Administrative

Law Notes
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Summaryhttp://ww
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ative-Law-NCA-
Summary
STUDY
TIPSDecisions of
Legislative Nature
– PER
MICHELLEKreve
r Commission –
PER MICHELLE
Part of the problem
is that a lot of you
are overthinking
Admin. If you look
carefully at the
sampleexam, you'll
notice something
that is very
apparent in the
actual exams
administered - that
is, there arethree
fact patterns and
one focuses on
procedural
administrative law,
another on
substantiveadminist
rative law, and a
third that will likely
include something
about bias, charter
challenge,
or otherwise similar
content.Once you
are able to identify
procedural vs.
substantive
problems, the rest
is easy. When
analyzing
a procedural
question, look at
the Baker elements
and carefully read
the Judge's
analysis.
Most problems will
result in the victim
having right to
some procedural
fairness.When
looking at the
substantive
elements, organize
your thoughts
carefully - does the
person haveany
right to due process
at all? If so, what
level? And after
determining what
level, focus on how
that person's rights
should be applied
to the fact pattern.
There will always
be a bit about bias
or a
charter argument.
Find it and use the
text book to find
out what type of
bias it was, speak
clearly
andconcisely about
whether an
argument exists,
and make a
confident
conclusion about
it.There is a lot of
fluff in the text
books intended to
take up your time.
Once you learn
what theexaminers
are looking for, you
can focus on that
and ignore the rest
of the nonsense.
You will realizethat
your exam will
consist about 80%
of the Baker and
Dunsmuir
elements, and the
cases that led upto,
or were decided, on
the basis of this
case law.Canadian
law is somewhat
archaic in that
many of the
textbooks and
reading materials
are publishedevery
few years, which is
in contrast to
American
authorities which
are published
yearly or
twiceyearly. This
means that a lot of
things to do with
two standards of
reasonableness
(hint -only 1
nowexists) are still
in the texts and this
causes some
confusion. Don't
waste your time
with trying
toexplain to the
examiner the
difference; rather,
focus on the IRAC
method religiously.
I cannot
stressorganization
and writing style.
You could have a
strong grasp on the
case-law, but if you
cannot argueyour
position with
confidence, you'll
fail. I would bet
that writing style
and organization
are the
deal breakers with
NCA examiners, as
your first
impression is the
only one you'll
make. If your
English isweak or
you are unable to
put your thoughts
on paper properly,
spend a lot of time
taking the
practiceexams and
reviewing the
outlines so you
know exactly how
your answer will
flow.Lastly, walk
into the test
knowing that there
are only a few ways
that a question can
be asked when
itcomes to admin
law. There will
always be a person
or entity who was
denied a certain
benefit or
right.There will
always be a
question on
procedural and a
question on
substantive law.The
fact pattern will
always be
fashioned in a way
that it is difficult to
determine whether
standardof review
is correctness or
reasonableness
because it could go
either way, so look
closely for
astatement or fact
that sways you to
the correct SoR
(remember,
choosing the wrong
SoR can fail
you).And also
remember, there
will be a question
which asks you
whether a person or
entity has any
rightsin law to
some type of
bias/constitutional
challenge.
Learn the different
types of bias and
apply itcorrectly,
and learn the
jurisdictional
limitations that
tribunals must
abide by when
hearingconstitution
al challenges.
1
Hope that helps.
Once you guys stop
over-thinking
admin law and start
focusing on the
actualelements of
the subject, you'll
realize that it's an
area of Canadian
law that is well
developed
andrelatively easy
to conquer. When I
was studying for it,
I was overwhelmed
because I could
notseparate
procedure and
substantive law
properly, but with
some time and
resources I was
able tofigure it out
quite well. Steven:
The syllabus is
extremely
frustrating because
it does not provide
students with any
structure.My
suggestion would
be to break down
your outlines into
two major
categories:
Procedural
andSubstantive.For
each category, ask
yourselves (a)
whether any
procedural/substant
ive rights exist; (b)
at whatlevel? and
(c) and whether the
victim received
enough process or
whether more
should have
beengiven. Again,
HEAVILY rely on
the Baker analysis
for matters of
procedural fairness,
even step-by-step
as outlined by
Justice L'Heureux-
Dubé, whose
analysis is
extremely easy to
follow. One
easyway to identify
procedural fairness
problem is where
there is no
"finality" to the
issue.
Proceduralquestion
s mostly center
around matters of
how a certain thing
was done, such as
how someone
wasfired, how a
benefit was
revoked, or along
those lines.
Procedural
questions usually
look at whether
a particular person
received enough
opportunity to
challenge a
decision or whether
the decision
was based on
sufficient research
and opportunity for
the victim to be
heard, etc.In
contrast,
substantive
questions mainly
involve a final
decision by a
tribunal, and the
party involvedis
looking to have that
overturned by a
court. First, ask
whether there is
any basis for
review at all:that is,
are there any
mistakes in fact or
law that are
egregious enough
for court
intervention? If
so,what standard of
review? Look to
the Dunsmuir and
supporting cases to
determine
this.Finally, will
the court overturn
the decision at all?
Analyze the case-
law and determine
whether theerror
was big enough to
warrant court
intervention. Most
substantive issues
will be a standard
of reasonableness,
because most of
them are typically
errors of fact or
mixed fact and law.
You willknow
when a correctness
standard applies
when you see
matters of law that
are highly
important tothe
legal system as a
whole or involve a
constitutional
question (which is
rare.) If anyone has
anyspecific
questions about
admin, let me
know. I'm no
expert, but I did put
a great deal of
effort intolearning
it at the expense of
my other exams,
and I'm happy to
share my
experiences.
Introduction
Primary
questions:(a) The
circumstances
under which
governmental
decision-makers
are subject to an
obligation
of procedural
fairness to those
affected by their
decisions, and,
where applicable,
the content of
thatobligation.(b)
The extent to which
the substantive
decisions of
assigned decision-
makers are subject
to meritsscrutiny by
the courts in the
name of
jurisdiction or other
principles of
substantive review
such aserror of law,
error of fact, and
abuse of discretion,
and especially the
standard of review
thatreviewing
courts bring to bear
in exercising that
constitutionally
guaranteed
capacity.(c) The
remedial
framework within
which the superior
courts, both
federally and
provincially,exercis
e their review
powers.(d) The
bases upon which
the courts will not
only exercise direct
powers of review
but also
providemonetary
compensation for
wrongful
administrative
action.Topics:
2
(a) A procedural
fairness (or more
generally,
procedural
expectations that
administrative
decision-makers
must meet);(b)
substantive
constraints (or
more generally the
sorts of substantive
errors
administrative
decision-makers
must avoid); and(c)
challenging
administrative
decisions and
remedies on
judicial review (or
more generally, the
relief available to a
person who wishes
to challenge an
administrative
decision and the
procedure to
befollowed in
seeking this relief).
Procedural
Fairness
2. Sources of
Procedural
Obligations(a)
Enabling
Legislation
(i.e. statute sets out
the procedural
expectations). See
Sngh(b)
Sub-ordinate
Legislation
(i.e. regulations and
rules) – note that
there is a risk that
persons makingthe
rules and
regulations don’t
meet expectations
or wishes of
legislature. There
are mechanisms
of accountability
and scrutiny to
ensure this doesn’t
happen:(i)Legislat
ive Scrutiny - -
regulations must
be approved by
legislature once
approved(ii)Publi
c Consultation
when drafting
regs/rules(iii)Judi
cial review – e.g.
compliance with
Charter or other
constitutional
instruments,ultra
vires, compliance
with common law
(in absence of
express language to
thecontrary).(c)
 Policies and
Guidelines
– “soft law” set out
by the relevant
administrative
decisionmaker.(d)
Procedural
Statutes
– set out coming
procedural
standards. E.g.
Alberta
AdministrativeProc
edures and
Jurisdiction Act or
BC Administrative
Tribunals Act(e)
Common Law
– a party affected
by the
administrative
decisionmaker is
entitled to be heard
by
thatadministrative
decisionmaker in
an impartial and
independent
hearing. Derived
from rules of
“natural justice”
which imposed on
tribunals exercising
judicial or quasi-
judicial functions,
trial-
type procedures.
Concepts of
audi alteram
partem
(the decision maker
must “hear the
other side”) and
nemo judex in sua
causa
(decisionmaker
must not be a
“judge in his own
cause”).

Today, it applies
toa much broader
spectrum of
decisions.(i)Coope
r vs Board of
Works (1863) –
Builder had to
give 7 days notice
of intention
to build under the
statute and if not,
the Board of Works
had the right to tear
down his building.
Court ruled that he
needed opportunity
to be heard –
particularly as
hisright was
property
right.(ii)After this,
English Courts
willingness to
impose hearing
requirements
ondecisionmakers
became contingent
on the nature of
decision making
power – judicialor
quasi-judicial vs
administrative
decisions. This
became untenable
and then in1964-
1970 courts started
reviewing
administrative
decisions as
well.(iii)Nicolson
v. Haldimand-
Norfolk Regional
Police
Commissioner
(1979) SCC –
Statutesaid that
certain procedures
must be followed
before firing a
constable of over
18months. In this
case the person had
been constable for
15 months and was
no procedures were
followed – he was
discharged without
being given an
opportunity tomake
submissions. Court
ruled that just
because he wasn’t
entitled to the
notice andhearing
required under
statute, that didn’t
mean he had no
protection at all. He
must be treated
fairly, not
arbitrarily. He
should have been
told why his
services weren’t
3
required and given
an opportunity to
respond. Then,
after hearing his
response, theBoard
can decide on what
action to take (in
good faith).Before
this decision, the
“duty to act
judicially” was
thought to apply
only totribunals
rendering decisions
of a judicial or
quasi-judicial
nature, to the
exclusion of those
of an administrative
nature. Nicholson
has made the
distinction less
important – since
the duty to act
fairly and duty to
act judicially have
their roots in the
same principals of
natural
justice.(iv)Expansi
on of the duty of
fairness to areas
of administrative
decisionmaking
(such as prisoners
rights) that had
previously escaped
judicial scrutiny for
compliance
withrules of natural
justice.3.
Procedural
Obligation Triggers
(Knight “Three-
Prong” and the
Concept of
“Legitimate
Expectation”)
Where is a given
procedural
obligation
triggered?
If the procedural
rule comes from
legislation, the
answer to the
trigger question is
in the
legislationitself.If
the procedural rule
comes from
“general statutes
about procedure”,
they contain their
own triggers.So
you need to be
careful to read that
legislation if it
applies to your
decisionmaker. (
Make sure
thestatute does
apply to your
decision-maker.
Also check if a
provincial general
procedural statute
canever apply to a
federal
administrative
decision-
maker.)Two
triggers for
common law
procedural
fairness:(a) what
we can call the
Knight v. Indian
Head (three-prong)
trigger; and(b)
legitimate
expectation.Where
the requirements of
these triggers are
met, then
procedural fairness
is owed by
theadministrative
decision-maker.
What that means in
practice is a more
complex discussion
involvingconsiderat
ion of the content
of the procedural
fairness.Pay
attention to some of
the exceptions and
constraints on the
triggers as well. So,
for
legitimateexpectati
on, note the courts
views on
procedural versus
substantive
promises. For the
Knight trigger,the
readings talk about
final versus
preliminary
decisions (and the
related issue of
investigations
andrecommendatio
ns). Note also
exceptions to this
exception – SEE
Grange J
application of test
in Abel
Knight v. Indian
Head School
Division No. 19
(1990)
A majority of the
Supreme Court
recognised that in
dismissing its
director (who held
office at pleasure),
a school board was
bound by duty of
fairness. Extended
fairness beyond
domain of
officeholders
dismissible only for
cause. Also set
down lines of a
new threshold for
duty of fairness
basedon distinction
between decisions
of a legislative and
general nature and
acts of an
administrative
andspecific nature.
Concept of
procedural fairness
as a common law
right
introduced.FACTS
– board of
education
dismissed a director
when he refused to
accept renewal of
contract at ashorter
term than the
original. Director
alleged wrongful
dismissal. Court
found that board
did notneed to
show cause for
dismissal under
contract or
Education Act.
Director also
argued he
wasentitled to
procedural fairness.
Majority of the
Supreme Court
agreed but found
that the
requirements
4
of procedural
fairness were met.
Minority said that
no duty of fairness
was owed to the
director.Board of
education’s appeal
was
allowed.THREE
PRONG TEST per
L’Heureaux-Gube J
(for the majority of
the Supreme
Court):1. Nature of
the decision to be
made by the
administrative
body:(a)
Administrative vs.
Legislative use of
power -
Administrative
powers
attract procedural
fairness while
legislative powers
do not(b) Final
decision maker-
Preliminary or
interlocutory
decisions don’t
invoke
proceduralfairness2
. Relationship
existing between
that body and the
individual:All we
are concerned with,
is whether the body
is exercising a
power stemming
from a statuteor
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
impactedIf 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
legislature’s
intent.Basic
requirements of the
duty to act fairly is
to give reasons for
dismissal and a
hearing. Note
thatevery
administrative body
is master of its own
procedure and
therefore you must
allow
administrative bodi
es to work out a
system that is
flexible, adapted to
their needs and fair
– NO need to make
it acourt
process.Dissent
(Sopinka for the
minority of the
Supreme Court):
No duty of
procedural fairness
because
theemployer cam
terminate
employment
without cause and
without giving any
reason. In his view,
thecorrect approach
is to examine the
stature, regulations
and contract to
determine whether
therespondent has
brought themselves
within the
exception to the
general rule that an
office terminable
at pleasure does not
attract a duty of
fairness – i.e. the
governing
instruments must
specifically or
byimplication point
to a duty of
fairness. Note –
Dunsmuir v New
Brunswick changed
the law re
procedural fairness
applicable to public
officeholders.
Where a public
office holder’s
employment is
governed by an
employment
contract, disputesre
dismissal must be
resolved according
to terms of the
contract and any
applicable statutes
andregulations. I.e.
a public authority
that dismisses an
employee pursuant
to an employment
contract isnot
subject to an
additional public
law duty of
fairness. Remedies
of employee are
only
contractual.Reason
s:1.hard to
determine in
practice if a
position had a
strong enough
“statutory”
flavour 2.public
law remedy of
overturning the
dismissal and
reinstating
employee (who is
entitled toaccrued
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
theamount of relief
depends not on
employee’s
situation but length
of time to resolve
the
judicialapplication.
I.e. common law
entitlements of
notice period,
salary in lieu and
wrongful dismissal
claim
provideenough
protection.Dunsmui
r noted that the
public law duty of
fairness can still
apply:
5
1. where the public
employee is not
protected by an
employment
contract2. where
the office-holder is
expressly subject to
summary
dismissal3. where
the duty of fairness
flows by necessary
implication from
the statutory power
governing
theemployment
relationship – e.g.
statute provides for
notice to be given
to employee of a
motion
todismiss.Martinea
u v Matsqui Inmate
Disciplinary Board
[1980]This case
applied the
principles set out in
Nicholson in a
prisoner rights
context – inmate
disciplinary board
procedures.Re
Webb and Ontario
Housing
Corporation
[1978]Webb was a
low income tenant
in a building owned
by Ontario Housing
Corporation and
managed
byMeridian
Property
Management for
OHC. After 3
years, Meridian
recommended
terminating
thelease because of
problems caused by
Webbs kids. OHC
officials and its
board of directors
agreed andan
application for
termination of her
lease was brought
under Landlord and
Tenant Act.
Webbapplied for a
review of the
decision.Three
Arguments (a)
Statutory Powers
Procedure Act 1971
applies to a
meeting of the
directors of OHC
when considering
terminating a lease,
(b) if the Act
doesn’t apply, rules
of natural justice
applyas they were
conducting a
judicial or quasi
judicial hearing and
(c) 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 OntarioHousing
Corporation Act
where it was
required to give the
parties an
opportunity for a
hearing.Determinat
ion to terminate
tenancy does not
fall within
Statutory Powers
Procedure Act
1971. Healso
dismissed argument
(b).Re argument (c)
– case is important
because it
distinguishes
between an
applicant for
subsidizedhousing
and someone
already in
subsidized housing.
Decision by OHC
to grant Webb
subsidizedhousing
was not one that
could be subject to
procedural fairness.
Once Webb
became a tenant,
shequalified for and
acquired a benefit.
What is at issue in
these cases is what
it is appropriate to
requireof 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 hisopinion
OHC, in exercising
power of
termination and
depriving Webb of
benefit of lease
was, in
thecircumstances,
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
noopportunity to
answer the case
against her would
be unfair. ON
FACTS SHE WAS
TREATEDFAIRL
Y – PLENTY OF
WARNINGS.HOL
DERS OF STATE
ASSISTANCE
ENTITLED TO
PROCEDURAL
FAIRNESS
BEFORE IT
ISCUT
OFF.APPLICATIO
N FOR
LICENCE:Hutfield
v Board of Fort
Saskatchewan
General Hospital
District No. 98
[1986]Dr H applied
to be appointed to
medical staff of a
hospital. Hospital
board had statutory
power tomake
bylaws and gave it
responsibility for
hospital’s affairs.
By-laws said that
applications
for appointments
had to be sent to
the College of
Physicians and
Surgeons of
Alberta for
itsrecommendation
and to the chief of
the hospital’s
medical staff and to
its appointments
committee.College
approved Dr H but
board rejected him.
He applied again,
college not
consulted
andappointments
committee gave an
adverse oral
recommendation.
DR H asked to
appear before
the board when it
considered the
application but
board refused.
6
Judge McDonald
noted that relief
had been granted in
past for zoning or
development
permits on basis
that decisions
impacted on
common law right
to own land. Also
noted there was
case law
for judicial review
where there is a
“legitimate
expectation” of
obtaining
permission sought
rather than amere
hope of success or
benefit unless
certain adverse
findings are made
against him.This
case makes the
same distinction as
Webb re procedural
fairness on
extinguishment of
existingrights vs
expected standards
of procedural
fairness in the case
of an application
for permission
or consent not
previously enjoyed.
It is not a
distinction founded
in principle – at
best the source is
amixture of
historical accident
and a
misconception that
the remedy of
judicial review
(certiorari) andstds
of natural justice
ought to apply only
where the conduct
of the authority
exercising the
publicduty
determines rights in
the sense of a right
to which there is a
corresponding
obligation. This
notion NO
LONGER governs
in light of
:1.recognition that
courts will protect
interests as well as
rights2.recognition
that certiorari is
available where
there is a duty to
act fairly (and not
just judicially)3.wh
ere there is a duty
to act fairly, the
content of the duty
varies from one
situation to
another 4.artificiali
ty of the
distinction drawn
in the recent
English cases that
have pushed
frontiers
of judicial review
and procedural
fairness out but
limited them on
grounds
(“legitimateexpecta
tion” and “Slur”)
that do not reflect a
principal that can
withstand
scrutiny.Board has
no duty to grant
hospital privileges
to Dr H. He doesn’t
have a “legitimate
expectation”
of being granted
hospital privileges
– at best he had a
hope of benefitting
from the boards
decision. Buthis
professional
interests would be
affected by the
decision. Also, if
the committee
recommends thathe
be denied hospital
privileges, it infers
that it found that
his credentials,
ability, experience
was notup to good
enough –
amounting to a
“slur”. Also, he
was a local Dr,
practicing in the
district –
refusallimits his
patients. So held Dr
H’s interests were
affected
sufficiently directly
and substantially
that,if procedural
fairness not
complied with by
hospital board, then
certiorari is
available.Board
must give reasons
for its decision and
decision was
invalid because the
appointmentscomm
ittee didn’t give a
written report.c.f.
McInnes v Onslow-
Fane – boxing
manager denied
licence even though
he had held various
other forms of
licence from the
British Boxing
Board of
Control. Note also
in the context of
licence renewals,
the longer a licence
held, the greater the
interest inrenewal
and stronger the
entitlement to
procedural fairness.
FAI Insurances v
Winneke
(1982).Therefore, a
fisherman entitled
to procedural
fairness even
though statute
stated that licence
renewalwas in the
absolute discretion
of the minister
Everett v Canada
(Mister of Fisheries
and
Oceans)(1994)INV
ESTIGATIONSTra
ditionally the court
would not apply
procedural fairness
– e.g. Guay v
Lafleur (1965) –
personappointed to
make tax
investigations
refused a subject’s
request to be
present when the
investigator examin
ed witnesses. Court
ruled it was purely
investigative – no
decision or
adjudication so
no procedural
fairness.Doctrine
changed in England
in 1970s In re
Permagon Press
Lord Denning
decided that the
subjectsof an
investigation were
entitled to see a
copy of the report.
Inspectors must act
fairly.Re Abel and
Advisory Review
Board (1979)
7
The ARB conducts
reviews of persons
found not guilty of
crimes b/c insane
so they could
makerecommendati
ons to the
Lieutenant
Governor. So no
binding authority
rests with ARB.
Lawyers
for patients
requested copies of
files and the
chairman refused
on the grounds that
he didn’t
haveauthority.Gran
ge J said that the
findings of the
board were of
utmost concern to
patients – their only
chance of release.
Applied De Smith’s
(an academic)
test:(a)degree of
proximity between
investigation and
decision(b)exposur
e of the person
investigated to
harm.He said that
although Nicolson
and Webb didn’t
apply to non-
binding reports,
they reaffirmed
and perhaps
extended the duty
of fairness required
of persons or
bodies exercising
power even though
theexercise of that
power might be
classed as
administrative
rather than judicial
or quasi-judicial.Is
a person’s
entitlement to
procedural fairness
exhausted at the
recommendatory
level or can
theymake a further
claim for
procedural fairness
from the executive
official to whom
the
recommendationor
report is made?
Conway v Ontario
(Attorney General)
(1991) held there
can be
continuingobligatio
ns of procedural
fairness on the
lieutenant governor
– not necessarily an
in person
hearing but access
to relevant material
and also make
written
submissions. Not
all
recommendatory or
investigative
functions will
attract an obligation
of procedural
fairness -
L’Heureaux-Gube J
in Knight v Indian
Head confirmed
this saying
“decisions of a
preliminary
naturewill not in
general trigger the
duty to act
fairly”.Abel gives a
useful test for
discerning the
exceptional cases in
which the duty will
be triggered.Dairy
Producers’ Co-
operative Ltd. v
Saskatchewan
(Human Rights
Commission)
[1994]Sexual
harassment
complaint.
Commission
appointed and
officer to
investigate and
provide a
report.Company
informed of
complaint but not
provided details of
the complaint.
Investigator found
therewas probable
cause to believe
there was an
infringement of the
Act. Settlement
attempts failed and
a board of enquiry
established.
Company applied
to court to quash
the establishment
of the board
of enquiry and the
report that there
was probable cause
– application based
on breach of
proceduralfairness
rules.Court held the
investigating
officer had no duty
to act fairly – she
had no power to
affect rights of
thecompany. Next
step was settlement
negotiations – these
did not determine
the rights of the
company.Only after
the settlement
negotiations were
unsuccessful did
the Commission
have the right to set
upthe board of
inquiry. At this
stage there was a
duty to provide
company with
substance of
theevidence against
it.The fact that the
company
proceeded with
settlement
negotiations rather
than bringing a
complaintabout the
conduct of the
Commission and
investigator
amounted to a
waiver of its right
to object (if iteven
had one). No
breach of
procedural fairness
by Commission or
investigator.Master
s v Ontario
(1994)Unfairness
allegations against
incvetigators
appointed by
premier of Ontario
to report on
allegationsof
sexual harassment
made against the
agent general of
the government of
Ontario in New
Yorl.Court held
that investigators
owed Masters a
duty of procedural
fairness in the
conduct of the
inquirythough not
one that amounted
to a full trial type
hearing. Duty
fulfilled event
though Masters
wasn’tgiven access
to questions asked
of interviewees or
names of those
conducting
interviews or
8
notes/transcripts of
interviews. Enough
to be given a
summary of the
allegations and
opportunity
tointerview
witnesses
himself.Irvine v
Canada (Restrictive
Trade Practices
Commission)
[1987]Investigation
did involve some
participatory rights
for those affected.
Dairy Producers
makes it clear that
where stature only
establishes an
investigative
capacity , there
much more of a
possiblity that
thecourts will see
this as being the
equiv of police
investigative
powers not giving
any rise to
hearingentitlements
on the part of those
under
suspicion.EMERG
ENCIESRe
Walpole Island
First Nation PF
won’t apply where
it’s an emergency
and decision-maker
must actquickly
and procedural
standards will have
to be set aside.R v
Randolph [1966]
Court held that an
interim order
withdrawing mail
services to an
individualcould 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
norequirement of
prior notice and an
opportunity to be
heard before the
decision.LEGITIM
ATE
EXPECTATIONBa
sically you can also
get procedural
fairness if there’s a
legitimate
expectation of
being treated
fairly(i.e. public
official to keep
their word). If you
have a delegate
make such a
promise, can you
makethem fulfill
it?Old St. Boniface
Residents Assn.
Inc. v Winnepeg
(City) [1990]Court
refers to Hong
Kong v. Ng Yuen
Shiu

