Table of Contents

PROBLEMS, ACTORS & CONTEXT ............................................................................................................................... 3

DELEGATION, DESIGN & GOOD ADMINISTRATION .............................................................................................. 4

WHY DO LEGISLATURES DELEGATE TO ADMINISTRATIVE DECISION-MAKERS?..............................................................4THE RISKS OF DELEGATION.....................................................................................................................................................4DELEGATION AND DESIGN CHECKLIST....................................................................................................................................5

THE RULE OF (ADMINISTRATIVE) LAW .................................................................................................................... 6

DICEY AND THE LIBERAL IDEA OF THE RULE OF LAW........................................................................................................6FUNCTIONALISM......................................................................................................................................................................6OTHER RULE OF LAW THEORIES..........................................................................................................................................7RULE OF LAW – FULLER (PROCEDURAL CONCEPT OF THE RULE OF LAW)...............................................................................7RULE OF LAW – DWORKIN (SUBSTANTIVE AND FOCUS ON RIGHTS)........................................................................................7PROBLEM UNDERLYING THESE VERSIONS OF THE RULE OF LAW IS ARBITRARINESS................................................................8

REMEDIES ............................................................................................................................................................................ 8

STATUTORY AUTHORITY........................................................................................................................................................8CHARTER.................................................................................................................................................................................8UNIQUENESS OF ADMINISTRATIVE TRIBUNALS....................................................................................................................8ENFORCING TRIBUNAL ORDERS AGAINST PARTIES.............................................................................................................9A PARTY SEEKS TO ENFORCE A TRIBUNAL’S ORDER..............................................................................................................9CHALLENGING ADMINISTRATIVE ACTION WITHOUT GOING TO COURT............................................................................9INTERNAL TRIBUNAL MECHANISMS.........................................................................................................................................9EXTERNAL NON-COURT MECHANISMS....................................................................................................................................9USING THE COURTS................................................................................................................................................................10PREROGATIVE WRITS.............................................................................................................................................................11PRIVATE LAW REMEDIES.......................................................................................................................................................12

PROCEDURAL FAIRNESS ............................................................................................................................................... 12

STATUTORY SOURCES...........................................................................................................................................................12BC’S ADMINISTRATIVE TRIBUNALS ACT............................................................................................................................12LEGAL PROFESSION ACT AND LAW SOCIETY OF BC RULES..............................................................................................13CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PROCEDURES.................................................................13COMMON LAW DUTY OF FAIRNESS.....................................................................................................................................14

THE CONTENT OF PROCEDURAL FAIRNESS .......................................................................................................... 16

EXAMPLES OF PRE-HEARING ISSUES..................................................................................................................................16NOTICE...................................................................................................................................................................................16ORAL HEARINGS.....................................................................................................................................................................17THE RIGHT TO COUNSEL........................................................................................................................................................17DISCLOSURE AND OFFICIAL NOTICE......................................................................................................................................18

INSTITUTIONAL DECISION MAKING ........................................................................................................................ 18

SUB-DELEGATION.................................................................................................................................................................18CONSULTATIONS AMONG AGENCY MEMBERS...................................................................................................................19AGENCY GUIDELINES............................................................................................................................................................19

INDIGENOUS SELF-GOVERNMENT AND THE FUTURE OF ADMINISTRATIVE LAW ................................. 20

DUTY TO CONSULT AND ACCOMMODATE...........................................................................................................................20

WHAT IS (AND ISN’T) ADMINISTRATIVE LAW?...................................................................................................................20FAIRNESS................................................................................................................................................................................20INDEPENDENCE.......................................................................................................................................................................21ACCOUNTABILITY...................................................................................................................................................................21IS THERE AN ABORIGINAL MODEL FOR ADMINISTRATIVE DECISION MAKING?.............................................................21

IMPARTIALITY & INDEPENDENCE ............................................................................................................................ 22

INDEPENDENCE......................................................................................................................................................................22REASONABLE APPREHENSION OF BIAS................................................................................................................................23STATUTORY AUTHORIZATION..............................................................................................................................................25INSTITUTIONAL BIAS.............................................................................................................................................................25

REASONS ............................................................................................................................................................................. 25

SUBSTANTIVE REVIEW .................................................................................................................................................. 26

WHAT STANDARD OF REVIEW APPLIES? (DUNSMUIR).......................................................................................................271A – IS THERE A STATUTORY INDICATION OF WHICH SOR APPLIES?...................................................................................27[1B] HAS A PREVIOUS CASE DECIDED THE APPROPRIATE SOR IN A SATISFACTORY MANNER?.............................................29[2] IF NO “SUITABLE PRECEDENT”, DETERMINE THE APPROPRIATE SOR:..............................................................................29APPLYING CORRECTNESS.....................................................................................................................................................32APPLYING REASONABLENESS...............................................................................................................................................32SUBSTANTIVE REVIEW AND THE CHARTER........................................................................................................................34

ONLINE DISPUTE RESOLUTION AND JUSTICE SYSTEM INTEGRATION ....................................................... 36

THE CIVIL RESOLUTION TRIBUNAL....................................................................................................................................36COMPARISON OF PUBLIC AND PRIVATE ODR PROCESSES.....................................................................................................36WHY THE CRT?......................................................................................................................................................................36HOW DOES THE CRT WORK?.................................................................................................................................................36CHALLENGES FACING THE CRT.............................................................................................................................................37

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Problems, Actors & ContextThree Components of Administrative Law:

1) Constitutive Lawo Originating statute

Examples: immigration and refugee boardo Source: legislation

2) Substantive lawo Body of law produced by administrative decision makerso Source: administrative decisions

3) Procedural Lawo Requirements decision maker must fulfill, remedies for unhappy parties, on what basis can a court interveneo Source: common law & statute

What is the administrative state? What function does it serve? Definition: All of the institutions involved in the delivery of public programs Function: Government identifies problems not addressed by private law and creates law to address it – statute and

specialized by a branch of government (e.g. environmental pollution)

Who comprises the administrative state? Legislature: enact leg that empowers Administrative Decision Maker (ADM), executive oversight over ADM (question

period) Cabinet & Ministers (power set by legislation, not inherent): enact regulations, budget design, oversight of ADM

(ministers/cabinet), make admin decisions (cabinet, ministries)o E.g. NEB recommendations, executive decide whether to make a pipelineo Common power delegated to ministers for creating regulationso But also make individual decisions (e.g. Insite’s CDSA exemption)

Municipalities: enact subordinate legislation (by-laws), implement admin programso Elected council – democratic accountabilityo But can only exercise powers delegated to them by statute – Local Governments Act, Vancouver Charter

Crown Corporations Private Bodies with Public Functions Independent Administrative Agencies

o Some measure of independence from the government – cannot be told to make certain decisionso Fixed term for the memberso Process to be followed before decision is madeo Specialized – Adjudicative functions (e.g. human rights tribunals, labor arbitrators), policy making functionso Intersection between state and individualso Differences: some more like courts than others, some granted largely policy-making mandate, membership can vary

(who are the commissioners), final decisions vs recommendations (e.g. NEB)

Who oversees the administrative state and how? Legislatures: change legislation or regulations, ombudsperson (not legally binding) Cabinet: appointment of ADMs, review of administrative decisions Internal agency review processes Judicial review

Key aspects of an administrative decision – HOW TO READ AN ADMIN DECISION Legislation: legislative authority Admin decision-maker: government department, administrative tribunal, municipality Subject matter – eg employment Function of admin decision-maker – adjudicating? Making policy? Decision-making process

What legal challenges arise from the operation of the administrative state? Front-end (design) – Why agency and not the government? Why agency and not the courts?

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o A decision that is more multifaceted than what a court may deal with – variety of considerations rather than specifics of two parties

o Agencies comprised of people with different kinds of expertiseo Access to justice: more informal, more accessible, more efficient than courts

Rule of law: Court-like processes but designed not to be like a court, need some judicial oversight, should they follow a court-like process and if not, what should it look like

Delegation, Design & Good AdministrationDiscretion: power of free decision or latitude of choice within certain boundsRules: legally binding requirements – legislature has to expressly grant to the decision maker in a statute the power to make rules

All binding requirements, including rules and regulations, municipal by-laws and certain orders in council made by Cabinet (e.g. permissible levels of pollution, required content of a prospectus, etc.)

More specific than legislation, general nature, prospective Can be by an Independent Administrative Agency (IAA) or the legislature/executive

Soft Law: developed by administrative decision-makers but is not legally binding – includes guidelines and policies Implicit in any delegation authority Flexible, efficient, can change, prospective E.g. NEBA – ss. 55.2: guidance on participation in a facilities hearing

Adjudication: one-off disputes, individual cases Retrospective – dispute resolution Legally binding E.g. NEGA – Board may issue a certificate to grant the company leave to construct a pipeline (case-by-case basis)

Why do Legislatures Delegate to Administrative Decision-Makers?1. Expertise – main reason

o Impossible for legislature to have the sufficient expertise to understand every detail necessary for regulating a complex welfare state – central to the standard of review

o Power to make requirements as the world changes is important to increase flexibility – altering legislation is very difficult and time-consuming

2. Timeo Legislature also lacks the time necessary to make all the decisionso No time to think through all the different ways in which specific provisions should be structured, relate to other

provisions, and may apply in specific cases3. Information

o Related to the issue of timeo Legislature also lacks information necessary to make all the decisionso They will never have information about the future – someone can contravene the policy behind a rule in a myriad of

different ways4. Flexibility

o It is extremely difficult and time consuming to alter legislation so administrative rules are a tool that can be used to make new requirements as changing situations require

o Especially useful re: important/rapidly changing areas like securities regulation5. Costs

Canada v Thamotharem: effective decision-making often involves striking a balance between general rules and the exercise of ad hoc discretion, or between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other

Soft law documents help public to predict outcomes

The Risks of DelegationPrincipal-Agent Relationship: when a principal gives an agent the power to undertake some task on the principal’s behalf

Problems:o The administrative agent who makes the rules or soft law may not be following the wishes of the legislature

May follow its own views and values May not be attempting to further the public interest, but rather its own interest

o Agency capture: agent promotes a partisan or narrow interest influenced by interest group, lobby group, industry, etc.

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Legislators may delegate to further their own interests: broad legislation, delegate rule-making, avoid blame Special concern: delegating of public services to private actors

Delegation and Design Checklist (1) What is the public problem?(2) Is it a matter that the legislature should delegate? Does it require:

a. Expertiseb. Time and Informationc. Flexibility

(3) To whom should the delegated power be given?a. Which institution?b. Composition of that institution?c. Cabinet often retains some control (e.g. NEB makes pipeline safety rules, Cabinet approves)d. Choice of body: energy regulation (NEB), or environmental issues body – outcome may be differente. Composition of the body (e.g. reps of different groups)f. Cabinet can steer bodies through appointment and removal (harder)g. Privative clause: decision of a body is final and not reviewable by any court

i. Courts reluctant to give full effect to such clausesii. But more hesitant to interfere

h. Or require leave of the court to get an appeal (harder)i. Screening process raises costs and reduces probability of a review

ii. Can also underfund the body(4) What kind of powers should be delegated?

(That is: What administrative tools are needed to fulfill its purpose?)a. E.g. Should this decision-maker be giving the power to make its own rules?b. E.g. How much should this decision-maker be structured like a court?c. Legislature may attempt to structure interpretation of rules through a purpose provision

i. Aid those making regulations, and the courtsd. May include provisions giving guidance on what types of regulations are consistent with the Acte. Soft law does not require statutory basis b/c it is not legally binding

i. E.g. Immigration and Refugee Protection Act includes “may issue guidelines”f. Willingness to delegate depends on confidence in party exercising the power

i. And that there are controls on the exercise of discretion, processes, oversight(5) What kind of controls can be used to help ensure the proper exercise of delegated authority?

a. Legislative controli. Statutory Instruments Act: general process requirements for how rules are made

b. Executive controli. Cabinet directives – attempt to control how rules and guidelines are made

ii. Decision-makers themselves may also make rules or guidelines about the process to follow in making decisions

c. Judicial controld. Procedural control

i. Honour of the Crownii. General legislation

iii. Specific legislationiv. Executive Orders (e.g. Federal Cabinet Directive 2012)v. Agency Rules/Guidelines

e. Consultationi. May involve many different processes to gather and analyze information and formulate appropriate rules

ii. Public participation better rules or guidelines1. Get all relevant information2. Promote active deliberation where issues are debated and ideas exchanged

iii. Reduce probability of mistakes by rule-makersiv. Increases scrutiny aligns with public interestv. Risks

1. Expensive and time-consuming slow rule or guideline making process2. Provide another avenue through which interest groups can pressure those making the rules or

guidelines5

3. Those making the rules or guidelines may not actually attend to the public participation4. Public makes mistakes – such as when highly technical or based on complex science, do not invest

the time to become informeda. Believe things because others do – information cascades

(6) Does the design of the institution reflect the needs of those who will access it?(7) Is there a duty to consult and accommodate in rule making?

a. Arises in individual decisions that impact Aboriginal rights, but also in strategic, higher level decisions (Rio Tinto Alcan v Carrier Sekani)

b. Does not extend as far as legislative action (Canada v Mikisew Cree First Nation)c. Plan adopted by Cabinet (order in council) does not take it outside the scope of the duty in appropriate

circumstances (Tsuu T’ina Nation v Alberta)i. Duty may still fall upon those assigned the tasks of developing the policy behind the legislation, or upon

those who are charged with making recommendations concerning future policies and actions

The Rule of (Administrative) LawDicey and the Liberal Idea of the Rule of Law

Absence of Arbitrary Authority – no one should be made to suffer except for a distinct breach of the lawo Has been employed to attack the statutory grant of broad discretion enabling public officials to restrict individual

freedom of contract/property rights Main objections to such powers are that

(i) they may be used to discriminate improperly against or to favour particular individuals/groups, (ii) it is difficult to hold officials democratically accountable for highly discretionary decisions,

and (iii) individuals should be able to plan their lives in accordance with known rules of general

applicationo Constraints from the common law – procedural fairness comes in to ensure there is no arbitrary authority

(Nicholson) Formal Legal Equality – government and citizens alike are subject to the general law of the land

o Has provided justification for the exercise by superior courts of their supervisory jurisdiction over administrative agencies on grounds of procedural unfairness and illegality (even when legislature has apparently expressly excluded judicial review)

Courts have regarded the powers of government as legally limited and the judiciary as the body that is ultimately responsible for determining those limits

o Legislative decisions are not subject to procedural fairness, whereas administrative decisions are Common Law Courts are the Guardians of the Rule of Law – the law of government should be administered in the

ordinary courts (i.e. CL courts) and not in a specialized system of administrative courts (i.e. France)o Entrenching superior courts as arbiters of disputes between individuals and administrative institutions of the state

has given pre-eminence to CL patterns of thought in shaping the legal framework for public programs i.e. rights most keenly protected in law are those recognized by CL liberty of the person, private

property, and freedom of contract On the other hand, courts experienced difficulties dealing with interests created by the administrative state

(i.e. licenses/welfare benefits) and with demands by members of public interest groups for an opportunity to participate before agencies that formulate important policies

FunctionalismMain Premise: Courts should not be inherently distrustful of administrative agencies, and should rather play a facilitative role

a. Function of the law is to allow administrative agencies to carry out the task assigned to them (court executes a facilitative role)

b. Courts, in turn, should show deference to agencies’ choices c. Context has also been considered in interpreting enabling legislation so as to give effect to legislative purpose

Critiques of Dicey’s Approach:1. Some writers challenged the accuracy of Dicey’s assertions:

o Asked whether it was ever true that rights of English people were subject to general law, and not official discretion, and that there was no special body of public law to regulate legal relations between citizens and the state

o Pointed out that at common law, the Crown was immune from liability in tort, that wide discretion was exercised by local magistrates to dispense often brutal forms of criminal punishment, that Dicey misunderstood the French

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system of admin law, and the he overlooked the local courts/specialist agencies in England that were already hearing disputes arising from enforcement of regulations, legislation, etc.

