequences of the exercise of the power on the individual affected and the nature of
the relationship between the authority and the individuals affected. Judge MacKinnon
said that in his opinion OHC, in exercising power of termination and depriving Webb of
benefit of lease was, in the circumstances, required to treat her fairly by telling her of
case against her/complaints and giving her an opportunity to answer. Serious adverse
effect/danger of losing an important benefit with no opportunity to answer the case
against her would be unfair.
ON FACTS SHE WAS TREATED FAIRLY PLENTY OF WARNINGS.
HOLDERS OF STATE ASSISTANCE ENTITLED TO PROCEDURAL FAIRNESS
BEFORE IT IS CUT OFF.
Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98 [1986] - procedural
fairness due to license applicant if circumstances necessitate them
Facts: Dr. David Hutfield initially requested hospital privileges at the Fort
Saskatchewan General Hospital in March 1984. The Hospitals Act and the applicable by-
laws required the Hospital to ask the College of Physicians and Surgeons to appraise
the applicant's qualifications, then required the Chief of Staff to prepare a written report
with its recommendations to the Board of Governors who then decide whether to grant
or deny the privileges. In October 1984, Dr. Hutfield's first application was denied. In
December 1985, Dr. Hutfield re-applied to the Hospital for privileges. Although the
Credentials Committee met, the College of Physicians and Surgeons was not asked to
do a new appraisal because the Chief of Staff believed that the previous positive
recommendations of the College were recent enough. Dr. Hutfield's solicitor requested
notice of the meeting of the Board so that he could make personal representations;
however, he was not given notice of the hearing, and the Board denied Dr. Hutfield's
second application. Although Dr. Hutfield asked for reasons to be given for this decision,
the Hospital declined to provide them. As a result, Dr. Hutfield applied for certiorari to
quash the decision and mandamus to compel the Hospital to grant him privileges.
Reasoning: McDonald finds there are very few decisions granting certiorari or
finding a duty to act fairly in the granting of a right/privilege in the first place (see e.g.
Webb and Ontario Housing Corporation (Re)) absent some special circumstance. He
reviews some English caselaw and finds examples where judicial review was available
based on a "legitimate expectation" of obtaining a right/privilege, as well as several
cases where there was no legitimate expectation but certiorari was still available. Based
on the caselaw he concludes that the distinction between the expected standards of
procedural fairness in granting a right and extinguishing it is not founded in principle but
is rather a historical accident based on the following:
1. It is not only rights but "interests" that the courts will protect;
2. Certiorari is available not only where there is a duty to act
judicially but also where there is a duty to act fairly;
3. Where there is a duty to act fairly, the content of that duty is factdependent;
4. The expansion of judicial review and procedural fairness based on
"legitimate expectation" and "slur" do not reflect a principle which can withstand
scrutiny in the light of the object of judicial review.
Applying this to the case at bar, McDonald found that while the Board had no
duty to grant hospital privileges to Dr. Hutfield (even if he was qualified), there was no
doubt that his professional interests would be affected by the decision. As a result,
certiorari was available to him. Additionally, the Board was under a duty to give reasons.
Ratio: If the decision of an administrative decision maker will extinguish or affect
a right or interest of a person when that persons rights or interests are being considered
and decided upon in a way that is final (or final subject to appeal), they must adhere to
procedural standards.
The precise nature of the duty/standard due will depend upon the
nature and extent of the right or interest.
A failure to adhere to the appropriate standard will attract
quashing by certiorari and if necessary, an order in mandamus.
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The duty of fairness applies to decisions, meaning final dispositions of a matter, and will rarely
apply to investigations or advisory processes that do not have any consequences
Knight: preliminary decisions will receive less procedural fairness than final
decisions
Re Abel: however, investigations and advisory processes may have a
considerable impact on affected persons, especially when they are conducted in public,
so if a preliminary decision has a great impact on the final decision, then procedural
fairness applies
Re Abel (1979 Ont. Div. Ct) (the "even though you claim to be an 'advisory board', I deserve
procedural fairness because your refusal to disclose my psychological reports before the Board
denies my right to know the case I have to meet" case)
To determine the content of procedural fairness for interim decisions, look at:
Degree of proximity between preliminary and final decision
Here, the preliminary decision was Abel's only
chance at getting a positive final decision by the Lieutenant G-C
Degree of harm faced by the applicant
Here, a denial of procedural fairness resulted in
imprisonment and a deprivation of liberty, so big time harm
Dairy Producers' Co-op v. Saskatchewan (1994 Sask. QB) (the "even though you're at the initial
investigative stage of a sexual harassment complaint, we should full disclosure of the complaint
during the investigation because settlement negotiations failed" case)
While procedural fairness requires that the applicant (1) receive notice of the
substance of the case against him, and (2) be given the opportunity to respond, these
requirements only apply to determinative stages where such a duty exists
Here, the original investigation and the settlement negotiations had no duty of
procedural fairness imposed on both because there was little degree of proximity
between their processes and the Human Right Commission's final decision
Irvine v. Canada (1987 SCC) (the "I didn't get procedural fairness in my antitrust matter because
the investigator who wrote a report to the Board as to whether to have a full hearing and
prosecution didn't give me any notice or an opportunity to be heard" case)
Here, there were two preliminary stages, both of which didn't attract any degree
of procedural fairness:
Step 1 Information Gathering
Not final and not public, as the investigator only
gathers facts for the Minister
Step 2 Information Processing
Commission processes info gleaned by Director via
Hearing Officer, but while they can make recommendations to Minister on
whether to prosecute, neither the Director or Commission can actually
prosecute for unfair trade practices
Therefore, greater procedural rights at the full-blown inquiry can offset any
hardship suffered by lesser procedural rights at early stages of the process, as courts
don't want to unduly burden law enforcement with judicial processes
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Legitimate Expectations
In certain circumstances, procedures will be required by reason of expectations
generated in an affected person and not be entirely contingent on a detached analysis of
the statutory power in question.
To the extent that entitlements to procedural fairness are argued to depend on
the circumstances of particular exercises of a statutory power, theories of a forgetful or
an impliedly authorizing legislation become even more stretched than they normally are.
In such contexts, it is rather more difficult to infer from legislative silence that there has
been an implicit delegation to the courts of the task of selecting those occasions on
which the decision maker owes obligations of procedural fairness to affected persons on
those where no such entitlement arises.
In the English case of Schmidt v. Secretary of State for Home Affairs, Lord
Denning made the following statement:
The speeches in Ridge show that an administrative body may, in
a proper case, be bound to give a person who is affected by their decision an
opportunity of making representations. It all depends on whether he has some
right or interest, or, I would add, some legitimate expectation of which it would
not be fair to deprive him without hearing what he had to say.
Initially, the concept was on that was treated as just another means of expressing
the notion that the applicants stake in the outcome was on that indicated the need for
procedural fairness. However, short after his judgment in Schmidt, Denning gave the
concept a rather different content.
It may be established by way of:
An expectation of a hearing arising out of express representations;
A practice of holding such hearings; or
A combination of the two.
The doctrine has been acknowledged in the Canadian context by the Supreme
Court in four cases, though in each case the court held that the grounds for successful
invocation of the doctrine had not been made out. As a consequence of the lack of an
example of a positive application of the doctrine, there main many doubts as to the
precise reach of the Canadian version.
Reference re Canada Assistance Plan [1991] - court established two principles in this case (1)
doctrine of legitimate expectations does not give rise to substantive rights, and (2) doctrine
cannot be applied to a legislative body in its statutory-making function
Furey v. Roman Catholic School Board for Conception Bay Centre [1991] - establishes two
principles: (1) doctrine of legitimate expectation can only be exercised by those who know of the
previous practice or were aware of the procedural safeguard promised by the agency; and (2) in
deciding to close a single school (thereby making it a specific, individual-like decision), the
power being exercised, while technically administrative/legislative, is in effect adjudicative
because of its specific nature, but where decision to close affects entire area or district, decision
is administrative/legislative in nature
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A school was closed without any notice and parents go to court saying that
guidelines were not followed, that they were not given public notice. Court said that,
since the board in the past had used the guidelines for school closing decisions, they
should apply. On appeal, decision was reversed since court found there was no reliance
(affidavits reviewed by court did not show evidence that the parents believe that past
practice would be followed in this instance). Where an official guarantees an outcome
rather than a procedure, legitimate expectation would not apply: legitimate expectation
creates procedural, not substantive rights.
Mount Sinai Hospital v. Qubec [2001] - (the "you promised to grant us a proper licence if we
moved neighbourhoods" case)
The doctrine of legitimate expectations looks at the conduct of the public
authority in the exercise of that power including established practices, conduct, or
representations that can be characterized as clear, unambiguous, and unqualified, and
the expectations can't conflict with the authority's enabling statute
Binnie J. makes a distinction between:
Procedural fairness:
Driven by Baker factors, such as nature of the
interest, nature of the statutory scheme, etc
Legitimate expectations:
Only applies to procedure based on the course of
dealings, without guaranteeing any substantial outcome
Must look at whether the gov't/agency made
promises and whether it would be unfair to renege on normal promises
Here, while the hospital had a right to be heard according to procedural fairness,
they didn't have an actual right to get the proper licence because legitimate expectations
doesn't guarantee a substantial outcome
Requirements for Legitimate Expectation:
1. A promise or representation from a delegate (an expectation of a hearing arising
out of express representations or a practice of holding such hearings or a combination of
the two);
2. To proceed in a certain fashion; and
3. (possibly) Resulting in detriment when promise is broken to a person who relied
on the promise
Does not apply to:
1. Legislative decision
2. Promises that conflict with statutory duties
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Common law procedural fairness rules may also fail to be triggered where there are
emergencies, and also where a decision is said to be of a legislative nature. Be wary of the
latter; it is a very ambiguous concept. In its clearest form, it means no procedural fairness
where an administrative decision-maker is introducing, e.g., a regulation (that is, a form of
delegated legislation). But a legislative decision means more than this boiled down to its
essence, it can be a decision that is sufciently general, and not particular to or focused on a
reasonably narrow subset of persons. Exactly what this means you need to contemplate in
looking at the readings. And you need to appreciate that the general rule no procedural
fairness where decision is legislative in nature is itself subject to exceptions.
Asks the Who and the What
Who? Is decision maker is the Minister or a legislative body?
What? Is the question posed legislative in nature or is it policy?
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Policy Making
Where the impact of the decision being made is diffuse, affecting a broad
spectrum of the public in a generally undifferentiated manner, claims to participatory
rights will be hard to justify, unless the legislation contains some indication of public
participation or obligations of consultation.
Where hearings are warranted, however, considerations of who should be
entitled to participate will be at the forefront of the assessment.
Bezaire v. Windsor Roman Catholic Separate School Board existence of guidelines and
regulations (or similar instruments) can give rise to duty of procedural fairness in circumstances
in which they would otherwise not exist
School board closed 9 schools in face of financial crisis.
Contrary to ministerial guidelines and boards own policy on closings, parents
and students given no opportunity to input into decision before it was made (some
consultation after).
Court did hold that the ministerial guidelines were not technically subordinate
legislation and thus not strictly binding on the board but the Court said there was a level
of fairness that applied.
Since neither Ministers nor boards own procedural guideline followed there was
a denial of procedural fairness
Public consultation is condition precedent to a valid decision.
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Emergencies
Re Walpole Island First Nation: PF wont apply where its an emergency and
decision-maker must act quickly and procedural standards will have to be set aside.
R v. Randolph [1966]: Court held that an interim order withdrawing mail services
to an individual could be made without hearing when the statutory basis for decision was
belief that mail was used for criminal purpose. Impt that it was interim only open to
reassessment on a subsequent hearing. Court influenced by the explicit provision for an
after the event hearing.
Cardinal v. Director of Kent Institution [1985]: Because of apparently urgent or
emergency nature of the decision to impose a segregation (of prisoner) in the particular
circs of the case, there could be no requirement of prior notice and an opportunity to be
heard before the decision.