When a public
authority had
promised to follow
a certain
procedure, it is in
the interest of
goodadministration
that it should act
fairly and should
implement its
promise, so long as
implementationdoe
s not interfere with
its statutory
duty.Court supplies
the omission
where, based on the
conduct of the
public official, a
party has been led
to believe that his
or her rights would
not be affected
without
consultation.Refere
nce re Canada
Assistance Plan
[1991]Federal
Assistance Plan –
Federal Govt to
enter into agmts
with Provincial
Govts to share
costs of provincial
welfare. Section 8
of Plan provided
that the agmts
would continue as
long as the
relevant provincial
law was in
operation by
consent or
unilaterally by a
party on one years
notice. Fed
Govtintroduced a
bill to limit the
increase to
contribute to
BC/Alberta/Ontario
below the figure
provided inthe Plan
and the agmts
entered into. No
prior notice given.
\Could Fed Govt be
precluded from
bringing bill by
virtue of legitimate
expectation that
agmts wouldonly
be amended by
consent. Sopinka
held that there is no
support in
Canadian or
English cases
for the position that
doctrine of
legitimate
expectations can
create substantive
rights. Also,
rulesgoverning
procedural fairness
do not apply to a
body exercising
purely legislative
functions.
9
BC argued that
nothing stops
legislature from
legislating but the
Fed govt is
constrained by
legitimateexpectati
on from
introducing bill to
parliament. Court
said this ignores the
role of executive
inlegislative
process - - cabinet
is the buckle that
joins legislative
part of state with
executive
part.Legitimate
expectation cannot
constrain
executive.Sopinka
rejects doctrine of
legitimate
expectation being
anything other than
a source of
proceduralclaims –
It never generates a
claim to a
substantive
outcome – only
hearing
entitlements.Sunshi
ne Coast Parents
for French vs
Sunshine Coast
(School District no.
46)
(1990)Elimination
of French
immersion
programme.Court
finds that the board
is exercising a
broad policy
decision and thus it
is legislative and
legitimateexpectati
on does not apply
to legislative
decisions. While
the case would
normally end
there, theCourt
finds that because
the board
themselves
imposed a
constrained
regulation on itself
(mandatoryconsult
ations) they should
be bound by that.
In effect the board
has constrained its
own
legislative power.
So, legitimate
expectation should
attach. At the end
of the day, the
parents end up
losing because they
weren’t aware of
the consultation
guidelines and
therefore there was
no
detrimentalreliance
and there could not
have been
legitimate
expectation.Furey v
Roman Catholic
School Board for
Conception Bay
Centre (1991)A
school was closed
without any notice
and parents go to
court saying that
guidelines were
notfollowed, that
they were not given
public notice. Court
said that, since the
board in the past
had usedthe
guidelines for
school closing
decisions, they
should apply. On
appeal, decision
was reversed
sincecourt 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
anoutcome rather
than a procedure,
legitimate
expectation would
not apply:
“legitimate
expectationcreates
procedural, not
substantive
rights”.Attaran v
University of
British Columbia
(1998)Failure by
uni to follow its
consultation policy
as a prelude to
increase student
fees.
legitimateexpectati
on doctrine did not
apply because the
procedure was new
and only used once
previously, itwas
an instruction to
staff not a
representation to
affected
constituencies.
Very few of the
student body knew
about it at the
time.Mount Sinai
Hospital v. Québec
[2001]Minister
promises to
regularize license if
the hospital
relocates. The
hospital relocates,
but the
newMinister
refuses primarily
on the basis that to
issue the license
would be to
commit the govt
toadditional
financial support,
something that was
not in govt’s
priorities. Hospital
seeking
mandamus
to compel the
minister to issue
the revised
licence.SupCt
refused to make the
order bc doctrine of
legitimate
expectation
couldn’t be used to
achievesubstantive
outcomes. CA
accepted this but
ruled that hospital
entitled to revised
license on basis
of public law
estoppel. SCC
(Bastarache)
refused to deal with
issue of public law
estoppel and
legitimateexpectati
on, but case turned
on fact that earlier
ministers had made
decision on basis of
condition
torelocate. This
was decision that
current minister did
not have basis for
overturning (no
evidencesupporting
claim that grant of
licence would
involve any
commitment of
additional funds).
SCC(Binnie and
McLachlin,
concurring)
reached same
solution, but on
basis that minister’s
decision
was patently
unreasonable and
failed to act in
procedurally fair
manner.Binnie J on
doctrine of
legitimate
expectation:
•
Hospital’s
argument that LE
can be used for
both procedural and
substantive
protection is
basedmainly on
English cases. The
Canadian case law
is against this
position.
10
•
Distinction that
English law’s
approach to
doctrine of
legitimate
expectation does
give
substantiveremedie
s, but that’s bc their
doctrine of
legitimate
expectation
performs functions
that in Canada
arekept distinct.
There, policy is not
ordinarily open to
judicial review, but
courts will ask
whether
theapplication of
the policy to an
individual who has
been led to expect
something different
is a justexercise of
power (ie if the
frustration of the
expectation is so
unfair as to be a
misuse of
theauthority’s
power).
•
In Canada this level
of judicial
intervention in govt
policy is
inappropriate
unless it’s a
Charter claim.
•
Canadian cases
differentiate for
analytical purposes
the related
concepts of
proceduralfairness
and the doctrine of
legitimate
expectations.
1)The availability
and content of
procedural fairness
is driven by nature
of the
applicant’sinterest
and the nature of
the power exercised
by the public
authority in
relation to
that interest
.2)Doctrine of
legitimate
expectations looks
at the
conduct
of the public
authority in
theexercise of that
power
including
established
practices, conduct
or representations
that can
becharacterized as
clear, unambiguous
and unqualified.
Expectations must
not conflict withthe
authority’s
statutory remit.
•
The focus is on
promoting
“regularity,
predictability and
certainty in govt’s
dealing w/ the
public.”
•
If the Court is to
give substantive
relief, more
demanding
conditions
precedent must be
fulfilledthan are
presently required
by the doctrine of
legitimate
expectations. Two
such limitations are
:1)Purely
ministerial
decisions on basis
of public policy
give no procedural
protection,
unlessthere is an
abuse of
discretion2)Public
bodies exercising
legislative
functions may not
be amenable to
judicial
supervision.
•
Minister’s decision
here set aside
through ordinary
rules of procedural
fairness, and so
there’s noneed to
resort to doctrine of
legitimate
expectations
(which would only
afford procedural,
notsubstantive,
relief anyway).
Notes
Binnie J concedes
that there would be
cases where it is
difficult to
distinguish
procedural
andsubstantive
rights.We want to
allow minister and
their delegates to
be able to establish
policy of general
nature and
so policy decisions
that when
implemented will
have certain
outcomes will not
be subject to
JR.Whereas
particular
applications of the
policy may be
subject to review or
in certain
circumstance
becategorized as
procedural.Require
ments for
Legitimate
Expectation:1. A
promise or
representation
from a delegate (an
expectation of a
hearing arising out
of
expressrepresentati
ons or a practice of
holding such
hearings or a
combination of the
two)2. To proceed
in a certain
fashion3. (possibly)
Resulting in
detriment when
promise is broken
to a person who
relied on the
promiseDoes not
apply to:1.
Legislative
decision2. Promises
that conflict with
statutory duties4.
Procedural
Obligation Triggers
(Legislative
Decisions and
Emergencies)Com
mon law procedural
fairness rules may
also fail to be
triggered where
there are
emergencies,
andalso where a
decision is said to
be of a “legislative”
nature. Be wary of
the latter; it is a
veryamibguous
concept. In its
clearest form, it
means no
procedural fairness
where an
administrativedecis
ion-maker is
introducing, e.g., a
regulation (that is, a
form of delegated
legislaton). But
a“legislative
decision” means
more than this –
boiled down to its
essence, it can be a
decision that
issufficiently
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
11
appreciate that the
general rule – no
procedural fairness
where decision is
legislative in nature
– isitself 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?
•
Inuit Tapirisat
Cabinet decision
•
Homex Realty

Municipal decision
•
Authorson

Federal legislation
•
Wells v
Newfoundland

Provincial
legislation
•
East York v
Ontario
Provincial
legislationMartinea
u v. Matsqui
Inmate Disciplinary
Board (1980)The
Rule of Thumb
comes from
Dickson J in
Martineau
(followed by L’H-
D in
Knight
):A purely
ministerial
decision, on broad
grounds of public
policy, will
typically afford the
individualno
procedural
protection, and any
attack upon such a
decision will have
to be founded upon
abuse of discretion.
Similarly, public
bodies exercising
legislative
functions may not
be amenable to
judicialsupervision.
CABINET
DECISIONS:Cana
da (Attorney
General) v. Inuit
Tapirisat of Canada
[1980]
•
In 1976, Bell
applied to increase
their rates.
Candaian Radio-
Television and
Telecommunication
sCommission
(CRTC) has
authority to
approve rate
increases and does
so
•
Governor in
Council has
discretion to vary
or rescind such
orders by CRTC.
•
Inuit Tapirisat (IT)
intervened to
CRTC to oppose
part of Bell’s
application. When
case went
toCabinet, IT not
given opportunity
to make submission
on their own
behalf. Minister
dimissedappeal.Cla
ims:
•
IT argue hearing
should have been
given, and had it
been given it did
not comply with
principles
of natural justice.
•
Crown argues that
IT had already had
opportunity to
make submission to
Bell and CRTC.
Also,decision of
Cabinet was of
legislative nature,
and statutory
provisions did not
provide
proceduralsafeguar
ds and so no
protections were
owed as a matter of
law.Issue:
•
Does the Governor
in Council have a
duty to observe
natural justice, or
even a duty of
fairness,when
reviewing
regulatory
decisions?Holding:
•
NO
(Canada/CRTC/Bel
l wins)Estey J for
the SCC:
•
Court is to look at
the statutory
provisions for
procedural
requirements for
Cabinet to
providenotice to
groups such as IT.
•
Statute delegates to
CRTC the function
of approving rate
hikes with
directives on
standards to
beapplied.
Secondary
delegation of this
function is to the
Governor in
Council, but
without any
12
standards or
guidelines.
•
Cabinet’s decision
to give a hearing to
IT is not an
obligation, but a
discretion that can
be taken.This b/c
Cabinet is at the
high end of policy
making spectrum.
Also b/c this kind
of decision is
a political-policy
one since it will
potentially affect
all inhabitants of
Canada and must
factor competing
interests
•
To provide hearing
to reps of Inuit T
would mean
potentially to
provide hearing to
anyone
andeveryone with
complaint for the
rate increase.
•
The duty to observe
procedural fairness
need not be
express, but this
doesn’t mean it will
beimplied in every
case.
•
Statute gives
Governor in
Council complete
discretion provided
he observes its
jurisdictional boun
daries, this means
there is no need to
hold any kind of
hearing or even
acknowledge the
receiptof a
petition.Considerati
ons would be
different if the
executive had been
assigned a function
performable in
past by Parl. itself
and the subject-
matter is not an
individual concern
or a right unique to
the
petitioner.Where
the executive has
been delegated a
legislative function,
and it’s not aimed
at particular
cases,there is no
ground on which
the common law
should supply
procedural
fairness. NB:-
Rulemaking and
discretionary
powers are not
subject to
procedural
fairness-
Discretion
exercised by
Cabinet not
subject to
procedural
fairness (
NAPO
)-Certain sort of
broad, policy-
based discretion
are excluded from
procedural fairness
(
NAPO
)MUNICIPAL BY-
LAWHomex
Realty and
Development Co.
Ltd. v. Wyoming
(Village) [1980] 2
SCR 1011 (Ont.)
•
Dispute between
municipality and
Homex about
obligation to install
services in
subdivision
owned by H and
who would pay for
the services.
•
The municipal
authority passed a
by-law that made it
impossible for
Homex to sell any
of its parcelsof land
without the consent
of the Municipal
Council (Homex
not allowed it to
convey (ie
alienate) property.
The by-law was
passed subject to
Planning Act
.
•
Important to note
that this wasnt by-
law that affected
the entire
municipality but
exclusively thesub-
division where
Homex was devg
lots for
sale.Claims:
•
Homex sought
judicial review the
By-law. What they
complained of,
amongst other
things, was thatthe
effect of the By-
law was tantamount
to an expropriation
(or quasi-
expropriation) and
the loss of an
important
entitlement of it.
Homex compained
that they were
neither given notice
nor opportunity to
appear before
council to dispute
the by-law.
•
Municipality
argued that had
they given Homex
notice, H would’ve
built in
checkerboardingma
nner. This would
have precluded the
municipality from
in effect passing a
by-law which
wouldhave affected
Homex and the
area it planned to
develop.Issue:
•
Was Homex
entitled to hearing
given By-laws
expropriating
effect?Holding:
•
NO. (Municipality
wins and By-law is
upheld)EsteyJ for
the majority
(Laskin CJ,
Martland, Beetz
and Chouinard JJ):
•
Homex not entitled
to relief bc of the
inconsistent and
evasive conduct of
its principals.
•
However, under
normal
circumstance, the
Council should
provide prior
notice. I.E.
PASSAGE
OFMUNICIPAL
LAW IS SUBJECT
TO A DUTY OF
FAIRNESS
13
•
While the passage
of the by-law
stripped Homex of
its right of
conveyance, it is
also clear that
the balance of the
township may also
be affected by the
action of Homex if
they are successful
inavoiding the
consequences of
the by-law. So
there are competing
private and public
interests at play.
•
Concludes that
action taken by the
council was not in
substance
legislative but
rather
quasi-
judicialin character
so as to attract the
principle of notice
and the
consequential
doctrine of
audi
alteram partem
.
•
Agrees w/ Dickon
that hearing
requirement was
not satisfied but
argument about
conduct
wasacceptedDissen
t of Dickson J (and
Ritchie J):
•
Cml recognizes that
before a public
body can limit or
abrogate the
property right of
citizens, it
mustgive the
individuals
concerned the right
to be heard. This is
long-standing
principle of PF.
•
Where statutory
body seeks to limit
property rights,
Courts will imply
the right to be
heard unlessthere is
an express
declaration to the
contrary. No such
declaration here,
Homex should have
beenheard.
•
The Municipality
argues that it was
exercising a
‘legislative
function.’ Dickson
J disagrees.
Theright to a
hearing does not
spring from there
being competing
groups, but from
the fact that the by-
law interferes with
the property rights
of one owner. The
presence of a
compelling public
interestdoesn’t
diminish the
citizen’s right to
procedural
protection. If
anything, public
interest is
bestserved by
giving private
interests full
disclosure and fair
opportunity to be
heard.
The act cannotbe
labeled ‘legislative’
for the purpose of
dispensing with
fairness and
procedure.
•
It is unnecessary to
classify a process
as judicial or
quasi-
judicial to
establish a right to
proceduralfairness
(based on
Martineau
and
Re Nicholson
). Once it is clear
that rights are being
affected, it
isnecessary to
determine the
appropriate
procedural standard
that must be met by
the statutory
body.This analysis
requires flexibility
(ie nature of the
funcation and facts
of each
case).Homex
entitled to some
procedural
safeguards – at a
miniumum to be
given notice of the
proposed by-law
and the opportunity
to be
heard.Comments:
•
Take from this case
that By-law is
legislative in nature
(subset of law).
Nevertheless, in
this case,the court
found that
procedural
fairness was owed.
•
The crucial point in
the
Homex
decision is that the
municipality had
made a policy
decision that hadan
immediate and
specific target. This
suggests that
where a by-law or
subordinate
legislation of a
more general
character is being
enacted, claims to
procedural
entitlements even
by thoseaffected
immediately may
be either
diminished or
eliminated.
•
Unlike
Inuit
, here we have
something that
looks like acts of
retainder (where
law is done to
affectsomeone in
particular).POLIC
Y
MAKING/PUBLIC
INTEREST
GROUPSWhere
does the exclusion
of decisions of a
“general” as well as
a “legislative”
nature have its
bite?Serves to deny
claims to
procedural
protections in
relation to certain
species of broad
based
policydecision.
When the impact of
the decision is
diffuse, affecting a
broad spectrum of
the public in
agenerally
undifferentiated
manner, claims to
participatory rights
are hard to
justify,Sea
Shepherd
Conservation
Authority v The
Queen (1984)Court
rejected a public
interest group claim
to a hearing for a
decision to
undertake a wolf
kill program.Sierra
Club of Western
Canada v The
Queen (1984)
14
Court rejected a
public interest
group claim to a
hearing for the
grant of permits to
cut timber.-
Interesting – public
interest groups
don’t have a right
but the wolf
hunters and
timber merchants/l
umberjacks
do.Vanderkloet v
Leeds & Grenville
(1985)School board
reorganized three
elementary schools
(older kids to 2
schools and
younger to the
other).Minster of
Education had
issued guidelines re
closing of schools
that required public
consultation.Board
had prepared
policies and a
policy statement
that required board
to make alternative
optionsknown to
community before
making decision.
Group of ratepayers
challenged decision
to reorganise.Court
of appeal said that
reallocation was
not a school
closing. Re
procedural fairness
claim Courtheld
that the board
acting in good faith
within its statutory
authority has
complete power
over reallocation of
students within
district and is not
affecting legal
rights of any
person. Court
notsatisfied that
principles of
procedural fairness
apply to board of
education, an
elected public
body,who in good
faithand within
jurisdiction
assigned to it by
legislature resolves
to reallocate
student body within
its district.Bezair v.
Windor Roman
Catholic Separate
School Board
(1992), 9 OR (3d)
737 (Div. Ct.)
•
School board
closed 9 schools in
face of financial
crisis.
•
Contrary to
ministerial
guidelines and
boards’ own policy
on closings, parents
and studentsgiven
no opp to input into
decision before it
was made (some
consultation after).
•
Court did hold that
the ministerial
guidelines were not
technically
subordinate
legislation andthus
not strictly binding
on the board but
then Court said
there was a level of
fairness
thatapplied.
•
Since neither
Minister’s nor
board’s own
procedural
guideline followed
there was a denial
of procedural
fairness
•
Public consultation
is condition
precedent to a valid
decision.
•
Elliott v Burin
Peninnsula School
District
(1988)Court of
Appeal decided
closing of school
was an
administrative
function that
attracted rules
of procedural
fairness. No
ministerial policy
or internal school
district policy
setting out
procedures!REGU
LATED
INDUSTRIES
AND
PRODUCERSCana
dian Association of
Regulated
Importers v.
Canada (AG)
[1994]
•
ministerial decision
changing quota
distrivution system
for importation of
hatching eggs
andchicks.
Impacted
significantly on the
historic importers.
•
Lower court said
Minister in
deciding how to
allocate import
quota was
exercising a
staturoty power
which had been
delegated to him.
Although decision
was general, it was
general onlyfor a
small segment of
population and, in
application, very
particular. Cause a
lot of economic
harm to the
applicants. Implied
principle that
legislature intended
powers to
beexercised in acc
with admin law
rules of fairness.
Present
jurisprudence says
that it
isn’tnecessary to
find a “right” that
exists but sufficient
if applicant
demonstrates an
“interest”which
justifies him
bringing a judicial
review. Not
convinces that
classifying a
decision as being of
a “policy” nature
necessarily
immunizes it from
judicial review. For
same
reason,classifying
decision as
“legislative” is not
useful either. Saud
historic importers
not
guivensufficient
procedural
protections and
ordered that they
continue to get
their old
entitlementsuntil
matter was re-
evaluated in light
of their
submissions.
•
HOLDING (CA)
15
•
CA reversed
decision and said it
was policy making
and was akin to
legislation—no
right tomake
submissions
•
Held principles of
procedural fairness
are not applicable
to quota policy
although they may
beto individual
decisions
respecting grants of
quotas.
“traditionally a
decision has
beenclassified as
being of a
legislative nature if
it sets out general
rules which apply
to a largenumber of
persons. This is
counterpoised to a
decision respecting
one specific
individual”.
o

Suggests that the

broader the affected
group, the more
likely to be a
legitimate policy
decision. (from
dissent in Homex)
•
Statute did not
indicate that
procedural fairness
was intended
o