2. Dicey’s disapproval of administrative discretion and his support for affording to the “ordinary courts” a key position in the resolution of disputes between individuals and the admin state could only thwart the implementation of legislative arrangements for regulation and redistribution in the public interest

o Litigation process may have to reduce complex policy choices to a crudely defined “question of law” or an issue of procedural “fairness”, whereas an agency that has specialized expertise/field of experience and access to a range of methods of investigation/decision-making may be better positioned to resolve multifaceted questions of policy

o Liberal idea benefits those with means to hire a lawyer and go to courto Governments likely to take path of least resistance by curbing the effectiveness of public programs

3. It was argued the positivist legal tradition had failed to appreciate that law is intertwined with policy o Legislatures cannot foresee all outcomes; therefore, statutes must often be drafted in general termso It may be impossible, then, to arrive at the intended meaning of the language in an agency’s enabling legislation

without considering the consequences that competing interpretations will have for the program the legislation was created to deliver

o Functionalist approach also stresses the facilitative/legitimizing roles of law as regulator/provider of benefits, the state should be regarded as a source of good

It is the function of law to enable administrative agencies to carry out effectively/efficiently the tasks assigned to them by legislature, the institution that by virtue of election of its members has the greatest claim to democratic legitimacy

o Courts have limited institutional competence on matters of public policy and administration Residual role in overseeing Deference to the reasoned choices of the specialist agency Superior position in matters of procedure, statutory interpretation, fact finding, and the exercise of

discretion

Modifications of Dicey’s Theory to Make It More Palatable:1. With the apparent dilution of public confidence in the capacity of the traditional political process to exercise democratic

control over the operations of government, it is appropriate for administrative law, both through statutory reform and judicial review, to ensure procedural openness and enhance accountability in public administration.

2. While reviewing courts should normally show a measure of deference to a specialist agency’s interpretation of its enabling statute, it is appropriate to scrutinize more closely those decisions that seem contrary to the interests of the intended beneficiaries of the legislation or to that aspect of the public interest that the legislation was enacted to protect.

3. The independence of the judiciary and its experience across a wide spectrum of the legal system make it appropriate for the courts to intervene when they are satisfied that—after allowance for agency expertise, linguistic ambiguity, and an approach to statutory interpretation that emphasizes legislative purpose—the agency’s interpretation was nonetheless unreasonable or outright wrong.

Other Rule of Law TheoriesRule of Law – Fuller (procedural concept of the rule of law)Best maps onto the functionalists:

1. Law creates and sustains social interaction2. Law has its own internal ordering

a. Every form of law (contract, adjudication) has its own internal requirements that come from the form itself (things required to be a contract)

b. Internal requirements are necessary for that form of law to achieve its basic purposec. Its own moralityd. Legislation must be

i. Generalii. Promulgated (written and public)

iii. Prospective, not retroactiveiv. Noncontradictoryv. Constancy through time

vi. Reasonably clearvii. Capable of being performed

viii. Congruence between the stated rule in the legislation and as its applied to the individual – particularly important in administrative law

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Why? Have these features in place to sustain some form of social interaction; know what framework you’re working within; rights and entitlements; punishments

3. Administrative agencies can participate in making lawa. Anybody can make law if they go through these principles – including admin agencies

Rule of Law – Dworkin (substantive and focus on rights)1. Rule of law advances individual rights, dignity and autonomy

a. Implicit in other theories, but explicit hereb. Explicitly connected to individual as a bearer of rights

2. Rule of law requires judges to make determinations of individual rightsa. Determining the scope of individual rights with respect to the state action

3. Judges must interpret the law in a way that best fits with this substantive conception of the rule of lawa. In light of statute, cases and principals of political morality (e.g. respect for individual freedom, equality, freedom of

association)b. Proceed using a variety of sources – reconcile for best outcome

Courts are the guardians of substantive rights (e.g. Webb – evicted from subsidized housing, connection between rights and dignity and not just contractual or property rights), rely on common law in an active way

Problem underlying these versions of the rule of law is arbitrariness Rule of law constraints public authorities Increasingly substantive Dicey: formal division of labour between Parliament and courts

o Formal equality between citizens and other legal subjectso Whether formally valid – grounded in legislation

Fuller: procedural conception of the rule of lawo Concerned with procedure or forms

Dworkin: substantiveo Explicit connection between the rule of law and the individual as the bearer of rightso Judge’s job is to protect those rights and reconcile

Understand a judge’s understanding of the rule of law

Remedies As tribunals do not have the general jurisdiction that a court does, the power to impose a particular remedy must be

provided for in the tribunal’s enabling statute Most tribunals’ composition, structure and mandates are different from courts’ and their approach to remedies reflects those

differences.o E.g. certain tribunals’ expertise with a more limited subject matter may help them to identify systemic problems or

recurring patterns across multiple individual disputes.

Statutory Authority If a tribunal makes orders outside the scope of its enabling statute, those orders will be void Even where a tribunal’s remedial power is less certain (i.e. statute does not expressly permit a particular remedy and there is

no broad discretionary power), it can be argued that, as a matter of practical necessity, a tribunal must have the remedial power to do things its statute requires it to do

o Need express authority to issue monetary orders or to go to court to seek an injunction Lack of equitable jurisdiction to order interim injunctions, although they may be given statutory authority to seek an

injunction in court to enforce a statute

Charter A separate test determines whether certain tribunals can grant remedies under s. 24(1) of the Charter

o “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

Is an administrative tribunal a “court of competent jurisdiction”?o TEST – Conway (2010):

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Is the tribunal a “court of competent jurisdiction? Does the tribunal have the power to consider questions of law?

Has the specific power to grant Charter remedies been taken away from the legislation?

Uniqueness of Administrative Tribunals Legislators regularly delegate detailed policy-making decisions to administrative tribunals Chayes’ Public Law Adjudicatory Model:

1. Administrative tribunals have stronger theoretical justifications for remaining seized of a case over a longer period of time

2. Administrative tribunals may try to develop remedies that address underlying structural or systemic problems, in a forward-looking rather than retrospective, rights-oriented way

3. Tribunals may be especially well placed to develop and implement novel remedies thanks to their subject-specific expertise, their field sensitivity and their particular statutory mandates

Tribunal members are more diverse than judges, especially in terms of training and expertise because some require members be “laypeople”

Public-Private Coordination “New Public Management Theory” – administrative tribunals can retain ultimate accountability for their programs but can “outsource” the implementation of these programs to private or third-party actors

Transnational linkages: impact on tribunals through international agreements, obligations and norms E.g. McKinnon: relocation of certain individuals, publicizing the tribunal order among corrections employees, human rights

training program roster of external mediators, third-party consultanto Represents Chayes’ public law litigation model – remedies are prospective, open-ended and subject to ongoing

revisions and elaboration systemic change to the institutional culture Moore: SCC quashes many of the tribunal’s unique remedies because the complaints were too remote from the remedies

Enforcing Tribunal Orders against Parties Any enforcement powers a tribunal has must be granted to the tribunal in its enabling statute and that delegation of

enforcement power must pass constitutional scrutiny Tribunal must make an application in court to enforce any order it makes – after this, it can be enforced in the same

manner as a court judgment Contempt proceedings may be available if a party fails to abide by a tribunal’s procedural order or a tribunal’s final

substantive ordero Contempt can be civil or, here the conduct constitutes an intentional public act of defiance of the court, criminal.o Only violations of “clear and unambiguous” tribunal orders will form the basis of a contempt order

Most administrative tribunals do not have the ability to make contempt orders on their owno The Criminal Code provisions should apply where no “punishment or other mode of proceeding” is explicitly set out

in the tribunal’s enabling statute.

A Party Seeks to Enforce a Tribunal’s Order A party to an administrative action may also bring an action against another party in court to enforce the tribunal’s

ordero Party’s success “may depend on whether the tribunal order is of a type that a court would enforce, and whether the

court believes it should enforce the tribunal order in the absence of any statutory procedure for obtaining court assistance”

Challenging Administrative Action without going to Court A party may challenge the tribunal’s jurisdiction, its procedure, its impartiality, or the substance of its final decision

Internal Tribunal Mechanisms Some enabling statutes provide tribunals with the ability to reconsider and rehear decisions they have made

o Absent such authority, a tribunal cannot reconsider or alter a final decision made within its jurisdictiono Easier and efficient to do an internal review rather than have it go to courto Can maintain the integrity of the administrative process because the individuals have a specific kind of expertise,

priorities and values and can make a decision from that perspective Some tribunals are part of multi-tiered administrative agencies they have their own appeal boards Some statutes allow for appeals to the courts

o Where the statute does not provide for this, the only access to the courts is by means of judicial review

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External Non-Court Mechanisms Ombudsperson: mandate to provide a forum for citizens to bring their complaints regarding the way that government

departments and agencies have dealt with themo Jurisdiction as being over “matters of administration” and court have tended to define “administration” expansively

as involving generic administrative processes, not simply as the antonym of “judicial processes”o Most ombuds statutes provide that an ombudsperson is not authorized to investigate a tribunal’s decision until after

any right of appeal or review on the merits has been exercised or until after the time limit for doing so has expired

Using the CourtsOption 1: Statutory Appeal1A: Does the party have the right for statutory appeal?

1. Does the tribunal’s enabling statute provide a right of appeal?a. Courts do not have inherent jurisdiction over tribunals so right to appeal must be in the enabling statuteb. If so, it will usually stipulate which court this right of appeal is to – BC Securities Commission is straight to the

BCCA (sign of respect + deference)i. Statute will tell you what you can appeal and when

2. What is the scope of the available appeal?a. This is determined entirely by the enabling statuteb. Some may permit a de novo review (whole new review), some might be limited to questions of lawc. Scope is determined re: how closely the tribunal’s mandate/expertise mirrors that of courts

3. Is the appeal a right? Can you get an appeal by leave only? If yes, who may grant the leave for appeal?a. By right = automaticb. By leave = either by the original decision-maker or more commonly by the appellate body

1B: Was the body authorized by its statute to make the order?1. Tribunals are a creature of statute. Therefore, if a tribunal makes an order outside the scope of its enabling statute, those

orders will be void (i.e. Moore: SCC quashes many of the tribunal’s unique remedies because the complaints were too remote from the remedies)

2. Thus, to determine what types of remedies the tribunal can grant, you NEED to look to the tribunal’s capacity and structure as per its enabling statute

a. Sometimes, the tribunal will have the power to rehear and reconsider decisionsb. Some are part of multi-tier administrative agencies with internal appeals availablec. Does not preclude appeals to the court but unless provided for, the only avenue is judicial review

3. Even where a tribunal’s remedial power is less certain (i.e. statute does not expressly permit a particular remedy and there is no broad discretionary power), can argue that, as a matter of practical necessity, a tribunal must have the remedial power to do things its statute requires it to do

a. NOTE: Need express authority to issue monetary orders or to go to court to seek an injunction

1C: Can the administrative body grant a remedy under s. 24(1) of the Charter?A separate test determines whether certain tribunals can grant remedies under s. 24(1) of the Charter

o “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

o TEST – Conway (2010): Is the tribunal a “court of competent jurisdiction? Does the tribunal have the power to consider questions of

law? Has the specific power to grant Charter remedies been taken away from the legislation?

If you go through with statutory appeal and are displeased, or you have no right under the statute, go to judicial review

Option 2: Judicial ReviewJudicial review is an exceptional remedy that goes beyond what the statute provides for and is discretionary

JR is about the inherent jurisdiction of courts to oversee and check administrative action in the interest of the rule of law

2A: Should the court grant judicial review? Courts retain the discretion to hear or not to hear an application for judicial review

o A court has the discretion to refuse to grant a remedy even where one seems clearly warranted on the facts WHY? – review of executive action beyond what the legislature provided for EXCEPTION of habeas corpus – Mission Institution v. Khela as this is a court’s equitable jurisdiction that

it is not bound to exercise

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o Court’s decision to grant judicial review is caught up in tension between ROL + democracy as embodied by Parliament/its decisions to empower them – (Domtar v Quebec: court decided not to intervene where there where two admin bodies’ respective decisions were in conflict)

Grounds for refusing relief: (Khosa) Adequate alternative remedies are available – parties should exhaust all other legal avenues for review before proceeding

to the “last resort” of judicial review Judicial review applications brought before the tribunal proceeding has concluded are usually dismissed as being

premature, but a judge has the discretion to hear an early application Delay and acquiescence may be grounds for a reviewing court to refuse a remedy Remedy in judicial review will not be granted where the issues are moot – where a dispute is over or has not yet arisen,

where a tribunal’s order has expired or no longer affects the applicant, or where the litigant no longer actually wants the remedy that the tribunal may have granted had it not erred

Discretion will be used when the party seeking judicial review does not come with clean hands (e.g. seeking a remedy to facilitate illegal conduct, obtain an unfair advantage, flouting the law or making misrepresentations)

However, courts have moved past the traditional restrictive grounds and began also refusing judicial review out of deference to tribunals’ unique institutional roles (e.g. Domtar)

Domtar: this case involved a question of statutory interpretation; two tribunals – the CALP Commission that oversaw Domtar and the Labour Court in a previous case – had interpreted the same provision differently; SCC said the Commission is the one tasked in interpreting this matter and should be given deference; the rule of law must be “qualified” – if the court decided this case, it would change a discretionary remedy to a more permanent one

Deference to tribunals is to strike balance between courts’ role in upholding the rule of law, while avoiding “undue interference” with administrative powers

But discretion should be exercised with the “greatest care” not to encroach the rule of law (Mining Watch) Balance of convenience to the various parties is another factor that has increased in salience (Mining Watch)

2B: Does it pass the threshold factors? 1. Whether the tribunal whose actions are being challenged is, in fact, a public body (judicial review available to check

executive action – must be a public body)a. Air Canada v Toronto Port Authority: no definitive test for determining whether a party is a public body

i. Factors: character of the matter for which the review is sought, nature of the decision maker and its responsibilities, whether the party is an agent of the government, influenced by another public decision maker, suitability of public law remedies, existence of a compulsory power, exceptional category case where the conduct has a serious public dimension (fraud, bribery, etc.)