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rights or s.2 or s.15. (Section 11(d) for instance almost never applies to administrative
bodies, unless the criteria for its application are met by, for example, the existence of
contempt powers).
But with s.7, the situation is different because this provision does impose the
requirement to observe fundamental justice a concept with procedural content on at
least some administrative decision-makers. Which ones? Well, those making decisions
that go to life, liberty or security of the person. Do not make the mistake of assuming
that all (or even much) administrative decision-making relates to these interests. But
some of it does and you need to understand how and where this trigger works.
The Canadian Bill of Rights is similar in many respects, but not all by any
measure. Note carefully to whom it applies. Think about whether you ever want to say
that a decision-maker exercising power under a provincial statute is subject to the Bill.
Also look at the triggers for sections 1(a) and 2(e) and note the extent to which they are
the same and differ from Charter s.7. Above all, recognize that these two provisions
have their own triggers that have to be satised before they apply at all.
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that this could occur without notice to it of either the seizure or the
confiscation seemed to constitute a denial of the benefit of the principles
of fundamental justice.
Third, the attachment in sec. 2(e) of procedural guarantees to the
determination of rights and obligations. Initially, the term rights and obligations
was interpreted narrowly by the courts and restricted to the taking away of strict,
legal rights. However, in Singh v. Canada (Minister of Employment and
Immigration), three members of the Supreme Court held that the immigration
authorities came within sec. 2(e) when deciding upon a convention refugee
claim. This involved determining whether the claimant had a statutory right to
remain in Canada. Although the precise dimensions of sec. 2(e) still remain
murky, at the very least, this mode of reasoning ensures that it will be determined
by reference to quite different and much more expansive criteria than is the case
with life, liberty and security of the person.
Four, while the Bill does not contain an equivalent to sec. 1 of the
Charter, the Quebec Court of Appeal in Air Canada v. Canada (Procureure
generale) held that, in determining the demands of the principles of fundamental
justice for the purposes of sec. 2(e), the court should engage in a sec. 1-style
balancing process akin to that set out in R v. Oakes.
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Reasoning in Singh has been extended to arena of extradition proceedings, including extradition
of fugitive criminals who enter Canada illegally (Kindler v Canada 1991).
Two qualifications to Singh have emerged:
1. s.7 doesnt always require an oral hearing; and
2. In addition to balancing of interests that must occur in making determinations as
to the precise procedures that the principles of fundamental justice mandate, there is
also room for s.1 to be invoked in justification of s.7 violations. Court held in Kindler that
Minister hadnt breached principles of fundamental justice in the procedures adopted in
deciding whether to grant the extradition request from foreign govts. Arena for judicial
type procedures is at the actual extradition hearing and no need to replicate at the
surrender stage.
Charkaoui v. Canada (Minister of Citizenship and Immigration) [2007] - where an order effects
someones life, liberty or security of the person, that person must know the case against him
and have an opportunity to respond however, the right to know the case against you is
qualified by interests of national security sufficient to give summary of confidential details
Facts: In 2003, Adil Charkaoui, a permanent resident in Canada, was arrested
and imprisoned under a security certificate issued by the Solicitor General of Canada
(then Wayne Easter) and the Minister of Immigration (then Denis Coderre). Hassan
Almrei and Mohamed Harkat are foreign national who were granted refugee status in
Canada. Both arrested on a security certificate. All three detained pending completion of
proceedings for their removal. Immigration and Refugee Protection Act (IRPA) said first
step on proceedings was for a federal judge to review the certificates to determine if
reasonable. Review was conducted in camera (private) and ex parte (emergency
hearing) as request of minister. Individuals had no right to see the materials on the basis
of which the certificate was issued. Non-sensitive material could be disclosed but
sensitive material could not if minister objected. Reviewing judges decision that a
security cert was reasonable was final and could not be appealed. Constitutionality of
certificate was challenged including on basis that the procedure to determine the
reasonableness of certificates violated s.7 rights.
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Note: court left open the "Suresh exception" where exceptional circumstances
may entitle Canada to deport a person to torture
Is the limit justified by s.1 of the Charter?
Oakes test: (R v. Oakes [1986]) requires a pressing and substantial objective and
proportional means. A finding of proportionality requires:
Means rationally connected to the objective;
Minimal impairment of rights; and
Proportionality between the effects of the infringement and
importance of objective.
National security = pressing and substantial objective
Non-disclosure of evidence at certificate hearings = rationally connected to the
objective
Noted there are alternatives to allow nation to protect sensitive info e.g. allow
security cleared advocates to appear for individuals Therefore, IRPA procedures do not
minimally impair rights therefore unconstitutional.
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6.
We turn now to the question: if procedural obligations are triggered, what does the decisionmaker have to do? Or more concretely, what is the content of these procedural obligations?
If your procedural obligation comes from a statute the enabling act or one of the special
legislated procedural codes discussed at CB 77-85, the answer to this question is: whatever
the statute says is the content is the content. (However, there may be occasions in which you
will have to determine whether the statute is a complete code or leaves room for common law
supplementation.)
Life is more complex if your trigger is the common law, Charter or Bill of Rights. While there are
some differences, generally speaking, the content where these sources apply boils down to two
broad classes of procedural rules: a right to be heard and a right to an unbiased decision-maker.
Within these two classes, there are many details, and you still need to understand what does it
mean in practice to have a right to be heard and what does it mean in practice to have a right to
an unbiased decisionmaker.
The basic issue is this: the precise content of procedural rules coming from the common law,
Charter or Bill of Rights varies from case to case according to the circumstances. Certainly with
respect to the right to be heard, you must start with the Baker considerations: Baker gives you a
(non-exclusive) list of considerations that tell you at least something about content. Specically,
the Baker test suggests whether the content will be robust or not. (It actually tells you a little bit
more if your trigger is legitimate expectations: with legitimate expectations, the content of the
procedural obligation is generally what was promised in the procedural promise that gave rise to
the legitimate expectation in the rst place. If the promise was substantive, you will not be able
to enforce it directly, but at the very least, it may lead to enhanced or more procedural fairness.)
Of course, one cant stop at an outcome that just says robust or lots of procedural fairness, or
not. Thats not enough. One has to unpack that concept and focus on specic procedural
entitlements: how much notice; what sort of hearing; how much disclosure, etc., etc.. So the
readings review a series of procedural entitlements and propose some lessons on when these
particular procedural entitlements might exist and to what degree. Be attentive to this
jurisprudence.
A word of warning: when it comes to an examination, you do need to explore which procedural
entitlements are owed and whether they have been met, but if you pay no heed to the sorts of
circumstances that give rise to these specic entitlements, you may end up with an implausible
laundry list of procedural rules that you say should apply when they really dont. An uncritical
laundry list is not satisfactory analysis and does not generate more marks.
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Pre-Hearing Issues
Notice
Problems about notice:
Form of notice written or oral (usually written);
Manner of service personal service is norm but if impacts a large and number
(public notice is ok);
Timing;
Contents of notice.
Canada (AG) v. Canada (Commission of Inquiry on the Blood System in Canada Krever
Commission) - this case establishes that where a commissions mandate is made known to the
parties (in this case, the possible finding of misconduct of certain entities), those parties cannot
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opportunity to respond, which includes an opportunity to view the Minister's info before
making submissions.
Masters v. Ontario (1994): an oral hearing was not deemed necessary when an investigation
team ordered a high-level bureaucrat reassigned after an investigative team found he had
sexually assaulted seven women. The court ruled that the duty of fairness was met even without
the hearing because the party had an awareness of material allegations against him and
adequate opportunity to be heard.
Khan v. University of Ottawa [1997] - strong case for oral hearing when credibility is in issue &
potential for a seriously negative impact on person also, no need to prove actual prejudice
reasonable apprehension sufficient.
An oral hearing should be granted where:
1. Credibility is a serious issue; and
2. Where the consequences to the interest at stake are grave.
An oral hearing should include an opportunity to appear, to make oral
representations, and correct or contradict circumstantial evidence on which the decision
might be based.
Open Hearings
Whether to hold oral hearings publicly was traditionally treated as within the discretion of
tribunal; recent challenges by media have led to greater openness. The issue is whether a
hearing should be open to the public or not. Competing interests are freedom of
expression/freedom of the press vs. the security and privacy interests of the subject of the
hearing. Also, protecting the victim and ensuring witnesses come forward are other rationales
for having in camera proceedings.
Theres also the concern of commercial competitiveness among media institutions.
Right to Counsel
There is no common law absolute right to counsel, and the rights existence is fact-dependent.
However, in many cases, the right to counsel is assumed and in many cases a statute provides
for it.
The more complex the inquiry and the more severe the repercussions on
individuals involved the more likely the person has a right to counsel.
On the matter of entitlement to counsel in prison, several factors are considered
including the seriousness of the charge and the potential penalty, points of law likely to
arise, capacity of prisoner to make his or her case, procedural difficulties, and the need
for speed and fairness between prisoners.
The principles of fundamental justice do not entitle someone to the right to
counsel in cases of routine information gathering. In Dehghani v. Canada (Minister of
Employment and Immigration), [1993] a refugee claimant alleged his s.7 and s.10(b)
Charter rights were violated by the denial of access to counsel during an examination at
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a port of entry. Notes from the examination were used in a later stage of the refugee
process. The appeal was denied.
In New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.],
[1999] the court found a parent had a right to counsel in a custody hearing because the
lack of counsel created an unacceptable risk of error in determining the childs best
interests and thereby threatening to violate both the [mother]s and her childrens s.7
right to security of the person. The right is not absolute, but depends on the parents
abilities and the complexity of the hearing.
Re Mens Clothing Manufacturers Association [1979]
The common law did not guarantee legal representation to persons involved in
arbitrations.
Although allowing counsel to represent parties in administrative tribunals is
generally favourable, in certain circumstances - especially where there are informal
procedures - it may delay the process or be contrary to the parties' legitimate
expectations.
The duty to act fairly implies the presence of counsel when a combination of
some or all of the following elements are either found within the enabling legislation or
implied from the practical application of the statute governing the tribunal (not
exhaustive):
1. Where an individual or witness is subpoenaed, required to attend
and testify under oath with a threat of penalty;
2. Where absolute privacy is not assured and the attendance of
others is not prohibited;
3. Where reports are made public;
4. Where an individual can be deprived of his rights or his livelihood;
5. Where some other irreparable harm can ensue.
New Brunswick v. G. (J.) [1999]:
The court found a parent had a right to counsel in a custody hearing because the
lack of counsel created an unacceptable risk of error in determining the childs best
interests and thereby threatening to violate both the [mother]s and her childrens s. 7
right to security of the person. The right is not absolute, but depends on the parents
abilities and the complexity of the hearing.
Where a decision impairs a s.7 interest, if government restriction of the "security
of the person" right has a serious and profound effect on a person's psychological
integrity, the principles of fundamental justice may require the Crown to provide legal aid
(ie: here, circumstances were a gov't order suspending parents' custody of their
children).
Disclosure and Official Notice
Disclosure: Disclosure to the parties of information that the agency has about the decision to
be made.
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Official Notice: Extent and manner in which an agency may, in making its decisions, use
material that is not introduced in evidence.
Access to Information Statutes
These are useful in discovery, but exemption from these regimes does not mean
that natural justice will not supplement its disclosure requirements.
Crown or Executive Privilege
Provisions of the Canada Evidence Act allow the government to withhold
information from the courts, subject to a court determination of whether the public
interest in disclosure outweighs the specified public interest. s.39 thereof allows
withholding without a court determination. Attacks on its constitutionality have failed,
however (e.g. see Babcock v. Canada (AG) [2002]).
Other Common Law Evidentiary Privileges
Solicitor-client privilege and the presumption of deliberative secrecy among other
doctrines can also affect disclosure.
The competing interests for disclosure can generally be categorized into four
situations:
1.
Information collected by the agency directly;
2.
Identities of persons from which an agency has received
information;
3.
Business information collected;
4.
Material created by the agency itself.
Reasons for refusing disclosure are generally weak, but there are some
legitimate concerns:
1.