No indication in
statute that public
consultation is
required.
o

What applicant is
seeking is a public
consultation
process – not
contemplated
bystatute5.
Procedural
Obligation Triggers
(Charter & Bill of
Rights) Now we
turn to the triggers
for another source
of procedural
obligations: Charter
s.7 and Bill
of Rights. A first
observation on the
Charter. This is
administrative law,
not constitutional
or criminallaw. It
will almost always
be wrong in an
administrative law
exam to discuss
Charter rights
other than section 7
– you are not being
examined on s.11
rights or s.2 or s.15.
(Section 11(d) for
instancealmost
never applies to
administrative
bodies, unless the
criteria for its
application are met
by, for example,
the existence of
contempt
powers).But with
section 7, the
situation is
different because
this provision does
impose the
requirement
toobserve
“fundamental
justice” – a concept
with procedural
content – on at least
some
administrativedecis
ion-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-
makingrelates 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 towhom 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)
andnote the extent
to which they are
the same and differ
from Charter s.7.
Above all,
recognize thatthese
two provisions
have their own
triggers that have to
be satisfied before
they apply at
all.Canadian bill of
rights applies to the
“laws of Canada” –
includes Acts of
Parliament and any
order,rule or
regulation
thereunder and any
law n force in
Canada – Section
5(2). Probably
includesdecisions
and actions taken
by those deriving
their powers from
federal law.
Probably doesn’t
extendto activities
of bodies whose
functioning is made
possible under
facilitative
legislation such as
theCanada
Business
Corporations
Act.The Canadian
Charter of Rights
and Freedoms
applies throughout
Canada. But not
coterminus
with judicial
review. Sec 32(1)
means its
application is
restricted to
Parliament and
Government
of Canada and the
legislatures and
government of
provinces. Supreme
Court holds this to
be
controlling provisio
n and effect is to
restrict Charter’s
application in
admin law arena to
bodies or activities
thatcan be brought
within the concept
of
“government”McKi
nney v University
of Guelph
[1990] Notwithstan
ding statutory
status, universities
were not
government and not
generally amenable
to theCharter, even
with respect to
actions and
decisions that
would expose them
to judicial review.
16
Same holds true for
BC Hospital
Boards (Stoffman v
Vancouver General
Hospital) but not
BCcommunity
colleges
(FDouglass/Kwantl
en Facility v
Douglas College)
so the dividing line
betweenwhat is
“government” is
not clear.Section 7
of Charter:
7. Everyone has the
right to life, liberty
and security of the
person and the right
not to be
deprived thereof
except in
accordance with the
principles of
fundamental justice.
Section 1(a) of Bill
of Rights:
It is hereby
recognized and
declared that in
Canada there have
existed and shall
continue to
exist without
discrimination by
reason of race,
national origin,
colour, religion or
sex, the
following human
rights and
fundamental
freedoms, namely,
•
(a) the right of the
individual to life,
liberty, security of
the person and
enjoyment of
property,and the
right not to be
deprived thereof
except by due
process of law;
Section 2(e) of Bill
of Rights:
2.
Every law of
Canada shall,
unless it is expressly
declared by an Act
of the Parliament of
Canadathat it shall
operate
notwithstanding
theCanadian Bill of
Rights ,be so
construed and
applied as not to
abrogate, abridge
or infringe or to
authorize the
abrogation,
abridgment or
infringement of any
of the rights or
freedoms herein
recognized and
declared, and in
particular, no law
of Canada shall
beconstrued or
applied so as to
•
(e) deprive a person
of the right to a fair
hearing in
accordance with the
principles
of fundamental
justice for the
determination of his
rights and
obligations;
Supreme Court has
held that “life,
liberty and security
of the person”
under Charter only
applies tonatural
persons and not
corporations Irwin
Toy v Quebec. Not
clear if that applies
to Bill of
Rights persons/indi
viduals.S7 of
Charter deliberately
does not include
protection for
“property rights”
but they are within
Bill
of Rights.Authorso
n v. Canada
[2003]Question of
procedural
protections in ss
1(a) and 2(e) of Bill
of Rights would
only apply to
legislative proceedi
ng or whether they
were subject to a
threshold similar to
that established for
common
law procedural
fairness in Inuit
TapirisatFacts:
•
Authorson
represents class of
disabled vets who
received pensions
and other benefits
from theCrown.
•
Dept of Veterans
Affairs
administered the
funds but did not
invest them or put
them in
interestaccounts
•
Parliament passed
the DVA Act
s.5.1(4) which
explicitly limited
the Crown’s
liability for
pastinterests and
stripped veterans of
entitlement to claim
damages for
Crown’s failure to
divestinterests.Clai
ms:
•
Crown breached
fiduciary duty to
vets by not placing
the monies in
interest-bearing
accounts.
17
•
s.5.1(4) bar was
inoperative under
the
Canadian Bill of
Rights
Major J for the
SCC:
* What “due
process” is
guaranteed by
s1(a) of Bill of
Rights when
property rights
areextinguished?
Veterans argued
there were 3:
•
Procedural rights
before parliamentry
enactment of law
•
Procedural rights
before application
of a statute to his
individual circs
•
Substantive
protections against
govt expropriation
of his property
Procedural rights
before parliamentry
enactment of law
Only procedure due
any citizen of
Canada is that the
proposed
legislation receive
3 readings in
Senateand House of
Commons and that
it receive Royal
assent.Court cannot
compel parliament
to change its
legislative
procedures based
on the Bill of
Rights.
Procedural rights
before application
of a statute to his
individual circs
Bill of rights
guarantes notice
and some
opportunity to
contest a govt
deprivation of
property rightsonly
in the context of an
adjudication of that
persons rights and
obligations before a
court or
tribunal.Where the
law requires
application of a
discretion or
judgement to
specific factual
situations,
noticeand an
opportunity to
contest may be
required. However,
notice and an
opportunity to
contest are
notrequired where
the govt legislates
to completely
eliminate such
benefits. This
situation is a non-
discretionary
application of law
to incontestable
facts.
Substantive
protections against
govt expropriation
of his property
Bill of Rights does
not protect against
expropriation of
property by passage
of
unambiguouslegisla
tion.
* s2(e) of the Bill of
Rights
S2(e) only applies
to guarantee the
fundamental justice
of proceedings
before any tribunal
or administrative
body that
determines
individual rights
and obligations.
This is more
obvious when
youexamine the
other guarantees of
s 2. (e.g.
protections against
arbitrary detention,
right against
self incrimination,
presumption of
innocence, right to
an impartial
tribunal) – all of
which are legal
rightsapplicable in
the context of, or
prior to, a hearing
before a court or
tribunal.S2(e) does
not impose a duty
on parliament to
provide a hearing
before enactment of
legislation.Singh v.
Minister of
Citizenship and
Immigration,
[1985]Impact of s7
of Charter on
administrative
processesFacts:
•
S was one of
several convention
refugee claimants.
Following the
procedure then in
place, theminister
had determined that
they were not
convention
refugees.
•
They appealed the
decision, but the
Immigration
Appeal Board didnt
refer their cases to
an oralhearing
•
Appealed again to
FCA alleging the
statutory scheme
infringed on s.7 of
the Charter. They
failed.
•
At SCC made oral
arguments on
Charter case, and
then asked to make
written submissions
onwhether the
statutory scheme
was consistent with
s.2(e) of the Bill of
Rights.
18
Issue:
•
Was the statutory
scheme consistent
with s.7 of the
Charter? NO.
S entitled to s.7
fundamental justice
.
•
Was the statutory
scheme consistent
with s.2(e) of the
Canadian Bill of
Rights?Wilson J
(Charter):The
Scheme of the
Immigration Act,
1976
•
The Act does
provide Convention
refugees with
certain limited
rights to enter and
remain inCanada.
•
The problem passes
on to the
procedures for
determining if
someone is a
Convention
refugee.
•
s.45(4) of the Act
does not envisage
an opportunity for
the refugee
claimant to be
heard other
thanthrough his
claim and the
transcript of his
examination under
oath. The
Committee that
reviews andis the
decision-maker is
therefore isolated
from the persons
whose status it is
adjudicating and
itmakes use of
information and
applies policies to
which the claimant
has no access.
•
Substance of
appellants’
argument is that
they did not have a
fair opportunity to
present
their refugee status
claims or to know
the case they had to
meet. But these are
the procedures and
theywere followed
correctly.
•
For appellants to
succeed it must be
on the basis that the
Charter requires the
Court to
overrideParl’s
decision to exclude
the kind of
procedural fairness
that they
seek.Application of
the Charter
•
s.7 applies to
“everyone” – that
is, every human
being who is
physically present
in Canada.
•
Appellants have 3
rights under the
Immigration Act,
1976
1)Right to a
determination from
the Minister on
whether he can
enter and remain in
Canada2)Right not
to be returned to a
country where his
life or freedom
would be
threatened3)Right
to appeal a
removal order or a
deportation order
made against him
•
Question then
becomes whether
the deprivation of
one of these rights
constitutes a
violation of thes.7
right to “life,
liberty and security
of the person”.
•
Note that even if
s.7 is a ‘single
right’, a violation
of any of the 3
components (life,
liberty, securityof
the person) is a
violation of s.7.
•
Wilson concludes
that a denial of the
rights possessed by
a Convention
refugee under the
Act to not be
removed from
Canada to a
country where his
life or freedom
would be
threatened
constitutes
adeprivation of his
security of the
person.
•
But the appellants
cannot access the
rights of
Convention
refugees. Their
claim is that they
areentitled to
fundamental justice
in the
determination of
whether they are
Convention
refugees or not.
•
Given the
potential
consequences
for the appellants
of a denial of that
status if they are in
fact persons with a
well-founded fear
of prosecution, they
are entitled to
fundamental justice
in theadjudication
of their status.
•
Do the procedures
for the
determination of
refugee status
under the Act
accord with
fundamental justice
? i..e do they
provide an
adequate
opportunity for a
refugee claimant to
state his case
andknow the case
he has to meet.
•
While
procedural
fairness may
demand different
things in different
contexts
, i.e. Judge
is prepared to
accept that written
submissions may
be adequate
substitute for an
oral hearing
inappropriate
circumstances..
However, where a
serious issue of
credibility in
involved,
fundamental justice
requires that
credibility be
determined on the
basis of an oral
hearing.
•
The procedural
scheme does not
provide adequate
opportunity for
refugee claimant to
state his caseand
know the case he
has to meet
(“Applicant is
entitled to submit
whatever relevant
material hewishes
to the Board but
still faces hurdle of
having to establish
to the Board that on
the balance
of probabilities the
Minister is wrong.
Moreover, he must
do this without any
knowledge of
theMinisters case
beyond the
rudimentary
reasons which the
Minister has
decided to give him
inrejecting his
claim.”) This
aspect of the
procedures set out
in the Act is
impossible to
reconcilewith the
requirements of
“fundamental
justice” as set out
in s.7.
•
The breach is such
that it cannot be
saved under s.1
(“The
Canadian Charter
of Rights and
19
 Freedoms
guarantees the
rights and freedoms
set out in it subject
only to such
reasonable
limits prescribed by
law as can be
demonstrably
justified in a free
and democratic
society.”). “The
issuein the present
case is not simply
whether the
procedures set out
in the Immigration
Act for
theadjudication of
refugee claims are
reasonable, it is
whether it is
reasonable to
deprive the
appellantsof the
right to life liberty
or security of the
person by adopting
a system for the
adjuidication
of refugee status
that does not
accord with the
principles of
fundamental
justice.”
Utilitarianconsidera
tions cannot
constitute a
justification for a
limitation on the
rights set out in the
Charter.I.e. balance
of administrative
convenience
doesn’t override the
need to adhere to
principles
of fundamental
justice.Beetz
(concurring) (Bill
of Rights):
•
Agrees with Wilson
majority that
appeals should be
allowed. But on the
basis of the Bill of
Rights.
•
Appellants’ refugee
claim involves the
determination of
rights and
obligations for
which they
have,under s.2(e),
the right to a fair
hearing in
accordance with the
principles of
fundamental justice
•
They were not
afforded such a fair
hearing. They were
denied their claims
without their
having been
afforded a full oral
hearing at a single
stage of the
proceedings.This
does not mean that
the principles of
fundamental justice
will always require
an oral hearing.
Butdetermining this
requires looking at
the nature of the
legal rights at issue
and the severity of
theconsequences to
the individuals
concerned.
•
The most important
factors in
determining the
procedural content
of fundamental
justice in a
fivencase are the
nature of the legal
rights at issue and
the severity of the
consequences to the
individualsconcern
ed.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. s7
doesn’t always
require an oral
hearing2. 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 beinvoked
in justification of
s.7 violations.
Court held in
Kindler that
Minister hadn’t
breached principles
of fundamental
justice in the
procedures adopted
in deciding whether
to grant
theextradition
request from
foreign govts.
Arena for judicial
type procedures is
at the actual
extraditionhearing
and no need to
replicate at the
surrender
stage.Chiarelli v
Canada
[1992]Authorities
moved to deport
Chiarelli, a
permanent resident,
on grounds he had
committed
seriouscriminal
offense rendering
him inadmissible
under Immigration
Act. Security
Intelligence
ReviewCommittee
recd a report from
Solicitor General
and Minister for
Immigration saying
he would
beinvolved in
organized crime if
he stayed. SIRC
was required under
the Act to
investigate report
and if SIRC upheld
it, the governer in
council had power
to direct Minister
for Immigration to
issue acertificate
precluding
Chiarelli from
appealing
deportation
order.Chiarelli
challenged
constitutionality of
his deportation
order. Said the
rules of procedure
adopted bySIRC
allowed them to
exclude him when
govt witnesses
giving evidence
and limit his ability
to
crossexamine.Sopi
nka held that if
there was a
deprivation of his
liberty or security
of the person, it
was in acc
with principles of
fundamental
justice. In assessing
whether a
procedure complied
with principles
of fundamental
justice, necessary
to balance
competing interests
of state and
individual.
20
Chiarelli had been
given docs
summarizing
information that
SIRC received
from ministers and
thagegave him
sufficient info to
know the substance
of the allegations
against him and to
allow him to beable
to
respond.Charkaoui
v. Canad a (Minister
of Citizenship and
Immigration) ,
2007In 2003, Adil
Charkaoui, a
permanent resident
in Canada, was
arrested and
imprisoned under a
security certificate
issued by
the Solicitor
General of
Canada(thenWayne
Easter
) and the Minister
of Immigration(the
nDenis Coderre)
Hassan
AlmreiandMohame
d Harkat are
foreign national
who were
granted refugeestat
us in Canada. Both
arrested on a
security
certificate.All three
detained pending
completion of
proceedings for
their
removal.Immigrati
on and Refugee
Protection Act
(IRPA) said first
step on proceedings
was for a federal
judgeto review the
certificates to
determine if
reasonable. Review
was conducted in
camera (private)
andex parte
(emergency
hearing) as request
of minister.
Individuals had no
right to see the
materials onthe
basis of which the
certificate was
issued. Non-
sensitive material
could be disclosed
but
sensitivematerial
could not if
minister objected.
Reviewing judge’s
decision that a
security cert
wasreasonable was
final and could not
be
appealed.Constituti
onality of
certificate was
challenged
including on basis
that the procedure
to determine
thereasonableness
of certificates
violated s7
rights.McLaughlin
CJ:S7 requires not
a particular type of
process but a fair
process having
regard to the nature
of the proceedings
and the interests at
stake. Procedures
required to meet
the demands of
fundamental justice
depend on the
context. Societal
interests may be
taken into
account.S7 not
concerned with
wither the limit on
life, liberty or
security of the
person is justified
but whether that
limit has been
imposed in a way
that respects the
principles of
fundamental
justice.So threat to
national security vs
the serious
individual interests
at stake.Principle of
fundamental justice
that applies here is
that before the state
can detain people
for significant
periods of time, it
must afford them
fair judicial
process. A number
of facets:1. right to
a hearing,2. before
an independent and
impartial
magistrate3.
decision by the
magistrate on the
facts and the law4.
right to know the
case put against
you5. right to
answer that
case.IRPA meets
the requirement of
independence and
impartiality but did
not provide for the
judge tomake a
judicial decision
based on facts and
law and did not
afford individuals
an opp to meet case
putagainst them
and question or
counter it.Case to
meet:Certificate
scheme places great
emphasis on
confidentiality. So
Judge may have to
consider info thatis
not included in the
summary of
information
provided to the
individual. So the
individual
mayknow nothing
of the case to meet,
although
technically
afforded an opp to
be heard, may be
left in the position
of having no idea
of what needs to be
said.
21
Right to know case
to meet is not
absolute. Statute
sometimes provides
for in camera
(private) and
ex parte
(emergency)
hearings. Also
Court has
recognised that
national security
considerations can
limitthe extent of
disclosure of info
to the affected
individual see
Charelli and
Ruby.In some
contexts,
substitutes for full
disclosure may
permit compliance
with s7, Rodgers
Courtupheld ex
parte hearings for
applications to take
SNA samples from
listed multiple
offenders
ongrounds that the
protections put in
place by Parliament
were sufficient.
Chiarelli Court
upheld lack
of disclosure on the
vais that the info
disclosed by way of
summary and the
opp to call
witnesses andcross
examine police
witnesses who
testified in camera
satisfied
requirements of
fundamental
justice.Ruby court
held that substute
measures provided
by Parliament
satisfied the
procedural
requirementsof
fundamental
justice.But the
limited disclosure
or ex parte hearings
found to have
satisfied
requirements of
fundamental justice
have less intrusion
on liberty and
security of the
person than IRPA.
One thing to deny
fullinformation to
take a fingerprint,
another to do so
when consequences
are removal from
country
or indefinite
detention.In this
case, not given full
info and there is no
substantial
substitute. Under
IRPA only
protection isreview
by a judge to
determine if cert is
reasonable. But
contraints imposed
on IRPA cannot
fillvacuum left by
removal of
traditional
guarantees of a fair
hearing. Can only
see what the
ministers put before
him – can’t id
errors or omissions
or assess credibility
and truthfulness the
way theindividual
could. Judge is
prevented from
asking questions of
the individual if
that might disclose
the protected
info.IRPA’s
procedure fore
determining if a
certificate is
reasonable does not
conform to
requirements
of fundamental
justice.
Charkaoui v.
Canada
(Citizenship
and
Immigration),
2007 SCC 9
ThemeSC
procedures,
detention of PRs
and FNs under the
IRPAFactsThe
IRPA allows for
SCs to be issued
declaring that a
FN or PR is
inadmissible to
Canadaon
grounds of
security, leading to
that person’s
detention. The
certificate and
detention canbe
reviewed in a
process which may
involve non-
disclosure of some
or all the “sensitive
or confidential”
information that
forms the basis of
the certificate (i.e.
in camera
and
ex parte
)and the judge
may rely on it.
Once a certificate
is issued, a
permanent
resident may
bedetained, and
the detention must
be reviewed within
48 hours; in the
case of a
foreignnational, the
detention is
automatic and that
person cannot
apply for review
until 120 daysafter
a judge
determines the
certificate to be
reasonable (ss.
82 84). The
judge’sdeterminati
on on the
reasonableness of
the certificate
cannot be
appealed or
judiciallyreviewed
(s. 80(3)). If the
judge finds the
certificate to be
reasonable, it
becomes a
removalorder,
which cannot be
appealed and which
may be immediately
enforced.Charkaoui
is a permanent
resident and
Harkat and Almrei
are refugees; at
the time of
thedecisions on
appeal, all had
been detained for
some time — since
2003, 2002 and
2001respectively.
H and A’s SC have
been determined to
be reasonable, not
yet C’s. C and
Hwere released
conditionally in
2005 and 2006
respectively. A is
still in detention
and will
bedeported. In all
cases, the
detentions were
based on
allegations that
the
individualsconstitut
ed a threat to the
security of Canada
due to involvement
in terrorist
activities.Reasoning
•
Summary:
The IRPA
unjustifiably
violates s. 7 of the
Charter
by allowing the
issuanceof a
certificate of
inadmissibility
based on secret
material without
providing for
anindependent
agent at the stage
of judicial review to
better protect the
named
person’sinterests.
Also, some of the
time limits in the
provisions for
continuing
detention of
aforeign national
violate ss. 9
(“Everyone has the
right not to be
arbitrarily detained
or imprisoned.”)
and 10(c) because
they are arbitrary
(“Everyone has the
right on arrest
or detention... (c) to
have the validity of
the detention
determined by way
of habeas
corpusand to be
released if the
detention is not
lawful.”). Section 12
(“Everyone has the
right
22
not to be subjected
to any cruel and
unusual treatment
or punishment.”)
has not beenshown
to be violated since
a meaningful
detention review
process offers relief
againstthe
possibility of
indefinite detention.
There is no breach
of the s. 15 equality
right.
Issue A.
Does the
procedure under
the IRPA for
determining the
reasonableness of
thecertificate
infringe s. 7 of the
Charter
, and if so, is the
infringement
justified under s. 1
of the
Charter
?
Yes. It is not
justified.
•
Section 7 is clearly
engaged because
the person named
in SC faces
detention
andpossible
deportation to a
place where he
might be tortured
(not yet proven).
Procedurefor
determining
reasonableness of
a certificate is not in
accordance with
PFJ as it doesnot
assure a fair
hearing, which is
required to deprive
someone of s.7
rights.
•
Security concerns
cannot be used to
excuse procedures
that do not conform
with thePFJ. That
is the bottom line.
The context in this
case is the
detention of PRs of
FNs,incidental to
their removal, in
light of security
concerns. However
the context may
havechilling
consequences for
the detainee so
procedures must
accord with PFJ.
•
The right to a fair
judicial process
involves 1) a
hearing; 2) which
takes place before
an
independent and
impartial
magistrate
; 3) who must
decide on the
facts and the law
, and4) the right to
know the case
put against one,
and 5) the right to
answer that case
. Thesecrecy of the
IRPA does not
allow for 3, 4, and
5.
•
The person named
is unable to
participate in
proceedings that
characterize
theadversarial
process and the
judge may end up
making the decision
without all
relevantevidence
(i.e. the person’s
response to
government
evidence).
Furthermore,
w/oknowledge of
the information put
against him, the
person named in a
certificate may
notbe in a position
to raise legal
objections relating
to the evidence, or
to develop
legalarguments
based on the
evidence.
•
The infringement is
not saved as the
IRPA does not
minimally impair
the rights of
theperson named.
Less intrusive
alternatives
developed in
Canada and
abroad, notably
theuse of special
counsel to act on
behalf of the
named persons,
illustrate that
thegovernment can
do more to protect
the individual while
keeping critical
informationconfiden
tial
Issue B.
Does the detention
of permanent
residents or foreign
nationals under the
IRPAinfringe ss. 7,
9, 10(c) or 12 of
the
Charter
, and if so, are the
infringements
justified under s.1
of the
Charter
?
Not the
detention, but the
lack of review for
120 days for
foreignnationals
infringes ss. 9 and
10(c), and is not
justified.
•
The security
grounds based on
the danger posed
by the person
provides
rationalgrounds for
detention.
•
However, the lack
of review of the
detention of foreign
nationals until 120
days after
thereasonableness
of the SC has been
judicially confirmed
(s. 84(2)) infringes
theguarantee
against arbitrary
detention in s. 9 of
the
Charter
, which
encompasses
theright to prompt
review of detention
under s. 10(c) of the
Charter
. While there may
be aneed for some
flexibility regarding
the period for which
a suspected
terrorist may
bedetained, this
cannot justify the
complete denial of
a timely detention
review.
•
This is not justified
under s.1.
Permanent
residents are
provided review
within 48 hours,so
the 120 day delay
does not minimally
impair ss. 9 and
10(c) rights.
•
Re Extended
periods of
detention:
Extended periods of
detention pending
deportationunder
the certificate
provisions of the
IRPA do not violate
ss. 7 and 12 (cruel
andunusual
punishment) of the
Charter
if accompanied by
regular
opportunities for
reviewof detention,
taking into account
all of the relevant
factors, including
the reasons
for detention, the
length of the
detention, the
reasons for the
delay in
deportation,
theanticipated
future length of
detention, if
applicable, and the
availability of
alternatives
todetention
•
This does not
preclude a judge
finding that a
particular detention
constitutes cruel
andunusual
punishment.
Issue C.
Do the certificate
and detention
review procedures
discriminate
between
citizensand non-
citizens, contrary to
s. 15 of the
Charter
, and if so, is the
discrimination
justifiedunder s. 1
of the
Charter
?
No.
23
•
Since s. 6 of the
Charter
specifically
provides for
differential
treatment of
citizens andnon
citizens in
deportation matters,
a deportation
scheme that applies
to non citizens,but
not to citizens, does
not for that reason
alone infringe s. 15
of the
Charter
. Eventhough the
detention of some
of the appellants
has been long, the
record does
notestablish that the
detentions at issue
have become
unhinged from the
state’s purpose
of deportation.
Issue D.
Is the rule of law
infringed by (1)
the unavailability
of an appeal of
the
SCreasonableness
decision; or (2) the
provision for the
issuance of an
arrest warrant by
theexecutive in the
case of a
permanent
resident, or for
mandatory arrest
w/o a
warrantfollowing an
executive decision
in the case of a
foreign national?
No.
•
First, there is no
constitutional right
to an appeal, nor
can such a right be
said to flowfrom the
rule of law in the
present context.
•
Second, the rule of
law does not
categorically
prohibit automatic
detention, or
detentionon the
basis of an
executive decision,
and the
constitutional
protections
surroundingarrest
and detention are
set out in the
Charter
.
Remedy
•
The IRPA’s
procedure for the
judicial approval of
certificates is
inconsistent with
the
Charter
, and hence of no
force or effect. This
declaration is
suspended for one
year from the date
of this judgment. A
new process must
be devised.
•
If the
reasonableness of
C’s SC is reviewed
in this year, the old
process will be
used. After one
year, H and A’s
“reasonableness”
status will be lost
and they can apply
for thecertificates to
be quashed.
•
Section 84(2),
which imposes a
120 day embargo
on review for
foreign nationals,
isstruck, and s. 83
is modified so as to
allow for review of
the detention of a
foreignnational both
before and after the
certificate has been
deemed
reasonable.Comme
nts
Is the limit justified
by S1 of the
Charter?Oakes test:
(R v Oakes [1986])
requires a pressing
and substantial
objective and
proportional
means.A finding of
proportionality
requires:(a) means
rationally
connected to the
objective(b)
minimal
impairment of
rights(c)
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
clearedadvocates to
appear for
individuals
Therefore, IRPA
procedures do not
minimally impair
rights – therefore
unconstitutional.EC
ONOMIC
WELLBEING/
MENTAL AND
PHYSICAL
WELLBEINGS7
specifically
excludes property
rights but are there
species of
economic interest
that
transcendconcepts
of property and
achieve protected
status. To what
extent is economic
well being an
aspect of “life” and
“security of the
person”.Extent to
which s7 can be
involed on relation
to administrative
regimes that have
an impact on
themental and
physical wellbeing
of those involved
as well as their
reputationsWilson
v. British Columbia
(Medical Services
Commission)
(1988)Facts:
24
Drs bill govt for
treatment given to
patients.
Commission
developed scheme
for limiting
numbers
of practising drs
and restricting
geographic area of
their practice so
they could control
the total cost
of health services
and the ensure even
spread of drs in
BC.Re Mia scheme
challenged and
judge found that
commission was
not authorised by
legislation
remedical services.
Some rights
including right to
work and practise a
profession are so
fundamentalthey
must be protected
event if they
include an
economic
element.Govt
enacted legislation
under which
regulations were
passed
implementing the
previous scheme
andthere was
another
challenge.Issue:Wh
ether “liberty” in s7
is broad enough to
encompass the opp
to be a qualified
and licensed doctor
to pratice medicine
in BC without
constraint as to
place, time or
purpose even
though there is
anincidental right
being
asserted.Court:Reg
ulation of our
activities is
commonplace. Givt
may impose an
administrative
structure
whichlimits or even
deprives one of
liberty to further its
perception of the
needs of society
“unless the useof
such structure is in
itself so manifestly
unfair having
regard to the
decisions it is
called upon
tomake, as to
violate the
principles of
fundamental
justice” Jones v
The Queen
[1986].Liberty w/i
meaning of S7 is
not just freedom
from bodily
restraint, it may
embrace
individualfreedom
of movement,
including right to
chose one’s
occupation and
where to pursue it
subject toright of
state to impose, in
acc with principles
of fundamental
justice, legitimate
and
reasonablerestrictio
ns on the activities
of the individuals.
Pure economic
rights
Said the trial judge
has characterized
the issue as a “right
to work” – a purely
economic
question,when he
should have
directed his
attention to a more
impt aspect of
liberty, the right to
pursue alivelihood
or profession [a
matter concerning
one’s dignity and
self worth].Drs
argue scheme
deprives them of
opp to pursue their
profession or has
restricted their
mobility in away
that deprives them
of liberty in the
broad sense. Denial
of right to practice
their
chosen profession
in BC. Plan does
not guarantee
income to Drs –
only ensures a
percentage of
billssubmitted for
services performed
for insured patients
will be paid.
Economic
component of
thefreedom the drs
want to assert is the
right to be paid for
services rendered.
Problem with
thelegislation is
that the opp to
pursue profession
and freedom of
mobility of practice
can be denied
byrefusing patients
the right to have the
dr reimbursed
under the plan.
Economic rights
cases
We do not quarrel
with the conclusion
reached in cases
involving
corporation
business interests
and pure economic
right but we don’t
think they detract
from conclusion in
Mia that denying
drs the oppto
pursue their
professions falls
within the rubric of
“liberty” as used in
s7.
Regulatory cases
We have no doubt
that regulation of
matters such as
standards of
admission,
mandatory
insurance
for protection of
public, stds of
practice and
behaviour will not
constitute and
infringement of s7.
We donot think
they detract from
conclusion in Mia.
Right to work cases
25
In our opinion
these cases ought to
be regarded as
cases involving the
regulation of
business.Establish
principle that
“liberty” in s7 is
not synonymous
with unconstrained
freedom and s7
doesn’textend to an
unconstrained right
to transact business
with whoever one
wishes. But they do
not standfor the
proposition that
govt may deprive
an indicidual of the
opp to pursue
freely the practice
of their profession.
The “Right to work
cases” describe the
right not to be
regulated – doen’t
have anythingto do
with right to build a
practice in their
province and
chosen
community.Mobilit
y is a component of
liberty.The
geographic
restrictions
imposed by govt on
the right to practice
medicine in BC
constitute
aviolation of the
right to liberty
under s7 unless it
has been revmoved
in acc with the
principles
of fundamental
justice or unless it
can be justified
under s1 of the
Charter.In our
opinion, scheme
offends principles
of fundamental
justice. Based on
the application of
vagueand uncertain
criteria which
combined with
areas of
uncontrolled
discretion, leaves
substantial scopefor
arbitrary conduct.
Scheme is so
procedurally
flawed it cannot
stand.Blencoe v.
BC (HR
Commission),2000
Facts:
B minister in BC
government
accused of sexual
harassment.
Accusation made
publicly. Endedup
before BC HR
Commission.
Government
dismissed him from
cabinet. Lots of
media coverage.
Heresigned from
his seat. From the
time the
complainants filed
complaint until HR
Commissionschedu
led a hearing, 30
months had passed.
B’s reputation was
destroyed by this
time. There was
noreason given for
the delay. B applied
for stay of
proceedings until
challenge to the
proceedings
could be heard.
Issue:
1)Does the
Charter apply to
the
Commission?2)S.
7 interest (liberty
and security of the
person) infringed
by the delay
caused by the
Commission?Point
ed to the psych
harm caused to him
from media
coverage, nature of
accusations and
stigma
Reasoning:Charter
Scrutiny:
Counsel for the
Commission said
the Commission is
not a
“governmentorgani
zation” and does
not exercise a
governmental
function as required
by s. 32 of the
Charter for itto
apply. SCC lays
out test for whether
particular agency
falls under Charter
scrutiny:1)Whether
the agency
exercises mandate
independently of
government – this
agency
isindependent of
government but
that is required for
the nature of
human rights
regulation.2)Wheth
er the challenge is
to a statutory
provision or some
action by the
agency – here,
thechallenge is to
an administrative
action.3)Whether
the agency is
acting judicially –
is what it is doing
closer to
adjudication
thanadministration
of policy program?
Here, the
Commission is
acting judicially.To
escape Charter
scrutiny, must
satisfy all three of
these. But here, the
court says the
Commission
issubject to Charter
scrutiny even
though it seems to
pass these indicia.
The basis of the
Commission’sauth
ority is statute. Its
is inconsistent to
think that a
legislature which is
bound to enact
statutesconsistent
with the Charter,
can delegate a
power to an
institution created
by statute that
couldexercise
powers that would
not be subject to
Charter scrutiny.
Parliament cannot
delegate
more powers than it
has. Since it must
exercise its
legislative making
authority pursuant
to Charter,anything
born of this power
must also be
subject to public
scrutiny. Also, this
is a public
programconcerned
with supporting
human rights.
Ratio (Charter
scrutiny):
Any admin agency
with constitutive
statute will be
subject to
Charter review.
S. 7 Liberty
Interest:
This interest
responds to
“fundamental
personal choices”
that people can
makewith which
we are very
reluctant to see the
state interfere
(abortion, right to
end your life) –
controlover one’s
person – autonomy.
This is an
expansion of s. 7
application only to
freedom from
26
detention (criminal
context) which has
been affirmed by
Supreme court in
New Brinswick v
G(J)1999. This
issue does not fall
under liberty – in
this case the state
has not prevented B
from makingany
fundamental
personal choices
S. 7 Security of the
Person Interest:
 Principle that the
right to Security of
the Person
encompasses
serious state
imposed
psychologicalstress
has been reiterated
by Supreme Court
in New Brinswick
v G(J) 1999
1)
Psychological harm
must be state-
imposed
2)
Psychological harm
must be seriousB
has suffered great
harm but the
principle cause has
not been the delay
(even with the 5
monthunexplainabl
e lapse), it is the
publicity associated
with the claims.
The harm was not
serious becauseit is
not interference
with fundamental
personal choices.
Dignity:
There is no
autonomous, free-
standing Charter
right to dignity or
reputation or
freedom
fromstigma . Better
understood as an
underlying value.
Note:
Bastarache
analyzes liberty and
security of the
person separately.
But, what he looks
at insecurity of the
person is the same
as what he looks at
for liberty. In this
kind of case, what’s
thedifference
between security of
the person and the
interest protected
by liberty?
Note:
Courts will be
reluctant to
scrutinize under the
Charter where the
courts feel there are
adequateadmin law
principles.
Stigma:
In a criminal law
context, person
charged with an
offence has the
right to be tried
within areasonable
time. Cf criminal
case, the filing of a
human rights
complaint implies
no suspicion
of wrongdoing by
the state.
Commission
investigation is to
determine what
took place and to
settlematter in a
non adversarial
manner.In criminal
proceedings,
accusation alone
may engage a
security interest
because of the
grave socjaland
personal
consequences. But
although there is
some stress and
anxiety in
connection with a
humanrights/sex
discrimination
investigation, s7
scrutiny of the
person does not
cover such
emotionaleffects.In
this case, no
stigmatising state
pronouncement,Co
ncluded that
respondent is
unable to cross first
threshold of s7
Charter analysis in
the circs of thiscase
should not be
construed that a
holding that state-
caused delays in
human rights
proceedings
cannever trigger an
individuals s7
rights.In this case
though, no
deprivation of
respondent’s right
to liberty or
security of the
person so no needto
go to go to second
stage of analysis to
see if the
deprivation was in
acc with
 principles
of fundamental
justice.
Administrative law
principles:
Is B entitled to
remedy under
principles of admin
law? Can delay
inthis case amount
to a denial of
natural justice even
where ability to
have a fair hearing
is
notcompromised?
Delay:
Common law
tradition that
unreasonable delay
can lead to stay of
proceedings if it
has prejudicial
results on the
proceedings (e.g.
witnesses die, etc.).
Unreasonable
delay is part of
thecontent of duty
of fairness that can
act as a trump
card—whatever
the merits of the
case towhich one is
subject, if a court
determines that
there has been a
delay caused by
the adminagency
that is
unreasonable and
that prejudices the
person subject to
those proceedings,
theproceedings can
be stayed.
27
Here, the court says
that there is no
prejudice caused by
the delay (this is
delay going to
evidentiaryfactors –
hearing fairness).
But, the court was
asked to consider
whether
unreasonable delay
in and of itself is
sufficient ground to
stay the
proceeding. Could
a delay itself
constitute an abuse
of process(this is
about the delay
itself)?
In principle, delay
by itself, if
sufficient, could
constitute an
abuseof process
(bring the human
rights process into
disrepute).
There was a 5-
month
unreasonable perio
d during which
there was no
communication.
Court has to answer
whether the
public’s interest
inavoiding the
abuse of process
would exceed the
harm to the
public’s interest if
proceedings are
stayed.On the basis
of this balancing
act, the court found
that the delay was
not so unreasonable
as to merit astay of
proceedings.“The
determination of
whether a delay is
inordinate is not
based on the length
of the delay alone,
buton contextual
factors, including
the nature of the
case and its
complexity, the
purpose and nature
of the proceedings,
and whether the
respondent
contributed to the
delay or waived the
delay.
Here,although the
Commission took
longer than is
desirable to process
the complaints, the
delay was not
soinordinate as to
amount to an abuse
of process.”
Balancing Test:
Abuse of process
from delay versus
damage to the
public’s interest in
seeing
the proceedings
continue. I.e. the
government had
acted wrongly but
not wrongly
enough when
balancedwith the
other public
interest.
Held:
No stay but gives
some relief – he
gets costs for being
dragged through
this lengthy
process.
Ratio:
In principle, delay
by itself, if
sufficient, could
constitute an abuse
of process (bring
the humanrights
process into
disrepute).
Minority
:Case should have
been determined on
admistrative law
principles not
Charter issues. If
admin lawremedy
had been applied,
the trial judge
should have dound
there had been an
undue delay in
the process of the
Commission and
that this was
abusive and ssome
form of remedy
should have
beengranted to B.
But LeBel agrees
that a stay of
proceedings not
warranted in circs,
Notes
thatBastarache
casts this as a
dispute between the
state and B. But,
there are also the
people who
allegeharassment.A
lso set out test for
unreasonable
delay:1 ) T i m e
taken
compared to
the inherent
time required
to prosecute
t h e matter 2 ) C a u
ses of the
delay – e.g. B
challenged
many of the
motions
f o r disclosure
another procedural
matters. B was free
to do so, he could
not blame
thecommission for
delay caused by
him exercising his
procedural
rights.3 ) I m p
a c t o f
t h e
d e l a y Abusiv
e delay is wrong.
The board was
inept and
incompetent.
Note
: Although the
court recognizes
that there is public
interest in seeing
the proceedings
continuegiven the
gravity of the
charges, it awards
costs as a message
to the Commission.
The decision
seemsstrange
because we let
serious alleged
criminals out of
jail because of an
illegal search by
cops buthere the
court is letting the
HR Commission
proceedings
continue even after
wrongful
governmentaction.
Maybe the Charter
analysis focuses
more on the
individual and the
judicial review
stuff focuses
moreon the
institutional side.
Also, the victims of
the alleged
wrongdoing have to
have their
interestsconsidered
– this doesn’t
happen under the
Charter. Here, the
victims’ interests
are
considered because
not represented by
the Crown.6.
Content of
Procedural
Obligations (Right
to be Heard)We
turn now to the
question: if
procedural
obligations are
triggered, what
does the decision-
maker have to do?
Or more
concretely, what is
the content of these
procedural
obligations?
28
If your procedural
obligation comes
from a statute – the
enabling act or one
of the special
legislated procedur
al codes discussed
at CB 77-85, the
answer to this
question is:
“whatever the
statute says isthe
content is the
content”.
(However, there
may be occasions
in which you will
have to
determinewhether
the statute is a
“complete code” or
leaves room for
common law
supplementation.)L
ife is more complex
if your trigger is the
common law,
Charter or Bill of
Rights. While there
aresome
differences,
generally speaking,
the content where
these sources apply
boils down to two
broadclasses 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
meanin practice to
have a right to be
heard and what
does it mean in
practice to have a
right to an
unbiaseddecisionm
aker”.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 theright
to be heard, you
must start with the
Baker
considerations:
Baker gives you a
(non-exclusive)
listof
considerations that
tell you at least
something about
content.
Specifically, the
Baker test
suggestswhether
the content will be
robust or not. (It
actually tells you a
little bit more if
your trigger
islegitimate
expecations: with
legitimate
expectations, the
content of the
procedural
obligation
isgenerally what
was promised in
the procedural
promise that gave
rise to the
legitimate
expectation inthe
first place. If the
promise was
substantive, you
will not be able to
enforce it directly,
but at thevery least,
it may lead to
enhanced or more
procedural
fairness.)Of course,
one can’t stop at an
outcome that just
says “robust or lots
of procedural
fairness, or
not”.That!s not
enough. One has to
unpack that concept
and focus on
specific procedural
entitlements:how
much notice; what
sort of hearing;
how much
disclosure, etc.,
etc.. So the
readings review
aseries of
procedural
entitlements and
propose some
lessons on when
these particular
proceduralentitleme
nts 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
proceduralentitleme
nts are owed and
whether they have
been met, but if
you pay no heed to
the sorts
of circumstances
that give rise to
these specific
entitlements, you
may end up with an
implausiblelaundry
list of procedural
rules that you say
should apply when
they really don’t.
An
uncriticallaundry
list is not
satisfactory
analysis and does
not generate more
marks.Baker v M
inister of
Citizenship &
Immigration (1999)
Facts:
•