2. Preliminary decisions not subject to judicial review3. Whether the challenger has standing, including discretionary “public interest standing”

a. Need to consider whether the board/tribunal have standing to appear before the court (Ontario Energy Board v Ontario Power Generation)

i. Whether anyone else can argue this position; the closer the decision is to policy-making, the more likely the tribunal will be allowed to go before the court; vice versa with the decision being adjudicative

b. Public interest standing (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society): (a) The case raises a serious justiciable issue, (b) the party seeking standing has a genuine or real stake in the issue, and (c) the suit is a reasonable and effective means to bring this matter before the courts

4. Decide which court to apply to (provincial vs federal)5. Not miss any deadlines6. Exhaust all other adequate means of recourse for challenging the tribunal’s actions (Harelkin). Considerations include:

a. The convenience of the alternative remedy, the nature of the error alleged, the nature of the other forum which could deal with the issue, including its remedial capacity, the existence of adequate and effective recourse in the forum in which litigation is already taking place, expeditiousness, the relative expertise of the alternative decision-maker, economical use of judicial resources and cost.

Appellate court’s role in a judicial review case: Determining if there was an error in law by the lower court – they do this by stepping into the shoes of the lower court

Prerogative Writs Certiorari (“cause to be certified”): special proceeding by which a superior court requires some inferior tribunal, board or

judicial officer to provide it with the record of its proceedings for review for excess of jurisdictiono Successful certiorari application results in the quashing of a tribunal’s order or decision – remitted to the

administrative decision-maker who still retains the statutory jurisdiction to decide

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o E.g. NEB case Writ of Prohibition: special proceeding issued by an appellate court to prevent a lower court from exceeding its jurisdiction

or to prevent a non-judicial officer or entity from exercising a power (similar to an injunction to prevent an unlawful assumption of jurisdiction)

Mandamus (“we command”): writ issued by a superior court to compel a lower court or a government agency to perform a duty it is mandated to perform – can be combined with an application for certiorari

o Certiorari would be used to quash the decision, while mandamus would be used to force the tribunal to reconsider the matter

o Variation on mandamus gives the court the ability to send a matter back to a tribunal for reconsideration with directions

o Cannot be used to force an administrative decision-maker to exercise its discretion in a particular way Declaration: judgment of a court that determines and states the legal position of the parties, or the law that applies to them

o Public law kind to declare some government action ultra vires o Private law kind to clarify the law or declare a private party’s rights under a statuteo E.g. Khadr: declaration that the executive action was unconstitutional

Habeas Corpus (“produce the body”): less common, employed to bring a person before a court, most frequently to ensure that the prison’s imprisonment or detention is not illegal

Quo Warranto (“by what warrant/authority”): less common, used to inquire into what authority existed to justify acts or powers claimed by a public office

Private Law Remedies To seek monetary relief, an aggrieved party must initiate a separate civil action for restitution or damages alongside, or in

lieu of, a judicial review application To succeed in an action for tort of misfeasance in public office, the plaintiff must establish, in addition to the basic elements

of negligence:o Deliberate and unlawful conduct by someone in public officeo The public officer’s subjective knowledge that the conduct was unlawful and likely to harm the plaintiff – clear

proof commensurate with the seriousness of the wrong is required

Procedural Fairness Procedural Fairness: concerned with having a context-sensitive set of procedures, sliding scale between less and more

procedures Process: the path for decision-making; the adjudicative process used by courts to make decisions (incl. notice,

discovery/disclosure, participation/hearing, application of law of evidence, counsel, cross-examination, impartial decision maker)

o More process = more complexity (which might decrease access to justice and administrative tribunals are created to provide more access)

o Always be thinking between additional procedures and the mandate of the tribunalso If the procedure is unfair, the decision is invalid

Natural Justice: historic common law origins of the duty of fairness, duty to act judicially, courts only imposed this on decisions that had judicial or quasi-judicial character

Statutory Sources An enabling statute may set out a detailed list of procedural requirements that decision-makers must follow in making

specific decisionso Regulations enacted pursuant to enabling statuteo Rules made pursuant to enabling statuteo General procedural statute (e.g. Administrative Tribunals Act): sets out general procedures, may be imported into

enabling statutes Statutes can override common law’s duty of fairness, but must do so clearly and unambiguously Legislatures may choose to statutorily delegate to the executive – the (lieutenant) governor in council, an individual minister,

or the board itself – the power to enact regulations or rules that establish procedural requirementso Motivations: expertise and efficiency o To minimize the risk of the principal-agent problem (those who are making the rules may not follow the wishes

of those who delegated the powers), delegated legislation is subjected to various mechanisms of accountability and scrutiny

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o Another accountability mechanism is public consultation. Most common form is achieved by requiring regulatory bodies or departments, by policy or statute, to provide public notice of regulatory initiatives, including draft regulations as well as an opportunity by affected parties or members of the public to comment.

o A measure of accountability may be achieved through the judicial review of subordinate legislation Public authorities will frequently issue guidelines and policies, sometimes regarding the procedural aspects of decision-

making, which do not set down legally binding requirements (soft law)o Power to do so may, but need not, be in the enabling statute

BC’s Administrative Tribunals Act Provisions that enable tribunals to manage the proceedings before them and ensure that parties are treated fairly, such as:

o ss. 19-21: the serving of notice or documents, including the manner of serviceo s. 32: representationo s. 33: the participatory right of intervenerso s. 34: the power to compel witness testimony or order documentary disclosureo s. 38: the examination of witnesseso s. 39: adjournment of proceedingso s. 40: admission of evidenceo s. 41: publicity of the hearing

These powers authorities, and obligations may be adopted by tribunals through direct reference to the ATA within their enabling legislation

Do not have the right to sue panel members

Legal Profession Act and Law Society of BC RulesLegal Profession Act

s. 19: No person may be enrolled as an articled student, called and admitted or reinstated as a member unless the benchers are satisfied that the person is of good character and repute and is fit to become a barrister and a solicitor of the Supreme Court.

s. 22: benchers’ rule-making authority s. 41: benchers’ rule-making authority for hearings and panels s. 43: an applicant or respondent in a hearing or panel has the right to counsel s. 44 (2): right to call witnesses

Law Society of BC Rules Set out the rules for credential hearings, including notice, security for costs, pre-hearing conference, appointment of the

panel, adjournment of the hearing, onus and burden of proof, and the procedure Right to costs, appeals, reasons and anonymity (if rejected) Court has the power to exclude the public for certain parts

Constitutional and Quasi-Constitutional Sources of Procedures Procedural rights also receive constitutional protection under the Charter and under quasi-constitutional instruments,

including the Bill of Rights and Quebec Chartero Quebec Charter includes a provision stating that everyone is entitled to full and equal public hearing by an

independent tribunal Legislation may expressly deny certain procedural safeguards or provide a lower level of safeguards – only constitutional

norms may override the statute Constitutional provisions may establish procedural claims in circumstances where none existed previously at common law

o These provisions may mandate a higher level of procedural protections than would the application of common law procedural fairness to the challenged species of administrative decision-making

o E.g. Honor of the Crown – constitutional obligation to contemplate action that will affect Aboriginal and/or treaty rights

Canadian Bill of Rights Confined to the federal domain and no relevance to provincial statutes or decision-making under provincial jurisdiction Purports to be applicable to both prior and subsequent legislation in that it declares its primacy over all other legislation

unless that legislation expressly provides that it overrides the Bill of Rights (s. 2) Provisions:

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o s. 1: 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;

o s. 2: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(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;

Canadian Charter of Rights and Freedomss. 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. The procedural rights of the party affected by a government decision (e.g. administrative decision) are triggered only where

the decision engages that party’s life, liberty or security of the person The guarantee of the principles of fundamental justice in s. 7 is not conditioned by any reference to a hearing Protection against self-incrimination (s. 13), guaranteed access to an interpreter (s. 14), protections against “unreasonable

search and seizure” (s. 8) and arbitrary detention or imprisonment (s. 9) s.32(1) indicates that the Charter applies to parliament/legislature and governments of Canada and each province; as

administrative entities derive their authority from the executive (government), the Charter applies to them s.52(1) indicates that the Constitution is the supreme law of Canada and any law that is inconsistent with it is of no

force/effect Threshold question for activation of s.7 is whether the life, liberty, or security interests are impaired – if not, it is still possible

to look to the common law principles of procedural fairness or the Bill of Rights

What can the applicant get from the application of either Statute? As per Singh v Canada (Minister of Employment & Immigration) you can look to Bill of Rights, Charter, or CL right to PF to

get this result - all provide similar content Common law principles are not constitutionalized, but inform content of s.7 principles through the Baker test: (Suresh)

o Nature of the decision being made and the process followed in making it o Nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”

Court in Suresh holds that more procedural protections should be accorded where decision is final/there is no appeal, tends towards more fairness in this case

o Importance of the decision to the individual(s) affected o Legitimate expectations o Choices of procedure made by the agency itself

If this test not met, then obviously the deprivation is not in accordance with principles of fundamental justiceo HOWEVER, Conway indicates that the Charter will not give a broader remedy in the administrative law context than

would be available under administrative law, as an administrative entity, while required to comply with the Charter, can only grant remedies within its statutory purview

Common Law Duty of Fairness If a particular procedure is not required by a public authority’s enabling statute, valid delegated legislation, or a general

procedural statute, or if the procedure is required only to a limited extent, the authority may nevertheless be obliged to provide an affected party with fuller procedural protection under the principles of common law procedural fairness

Grounds for common law process: fills legislative gaps, implicit in legislation, common law bill of rights (through the courts, we have imposed certain procedural rights)

A party affected by a public authority’s decision is entitled to be heard by the authority in an impartial and independent hearing (Cooper and Baker)

1A – Threshold Test (Knight – elaborated on Cardinal)1. Nature of the decision: Specific/administrative nature (duty) vs general/legislative (no duty)

a. Begin with the assertion that there is a common law duty of procedural fairness that extends beyond duties outlined in authoritative statute (Cooper)

b. Legislative or General Decisions = No Procedural Fairness (Cardinal)i. Provincial/Federal government legislation = legislative decision

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ii. Policy based, discretionary decisions that merely affect individuals (but are not about the individual) are more likely to be deemed legislative (Canada (Attorney General) v Inuit Tapirisat of Canada)

iii. Canadian Doctors for Refugee Care Hospitality House: Cabinet decision that underscores the fact that decisions that affect groups of individuals (even if they are easily identifiable as groups), if the decision is made by elected individuals (cabinet members), it would be difficult to characterize as specific/administrative nature

1. Contrast with the decision in Desjardins v Bouchard where Cabinet’s decision to revoke criminal pardon WAS NOT legislative, primarily because it was ABOUT the individual – based on factors specific to that individual

iv. Similarly, a decision targeting one entity, even though there are other broader public interests at play, was deemed to be administrative (Homex Realty: rule, bylaw, delegated legislation)

v. Reference re Canada Assistance Plan: definitively of a legislative nature because it is the decision of the legislature common law duty of fairness does not apply

vi. Legitimate expectations cannot be applied to legislation, only administrative process (Reference re Canada Assistance Plan)

vii. Vanderkloet: Reorganization of students in school did not amount to school closure + so did not trigger the ministerial guidelines or CL PF. Board had complete discretion over the reallocation of students + decision did not “affect the legal rights of any person”.

c. Administrative or Specific Decisions = Procedural Fairnessi. PF ONLY applies to final decisions NOT interim or preliminary decisions Knight

ii. Things to look for to classify a decision as administrative:1. Personal – about a specific individual (see Homex Realty and Desjardins v Bouchard above)

2. Relationship between the parties (modified by Dunsmuir): Public law vs Private lawa. If the relationship is truly private, then no procedural fairness is requiredb. Dunsmuir changes characterization of employer-employee relationship from that established in Nicholson and

Knight in that a public servant employment contract is private lawc. If the statutory framework closely governs the rights and obligations of the parties, then procedural fairness will

be required, even if there is a contractual component (Mavi)3. Impact on the individual: the effect the decision will have on the individual’s rights; distinction between rights and

benefitsa. Consider: distinction between rights vs benefits

i. Webb: Taking away a benefit requires procedural fairness due to the impact it has on the person – expands definition of rights to include benefits and privileges

ii. Cooper: Notice and hearing required because his property was affected, the process would improve accuracy/quality of decision and the statute contemplated process

1B – Legitimate ExpectationsIf a public official creates a legitimate expectation about a specific process, you might be entitled to this process regardless of what happens under the Knight test.

1. Factors (Mavi):a. Where the government official makes representations b. Within the scope of his or her authority to an individual c. About an administrative process that the government will follow, d. The representations said to give rise to the legitimate expectation are clear, unambiguous and unqualifiede. The government may be held to its word, provided the representations are procedural in nature and f. The representations do not conflict with the decision maker’s statutory dutyg. Proof of reliance is not a requisite.

2. Agraira v Canada: legitimate expectations can also operate to enhance the procedures that the individual would otherwise be entitled to, for example, when:

a. “It has consistently adhered to certain procedural practices in the past,” andb. When there are representations made by the official about a substantive result

3. North End Community Health Association v Halifax: the existence of legitimate expectations is just one factor to be considered in the formulation of the duty of fairness under Baker. It is unclear whether you can use the doctrine of legitimate expectations alone to impose procedural fairness or if the doctrine of legitimate expectations is just one of many steps in the Baker test.

4. Doctrine of legitimate expectations can never make a substantive right – only applies to procedural rights and is a very difficult test to satisfy (Reference re Canada Assistance Plan)

2 – How much process? ( Baker Framework) 1. The nature of the decision being made and the process followed in making it

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a. Function of the decision makerb. Nature of the decision makerc. Matters to be determinedd. Process used

o The more judicial the decision, the more procedure required, and the more legislative the decision, the less procedure required.