Disclosure may cause harm in certain cases;
2.
It may raise the prospect of litigation and liability;
3.
It would reduce the frankness and detail of the reports.
Disclosure as a deterrent to frankness and thoroughness in reporting may be a
serious problem when information is needed after a long delay (e.g. looking at a patient
report after many years).
33
34
hearing) is available to decision makers and is not brought forward in another form at
tribunal, principles of procedural fairness are breached.
Re League for Human Rights of BNai Brith and Commission of Inquiry on War Criminals (1986)
Allowed disclosure of a report of a working group of specialists established by
the Commission, on the basis that such a report would clearly be relied upon and given
significant weight by the Commission in determining whether there were legal means to
bring suspected war criminals to justice in Canada.
Admissibility of Evidence
It is well settled that agencies are not governed by the rules of evidence used by
courts unless some statutory provision requires them to be.
Indeed, sec. 15(1) of the SPPA authorizes the disregard of the normal rules of
evidence.
Nonetheless, to the extent that the rules of natural justice or procedural fairness
condition decisions about evidence, the discretionary authority of boards and tribunals
over questions of admissibility and requirements of proof is subject to limits and those
limits may, on occasion, be influenced by normal common law evidentiary principles.
Additionally, discretionary decisions over admissibility of evidence must not
remove the entitlement of affected persons to have a reasonable opportunity to make
their case.
On the other hand, natural justice considerations can also arise by reason of the
admission of and weight attributed to certain kinds of evidence. Given the historically
more relaxed attitude of the court to the use of hearsay evidence in administrative
proceedings, it is unlikely that the mere admission of hearsay evidence will lead to a
breach of the rules of natural justice.
However, exclusive reliance on hearsay evidence may give rise to a breach of
natural justice.
Cross-Examination
Innisfil (Township) v. Vespra (Township) where statutory authority grants a right to a hearing,
where the individuals rights may be determined, clear wording in the statute will be required to
oust the right to cross-examine also, the board may not invoke its opinion as to the potential
effectiveness of cross examination in an attempt to deny it.
If a statute doesnt disallow cross-examination, then the common law allows for
cross-examination. This is particularly significant where expert evidence is involved.
A breach of the right to cross-examine is always procedurally unfair. It is not for
the court to assess the outcome of cross-examination.
Re County of Strathcona No. 20 v. Maclab Enterprises Ltd. [1971] - restrictions on ability to
cross-examine may be permissible so long as other like-alternatives are furnished to parties
Ex. where expert witness is unavailable to testify, court may admit his report instead so long
as parties are given opportunity to respond to the report, fairness is maintained
35
Post-Hearing Issues
Until recently, common law was reluctant to impose on decision makers an obligation to give
reasons for decisions. Baker changed this. Under Baker:
Three grounds when the duty of fairness triggers the requirement to provide
reasons:
When the decision has significant importance to those affected;
When there is a statutory right of appeal;
Other circumstances (very vague, are not flashed out as yet if
there is a paramount interest at stake).
What are adequate reasons?
36
37
silence about others that it ignored them altogether: Kindler v. Attorney General of
Canada [1987].
It is more usual, though, for a court to decline to speculate whether the tribunal
would have decided the dispute in the same way if it had realized that it could not in law
rely upon the reasons given.
38
As a result, the court tries to objectively assess whether the particular situation is
such as to give rise to a sufficient risk that an impermissible degree of bias will in fact
exist. In fact, in the case of a direct stake in the outcome, that has always been enough
to disqualify a decision-maker regardless of mitigating circumstances.
The objective approach also reflects the policy that the public should have
confidence in the process: It is of fundamental importance that justice not only be done,
but should manifestly and undoubtedly be seen to be done. (Lord Hewart CJ in R v.
Sussex Justices, ex parte McCarthy, [1924])
Sliding Scale The courts tolerance will also vary with the statutory context.
What may seem dictated in the case of a generalist superior court operating within a
system of a strict separation of functions and presiding over and deciding cases in
solitary splendour in the context of the adversary system may not be appropriate for all
the great variety of administrative agencies that are subject to the dictates of procedural
fairness. Adjudication may only be a small part of the range of functions performed. The
members may be appointed from and continues to operate in a small community of
experts or peers and may be expected to engage in collegial or collective decision
making. Their processes may be far less adversarial and more inquisitorial and activist.
Their decision making may have an explicit and high policy content. For example,
municipal politicians may deserve more latitude than human rights adjudicators. On the
other hand, previous involvement may not disqualify someone from sitting on a
disciplinary board of a profession or on a peer tenure committee.
The issue of bias has been largely left to the common law, except in cases where
the statute specifically mentions qualifications or disqualifications. However,
constitutional norms have arisen that may supersede the common law or statute in either
direction.
39
1.
Any court seised of a challenge on the ground of apparent bias must ascertain
the relevant circumstances and consider all the evidence for itself so as to reach its own
conclusion on the facts.
2.
It necessarily follows that the factual position may appear quite differently as
between the time when the challenge is launched and the time when it comes to be
decided by the court. What may appear at the leave stage to be a strong case of justice
`not manifestly and undoubtedly being seen to be done', may, following the court's
investigation, nevertheless fail. Or, of course, although perhaps less probably, the case
may have become stronger.
3.
In reaching its conclusion the court `personifies the reasonable man'.
4.
The question upon which the court must reach its own factual conclusion is this:
is there a real danger of injustice having occurred as a result of bias? By 'real' is meant
not without substance. A real danger clearly involves more than a minimal risk, less than
a probability. One could, I think, as well speak of a real risk or a real possibility.
5.
Injustice will have occurred as a result of bias `if the decision-maker unfairly
regarded with disfavour the case of a party to the issue under consideration by him'. I
take `unfairly regarded with disfavour' to mean `was predisposed or prejudiced against
one party's case for reasons unconnected with the merits of the issue'.
6.
A decision-maker may have unfairly regarded with disfavour one party's case
either consciously or unconsciously. Where, as here, the applicants expressly disavow
any suggestion of actual bias, it seems to me that the court must necessarily be asking
itself whether there is a real danger that the decision-maker was unconsciously biased.
7.
It will be seen, therefore, that by the time the legal challenge comes to be
resolved, the court is no longer concerned strictly with the appearance of bias but rather
with establishing the possibility that there was actual although unconscious bias.
8.
It is not necessary to demonstrate real possibility of bias, what must be
established is a real danger of bias having affected the decision in the sense of having
caused the decisionmaker, albeit unconsciously, to weigh the competing considerations,
and so decide the merits, unfairly.
It is useful to break down the disqualifying conditions into four categories:
a. Antagonism during a hearing by a decision-maker toward a party or his or her
counsel or witnesses;
b. An association between one of the parties and a decision-maker;
c. An involvement by a decision-maker in a preliminary stage of the decision;
d. An attitude of a decision-maker toward the outcome.
40
41
42
Vespra objected that their presence created an apprehension of bias, but the
hearing continued despite this objection.
However, the Board refused to receive any new evidence because of a deadline
imposed by the Municipal Boundary Negotiations Act.
As a result, the Board made a decision on the merits, and Vespra made an
application for review and succeeded, because the refusal to hear evidence was
considered to be a denial of the obligation to give a hearing.
Judge Smith, sitting in the Ontario Divisional Court, said: Standing alone,
these emphatic expression of opinion (made by the Board in its reasons for decisionsomitted) on the part of the panel would not lead this court to a conclusion that there was
a reasonable apprehension of bias. But, when there is added to those strong statements
the actual decision of 1983 made without jurisdiction and contrary to natural justice,
based upon the evidence of 1976 without regard for any change in circumstances in the
intervening seven-year period and, in particular, without evidence of population
projections, the government policy having lost its relevancy, the reasonable
apprehension of bias by Vespra is inevitable in our view.
Law Society of Upper Canada v. French
The governing body of the Law Society of Upper Canada was the benchers, and
allegations of misconduct were heard by the Discipline Committee.
Sec. 33(12) of the Law Society Act provided that if the Committee found a
member guilty of misconduct, it was to give a copy of its decision to the member,
together with notice of his right of appeal. Sec. 37 gave the Committee power to
reprimand the lawyer, and sec. 34 gave Convocation (the assembly of benchers) power
to order disbarment or suspension. Sec. 39 provided that a member reprimanded under
sec. 37 could appeal to Convocation and members of the Discipline Committee could
not participate in considering the appeal.
The Discipline Committee heard allegations of professional misconduct against
French, found him guilty of seven of them, and recommended suspension.
Convocation met to consider this recommendation and two members of the
Committee were present.
French objected to their participation; he was granted an adjournment and made
a motion for review. He succeeded and an appeal to the Supreme Court was allowed.
Frenchs claim was that the proceeding in Convocation was essentially
consideration of an appeal from the Discipline Committee, and therefore, the
participation of the two members created an apprehension of bias.
One argument for the Society was even if the proceedings were an appeal, the
maxim expression unius est exclusion alterius permitted the members to participate.
Sec. 39 prohibited committee members from participating in one kind of appeal,
therefore, implicitly permitting them to participate in others.
Justice Spence, writing for the majority, accepted this argument. Considering the
question of the nature of the proceeding, Spence concluded that Convocation was not
considering an appeal. He said that the discipline process was a single proceeding in
which there are two stages: First, the inquiry and the investigation into the complaint by
the Discipline Committee, the results of which are embodied in a report to the benchers;
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and secondly, the consideration and disposition of the report by the Benchers in
Convocation.
That being so, he stated: I can see no basis for the submission that the
Benchers who were members of the Discipline Committee would be precluded from
participating in the deliberations of the Benchers in Convocation.
Statutory Authorization
Common response to allegation of bias by prior involvement is statutory authorization defense.
When you have the governing statute create a scheme that provides for the possibility of bias.
Happens when a regime is set up where administrative agency has a dual or a number of
competing functions.
Brosseau v. Alberta (Securities Commission) [1989]
Facts: Brosseau was a solicitor who prepared the prospectus of a company that
later went into bankruptcy. The Alberta Securities Commission launched an investigation
into Brosseaus actions. Brosseau argued that the Commission suffered from institutional
bias due to Chair's multiple functions, which allowed him to initiate investigations,
prosecute people, and then act as a judge on the panel determining their case, i.e.
he/she involved at both the investigatory and adjudicatory levels. The Commission
disagreed they argued that while not specifically authorized by statute, implicit
authority for the investigation could be found in the general scheme of the Securities Act.
Reasoning: L'Heureux-Dub, writing for the court, held that as a general
principle, a person is entitled to an independent, impartial decision-maker, the nemo
judex in causa sua esse principle. In general, it is not permitted for members of an
adjudicatory panel to also be involved in the investigatory stages of a proceeding, as this
would give rise to a reasonable apprehension of bias.
However, statutory authorization for overlapping functions are an
exception to this rule, subject to the statute being constitutional. Administrative
bodies are created for a variety of reasons and to respond to a variety of needs.
In some cases, the legislature may decide that in order to achieve the ends of the
statute, it is necessary to allow for an overlap in functions that would, in normal
judicial proceedings, have to be kept separate. If a certain degree of overlapping
of functions is authorized by statute, then, to the extent that it is authorized, it will
not generally be subject to any reasonable apprehension of bias test.
Ratio: In some instances, an overlap in functions (which is generally not
permitted on account of bias) is a necessary element to fulfilling an decision maker's
mandate. Provided that the particular decision-maker is not acting outside its statutory
authority (and the governing statute is constitutional), an overlap in functions may not
give rise to a reasonable apprehension of bias.
E.A. Manning Ltd. v. Ontario Securities Commission [1995]
Facts: OSC drafts staff report which discusses complaints against penny stock
dealers. OSC issues Policy Statements which says that penny dealers are bad & names
Manning & Ainsley. Policy Statement later struck down by Ainsley decision as OSC had
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Attitudinal Bias
Paine v. University of Toronto [1980]
No bias when panel to determine professor tenure included member that had
published negative review of professor as members of the Tenure Committee are
tenured members of the professional staff of the candidates department, or a cognate
department. As a matter, of course, they must all, in the course of their association with
the candidate, have formed general opinions as to his suitability for tenure, and it makes
little difference whether that opinion was expressed before or at the meeting of the
committee.
