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Judicial Mechanisms for Control of Administrative Action

SUBSTANTIVE REVIEW

What is the Standard of Review?

In determining this, we must undertake the standard of review analysis (dealing with substance/content of decision, actual decision)

Dunsmuir changed SOR from 3 standards to only 2.

STATUTORY RIGHT OF APPEAL This must be stipulated in Statute. If the statute does not grant right to appeal, then your only recourse is Judicial Review In order to be capable of appeal, Ts decision must decide the merits of the matter or otherwise be final. Usually Ts enabling stat. will also set out the crt to which Ts orders may be appealed. Fed Ts appeal gen. to FC or FCA. Prov. Constituted Ts may be taken to prov’s tiral crt, divisional crt or CofA.

What is the scope of available appeal? Scope of appeal is determined entirely by enabling stat. Thus varies from 1 T to the other.

Is an appeal avail. as of right or is leave required? Appeals can be as of right or require leave either of the original DM or more frequently of the appellate body.

Is a stay of proceedings automatic or must one apply for it? BC ATA provides that the commencement of an appeal does not operate as a stay or suspend the operation of the decision

being appealed unless the tribunal orders otherwise. Unless a stat. specifically excludes it (as BC ATA does) the superior crt that is the Ts designated appellate crt has the inherent

auth to grant a stay.

JUDICIAL REVIEWWhen statute lacksappeal provision.Constitutionallyprotected as part oinherent powers of superior courts

under s.96 of theConstitution Act

SUBSTANTIVE REVIEW

Application of substantive review will be triggered when you takeissue with the actual decision.

PROCEDURAL FAIRNESS

The fact that a decision is administrative and affects the “rights, privileges or interests of an individual” is sufficient to trigger application of duty of fairness.Cardinal; Nicholson ( triggered when you have problem w/ procedure)

A general duty of PG applies to admin decisions Nicholson

PRELIMINARY ISSUES YOU MUST CONSIDER: IS JR EVEN AVAILABLE?1) MUST BE A PUBLIC BODY

One of the key threshold questions is whether the T whose actions are being challenged is, in fact, a public body. JR is avail. to check executive action

Therefore, only public bodies can be subject to JR.Factors to determine is Tribunal are a private or public body:

1. Ts functions & duties & the source of its power & funding2. Whether govt directly or indirectly controls the body;3. and Whether govt would have to occupy the field if the body were not already performing the functions it does.

A body will be subject to public law and thus JR is it is part of the machinery of govt .: McDonald v Anishinabek 2) YOU MUST HAVE STANDING

In addition to determining whether a T is a sufficient public body, a party seeking to challenge admin action should determine whether she has standing. There are two types of standing:

1. Individual Standing: It is said that the test for standing is whether the applicant is a person aggrieved by the admin decision. A person aggrieved is one who will suffer some peculiar grievance of their own beyond some grievance suffered by them in commo

w/ the rest of the public2. Public Body Standing: Finlay Under Public Interest Standing, the test to be applied is threefold:

1) Is the matter serious and justiciable? 2) Is the party seeking standing genuinely interested in the matter? 3) Is there any other reasonable and effective way for the matter?

3) WHICH CRT TO APPLY 2 Both provincial & Fed courts have JR jurisdiction. Which court has jurisdiction to conduct JR, unlike appeals, is not usually set out in Ts enabling stat

Typically crt is determined by whether the source of impugned authorities power is provincial or fed.4) BEAWARE OF DEADLINES

Make sure no deadlines have been missed. Some stats. impose deadlines. Ie) Fed Court Act states that JR apps from Fed Ts to FC must be made w/in 30 days of time the decision or order made. n BC gen. time limit is 60 days: ATA s57(1).

5) MUST HAVE EXHAUSTED ALL OTHER RECOURSE P must establish that she has exhausted all other adequate means of recourse for challenging Ts actions: Harelkin




Before determining the SOR, ask “Whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded withregard to a particular category of question?