Classification of decisions as judicial, quasi-judicial, administrative is important because (quasi) judicial decisions will require more extensive procedural protection than administrative ones

2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operatesa. Think of the role of the decision with regard to the statutory schemeb. Greater procedure is required if there is no administrative appeal available, or if the decision is determinative of

the issue (i.e. a final decision).c. Statutory exceptions do not require a great deal of fairness.d. Internal appeal mechanism leads to less procedural fairness because they can correct it themselves, unless they

are limited to the findings of the first level of inquirye. Requirements of fairness may be minimal in the context of preliminary steps to the formal decision-making

process – for example, investigatory procedures3. The impact of the decision/importance of the interest to the affected party

a. The more important the decision, the more procedure required.1) Content of the duty of fairness increases in proportion to the importance of this particular decision to

the person it affectsb. Most important factor to consider

4. The legitimate expectations of the person challenging the decision a. A decision maker cannot vary from their usual practice without good reason.b. The doctrine of legitimate expectations may extend to the content based on the conduct of the public authorities

1) Conduct can be representations, promises, understandings, past practices, etc.c. Idea of holding the government to its word and proof of reliance is not a requisited. If led to believe you can expect a particular result = more fairnesse. Mavi imports LE test as an element when considering content of PF in cases where threshold for PF has been

met (LE can be part of the actual PF analysis, not just a means of accessing a right to PF)5. The agency choice of procedure

a. The more statutory discretion the decision maker has to create its own procedure, the more weight that will be given to this factor.

b. Choices made by agency must be respected, particularly where statute leaves decision-maker the ability to choose its own procedures, or where agency has an expertise in determining what procedures are appropriate

1) ASK: Does the statute leave the decision-maker with the ability to choose its own procedures? Does the agency have particular expertise?

c. Content of the duty of fairness also affects the decision-maker who often has to make tons of thesed. A workable standard is needed that takes into account the procedural choices made by the decision-maker

3 – Specific application of procedural rights1. Notice2. Oral hearing3. Representation by counsel4. Disclosure

The Content of Procedural FairnessExamples of Pre-Hearing IssuesNotice

1. Problems about Form and Manner of Serviceo No particular form required, although it must be effectiveo Common types of notice: written (more usual) and oral

Personal notice (handed personally) is also another norm that the courts will probably require (but not expected when it is for a large group)

o ATA s. 19(1): If the tribunal is required to provide a notice or any document to a party or other person in an application, it may do so by personal service of a copy of the notice or document or by sending the copy to the person by any of the following means:

(a) ordinary mail; (b) electronic transmission, including telephone transmission of a facsimile;

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(c) if specified in the tribunal's rules, another method that allows proof of receipt.o ATA s. 21: If the tribunal is of the opinion there are so many parties to an application or for any other reason, it is

impracticable to give notice of a hearing to a party by a method referred to in s. 19(1), the tribunal may give notice of a hearing by public advertisement or otherwise as the tribunal directs

If no legislative specification is made, presumably the courts will permit notice to be given in some public way—for example, advertisements in newspapers—although recent Canadian authority is sparse.

o Webb: written notice (which she couldn’t read) + meeting with the community relations workero Knight: notice through negotiationso Giving notice by mail creates the possibility that it will not be received in time—or not be received at all.

Re City of Winnipeg and Torchinsky (1981): cannot be held responsible for mail being late Re Rymal and Niagara Escarpment Commission (1981): court can consider mail being late and disrupted

as factors when refusing to exercise its discretion and granting the judicial relief soughto Although administrative decision-makers must make reasonable efforts to provide notice of a hearing, they are

entitled to rely on the addresses provided by the parties and the regulatory regime governing mail delivery. (Wilks v Canada (Citizenship and Immigration), 2009)

2. Problems about Timeo The notice must be given long enough before the date of the proposed hearing to give the party enough time to

decide whether to participate and to prepare – depends on the nature of the interests and the issues involved Where notice is inadequate because it is received shortly before the proceeding is to begin, the defect can

be cured through an adjournment long enough to allow the party to prepare (Zeliony v Red River College, 2007).

o Timing of notices depends on the circumstances of the case; the more extensive and complex the evidence is, the more likely (and the more acceptable) it is that the notices will be closer to the end of the inquiry (Canada v Commission of Inquiry on the Blood System).

o Issues about notice are not confined to pre-hearing notice, but can also arise in the course of a hearing (Canada v Commission of Inquiry on the Blood System)

o Post office rule not applicable – notice must be received 3. Problems about the Content

o Parties must have enough information to appreciate that their rights, privileges or interests may be affectedo The notice must also give enough information about the issues to enable the party to prepare to respond (R v

Ontario Racing Commission)o Mayan: Chuckwagon Association had hearing about driver’s conduct and driver was given notice that his conduct

was unbecoming. Under the rules, fines were permitted, but Association suspended driver’s membership at hearing. Notice found inadequate as Association did not give information (i) about all the conduct being considered and (ii) that suspension was an option.

o Central Ontario Coalition v Ontario Hydro: The Court ruled that there had been a failure to provide adequate notice in the sense that the newspaper advertisement was not only misleading but also not sufficiently informative as to the siting of the proposed transmission lines.

o Re Joint Board under the Consolidated Hearings Act and Ontario Hydro et al: Court determined that reasonable notice had been given to residents affected by a proposed transmission line because the notice had used the term “Eastern Ontario,” which plainly included the area where the line was proposed to be built.

o R v Chester: A prisoner received notice of a hearing about moving him to a restricted unit. The notice implied that only one incident of misconduct was being considered at the hearing and he responded accordingly; in fact, several incidents were considered. The notice was deemed insufficient.

Oral Hearings Definition: face-to-face encounter with the actual decision-maker (or someone formally and legally deputed by that decision-

maker to hear and receive evidence)o Contrasted with hearings that take place purely in writing or on the basis of electronically generated datao Oral hearings required when necessary to ensure a fair process

Credibility is at issue – need to be able to examine the other side’s evidence and witnesses and cross-examine them and you need to testify yourself

A high level of procedural fairness is required – determined at the end of the Baker frameworko Not the norm to get an oral hearing, but rather the exception due to there being a vast range of procedural fairness

concepts that can be used An oral hearing should be granted where: (Khan)

1. credibility is a serious issue; and2. where the consequences to the interest at stake are grave.

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An oral hearing should include an opportunity to appear, to make oral representations, and correct or contradict circumstantial evidence on which the decision might be based (Khan).

An oral hearing was not necessarily a universal component of the “principles of fundamental justice” under s 7 of the charter, though she did reiterate at para 59 the conventional wisdom as to the need for such a procedure “where a serious issue of credibility is involved.” (Singh, confirmed in Suresh).

The minister’s obligation to adhere to the “principles of fundamental justice” in extradition matters did not warrant the imposition of an oral or in-person hearing prior to the making of an order surrendering a person to the requesting jurisdiction. Any submissions as to whether such an order should be made and, if so, as to its terms could be made adequately in writing. (Kindler v Canada (Minister of Justice))

The Right to Counsel ATA s. 32: permits representation by counsel or an agent for parties to proceedings governed by the Act In most hearing situations, the right of the parties to representation by counsel or an agent is assumed and, indeed, in many

cases will be provided for statutorily. Ontario’s SPPA places constraints on the extent to which witnesses, as opposed to parties, are entitled to be represented by

counsel. Some of these administrative statutory regimes suggest that representation by counsel is not a universal right

o NOTE: in Howard v. Stony Mountain, the court concluded that of s. 7 of the Charter has not created any absolute right to counsel in all such proceedings)

When considering the right to counsel under s. 7, one should consider: (Howard v. Stony Mountain)o The circumstances/gravity of the case

Need for reasonable speed in making their adjudication Need for fairness between the parties Seriousness of the charge and of the potential penalty

o The nature of the case Is it a question of law (greater right to counsel) or of fact?

o The complexity of the caseo The capacity of the affected party to understand the case and present their own defence

Disclosure and Official Notice Disclosure: the disclosure to parties of information that the agency has about the decision to be made

o Procedural fairness requires a decision-maker to disclose information relied upon in making a decision sufficient to allow the affected party to make its case

o A party is entitled to both be allowed an adequate opportunity to respond and know what evidence and representations have been given (Kane v Bd of Governors of UBC)

o Power to compel disclosure from another party must arise from statute; it is not inherent (CLRB v Quebecair) When empowered to order production from another party, order should be directed at ensuring parties

know the case they have to meet (Clifford v Ontario)o Exceptions: privilege, statutory exception (e.g. Khela), affects the health and safety of the applicant (e.g. Abel),

commercial sensitivity, documents prepared by the administrative decision-maker, affects national securityo Disclosure on decision to surrender must be sufficient to provide “a reasonable opportunity to state his or her case

against the surrender” (Sriskandarajah v USA)

Access to Information Statutes Many jurisdictions in Canada now have “freedom of information” and privacy laws

o Just because information is exempted from disclosure under freedom of information legislation does not necessarily mean that its disclosure will also be denied in proceedings to which the rules of natural justice or procedural fairness apply

o Reasons that dictate that not every Canadian should have access to certain kinds of information may simply lose their force in the context of proceedings that affect the particular rights or interests of a specific Canadian. (Gough v Canada (National Parole Board)).

If a decision affects your life, liberty or security of the person, you may be allowed to apply for disclosure under section 7 of the Charter

Access to Agency Information Arguments for Disclosure:

o The first is the basic and powerful belief that individuals should have the right to know what government knows about them.

o The second is that disclosure would increase substantially the effectiveness of the participation of workers in the

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decision-making process, because it would enable them to respond to information to be used by the board, and it would also increase acceptability and accountability.

o The third is that disclosure would tend to improve the quality of the reports, by exposing carelessness and vagueness.

Arguments against Disclosure:o Claims that reports are confidential (e.g. doctors’ reports)

Whether disclosure is warranted at all depends on: (Napoli)1. if credibility is at issue; and2. if the potential consequences are serious.

The extent of disclosure depends on: (Napoli)1. what is necessary to answer the case against the party; and2. policy rationales.

Institutional Decision MakingSub-Delegation

Principle of parliamentary supremacy at stake when designated officials or groups of officials improperly delegate their powers to others

o A body to which a power is assigned under its enabling legislation must exercise that power itself and may not delegate it to one of its members or to a minority of those members without the express or implicit authority of the legislation (Therrien)

Circumstances where sub-delegation is okay:o Common law presumption that ministers of the Crown are entitled to act through officials in their departmento Statute explicitly allows sub-delegationo Statute implicitly allows sub-delegation – look at: (Vine v National Dock Labour Board)

Nature of the decision Where a decision is very serious, more judicial, it is much less likely to be implicitly delegated

Statutory scheme/nature of the decision maker Where the decision maker is the kind of body you would not expect to make many decisions (e.g.

Minister of Immigration), it is more likely that delegation is permitted Impact on the individual

Did the delegation actually occur?o If a person keeps ultimate authority for a decision, then it is not delegated (e.g. Trinity Western University v The

Law Society of British Columbia)o There are many administrative duties that cannot be delegated (e.g. appointing someone to an office or position)

(Vine)o Disciplinary powers, whether “judicial or not, cannot be delegated” (Vine)

Rule Against Sub-Delegation: where an enactment delegates rule-making or decision-making authority to a particular person, that person is entitled to exercise the power directly, but is generally not entitled to delegate its exercise to another (TWU)

Factors for determining whether discretion was fettered (when a decision-maker does not genuinely exercise independent judgment in a matter): (TWU: While the Benchers considered themselves bound to pass such a resolution as a result of the referendum vote, the actual exercise of the statutory power was undertaken by them – not a case of sub-delegation)

o Languageo Effecto Expectations of officials

Consultations Among Agency Members Important question: whether, and if so to what extent, the duty of fairness precludes the members of an agency panel who

heard a case from discussing it with other members of the agency, most commonly after the hearing has ended but before they have rendered their decision.

o An ADM cannot hear evidence in absence of the parties (Kane)o But can it have other conversations in absence of the parties?

Discuss policy? Legal interpretation?

To decide whether consultation is acceptable, must look at: (Consolidated-Bathurst)o Nature of the decisiono Nature of the decision-maker

Test for allowing a full board meeting/consultation: (Consolidated-Bathurst)19

1. Discussion is limited to law or policy (not the facts of the particular case) (Kane)o Policy includes: various legal standards which may be adopted by board; issues that have impact going beyond

resolution of dispute between parties; consider statutes, past decisions and perceived social needs. 2. Parties are given a reasonable opportunity to respond to any new ground arising from meeting (this includes policy that

impacts on the case) (Kane)3. The following are positive safeguards: Don’t take attendance, don’t hold votes, don’t take minutes, full board meeting is

convened at the request of the individual ADM.

Sopinka in dissent: Full Board meetings should not be allowed. It all comes down to what the effect of the full board meeting was on the decision (Reasonable Apprehension of Bias can be considered a substantial effect, do not have to prove there was an actual change) // Gonthier for the majority: It’s okay for the ADM to change their minds after the hearing but must have legitimately changed mind based on information and not have been coerced or pressured into doing so.

WHAT WILL FAIL: if there is pressure on the ADM to decide against own conscience and opinions (Consolidated-Bathurst)

Does the “consensus table” (Full Board Meeting) give rise to a Reasonable Apprehension of Bias, LOOK FOR:1. Who can initiate (president or legal counsel?) 2. Consultation process is mandatory after the president has looked at the draft decision3. Took minutes. Vote by show of hands4. “Prior commitment” by President to a different outcome.

Agency Guidelines Tension between “due-process” value that judicial decision-makers should be independent and the “bureaucratic” value that,

as governmental institutions responsible for the delivery of public programs, administrative agencies should ensure their decisions are coherent, thoughtful, and consistent

Informal guidelines cannot fetter the discretion of the decision-maker o Note: this is distinct from formal rules, which may bind individual decision-makerso If a guideline is considered binding, it fetters the discretion of the decision-maker

Guidelines appropriate when:o Specific legal issueo Guidance on mixed fact and law (where certain facts satisfy a particular legal test)o Codify exercises of discretion (e.g. Baker: what satisfies humanitarian and compassionate grounds)o Guidance on procedural issues (e.g. scheduling)

Guidelines are not binding, but there must be a strong reason for not following one or some The fact that a guideline is intended to establish how discretion will normally be exercised does not make it an unlawful

fetter. Some factors to be considered in assessing a guideline that is functionally mandatory would be (Ainsley, cited in Thamotharem: guideline for refugee protection claims was not mandatory, did not fetter, not a coercive environment):

o The language used,o The effects of non-compliance, in practice, ando The expectations of agency and staff regarding implementation.

Indigenous Self-Government and the Future of Administrative Law Aboriginal Administrative Law: distinctive branch of administrative law that is capable of responding to and incorporating

concepts of fairness, independence and accountability from Aboriginal governance contexts and institutions Three main ideas animating Aboriginal administrative law:

o The flexibility and contextual nature of the doctrines and principles of Canadian administrative law appear well-suited to adaptation by First Nations governance, and some of these principles and doctrines, by inertia or by choice, already have come to define early experiences with self-government

o The kinds of administrative justice that should be developed by Aboriginal communities as they assume control over their own public institutions through mechanisms of self-government (e.g. Nunavut)

o Relationship between Aboriginal and Canadian systems – what level of deference should apply when Aboriginal decision making is impugned in applications for judicial review in Canadian courts?

Tlicho: For at least the foreseeable future, Canadian courts will remain a key forum for Aboriginal administrative law.