The Tenure Committee does not sit as a tribunal, acting only on the evidence
placed before it. The members act on their own knowledge of the candidate, as well as
the assessments and references that are provided to them.
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission)
Being an advocate for a certain cause will not automatically render you bias.
However, if you are a party to a proceeding in which you are advocating a cause which
is before you in current proceedings, you are apprehended to be bias.
Large v. Stratford (City)
45
Variations in Standards
The standard of what constitutes disqualifying bias may vary dramatically with
context. This is particularly so in the arena of prior involvement with and attitudes toward
a matter to be decided.
Old St. Boniface Residents Association Inc v. Winnipeg (city) [1990]
Doctrine of legitimate expectations applies only where there is an absence of
procedural fairness which are due in the circumstances of the case however, if
procedural safeguards already exist, and the court deems them to be sufficient given the
circumstances, the legitimate expectations must give way to was is provided for and
given in the circumstances
Reference Re Canada Assistance Plan
Court established two principles in this case:
46
Independence
Independence is different from Bias, when applied to tribunals and decision makers. Ask
whether decision makers are independent enough so that they can make decision w/o fear of
retribution.
Sethi v. Canada (Minister of Employment and Immigration) [1988]
47
Facts: the immigration regime was under revision and the government
promulgated the bill to revamp the whole system; and the bill that was considered by
Parliament would have effectively fired or terminated all the immigration appeal board
members; they would have lost their appointments and they would all have to be reappointed;
Mr. Sethi argued that this situation of first and then second reading was going to
create a bias on the part of the tribunal bias; he suggested that the board members
would want to favour the political masters if decisions that would make the government
happy, keep down the number of refugees; the case was appealed up to the FC; one of
the parties to the process was the government itself;
Federal Court Trial Division: Found that the proposed legislation would undercut
the financial security of the tribunal members and that created a reasonable
apprehension of bias;
Federal Court of Appeal: Reversed the decision of a trial level; applied a
reasonable apprehension of bias test and found that no right-minded person viewing
proposed legislation going through parliament would think that the tribunal members
would be impartial or lose their independence as a result of it.
Alex Couture Inc. v. Canada (Attorney General) [1991]
Facts: Alex Couture was merging with another business; they allege lack of
independence; they applied the Valente criteria.
In order to decide whether the guarantee of judicial independence has been
respected, three essential conditions must be analysed:
Security of Tenure - Decision Makers can only be fired for cause
and with certain procedural safeguards.
Financial Security - Decision Makers who are full-time board
members must be paid sufficient wage, so that they are not destitute & open to
bribes. Salaries must also be secure and cannot be arbitrarily reduced;
Institutional Independence - Structure must be independent decision makers cannot sit on two separate boards in front of which the same
individual appears. Judicial independence in its individual aspect is closely
related to the guarantee of impartiality:
Impartiality refers to a state of mind or attitude of
the tribunal in relation to issues and the parties in a particular case; the
tribunal members state of mind in a particular case; it connotes the
absence of bias;
The concept of independence refers not to a state
of mind, but the state of affairs; if it is dependant or independent; is the
tribunal independent from the executive?
Look at the tribunal structure in practice to determine independence, rather than
simply examining the statute - a tribunal may lack independence in theory, but not in
practice (CP v. Matsqui; similar to 2747 Quebec?). Where appeal process has never
been tested, courts should be reluctant to label it as lacking independence w/o first
seeing how it works in action.
All three criteria are assessed against a reasonable apprehension of bias test.
48
The court applies all those criteria and finds that the competition bureau did have
sufficient security of tenure, sufficient financial security and enjoyed sufficient
independence.
Canadian Pacific Ltd. v. Matsqui Indian Band [1995]
Facts: the band has a taxation power; assessed tax against the entity; if entity
wants to appeal has to go through the appeal tribunal, the member of the band sits on
the appeal tribunal; the CP claim lack of independence of the tribunal;
SCC Lamer C.J.C.: The Valente criteria applies to admin tribunals when an
admin tribunal is acting in adjudicative capacity, settling disputes and determining rights
of the parties;
The test for institutional independence must be applied in light of the functions
being performed by the tribunal. The requisite level of institutional independence (i.e.
security of tenure, financial security and administrative control) will depend on the nature
of the tribunal, interests at stake and other indices of independence such as oaths of
office. In some instances, a high level of independence is required eg. Those tribes
whose decisions affect security of the person. More flexible approach is warranted on
this occ as it deals with assessment of property taxes.
In this case:
1. Security of Tenure: it was an ad hoc appointment;
2. Financial Security: members are not paid;
So the first two criteria show unavailability of the
security of tenure as well as financial security;
3. Institutional Independence: the tribunal members take oath and it
should be sufficient but the court rejected this argument on basis that tribunal
members are appointed by the Band Chief and Councils and are being asked to
adjudicate a dispute setting interests of the Bands against outside interests.
Shows vulnerability; no due process re:
appointments and remuneration; the third criteria, even though is
satisfied, is insufficient to make the tribunal independent.
2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool) [1996]
Facts/Judicial History: Following a hearing, directors of the Rgie des permis
dalcool du Qubec revoked respondents liquor permits on the ground of disturbance of
public tranquility; the decision was provided for in ss. 75 and 86(8) of the Act respecting
liquor permits
Superior Court (Vaillancourt J.) granted:
That Rgies decision be quashed;
That s. 2 of the Act respecting liquor permits be declared invalid
because the Rgie did not comply with guarantees of impartiality and
independence of s. 23 QUEBEC Charter of Human Rights and Freedoms (there
is institutional bias on the part of the Rgie);
The Superior Court's declaration that s. 2 of the Act is invalid and
of no force or effect called into question the Rgies very existence, BUT the
court suspended the effect of this declaration for twelve months
49
Court of Appeal allowed appeal in part (Brossard, LeBel JJ.A.; Beauregard J.A.
partial dissent): declared s. 2 of the Act valid; majority declared reference to s. 75 in s.
86(8) of the Act invalid and of no force or effect, so the Rgies decision can be quashed
(s. 23 of the Charter is applicable if the Rgie is exercising judicial or quasi-judicial
functions)
Ratio: Some administrative tribunals may take on a quasi-judicial role. As such,
those tribunals may be required to comply with the principles of justice under general law
rules.
Notes: The court seemed to be satisfied that as long as the directors did not
serve merely at pleasure, they had enough independence. Compare this to Katz where
the fact that members of the board did not depend on that work for their livelihood
contributed to their independence. The practice was also to serve until voluntary
resignation or death.
In this part, we deal with an area that has elements of both the right to be heard and the right to
an unbiased decision-maker: institutional decisionmaking. You need to understand the concept
of subdelegation. The delegatus non potest delegare ('one to whom power is delegated cannot
himself further delegate that power') concept sounds like a pretty potent bar on an
administrative decision-maker sub-delegating powers to another actor, but there are so many
circumstances where sub-delegation is permissible that, really, sub-delegation tends to be
important only when certain functions are sub-delegated that offend procedural rules. The
concept of he or she who hears is an example, tied to the right to be heard. This is an issue
that becomes complicated when large, multi-member boards are asked to make decisions that
are consistent while at the same time they sit to hear similar cases, but in panels with less than
full membership.
Another issue for these big boards, when they try to make consistent decisions, is when and
where bias concepts are offended.
Yet another issue raised by these materials is if these big board can use guidelines to try to
standardize decisions. If they do, do they wrongly fetter their discretion? (But note that
fettering of discretion is a substantive review issue, and so is really governed by the sorts of
considerations discussed in the next section.)
Strengths of institutional decisions are ability to make large volumes of decisions
and operations to establish internal checks and balances; specialization among staff and
a sharing of expertise, opinions and perspective.
Weaknesses of institutional decisions are general weaknesses of bureaucracy,
especially the large possibilities for anonymity, loss of authority by the senior levels and
impersonal treatment of those affected by decision.
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Delegation
Delegatus non potest delegare ('one to whom power is delegated cannot himself further
delegate that power'). Extent to which an authority may permit another to exercise a discretion
entrusted by statute to itself.
When is delegation permissible? Depends on interpretation of the relevant statute. Prima facie,
a discretion conferred by statute is intended to be exercised by the relevant authority and noone else. I.e. power delegated to you personally. But is there other language that means it is
power delegated to you personally or any person authorized by you.
Vine v. National Dock Labour Board [1957] (Eng. HL) - authority for proposition that power to
discipline cannot be delegated
Facts: Board allocated dock workers to stevedoring companies. Vine assigned
but didnt show up. Stevedoring company complained and discipline committee of the
board ordered Vine discharged. He said wrongful dismissal and discipline committee
action was void as Board could not delegate its disciplinary powers.
LORD SOMERVELL: Disciplinary powers, whether "judicial" or not, cannot be
delegated
VISCOUNT KILMUIR LC: It is necessary to consider the importance of the duty
which is delegated and the people who delegate:
This duty in this scheme is too important [outlawed from
profession for life] to delegate unless there is an express power.
It was permissible if it had stated so in the statute, but that is
absent here.
To have authority to appoint someone, it needs to be explicitly
provided
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appeals, provided it could not dismiss an appeal without holding a public local inquiry.
Closing order against A who appealed to board. Board appointed an inspector who held
public enquiry and made a report. A asked to present case to the actual decisionmaker
in board but refused and confirmed order.
VISCOUNT HALDANE: Minister at the head of the board is expected to obtain
his materials vicariously through his officials, and he has discharged his duty if he sees
that they obtain these materials for him properly. To do everything personally would be
to impair his efficiency.
LORD SHAW: Ministerial is responsible to parliament, but the minister must be
able to delegate
NOTE: In Canada, some decisions exceptionally require the minister's personal
decision
Jeffs v. New Zealand Dairy Production and Marketing Board [1967]
Facts: Board had power to define zones from which factories could get milk.
Board set up committee set up to look into supply to two dairy companies. Committee
had a hearing and wrote a report with recommendations and the board accepted them
without alterations. Farmers argued this was an improper delegation.
Court: Clear that board did not delegate to committee the duty of deciding on
zoning applications. Committee appointed to investigate and report not charged with
duty of collecting evidence for consideration by board.
Only material the board heard was report. It had a duty to hear interested parties
(this can be by written statement as well) but did not do so. Whether the board heard the
interested parties orally or by receiving written statements from them is a matter of
procedure. Whether the board appointed a person or persons to hear and receive
evidence and submissions from interested parties for the purpose informing the board of
the evidence and submissions is also a matter of procedure. But not permissible if
credibility of witnesses is involved.
In this case, they did not adopt this procedure. Committee not appointed by
board or asked by board to receive evidence for transmission to the board. Committees
report did not state what evidence was and board reached decision without
consideration of and in ignorance of the evidence. Board failed to hear interested
parties as it was under an obligation to do to discharge obligation to act judicially in
determination of zoning applications.
Implied that it is permissible to delegate the evidence-acquiring process if
credibility is not an issue.
Summary is of the relevant evidence and submissions is acceptable if it
adequately discloses the evidence and submissions to the board.
If there had been a clear delegation of authority and appropriate directions to the
committee, it would have been more likely that the process would have been upheld
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Whether, and if so, to what extent the duty of fairness precludes members of an agency panel
who heard case from discussing it with other members after hearing has ended, but before
rendering decision.
International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd.
[1983] (the "full-board meeting to maintain coherence in Board decisions on union-employer
disputes violated natural justice because adjudicative independence of board members was
breached" case) Wikipedia link
Gonthier J. for majority holds the full board meetings as practiced by the board,
even including members not sitting on the panel, does not impinge on the ability of panel
members to decide according to their opinion so as to give rise to a reasonable
apprehension of bias or lack of adjudicative independence
Audi alteram partem ("hear the other side") imposes conditions on full board
meetings:
Can't discuss facts, take minutes, and can only discuss policy;
Must disclose any new grounds and allow for representations
based on those new grounds.