Ms Baker, a citizen
of Jamaica, entered
Canada on a visitor
permit, but
overstayed illegally
for many years.
Had 4 children here
(so they are
Canadian citizens).
Due to diagnosed
depressionand
schizophrenia, she
went on welfare
and 2 children went
to father, other 2 to
foster care, butshe
took these 2 back
when recovered.
•

When discovered to
be living in Canada
illegally she is
ordered to be
deported under the
Immigration Act
. Her last resort
under the Act is
application to the
Minister to be
allowed to stayin
Canada on
“humanitarian and
compassionate
grounds”. Her
written application
includesmedical
evidence that if
deported she will
likely become ill
again with no
medication, and
that sheis sole
caregiver for 2
children and
closely connected
with the other 2 (so
all children will
suffer if she is
deported).
•

Application
reviewed by junior
Immigration
Officer and
recommends she
not be allowed to
stayon
humanitarian and
compassionate
grounds.
Recommendation
sent to senior
ImmigrationOfficer
who agrees, so
application denied
(with no oral
hearing and
initially no reasons
given
).
•
When Baker’s
counsel asks for
reasons, senior
Immigration
Officer sends notes
from
junior Immigration
Officer. Notes
appear
inflammatory e.g.
capitalized her total
number of children
(4
29
in Canada, plus 4 in
Jamaica), says she
will be a
“tremendous strain
on our social
welfaresystem”,
say that fact she is
still in Canada is an
“indictment of our
system”, and
“Canada can
nolonger afford this
kind of generosity”,
recommends
refusal but warns of
“potential for
adverse publicity”.
Baker challenges
deportation in
court, and
deportation stayed
until concluded.
Note not a Charter
s.7case, rather dealt
with on common
law PF grounds.
Claims:
i)Some
procedural
fairness
obligations were
owed (court said
yes).i i) In s uf fi ci
ent PFOs
g i ve n : (1)There
should have been
an oral hearing
(no).(2)There was
a duty to give
reasons (yes, but
notes
sufficient)(3)Ther
e was a
reasonable
apprehension of
bias from notes
(yes).iii)Substant
ively there was
an abuse of
discretion (yes).
Decision:
L’Heureux-Dube J:
on threshold
question, there is a
duty of PF owed:It
is clear that the
duty of procedural
fairness applies to
H & C decisions as
they affect “the
rights, privileges or
interests of an
individual.” (
Cardinal v. Dir of
Kent Institution
)“The concept of
procedural fairness
is eminently
variable and its
content is to be
decided in
thespecific context
of each case.”
(L’H-D in
 Knight
)5 factors have
been recognized as
relevant criteria for
the determination
of the content of
proceduralfairness.
“Underlying these
factors is the notion
that the purpose of
the participatory
rights
containedwithin the
duty of procedural
fairness is to ensure
that administrative
decisions are made
using a fair and
open procedure,
appropriate to the
decision being
made an its
statutory,
institutional, and
socialcontext, with
an opportunity for
those affected by
the decision to put
forward their
views andevidence
fully and have
them considered
by the decision-
maker.” “I should
note that this list
of factors is not
exhaustive… Other
factors may also be
important,
particularly when
considering
aspectsof the duty
of fairness
unrelated to
participatory
rights.”a)Nature of
the decision and
the process
followed in
making it : “The
closeness of
theadministrative
process to the
judicial process
should indicate
how much of those
governing principle
s should be
imported into the
realm of
administrative
decision making.” (
Knight
)i)Legislative &
general /
discretionary
policy suggests
less
PFOsii)Administra
tive & specific /
resembles
adversarial court-
like process / fact-
finding
&credibility
suggests more
PFOs b)Nature of
statutory scheme
and the terms of the
statute pursuant to
which the decision
maker operates:
“Greater procedural
protections, for
example, will be
required when no
appeal procedure is
provided within the
statute, or when the
decision is
determinative of
the issueand further
requests cannot be
submitted.”Also
consider if there is
a general statute
specifying
procedures such as
Ontario’s
Statutory Powers
Procedures Act
(none in
B.C.)i)Does statute
or regulations give
PF rights or
override common
law PFOs (e.g. as
in
Singh
Wilson J. is statute
intended by
legislature to be
exhaustive for
PFOs)ii)How
general scheme
affect PF (e.g.
multi-stage process
and preliminary
investigation
v.final
decision)iii)Is there
an administrative
appeal or
redetermination (if
not suggests more
PF)iv)Is case
arguing for
ordinary scheme to
be followed or
looking for an
exception
(whichmight
suggest less
PF)c)Importance
of decision to
individual . “The
more important the
decision is to the
lives of those
affected and the
greater its impact
on theat person or
those persons, the
more stringentthe
procedural
protections that will
be mandated.” This
idea comes from
Dickson J. in
Kane
.d)The legitimate
expectations of the
person challenging
the decision may
also determine
what procedures
the duty of fairness
require in given
circs. This doctrine
is part of the
doctrine of
30
fairness or natural
justice and does not
create substantive
rights. (
Old St. Boniface
).
2meanings:i)Promi
ses / conduct /
usual practices by
officials that gives
individual
legitimateexpectati
on that a certain
procedure would be
followed. (
Qi
and
Bendahmane
).ii)Where an
individual has a
legitimate
expectation of a
particular result
(e.g. that
licensewould be
renewed) (Mullan
)– can’t be used
substantively to
actually get that
result, butcan be
used to argue for
more PF before
expected result
denied.e)Take into
account and
respect the choices
made by decision
maker. These
choices should
berespected,
particularly when
the statute leaves to
the agency the
ability to choose its
own procedures or
when the agency
has an expertise in
determining what
procedures
areappropriate in
the circumstances.
Should consider
why agency made
choices of
procedurethat it did
(but this can’t be
determinative and
so carries less
weight since court
reviewing if they
are adequate): look
at institutional
constraints on
agency /
practicalities such
as
notoverburdening
system (especially
if has to make
1000’s of
decisions),
expediency,informa
lity, etc., which can
all be trade offs
against requiring
high PFOs Note –
values underlying
duty of PF relate to
the principle that
individual affected
should have opp
to present their case
fully and fairly,
have decisions
affecting their
rights, interests or
privileges
madusing fair,
impartial and open
process,
appropriate to the
statutory,
insitutational and
social context
of the decision.2)In
this case looking
at these 5
factors:a)Nature of
decision has high
level of discretion
and must consider
many factors, not
verycourt-like
(humanitarian and
compassionate
grounds different
from a judicial
decision.)

suggests less
PFOs b)Statutory
scheme is that
ordinarily people
will apply for
permanent
residence from
outsideCanada,
whereas here Baker
applying for
exception to this

suggests less PFOs

BUT
noadministrative
appeal

suggests more
PFOsc)Impact here
on both Baker and
her children very
significant,
suggests more
PFOsd)No
legitimate
expectations (i.e.
no promises /
conduct by
officials to Baker
suggesting
shewould be given
more PFOs, nor
history of giving
oral hearings)

neutrale)Statute
gives Minister
much flexibility to
decide on proper
procedure and in
practiceinterviews
are not conducted
in all
cases.Balancing
these factors L
H’D concludes
circs require a full
and fair
consideration of
the issues andthe
claimant and others
whose important
interests are
affected by the
decision in a
fundamental
waymust have a
meaningful opp to
present various
types of evidence
relevant to their
case and have
itfully and fairly
considered. In this
case though, no
need for oral
proceeding, rather
writtensubmissions
sufficient to hear
all relevant
information.Re
provision of
reasons for
decision –
traditional position
at common law has
been that duty
of fairness does
not require, as a
general rule that
reasons be
provided for
administrative
decisions butthe
courts have often
emphasised the
usefulness of
reasons in ensuring
fair and transparent
decision-making.
Others have said
that having to give
written reasons is
too great a
burden.L H’D said
that it is now
appropriate to
recognize that, in
certain circs, the
duty of procedural
fairnesswill also
require provision of
a written
explanation for the
decision. Cases
where there is
importantsignifican
ce for individual,
when there is a
statutory right of
appeal or in other
circs, some form
of reason is
required.In this
case reasons
should be given
but the reasons
requirement was
fulfilled as Baker
got notes of the
case officer.Re
bias – PF requires
that decisions be
made free from a
reasonable
apprehension of
bias by animpartial
decisionmaker. The
duty to act fairly
and in a manner
that does not give
rise to a
reasonableapprehen
sion of bias applies
to all immigration
officers who play a
significant role in
the making of
31
the decisions –
whether
subordinate
reviewing officers
or those who make
the final
decision.Test for
reasonable
apprehension of
bias is
reasonableness –
what would an
informed person
viewingthe matter
realistically and
practically (and
having thought the
matter through)
conclude?Standards
for a reasonable
apprehension of
bias may vary
depending on
context and type of
function performed
by the
administrative
decision maker. In
this case
immigration
decisions
demandsensitivity
and understanding
by those making
them – they are
individualized
decisions and
havegreat
importance to such
individuals. The
case officer
demonstrated
bias.Suresh v.
Canada (Minister
of Citizenship and
Immigration)
[2002]Imports the
Baker principles to
help determine the
procedural
protections to
which an
individual
isentitled under
s.7 of the Charter.
Principles of
fundamental
justice as referred
to in s7 are
notidentical to the
duty of fairness set
out in Baker but are
the same principles
underlying the
duty.
Facts:
•
Minister had
decided to deport
Suresh, an alleged
member of the Sri
Lankan Tamils (a
terroristgroup), on
grounds that he was
a danger to the
security of Canada.
•
But Suresh alleged
that there was a
possibility that he’d
be in serious
jeopardy of torture
if senthome.
•
Suresh had opp to
make written
submission and file
material with
minister, did not
have copy of acopy
of the immigration
officers report
based on which the
cert was issued so
did not have ability
torespond orally or
in writing.
Decision:
•
To deport a refugee
to face a substantial
risk of torture
would generally
violate s.7 of the
Charter
.The Minister must
exercise her
discretion to deport
accordingly –
which she
did.Constitutional
Fundamental
Justice = CML
Duty of Fairness
•
“The principles of
fundamental justice
of which s. 7
speaks, though not
identical to the duty
of fairness
elucidated in
Baker
, are the same
principles
underlying that
duty.” Thus, “the
principlesof
fundamental justice
demand, at a
minimum,
compliance with
the common law
requirements
of procedural
fairness.” (Wilson
in
Singh
)
•
Also, these
requirements
“should be applied
in a manner
sensitive to the
context of
specificfactual
situations.” (like
fairness
generally)The 5
Baker
factors(1) Nature of
the decision
•
While deportation
decisions have
some similarity to
judicial processes,
they are decisions
towhich discretion
must attach in
evaluating not only
past actions and
present dangers,
but also therisks
from future
behaviour of an
individual

neutral( 2) Nature
of the statutory
scheme
•
There is a
“disturbing lack of
parity” in
procedures for
similar measures
taken under
different parts of
the
Immigration Act
.
•
Here there are no
procedures at all.
Thus, no right of
appeal or further
submissions.

strong PF(3 )
Importance of the
right affected
•
Suresh’s status as
a convention
refugee, the risk of
torture, and the
serious personal,
financialand
emotional
consequences are
all significant
effects of this
decision.
strong PF( 4)
Legitimate
expectations
•
The Convention
Against Torture
(CAT) explicitly
prohibits
deportation where
there
are“substantial
grounds” to
believe in the risk
of torture. This
raises an
expectation
that participation
will be allowed in
demonstrating and
defending those
“substantial
grounds.” “It isonly
reasonable that the
same executive that
bound itself to the
CAT intends to act
in accordancewith
the CAT’s plain
meaning.”

strong PF( 5)
Choice of
procedures
32
•
Minister has
discretion to choose
procedures in terms
of statute. This
follows from need
for Ministerial
discretion in
evaluating future
risk and security
concerns.
•
This signals
deference that
Parliament has
given to Minister’s
choice of
procedures.