Duty to Consult and Accommodate Derived from the “Honour of the Crown” and where it applies, it requires the Crown to consult with Aboriginal

communities about land use where the land is associated with a claim by the Aboriginal community20

Compels the crown not just to consult, but also to accommodate Aboriginal concerns, though it leaves to the Crown the determination of how best to do so

Little Salmon/Carmacks: Administrative law is flexible enough to give full weight to the constitutional interests of the First Nation

o In other words, the impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest is entrenched in a section 35 right, will help shape the scope and nature of procedural justice applicable in this context

What is (and isn’t) Administrative Law? Definition: encompasses any law, rule, principle, or practice which governs decision making by government or an entity

governed by statute (e.g. agencies, boards, regulators, tribunals, commissions, etc.)o Narrow definition: sets out the substantive and procedural standards by which those who exercise public authority

will be held legally accountableo Already covers the many functions performed by Aboriginal leaders and band councils which either exercised

governmental or delegated powers pursuant to statutes or treaties

Fairness Those affected by a non-legislative and potentially adverse decision have a right to be heard A decision maker must not have a personal or private stake in the outcome of a decision

o Focus on the “reasonable apprehension of bias” – the closer the connection a decision maker has to the issues to be decided, or to the parties who are affected by the decision, the more likely it is that a reasonable person would perceive bias

Self-evident under the common law that a decision maker can act more fairly when having no connection to the parties affected by the decision

o This standard may be ill-suited to Aboriginal communities, especially ones with small populations of extended families and a long, shared history

Think of the roots of the systemic discrimination of the justice system against Aboriginal peoples as flowing from the fact that judges, administrators and others making decisions affecting Aboriginal community life do not know the people involved

If the reasonable apprehension of bias is seen through the lens of the reasonable Aboriginal person, rather than some more abstract reasonable person, then greater leeway may exist to infuse administrative law with the perspectives of Aboriginal community life

Possible to disentangle the universal concern against bias (i.e. self-dealing) from the more culturally determined application of that principle (e.g. decision maker and affected parties knowing each other or having relationships with one another constituting a reasonable apprehension of bias)

Independence Independence refers to the structures and conditions of decision making, and typically captures independence from

government and partisan concerns Test for judicial independence (Matsqui): security of tenure, financial independence and institutional autonomy

o Lamer J: lack of independence can be determined by simply looking at the makeup of the Board; that is, without having to wait to see it operate in context

What is needed, before the creation of administrative law codes, are First Nations-designed adjudicative or dispute resolution bodies that can independently review decisions of the executive and legislative bodies in the band

Accountability Accountability can refer to a recourse for those aggrieved by decisions in governmental decision making, or to a broader

legal culture of transparency, oversight and justification (where a privacy or access to information commission, Ombudsman or Auditor General, acts to supervise government conduct)

Many have a view that Aboriginal institutions are less accountable than those outside Aboriginal communities o As a response, many Aboriginal institutions model themselves on Anglo-American institutions

May be a mismatch between their formal governments and the standards of political legitimacy found in their cultures

o Borrows argues that First Nations must not try to examine issues of accountability and governance without framing the concept within their own understanding of the world

Borrows states that the power of Aboriginal peoples to judge and hold their own members accountable for their actions (i.e. self-government) is an existing Aboriginal right that is protected under s. 35(1) of the Constitution

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Is there an Aboriginal Model for Administrative Decision Making? Aboriginal government will look different depending not only on the band or tribe, but also depending on the territory and

population base Three models suggested by the Royal Commission on Aboriginal Peoples:

o Nation government modelo Public government modelo Community of interest model

In each of these models, an Aboriginal government “would have powers and authorities in respect of law making (legislative); administrative and policy making (executive); and interpretation, application and enforcement of law (judicial)

o Legislative component may resemble historical structures, existing structures (a council) or government structures common to Canadian governments (e.g. legislative assembly)

o Executive may be composed of individuals, such as chiefs, bodies or councilso Judicial powers will most likely rest with those Aboriginals seen as providing good “counsel and wisdom”, such as

elders and women Cooter and Fikentscher conclude that the Aboriginal approach to law should be shaped by traditional notions – “law should

follow culture”o E.g. Nisga’a Administrative Decisions Review Act sets out the authority and process of the Nisga’a Administrative

Decisions Review Board and it is similar to other tribunals created to review executive decision making across the country

Question as to who has the authority to monitor the accountability of Aboriginal decision makers and the standards against which the accountability should be judged in those circumstances

o The Ojibway government, sentencing circles and the San Carlos Elders Council are examples of Aboriginal governance which ground their legitimacy in distinctly Aboriginal forms of accountability

o Concern is that when those and other similar Aboriginal institutions are subject to administrative review, traditional principles of administrative law will not adequately account for these alternative structures of accountability

o Tlicho seems to assert the autonomy of decisions made by Aboriginal governments, so long as adequate internal accountability exists

Impartiality & Independence Impartiality refers to “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”

(Valente). It is the goal by having an open mind and no influence. o An impartial decision-maker approaches a decision with an open mind and without bias, actual or perceived.

Independence is the means and the structural features that promote impartialityo Look at structural factors and relationships

A decision is tainted by bias if it is based on illegitimate interests or irrelevant considerations, such as the decision-maker’s pecuniary interests, relationships with parties, and preconceived attitudes toward the issues at stake in the proceedings.

o Even the perception, by a reasonable observer, that the decision-maker is predisposed toward a particular outcome undermines public confidence in the administration of justice.

o Ensuring that decision-makers are not unfairly predisposed towards a particular outcomeo Bias it the evil to be avoided – partiality to a particular outcome

Independence[1] Start with the enabling statute – Degree of independence dictated by the enabling statute (Ocean Port: liquor tribunal board distinct from a court, no guarantee of independence). Look at powers of the Minister and other Cabinet members; nature of any penalties can impose; powers of the board; and indications of security of tenure.

Judicial independence has as its core “the complete liberty of individual judges to hear and decide the cases that come before them: no outsider—the government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case or makes his or her decision” (The Queen v Beauregard) – this is what courts get so it is not necessary that tribunals will get this as well.

3 objective structural conditions:o Security of tenure: cannot be fired because someone does not like your decisions (only removed for cause)

Removal process – can the government remove an ADM for things like rendering a decision not in line with the government’s view? (e.g. Keen – Keen, as president of nuclear safety board, was dismissed, called “liberal party hack” // Held: dismissal upheld – President held office “at pleasure” thus fairness requirements met)

BUT “at pleasure” appointment upheld in Ocean Port (look at legislation).

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“At Pleasure” = can be fired for any or no reason at all; serve at the pleasure of the appointing body

Should avoid situations of adjudicators facing possibility of being dismissed at pleasure of executive

In admin tribunals: there are part-time members, fixed term members, etc. Thus, not the same security of tenure as judges (generally).

o Financial security / remuneration: Guaranteed salary. Pay enough so do not have to seek alternative pay and ensure their pay won’t be altered for arbitrary reasons.

o Administrative control (e.g. budget allocations, offices, upgrades, who sits on what case/panel) Can the policy-maker siphon cases away or otherwise play favorites to influence the judge (e.g. through

budget allocation)? E.g. chair getting to decide who sat on panels in Ocean Porto Additional factor – Adjudicative Independence: the ability of a decision-maker to decide, free of inappropriate

interference by other decision-makers (The Queen v Beauregard – no outsider (even other judges) should interfere with the way a judge decides his/her case).

E.g. pressure to decide a certain way or substitution of another’s decision for one’s own.

[2] BUT b/c it’s common law, it can be OUSTED by express language or necessary implication: if the statute states the level of independence (e.g. composition of tribunal, and service “at pleasure” as in Keen and Ocean Port) then that’s the end of the inquiry.

o The legislature should prevail in determining how much independence any tribunal should have. o A legislature can, if it wishes, create a process the common law would brand as unfair. Unless that statutory process

is contrary to the Constitution, the statute governs.o If want independence in this case then would have to find a hook into the Charter Argue: the provisions are

penal in nature, look at interests at stake. o GAPS: Silent or ambiguous legislation can give rise to a common law argument of independence.

There’s no constitutional guarantee in the preamble of the CA, 1867 nor is there an unwritten constitutional principle guaranteeing independence in administrative tribunals (Ocean Port: no const. application to the Liquor Appeal Board)

o Way around : argue the decision-maker is really court-like in function & that need to look at how the tribunal is functioning on the ground (Matsqui) The court held that Ocean Port did not foreclose the constitutional principle applying in some administrative

law contexts. It’s clear that the more of a policy-making role the tribunal performs, the less likely there will be a high level of

independence required.

[3] If it’s not ousted, go to Matsqui ( FN tax assess board comprised of members appointed by band ): Level of tribunal independence (i.e. security of tenure, financial security, admin control, etc) depends on:

[a] The nature of the tribunal (e.g. Nuclear Commission in Keen, liquor appeal board in Ocean Port)o Need to distinguish between adjudicative vs policy decisions; and even between different policy decisions (licenses

vs nuclear safety) [b] The interests at stake (e.g. can the tribunal impose significant financial penalties, Ocean Port); and [c] Other indicia of independence (e.g. if the tribunal members had to swear an oath of independence)

o Operational context : it’s important to consider how the tribunal acts in practice rather than purely on paper (Matsqui) this has really only remained true in the FN context in Matsqui ! Otherwise, the analysis is intimately concerned with how things look on paper.

Reasonable Apprehension of BiasProcedure: Must raise bias, at first reasonable opportunity; Based on reasonable apprehension of bias (RAB), not proof of actual bias; must be substantial (more than mere suspicion)

Reasonable Apprehension of Bias (RAB) ( Committee for Justice and Liberty ): General Test for Bias (used for individual bias and modified for institutional bias)

(a) reasonable apprehension(b) held by reasonable and right-minded persons(c) who have applied themselves to the question and obtained the required information(d) are viewing the matter realistically and practically, and(e) have thought the matter through --- then ask:(f) is the decision maker sufficiently free of factors that could interfere with the ability to make impartial decisions? Consider:

Statutory scheme: what have they built in terms of the statute and agency choice of procedure Parties and relationships in question: what’s the nature of the decision being made

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Note : sometimes a court will use the Baker factors to guide its characterization of the standard of disqualifying bias to apply, or of what will constitute a RAB in a particular context (as per Kozak and Newfoundland Telephone Co)

Objective test, must have some significance to the concern, the reasonable person must be informedo Knowledge of the reasonable bystander: not consistent in Canadian courts, sometimes described as “readily

ascertainable and easily verifiable facts”, sometimes described as “informed” Modified for assessing independence: are you sufficiently free of structural factors like those below

Categories Giving Rise to Bias:1. Antagonism during a hearing by a decision-maker toward a party (or his or her counsel or witnesses)

a. Definition: Sometimes categorized as an issue of fair procedures on the basis that the victim has been denied the opportunity to present his or her case

i. The balance to be struck is that the courts should not inhibit tribunals from controlling their proceedings to ensure that they do not become too protracted and that parties, witnesses, and their counsel keep to the point and generally conduct themselves appropriately

ii. May also manifest an attitude toward the issue to be decidedb. Examples:

i. Unreasonably aggressive questioning or comments about testimony (i.e. asking if defendant is associated with a terrorist group when inquiry completely irrelevant to issue at hand (Canadian College of Business)

ii. May also be a problem in paper hearings – the court may disqualify a decision-maker who reveals in the course of a written or paper hearing an antagonism toward a party or a lack of sympathy with legislative objectives and the way the legislation is being enforced (Baker)

iii. Can extend to lawyers involved in AT hearing if there is concern the lawyer has taken over decision marking function of the AT (Brett v Ontario)

2. Prior Involvement (Relationship Bias)a. An association between one of the parties and a decision-maker: Most important is looking at context of dispute to

see if partiality to be expected – consider: amount of time passed between active association with the person in dispute, necessity, particular community conceptions of what creates bias (e.g. aboriginal communities).

i. Professional Associations1. Failed Challenge – Challenge to labor board decision to approve union b/c one of the members of the

board, as a practicing labor lawyer before his appointment, had been a member of a law firm that acted for a union that became part of the certified union (Marques v Dylex Ltd and Syndicat des cols bleus regroupés de Montréal, section locale 301 c Pointe-Claire (Ville de))

2. AT decision quashed where AT decision maker had legally represented the applicant 7 years prior (Terceira, Melo v Labourers International Union of North America)

ii. Personal Associations1. AT decision overturned b/c everyone on the AT decision making board had a personal tie to the

applicant (applicant’s current business competitor, gf of applicant’s ex-business partner) (Gedge v Hearing Aid Practitioners Board)

b. An involvement by a decision-maker in a preliminary stage of the decision (e.g. already heard the matter before the tribunal): Focus on nature and extent of previous involvement. Depends on the level of involvement, what documents were seen, whether made it to the final litigation, etc.

i. Issues of prior involvement can arise in situations where an appeal from a decision is permitted. The person who made the initial decision could potentially hear the appeal, either alone or as part of an appeal tribunal. This arrangement is generally accepted to create a reasonable apprehension of bias.

ii. A decision-maker’s reconsideration of its own previous decision—not involving an appeal—would not raise the same concern (Landau v Ontario: no reasonable apprehension of bias where the Ontario Human Rights Tribunal had the discretion to reconsider its decisions and a member of the tribunal had refused a request to reconsider an earlier decision made by the same member)

iii. Where a decision-maker has in the same or another capacity already heard the matter before the tribunal (which may be rehearing the matter after a successful judicial review or internal appeal) (Township of Vespra v Ontario (Municipal Board))

iv. Relationship with people putting in an application to the tribunal that makes the ultimate decision (Committee for Justice and Liberty: Crowe was a part of the study group for fossil fuel development and extraction and was later on the NEB looking at one of the projects he worked on before – reasonable apprehension of bias)

v. If it’s a policy decision, then bias less likely to matter (Imperial Oil: Operates a petroleum products facility for 60 years in Quebec and then sells it, new owner finds contamination. New owner works with Ministry to remediate the site but does not work. Site cannot be used for the new owner’s purposes. New owner sues Imperial Oil and names the Ministry as well because it was involved in the failed remediation work.)

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1. SCC says that there was no bias because when the Minister has to make a specific decision, he must comply with precise procedural rights in the legislation, which were adhered to here (notice, rights to be heard and reasons)

3. Pecuniary ($$) or material interest in a particular outcome: where the decision maker’s financial or other material interests are so affected by the outcome of the AT decision they’re making, there’s a RAB.

a. Direct financial interest in outcome = reasonable apprehension of bias i. Convent of the Sacred Heart v Armstrong’s Point Association and Bulgin: a zoning decision by the municipal

Board of Manitoba was quashed because a member of the board was co-owner of a residence in an area that was, arguably, enhanced or protected by the decision.

b. Indirect: Energy Probe (remoteness): no direct pecuniary interest at the date of the hearings; usually arises when individuals who, at the date of the hearing, held some sort of direct relationship with the beneficiary of the decision such that pecuniary benefit might, with certainty, arise even though that benefit might be miniscule

i. Mere possibility of profit too alien, contingent and remote to constitute pecuniary biasc. Widespread group: Pecuniary interest may be held to not give rise to a RAB if an ADM’s gain is no more than that of

the average person in a widespread group of benefit recipients (e.g. just part of an industry that will see a gain). i. Canadian Pacific v Matsqui Indian Band: no personal and distinct interest on the part of the tribunal

members since tax assessment scheme income would accrue to the community and not to any individuald. Statute can authorize bias (common in self-regulating bodies) (Brosseau)

i. E.g. Collective insurance held by all lawyers, law society deciding whether to treat a particular lawyer’s misconduct.

e. Non-pecuniary material interest: Can give rise to a RAB.i. E.g. Labor board considering a case that would impact on ability of gov’t to terminate their own appointments

4. An attitude of a decision-maker toward the outcome (Attitudinal Bias): Come to job with known predisposition. Gleaned from identifiable/expressed attitude of the decision-maker by their comments and attitudes in both the course of the hearing and outside the proceeding (Muddy when your attitudinal predisposition is the very reason you were put in that role)

a. Paine v University of Toronto: U of T professor denied tenure, colleague writes negative review that was then used in deciding his tenure, OCA said that the internal appeal procedures are owed deference

i. If this was decided now, the test to be used would be the Closed Mind Testb. Baker: revealed hostility in Officer’s memo, require openness and impartialityc. Canadian College of Business and Computers v Ontario (Private Career Colleges): asked if the defendant is associated

with a terrorist group when inquiry completely irrelevant to issue at hand

Closed Mind Test: (Different evidentiary burden than RAB) – Question whether the tribunal has a closed mind. The test is whether the ADM’s comments indicate a mind so closed that any submission by the parties would be futile (Newfoundland Telephone): look for policy-making and investigatory functions.