Here, the decision-makers, while possibly being "influenced" by persons who
haven't heard the evidence, still have the freedom to decide according to their own
opinions and must assume full responsibility for the final decision, so there's no undue
pressure
Sopinka J. in dissent found that the effect of full board meetings would unduly
influence junior members, which creates a reasonable apprehension of bias, and
treating policy as 'law' is incorrectshould be treated like 'fact' for new submissions
Tremblay v. Quebec (Commission des affairs sociales) [1992] (the "first draft favoured us, but it
was sent to the President of the Commission who disagreed, and after he raised this opinion at
the "consensus table", one of original members changes his mind and leads to our denied
claim" case)
While a consultation process by plenary meeting designed to promote
adjudicative coherence may be acceptable (ie: Consolidated-Bathurst), the process must
not impede the ability or freedom of the members to decide according to their own
conscience/opinion or to create an appearance of bias in the minds of the litigants.
Here, the mandatory consensus table practice of the Commission, with minutes,
and votes, the President of the Commission present, and not created by statute, was
indicative of coercive consultation that breached the rules of natural justice and created
a reasonable apprehension of bias.
Ellis-Done Ltd v. Ontario (Labour Relations Board) [2001] this case dealt with the tension b/w
the fairness of the procedure used in decision-making and the principle of deliberative secrecy
the court held that the presumption of administrative regularity cannot be overturned w/o an
evidentiary foundation talks about hardship in establishing evidentiary foundation given
deliberative secrecy
A party to an administrative breeding recessives an adverse decision by a panel
of three members. Later, it learns about a draft of the decision in which the result is that
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it won, but that the panel changed its mind after meeting with the other members of the
tribunal who did not hear the case. The court sets out the circumstances as to when
such "full" meetings are appropriate.
Note:
Deliberative secrecy is a principle that the decision speaks for
itself;
That the decision making process, the deliberations of decision
makers are protected, that they are secret;
If you want to impugn, you impugn the reasons for the decision,
not how the decision maker achieved it in his or her mind;
Conclusion:
In the above case the majority is skirting about what is policy and
what is fact;
They are rooting themselves in the presumption of regularity: that
admin tribunals will conduct their meeting in a regular and proper fashion;
They are protective of deliberative secrecy.
Agency Counsel
Lawyers or staff involved in investigations and prosecutions should not also be engaged in
assisting those who adjudicate, particularly in the instance of files with which they have had
prior involvement (see Quebec Inc. v. Quebec (Regie des permis dalcools))
At the Hearing
Tribunals (particularly ones without a member with a legal background) often
have counsel to advise on admissibility of evidence, procedure or other questions of law.
Problem is that counsel may overstep role of adviser to assume functions more
appropriate for the chair or other members of the tribunal, e.g., making rulings,
intervening to raise issues or question witnesses. Could create impression that a
reasonable observer might conclude that someone other than the person authorized by
statute is the decision maker, i.e., can challenge for bias (e.g. Venczel v. Association of
Architects).
Degree of intervention permitted may depend on the nature of the proceeding
adversarial proceeding, less active intervention on part of tribunal counsel likely to be
allowed by duty of fairness than in a proceeding that is more inquisitorial, e.g.,
Convention refugee determination hearing where hearing officer questions claimant to
ensure panel has the full story.
Also, counsels interventions might be seen to favor one side over another (Brett
v. Ontario (Board of Directors of Physiotherapy)) - counsel had advised lawyer
presenting case against the member when to object to questions and when to put
forward arguments in favour of the prosecution).
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Note need to make objection known at the time otherwise, if you get to judicial
review the court might hold acquiescence.
Reasons Review
Some agencies employ lawyers to assist agency in its corporate capacity to
develop policy and oversee implementation by panels of the agency.
Bovbel v. Canada (Minister of Employment and Immigration) [1994]
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Facts: Immigration and Refugee Board failed to find that Bovbel was a
Convention refugee. B argued that by referring a draft decision to counsel who was not a
member of the board and who hadnt participated in or attended hearing was contrary to
natural justice.
Motion Judge found that the Reasons Review policy of the Board (requiring them
to submit a draft of reasons for decision to legal advisers before issuing them to parties)
was enough to taint the decisions of the board as it created a reasonable apprehension
of lack of independence of board.
Internal documents make it clear that while lawyers may give advice, the panel
members must decide the case. Also, Boards lawyers may suggest that a case might be
better decided on different grounds but panel should not decide the case on those
different grounds if they werent raised at the hearing or unless parties given an
additional opp to comment.
Holding: A fair reading of the documents on the record shows, in our view that the
legal advisors were not to discuss the findings of facts made by the members but merely,
if there was a factual inconsistency in the reasons, to look at the file in order to
determine, if possible, how the inconsistency could be resolved.
True, there was always the possibility that the legal advisors might, since they
were in possession of the file, exceed their mandate and try to influence the factual
findings of the board. However, as mentioned by Manoney JA in Weerasinge, any policy
is susceptible to abuse.
Fact that there was a high volume of claim and a clear protocol for reasons was
sufficient for court to be satisfied that reasons after written by a tribunal could be
reviewed
Agency Guidelines
A trend in the last 20 years about a high volume of decision making and how to
allocate resources and responsibilities to be able to handle a high volume of cases or
complex cases;
Agency guidelines are typically promulgated by the tribunals with high volumes of
cases or complex cases;
Some agencies have very extensive guidelines and some have none at all;
Guidelines usually set out the overarching principles that should be considered
when applying or interpreting legislation.
Usually they are very general policy criteria, never an exhaustive statement of
the law.
Legal force of guidelines is always different and should be decided on a case by
case basis; you have to look at the documentary legal authority behind the guidelines:
are the guidelines issued by the tribunal as a result of a power stated in the a statute or
regulation, or are the guidelines issued simply as a result of the exercise of discretion,
etc.).
There is no rule if guidelines have legal force, you have to asses that on a
case by case basis;
It is individual to the tribunal and sometimes to the guideline. It will depend on
where it flows from: statute, regulations, etc., sometimes legitimate expectations.
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Eg school board closure cases the guidelines gave rise to the legitimate
expectations;
The leading case on agency guidelines is Bell; it is unusual in that the court gives
guidelines a significant weight, it states that guidelines are akin to regulations, they are
indistinguishable from other types of law;
So when analysing the cases and seeing what is the documentary legal authority,
you have to also consider guidelines; as we seeing in the school board closure cases it
gave rise to legitimate expectations; in Baker they had significant weight in assessing
procedural fairness; in Bell they were given same force as regulations;
Pros and Cons of Institutional Decision Making through Guidelines:
Pros:
Consistency in decision-making;
Efficiency;
Complexity - to shed light on complex systemic issues (Bell case);
provide the framework for the analysis or criteria of how to work through the
policy issues of systemic implications of employment equity;
Cons:
The lack of personal attention to the clients; very impersonal; the
anonymity of the decision-maker;
Concern that guidelines, or institutional decision making
guidelines are really disguising law in policy (eg. new immigration act is much
smaller than the former one we are regulating through guidelines);
Leave a lot of discretion to the unofficial decision makers;
The disadvantage alleged by the employer in the Bell case: the
guidelines were binding or fettering the decision-makers independence if the
guidelines are so detailed, that they really can tie the division maker to a
particular outcome, then the concern is that the decision maker is being fettered.
Thamotharem v. Canada (Minister of Citizenship and Immigration) [2008]
Where a statute includes residual discretion, any rules made under delegated
authority must retain some of that discretion.
This applies to both regulations as well as soft law such as guidelines.
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In this part, youll soon learn that simply looking at a decision and saying that it reects an error
of fact (a misapprehension of the facts), of discretion (a wrong choice or outcome) or of law (a
misconstrual of the law) is not enough. That is because substantive errors are all subject to
what is known as the standard of review, a very difcult and complex area of administrative
law.
Notice that we do not mention standard of review in our discussion of procedural entitlements.
That is because you do not do a standard of review analysis for procedural entitlements. It is
wrong to say you do with procedural fairness, you apply the rules discussed above.
In these background readings, you are introduced to the concept of a privative clause. Once
you
understand it and the courts efforts to get around such clauses youll understand at least
part of the initial impetus for standard of review analyses. Then, there is some history looking at
failed precursors to the standard of review analysis.
General Information
Substantive review is much harder to get than procedural review - the courts are generally
hesitant to overturn a tribunal's substantive decision unless there was bad faith or they
exceeded their jurisdiction.
Was a period of battle between legislature and Courts very narrow interpretation of privative
clauses by courts. This has eased recently.
Modern approach of SSC is to be more respectful of the comparative strengths of tribunals
and other non judicial actors and of legislative intentions regarding their expanded role. New
era that persists today was one where reviewing courts instructed by SCC to assess the extent
of their engagement with the administrative process from a pragmatic and functional
perspective. Respect for legislatures choice as to the decision-maker that was designated as
the primary vehicle for carrying out the statutory mandate. Also called for greater attention for
legislative signposts indicating restraint on the part of the reviewing courts, awareness of
expertise of may statutory regimes and the courts lack of working familiarity with detailed
working of those regimes. In the actual assessment of decision taken in the particular case, a
far more purposive or contextual approach to statutory interpretation.
Privative Clauses
Statutory provisions by which legislature purports to limit scope or intensity of judicial review. Of
a statutory decision-maker.
full or strong privative clauses use broad language to preclude any form of review by a
court while also establishing that decisions of the relevant actor are final and conclusive.
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weak privative clauses typically state that decisions of the relevant actor are final and
conclusive or that he has sole or exclusive jurisdiction in certain matters but dont expressly
preclude courts from any review of the decision-maker.
Interpretation of a privative clause may also depend on whether other provisions of the statute
provide for an appeal to the court from the decision-maker on questions of fact, law, mixed fact
and law, or another category of decisions. A privative clause cannot oust the authority of the
superior courts to carry out a judicial review on constitutional issues or its authority to ensure
that an administrator has not acted ultra vires.
Need to closely look at statute under which decision has been taken to determine the
appropriate route for any statutory appeal and to assess the likelihood that a court will show
deference to the decision-maker. Based on Dunsmuir one must review past cases in which
comparable decisions have been reviewed by a court in order to locate existing jurisprudence
on the standard of review.
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96. The Governor General shall appoint the Judges of the Superior, District, and
County Courts in each Province, except those of the Courts of Probate in Nova Scotia
and New Brunswick.
97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia,
and New Brunswick, and the Procedure of the Courts in those Provinces, are made
uniform, the Judges of the Courts of those Provinces appointed by the Governor General
shall be selected from the respective Bars of those Provinces.
98. The Judges of the Courts of Quebec shall be selected from the Bar of that
Province.
99. (1) Subject to subsection (2) of this section, the judges of the superior courts
shall hold office during good behaviour, but shall be removable by the Governor General
on address of the Senate and House of Commons.
(2) A judge of a superior court, whether appointed before or after
the coming into force of this section, shall cease to hold office upon attaining the
age of seventy-five years, or upon the coming into force of this section if at that
time he has already attained that age.
100. The Salaries, Allowances, and Pensions of the Judges of the Superior,
District, and County Courts (except the Courts of Probate in Nova Scotia and New
Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the
Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.
101. The Parliament of Canada may, notwithstanding anything in this Act, from
Time to Time provide for the Constitution, Maintenance, and Organization of a General
Court of Appeal for Canada, and for the Establishment of any additional Courts for the
better Administration of the Laws of Canada.
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question in dispute and then weigh public interest of effective administration and
protection of constitutional values).
3. Doctrine lacked logical and policy coherence modest level of judicial craft
required to present an issue of statutory interpretation as preliminary.
The theoretical idea at the core of the doctrine has not been abandoned ie. that jurisdiction, or
decision-making power, of administrative agencies do not exceed the limits imposed by the
legislature on their authority to decide. Now you need to apply the standard of review analysis
rather than preliminary question doctrine.
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the Board's and the Court of Appeal's interpretation. As such, the decision of the
Board should be given deference.