• This means that sometimes majority reasons set out which ground will apply (either reasonableness or correctness)• Dunsmuir tells us that a SOR need not be undertaken in ever situation: An exhaustive review is not required in every case to determine the proper

standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according tothe correctness standard. This simply means that the analysis required is already deemed to have been performed and need not be repeated.

o EX: : correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and theprovinces in the Constitution Act, 1867 : Westcoast Energy Inc. v. Canada (National Energy Board ). Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution:Nova Scotia (Workers Compensation Board) v. Martin

o Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. Jurisdiction is intended in thenarrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where thetribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpretthe grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.

YESIf it has been set out, then there is no need for SORanalysis.

NOWhere the first inquiry proves unfruitful, courts must proceed to the SOR analysis. Thisconsists of the 4 factors in Pushpanathan.

Here the inquiry on particular individual provision being invoked by &interpreted by T

NOTE: Reasonableness will apply in:1. Question of Fact2. Question of Discretion3. Question of Policy4. Questions of Mixed & fact

(questions where legal issuescannot be easily separated fromfactual issues)

Pushpanathan lays out the following 4 factors to determine the SOR (however none are determinative):1. Privative Clause (or an appeal provision within the legislation):

the presence of a PC weighs in favour of curial deference. It is never determinative b/c the designation of a matter as jurisdictional Q(correctness) or a Q w/in jurisdiction (PU) must await the outcome of crts assessment of expertise according to the other 3 factors.

A finality clause (declare only that outcome is final and binding on Ps) inclines curial deference but not as strongly as a PC. The availability of JR is more or less neutral w/ re: to its message re: deference, while the presence of an appeal provision tilts against curial

deference. Note: As w/PC, the effect of an appeal provision can be outweighed by the assessment of expertise s it was in Southam.

2. Expertise (relative expertise on the specific question at issue): Case law is clear that relative expertise is the most important factor indetermining the SOR. In Pushpanathan crt identifies 3 steps in evaluating expertise:

(i) the crt must characterize the expertise of the T in Qs;(ii) Crt must consider its own expertise relative to that of the tribunal; and(iii) crt must identify the nature of the specific issue before the DM relative to this expertise.

Where T possess broad relative expertise that brings to bear in some degree on the interpretation of highly gen. Qs crt may still show considerable deferenceas it did in Southam and Corn Growers.

When describing a Ts expertise, the crt attends to the Ts composition & specialized knowledge in comparison to a crt. ie) labour arbitrators are considered less expert than boards b/c arbitrators are usually appointed by the Ps on an ad hoc basis & their task is confined

to the interpretation & application of a particular collective agreement, rather than the administration of the entire regime of industrial relations. The adhoc nature of the appointment usually counts against the expertise of certain human rights Ts as well.

In Ryan crt went to some length to defend the superior expertise of the Law Society’s professional discipline committee. Unlike a securities commission or competition T, the expertise of a LS discipline committee cld hardly be described as beyond the ken of most judges. Nevertheless the majority explained thatpractising lawyers may be more intimately acquainted w/ the ways that these professional standards play out in everyday day practice than judges who nolonger take place in solicitor-client r’ship. So owing to its composition & its familiarity w/ particular issue the discipline committee arguably has more expertisethan crts on this matter.

In Chamberlain crt found that while board expert in balancing the many interests groups, b/c the decision has a human rights dimension, in which crts aremore expert than AT, less deference is owed.

Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp

o NOTE: while SCC clearly prioritizes expertise in formulating SOR, its inquiry is limited to the Statutory role of the Admin actor, not the particular individualoccupying it. Courts will glean Evidence of expertise from statute & surrounding context, but will not scrutinize the qualifies, competence, training of experienceof the specific DM.

3. Purpose of the Act as a whole and of the provision in particular (the polycentricity principle)o What aspect of stat purpose is relevant to SOR? Where the stat and/or provision can be described as polycentric meaning that it engages a

balancing of multiple interests, constituencies and factors contains a sig. policy element and articulates the legal standard in vague or open-textured language, more judicial restraints is warranted.

o Disputes that more closely resemble the bipolar model of opposition b/w Ps & interests justify less curial deference.