The degree to which the prior, fixed view will be accepted by the court is determined by the nature and function of decision making:

1. Decision-maker is appointed with a known pre-disposition (i.e. elected on a certain issue): Standard or expectation of impartiality is considerably more relaxed in the case of ADM’s exercising legislative or policy functions (anything less than a closed mind may be okay) (Old St Boniface, Richmond Farmland Society).

o E.g. ADM has been elected and is making decisions directly on the issue that they had campaigned upon. RAB could not apply to this situation of municipal government (Old St Boniface, Richmond Farmland Society).

o Test for Elected Groups (e.g. municipal council, law society): members of council should be capable of being persuaded – the party alleging disqualifying bias must establish that there is a prejudgment of the matter to the extent that any representations at variance with the view, which has been adopted, would be futile (Old St Boniface).

i. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors

ii. Look at: (Old St Boniface)1. Statute: delegates to municipal council (elected)2. Nature of the decision: policy/legislative zoning/planning3. Agency choice of procedure: multi-stage process/municipal councillor involvement

o Argument against Closed Mind Test (Richmond Farmland Society minority):i. Closed Mind test encourages a campaign of lip service (saying the rights things to make it look like

they don’t have a closed mind)ii. The threshold test for establishing bias should be a very high one. A decision maker is entitled to

bring a closed mind to this decision-making process, provided that the “closed mind is the result not of corruption, but of honest opinions strongly held.”

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2. Statements made during an investigative phase: Nfld. Telephone (re: Andy Wells (consumer advocate), found mind was utterly closed) – multifunctional admin body may have varying standards depending on the function being performed. Admin bodies that perform investigations, policy-making and adjudication may be afforded more freedom to hold fixed view during an investigation or policy making stage than at an adjudicative stage, so long as no constitutional contraventions.

Statutory Authorization A statute may be sufficiently clear and direct to oust the common law, including any requirement on impartiality or

independence as a component of procedural fairness. Statutory authorization may justify the participation in decision-making of persons who have a firm point of view, a

relationship with one of the parties, or a stake in the outcome.

Institutional Bias Definition: Bias arising from a person’s involvement in multiple stages of a proceeding

o Premised on delegatus non potest delegare (person who’s appointed to make the decision has to be the one to actually make the decision)

o E.g. A person investigates and adjudicates the same caseo E.g. A person decides case in first instance and also reviews it on appealo Brosseau v Alberta: statute authorized Commissioner’s involvement in investigation and adjudicationo E.A. Manning: OSC made a policy against penny stock dealers, policy deemed unlawful, OSC brings adjudicative

proceedings against the dealers, bias established for those at OSC when policy was enacted

Basic Principles:1. Institutional bias is generally improper2. Institutional bias is acceptable if authorized by statute and ADM acting within statutory authorization3. A state permitting institutional bias may be set aside pursuant to s. 7

ReasonsSTEP ONE: ARE REASONS REQUIRED IN THIS CIRCUMSTANCE?GO THROUGH BAKER STEPS TO DETERMINE IF REASONS REQUIRED FOR PF Typically, post Baker courts have required administrative tribunal to give reasons for their decisions to be procedurally fair

o However, SCC DID NOT hold that all exercises of statutory or prerogative power now involve the giving of reasons. o Administrative tribunals DO NOT have a duty to give reasons (Mavi) o When procedural fairness requires a tribunal to provide some form of reasons, a complete failure to do so will

amount to an error of law (Nfld. & Lab. Nurses’ Union v Nfld. & Lab. Bd) When a tribunal’s failure to provide any reasons does not breach procedural fairness, the reviewing court may

consider the reasons “which could be offered” in support of the decision (Dunsmuir)o The importance of the interest at stake triggers the obligation to give reasons (Baker)

Typically, only requires reasons to be provided to the person whose interests are being directly affected (London Limos v Unicity Taxi Ltd)

If someone else who is not directly affected by decision asks for reasons, they MIGHT be able to get them, but less likely

o Before a person can claim a breach of the duty of fairness arising out of a failure to give reasons, that person must first, unless the circumstances are such that the request is obvious and need not be made explicitly, ask for such reasons (London Limos v Unicity Taxi Ltd)

If the duty of procedural fairness and natural justice has been breached, then the failure to request reasons should not prevent one from receiving the remedy

Circumstances where reasons HAVE BEEN REQUIRED to satisfy procedural fairness: Reasons were required where necessary to facilitate the constitutionally guaranteed right to judicial review for jurisdictional

error (Société des services Ozanam Inc v Commission municipale du Québec and Future Inns Canada Inc v Nova Scotia (Labour Relations Board))

The absence of a transcript of a tribunal’s proceedings could be a fatal error if that led to an inability to make out a case for judicial review on the grounds alleged (Canadian Union of Public Employees, Local 301 v Montreal (City))

HOWEVER, there are EXCEPTIONS to the requirement for reasons: Municipal corporations were not obliged even after Baker to provide reasons for decisions in planning matters (Service Corp

International (Canada) Inc v Burnaby (City))26

A minister’s decision to close a college was a “policy decision” and that “[n]o reasons are required to establish or close a college (Gigliotti v Conseil d’administration du Collège des Grands Lacs)

Failure to request reasons DOES NOT bar an appellate review in all cases (although if you want reasons, you should really ask for them) (London Limos v Unicity Taxi Ltd)

STEP TWO: WHAT IS THE CONTENT REQUIREMENT FOR THOSE REASONS? Quality of administrative tribunal’s reasons IS NOT a question of procedural fairness (Nfld Nurses)

o This gets into substantive judicial review which is covered below Rather, the concern at the procedural fairness stage is whether what was provided by the AT does in fact constitute reasons

o TEST : reasons let the applicant/court know WHY a certain decision was reached. Only a complete absence of reasons, where such reasons are required, would constitute a breach of PF (Nfld Nurses)

o Examples of “reasons” The record of a hearing by a Taxicab Board into a license application could, for purposes of compliance with

the common law duty to provide reasons, was sufficient to replace formal written reasons. Main thing is that person can understand the rationale behind the decision (London Limos v Unicity Taxi Ltd)

o Examples of “non-reasons” In order to satisfy the requirement for reasons, the “reasons” must contain an explanation as to why the

particular admin decision was made (Wall v Office of the Independent Policy Review Director). This case held that merely sending record of hearing DID NOT satisfy reason requirement so kind of contradicts above case.

Substantive ReviewDefinitions:

Deference – the idea that, at least in some instances, ADMs should be shown respect by the courts, such that a reviewing court does not simply impose its own view of the law on the ADMs. Deference means that ADMs and courts share the responsibility of legal interpretation.

o Why Deference to the ADM – reconciles two competing principles: Rule of Law: courts have a constitutional duty to ensure state action is lawful Parliamentary Supremacy: parliament has the power to create bodies with legal authority. Court must

respect that choice. Standard of Review Analysis (SOR) – formerly known as the ‘pragmatic and functional test’, this is the analysis that the

court will use to determine what standard to hold ADMs to. Must an ADM’s decision be correct, or must an ADM’s decision be reasonable?

o Correctness – the standard that requires that an administrative decision must be the same outcome as the one the court would have reached to be upheld. If a court concludes that the appropriate SOR is correctness, it will simply conduct its own analysis of the legal question (i.e. it shows no deference).

o Reasonableness – the standard that requires the court to show deference to an ADM. A court can only interfere with the administrative decision if the decision is found to be unreasonable. Reasonableness reflects the fact that there may be multiple proper or legally-defensible decisions in light of the statutory scheme. We will see that the courts are struggling to come up with a consistent methodology for determining what is reasonable and what is not.

o Patent Unreasonableness – the now defunct (at common law) standard that required courts to back way off, and only interfere with an ADM’s decision if it was found to be clearly irrational (patent unreasonableness has been enshrined in statute in BC).

o Note: Compare with the SOR appellate courts use to review trial court decisions. Courts of Appeal review errors of law on a standard of correctness (i.e. they correct the error). Courts of Appeal review errors of fact on a standard of “palpable and overriding error” (i.e. deference to trial judge’s closeness to witnesses, facts).

Jurisdiction – the unobjectionable idea that ADMs must act within the scope of their statute. Jurisdictional questions (also known as questions of vires) – formerly known as preliminary questions, these are questions

that the courts identify as essential questions about the boundaries of an ADM’s jurisdiction (i.e. whether or not the ADM has the statutory authority to even consider this question at all). They are a device courts use to justify holding an ADM to a standard of correctness.

Privative clause – a provision that declares that the decision of the ADM is “final” and “unreviewable.” It is a legislative attempt to “oust” judicial oversight. However, JR is constitutionally protected, so they cannot function in the way suggested by legislative language. Instead, the existence of a privative clause is one factor that a court will use when determining the appropriate SOR and is a strong indication that the standard should be reasonableness. A privative clause is basically the opposite of a statutory right of appeal.

Statutory appeal – a provision that provides for an appeal to a court on specific decisions made by an ADM. The existence of a statutory appeal is one factor that a court will use when determining the appropriate SOR.

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What Standard of Review Applies? (Dunsmuir)Threshold: Can we judicially review this? – Constitutionally entrenched power of judicial review no matter how strong the privative clause is.

1A – Is there a Statutory Indication of which SOR applies? If statute says what SOR should be applied to a tribunal’s decision, that usurps the common law, so use that SOR

o NOTE: Legislature may not, no matter what language it shrouds its tribunal’s jurisdiction in, absolutely exempt it from JR (CUPE)

o Should apply the SOR the legislation prescribes, BUT common law informs content of the standard (e.g. ATA ss. 58 & 59)

Federal Statute Relating to Judicial Review – Federal Courts Act (FCA) s.18.1 gives federal court power to create remedies in line with former prerogative writs s.18.1(2) application for judicial review MUST be made in 30-day deadline s.18.1(4) provides the following grounds of review:

o (a) Acted without or beyond its jurisdiction correctness (42: Khosa)o (b) Acted contrary to law – failed to observe a principle of natural justice, PF or other procedure it was required by law

to observe correctness (43: Khosa)o (c) Erred in law in making a decision or an order – provides a ground for relief of intervention, but the common law will

stay the hand of the judge in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute (44: Khosa)

o (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; Reasonableness (46: Khosa) But Rothstein says correctness (72: Khosa)

o (e) acted, or failed to act, by reason of fraud or perjured evidence; oro (f) acted in any other way that was contrary to law.

NOTE: S. 18 of the FCA IS NOT analogous to the ATA and therefore DOES NOT OUST CL SOR (Khosa) This is b/c S. 18.1(4) sets out grounds for review (bases on which the court can intervene), but NOT the standard of review

(whether the court will actually intervene/what level of deference will be given) that must be applied (Khosa)o Conversely, the ATA sets out the SOR

Where the legislative language permits, the courts (Khosa)o Will not interpret grounds of review as standards of reviewo Will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and o Will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in

judicial intervention in administrative matters In Khosa, Binnie (majority) thinks default SOR is reasonableness whereas Rothstein (dissent) thinks default is

correctness (unless legislation provides a privative clause to indicate need for deference) Rothstein’s point follows Dicey’s view to the rule of law, as the courts’ role is to discern legislative

intent

BC Statute Relating to JR – Administrative Tribunals Act (ATA) Step One: Does the ATA even apply to the administrative tribunal?1. Is it a BC administrative tribunal?

a. If it’s federal AT, the ATA DOES NOT apply

2. Does the BC administrative tribunal’s authorizing statute adopt the ATA? a. MUST do this because it is required by s. 1 in order to be a “tribunal” for purpose of ATAb. The provisions only apply to the tribunals and decision makers that specifically bring up the ATA sections

Step Two: did applicant meet the limitation period?1. You have 60 days from final decision to bring application for judicial review (but court has discretion to extend in extenuating

circumstances) s. 57

Step Three: Is there a privative clause?1. 3 requirements of privative clause set in s. 1:

a. Jurisdiction conferring “sole and exclusive jurisdiction to hear…”b. Finality – “any decision of the board is final and conclusive…”c. Ouster – “this decision is not open to question or review in court…”

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2. IF YES, then APPLY s. 58a. Q1: Is question at issue in the expert tribunal’s exclusive jurisdiction (which is jurisdiction protected by a privative

clause – relative to the courts, the tribunal must be an expert tribunal)? s. 58(1) if YES, go on; b. Q2: Apply the standard described based on the type of question that it is:

i. Fact s. 58(2)(a) = Patently Unreasonable (PU)1. Questions of mixed fact and law In general, under patently unreasonable standard UNLESS can

pull out a general question of law outside tribunal’s exclusive jurisdiction = correctness standarda. E.g. duty to consult is a legal question but is premised on an assessment of the facts (Carrier

Sekani)ii. Law s. 58(2)(a) = Patently Unreasonable

iii. Discretion s. 58(2)(a) = Patently Unreasonable 1. s. 58(3): A patently unreasonable decision is where the discretion

a. (a) Is exercised arbitrarily or in bad faith,b. (b) Is exercised for an improper purpose,c. (c) Is based entirely or predominantly on irrelevant factors, ORd. (d) Fails to take statutory requirements into account.

iv. PF questions s. 58(2)(b) = must be decided whether the tribunal acted fairly (fairness) (apply Baker)v. Everything else s. 58(2)(c) Correctness Standard

1. i.e. Questions of law in respect to which the tribunal does not have exclusive jurisdiction.