Further, the Court attempted to clarify the issue of jurisdiction.
Dickson J. wrote that the preferable approach to jurisdictional problems is that
"jurisdiction is typically to be determined at the outset of the inquiry", but also
noted that:
The question of what is and is not jurisdictional is often very
difficult to determine. The courts, in my view, should not be alert to brand as
jurisdictional, and therefore subject to broader curial review, that which may be
doubtfully so.
This decision was a major shift in the approach to judicial review.
Prior to this decision, Canadian courts primarily concerned themselves with the
question of whether an administrative body had acted within its own jurisdiction.
If it was within the jurisdiction conferred upon it by the enabling statute, then its
decisions were generally upheld. If it was found to go beyond its jurisdiction, the
courts were free to overturn the decisions. This approach was often criticized for
being overly formalistic and often led to courts labeling questions as jurisdictional
without considering the reasons of the administrative decision-maker in question.
The new approach emphasized the need for deference in the
proper circumstances, often considering relative expertise of the body and the
legislative intention in creating such a body. In such cases where administrative
decision-makers are acting properly within their own jurisdiction, courts are told
to evaluate the decision on a standard of "patent unreasonableness".
Aftermath:
"Pragmatic and functional" analysis
In Union des Employes de Service, Local 298 v.
Bibeault the Supreme Court revisited the standard of review, elaborating
on what constitutes a jurisdictional question warranting a correctness
standard and what questions were within an administrative body's
jurisdiction warranting a patent unreasonableness standard.
There, the court developed the "pragmatic and
functional analysis" to determine which standard of review to use. This
analysis focused on the whether the legislature intended "the question to
be within the jurisdiction conferred on the tribunal."
Under this test, the court was examined four
factors:
The wording of the enactment
conferring jurisdiction on the administrative tribunal (including the
presence or absence of a privative clause);
The purpose of the statute creating
the tribunal;
The expertise of its members; and
The nature of the problem before the
tribunal.
Developments in standards of review
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10.
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66
Pezim stands for the proposition that where the administrative agency is
dealing with policy development or public policy issues that demands a higher degree
of deference;
In the next case we see the development of the reasonableness
simpliciter standard of review
Canada (Director of Investigation and Research) v. Southam Inc., [1997] is a leading decision of
the Supreme Court of Canada on judicial review. In this case the Court first set out the standard
of review of "reasonableness simpliciter", which directs the court to only review decisions that
are "not supported by any reasons that can stand up to a somewhat probing examination".
Background:
Southam Inc. purchased a number of small newspapers in the
Vancouver region. The Competition Bureau investigated the purchase as a
violation of the Competition Act. The Competition Tribunal held that Southam
violated section 92 of the Competition Act and ordered the company to sell off
one of the papers. The Tribunal found that the newspapers were not in the same
market with regards to print advertising markets. There was a decrease of
competition in real estate advertising and not the retail advertising market.
Southam appealed under section 13 of the Act to the Federal
Court of Appeal. The Federal Court of Appeal held that it owed no deference to
the Tribunal's finding that the markets were not the same and so it substituted its
own findings that the markets were the same. The Court refused to set aside the
remedy that had been ordered.
The issue before the Supreme Court was whether the Tribunal
warranted any deference by the reviewing court.
Judgment:
Justice Iacobucci, writing for a unanimous Court, held that the
appeal should be allowed but the remedy should stay.
Iacobucci J. considered four factors to determine the standard of
review from Pezim v. British Columbia (Superintendent of Brokers). There was a
statutory right of appeal but no privative clause, so the first factor indicated less
deference; however, the absence of a privative clause was not determinative. In
his view, the issue was one of mixed fact and law that was based on the
balancing of interests, so the courts should be reluctant to re-examine the
evidence. Iacobucci considered the purpose of the Act, which he stated was to
encourage and promote competition and equality among companies. In his view
this purpose was more economic policy than law and so suggests greater
deference. Finally, he considered the expertise of the Tribunal, which he
considered to be the most important factor. He found the Tribunal had expertise
in matters of economics and commerce which were critical in assessing the
question before the Tribunal and this required the courts to defer to their skill and
judgment.
With this analysis in mind, Iacobucci devised a standard of review
in between "correctness" and "patent unreasonableness". A standard of
"reasonableness simpliciter" was said to apply to decisions that are "not
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11.
case of Smith and what it seems to suggest about Dunsmuirs meaning. It proposes a pretty
simple standard of review test.
Dunsmuir lays out the current framework - Standard of Review Analysis although it
encompasses the factors that previously applied under the Pragmatic and Functional. Factors
are:
1.
2.
3.
4.
Dunsmuir did not radically alter the courts commitment to judicial deference for administrative
decisionmaking but it made significant changes to the method of implementation of that
commitment:
1. Reduced the number of standards of review from three to two. Highly deferential
patent unreasonableness standard doesnt disappear entirely seems to continue
where its usage is dictated by a past decision or by an express statutory provision;
2. New standard of reasonableness is not necessarily the same as the old
reasonableness simpliciter and appears to convey an adaptable approach to deference
in different circles, shifting many questions in the standard of review analysis to the
stage at which the standard of reasonableness, once arrived at, is applied;
3. Standard of correctness has more or less the same meaning.
The first stage of the Standard of Review Analysis is to determine the appropriate standard of
review. Must an administrative decision be unreasonable or simply incorrect, in the courts view,
for the court to set it aside.
Second stage is to apply that standard on the merits of the case at hand in order to decide the
outcome of judicial review.
Dunsmuir v. New Brunswick (2008) is the leading Supreme Court of Canada decision on the
topic of substantive review and standards of review. The decision is notable for combining the
reasonableness (simpliciter) and patent unreasonableness standards of review into a single
reasonableness standard.
Facts: David Dunsmuir was hired by the Department of Justice of the Province of
New Brunswick as of February 25, 2002. His work was unsatisfactory to his employer
and he received multiple written notices to this effect. Ultimately, his employer decided to
terminate his employment as of December 31, 2004. On August 19, 2004, Dunsmuir was
informed in a letter that his employment was being terminated. As his employment was
not being terminated 'for cause', Dunsmuir was granted several months of paid leave
with which to find a new job.
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correct answer. From the outset, the court must ask whether the tribunals
decision was correct.
[51] Having dealt with the nature of the standards of review, we
now turn our attention to the method for selecting the appropriate standard in
individual cases. As we will now demonstrate, questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness. Some legal issues, however,
attract the more deferential standard of reasonableness.
[55] A consideration of the following factors will lead to the
conclusion that the decision maker should be given deference and a
reasonableness test applied:
A privative clause: this is a statutory direction from
Parliament or a legislature indicating the need for deference.
A discrete and special administrative regime in
which the decision maker has special expertise (labour relations for
instance).
The nature of the question of law. A question of law
that is of central importance to the legal system . . . and outside the . . .
specialized area of expertise of the administrative decision maker will
always attract a correctness standard (Toronto (City) v. C.U.P.E., at para.
62). On the other hand, a question of law that does not rise to this level
may be compatible with a reasonableness standard where the two above
factors so indicate.
[56] If these factors, considered together, point to a standard of
reasonableness, the decision makers decision must be approached with
deference in the sense of respect discussed earlier in these reasons. There is
nothing unprincipled in the fact that some questions of law will be decided on the
basis of reasonableness. It simply means giving the adjudicators decision
appropriate deference in deciding whether a decision should be upheld, bearing
in mind the factors indicated.
The following matters were identified as being subject to the
correctness standard:
Constitutional questions regarding the division of
powers between Parliament and the provinces;
Determinations of true questions of jurisdiction or
vires;
The question at issue is one of general law that is
both of central importance to the legal system as a whole and outside the
adjudicators specialized area of expertise; and
Questions regarding the jurisdictional lines between
two or more competing specialized tribunals.
Application to the Facts: When this new analytical framework was applied to the
facts of the Dunsmuir case, the court determined that the reasonableness standard was
the correct approach on which to judge the administrative decision in question. In that
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regard, the court ruled that the decision failed to meet this standard, and was therefore
unreasonable.
Impact: The ruling has consolidated the law relating to standards of judicial
review in Canada, and has effectively required a full standard of review analysis to be
performed in all current disputes arising from administrative decisions. Dunsmuir does
not stand for the proposition that the adequacy of reasons is a stand-alone basis for
quashing a decision, or as advocating that a reviewing court undertake two discrete
analyses one for the reasons and a separate one for the result. It is a more organic
exercise the reasons must be read together with the outcome, and serve the purpose
of showing whether the result falls within a range of possible outcomes.
The Dunsmuir principles were subsequently clarified in Canada
(Citizenship and Immigration) v. Khosa, where Binnie J. commented: Dunsmuir
teaches that judicial review should be less concerned with the formulation of
different standards of review and more focussed on substance, particularly on
the nature of the issue that was before the administrative tribunal under review.
However, Dunsmuir will not overrule specific requirements that are
given in a statutory framework - therefore, the duty of procedural fairness will
continue to apply in such cases.
In addition, the ruling has effectively ensured that most forms of
public employment are best viewed through the lens of private employment law
principles, irrespective of whether the affected person may be categorized as a
public office holder. Therefore, appeals on grounds of procedural fairness will be
available only to a few categories of public employment, and reinstatement
procedures will occur even less frequently.
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Reasonableness Review
Dunsmuir majority on the reasonableness standard:
Reasonableness is a deferential standard animated by the principle that
underlines 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. The court conducting a review for reasonableness
inquiries into the qualities that make a decision reasonable, referring both to the process
of articulating the reasons and to outcome. 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 dispensable in respect of the
facts and law.
This does not mean that courts can conduct a more intrusive review. Deference imports respect
for the decisionmaking process of adjudicative bodies with regard to both the facts and the law.
Deference in the context of reasonableness means courts should 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.
Re: standard of correctness - when applying the correctness standard in respect of jurisdictional
and some other questions of law, a reviewing court will not show deference to the decision
makers reasoning process; it will rather undertake its own analysis of the question and decide
whether it agrees with the determination of the decision maker; if not, the court will substitute its
own view and provide the correct answer. From the outset, the court must ask whether the
tribunals decision was correct.
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Dunsmuir majority also said that an admin decision could be found reasonable based on
reasons which could be offered in support of a decision.
So, what does this mean? Indication is that court may require decision maker to give express
reasons, beyond content of the record that was before the decision maker. Also suggest there
is room for court to supplement or even substitute the reasons of the decision maker. But court
should look first to the reasons given by decision maker and should not seek to spice them up,
Court should rarely disregard decision makers rationale in favour of courts as the core purpose
of the reasonableness review is to defer to the decision makers choices.
What if decision maker didnt give reasons?
Macdonald v. Mineral Springs Hospital [2008]
The issue under appeal was a decision by the Hospital Privileges Appeal Board
that it had no jurisdiction to hear an appeal from an Operating Room Committee decision
that it would not increase a physicians operating room time. This looks at first glance like
a jurisdictional question after all, they are deciding whether they have jurisdiction to do
something. However, as the Court rightly points out, that isnt sufficient to make
something a jurisdictional question in the relevant sense. A jurisdictional question would
be one that says, can the Hospital Privileges Appeal Board even ask this question? Are
they even entitled to decide whether they have the power to hear the appeal of the
Operating Room Committee on this issue? That type of question isnt raised here. They
do have that power, and the only question is as to the answer can they hear the appeal
or not? That question is a straightforward matter of statutory interpretation, and is
reviewed on a reasonableness standard. This is a tricky point, and it is nice to see the
Court addressing it properly.
was interpreting its enabling statute, a court must identify the appropriate standard of
review based on the standard of review analysis (formerly the pragmatic and functional
test) rather than by attempting to determine whether the matter was jurisdictional based
only on the nature of the provision being interpreted (PSAC at para. 52).
Now that you understand the law, it is time to understand how one goes about challenging an
administrative decision.