weak PF
In this case, PFOs
required by s. 7 do
not extend to the
level of requiring a
full oral hearing or
acomplete judicial
process. However,
they require more
than Suresh
received. In
particular, they
are:(1)
Must be informed
of the case to be
met –
before
consideration of
opposingargument
and after being
provided with an
opportunity to
examine the
material being
usedagainst
(subject to reduced
disclosure for
privilege or
security reasons)(2)
Must be given an
opportunity to
challenge the
information of the
Minister
whereissues as to
its validity arise
– such as evidence
of the risk of
torture, association
with aterrorist
organization, and
assurances by a
foreign state.
Assurances are
particularly suspect
intorture cases
because past
practice may
indicate an
impotence of the
state in controlling
the behaviour of its
officers.
Assurances no to
apply the death
penalty are
generally easier
tomonitor and more
reliable.(3)
Must be provided
written reasons
– that “articulate
and rationally
sustain thefinding”.
They must also
emanate from the
decision-maker (i.e.
the Minister) and
not just bethe
advice or
suggestion to the
decision-maker (i.e.
not just the
“prosecutorial” brie
f/memorandum).“T
hese procedural
protections need
not be invoked in
every case. … The
individual must
make out a
 prima facie
case that there may
be a risk of torture
upon deportation,”
before these PFOs
are
engaged.Specific
Content Issues1.
Pre hearing
content issues –
issues of notice,
claims to pre-
hearing disclosure
or discovery
of evidence to be
relied on and delay
in the processing of
administrative
proceedings2.
nature of the actual
hearing – should it
be written or oral
or a mixture? Are
parties entitled
torepresentation by
counsel, an agent, a
friend? If oral
hearing, right to
cross examine
witnesses? Typesof
evidence that a
decisionmaker can
rely on and
obligation to
reveal that
evidence
(confidentialityclai
ms impt here).
Duty to provide
reasons.
1. Prehearing
Notice
Problems about
notice:(a) form of
notice – written or
oral. usually
written(b) manner
of service –
personal service is
norm but if impacts
a large and number
– public notice
isok.Re Hardy and
Minister of
Education
unreasonable to
suggest every
resident in district
must be personally
apprised of
intention to close
school. Must make
proposed closure
known
throughoutdistrict
generally.Re
Central Ontario
Coalition and
Ontario Hydro
notice of location
of electric
transmission
lines.Proposed top
create new lines
and submitted
proposals to a joint
board of Ontario
Municipal
Boardand the
Environmental
Assessment Board.
Notice to affected
public required but
service to
everyonewho
might be affected
not required. Gave
personal service to
some
municipalities and
individualsand also
published in
newpapers. The
notice gave details
of the alternative
route but described
as being in SW
Ontario and no
maps included.
Hearing held but
few participants
from alternative
route.Group of of
people from
effected route
sought review on
grounds that they
did not get proper
notice
33
and won. Court
said test was
“Would a
reasonable person
have understood it
in all the
circsnotwithstandin
g its
inadequacy”Re
Joint Board under
Consolidated
Hearings Act and
Ontario Hydro
notices for a similar
undertaking –
transmission lines
in east. Used term
“Eastern Ontario”
in notices. Court
distingused from
CentralOntario as
term Southwestern
Ontario made the
notice inadequate
in that case – not
clear that the
areawhere lines
would go was
included in that
term. In this case,
the term “Eastern
Ontario”
plainlyincluded he
area where the lines
were proposed to
be built. Notice by
mail causes
problems with time
of receipt. Re City
of Winnipeg and
Torchinskey
Noticenot received
by T until actual
date for her to
submit her appeal
and T actually gave
notice a few
daysafter that. City
sought to prohibit
the board from
hearing T’s appeal
on grounds that it
was out of date.
Court dismissed
claimRe Rymal
and Niagra
Escarpment
Committee Mail
delays meand R
submitted appeal a
day late,Court
rejected giving him
relief.(c) timing(d)
contents of noticeR
v Ontario Racing
Commission
Trainer’s horse
raced with a
banned substance.
ORC gave
himnotice of a
hearing to explain
it and said he
could attend and
be represented by
counsel and
introwitnesses.
Notice did not say
what he was being
charged with.
Didn’t give him
any notice of
the possible results
of the hearing –
should have been
clearly advised on
the contents. NOTE
– adissenting judge
in appeal court
said Trainer was
knowledgeable
enough of the
racing industry
toknow the impact
of the ORC’s
decision.R v
Chester prisoner –
officials considered
moving him to a
special unit because
of his attitude
andsome incidents.
Gave C notice that
a transfer being
considered and
invited submissions
– specified
anassault on staff
member on july 6.
He made
submissions about
the july 6 incident
but didn’t
addressthe move to
the unit. Court held
notice to him was
at least equivicol –
a person reading
articles
couldconclude that
the reason behind
the consideration
about the July 6
incident. It was
misleading.Canada
(AG) v Canada
(Commission of
Inquiry on the
Blood System in
Canada –
Krever Commissio
n)Should different
limitations apply to
notices warning of
potential findings
of
misconduct?1000+
Canadians became
infected with HIV
from blood in early
1980. 12000
became infected
withHep C as well.
Govt appointed
Krever to review
and report on blood
system. Nov 3
1993,
Announcement of
his appointment
and mandate
published in
Canadian
newspapers.
Allthose with
interest were given
an opp to apply for
standing before
Inquiry. 25
interested
partiesgranted
standing, including
Red Cross and
Bayer.Commission
er entitled to adopt
rules of procedure
and practice.
Allowed parties
with standing
andwitnesses the
right to counsel.He
said mandate was
not concerned with
liability – Inquiry is
not a witch-
hunt.But in Oct
1995,
Commission
counsel gave
memo to all
parties asking
them to inform
theCommission of
the findings of
misconduct they
felt should be
made by the
Commission.
Memoexplained
that under s 13 of
Inquiries Act,
Commissioner has
to give notice to
any person
againstwhom he
intends to make
findings of
misconduct.Dec
1995, notice given
to persons advising
that Commission
might find
conclude that their
actionsamounted to
misconduct and the
recipients had the
right to respond.
34
Recipients of
notices sought
judicial
review.Court noted
that the principle
of fairness must be
extended to
notices. Notices
must be issued
inconfidence to
allow them to
prepare or respond
to any possible
findings of
misconduct which
may bemade
against them. The
notices should be
as detailed as
possible.Did
Commissioner
exceed his
jurisdiction in the
notices delivered?
No. Potential
findings
of misconduct
cover areas that
were within
Commissioner’s
responsibility to
investigate. Content
of thenotices does
not indicate that
Commissioner
investigated or
contemplated
reporting on areas
outsidehis
mandate.Appellants
launched their
challenge
prematurely –
Commissioner
hasn’t issued his
report.
Challegeshould not
be launched before
the report is
published unless
there are reasonable
grounds to
believethat the
Commissioner was
likely to exceed
his jurisdiction. In
this instance, the
notices were
notobkectionable –
Indicated that there
was a possibility
that the
Commissioner
would make
certainfindings of
fact that might
amount to
misconduct.Some
of the allegations
in the notice
contained
references to
“failure” to take
appropriate
actions.This does
not necessarily
mean that the
person breached a
criminal or civil
std of
conduct.Commissi
oner used no
words that indicate
a legal std was
being applied. No
error made by
theCommissioner
in sending out
notices.Procedural
protections:
Appellants argued
that they did not
have sufficient
procedural
protections
– therefore
Commissioner lost
authority to make
the type of
findings suggested
by the notices.
Theyinterpreted
comments made by
the Commissioner
as assurances that
he had no intention
of making thetype
of findings
suggested by the
notices. They
would have
insisted on tighter
evidentiary proced
ures. Judge found
the procedures
were fair – adopted
on a consensual
basis after a
meetingwith all
parties to determine
which protections
would be
required.Timing of
notices: Last day of
hearings was when
notices issued. So
ability to x examine
witnesseseffectivel
y and present
evidence was
compromised.
Rejected - No
statutory
requirement to
givenotice as soon
as aware of
possibility of
allegation of
misconduct. Broad
inquiries are not
focusedon
individuals or
whether they
committed a crime,
concerned with
institutions and
systems and howto
improve them.
Although notices
must be given as a
feasible,
unreasonable to
insist that they
noticeof
misconduct must
always be given
early. In some
inquiries, the
Commissioner will
not know whatthe
findings may be
until late in the
process. As long as
adequate time is
given to recipients
to allowthem to call
evidence and make
submissions, later
delivery will not
constitute unfair
procedure.Timing
of notices depends
on circs. Where
evidence is
extensive and
complex, may be
impossible togive
notice until near
the end. Timing of
delivery of notices
did not amount to
a violation
of procedural
fairness.
[1997] SCC
- Krever JA was
appointed to
conduct inquiries
into the tainted
blood case;-He said
he was not going
to turn it into the
“witch hunt” – he
wanted to find a
constructiveresolut
ion-After 2 years
of public hearings
he came to the
conclusion that
there was a prima
facie case
of misconduct by
certain bodies;-He
issued notices to
95 organizations in
December with 3
weeks for them to
reply to him
of whether they
would be putting
further evidence;-
Notices were
confidential;
35
-A lot of
organizations
moved to
judicially review
the notices and
challenge the
judges authority
toissue a notice;-
A r g u e d : 1.the
notices were
delivered at the
end of the public
hearing stage and
therespondents had
no time to respond
to the notice;2.it
was outside of his
jurisdiction to find
the misconduct
(SCC confirmed
thathe had an
authority to
establish the
misconduct as long
as he did
not prescribed the
sanctions)-the
issue about the
notice (346)-
the notice in
general:
1.should be as
detailed as
possible2.with
respect to timing:
notices were not
objectionable
(valid) so long as
theygive the
recipients adequate
opportunity to
allow them to make
submissions – they
were valid
(organizations were
part of the
procedure for 2
years; 3weeks was
sufficient notice)-
Timing of the
Notice
:1.look at your
documentary
legal authority to
prescribe
the required
timing(in this case
no statutory duty
prescribing
time)2.it is helpful
to know in
advance of the
finding, but you
have to look if it is
practical
to give more notice
or
impractical
to give more notice
(in this casethey
knew for 2 years
about it)3.
adequate time
: late delivery will
not in itself
constitute unfair
delivery – if the
parties have
sufficient time to
respond, technical
delay is insufficient
tomake the notice
inadequate;4.the
timing of notice
will always
depend on the
circumstances
.-
Conclusions:
Reasonable
Notice: Timing
and Contents:
1.notice is required
for any decision
that affects the
rights of the
individual;2.must
be reasonable,
both in content
and in
timing;3.“adequat
e” depends on the
circumstances4.ha
s to be sufficient
for the client to be
able to understand
the case and
to prepare;
Discovery
Do notice
entitlements in the
administrative
process involve a
claim to pre-
hearing
“discovery” of
allrelevant info in
possession of the
“other
side”/”prosecution”
?Do tribunals have
an
inherent/implied
power to order
discovery of
complete
disclosure where
theydeem it
necessary in the
interests of
fairness?Canadian
Pacific Airlines
Ltd. v Canadian Air
Line Pilots
Association
[1993]Involved an
order for
production of docs
and other info
made by Canada
Labour Relations
Board asthe
investigative, pre-
hearing stage of an
application by
Canadian Air Line
Pilots Association
for a“single
employer”
declaration. When
Canadian Pacific
Airlines Ltd. didn’t
produce info
voluntarily, board
relied on Canada
Labour Code
provisions to
“compel witnesses
to produce such
docs and thingsas
the board deems
requisite to the full
investigation…Maj
ority held that
board had no
inherent or
incidental powers,
only those
conferred by
statute.Provisions
relied on did not
authorize
compulsory
discovery orders
outside the context
of a formalhearing.
No room for pre-
hearing discovery.
Statute limited to
orders for
production of docs
incontext of
witnesses being
summoned to give
evidence on oath.
36
CIBA-Geigy Ltd.
v. Canada
(Patented Medicine
Prices Review
Board) –The target
was to obtain pre-
hearing disclosure
of all relevant
documents in the
Board’s
possession. The
Federal Court
sustainedthe
Board’s refusal on
the ruling by
stating that there
were no criminal
proceedings, it
would impactthe
efficiency of the
business, and it
would also
lengthen the
proceedings. Court
refused to
applyStinchcombe.
May v Ferndale
Institution SCC
upheld the
contextual
approach to the
scope of disclosure
in
admin proceedings.
Court refused to
apply Stinchcombe
because that was a
criminal context
(i.e. a trial
andsomeone’s
innocence is at
stake) – such
principles do not
apply in the
administrative
context.
But procedural
fairness generally
requires that the
decisionmaker
disclose the info
they relied on and
inthis case, the
relevant statute
required
Corrections
Canada to give
offenders “all the
info to
beconsidered in
the taking of the
decision or a
summary of that
info” – so
disclosure of the
specificscoring
matrix (of risks)
should have been
disclosed.
Delay
Kodellas
v.Saskatchewan
Human Rights
Commission
(1989)It is my
opinion that for the
purposes of
determining an
"unreasonable
delay" in the
context of s.7 of the
Charter in relation
to a remedial
proceeding under
the Code, the
factors to consider
and weigh are:(1)
Whether the delay
complained of is
prima facie
unreasonable,
having regard to
the
timerequirements
inherent in such a
remedial
proceeding;(2) the
reason or
responsibility for
the delay, having
regard to the
conduct of the
complainants
(atwhose instance
the proceedings
were initiated) the
conduct of the
Commission (who
by the provisionsof
the Code has
carriage of the
proceedings),
including the
inadequacy of or
limitation to
itsinstitutional
resources, and the
conduct of the
alleged
discriminator,
including whether
he failed toobject
or waive any time
period; and(3) the
prejudice or
impairment caused
to the alleged
discriminator by
the delay.In this
case the delay was
unreasonable and
it appeared
ascribable to the
Commission. On
(3)Kodellas
alleged the delay
meant he was
unable to find
potential
witnesses and
also
fadingrecollection
of potential
witnesses. Judge
agreed with this.
2. Actual Hearing

Oral Hearings
(face to face
encounter with
decisionmaker or
delegate)
As part of the
audi alteram
partem
rule, traditionally
the right to an oral
hearing was usually
requiredas an
element of natural
justice- As the duty
of fairness
emerged, the
presumption in
favour of an oral
hearing (as opposed
to
writtensubmissions
) disappeared, and
deference to
procedural choices
became the norm-
Baker
: as there is no
more automatic
right to an oral
hearing, the
question is
whether the
applicantreceived a
"full and fair
consideration" of
their claim given
the circumstances-
Nicholson
: written
submissions
sufficed (no oral
hearing), as while a
dismissed police
officer shouldhave
been told why he
was dismissed and
should have been
given the
opportunity to
respond, theBoard
had discretion as to
whether it should
be an oral or
written hearing-
Baker
: written
submissions
sufficed (no oral
hearing), as the
lack of an oral
hearing for a
womanapplying for
an exemption to
immigration
requirements was
not found to violate
procedural fairness-
Generally, oral
hearings will be
required (otherwise
written submissions
will suffice) if:a)
Applicant is
entitled to natural
justice b)
Baker
: credibility is an
issue
37
- Beetz J. in
Singh
: condemned lack
of a "full oral
hearing" in a
situation where
"life and liberty
maydepend on
findings of fact and
credibility"- Wilson
J. in
Singh
: while an oral
hearing may not be
required in every
case where s.7
Charter
rightswere at stake,
"where a serious
issue of credibility
is involved,
fundamental
justice requires
thatcredibility be
determined on the
basis of an oral
hearing"
(reaffirmed in
Suresh
)c)
Singh
: life and death is
at stake (ie: s.7
principle of
fundamental
justice
argument…see
Charter
section)- According
to
audi alteram
partem
, an applicant must
know the case he
has to meet, which
includeshaving
access to the info
before decision-
makers and having
a summary of the
case…case
lawexpands on this
content:a)
Singh
: Minister
submitted
additional info to
the appeal board
which Singh didn't
knowabout b)
Chiarelli
: with national
security cases,
applicant must have
a summary of the
case againsthim,
but need not have
every detailc)
Suresh
: Where an
applicant
establishes a
prima facie
case that he has a
risk of facing
torture, hemust
have notice of the
full case against
him and be given
an opportunity to
respond, which
includesan
opportunity to view
the Minister's info
before making
submissionsMaster
s v. Ontario (1994)
an oral hearing
was not deemed
necessary when an
investigation
teamordered a
high-level
bureaucrat
reassigned after an
investigative team
found he had
sexually
assaultedseven
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)Facts:
•
Khan wrote an
evidence exam. She
thought she had 2
hours and filled 3
booklets which she
labeled“1 of 3, 2
of 3, 3 of 3”. She
realized toward
end that she had
another half hour
and took a
4th booklet which
she labeled
“insert”. She didn’t
make it clear on the
first three booklets
that there isanother
booklet. She failed
the exam and
realized that the
last booklet was
not read – it had
beenlost.
•
She appealed to
the Examinations
Committee who
took her
submissions (did
not allow an
oralhearing) and
decided not to let
her re-write on
basis that (1) no
exam had been lost
before,
(2)invigilators take
great care, and (3)
very little was
written in the third
of three marked
booklets.They
didn’t believe her
that there was a 4
th
booklet. The Chair
also admitted that,
had they
believedKhan that
there actually was a
4
th
booklet and it had
gone missing, she
would have been
entitled tore-write
the exam.
•
She appealed to
University Senate
and was again not
given opportunity
to plead her case.
They alsorejected
her appeal.
•
Because of failing
this exam, she
failed the
year.Decision:
Laskin JA
•
Threshold – “The
effect of a failed
year may be very
serious for a
university student.”
•
Khan’s credibility
was the central
issue before the
committee
: The only direct
evidence that
shedid write a
fourth booklet was
her word. If the
Committee
believed her
explanation, she
wasentitled to
relief. If not, her
appeal was
properly dismissed.
The 3 factors on
which the
Committeerelied to
justify their
rejection were no
more than
circumstantial
evidence that
caused
theCommittee
members to
disbelieve Khan.
•
Thus, procedural
fairness required
(1) an oral
hearing, (2) a
reasonable inquiry
into the
exam procedures,
their actual
operation in this
case, and their
general propriety,
(3) an opportunity
torefute the factors
the Committee
relied on in its
decision.
•
“In many
academic appeals,
procedural
fairness will not
demand an oral
hearing.
Anopportunity to
make written
submission may
suffice. For
example, I doubt
that
studentsappealing
their grades
because they
believe they
should have
received a higher
mark would
38
ordinarily be
entitled to an oral
hearing. What
distinguishes this
case is that the
determiningissue
before the
Examinations
Committee was
Ms. Khan’s
credibility.”
•
“Khan need not
show actual
prejudice to prove
that she has been
denied procedural
fairness. Sheneed
only show that the
Committee’s
breach of its duty
of fairness may
reasonably have
prejudicedher. (
Kane
)” The Committee’s
denial of an oral
hearing “fatally
flawed the
proceedings.”Disse
nt: Finalyson JA
•
The committee
was to determine
whether there was
an “error or
injustice”. The
existence of
thefourth booklet
would not have
been conclusive
given that the
professor said that
“more of thesame
wouldn’t have been
beneficial.”
•
We should not
reverse the burden
of proof: “ This is
an attempt to place
the burden on the
twoCommittees to
demonstrate
affirmatively that a
foruth booklet did
not exist, and
failing
thatresponsibility,
accept [Khan’s]
bald assertion.”
•
Khan was given
the opportunity to
provide a full and
detailed written
account of why
shedeserved relief.
She never
suggested that it
was important to
appear in person
or that
theinformation she
submitted was not
complete.
•
The proceedings
were not
adversarial in
nature.
•
The legal rights
involved and the
consequences to
Khan do not merit
the standard of
proceduralfairness
she claims.
Singh
can therefore be
distinguished
because it was a s.
7 case. The rights
to“life, liberty, and
security of the
person” were of
great enough
importance that an
oral hearingwas
warranted.Courts
have traditionally
given
administrative
tribunals the
discretion to
determine their
own procedures,
including the
means by which
submission are
entertained. An oral
hearing in
thesecircumstances
would impose an
unreasonable
procedural burden
on the university.
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
beopen to the
public or not.
Competing
interests are
freedom of
expression/freedom
of the press vs.
thesecurity and
privacy interests of
the subject of the
hearing. Also,
protecting the
victim and
ensuringwitnesses
come forward are
other rationales for
having
in camera
proceedings.There’
s also the concern
of commercial
competitiveness
among media
institutions.
Right to Counsel
There is no
common law
absolute right to
counsel, and the
right’s existence
is fact-
dependent.Howeve
r, 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
themore likely the
person has a right
to counsel. Re:
Parrish, [1993];
Re: Men’s
ClothingManufact
urer’s Association
of Ontario and
Toronto Joint
Board,
Amalgamated
Clothing
andTextile
Worker’s Union
(1979); Howard v.
Stony Mountain
Institution (1985)
•
On the matter of
entitlement to
counsel in prison
, several factors
are considered
including
theseriousness 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. (R. v.
Secretary of State
for the Home
Department, ex. p.
Tarrant, [1984]).
•
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
andImmigration),
[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 a
port of entry. Notes
from
theexamination
were used in a later
stage of the refugee
process. The appeal
was denied.
39
•
In New Brunswick
(Minister of Health
and Community
Services) v. G. (J.)
[J.G.], [1999]
thecourt found a
parent had a right
to counsel in a
custody hearing
because the lack of
counselcreated “an
unacceptable risk
of error in
determining the
child’s best
interests and
therebythreatening
to violate both the
[mother]’s and her
children’s s. 7 right
to security of the
person.”The right is
not absolute, but
depends on the
parent’s abilities
and the complexity
of the hearing.
Re Men’s Clothing
Manufacturer’s
Association (1979)
Facts:
•
Disputes in the
men’s clothing
industry in Toronto
had been resolved
in arbitration
without lawyersfor
decades.
•
The union asked to
have a lawyer
present.Decision:
(Arbitration)
Arthurs
•
A labour arbitrator
must accord to the
parties before him
all procedural
rights which they
haveagreed and
must observe
natural justice in
the absence of
agreement.
•
Although the
common law finds
legal representation
desirable and
discretion should
favour it, it isnot
regarded as
indispensable and
there may be some
circumstances
where the
participation
of counsel is
inimical to the
functioning of the
tribunal. Indeed,
the common law
did not
guaranteerepresent
ation in arbitrations
or proceedings
before
administrative
tribunals.
•
The SPPA
specifically
excludes labour
arbitrations from
the application of
the part of the
statutedealing with
rights to counsel
•
The special
context of labour
arbitration and
particularly of
men’s clothing
arbitration
militatesagainst a
right to
counsel:1)There is
an impartial
chairman who
holds office for the
duration of the
collective
agreement.2)Arbitr
ation arose in this
industry arose by
agreement of the
parties.3)Cases are
presented
informally.4)No
witnesses are
called.5)Agreeme
nt on the facts is
not uncommon and
agreement on the
disposition also
occurs.
•
The scope of
disputes subject to
arbitration and
bases for deciding
disputes is
confined to
areaswhere an
informal process
can be carried on.
•
There are also
many informal
understandings
which are not
incorporated in
collective
agreementsthat are
fostered by this
system.
•
“It is important to
understand,
therefore, that
what the parties
meant to convey
by their
mutualcommitmen
t to “arbitration” in
the collective
agreement was
their devotion to a
process
whichdiffered
radically not only
from that of the
Courts but from
that of other, less
venerable,
labour arbitration
systems.”