Step Four: If there’s not a privative clause then:1. Apply s. 59(1) which states that the default SOR is correctness2. UNLESS:

a. Findings of Fact s. 59(2) = Reasonableness b/c court must not set aside findings of fact UNLESS i. There is no evidence in support or

ii. Unreasonable b. Discretion s. 59(3) = Patently Unreasonable

i. A discretionary decision is P.U. if the discretion s. 59(4): 1. (a) Is exercised arbitrarily or in bad faith,2. (b) Is exercised for an improper purpose,3. (c) Is based entirely or predominantly on irrelevant factors; OR4. (d) Fails to take statutory requirements into account.

c. PF questions s. 59(5) = must be decided whether the tribunal acted fairly (apply Baker)

Application of Patent Unreasonableness SOR PU lives on in BC b/c of ATA but the content of PU and the precise degree of deference PU commands will be calibrated

according to general principles of administrative law (Binnie in Khosa)o i.e. ATA specifies SoR but not the content of that SoR (so the content will continue to evolve through broader admin

law cases) (Rothstein J. in Khosa said this was troubling) What does PU mean:

o Is a decision that: (Pacific Newspaper Group) Does not accord with reason/is “clearly irrational” “Evidently not in accordance with reason” “So flawed that no amount of curial deference can justify letting it stand” Only if there is no evidence to support the findings or the decision is “openly, clearly, evidently

unreasonable” can it be said to be patently unreasonable.o Court not supposed to:

Re-weigh the evidence (Khosa); Second guess the conclusions drawn from the evidence considered; Substitute different findings of fact or inferences drawn from those facts; or conclude that the evidence is

insufficient to support the result. Deference is owed when there are findings of fact (Carrier Sekani)

IF THERE IS NO STATUTORY REQUIREMENT FOR SOR, THEN:[1B] Has a previous case decided the appropriate SoR in a satisfactory manner? TEST: for “Suitable” precedent

(i) If same tribunal on same points = definitely a suitable precedent

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a. Pre-Dunsmuir decisions can provide satisfactory precedent (Northrop Grumman: Previous jurisprudence established in a satisfactory manner that correctness applied to decisions of the Canadian International Trade Tribunal)

(ii) If same tribunal dealing with similar question of law or fact = probably a decent precedent a. Precedent that stated the SOR was “patent unreasonableness” likely would now be put under “reasonableness”

bucket. b. Prior jurisprudence might give context to the inquiry: e.g. if it’s accorded a high level of deference for a century

(Catalyst Paper)

If not either of above scenarios, determine SOR For Exam, even if there is a decent precedent, still do SOR analysis. Agaira: What is “national interest”: SOR = Reasonableness and decision was reasonable (SOR met). Deference is appropriate when assessing whether a decision by an administrative decision-maker violates the Charter, where

there is no challenge to the constitutionality of the enabling legislation (Dore)   Dunsmuir is intended to be practical, so may not be necessary to go beyond this initial step (Northrop Grumman).

Precedent generally tells us: Reasonableness:

o Question of fact, policy, discretion (e.g. Alberta Teachers)o Inextricably linked fact & lawo Question of law involving interpretation of home statute

Correctness:o Constitutional questiono Jurisdictional division between ADMso Question of law of central importance to the legal system and outside ADM’s expertise

[2] If no “suitable precedent”, determine the appropriate SoR: ENSURE TO EXAMINE BOTH CORRECTNESS AND REASONABLENESS IN EXAM BEFORE MOVING ON Bright line test – either the standard is correctness or reasonableness (Dunsmuir) Start by assuming a deferential stance (reasonableness) if there is a privative clause and no statutory right of appeal –

caught on in subsequent cases after Binnie’s concurring reasons in Dunsmuir

HOWEVER, the presumption of reasonableness CAN BE REBUTTED if one of the following factors APPLIES:

FACTORS THAT WILL MOVE TOWARD CORRECTNESS (Dunsmuir, aff’d in AB Teachers and Edmonton East):TEST: If the question considered by the tribunal falls into one of the following categories, the presumption of reasonableness is rebutted and correctness standard can be applied (Dunsmuir)

(a) Questions of “LAW” OF CENTRAL IMPORTANCE TO THE LEGAL SYSTEM as a whole AND where Question is OUTSIDE THE ADJUDICATOR’S specialized area of EXPERTISE

a. Rothstein (concurring) in Khosa said Parliament/legislature signals something is a true question of law by not giving a privative clause – should presume any question not falling within the privative clause is reviewable on correctness standard (Khosa)

b. Factors to evaluate TRIBUNAL EXPERTISE RELATIVE to that of court (Pushpanathan is a sketchy precedent but a court might rely on these factors because it’s not completely overturned):

i. Characterize the expertise of the tribunal in questionii. Consider the court’s own expertise relative to that of the tribunal

iii. Identify the nature of the specific issue before the administrative decision-maker relative to this expertise

(b) CONSTITUTIONAL Question: a. e.g. Division of Powers and other constitutional questions (Dunsmuir)b. If it’s constitutional question, go to the Constitutional section of CAN below

(c) True Questions of JURISDICTION or VIRESa. Is there such a thing as jurisdictional questions anymore?

i. No:1. Rothstein in Alberta Teachers implied it might be time to eliminate concept of true jurisdiction Qs

a. Generally, when an administrative tribunal is interpreting its home statute to determine whether it can hear an issue, it should be given deference

b. J Cromwell super disagrees, see below30

2. Courts should be hesitant to brand as jurisdictional something that may doubtfully be so (Rothstein quote cited in Dunsmuir and again in Alberta Teachers)

3. True questions of jurisdiction are exceptional and the category is narrow (Alberta Teachers)a. Evidenced by the fact that none have come before SCC since Dunsmuir – Alberta (Info and

Privacy Commissioner). 4. Not returning to “bad old days” of collateral question, preliminary question doctrine pre-CUPE. Per

CUPE, courts “should not be alert to brand as jurisdictional, and therefore subject to broader [judicial] review, that which may be doubtfully so”.

ii. Yes:1. In Northrop Grumman, the court was deciding a jurisdictional question, which is rare (issue was

whether CITT can hear NG Overseas or not)2. Can counter by stating that only selected correctness because there was precedent for this SOR (what

Rothstein said in AB Teachers)3. Cromwell goes on a whole rant about the importance of jurisdictional questions in the dissent of

Alberta Teachers, whereas Binnie’s dissent in the same case takes middle ground stating correctness for home statute interpretation can only be applied if it is a question of general legal importance (see case summaries for more in-depth summary)

(d) Questions regarding JURISDICTIONAL LINES between 2 or more competing specialized tribunals

Consider ABOVE factors to be exhaustive, and “statutory right of appeal” is not a new category of correctness review (Edmonton East – although the dissent argued that statutory right of appeal along with other factors COULD strongly indicate correctness standard applies)

FACTORS THAT WILL MOVE TOWARD REASONABLENESS (Deference): (a) Existence of a Privative Clause (Dunsmuir)

a. Components of a STRONG PRIVATIVE CLAUSE: (CUPE)i. Finality clause (“this decision is final and conclusive…”)

ii. Ouster clause (“this decision is not open to question or review in court…”)b. EXAMPLES of clauses:

i. Employment and Assistance Act – decisions “not open to questions or review in any court.” (Strong Clause)ii. Forest Service Providers Act – “decision ... is final and conclusive and is not open to question or review in a

court except on a question of law or excess of jurisdiction” (Weak Clause)iii. National Defense Act – except under judicial review under the Federal Courts Act, decisions not subject to

review of the court (Weaker Clause)c. Significance of Privative Clause:

i. Important but the precise degree of importance depends on the judge you ask: (Rothstein (concurring))ii. In Khosa, said it is foundational and is the only way Parliament can indicate deference to the tribunal (signaling

their view of its expertise) iii. Binnie (concurring) in Dunsmuir was not satisfied with the lack of recognition given to the privative clause.iv. If it lacks some of the above components or there is also a statutory right of appeal, then a reviewing court will

give less weight to the clause (Pushpanathan)d. Also have to take into account what’s actually COVERED by the clause

(b) Distinct and Special Administrative Regime in which administrative tribunal has Special Expertise a. TEST : Pushpanathan = Balancing of expertise of tribunal with regards to the question vs. that of court:

i. Characterize expertise of tribunal (what are they expert at?);1. i.e. Dunsmuir – labour relations used as an example: have policy side, adjudication, have existed for

over 100 years, have own case law2. Look at the purpose of the tribunal as determined by interpreting enabling legislation – e.g. in Khosa

(for the majority), it’s purpose meant the tribunal had ability to determine wide range of appeals and decisions reviewable only if the federal court granted leave to commence judicial review.

3. NOT about the expertise of any one person on the tribunal about the expertise of a tribunal as a whole (Edmonton East)

4. Assess any special expertise of the tribunal – if there are a range of expertise, assume that it’s specified in the regulations to be a requirement

ii. Consider court’s own expertise relative to that of tribunal; iii. Identify nature of specific issue before AT relative to this expertise and decide who (court or tribunal) is more

expert at the particular question.

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(c) Nature of the question : a. 2-Step TEST :

i. If it’s a Q of fact, discretion, policy or mixed fact and law, then REASONABLENESS applies (Mossop; Dunsmuir): (More deference given to a question of fact, since the ADM will be the primary finder of fact)

1. Mixed fact and law = applying a particular situation to the law and determining whether they match. 2. Special considerations for DISCRETIONARY questions

a. Definition: refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.

i. LOOK FOR language in statute such as “may” or “shall” – evidences discretionii. Khosa: Was discretionary decision providing exceptional relief that was fact and

policy-driven (court was unanimous on notion of deference WRT findings of fact)ii. If it’s a question of law, then consider: (Less deference given to questions of law, as the ADM may not have

developed any particular familiarity with issues of law)1. Is it one of central importance to the legal system & outside expertise of AT

b. If YES = Correctness SORa. If NO, then is it possible that it’s a Q of law the tribunal is well-suited to deal with?

i. Binnie in Khosa: with or without privative clause, tribunals entitled to some deference if legislature intended to allocate question to the tribunal – there might be more than one right answer even on legal questions)

b. Things to consider when characterizing the question:i. If it’s a provision that is ambiguous such that no single interpretation could lay claim to being correct, then there

should be judicial humility (CUPE)ii. Interpretation of home statute of the tribunal will usually attract reasonableness (Alberta Teachers)

(Edmonton East); 1. Presumption of reasonableness can be rebutted by showing:

a. That it is nonetheless a question of law to which no deference ought to be shown – i.e. central question outside of expertise/constitutional question/jurisdictional lines between tribunals/question of jurisdiction (Alberta Teachers)

b. In this context, deference is not appropriate – i.e. application of the SOR analysis and looking at privative clause/SRA; purpose of the tribunal; expertise (have already looked at the nature of the question) (Edmonton East)

iii. Interpretation of closely connected statutes or statutes the administrative tribunal has particular familiarity will usually attract reasonableness (Dunsmuir and cited in Edmonton East)

*Possible to have segmentation where there are multiple grounds for review: 1 might attract different standard than the other (Dunsmuir), particularly where Charter + discretionary decision intersects (Doré)

(d) Statutory Scheme/Purpose of the Act (CUPE; Pushpanathan) Whether purpose is establishing rights between parties (or as entitlements) or as a delicate balancing between different

constituencies (the latter warrants more deference) More (and interlocking, interacting) interests involved in the issue = polycentric issue

o Closer to this type of issue, the more deference Statutory right of appeal does not create a category of correctness (Edmonton East)

Applying CorrectnessDefinition: “A reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.” (Dunsmuir)

Goal: to reach the one “right” answer and judges get to say what it is (court does not have to respect what the tribunal says). Tribunal is deemed inferior and no deference of respect The court need not put any effort into assessing the administrative decision-maker’s reasons or casting those reasons in

their best light (Dunsmuir).

Rationale: Promote just decisions (promote/safeguard ROL) and avoid inconsistent and unauthorized applications of law. Assumes that there is a right answer (Dunsmuir).

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Values of Correctness: Consistency, uniformity, predictability; stability; right answer; judicial expertise; no deference to other reasoning; rule of law and unique role of the courts

Policy: Arguments for a “Correctness” standard: Jurisdictional questions, constitutionality // Judicial expertise // Predictability Arguments against a “Correctness” standard: When is a tribunal’s contextual understanding ever not helpful? (what

makes a court think that the tribunal should be completely ignored) // Do we need correctness review to ensure consistency, predictability?

o E.g. The fact that “correctness” and statutory interpretation can be quite subjective, the SOR of correctness is becoming obsolete given the more pluralistic way that courts now think of judicial review some of the theoretical context in which this is situated.

How to Actually Apply the Correctness SORStart with Statutory Interpretation (Driedger’s Modern Principle) and determine if situation fits (Northrop Grumman)

Start with the preamble and then look to see what other statutes/regulations/agreements it incorporates and the purposes of all applicable provisions/statutes.

Look at the scope of the statute/provision at issue, any applicable principles and definitions (Northrop Grumman) If the language of the provision at issue is ambiguous and capable of more than one meaning, then can look to the statutory

scheme as a whole to decide on a meaning

Driedger’s Modern Principle (tool used in correctness standard): “The words of an act are to be read in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.”

Applying ReasonablenessPurpose and Underlying Policy of Reasonableness SOR

Is the recognition that there might be a number of possible reasonable/acceptable conclusions that an administrative tribunal may reach when deciding a particular issue (Dunsmuir)

2-step inquiry that looks at both the PROCESS used to reach the decision and the OUTCOME of that decision (assuming both have to be reasonable) (Dunsmuir)

o Both of these factors MUST be “justifiable, transparent and intelligible” to be considered reasonable (Dunsmuir)o When evaluating these factors, courts must exhibit DEFERENCE to the administrative tribunals which is defined by

David Dyzenhaus as being “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision” (Dunsmuir)

This definition expanded to include “reasons that could be offered as justification in support of a decision” in Alberta Teachers

If both of these factors are sufficiently reasonable, in that they are justifiable, transparent and intelligible”, then it’s not open to a reviewing court to substitute its own view of a preferable outcome (Khosa – Binnie)

NOTE: It’s a SINGLE STANDARD of review that takes its color from the context (Khosa)

REASONABLENESS APPLICATION (Dunsmuir)1. Evaluate the PROCESS by reviewing the REASONS : Existence of justification, transparency and intelligibility within the

decision-making process (e.g. didn’t consider irrelevant things)a. 1A: Are there even reasons? How deferential does the court have to be?

i. Judicial Abdication: Do not re-weigh the factors or substitute own appreciation of appropriate solution (Binnie in Khosa)

ii. If there are no reasons at all, and reasons were required to satisfy PF, then this is a PF problem, not standard of review problem (Baker, Newfoundland Nurses)

iii. If the court requires reasons, it can remit the decision to the ADM to reconsider and provide reasons1. General rule: reasonableness will require a court to send a decision back to provide reasons to

serve deference to the ADM and fairness to the parties (Alberta Teachers)iv. Adequacy of reasons is not a stand-alone basis for quashing a decision, and a reviewing court should not

undertake two discrete analyses -- one for the reasons and a separate one for the result (Newfoundland Nurses)v. Municipalities do not have to give reasons for bylaws (Catalyst Paper)

1. For an elected body, entitled to consider a broad range of economic, social, political and legal concerns without needing to give formal reasons or lay out a rational basis (Catalyst Paper)

2. Context matters Distinguish between quasi-adjudicative decisions vs bylaw passed by an elected body (Catalyst Paper)

vi. Court should stay close to the reasons offered by the ADM and maintain some connection to the analytical path used by the administrative tribunal instead of forging their own