In some cases, there may be what is known as a statutory right of appeal or administrative
appeal there may be a statute out there (often the enabling statute) that allows someone to
appeal the decision of the decision-maker, sometimes to a court and sometimes to another
administrative decision-maker. If there is such a statutory right to appeal, one generally must
exhaust it before turning to judicial review, for reasons that are part of readings later on. The
rules governing these statutory appeals will be governed by the statute itself.
Judicial review is different do not confuse the two. Judicial review is part of the inherent
powers of superior courts to review the exercise of powers by executive branch ofcials. Today,
this form of relief is generally codied or provided for in primary legislation or Rules of Court.
This section concentrates on one of the issues associated with judicial review: standing, or the
question of who gets to bring a judicial review application. It also deals with venue: which court
one goes to.
Standing
Expansion of JR from original premise of protecting the individual from illegal government action
partly because of recognition that unlawful exercises of govt power can affect large numbers
of people, greater role of lobby and interest groups, introduction of Charter and Bill of Rights.
This expansion of access to the courts has caused some criticism.
First, it draws too much on an already overtaxed court system. Also, is litigation the best
mechanism only those with a real stake in the outcome of the litigation have an incentive to
provide the court with the best outcomes and the courts generally see the real issues in
disputes most clearly when it is in the context of a claim by someone who is directly affected.
Courts may be at a disadvantage having to deal with questions in an abstract setting when
arguments are brought by those who claim to represent general public interest and not have a
concrete stake in outcome.
Second, concern about politicisation of the courts i.e. trespassing into domain of party politics
and also certain questions should not be brought before courts as they are not justiciable. No
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guarantee that liberalising access to courts of public interest groups will enhance democratic
and participatory values. High costs of litigation and unequal access to legal services might
mean a liberal standing law will confer more advantages on the privileged.
The foregoing explains the ambivalent attitude of some courts/lawyers/commentators to an
expanded law of standing.
Also, hard to disentangle the issue of standing from the merits of the claim advanced. A
persons or groups claim to be an appropriate plaintiff or applicant will often only be appreciated
based on an awareness of the claim itself and is factual and legal underpinnings. Always the
dilemma of whether to treat an issue of standing as a threshold matter or as integrally related to
the merits of the claim.
Issues to consider:
When will public interest standing be granted?
To what extent do current principles of standing allow for private law enforcement
by way of an administrative law remedy?
Role of attorney general in environment where that office is no longer the
exclusive vindicator of public interest in judicial review?
Whether and to what extent tribunals and agencies should have standing to
participate in legal proceedings in which their decisions are under scrutiny? Sometimes
they have limited standing to participate in judicial review of their decision and others
they may be granted intervenor status.
What about standing to participate in administrative tribunal hearings as a party
or intervenor?
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Ratio: Courts should not decline a justiciable issue on the basis of policy context
of implication that causes the issue to be better determined by a legislature or executive
branch of government. A plaintiff may have the standing to challenge statutory authority
if this is deemed the only reasonable and effective manner in which to bring an issue
before a court.
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13.
Remedies
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Over time, prerogative writs came to be archaic because small technicalities or wrong choice of
writ would bar potentially meritorious applicationsas a result, many provinces and feds made
reforms (ie: Federal Courts Act and BC ATA)
However, the underlying writs are still important to know what remedies you get with judicial
review
Statutory Appeals
It should be recognized that the most common way of challenging administrative action is by the
huge variety of statutory appeals that exist in individual statutes creating specific tribunals,
agencies, and statutory powers. Not only may a statute provide for a more extensive mode of
relief than allowed for under the principles of judicial review but also you may be expected to
use that avenue of recourse even where its reach is the same as, or in some cases even
narrower than, that of judicial review.
Judicial Review
Collateral Attack
Defined as an attack made in proceedings other than those whose specific object
is the reversal, variation, or nullification of the order or judgment.
Cooper v. Board of Works for Wandsworth District. Validity of Board of Works
argued that its demolition of the stricture was justified by a valid order and was not
actionable trespass. Validity of the order was not the direct target of the proceedings it
was raised indirectly as part of the boards defence of the tort of trespass.
Also see this in prosecution for violation of a bylaw or regulation when D
challenges validity of the statutory instrument, e.g. R. v. Sharma. SCC has made it clear
that collateral attack is not a matter of right but should be carefully circumscribed by the
use of judicial discretion (Consolidated Mayburn)
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Direct Attack
Until recently, substantive scope of judicial review or administrative action was dictated by rules
on the availability of the various public law remedies many of which were arcane, complex and
had no policy basis.
Steps were taken to simplify judicial review and the availability of public law remedies.
Sec.2 of the Federal Court Act creates a single application for judicial review encompassing the
existing remedies of judicial review and apparently serving as a replacement for those
remedies.
In large measure the species of relief specified in this modern legislation do no more than codify
the successful outcomes of a successful application for the former remedies:
Certiorari would quash or nullify a position;
Prohibition and the injunction would prohibit or enjoin action;
Mandamus would direct the performance of duties;
Declarations would declare rights as between the parties.
Putting all these modes or relief under one judicial review remedy meant that difficulties of
choosing the correct remedy was removed/minimized, provided the relevant Acts thresholds
were crossed.
Statute also allows Court to refer matter back for reconsideration in accordance with specific
findings or directions. This is a significant remedial addition to judicial review powers of the
court.
General availability of interim relief is also an improvement previously it was unavailable in
support of a prerogative remedy or by way of declaration.
Such statutory reforms or codes have not meant the disappearance of all remedial problems
and uncertainties. Can court engage in partial quashing or setting aside of decision? Can it vary
a decision or order rather than quash it?
Courts have worked to find creative and sensitive solutions to remedial dilemmas. Used
Charter as the basis sometimes. Dagenais v. Canadian Broadcasting Corp. the court held that
certiorari was available not only to quash but also to vary a publication ban issued by a county
court judge. Based decision on s 24(1) of Charter those with a Charter claim may obtain
such remedy as the court considers appropriate and just in the circumstances.
Dagenais is significant as it affirms principle that Charter challenges can be raised in regular
judicial review proceedings and also should be raised within that framework, where feasible,
rather than by reference to an independent species of relief created by s24(1). But do the
statutory regimes of judicial review allow a person to seek a bare declaration that an
administrative regime breaches the Charter. CofA in Ontario held in Re Service Employees
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International Union, Local 204 that there was no room for a bare declaration under the Ontario
Judicial Review Procedure Act that provisions in a regulatory statute infringed the Charter.
This means bare declarations must be sought under those statutory provisions or rules of court
that establish the general jurisdiction of the court to grant declaratory relief.
Effect of Certiorari Relief
In some instances the award of relief in the nature of certiorari or prohibition (or a declaration or
an injunction for that matter) will have the effect of leaving the authority under attack with no
residual jurisdiction in the matter. Eg. If a provincial labour relations board is prohibited from
proceeding in a matter because the employment relationship comes within federal jurisdiction,
the board has been excluded completely from that matter.
However, judicial review does not always undermine the whole authority of the decision maker
under attack. Thus, the quashing of a certification on the basis of the impropriety of a prehearing vote in Re Little Narrows GypsumCo. Ltd did not bring into question the general
jurisdiction of the board to consider the application of the bargaining unit for certification. Appeal
division held that the effect of certiorari was to wipe out the certification order and the prehearing vote but the application for certification still not dealt with. Board had a duty to proceed
mandamus type relief only necessary if board refused to act. Board did not have to start over,
rather resume at the point the error was made sensible approach.
In Gill v. Canada (Minister of Employment and Immigration), an Immigration Appeal Board
decision was set aside and the matter referred back to board. Board decided that it did not
have authority to reopen a Convention refugee hearing that had been tainted by breaches of the
rules of natural justice of sec. 2(e) of the Bill and sec. 7 of the Charter. The Federal Court of
Appeal held that even absent a specific statutory authority to reopen or rehear a case, a tribunal
in such circumstances had the implied authority to do so and rectify such wrongs.
Cf 841638 NWT Ltd. v Labour Standards Officer where NW Territories Supreme Court relied on
the absence of a power to rehear in refusing to order the rehearing of a labour standards board
decision that had been tainted by breaches of the rules of natural justice. Effect was to preclude
the adjudication of the employees claim for wages where the initial failure to afford natural
justice to their employer was not their fault.
Limits on Mandamus Relief
Karavos v. City of Toronto
Laidlaw JA cited Highs Extraordinary remedies:
Mandamus is appropriate to overcome the inaction or misconduct of persons charged with the
performance of duties of a public nature. Before the remedy can be given, the applicant for it
must show:
1. A clear, legal right to have the thing sought by it done, and done in the manner
and by the person sought to be coerced.
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Moreover, in many cases, there is also the added dimension of Charter interests being at stake,
which serves to add a countervailing consideration in the exercise of the courts discretion over
the availability of such relief.
Another potential use of interlocutory relief has emerged; namely, the seeking of interlocutory
relief to prevent actions being taken by those subject to that process pending the conclusion of
a hearing or investigation.
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Alternative Remedies
Courts will sometimes regard the existence of a specific remedy in the empowering statute as
excluding the availability of common law judicial review as a matter of jurisdiction. More
frequently, the question of alternative remedies is dealt with by reference to the courts
overriding discretion to refuse relief even where the substance of the applicants or plaintiffs
case may have been made out. In such instances, the questions asked tend to be about the
relative or comparative convenience of judicial review as opposed to the alternative forms of
relief that are also available.
Statutory Appeals
Harelkin v. University of Regina [1979] 2 SCR 561 (Sask.) Student applied for certiorari and mandamus, rather than pursuing the available
right of appeal to a committee of the university senate.
The court held that the appellant was not entitled to assume that the senate
committee would have denied him a hearing. Nor should he have assumed that since
one governing body of the school denied him natural justice, another body of superior
jurisdiction would of the same. He should have assumed the opposite.
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Prematurity
Prematurity involves an assertion by the court that, while the applicant may potentially have
good cause of action, the matter is inappropriate for judicial intervention at present. There are a
number of reasons why this might be so. First, there is the possibility that the matter may be
resolved internally or without the need for court intervention.
Also, an advantage of allowing the tribunal to proceed to a conclusion on the issue in question is
that it will be building an evidentiary record that will facilitate subsequent JR.
The following case brings together the issues of prematurity and availability of an adequate right
of appeal in that the applicant for relief was confronted by the dual argument that the tribunal
itself had not finally ruled on the issue that there was a right of appeal from the ultimate decision
of the tribunal anyway.
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Mootness
By the time an application for judicial review comes on for a hearing or by the time it reaches the
appropriate Court of Appeal or SCC, the dispute will ceased to have practical significance for
the applicant. If the decision of the court will have no practical effect on the rights of the parties
affected, the court will decline to decide the case.
Delay
Delay in commencing proceedings may go either to the jurisdiction or the discretion of the
reviewing court. Failure to adhere to mandatory limitation statutes or provisions will prevent the
court from even considering the case. However, if there is no limitation period, or even within a
limitation period, the courts will on occasion deny relief to the applicant on the ground of undue
delay, the doctrine of laches.
Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR3
The last substantive issue raised in this appeal is whether the Federal Court of
Appeal erred in interfering with the motions judges discretion not to grant the remedies
sought, namely orders in the nature of certiorari and mandamus on the grounds of
unreasonable delay and futility.
Per Majority: The Federal Court of Appeal did not err in interfering with the
motions judge's discretion not to grant the remedies sought on the grounds of
unreasonable delay and futility. Respondent made a sustained effort, through legal
proceedings in the Alberta courts and through correspondence with federal departments,
to challenge the legality of the process followed by the province to build the dam and the
acquiescence of the appellant Ministers, and there is no evidence that Alberta has
suffered any prejudice from any delay in taking the present action. Despite ongoing
legal proceedings, the construction of the dam continued. The province was not
prepared to accede to an environmental impact assessment under the Order until it had
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exhausted all legal avenues. The motions judge did not weigh these considerations
adequately, giving the Court of Appeal no choice but to intervene. Futility was also not a
proper ground to refuse a remedy in the present circumstances. Prerogative relief
should only be refused on that ground in those few instances where the issuance of a
prerogative writ would be effectively nugatory. It is not obvious in this case that the
implementation of the Order even at this late stage will not have some influence over the
mitigative measures that may be taken to ameliorate any deleterious environmental
impact from the dam on an area of federal jurisdiction.