default of not
permitting counsel
•
One cannot
imagine that the
introduction of
lawyers could be
accomplished
without paying
asubstantial price
in terms of
efficiency – and
industrial relations
effectiveness – of
arbitration:1)Heari
ngs will be delayed
by availability of
counsel.2)Rules of
evidence will
lengthen
hearings.3)Techni
cal contractual
claims will divert
from the true
industrial relations
issues at
play4)Costs of
arbitration will rise
enough to deter its
use for minor
matters
•
Altering the
process so
fundamentally
should be done
openly and
deliberately
through
collective bargaini
ng.Decision:
(Review) Southey J
•
The only way a
corporation can be
represented is
through an agent.
By ruling that the
parties
toarbitration could
not be represented
by counsel, they
were being
restricted in their
choice of agents.
This violates a
common law right
without a clear
agreement or
statutory
restriction.
•
It is common in
other industries to
be represented by
counsel, thus in
those
circumstances
itshould be taken as
an implied term in
the collective
agreement, even for
natural persons.
40
•
However, here
there is a practice
that would shift
the balance against
finding such an
impliedterm. Thus,
a natural person
may not necessarily
be entitled to
counsel for the
reasons given in
thearbitration.
Nonetheless, they
would be entitled
to counsel where
another was so
represented
or where natural
justice so
demanded. Note:
•
Even in deciding
how he did, the
arbitrator gave
leave for a very
limited
participation by
counselon a
specific point of
law (that
challenged his legal
authority). Thus,
the judge’s ruling
really
onlyextended the
participation of
counsel because he
accepted that many
issues in the
arbitrationwould be
sufficiently
complex as to
warrant lawyers’
involvement.Adjud
ication is
backward-looking
and correcting a
wrong.
Administrative
perspectives are
forward-looking –
parties have to
agree to terms
which they will
obey going
forwardHoward v.
Stony Mountain
Institution
(1985)Question is
whether s7 of
Charter guaranteed
H the right to
counsel.H was in
prison. Charges
under regulations
against him –
indecent or
disrespectful
language,threateni
ng to assault
another person,
disobeying orders
of a penitentiary
officer…S7 has not
created an absolute
right to counsel in
all proceedings. In
present case – all
of H’s 267days of
earned remission –
this alone suggests
his need of
counsel. New
Brunswick v. G. (J.
(1999 SCC): the
court found a
parent had a right
to counsel in a
custodyhearing
because the lack of
counsel created “an
unacceptable risk
of error in
determining the
child’s best
interests and
thereby threatening
to violate both the
[mother]’s and her
children’s s. 7 right
tosecurity of the
person.” The right
is not absolute,
but depends on the
parent’s abilities
and thecomplexity
of the
hearing.where a
decision impairs a
s.7 interest, if
government
restriction of the
"security of the
person" righthas 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)Facts:
•
A mother was
resisting an
application by the
Child Welfare
authorities for
renewal of an
order placing her
three children in
the custody of the
state.
•
She requested the
aid of counsel and
was refused
according to a
Legal Aid policy
that
prohibitedgiving
legal aid
certificates in
custody-order
renewal
proceedings.
•
She invoked s.
7.Issues:Does
section 7 of the
Charter
require that the
mother be provided
with
counsel?Holding:
YesDecision:
Lamer CJThe right
to a fair hearing
required that G be
represented by
counsel because of
several
factors:(1)The
seriousness of the
interests at stake
•
“Few state actions
can have a more
profound effect on
the lives of both
parent and child
[thanseparation].
Not only is the
parent’s right to
security of the
person
at stake, the child’s
is as well.Since the
best interests of the
child
are presumed to lie
with the parent, the
child’s
psychologicalintegr
ity and well-being
may be seriously
affected by the
interference with
the
parent-
childrelationship
.”
•
The seriousness
varies according to
the length of the
proposed
separation. This is
an extension bysix-
months which is a
significant period
of time and may
make the
difference as to
whether
41
custody will ever
be regained.(2)the
complexity of the
proceedings
•
“Although
perhaps more
administrative in
nature than
criminal
proceedings, child
custody proceeding
s are effectively
adversarial
proceedings
which occur in a
court of law
. The partiesare
responsible for
planning and
presenting their
cases
. While the rules
of evidence
aresomewhat
relaxed,
difficult
evidentiary issues
are frequently
raised. The parent
must
adduceevidence
,
cross-examine
witnesses
, make
objections
and present
legal defences
in the context
of what is to many
a
foreign
environment
, and under
significant
emotional strain
.”
•
Here, all other
parties were
represented by
counsel, the
hearing was to last
3 days, and
theMinister
planned to present
15 affidavits,
including two
expert
reports.(3)the
capacities of the
appellant
•
“An unrepresented
parent will
ordinarily need to
possess
superior
intelligence
or
education
,
communication
skills
,
composure
, and
familiarity with the
legal system
in order to
effectively present
his or her case.”
•
Lamer concludes
that the potential
restriction of the
appellant’s right to
security of the
person isnot in
accordance with
the PFJ had the
custody hearing
proceeded with
the
appellantunreprese
nted by counsel
•
He notes that the
right to a fair
hearing will not
always require an
individual to be
represented
bycounsel when
s.7 is engaged,
and not every
custody hearing
will require
representation
bycounsel. The
seriousness,
complexity of a
hearing and
capacities of the
parent will vary
from caseto case.
E.g. permanent
guardianship apps
more likely to
require counsel
than custody apps.
•
This woman – who
does not have
higher education
and was not
familiar with these
proceedings
– would not be able
to participate
meaningfully in
them and defend
her interestsSection
1:
-
“... rarely will a
violation of the
principles of
fundamental
justice, specifically
the right to a
fair hearing, be
upheld as a
reasonable limit
demonstrably
justified in a free
and democratic
society.”
-
Assuming that the
policy of not
providing state-
funded counsel to
respondents in
custodyapplication
s was a limit
prescribed by law,
that the objective of
this policy
(controlling legal
aidexpenditures) is
pressing and
substantial, that the
policy is rationally
connected to that
objective,and that
it constitutes a
minimal
impairment of s.7,
I find that the
deleterious effects
of thepolicy far
outweigh the
salutary effects of
any potential
budgetary savings.
-
BC Motor Vehicles
: s. 1 may for
reasons of
administrative
expediency,
successfully come
to therescue of a
s.7 violation, but
only in cases
arising out of
exceptional
circumstances i.e.
naturaldisasters ,
epidemics, war etc.
Limiting legal aid
expenses is not of
sufficient
importance here.
-
Government not
under an
obligation to
provide legal aid
to every parent –
has very
limitedapplication;
only arises when
s.7 interest at stake
and is necessary to
ensure a fair
hearing (limited by
three factors). This
is an exceptional
remedy!
Note
that the concurring
minority would
have found that
counsel was
needed more often
than themajority
would have found,
b/c they saw the
proceedings as
being always
complex.Comment
s: The
characterization of
the children’s
interests and the
parent-child bond
raises thequestion
as to whether Baker
could have been
decided as a section
7 case.This case
shows how an
individual vs.
government
situation or other
imbalance of
power is a
keydeterminant of
the right. How
would you expect
someone who
might not even
have a high
schooleducation to
adequately defend
her complicated
legal interests in a
trial-like setting?
Disclosure and
Official Notice
Disclosure is the
disclosure to the
parties of
information that the
agency has about
the decision to
bemade.Official
notice is the extent
and manner in
which an agency
may, in making its
decisions, use
material
42
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 justicewill
not supplement its
disclosure
requirements.
Crown or Executive
Privilege
Provisions of the
Canada Evidence
Act
allow the
government to
withhold
information from
thecourts, subject
to a court
determination of
whether the “public
interest in
disclosure
outweighs
thespecified public
interest.” S. 39
thereof allows
withholding
without a court
determination.
Attacks onits
constitutionality
have failed,
however (e.g. see
Babcock v Canada
(AG) 2002
).
Other Common Law
Evidential
Privileges
Solicitor-client
privilege and the
presumption of
deliberative secrecy
among other
doctrines can
alsoaffect
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
hasreceived
information; (3)
business
information
collected; (4)
material created by
the agency
itself.Three major
arguments can be
made for
disclosure: (1)
individuals should
have the right to
knowwhat
government knows
about them, (2)
disclosure would
increase the
effectiveness of
participationof
claimants in the
decision-making
process, (3)
disclosure would
tend to improve the
quality of reports
by exposing
carelessness and
vagueness.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
wheninformation is
needed after a long
delay (e.g. looking
at a patient report
after many years).
 Access to Agency
Information
Re Napoli and
Workers’
Compensation
Board (1981
BCCA)Facts: the
worker was
appealing an issue
of benefit through
the worker’s
compensation
regime; hehad
asked for
disclosure of the
file; was denied
access to his
workers
compensation file;
instead of giving
him documents in
the case
(including about
30 doctors’
reports), he was
given 16
pagesummary of
the file;He appeals
on the issue of
disclosure;Court:-
given the
seriousness of the
issues, there was a
high standard of
fairness required;
and thereforethe
rules of natural
justice apply to the
workers
compensation
cases;-the
serious
issues;1.liveliho
od,2.compensati
on3.benefit
insurance
scheme;4.we are
talking about
somebody’s future
earnings- s o w e
know from
Nicholson
to
Knight
, when we are
talking about
somebody’s
livelihood, you
arelikely to find a
high level of
procedural fairness
attached to it;-
given that the
rules of pf are
applied here, the
court looks at
whether the
claimant is given
the
43
information he
needs to know; the
effected individual
has to know the
case he/she has to
meet-court finds
that 16 pages of
summary is not
sufficient to
enable the
individual to meet
the case;they have
to provide the
medical reports,-
there are clearly
credibility issues
when you are
talking about
workers comp;-
given all these
issues (higher level
of pf and
credibility issues),
the pf requires
disclosure-
Workers comp.
Board argued that
he should not be
entitled to records
of doctors and
nurses because
they will not be
candid-the court
rejected the
argument, saying
that knowing that
the content of the
report will be
under scrutiny in
the litigation,
makes it more
likely that the
author of the
report will be more
carefuland diligent
in the preparing the
report (Mulan’s
third argument)In
workers comp
cases now you get a
full disclosure.Re
Egglestone rights
of psychiatric
patient to access
their hospital file.
Board allowed his
counsel toreview in
presence of a
board member on
condition it not be
disclosed to the
patient that
counselrepresented
and this was held to
be acceptable by
court.
Identities of
sources of
information
Charkaoui v. Canad
a (Minister of
Citizenship and
Immigration) ,
2008Court noted
that in Blencoe
and May they
distinguished
between criminal
proceedings
andadministrative
proceedings. But
noted here that
application of s7
of Charter does
not turn
ondistinction
between diff areas
of law – depends
on the severity of
consequences of
state’s actions
for individual’s
fundamental
interests of liberty,
security and right
to life. By its
nature, the security
cert procedure can
place these rights in
serious jeopardy.
To protect them, it
becomes necessary
torecognize a duty
to disclose
evidence based on s
7.In Charkaoui II,
meanwhile, the
Court held that
section 7 imposes
upon CSIS a duty
to retain
anddisclose notes
from interviews
conducted with the
claimant, in the
course of
proceedings
relating tothe
security certificate
issued against him
under section
77(1) of the
Immigration and
RefugeeProtection
ActIn Charkaoui II,
the SCC further
enhanced levels of
disclosure and
adversarial
challenge by
requiringintelligen
ce agencies and
the Ministers to
retain and disclose
to reviewing
judges and SAs
allinformation in
their possession
relevant to a
named person. The
SCC further
instructed
reviewing judges
to draft and then
forward to named
persons accurate
summaries of this
information in the
eventthat such
information could
not be fully
disclosed for
reasons of national
security or the
safety of
any person.Court
set out disclosure
process –
procedural fairness
requirement
includes disclosure
of evidence tothe
named person in a
manner and within
limits that are
consistent with
public safety
interests. Torespect
these limits, the
Designated judge
has access to all
evidence and then
must exclude
evidencethat might
pose a threat to
national security
and summarise
remaining
evidence (that they
check for accuracy
and reliability) for
names person. I.e.
Designated judge
filters evidence
and
determineslimits of
access of named
person at each step
of the
process.Designated
judge after
reviewing some of
the files decided
that some should be
disclosed, Rather
thandisclose notes,
the ministers
elected to
withdraw the
evidence and on
that basis
concluded that
thematerial was not
sufficient to meet
their burden of
proving the security
cert’s
reasonableness.
Theyrequested that
the Designated
judge rule on
reasonableness of
cert so they could
then appeal to
CofA.Designated
judge rejected the
request – if they
withdrew
supporting
evidence, then
certificate was
notmeeting
requirements for its
referral to court and
was void.Pg. 379
of text book
examines
situations where
govt has invoked
national security
as a way of
44
covering up
embarrassing
info.Gallant v.
Canada (Deputy
Commissioner,
Correctional
Service Canada)
(1989)G, a
prisoner, notified
that warden
intended to
transfer him to
max-security
facility as he
wassuspected of
involvement in
extortion and
drugs. The formal
notice said info had
been recieved
butwas general in
nature and did not
disclose specific
info on the ground
that it would
jeapordise safetyof
victims. He
appealed decision
of T (deputy
governer) to
transfer Certiorari
granted – notice
wasinsufficient to
satisfy pf
requirements. T
appealed.
•
HOLDING(majorit
y)
o
Reqs of pf, like
those of natural
justice, vary with
the circs. T is
normally obliged
togive a fair opp to
be heard. T
relieved of that
obligation if it
must be made in
anemergency. In
this case the
warden was
concerned the 6
informants might
be hurtand the
judge doesn’t have
any reason to
querythis. No need
to be bound by pf if
theapplication of
rules endangers
lives of other
inmates. Decision
to transfer should
nothave been
quashed on grounds
that it was made in
breach of pf.
o

The principles of
fundamental
justice (s.7) do not
have the same
flexibility as
therules of natural
justice and of
fairness. In
particular, rules of
natural justice and
of fairness cannot
frustrate the
intention of
parliament. Charter
can though.
Thus, the
decision to
transfer the
respondent
t o Saskatchewan
Penitentiary was
not made in
accordance with
theprinciples of
fundamental
justice since the
respondent was
not given areal
opportunity to
answer the
allegation made
against him.
o
Section 1
Analysis: obvious
that in a free and
democratic
society, it is
reasonable, perhap
s even necessary, to
confer such a wide
discretion
on penitentiary
authorities. He
allowed the appeal
and set aside the
oder of lower
courtfor certiorari.
•
MARCEAU JA
(concurring in the
result):
o

In light of the
importance of the
consequences,

The inmate is not

entitled (by the
audi alteram
partem principle)
to moreinformation
before asking for
his representations
•
This is due to the
nature of the
problem and his
responsibilitytowar
d those entrusted to
his care .
o
On the one hand,
the information
given is definitely
more substantial
including
theinmate's
Progress Summary
Report in its
entirety, the extent
of the concern of
theWarden, and
cogent reasons for
non-disclosure of
further particulars.
•
DESJARDINS JA
(dissenting):
o
 Reliability may be
demonstrated in a
number of ways, as
for instance, by
anindependent
investigation or by
corroborating
information from
independent sources
 — i.e. measures
should be taken to
minimize error and
ensure that the truth
of theallegations is
verified
(particularly where
cross examination
and disclosure are
notavailable) - not
done hereGough v.
Canada (National
Parole Board)
(1990)G, was on
parole for 5.5 yrs
and subject to lease
restrictive type.
Allegations of
sexual assault,
other coercion and
drug use made to
Correctional
Service Office.
Parole suspended
and revoked.
Parole board relied
on regulatory
power (reg 17(5)-
non-disclosure
power if there was
security
concern:issues that
the informant
would be in danger
or the criminal
investigation would
be in jeopardy) not
todisclose info –
he never hears
details of the dates
and places of
alleged assaults or
names of
allegedvictims. G
applied to have
revocation quashed
on basis of s7
rights violation
and was allowed
incourt – board had
option of quashing
decision or in
camara hearing
agreed where G’s
counsel couldargue
that non-disclosure
was not justified.
Board chose latter
and appealed..
45
Reed J.:
o

It is clear that the

requirements of
fundamental
justice operate on
a spectrum.The
content of such
requirements vary
with the
circumstances of
the case.
o
Section 7
Requirements in
the Parole
Penitentiary
Context

There is no doubt
that the applicant,
in the present
case, is entitled
tosufficient detail
respecting the
allegations being
made against him
to enablehim to
respond
intelligently
thereto unless the
respondent can
demonstrateotherw
ise.
o

Section 1

The issue is
whether the
National Parole
Board is required
to either
releaseinformation
to the applicant
(when disclosure
will necessarily
reveal thesource of
that information) or
forego reliance on
that information in
making adecision
on the applicant's
parole.

administrative
convenience does
not justify a denial
of fundamental
justice— Singh v.
Minister of
Employment &
Immigration [1985]
1 SCR 177

the panel
concluded there is
no convincing
evidence that
disclosure
wouldthreaten the
safety of the
informants-s. 7
entitles a person
to know what are
the allegations
against him;-there
is a loss of liberty
issue at stake;-the
public interest in
non-disclosure has
to still be weighted
against the
individual liberty
issues;-balancing
public interest in
protecting
informants v.
personal liberty
issues and the fact
that he ison full
parole:-there is
also a public
interest in
promoting fair
procedures; there
is a public interest
in ensuringthat
officials do not act
in an arbitrary
manner; when she
weighed these
issues, the came to
theconclusion that
the public interest
of fair interest
tipped the scale
towards
disclosure;-p. 428:
she concludes: he
was entitled to
sufficient details
regarding the
allegations against
him, toenable him
to respond
intelligently;-there
was insufficient
evidence to
support the
collaborative
arguments that
disclosure would
beharmful;-the
decision to revoke
parole was
quashed and it was
ordered to disclose
evidence to his
lawyersonly
How to reconcile
the cases:
-although they
seem to come to
different
conclusions, there
are some uniform
principles in
twodecisions:1.co
mmon law duty of
procedural fairness
found
involved;2.an
obligation under s.
7 right to hearing
to include
sufficient
particulars – both
decisions mirrored
that line of
reasoning3.both
conclude that s. 7
rights of liberty
can be trampled on
lightly4.both find
s. 7 violations, but
for the first case it
was saved by s. 1
of Charter.
Commercially
sensitive
information
Magnasonic Canada
v. Anti-Dumping
Tribunal
[1972]Jackett CJ.:
s. 29 of
Anti-Dumping Act
requires that when
information of a
confidential
character
istendered at a
hearing, it is done
so
in camera
. Further steps to
protect the
confidentiality of
theinformation
depends on the
circumstances.
These could, at
most extreme,
include exclusion
of
allcompetitors/riva
ls while evidence
is taken, and then
provide these
parties with a
report on
evidencetaken with
reference to
confidential
evidence under s.
28.Now have
Canadian
International Trade
Tribunal Act
which has more
detailed
provisions
ondisclosure. E.g.
disclosure to an
external expert
employed by
tribunal for an
assessment
46
Staff Studies
i.e. material
gathered by staff of
a
tribunal/agencyCIB
A-Geigy Ltd. v.
Canada (Patented
Medicine Prices
Review Board)
[1994]Tribunals
exercising
economic
regulatory function
in public interest
that do not affect
human rights ina
way akin to
criminal
proceedings are
entitled to benefit
of confidential
communication
with staff.Toshiba
Corporation v.
Anti-Dumping
Tribunal (1984)
and Trans-Quebec
& Maritimes
Pipeline Inc.v.
National Energy
Board (1984)Both
cases dismissed
applications for
disclosure of staff
papers prepared for
the board/tribunal
prior to hearing.
However, if
information in
staff papers (made
prior to a hearing)
is available to
decisionmakers
and is not brought
forward in another
form at tribunal,
principles of
procedural fairness
are breached.Re
League for Human
Rights of B’Nai
Brith and
Commission of
Inquiry on War
Criminals
(1986), Allowed
disclosure of a
report of a
‘working group’ of
specialists
established by the
Commission, onthe
basis that such a
report would
clearly be relied
upon and given
significant weight
by theCommission
in determining
whether there were
legal means to
bring suspected
war criminals
to justice in
Canada.
Admissibility of
Evidence
Part of an
important general
procedural issue –
what procedures
should agencies use
for fact
finding,especially
for facts that are
different from the
kinds of facts that
usually govern
courts.Miller (T.A.)
v Minister of
Housing and Local
GovtPer Lord
Denning – A
tribunal of this
kind is master of
its own procedure
provided the rules
of natural justice
are applied.
Hearsay can be
admitted. Tribunals
are entitled to act
on any material
thatis logically
probative.Quebec
Univeristy v
Larocque SCC
1993SCC sustained
quashing of
arbitration by
reason of wrongful
refusal to admit
evidence. His
ruling
of inadmissibility
led to a denial of
natural justice.
Evidence in
question held to be
relevant and
crucialto defence
that the university
was advancing in
context of a
grievance against
dismissal. Rule:
Partymust have the
opportunity to
make the caseKhan
v. College of
Physicians and
Surgeons of
Ontario (1992)The
Ontario Court of
Appeal sustained
the admission of
hearsay evidence
(hearsay about
sexualassault of an
infant by a doctor
was admitted).The
hearsay evidence
was not only
necessary but there
were sufficient
indicia of its
reliability.However
, exclusive reliance
on hearsay and
opinion evidence
may have the
consequence of
leading toa denial
of natural justice:
See Bond v New
Brunswick 1992 –
Court set aside an
arbitrator’ssustainin
g of dismissal for
sexual assault –
victim didn’t testify
– arbitrator relied
evidence of
whatvictim told
other. Given
sanction and
seriousness of
allegations, not
sufficient to meet
reqs of
natural justice.
47
Re: Clarke and
Superintendent of
Brokers Insurance
and Real Estate
1985 Hearsay
admitted(transcript
evidence from C’s
criminal trial) but
given little weight
in trib dec to deny
renewal of areal
estate licenseOEX
Electromagnetic
INC and BC
Securities
Commission 1990
Evidence before the
US
SecuritiesExchange
Commission was
allowed in BC
Securities
Commission
HearingTimpauer v
Air Canada FCA
1986 Rule: Cannot
omit evidence that
adds a dimension
of
criticalimportance.
Labour Relations B
refused to hear
medical experts
testify on effects of
tobacco smokeon
complainant’s
health. This was
denial of natural
justice despite
strong privative
clause (a provision
in a statute that
tries to remove a
court's ability to
review decisions of
a tribunal )/
Cross-Examination
Re Toronto
Newspaper Guild
and Globe Printing,
[1951]
Ex.
Refusal to allow a
newspaper
companyto cross-
examine a union
applying to become
a bargaining agent
was
denial of basic
justice
cuz crosswas most
effective way to
test the merits of
the union’s
application (context
was contention by
unionthat it
represented a
majority of
employees).Princip
le enshrined in
10.1(b) of the
SPPA but
conditioned on the
x-exam being
“reasonably
requiredfor a full
and fair disclosure
of all matters
relevant to the
issues in the
proceeding”.Innisfil
(Township) v.
Vespra (T ownship)
[1981]Application
by the City of
Barrie to annex
parts of the
Townships of
Innisfil, Oro and
Vespra. At
ahearing of the
Ontario Municipal
Board, the
projected
population of
Barrie in 2011
assumedimportanc
e. While evidence
was being led by
Innisfil on the
issue, the Minister
forwarded a
letter,through a
departmental
representative, to
the Board advising
it of the population
allocations in
a planning study
prepared for the
region. The Board
ruled that it was
bound by
government policy
ascommunicated in
the letter and would
not permit cross-
examination on the
letter.Were Innisfil
and Vespra entitled
to x-exam the
official who
presented the
letter?SCC held:-
the right to cross-
examine is that of
the holder and he
or she does it at
her own peril (the
commonlaw rule);-
s. 10 of the SPPA
applies (the right
to cross-
examine);-since
there is a common
law rule of right to
cross-examine and
the statutory right
to cross-examine,
municipality had a
right to cross-
examine-right to
cross-examine
was upheld
•
Adjudicative v.
Policy [less cross-
examination due
when it is policy]
o
Where the Board
determines the
rights of the
contending parties
with the onus
fallingupon the
contender to
introduce the facts
and submissions,
the Board
technique willtake
on something of the
appearance of a
traditional Court.
o

Where, on the
other hand is more
concerned with
community
interests at large,
andwith technical
policy aspects of a
specialized subject,
one cannot expect
the tribunalto
function in the
manner of the
traditional Court.-
cross-examination
is part of the
adversarial process
before the
administrative
board;-the court
recognizes it as an
integral feature of
the adversarial
process;-
the court will not
curtail the cross-
examination
without a clear
statutory
direction;
48
Re: County of
Strathcona 1971 If
there is another
equivocally fair
method of
answering the case,
itmay meet the
requirements of
natural justice. In
this case, the
Board invited
written answers to
thematters
contained in the
report. Critiques by
other parties of the
report means it is
ompossible to
sayrespondents
have not taken full
advantage of opp to
correct or
contradict any
statement
prejudicial totheir
review.-the case
stands for the
proposition that
cross-examination
is not an absolute
right; what is
thefundamental
component of the
procedural fairness
is the ability to test
the evidence; so to
have alive cross-
examination may
not always be an
absolute right; if
that ability to test
the evidence can be
satisfied in a
different way
(exchange of
questions of
answers,
examinations out
of proceedings,
written reports,
etc.) it will
satisfying the
objective of testing
the evidence.Re: B
and Catholic
Children’s Aid
Society of Metro
Toronto 1987
Cases that rely
almost entirelyon
hearsay
: Denial of right to
cross alleged victim
was denial of
natural
justiceFacts: the
appellant is seeking
for his name to be
removed from the
child-abusers
register; he made
anapplication for
the Minister of
Community and
Social Services to
have his name
expunged. A
hearingwas held
and his application
was denied. He
judicially reviewed
the decision
because he did not
havean opportunity
to cross-examine
one of the accusers
witnesses with
respect to the child
abuse.Court:-the
denial of cross-
examination in
this case was a
breach of natural
justice-in this case
the absence of
cross-examination
was compounded
by the fact that
they were
relyingon a hearsay
evidence;-these
two things had an
accumulative
effect of denying
the appellant
procedural
fairness;This case
and the previous
one can be
reconciled:-they
can be reconciled
on the issue of
what is the
objective of cross-
examination: if the
objectiveof cross-
examination is to
test the evidence,
both these cases
stand for the
importance to test
theevidence;- i n
the
Strathocona
case the parties
were able to test the
evidence in the
written format;- i n
the
Re B
case there was no
ability to test the
evidence;-where
there is a
possibility to do
cross-examination
in a different
format, you are
likely to beupheld
because of the
important rights
and interests at
stake; and one of
the important rights
is to be able to
answer the
case;Recap:-
According to
principles of
procedural fairness
in relation to
disclosure, a
tribunal cannot
rely onevidence
disclosed by one
party alone (
Kane
);-The absence of
disclosure or not
giving the party an
opportunity to
respond,
constitutes
afundamental
error xxx
Post Hearing
Issues
Reasons
Until recently,
common law was
reluctant to impose
on decisionmakers
an obligation to
give reasonsfor
decisions. Baker
changed this.
Under Baker -
disadvantages to
give reasons:
1.adjudicator
s felt it was a
waste of
t i m e ; 2.it
would make
things more
litigious, more
expensive;3 . w
ill cause a
delay in
decision-
m a k i n g ; 4.will
be burdensome
for informal
administrative
proceedings;5 .
will make it
too
complicated
; 6.adjudicator
s will not be
candid about
the reasons
49
-
advantages to give
reasons:
1.You would
g e t b e tte r
d e cis i o n
m aki n g b e ca u se
a d ju d ic at or w il l
b e u n de r
a n obligation to
consider all factors
and produce the
better reasoning;
parties will feel
moreconfident in
decision
making2 .I t wa s
u s efu l fo r th e
p u rp o se s of
a p pe al ; y ou
w i ll h av e
tribunal’s
r at io n al e spelled
out, therefore you
can take up the
errors to a higher
level
court3 . I n c r e a s e
d
transparency
for the
parties;4.allo
ws the court
of appeal to
make sure that
the law has
been
a p p l i e d correctly;
5.More
confidence
for the
p a r t i e s -When
is the duty
triggered?-
Three grounds
when the duty of
fairness triggers
the requirement to
provide reasons:
1.when the
decision has
significant
importance to
those
affected;2 . w h e
n there is a
statutory right
of
a p p e a l 3 . o th e r
c ir cu m st a nce s
( v ery va g ue ,
a re n o t f la sh e d
o u t a s ye t – i f
t h ere i s
a paramount
interest at
stake)What are
“adequate”
reasons?Lake v
Canada
2008Purpose of
providing reasons
is two-fold – to
allow individual to
understand why
decicion was
madeand to allow
reviewing court to
assess validity of
decision. Minister
is not required to
provide adetailed
analysis for every
factor. Explanation
based on what
minister considers
the most
persuasivefactors
will be sufficient
for a reviewing
court to determine
whether his
conclusion was
reasonable.Therefo
re, not fully
canvassing the
many relevant
faction outlined in
a leading
extradition case
didn’tmean
adequate reasons
weren’t given.IF
decision involved
exercise of
discretion, the
reasons should
recognize that it
had power to
chooseand factors
that in considered
in exercising it. If
application of a
statutory std
depends on
existence of certain
facts, the reasons
should include the
findings of fact
made by tribunal
and indicate
theevidence on
which it based its
findings.Canadian
Association of
Broadcasters v.
Society of
Composers,
Authors and Music
Publishers
of Canada (2006) –
not sufficient to to
justify quatification
by merely referring
to evidence taken
as awhole. Not
enough to say
“weare the experts,
this is the figure,
trust us”Clifford v
Ontario Municpal
Employees
Retirement System
2009 Reasons need
not refer to
every piece of
evidence to be
sufficient, but must
simply provide an
adequate
explanation of the
basis onwhich
decision is made.In
Hilo v Minister of
Employment and
Immigration
(1991), the reasons
stated that “the
panel was notfully
satisfied of [Hilo’s]
credibility.” The
court allowed an
appeal on the basis
that his testimony
wasuncontradicted
and the only
evaluation of his
credibility is in the
reasons. The court
said that
theambiguity in the
reasons (it was not
an outright
rejection of his
testimony, but it
did cast doubt)
wastroublesome
and if the panel
wished to come to a
conclusion based
on his lack of
credibility,
theyshould provide
particulars of lack
of detail,
inconsistencies, or
inability to answer
questions.Sossin
writes that the
danger in requiring
reasons too often is
that it will dilute
the requirements as
tothe adequacy of
reasons. The
“flexibility” that
Baker speaks to
may be interpreted
such that
thereasons
requirement may be
satisfied in an
informal and even
ad hoc fashion.
This might lead
tostandards such as
Liang, where
ticking a “denied”
box on a form will
be considered
sufficient
reasons.Lower
courts,
unfortunately, seem
to be adopting this
approach.
50
Sossin “If the
requirement to
provide written
reasons is to be a
meaningful
component of the
duty of fairness,
those reasons must,
at a minimum, shed
some light on the
actual reasoning of
the decision-maker.
Elevating form
letters and tick
boxes to the status
of reasons, even if
appropriate in
somespecific
institutional and
factual contexts,
may seriously
erode the fairness
of the
administrative proc
ess.”A 2001 survey
of lower court
decisions has
shown that Sossin’s
fear may not be
wholly justified
andthat the reasons
requirement is
being interpreted in
a substantive
manner. Although
context (and
itsdifferential
application) was
hard to sort out
from the outcomes,
the decisions where
no reasons
wererequired
seemed to treat
Baker
inappropriately
(e.g. only applies to
H & C decision or
reasons sectionwas
all
obiter
). On the other
hand, situations of
an adversarial
nature seemed to
require more
formalreasons (e.g.
declaring
applicants a
“danger to the
public” for
deportation
purposes).
However,
thesecases seemed
to blur the line
between reasons
and
disclosure.Suresh
seemed to further
clarify this area –
“[The Minister’s]