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vii. Deficient reasons = Seek to supplement them first before subverting them. Reasons DO NOT have to be perfect, they do not have to be comprehensive. Presumption of reasonableness (Newfoundland Nurses)

1. If the lack of providing reasons is not against procedural fairness and the parties did not raise the particular issue, then the court may consider the reasons that may have been provided (Edmonton East)

2. In situations where (1) the party has not raised the issue before the tribunal, (2) there is an alternative way to discern the reasons and (3) there is no prejudicial effect to the parties, the court can supplement its own reasons (Alberta Teachers)

a. Cromwell in dissent: says court has no business reviewing ghost set of reasons. 3. While the reviewing court may supplement the reasons given, it cannot ignore the reasons actually

provided (Delta Air)4. If a point is not raised during the decision-making process, reasons will not be required by the

ADM (Edmonton East)viii. Implied / inferred reasons:

1. Deference requires respectful attention to the reasons offered or which could be offered in support of a decision (Dunsmuir)

a. Principle of deference as respect rejects Dicey’s model of submissive deference, which requires judges to submit to the intention of the legislature, on a positivist understanding of intention

2. Alberta Teachers: can look at other tribunal decisions (incl. subsequent ones) construing similar language. Not carte blanche to reformulate. Directions regarding when you need to remit to tribunal.

b. 1B: If there are reasons, do the reasons demonstrate transparency, intelligibility & justification (Dunsmuir)i. Application of what is reasonable to satisfy above articulated standard depends on the CONTEXT in which the

decision is reached (Khosa and Catalyst Paper). Context might include factors such as:1. Institutional make-up of the decision-maker2. The type of decision3. The nature of the evidence before the decision-maker and the degree to which the decision-maker’s

weighing of the evidence drove its decision4. The relevant terms of the statute5. The purpose of the statutory scheme6. Past decisions of the same or a similar decision-maker7. Past practice in the judicial review of that decision- maker in comparable circumstances

2. Evaluate the OUTCOME : Whether the decision falls within the range of possible and acceptable outcomes that are defensible in respect of the facts and law

a. Range of outcomes circumscribed by purview of the legislative scheme that empowers the body (Catalyst Paper)b. So long as the process and outcome fit comfortably with the principles of justification, transparency and intelligibility, it

is not open to a reviewing court to substitute its own view of a preferable outcome if the reasonableness standard applies (Dunsmuir)

c. HOWEVER, the range of what’s justified, transparent and intelligible MIGHT CHANGE dependent on the CONTEXT (First Nations Child) (relied on the “color from its context” statement in Khosa)

i. Factors that may indicate NARROW range of reasonable outcomes (First Nations Child)1. Statutory interpretation – constrained by text, context and purpose of pronouncements2. Issue is one of equality law – constrained by judicial pronouncements

ii. Factors that may indicate BROADER range of reasonable (First Nations Child)1. Where administrative tribunal is reviewing facts 2. Is applying fact-based discretions3. Considering administrative policies4. Decision requires application of specialized experience and expertise not shared by the reviewing court

on the particular point in issue

3. SPECIAL CONSIDERATIONS FOR MUNICIPALITIES (Catalyst Paper)a. Reasonableness of Bylaw: only if the bylaw is one no reasonable body informed by the factors could have taken, will

the bylaw be set aside. i. Courts have refused to overturn municipal bylaws unless they were found to be “aberrant”, “overwhelming” or

if “no reasonable body” could have adopted them. This is part of the democratic institution and there are a range of social, economic and environmental issues that must be considered.

ii. The substance of their bylaws must conform to the rationale of the statutory regime set up by the legislature

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iii. This is a high threshold to meet, especially in light of Catalyst where there was a disproportionate impact from a tax levy on an individual corp, and yet the bylaw was still seen to fall within a range of reasonable outcomes.

iv. Must reflect broad discretion provincial legislatures have traditionally accorded to municipalities.v. In this context, reasonableness means courts must respect the responsibility of elected representatives to serve

the people who elected them.

b. Whether Municipality adhered to a reasonable process coming to enact the bylaw. i. Municipal councils must adhere to appropriate processes and cannot act for improper purposes (no duty to

provide reasons but simply must follow the valid ways of enacting bylaws).

c. Unreasonableness in the Municipality context: (Catalyst Paper)i. Partial and unequal in their operation as between different classes

ii. Manifestly unjustiii. Disclose bad faithiv. Involve oppressive or gratuitous interference with the rights of those subject to them as could find no justification

in the minds of reasonable peoplev. Note: what is unreasonable depends on the applicable legislative framework

EXAMPLE OF MORE EXTREME END OF DEFERENCE: Khosa, held IAD decision was reasonable – emphasizes the need to situate self in the reasons, defer to administrative exercises of discretion, and not to revisit weight assigned to factors relevant to exercise of discretion Was okay that the tribunal reached an entirely different conclusion (than the criminal courts) with regards to the expression of remorse as it related to prospects for rehabilitation (was a factual dispute and had different task from that of criminal courts)

Fish in Dissent disagreed: Was a fatal flaw to reasoning that they made so much of the absence of willingness to admit he was street racing – “so much cannot reasonably be made so little” Meant neither process nor outcome was reasonable (evidenced by disregard of sentencing judge’s findings without justification)

Argues he isn’t re-weighing : an inordinate fixation on one factor to the exclusion of others amounts to a failure to consider relevant factors

Three Methods of Reasonableness: Judicial statutory interpretation compared to the administrative tribunal outcome (Dunsmuir, Coté’s dissent in Igloo, First

Nations Child and Family) – outcome within a range of acceptable, possible outcomes “Staying close to the reasons” of the ADM’s decisions (Irving Pulp and Paper) – are the decisions justified, intelligible,

transparent? Uphold as reasonable a decision with no reasons provided (Edmonton East, Alberta Teachers, Newfoundland Nurses?)

Substantive Review and the CharterMain Questions:

1. Should ADMs have general jurisdiction to apply the Charter?2. How do we review administrative decisions for Charter compliance?

a. How is this different from regular judicial review in administrative law?

(A) Procedural Fairness (PF) – use Baker to determine minimum content of POFJ if have a s. 7 argument (see above) (Suresh) Already have Charter s. 7 POFJ incorporated in PF use the PF framework in Baker to determine the minimum content of

POFJ (Suresh). Same principles of procedural fairness apply under s.7 and PF in admin law. S.7 principles require at a minimum, compliance with duty of fairness principles (what you would get under admin law). Open question as to whether POFJ require more in the circumstances b/c Suresh court was careful to say they weren’t

constitutionalizing CL PF

(B) Substantive Review of the Enabling Statute ( Conway ) or an Admin. Act/Decision ( Doré ) Charter applies fully to admin tribunals: Must act consistent w/Charter and its values in exercising statutory functions,

have general jurisdiction to consider provided it can determine questions of law and that hasn’t been removed, and they are a court of competent jurisdiction to give remedies under s. 24(1) provided that’s permitted by the enabling statute (Conway).

(i) Substantive review of a constitutional challenge to the legislation as a whole: Tribunal has jurisdiction to review for constitutionality (of provision(s)) if: (Martin)

a) Enabling statute expressly (in statutes terms) or implicitly (look at statute as a whole) permits it to decide Q’s of law – if it can decide Q’s of law, it can also address constitutional questions;

b) The jurisdiction to consider Charter questions has not been removed by the legislature in the enabling statute Types of constitutional issues that may arise on judicial review:

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o The review of the tribunal’s decision with respect to its jurisdiction over constitutional challenges to its enabling legislation and over remedies (Martin and Conway)

o The review of the tribunal’s determination of the constitutional validity of legislation or award of a constitutional remedy

JR (Standard of Review) will be on a standard of correctness where the court will engage in a full Charter analysis (i.e. infringement + justification under Oakes) (Doré)

o Correctness applies to constitutional questions without a requirement for an SOR analysis because of the unique role of s. 96 courts as interpreters of the Constitution (Dunsmuir)

Remedy: s.52(1) – Court can provide a general declaration of invalidity of any legislative provision to the extent that it is inconsistent with the constitution. No ability to invalidate provisions that are not inconsistent. Unlikely (if not impossible) for an entire act to be invalidated.

(ii) Substantive review of tribunal’s decisions / interpretations / actions within jurisdiction, where “Charter values” are at stake (Doré): use the “richer” administrative law approach [i.e. the Multani concurring opinion won out].

“Charter Value” = Charter values can be broader and less precise than a Charter Right. Not really sure what a Charter Value is compared to a Charter Right (Doré). Charter right may be seen as an individual right versus values is a broader right beyond the individual.

o E.g. The review of an administrative decision that allegedly violates a Charter (or Aboriginal) right. In this context, you do not have to do the precise Charter Right analysis.

o Admin law process:

[1] Step 1: What’s the SOR – apply Dunsmuir – most will be reasonableness (e.g. satisfactory precedent, home statute, and expertise in applying facts in the particular Charter context, which was FOE in Doré) – particularly where it’s a discretionary decision (Doré, Loyola)

Deference is also appropriate when assessing whether a decision by an ADM violates the Charter, where there is no challenge to the constitutionality of the enabling legislation (Doré).

[2] Step 2: Did it meet the SOR distills the balance and proportionality parts from Oakes and infuses the administrative law analysis: i.e. do this at the same time as the reasonableness inquiry under Dunsmuir

a) Consider and define the statutory objectives a. Loyola = respect for difference and promote respectful dialogue in Quebecb. Doré = promote civility and professionalism among legal profession).

b) Ask how the Charter value at issue is best protected in view of the statutory objectivesa. Proportionality exercise, requires the ADM to balance the severity of the interference of Charter protection

with the statutory objectivesb. The question is whether, in assessing the impact of the relevant Charter protection and given the nature of the

decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.

i. Potential tension with Khosa, which states that a court is not to reweigh the factors in a reasonableness analysis

c) Did the administrative act disproportionately (i.e. more than it needed to) impair the Charter value at issue? – if so, it’s an unreasonable decision.

a. Ensure decision interferes with relevant Charter guarantee no more than is necessary given the statutory objectives (Doré)

b. Must demonstrate that the ADM gave “due regard” to importance of rights at issue (Doré)c. *Do not do a full analysis asking whether the Charter right was infringedd. Examples:

i. Loyola: The Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary given the statutory objectives. As a result, it did not reflect a proportionate balancing and should be set aside.

ii. TWU v LSBC: Court had to determine if LSBC’s refusal to approve TWU’s law school interfered with freedom of religion of the faculty and students of that institution no more than is necessary given the statutory objectives of the Law Society. Court found that the LSBC had fettered their discretion by using a referendum to make their decision; therefore, Charter values were not weighed proportionally.

*There is ongoing ambiguity over the meaning of Charter values, whether deference is owed if an ADM concludes that a Charter right is not engaged, and whether the SCC will rely on Doré in any subsequent case. A court might ignore Doré and do full Charter analysis as did the minority in Loyola and majority in Multani.

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Online Dispute Resolution and Justice System Integration One of the promises of online dispute resolution [ODR], and technology generally, is that it will increase access to justice by

removing barriers like cost, time, and information asymmetry. o It offers an answer to the Action Committee’s call to provide dispute resolution that is more proportional and

tailored to the needs of the public. o It can include almost any dispute resolution process, including negotiation, mediation, facilitation, arbitration or

other adjudication, so long as it is carried out online and outside a traditional physical setting.

The Civil Resolution Tribunal The Civil Resolution Tribunal [CRT] is Canada’s first online tribunal and, currently, the only ODR system in the world that

is fully integrated into the justice system. o The CRT allows the public to resolve their condominium property and small claims disputes fairly, quickly, and

affordably. o The CRT provides the public with access to interactive information pathways, tools, and a variety of dispute

resolution methods including negotiation, facilitation and, if necessary, adjudication. o Also allows paper-based or telephone-based serviceso Goal is to bring access to the justice system to people wherever they are

CRT is very similar to a court and acts on matters previously dealt with by court

Comparison of Public and Private ODR Processes Private ODR systems usually implement best practices in software development, creating a more user-friendly environment

for access to justiceo They also create accessible alternatives to public justice processes by connecting users with expertise they could not

otherwise easily find or affordo Downside: by creating a buffer around the justice system, these private ODR systems may insulate the justice

system from well-founded pressure from the public to transform their processes to better meet public need Private ODR systems can self-select their users, whereas public systems must ensure that everyone can participate, including

those that do not use the internet or those with literacy or language issues, visual, hearing, or other impairments, and mental health issues

Why the CRT? As a new entity with no established culture or processes, the CRT was less constrained in pioneering a transformative

approach to delivering justice services to the public. Tackle high costs and long wait times of the traditional process Access to justice for rural parties, complex issues, where there is limited support Time: ~7-11 months (small claims) and there are delays and backlogs with courts

How Does the CRT work? From beginning to end, the CRT process is intended to take about ninety days for most cases, and the average total cost to

the parties is roughly the same as in Small Claims Court, or about $200. o However, many parties will pay less than at Small Claims Court because fees are staged so that parties who resolve

their disputes early pay less than those who require the full range of the CRT’s services. Like the Small Claims Court, there are fee exemptions for those experiencing financial hardship, and the CRT has worked

with community legal advocates to design an accessible process for people who need these exemptions. The CRT’s fees are meant to reflect the proportionality principle; they are high enough to deter frivolous claims, but not so high that they are unbalanced with the interests at stake.

The model is likely particularly useful where (1) there is a high number of participants who cannot afford legal representation; (2) the parties have an interest in building or maintaining relationships; and (3) existing public justice processes are highly complex or time consuming.

Users of the CRT must represent themselves (“no lawyer rule”) In the interest of “fairness and justice”, CRT users may be allowed to have representation

Challenges Facing the CRT People are concerned that the CRT would subvert foundational legal principles by replacing courts with “robojustice”

o However, in ODR, technology is used to connect the public to highly skilled humans and does not replace them with robots

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For some, the idea that mediation can occur at a distance or over email, or that ADR services can be scaled down or up to meet the needs of the parties and the issues, rather than delivered as a full package, is anathema.

o However, studies on distance mediation suggest it compares favourably with in-person mediations, both in terms of the number of settlements and the participants’ opinions about its efficacy.

o It also helps bring costs down Justice system actors hold the assumption that the adversarial system, and its attendant focus on in-person testimony and

cross-examination, is the ideal form of dispute resolution. o However, civil justice processes focus on preparing for an adversarial trial, which costs a lot of money and takes a

lot of time and 98% of filed civil claims never make it to trialo Problematic to focus on adversarial pre-trial activities because parties tend to be happier with consensual resolutions

rather than judicially imposed resolutionso Assumptions about the adversarial system’s capacity to determine truth and reach sound decisions may be misplaced

because decision makers are still susceptible to biases and weaknesses in reasoning Having the government building the system rather than a private company

o Governments lack a key driver like private software companies to produce timely, functioning, user-focused software because they do not have market discipline

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