R v. Consolidated Mayburn Mines Ltd. [1998] 1 SCR 706 (Ont.)
Appellant company operated a gold and copper mine. Ontario Ministry of the
Environment concluded that it was abandoned and that transformers containing PCBs
presented a risk of environmental contamination. Despite numerous efforts to have the
company take corrective action, the condition of the site did not change. Ministry issued
an order and required the appellants to address contamination issues. The appellants
did not appeal to the Environmental Appeal Board and basically elected to disregard the
order. When charged by the Ministry with failing to comply with the order, the appellants
submitted by way of defence that the order was invalid.
The trial judge concluded that only the order to drum and store the contaminated
material was valid and ordered the appellants to pay a fine. The Ontario Court (General
Division) allowed the respondent's appeal with respect to the counts relating to the
failure to construct a storage area and to clean, and dismissed the appellants' appeal of
the conviction. The court held that by reviewing the validity of the order, the trial judge
had exceeded his jurisdiction under the Environmental Protection Act and encroached
on the Environmental Appeal Board's functions. The Court of Appeal affirmed that
judgment.
The Court addressed the issue of whether, and in what circumstances, a party
subject to an administrative decision or order can, without having appealed the decision
or order, attack that decision or order in a subsequent judicial proceeding. When it is
necessary for an aggrieved party to exhaust all administrative remedies prior to seeking
a remedy in a judicial forum.
Five factors should be considered in determining whether a collateral attack is
permissible: (1) the wording of the statute; (2) the purpose of the legislation; (3) the
availability of an appeal; (4) the nature of the collateral attack in light of the appeal
tribunals expertise and raison detre (where an attack on an order requires the
consideration of factors that fall within the specific expertise of an administrative appeal
tribunal, this is a strong indication that the legislature wanted that tribunal to decide the
question rather than a court of penal jurisdiction. Conversely, where an attack on an
order is based on considerations which are foreign to an administrative appeal tribunals
expertise or raison dtre, this suggests, although it is not conclusive in itself, that the
legislature did not intend to reserve the exclusive authority to rule on the validity of the
order to that tribunal); and (5) the penalty on a conviction for failing to comply with the
order.
This reflects the general approach aimed at determining the legislatures
intention as to the appropriate forum.
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Misconduct of Applicant
On occasion, the courts will deny a remedy because of the way in which the person seeking
relief has behaved. This follows the old maxim of equity that whoever comes to equity must
come with clean hands.
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011(Ont.)
Homexs illicit dealings with the Atkinson village forced the court to deny the
issuance of the order of judicial review, notwithstanding the fact that Homes had a right
to be heard but did not receive that opportunity.
Homex sought throughout proceedings to avoid the burden associated with the
subdivision of the lands. In preliminary stages of application for JR, it took inconsistent
and contradictory positions. Sought to put its land beyond reach of municipal regs by
checkerboarding.
Waiver
On occasion relief may be denied to an applicant on the basis of waiver or acquiescence
(knowing your rights but not enforcing them). Most commonly occurs where defect complained
of is breach of rules of natural justice or bias. Halifax-Dartmouth Real Estate Board one of
grounds for denial of relief was failure of applicants to object at the hearing to the lack of notice
on one of the charges, this being the basis of the application for certiorari. Dangerous to
participate in a hearing without at least objecting when you believe the decision-maker is
transgressing the rules of justice in some way.
Breach of rules of natural justice is regarded as a category of jurisdictional error and raises
some theoretical problems with using waiver or acquiescence as a basis for denial of relief. As
with the ordinary courts, jurisdiction cannot be conferred on statutory authorities be consent or
acquiescence. How can you ever justify allowing waiver or acquiescence to defeat allegation of
breach of rules of natural justice?
Balance of Convenience
Essentially, the refusal of relief because the applicant had other avenues of recourse available
or on the basis that there was a chance that the completion of the proceedings by the tribunal
would eliminate the applicants concerns is based on the premise that it is more convenient to
use alternative means of solving the problem before, or as a substitute for, seeking judicial
review.
Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board [1994] Denial of
fair hearing by the board to companies that requested a significant discovery declaration re an
offshore well. Chair of board refused to put matter before board. SCC held that board had not
delegated authority to chair to make such decisions and this was a failure of board to give
procedural fairness. Relief refused b.c SCC had, on cross-appeal by board, held that board
would as a matter of law have had to refuse the application anyway.
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Money Remedies
It is possible for government to pay compensation for wrongful action/inaction by statutory
authorities. There is a debate about where to draw the line. Hogg and Dicey think that the
occasions for special treatment of govt in litigation should be few.
Arguments in favour of Govt liability:
Issue of resource allocation and ability to pay. British Railways v. Herrington
Lord Reid said that Board had greater ability than private individuals to avoid dangers to
trespassers. Seems to imply that Govts and their agencies, because of their deep
pockets, capacity as loss spreaders/real locators, ability to exercise control via creation
and exercise of statutory powers should be more readily liable than private individuals
for certain kinds of harm.
Also, some activities by Govt in support of public good are dangerous e.g.
nuclear materials. Those who happen to be chance victims of mishaps from such
activities should perhaps be compensated irrespective of fault.
Finally Govts wield power by virtue of public trust so should be held to high moral
and legal responsibility for lawful and prudent exercise of that authority.
These arguments are controversial as a matter of principle and difficult to sustain in real world.
Args based on deep pockets have no relevance when it comes to personal liability of officials
(unless govt has responsibility to indemnify them). Municipalities and other govts are not that
rich either particularly after financial crisis. Also, too much liability might stop govt from
undertaking programs that are in the public interest for fear of being sued.
The Public and Private Dimensions of the Uffi Problem David Cohen
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regulation prescribed. They claimed the user charge was unconstitutional and sought
relief with compound interest.
The Queens Bench held the user charge was an unconstitutional indirect tax, but
denied recovery because Kingstreet had passed the burden on in increased prices.
There was a passing on defence. Moreover ultra vires taxes cannot generally be
recovered. Robertson JA for the Court of Appeal held by a majority that restitution should
be made for money from the time of legal proceedings, as that was the start of the
protest. Before then, the passing on defence applied.
Bastarache J for the Supreme Court, because unjust enrichment principles are ill
suited to determine constitutional issues of ultra vires taxes, that is the wrong approach.
There should be a remedy as of constitutional right. When governments collect taxes
ultra vires it undermines the rule of law. So there must be a right to restitution.
Parliament can prevent fiscal chaos by suspending declarations of invalidity and
enacting valid taxes and applying them retroactively. The passing on defence is
inconsistent with restitution law, it confuses compensation matters, and is not concerned
with the possibility that the claimant may receive a windfall. It is economically
misconceived and creates difficulties of proof. There is no need to consider the counter
arguments to passing on, of protest and compulsion. The six year limitation in the New
Brunswick Limitation of Actions Act s 9 applied. There was no right to compound interest,
which might be warranted to express a moral sanction.
44. There are three major criticisms of the passing-on defence:
first, that it is inconsistent with the basic premise of restitution law; second, that it
is economically misconceived; and third, that the task of determining the ultimate
location of the burden of a tax is exceedingly difficult and constitutes an
inappropriate basis for denying relief.
45. The defence of passing on has developed almost exclusively
in the context of recovery of taxes and other charges paid under a mistake of
law
46. [Quoting Brennan J in the Australian Royal Insurance case...]
The fact that Royal had passed on to its policyholders the burden of the
payments made to the Commissioner does not mean that Royal did not pay its
own money to the Commissioner. The passing on of the burden of the payments
made does not affect the situation that, as between the Commissioner and
Royal, the former was enriched at the expense of the latter
48. Unless the elasticity of demand is very low, the plaintiff is
bound to suffer a loss, either because of reduced sales or because of reduced
profit per sale. Where elasticity is low, and it can be demonstrated that the tax
was passed on through higher prices that did not affect profits per sale or the
volume of sales, it would be impossible to demonstrate that the plaintiff could not
or would not have raised its prices had the tax not been imposed, thereby
increasing its profits even further. LeBel J. referred to these various figures as
virtually unascertainable (para. 205, citing White J. in Hanover Shoe, Inc. v.
United Shoe Machinery Corp., 392 U.S. 481 (1968), at p. 493). LeBel J.
ultimately concluded that [t]he passing on defence would, in effect, result in an
argument that no damages are ever recoverable in commercial litigation because
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anyone who claimed to have suffered damages but was still solvent had
obviously found a way to pass the loss on (para. 206, citing Ground J. in Law
Society of Upper Canada v. Ernst & Young 2002 CanLII 49466 (ON SC), (2002),
59 O.R. (3d) 214 (S.C.J.), at para. 40).
49. ...unlike restitution law, tort law is premised on the concept of
compensation for loss, such that concerns about potential windfalls are
appropriate.
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District the plaintiff recovered tort damages as the unlawful administrative action gave rise to tort
of trespass.
Administrative action or inaction can also lead to negligent misrepresentation.
More significant is the following problem:
The extent to which ultra vires action or abuse of statutory authority per se constitutes an
independent tort.
In fixing liability in general tort law, courts seldom refer explicitly to the issues of resource
allocation and ability of litigants to act as loss bearers. But, as noted earlier British Railways v.
Herrington Lord Reid said that Board had greater ability than private individuals to avoid
dangers to trespassers. Should be expect higher standards of risk avoidance from public
bodies as opposed to private individuals or corporations (however large)? Relevance of fact
that public bodies operate or regulate enterprises with the potential for horrendous or
unmanageable disaster such as nuclear power plants, defence facilities? Is public purse
bottomless?
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The Chief Prosecutor of the city, Oscar Gagnon, overwhelmed by the number of
Witnesses being arrested and then set free by Roncarelli's intervention, contacted the
Premier who spoke to Edouard Archambault, Chairman of the Quebec Liquor
Commission. Roncarelli's liquor licence was subsequently revoked. Extensive testimony
showed the government actors believed Roncarelli was disrupting the court system,
causing civil disorder, and was therefore not entitled to the liquor licence. Roncarelli was
told that he was barred from holding a liquor licence and that the action was a warning
that others would similarly be stripped of provincial "privileges" if they persisted in their
activities related to the Witnesses.
Roncarelli received news of the revocation in December 1946, and while he tried
to keep his business open without the licence, 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 damages.
At trial, the Qubec Court of Queen's Bench found in favour of Roncarelli,
however it was overturned on appeal.
In a 6-to-3 decision, the Supreme Court of Canada reinstated the trial decision,
holding that Duplessis wrongfully caused the revocation of Roncarelli's liquor licence.
The six judges who sided with Roncarelli used different legal reasoning to reach
their decision. Three judges wrote that Duplessis had ordered the cancellation which
was outside his authority as premier; two judges stated that although Duplessis had the
power to order the cancellation, he had done so in bad faith; and the sixth judge
concluded the premier was not entitled to immunity as a public official.
Roncarelli was awarded $33,123.53 in damages, a fraction of his claim, plus
costs in the Court of Queen's Bench and the Supreme Court of Canada. Roncarelli's
son, however, maintained that it was a significant moral victory in his father's struggle
against the system.
Odhavji Estate v. Woodhouse [2003]
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be required otherwise by law? (The SPPA will only apply if an oral hearing is required by
law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing
they are seeking? Such as an oral hearing (see Khan) where the right to an oral hearing is the
highest when credibility is in issue. As well participatory rights are not going to ensure an oral
hearing in every issue (Baker ). Is the right to counsel in question? Is there a requirement for
reasons to be provided?
Protection against bias - This is the second fundamental principle of procedural fairness - the
affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or
pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed
person, viewing the matter realistically and practically - and having thought the matter through conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship.
Whether or not there is an apprehension of bias may depend on the degree of deference
afforded a particular administrative actor.
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