reasons must
articulate and
sustain afinding
that there are no
substantial
grounds to believe
that the individual
who is subject to
the[ministerial]
declaration will be
subject to torture,
execution, or other
cruel and unusual
treatment, solong
as the person under
consideration has
raised those
arguments. The
reasons must also
articulatewhy,
subject to privilege
or valid legal
reasons for not
disclosing detailed
information, the
Minister believes
the individual to be
a danger to the
security of Canada
as required by the
Act. In addition,
thereasons must
emanate from the
person making the
decision, in this
case the Minister,
rather than takethe
form of advice or
suggestion, such as
the memorandum
of Mr. Gautier.
Mr. Gautier’s
report,explaining
the position of
Citizenship and
Immigration
Canada is more like
a prosecutor’s brief
than astatement of
reasons for a
decision.”VIA Rail
Canada Inc. v.
National
Transportation
Agency [2001]
Facts:
•
Appeal from
National
Transportation
Agency (NTA)
decision that held
provision of Via’s
tariff system posed
undue burden on
disabled persons. A
wheelchair
basketball team had
traveled withVia,
had trouble and
launched
complaint.
•
Via provides that if
a person is
disabled, they can
purchase one ticket
but have
accompanyingatten
dant ride for free to
provide assistance
– the attendant
must be capable of
assisting in
boardingand de-
boarding the train.
The issue was
whether the
requirement re
boarding and de-
boarding placed
undue obstacle on
mobility of
disabled people.
•
NTA considered
the matter and said
that this
requirement in
Via’s tariff was
undue obstacle
andasked Via to
show cause as to
why this was
necessary and why
NTA should not
require Via tostrike
this aspect of the
tariff and require
Via to assist in
boarding and de-
boarding. Via
could provide the
assistance with
little effort and
does provide it to
people without
attendants – given
thisand other
considerations,
people with
attendants are put
at relative
disadvantage.
Therefore,
this provision of
the tariff was undue
obstacle on the
mobility of
disabled persons
and it must
bestricken from
tariff structure.
•
Note:
S. 39 of the
NTA General Rules
requires reasons.
So we are not
talking about
common lawduty.
Decision: Sexton
JA
•
“The duty to give
reasons is only
fulfilled if the
reasons provided
are adequate. What
constitutesadequate
reasons is a matter
to be determined in
light of the
particular
circumstances of
each case.However,
as a general rule,
adequate reasons
are those that serve
the functions for
which the dutyto
provide them was
imposed.”
•
“The obligation to
provide adequate
reasons is not
satisfied by merely
reciting the
submissionsand
evidence of the
parties and stating a
conclusion. Rather,
the decision-maker
must set out
itsfindings of fact
and the principal
evidence upon
which those
findings were
based. The
reasonsmust
address the major
points in issue. The
reasoning process
followed by the
decision-
maker must be set
out and must reflect
consideration of the
main relevant
factors.”
51
•
Here, the adequacy
of the NTA’s
reasons must be
measured in terms
of whether they
give VIAsufficient
guidance to
formulate policy
without running
afoul of the
Agency. Thus, the
NTA’sreasons
would have to set
out the basis upon
which the existence
of the tariff
constituted
anobstacle, the
reasoning that
determined that the
obstacle was
undue, and the
main factors
relevantto that
determination.
•
The NTA’s reasons
do not define what
constitutes an
“obstacle” – why
does an obligation
of theattendant to
the personal needs
of the disabled
person on board not
constitute an
obstacle whilethe
obligation to help
with boarding
does? Why is a
requirement of the
capability to help
in boarding equated
with a requirement
to help in
boarding? The
evidence showed
that VIA does
notregularly ask the
attendants to help
in boarding, just
that they be able to,
if necessary.
•
The NTA’s reasons
do not indicate how
an obstacle is found
to be “undue” –
“undue” has
beenextensively
interpreted by the
courts. The Act
also qualifies the
section on undue
obstacles withthe
words “so far as
practicable.” This
along with the
general scheme of
the Act suggests
a balancing of
interests rather than
absolute
requirements.
There are lots of
factors at play in
this balancing,
none of which were
treated by more
than reciting the
submissions of
VIA and
the previous
statements of the
NTA.
Notes:
To what extent is
this assessment of
the adequacy of
reasons a disguise
for substantive
appellatereview?
•
RATIO
o

"standard of
adequacy for duty
to give reasons
must ultimately
reflect the
purposesserved by
a duty to give
reasons.”—look at
overall function of
the tribunal.
o

Reasons must
contain
the decision-maker
must set out its
findings of fact and
the principal
evidenceupon
which those
findings were
based.
The reasons must
address the major
points in issue.

The reasoning
process followed by
the decision-maker
must be set out
and must reflect
consideration of the
main relevant
factors.
•
APPLICATION:
o

In this case,
adequacy of the
Agency's reasons
measured with
reference to the
extent towhich they
provide VIA with
sufficient guidance
to formulate their
tariff
without running
afoul of the Agency
and to the extent to
which they give
effect to VIA's
right of appeal by
providing sufficient
insight into the
Agency's reasoning
process and
the factors that it
considered.
o
 In summary, the
Agency failed to
provide sufficient
insight into the
reasoning process
that it followed or
the factors that it
considered in
determining that
anyobstacle
provided by the
tariff was undue. In
so doing, it erred in
law.
Via Rail
[2001] FCA
The leading case in
prescription or
framework for the
content of duty to
give reasons.
The duty of
fairness triggered
the duty to give
reasons. What
constitutes an
“adequate
reasons”:-it stands
for the principle
that
reasons must be
adequate but
adequacy is not
establishedthrough
the mere recitation
of facts,
submissions and
evidence; the duty
to give
reasonsrequires
more than that
.Facts: an appeal by
Via Rail before the
national
transportation
agency re: tariff of
via rail.
Applicationof the
specific tariff
provision. Team
of the
wheelchaired
basketball players
were attended
byattendants who
assisted in their
basic needs and
were allowed to
travel for free.The
fact that attendants
travelled for free
was appealed. Was
there a different
standard for
athletes?
52
Tribunal:-this tariff
that stipulated that
the attendant be
required to assist
the disabled
passenger to get
onand off the train
was an undue
obstacle (the
language of the
statute);-the
assisting persons
to board and
unboard was via’s
responsibility and
it should be in this
case aswell;-to
interpret this tariff
as allowing
attendants to assist
athletes in this
case was an undue
obstacle;Via
appealed the
tribunal’s decision
on the basis that it
failed to provide
adequate reasons
for itsdecision;The
FCA held that the
reasons were
inadequate and
allowed the
appeal;-the
tribunal’s decision
was inadequate
because it failed to
indicate with
sufficient clarity
the basisthat the
tribunal held that
the tariff was an
undue obstacle;
how to interpret
that;-what the
tribunal had given
in the way of
reasons, was
simply a recitation
of facts,
submissionsand
evidence;-the
tribunal had not
explained its
reasoning process
for the
interpretation of
“undue obstacle”-
FCA outlined the
following
principles
:1.the duty to
provide reasons is
a contextual
exercise; it
depends on the
natureof the
administrative
agency and the
decision under
deliberation;1.The
duty to give
reasons depends
on the
context2.when
there is an
obligation to
provide reasons
they must set
out:1.the factual
findings2.the
evidence on which
the factual
findings are
based3.address
the major points
in issue4.set out
the reasoning in
the process
followed by the
decision
maker 5.reflect
considerations of
the main relevant
factors-
in order to have
adequate reasons,
the statement of
reasons must
provide sufficient
insightinto
decision-maker’s
reasoning process
and the factors
that are considered
and applied
-here the standard
set by the statute
was “undue
obstacle”; there
was no way to
understand how
theundue obstacle
was interpreted;-
there was no
assessment of the
legal standard or
what factors were
relevant-there was
a balancing
mandated by the
statute: the
balancing between
the private/public
interestthat was
required when
assessing undue
obstacle – and the
reasons of the
tribunal did not
reflectthat;-so
if your statute has
a standard that
must be satisfied,
or balancing of
factors, the
reasonsmust
demonstrate this
-So: there was a
failure to provide
adequate reasons
and it constituted
an error of law; the
newinquiry was
ordered
Summary:
1.If the
decision
involves the
exercise of
discretion,
reasons must
d e m o n s t r a t e that
the tribunal
recognized that it
had discretion and
what factors it
employed in
exercising
thediscretion;2 . I f
the statutory
standard
(“undue
obstacle”, five
penalties, six
demerit
p o i n t s , etc.) is
stipulated in the
statute, the tribunal
should also show
that it turned their
mind to
thestatutory
standard and what
factors it
considered
satisfying or not
satisfying;3 . I f
the decision is
based on
findings of
credibility,
courts require
s o m e explanation
of unsworn
evidence and an
explanation of why
such evidence was
excepted
or rejected,
especially if it is
uncontradicted
evidence.
Effect of breach of
duty to give
reasons
•
If it is apparent
from the reasons
for a decision,
whether given
voluntarily or
under
legalobligation,
that the decision
maker
misinterpreted the
legislation or
committed some
other error of law,
the decision may be
set aside.
53
•
However, if the
tribunal's reasons,
read in a realistic
manner, indicate
that it applied its
mind tothe most
important issues, a
court will not
necessarily infer
from its silence
about others that
itignored 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
havedecided the
dispute in the same
way if it had
realized that it
could not in law
rely upon the
reasonsgiven
6. Content of
Procedural
Obligations
(Unbiased
Decision-
maker)The second
broad class of
procedural
obligations
associated with the
common law,
Charter s.7 andthe
Bill of Rights is the
right to an unbiased
decision
maker.Here the
material deals with
bias stemming from
individual conduct
(attitudinal bias or
prejudgment; pecun
iary interests; past
conduct etc.). Here
too there are tests
for exactly what
rule barring
biasapplies to a
given
administrative
decision-maker.
There is not just
one universal
standard,
especiallywhen it
comes to alleged
prejudgment or
attitudinal bias.
These readings will
help you
understandwhat the
tests are and where
they apply.The
materials also deal
with
“independence” or
institutional bias. A
word of warning:
do not rush tothe
assumption that
independence rules
flow from all
instances where
procedural
entitlements
might be owed. It
would be wrong,
for example, to
urge that where a
statute creates an
administrativeregi
me that you think is
insufficiently
independent,
common law
procedural fairness
can be used
toattack this
arrangement. Be
attentive to the
discussion at 547
and 548. The
common law
cannot prevail over
a statute. And so,
your independence
argument would
have to be based on
a s.7 Charter or Bill
of Rights source,
assuming these are
even triggered.
•
Everyone has some
biases, so this
principle cannot be
absolute. Indeed,
certain decision-
makersare chosen
based on biases –
e.g. SCC judges
chosen for their
“commitment to
Charter values.”
•
The principle
comes from the
latin
nemo judex in causa
propria sua debet
esse
– “no one ought
to be a judge in his
or her own cause.”
•
The inquiry then
becomes what
levels of advocacy
or adherence to
particular causes or
points of view
should be seen as
disqualifying. But,
it is also concerned
with associations
that are likely
to produce
predispositions –
professional,
familial, or other
personal links with
the
persons/groups(and
their advocates)
who are parties to
the proceedings or
who stand to
benefit or suffer
from theresult.
There is also the
possibility that the
biased, but
altruistic, decision-
maker will err
againstthe
predisposition in an
attempt to be
impartial.
•
How does one
know that actual
bias exists? This
would be an
inquiry into the
“state of mind”
of the decision-
maker. This is not
only next to
impossible, but to
evaluate it (by
testimony and
cross-examination
of the adjudicator)
would violate many
principles of
decision-making.
•
As a result, the
court tries to
objectively assess
whether the
particular situation
is such as to
giverise 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
andundoubtedly 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
seemdictated in the
case of a generalist
superior court
operating within a
system of a strict
separationof
functions and
presiding over and
deciding cases in
solitary splendour
in the context of
theadversary
system may not be
appropriate for all
the great variety of
administrative
agencies thatare
subject to the
dictates of
procedural fairness.
Adjudication may
only be a small part
of therange of
functions
performed. The
members may be
appointed from and
continues to
operate in a
54
small community
of experts or peers
and may be
expected to engage
in collegial or
collectivedecision
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 politicia
ns may deserve
more latitude than
human rights
adjudicators. On
the other hand,
previousinvolveme
nt 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
statutespecifically
mentions
qualifications or
disqualifications.
However,
constitutional
norms havearisen
that may supersede
the common law or
statute in either
direction.Committe
e for Justice and
Liberty v. National
Energy Board
(1978 SCC):The
general test for bias
is spelled out by de
Grandpre J.:"The
apprehension of
bias must be a
reasonable one,
held by reasonable
and rightminded
people,applying
themselves to the
question and
obtaining therefrom
the required
information. In the
wordsof the Court
of Appeal, that test
is 'what would an
informed person,
viewing the matter
realisticallyand
practically – and
having thought the
matter through –
conclude.'"Metropo
litan Properties v.
Lannon,
[1969]Lord
Denning : “The
court does not look
at the mind of the
justice himself or at
the mind of
thechairman of the
tribunal, or
whoever it may be,
who sits in a
judicial capacity. It
does not look to
seeif there was a
real likelihood that
he would, or did, in
fact favour one side
at the expense of
the other.The court
looks at the
impression which
would be given to
other people. Even
if he was as
impartialas could
be, nevertheless if a
right-minded
person would think
that, in the
circumstances,
there was areal
likelihood of bias
on his part, the he
should not sit. And
if he does sit, his
decision cannot
stand.”Subsequent
House of Lords
judgments have
characterized the
standard as a “real
danger rather than
areal likelihood”
which means “more
than a minimal risk,
less than a
probability.”R v
Gough [1993]Std
of scrutiny is the
same whether the
target be justices,
tribunal members,
arbitrators or
jurors. Not
necessary for the
test to require that
the court look
through the eyes of
a reasonable man –
thecourt personifies
the reasonable
man.Per Lord Goff
- Test is a
real danger
rather than a
real likelihood
to ensure that court
is thinking
of possibility
rather than
probability of
bias.Lord Woolf –
court does not
inquire in a
majority of cases
into whether actual
bias exists but that
themaxim that
justice must not
only be done but be
seen to be done
applies.R v Inner
West London
Coroner Ex Parte
Dallaglio [1994]LJ
Brown summarises
Gough
propositions:(1)
Any court seised of
a challenge on the
ground of apparent
bias must ascertain
the
relevantcircumstan
ces 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
timewhen the
challenge is
launched and the
time when it comes
to be decided by
the court. What
mayappear 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
perhapsless
probably, the case
may have become
stronger.(3) In
reaching its
conclusion the
court `personifies
the reasonable
man'.
55
(4) The question
upon which the
court must reach its
own factual
conclusion is this:
is there a
realdanger of
injustice having
occurred as a result
of bias? By 'real' is
meant not without
substance. A
realdanger clearly
involves more than
a minimal risk, less
than a probability.
One could, I think,
as wellspeak of a
real risk or a real
possibility.(5)
Injustice will have
occurred as a result
of bias `if the
decision-maker
unfairly regarded
withdisfavour the
case of a party to
the issue under
consideration by
him'. I take
`unfairly regarded
withdisfavour' to
mean `was pre-
disposed or
prejudiced against
one party's case for
reasons
unconnectedwith
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, itseems
to me that the court
must necessarily be
asking itself
whether there is a
real danger that
thedecision-maker
was unconsciously
biased.(7) It will be
seen, therefore, that
by the time the
legal challenge
comes to be
resolved, the court
is nolonger
concerned strictly
with the appearance
of bias but rather
with establishing
the possibility
thatthere was actual
although
unconscious
bias.(8) It is not
necessary to
demonstrate real
possibility of bias,
whiat must be
established is a
realdanger of bias
having affected the
decision in the
sense of having
caused the
decisionmaker,
albeitunconsciously
, to weigh the
competing
considerations, and
so decide the
merits, unfairly.
Antagonism during
the hearing
Most common
manifestations are
unreasonably
aggressive
questioning or
comments about
testimony.Yusuf v
Canada (Minister
for Employment
and
Immigration)(1991)
Members of a panel
on Boardengaged
in injudicious x-
exam (involving
harassing and
unfair comments)
of a Convention
refugeeclaimant as
well as directed
gratuitous and
irrelevant sexist
comments at her.
Behaviour could
beseen as coming
as much from
attitude to claim as
personal dislike for
claimant.
Particularlysignific
ant where panel’s
role was confined
to determining
whether there was a
“credible basis”
for claim being
advanced and
where claimant was
the only
withness.Sparvier v
Cowessess Indian
Band No. 73 (1993)
antagonism
directed by member
of the
tribunaltowards
person whose
election was being
challenged arose
from prior dealing
between member
andwinner of the
ekection. Indicated
a predisposition
toward the outcome
of the appeal.Baker
v Canada –
antagonism may
also be in writing –
antagonism toward
a party or lack
of sympathy for
legislative
objectives. .B rett v
Ontario (Board of
Directors of
Physiotherapy)
requirement of
balanced and proper
behaviour not
confined to
designated
decisionmakers but
also reaches
lawyers who are
employed to assist
atribunal at a
hearing. Conduct of
lawyer led to
quashing of the
decision (counsel
had advised
lawyer presenting
case against the
member when to
object to questions
and when to put
forward arguments
infavour of the
“prosecution”).Cro
mex Nickel Mines
v British Columbia
(Securities
Commission)
(1992) Allegation
of bias wasresisted
successfully –
Chair had
admonished
counsel for making
mean comments
about
commissionand
superintendent of
brokers. Court will
not inhibit tribunesl
from controlling
own proceedings
toensure they are
not too long and to
ensure participants
conduct themselves
appropriately – this
mayneed firmness
and sometimes
expressions of
disapproval or
anger.
Association
between Party and
Decisionmaker
-there may be a
category of
association
between the
decision-maker
and one of the
interested parties,
interested persons.
E.g. Convent of the
Sacred Heart v
Armstrong’s Point
Association and
56
Bulgin – co-owner
of a residence was
the member’s wife
who was a member
of the executive of
aratepayers group
that opposed the
modification –
decision quashed.-
The rule against
bias would
generally prohibit
the decision-maker
from hearing a
case involving
afriend, a business
colleague, a family
member, close
professional
associate, even a
rival -- all of the
kinship type of
relationships-but
there are other
types of
relationships
happening in
administrative law
context due to
uniquenature (often
highly specialized)
of tribunals-in
admin law we need
some flexibility
with respect to
bias, because of
this unique
structuring
of admin tribunals:
the
Dylex
case:Marques v.
Dylex Ltd. (1977)
Ont. Div. Ct.-the
guy worked at the
law firm and had
represented a
Union in the
proceeding; now
he was amember of
the board certifying
that Union.-Court:
it is not a
sufficient ground
to disqualify the
board member;-
You look at the
unique nature of
administrative
tribunal; the
government looks
to people withsuch
a background in
making
appointments. Most
if not all of those
appointed, are
bound to havesome
prior association
with parties coming
before the Board;-
So if you have a
category of
association
between the
decision-maker and
a party, it is not
sufficient tohave
some degree of
professional
relationship; a
stronger degree of
connection,
relationship
or emotional
attachment is
required to
establish bias due
to the unique nature
of admin
tribunalsOntario
Hydro v Ontario
(Ontario Energy
Board) (1994) court
held that board
could not employ
as acounsel at a
Ontario Hydro rate
hearing, the lawyer
who acted for
Ontario Hydro
from 1976-86
insuch rate
hearings. Note –
application made
by Ontario Hydro
on basis that it was
a conflict
of interest not
bias.CNG
Transmission
Corporation v
Canada (National
Energy Board)
1992 representative
of CNG at
ameeting was also
former chair of the
board. He had not
gone thru board’s
secretary to
requestmeeting but
contacted the
present chair
personally. Court
held that if anyone
else had
approached,
the present chair
would have refused
the approach.
Involvement of
Decision Maker in
Earlier State of
Process
Committee for
Justice and Liberty
v. National Energy
Board (1978
SCC):the concern
is whether the
decision-maker has
prior involvement
in the proceeding
with the issues
of the parties;
also test for the
reasonable
apprehension of
bias
Facts: involves the
committee for
justice seeking to
disqualify the
chairman of the
national
energy board from
presiding over a
hearing; the
national energy
board was
considering an
application
for permission to
build the pipe-line;
Marshall Crowe
was a chairman.
The committee for
justice allegedthat
he was biased and
he should be
disqualified
because he was
involved in the
development of
thevery proposal
that was under
consideration;
before becoming a
board member he
had supported
the pipe-line
project; he helped
to draft some of the
terms of the
application and was
involved in
theissues like the
routing of the
pipeline.-
S u p r eme
Co u r t : Laskin CJ
agreed that
Crowe’s
commitment to
building a
pipeline gave rise
to
reasonableapprehe
nsion of bias
regardless of
whether these
decisions were
taken before his
involvement:
“Thevice of
reasonable
apprehension of
bias lies not in
finding
correspondence
between the
decisions inwhich
Mr. Crowe
participated and all
the statutory
prescriptions under
[the Act]… but
rather in thefact
that he participated
in working out
some at least of the
terms on which the
application was
later made and
supported the
decision to make
it.”reconcile with
the
Dylex
decision where the
court said that that
was a specific
reason why we
appointspecialists
on boards – so that
they could use their
expertise,
knowledge, etc.:
57
1.in this case the
guy was very
much implicated in
the
proposeddecision
(he has already
made a decision by
drafting the
planningdocuments
, etc.) that he had to
approve of 2 . i n
the
Dylex
case he was just a
member of the firm
which was pro-
union;3.Issue: both
operate as a tri-
part tribunals so
should not it be the
samedecision?Mor
e usual situations of
prior involvement
is where
decisionmaker has
in same or another
capacityalready
heard the matter
before the tribunal
or been involved
with the
investigation and
decision to proceed
with the matter
being
held.Township of
Vespra v. Ontario
(Municipal Board)
(1983)Follow up
from
 Innisfil
SCC decision
meant application
still pending.
Application to
annex land
inVespra still
outstanding.
Hearing began
again in 1986 and
same members of
board that had
made the previous
decision in 1976.
Board refused to
accept any new
evidence because
of a deadline
imposed by Statute.
Vespra objected
because of
reasonable
apprehension of
bias. Court agreed.-
“can the decision
maker draw back
from the positions
expressed in that
fashion and to
bring in
animpartial mind to
bear on the issues
to be determined”
Court found
no.Law Society of
Upper Canada v
French
[1975]Governing
body is
Convocation (the
benchers) and
allegations of
misconduct heard
by
disciplinescommitt
ee. Discipline
committed heard
misconduct
allegations against
F and found him
guilty of
7,recommended
suspension.
Convocation met to
consider
recommendation
and 2 disciplines
committeemembers
present. F objected
to their
participation. F
argued that
proceeding in
Convocation
wasessentially an
appeal from
disciplines
committee. So the 2
disciplines
committee
members
onConvocation
created an
apprehension of
bias.Spence J
concluded that
Convocation was
not considering an
appeal. It was a
single proceeding
in 2stages – first –
inquiry and
investigation by
disciplines
committee (results
of which are in the
report
toConvocation) and
second,
consideration and
disposition of the
report by
Convocation. So no
basis for members
of the disciplines
committee to be
excluded.Laskin J
disagreed – the 2
members of the
disciplines
committee should
have abstained
from participation
in proceedings – to
preserve the
principle of
impartiality. In
dissent, Laskin said
that itshould not
matter whether it
was technically an
appeal or not given
that it was a
separate
proceedingto
consider and allow
French to
challenge the
previous findings
of guilt. Later, in
Emerson v
LawSociety of
Upper Canada
[1984], the finding
that it was one
single proceeding
meant that the rules
of natural justice
must be followed to
a judicial extent
even at the
committee
level.disbarment
which Convocation
imposed
Statutory
Authorisation
Common response
to allegation of bias
by prior
involvement is
statutory
authorization
defence.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
competingfunctions
.Brosseau v. Alberta
(Securities
Commission)
[1989]Facts: the
lawyer is being
investigated for
securities crimes;
he alleged that the
commissioner
was biased and
should be removed;
he alleged that the
chairman
participated in the
investigatory stage
andtherefore should
be removed from
the adjudication
stage
58
SCC L’Heureux-
Dube J.:-relied
heavily on the fact
that the enabling
legislation
confirmed the
overlapping roles
on theASC;-ASC
was established by
the Parliament to
act in different
function:
investigation,
constitution
andadjudication;-
Constitutionality
of the statute was
not an issue;-“in
assessing the
activities of
administrative
tribunals, the
courts must be
sensitive to the
nature of the body
created by the
legislator. If a
certain degree of
overlapping of
functions is
authorized
bystatute, then, to
the extent that it is
authorized, it will
not generally be
subject to the
doctrine
of “reasonable
apprehension of
bias”
 per se”.
-she relies heavily
on justifying this
through the
enabling statute
creation of
conflicting
further interests;-so
the mere fact that
the commissioner
was involved at the
investigatory
stage, and later at
theadjudicative
stage, does not
automatically
disqualify him
when those were
his statutory
duties;-the
allegations has to
go beyond acting
with his statutory
duties;-when the
person is mandated
by the statute to do
his statutory
duties, you will
need to
havesomething
more than what the
statute has
purported as the
official capacity;-
emphasised the
practical reality
that such
commission have
repeated dealing
with
certaincompanies,
such entities and
parties, so that time
and again such
entities will be
before thetribunal –
so by its very
nature the admin
agencies can have
an overlapping
functions;-In Re
W.D. Latimer
Dubin JA found
that the structure
of the Act whereby
commissioners
could be involved
in both the
investigatory and
adjudicatory
functions did not,
by itself, give rise
to areasonable
apprehension of
bias.-In this case
Judge agrees – so
long as chairman
didn’t act outside
his statutory
authority and
aslong as no
evidence to show
involvement above
and beyond mere
fact of fulfilling
Chariman’sstatutor
y duties, no
reasonable
apprehension of
bias exists.E.A.
Manning Ltd. v.
Ontario Securities
Commission (1994)
Facts:
OSC drafts staff
report which
discusses
complaints against
penny stock
dealers. OSC
issuesPolicy
Statements which
says that penny
dealers are bad &
names Manning &
Ainsley.
PolicyStatement
later struck down
by Ainsley
decision as OSC
had no statutory
authority to make
bindingPolicy
Statements.
Manning claims PF
violation b/c of bias
due to earlier
policy statement -
arguesthat no
hearing can ever be
held.
OntDivCt Holding:
OSC prejudged
case before Notices
of Hearing. Any
pre-Dec93
Commissioner had
reasonable app of
bias & could not sit
on panel. Okay for
staff to investigate
& decide
pennystock dealing
was bad - not okay
for staff to issue
binding Policy
Statements.
Brousseau

distinguishedas
OSC never had
statutory authority
to issue biased
binding Policy
Statement.
OntCA Holding:
Affirms most of
OntDivCt holding.
•
No Corporate
Taint: any pre-
Dec93
Commissioner
tainted by RAB,
but anyone
appointedafter
Dec93 was okay.
•
Presumption of
Impartiality and
Fairness
:
 New
commissioners
allowed to sit on
panel. Nocorporate
taint - bias is
attitude of mind
unique to
individual (note
later cases which
sort of overturn
this).
•
MONTGOMERY J
(Dunnet and
Howden JJ
concurring)—trial.
o

Even if OSC staff

tried to separate
their investigative
role from the
Commissioners'
roleas adjudicators,
the roles have
become so
interwoven that
there is a
reasonableapprehen
sion of bias against
all Commissioners
because

the creation and

adoption of Policy
1.10
mass of complaints
specifically
regarding Manning
Limited and others
in thestaff report

the material led by

the OSC in Ainsley
59
o
In a press
interview, the Chair
of the OSC, Mr.
Waitzer, stated that
their job is to get
ridor regulate
penny stock dealers
–Mr. Waitzer
cannot sit on either
hearing because of
areasonable
apprehension of
bias.
o

The OSC (both

staff and
Commissioners)
were acting within
the ambit of their
statutoryduties in
assembling and
considering
information in
respect of a certain
segment of
thesecurities
market. But in
using that
information to
conclude that the
securities
dealers(including
Manning Limited)
were in fact
engaging in the
practices alleged in
Policy1.10, and
now in the notices
of hearing, the
Commissioners
prejudged the case.
•
DUBIN CJO
(Labrosse and
Doherty JJA
concurring):
o
Disqualification by
Reason of
Corporate Taint
o

There was no
evidence of
prejudgment on the
part of the new
Commissioners
since theywere not
involved in the
consideration and
adoption of the
Policy Statement
o

Mr. Waitzer's
comment about
getting the penny
stock dealers into
the self-
regulatingsystem is
clearly a reflection
of his ideal
solution, which is a
solution he
advocates for
all players in the
market.
In making the
comments
complained of here,
Mr. Waitzer was
fulfilling
hismandate as
Chair of the
Commission
Therefore, no
bias—Waitzer and
other
commissioners can
sit on the hearing
o

Bias Resulting
from Commission's
Defence in the
Ainsley Action
o

It was the
Commission staff,
along with counsel,
who were
responsible
for assembling the
materials that
formed the basis of
the Commission's
response to
the plaintiffs'
allegations in the
Ainsley action

so no bias for
commissioners
o

Even though the

tribunal believed
that the assertions
in the defences
were true, it is
notreasonable to
fear that the
members of the
tribunal will not
decide the case
impartiallywhen
they hear the
evidence and
arguments for the
appellant at the s.
17c inquiry.
•
NOTES
o

Caccamo v. Canada
(Minister of
Manpower &
Immigration)
[1978] 1 FC 366
(CA)at 373:

if all eligible
adjudicating
officers are subject
to the same
potentialdisqualific
ation based on
financial bias, the
law must be carried
outnotwithstanding
that potential
disqualificationQue
bec Inc. v. Quebec
(Regie des permis
d'alcool) [1996]
Facts:
Regie revokes
company's liquor
permits. Company
argues that Regie's
multiple
functionsviolates
Quebec Charter,
s.23 req't that
tribunal be both
"independent &
impartial".
Rule:
Institutional Bias
test looks at
"substantial number
of cases". Where
statute does not
explicitly prohibit
or allow the same
lawyer/Director to
investigate,
prosecute & draft
reasons, the
tribunal must put in
place procedural
safeguards to
ensure that the
same person does
not wear multiple
hats - prevents
RAB.
Holding:
Regie must change
internal operations
to ensure that same
person doesn't wear
multiple,conflicting
hats. Statute lives
on, as it doesn't
inherently violate
Quebec Charter.
 MacBain v.
Canada (Human
Rights
Commission)
(1985) FCAIssue:
Can statutory
authorization of
bias be abrogated
by the Bill of
Rights if your
"obligations"
are being
determined?
Facts:
P complained that

McBain
discriminated
against her on basis
of her sex during
employment.Comm
ission appted staff
member to
investigate, after
report, the Humarn
Rights Commission
decidedthe
complaint was
substantiated and
appointed a tribunal
from a list
(established by s.39
of Act).McBain
claims PF violation
due to bias in HRC
statutory structure -
Commission
investigates, prosec
utes complaint for
hearing & appoints
Tribunal to hear
complaint.
Holding:
Bias found as
prosecutor
responsible for
appointing
decisionmaker &
investigatingcompl
aint. Commission
determines whether
complaint is
“substantiated” and
then the Tribunal
must
60
make the same
determination.
Problem is
statutory
under CHRA. Bill
of Rights used to
challengeCHRA
b/c (1) federal
statute and (2) case
about "obligations".
Rule:
Statutory
authorization of
bias permitted,
unless
constitutional or
quasi-constitutional
challengecan be
made.Cf Idziak v
Canada where
minister of justice
could decide to
approve an
extradition request
andappoint an
agent to prosecute
at extradition
hearing and, if the
extradition judge
decided to issue
awarrant, for the
minister to decide
whether to
surrender that
person over. Held
this wasn’t contrary
tos7 of Charter and
principles of
fundamental
justice. Noted the
buffer provided by
extradition
hearingand political
nature of minister’s
discretion not to
issue warrant. No
basis for claims
that dual
rolesunconstitution
al.
Attitudinal Bias
Paine v. University
of Toronto
(1980)An example
of attitude towards
the outcome as well
as antagonism
towards the party
and decisionmaker
being involved in
an earlier
stage.Facts: prof.
Paine was denied
tenure and in the
review process the
faculty sent written
reviews. One of the
reviews was very
negative. After
these written
reviews were
called, the panel
was put together
toconsider the
application. The
author of the
negative review
was invited to join
the tenure penal.
Painereviews the
decision after going
through 2 internal
appeal processes.
Divisional Court:
-there was a breach
of procedural
fairness due to the
fact that the author
of the negative
assessmentwas
given a role on the
penal, and when he
took that role on
the penal, he
already formed
hisopinion; - so
there was a
reasonable
apprehension of
bias due to his
earlier involvement
andattitude towards
the outcome;
Court of Appeal
allowed UoT’s
appeal:
-they looked at the
very specific
context of this
administrative
tribunal; look at
the
contextualfactors:1
.you have to get
assessment of
piers;2.the
presence of the
member with
negative
assessment does
not violate
the procedural
fairness3.members
who form the
tenure penal use
their knowledge to
the
assessment process
(unlike a tribunal
which only acts on
evidence placed
before it)4.Only 5
of the 7 members
need to
recommend tenure
– not one
member approved
his application.-
court also looks at
the internal
structure of the
process: there was
no finality at the
penal; twomore
appeals were
available and he
was rejected at
both;-the presence
of the negative
assessment does
not amount to the
breach of the
procedural
fairness because
there is another
level of appeal;-
also noted that the
parties in this case
had contractually
agreed to have
their dispute
resolved in acertain
way.- T h e
Baker
case established
that the rule against
bias applies to all
officials who play a
significantrole in
the decision
making
process; Note –
Court of Appeal
seems to be
requiring “manifest
unfairness” or
flagrant violation of
PF here – high
threshold.
Deferring to uni
processes
here?Great Atlantic
& Pacific Co. Of
Canada v. Ontario
(HRC) (1993) (the
"you were a prior
activist onsex
discrimination, so
you can't be
appointed as a
Human Rights
Commissioner and
adjudicate thiscase
on systemic sex
discrimination"
case)
61

Facts:
a systemic gender
discrimination case
launched by the
female employees
of A&P. The
cashiershad a pay
equity type of
complaint going
before the HRC in
late 80s early 90s.
Commission did
anextensive
investigation, and
referred it to the
board of enquiry
for hearing. The
Board of Enquiry
waschaired by
Constance
Backhouse. C.
Backhouse (CB) is
a prominent law
professor and
writtenextensively
in the area of
gender
discrimination. At
the same time in
her personal
capacity prof.
CBwas also a party
to a systemic
gender human
rights complaint.
She was an
executive member
of thecomplaint
(against Osgoode
for not appointing
Prof. Mossman a
dean). CB set on
the
executivecommitte
e of the class action
(Osgoode)
committee. In 91-
92 she is appointed
to the Board of
Enquiryon A&P
case. We have
A&P challenging
her sitting on the
BoE saying that she
is biased on
twogrounds:-she is
a feminist
advocate; she’s
written
extensively in the
area – she is
biased;-she is in a
personal capacity a
complainant in the
systemic gender
discrimination case
and issitting on the
executive
committee;
Divisional Court:
-An individual that
has a prior history
of activism in a
certain area does
not automatically
excludethem for
bias-But she was
biased because she
could define the
A&P case to create
a precedent for the
case shewas
involved herself;-it
is uncharted
territory;-
the reasonable
apprehension of
bias was operating
in this case because
of her affiliation
withthe existing
systemic gender
discrimination case
;-they found that
she was
disqualified from
hearing the A&P
complaint because
her own
complaintexisted at
the same time;
Reconcile the case:
-she was a party
under the Human
Rights
commission at the
time when she
was hearing
thecomplaint
herself Large v.
Stratford (City)
(1992)
Facts:
also a human rights
situation where a
human rights
adjudicator was
sitting on a
mandatoryretireme
nt case; an
employer moved to
disqualify him
because he, after
dealing with the
merits and before
dealing with the
damages, he gave a
public speech in his
personal capacity
against
themandatory
requirement; the
employer judicially
reviewed on the
basis that he was
biased and
should be
disqualified.Divisio
nal Court:-the
court commented
that HR is a
sensitive area of
public policy
therefore we need
adjudicatorswho
are knowledgeable
and experienced in
human rights;-his
comments did not
violate the
standards of
administrative
neutrality;-human
rights tribunal was
drawn from those
who had
experience and
understanding of
humanrights issues
- yo exclude
everyone who ever
expressed a view
on human rights
issues
wouldexclude those
best qualified to
adjudicate fairly
and knowledgeably
in a sensitive area
of public policy;-in
this case he did not
need to decide on
general desirability
of a mandatory
retirement age –
hehad to decide
whether the
evidence
established that
retirement at 60
was a bona fide
occupationalrequire
ment of the
Stratford Police
Force.-Not like
Committee for
Justice and Liberty
where adjudicator
involved in the
corporate
pipelinestudy
whose conclusions
were in issue
before the tribunal.
Not like
Newfoundland
Telephone Co.v.
Newfoundland
(Board of
Commissioners of
Public Utilities)
where adjudicator
demonstratedhe
had a closed mind
on the subject in
issue.
Pecuniary and
other material
interests
62

Energy Probe v.
Canada (Atomic
Energy Control
Bd.) (1984)
FCAFacts:-AECB
was considering
application by
Ontario Hydro to
renew the
operating licence
for a
nuclear generating
station operated by
Ontario Hydro;
Energy Probe
objected to the
participation of
one board member,
Olsen-they alleged
he was a president
of the company
that supplied
cables to the
nuclear power
plant; hewas also a
member of the
several
organization that
supported the use
of nuclear power;-
Energy Probe
alleges that
because of this
bias, he does not
fit on this case;-
The Energy Board
rejected the bias
objections and
renewed the
licence.
Reed J. (trial
decision)
-the board in
dealing with
exercising of a
licensing decision
should act in a
manner that
upholdsthe duty of
fairness;-only a
direct pecuniary
interest will
constitute bias-she
recognizes that the
duty of fairness
includes the rule
against bias; so
that there is no
doubt thatthere is a
requirement that
the Energy Board
provide an
impartial decision
making;-is Mr. O
an impartial
decision-maker
because of his
interest in
supplying the
cables to the
plants?If the
decision is for
renewal of the
licence, will he
benefit from the
decision?-The rule
is that the direct
pecuniary interest,
no matter how
trivial, constitutes
bias;-She
concludes, though,
that there was no
clear likelihood
that with issuing of
the renewal
licensehe will
benefit by selling
cables; there is a
bid process, before
they purchase
cables; even if
theyare able to
renew the licence,
there is no direct
link between this
and Olson selling
cables-Such a
contingent
expectation does
not constitute
direct pecuniary
bias-there is a
need to find a
direct nexus in
accordance with
this decision-
There should be a
direct link between
the decision
making and
pecuniary interest
FCA approved this
decision;
-
A contingent
interest of
potential and
uncertain
pecuniary gain
does not constitute
bias
- H ow e ve r , w e
h a ve
Marceau J
. who concurs on
the basis of
different reasons:-
his reasoning is
later applied by
SCC
jurisprudence:-
The trial judge
seems to rely on
drawing a straight
opposition
between
“pecuniary bias”
and“reasonable
apprehension of
bias” and on the
idea that only a
“direct” or
“certain” interest
willconstitute
“pecuniary bias”.
On this basis she
technically ruled
against the claimant
that (1)
the pecuniary
interest was too
remote and (2) she
could not consider
“reasonable
apprehension
of bias” because it
had not been
pleaded.-he does
not agree with
what “direct”
means; he says it is
too narrow - The
idea of
“directness”should
not be given such a
strict and narrow
interpretation that
any indirect or
uncertain
advantagecan be
ignored. It is more
like remoteness.-
even an indirect
benefit should
give rise to bias;-
analysis:
you should look at
the interest that
flows from the
decision, be it
direct or
indirect,at the
degree of
relationship: how
remote, how
contingent, how
effective is the
interest
;-the only
requirement should
be that the benefit
that comes from
the decision would
have enoughof an
effect to colour the
case in the
decision-maker’s
eyes;-If one
believed the
statement that
Olsen had a
“reasonable
expectation of
pecuniary gain” as
thetrial judge said,
then there would be
pecuniary bias.
However, the
evidence does not
support
thatfinding.-but he
agrees with the
outcome: in this
case expectation of
the pecuniary gain
was too remote
andtoo contingent
from the removal
of licensing
decision (licences
at issue were only
operatinglicences
and Mr. O’s
company could
expect no extra
business as a result
of their approval.
Mere possibility
that a profit could
be realised in future
out of other
contracts awarded
in course
of construction of
other units was too
aleient contingent
and remote to
constitute
pecuniary bias.
63

Pecuniary bias and

reasonable
apprehension of
bias are not
separate categories,
“apprehension”
issimply the
language used with
regards to non-
pecuniary interests.
However, no other
interest than
a pecuniary one
was alleged
here.Also noted
that although law
of bias was
developed with
regard to exercise
of judicial or
quasi- judicial
functions so that it
was easily extended
from courts to
tribunals and other
bodies called
uponto determine
questions relating
to civil rights. No
authority that it has
to be applied to a
purelyadministrativ
e forum like the
board – which
doesn’t deal with
private rights and
has no
adjudicative power
s and no
resemblance to a
court. – SCC
agreed later that
judicial or quasi-
judicial functions
nota prerequisite
for challenge on
basis of
bias.Burnbrae
Farms v. Canadian
Egg Marketing
Agency [1976]
(FCA)
–
The CEMA
withdrewBurnbrae
’s license, but some
of the members of
the board were egg
producers from
other provincesand
their interests
conflicted under
the marketing
scheme with
Burnbrae’s.
However, the
legislationrequired
at least 7 out of 12
members to be
producers in other
provinces. Jackett
CJ: “In such
astatutory scheme,
it does not appear
to me that an
apprehension of
bias that is based
only on the factthat
some of the
members have, by
virtue of the part of
the country from
which they come, a
business backgroun
d with economic
interests that
conflict with those
of a particular
licensee whose
licence isin
jeopardy can be
regarded as a
disqualification.”M
oskalyk-Walter v.
Ontario (College of
Pharmacy) (1975)
(Ont Div Ct) – The
College imposed
asuspension on
MW in Fort Erie, a
town of about
7,500. One of the
members who
participated in
thehearing owned
one store in Fort
Erie and operated
another. MW
successfully
appealed on
bias.Pearlman v.
Manitoba Law
Society [1991] 2
SCR 869 - The
SCC summarily
rejected that
a professional
discipline
committee
composed of fellow
members was
structurally biased
because of self-
interest of the
members in
reducing
competition by way
of suspending or
expelling others.
Variations in
Standards
-How rigorously or
stringently the rule
of bias will be
applied depends
very much on the
nature of the
tribunal.-The rule
against bias is
applied more
leniently in cases
of elected
administrative
bodies or
admin bodies that
deal primarily with
socio-economic
policy matters.-The
members of
regulatory board
and municipal
counsellors are not
disqualified simply
becausethey have
strong public views
about political
issues that are
being investigated
by adjudicators;-
We should
distinguish
between pre-
commitment to
policy issues
versus a
conclusive
pre- judgment
about issues;-
historically the
rule about bias did
not apply to the
admin entities;-but
with the
development of the
doctrine of natural
justice and the
principles of
proceduralfairness,
the attitude and
actions of admin
decision makers
became subject to
scrutiny for
biasunder the duty
of fairness;-why
are there
variations in the
bias rule?-when
tribunal is
performing
adjudicative role,
disposing of
dispute, the full
force rule about
biaswill apply;-
when we explore
the lower, more
lenient standard
that applies to
admin tribunals,
that arefunctioning
in more of a policy
or regulatory
capacity;-we see
this variance
emerging in the
following two
cases:-
Old St. Boniface
Residents Ass. Inc.
v. Winnipeg (City)
and
Save Richmond
Farmland Society
v. Richmond
(Township)
-both cases involve
municipal
councillors
participating in re-
zoning
proceedings,
where
eachcouncillor had
publicly supported
one side before the
municipal hearing;-
The question that
SCC had to
address was
whether the
councillors’ public
support gave rise
to thereasonable
apprehension of
bias;
64
-In each case the
majority of the
SCC refused to
apply the
conventional RAB
test;-The majority
held that the
standard rule
against bias should
be varied
depending on the
nature andthe
circumstances
under which the
decision making
was occurringOld
St. Boniface
Residents Ass. Inc.
v. Winnipeg (City)
[1990] SCC-The
variance in
standard is
emerging:-is the
councillor
biased?
Sopinka J. for
majority
-duty of fairness
is a flexible
standard-rule
against bias is a
component of the
duty of fairness, so
it is too a flexible
standard-the
factors that one
considers in
assessing what
level of duty of
fairness accrues
and whatstandard
about bias should
apply:1.the terms
of the
statute;2.the
nature of the
decision maker’s
function;3.type of
the decision being
made-analysis of
what type of rule
should apply to
the municipal
councillor:1.given
that municipal
councillors are
elected on the
basis of their
position andthey
must give effect to
campaign promises,
they are political
beings
andlegislature
could not have
intended to apply
strict rule of
impartiality
ondecisions made
by municipal
councillors;2.he
distinguishes
between partiality
on basis of pre-
judgement and on
basis of personal
interest. He
suggests that for
the municipal
councillors some
degreeof pre-
judgment is
inherent in the
nature of their
municipal duty;
(municipalofficials
having been
elected, having
campaign promises,
formulatedopinions
about policy, etc.,
and particularly in
issues that are
controversial,the
public should know
that the councillor
will have a strong
opinion, that’swhy
they were elected,
issues that they
used in their
campaigns)-since
we anticipate some
level of pre-
judgement, the
standard that
should be applied
to
municipalcouncillo
rs and other
officials on that
line, between the
legislator, policy
maker and
adjudicator,the
standard should be
flexible- H e
a rt ic u lat e s a
“pre-judgment”
standard
:
1.For
disqualifying
someone who is
between legislator,
policy maker
andadjudicator,
you have to
establish that the
pre-judgment
he/she holds inthe
matter is so firm or
fixed that
submissions or
representations to
thecontrary will be
futile; that the
decision maker
formed such a
strongviews that
that view cannot
be dislodged
-We are adapting
the rule about bias
test to allow for
the strong opinion
on public policy
issues;and you will
not be disqualified
for having
expressed such
opinion, unless you
form a finalopinion
that cannot be
influenced or
persuaded.-the
conventional rule
against material
bias still applies to
municipal
councillors; if
municipalcouncillo
r has a conflict of
interest, (pecuniary
interest, etc) then
definitely
conventional rule
willapply.-In this
case – no evidence
to suggest any
relationship with
developer – he had
previouslysupporte
d the development
on merits. Lower
court found that
there was no
personal
interest.Therefore
this is a
prejudgement case
– and councillor
has not prejudged
the case to the
extendthat he was
disqualified.Save
Richmond
Farmland Society
v. Richmond
(Township) [1990],
SCC-a very
similar case; the
rule against bias
continues to
evolve;-
Councillor
expressing strong
opinion about the
zoning issue;-The
interest wrinkle in
this case is that he
says he will listen
carefully at the
hearings but
likelywill not
change his mind-
Majority applied
the “pre-
judgement”
standard and
dismissed the
appeal-
65
Minority judgment
(La Forest J.) in
response to the
judgment of the C
of A (one of the
judgesexpressed
the view that the
bias test for public
officials is whether
those individuals
are amenable
to persuasion –
whether they still
have an open
mind)-if we use
open mindedness
or open to
persuasion test, he
would have passed
this test-he says
this approach is
unrealistic – a lot
of politicians are
posturing about
their open-
mindedness-he
fears that if we use
the amenable to
persuasion test, we
will have
politicians saying
that they allare
open-minded;- h e
prefers
close minded test
– it is more realistic
to expect decision
makers in the
policy arena
tocome to the
decision with some
level of pre-
judgment, some
level of firm
opinion;-the theory
behind the rule for
officials in public
arena: if we elect
or appoint officials
because we believe
in their policies,
because we believe
their opinions are
firmly taken, we do
not expectthem to
leave them at the
door and check
them before they
go into a hearing
process.-When you
have people like
municipal
councillors who
are elected as a
political entity,
functionlike a
legislator by
enacting by-laws,
and a policy
reformer, and while
holding an
adjudicator capacit
y, what level of
bias or impartiality
do we expect?-
"Closed, But Not
Corrupt" Test:
Closed mind is
okay so long as
closed mind is not
theresult of
corruption, but of
honest opinions
strongly held (and
best interests of
communityare at
heart).
-
Note: you should
be guided by the
“pre-judgment”
test
-When you are
faced with a hybrid
type situation, like
a municipal
councillor, it is
acceptable
thatthere is some
degree of pre-
judgment on policy
and planning issue,
that is permissible;-
-Both minority
and majority are
prepared to accept
a variance in the
bias
standard;- Newfou
ndland Telephone
Co. v.
Newfoundland
(Board of
Commissioners of
Public Utilities)
[1972]SCC-same
dilemma of a
public official in
the policy
regulatory field
with a very strong
opinion;-classic
public utility body
(sets rates, tariffs,
has lay people on
the board, has
technical people
ascommissioners
and board members
and wants a diverse
range of
representative on
the penal or board
commission, that
fuels the policy
directions)-here
SCC was faced
with the same
question about
what standard of
bias you should
apply to
themember of a
regulatory board
that has before the
hearing expressed
very strong opinion
abouthow the issue
should be decided-
you have to
recognize a
unique nature of
the administrative
body:1.appointed
officials because
of their technical
experience or
knowledge
or technical and
economic or
financing
background and
knowledge;2.they
are usually
appointed because
they are
recommended by
prominentmembers
of a particular
spectre of the
industry or
community;3.in
this case there is
also a lay person,
representing the
effected
community;who is
there to represent
the average
person’s interest;-
the person that was
being challenged
for bias was on the
board as a long
time advocate
of consumer rights-
he spoke publicly
about his support
for consumer
rights in telephone
rates area, he had a
strongopinion
about salaries,
pensions and
benefits of
executives of the
telephone
company;-pensions
and salaries were
exact issues that
the board had to
consider (cutting
back in the
contextof rate
setting)-He is one
of 5 on the board
when he made
these public
comments (before
the hearing, in
themedia);-He
continues to make
such types of
public comments
after the hearing
began;-At the
hearing the
telephone
companies object
against him being
a member of the
board, claimingthat
his comments
constitute a
reasonable
apprehension of
bias;-SCC, Corry
J. (for unanimous
court):-A member
of a board which
performs a policy
formation function
should not be
susceptible to
acharge of bias
simply because of
the expression of
strong opinions
prior to the hearing.
But this
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