NOTE: Correctness will apply in:1. Constitutional Questions2. TRUE questions of jurisdictions or vires (did the tribunal’s statutory grant of power give it authorityto decide a particular matter. The tribunal must interpret its power correctly or its action will befound to be ultra vires or to constitute a wrongful decline of jurisdiction)3. Questions of general law of central importance to the legal system and outside the tribunals areof specialized expertise4. Questions of jurisdictional lines between 2 specialized tribunals




Correctness

In Ryan it was said that where a correctnessstandard is imposed, the court may undertake itsown reasoning process to arrive at the result it

judges correct. When applying the correctness standard, a

reviewing court will not show deference to thedecision 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 decisionmaker; if not, the court will substitute its own viewand provide the correct answer.

From the outset, the court must ask whether the

tribunal’s decision was correct.

ReasonablenessTo decide if a decision is reasonable, court must inquire into:

1. The process of articulating reasons (concerned mostly with the justification,transparency and intelligibility within the decision make process); AND

2. The outcomes reached (does the decision fall within a range of possible outcomesthat are defensible in light of the facts and the law, if so court will exercise deference)

AND – the court must exercise deference Dunsmuir

What does deference mean in this context? Deference is both an attitude of the courtand a requirement of the law of judicial review. It does not mean that courts aresubservient to the determinations of decision makers, or that courts must show blindreverence to their interpretations, or that they may be content to pay lip service to theconcept of reasonableness review while in fact imposing their own view.

Rather, deference imports respect for the decision-making process of adjudicative

bodies with regard to both the facts and the law. The notion of deference “is rootedin part in a respect for governmental decisions to create administrative bodies withdelegated powers” (Mossop )

Deference in the context of the reasonableness standard therefore implies thatcourts will give due consideration to the determinations of decision makers.

Once you determine the SOR, you apply the standard to the issues of the case.

See Remedies

4. Nature of the problem: question of law or fact (or mixed law/fact)o Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop ) We believe that the same

standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readilyseparated: Dunsmuir

o One clue that judges look for is the extent to which the determination will have precedential value in subsequent cases. The greater the precedential impact, the greater the assessment of expertise tilts towards the courts. The labeling of the issue as a pure Q of law(Barrie Utilities), a concept derived from the CL or Civil Code (Bibeault ), a general Q of law (Mossop, family status), not scientific or technical (Mattel), or a HR issue (Pushpanathan, Chaimberlain) is a reliable signal that the court has concluded that the legal issueis one in which it is more expert than the AT.

o In Via Rail the majority rejected the HR dimension of interpreting and applying the provision justified review on a standard of correctness. It was said that this unduly narrows what the T was called upon to decide. CDN Transportation Act is highly specializedreg leg w/ a strong policy focus. It was noted that by attributing a jurisdiction-limiting label, such as stat interpretation or HR to what isin reality a function assigned and properly exercised under enabling leg, a Ts expertise is made to defer to courts generalism rather than the other way around.

o NOTE: Court attaches weight to precedential value of a decision in characterizing a matter as a general Q of law. However court has rejected the assertion that the precedential value of resolving inconsistency w/in or b/w Ts constitutes anindependent basis for adopting a correctness SOR: Domtar




PROCEDURAL FAIRNESS

Two questions arise when review proceedings are brought alleging a breach of PF.NOTE: Although a successful application for JR on fairness grounds will result in an order quashing the decision, nothing prevents the DM from reaching the same substantive decision.

What is the SOR? (when procedures done and inappropriate) A correctness standard will always apply when procedural fairness has been breached. Historically, compliance w/ the duty of fairness has been regarded as a jurisdictional question, and jurisdictional questions must be answered

correctly: Crevier . In other words decision makers do not have the right to be wrong where procedural questions are concerned. Jurisdiction will belost in the course of proceedings if the duty of fairness is breached. If this occurs the relevant decision will be quashed and the DM will be required tomake a fresh decision in accordance w/ the correct procedure.

The application of the correctness standard does not mean that there is no room for deference when it comes to the duty of fairness.

The court made clear in Baker that the needs of the DM are relevant at this stage but they may be outweighed by other Baker factors. In any event once the content of the duty of has been determined, the conduct of the DM will be assessed and the court will ask whether

or not the duty of fairness has been met, a question that will be answered on a correctness basis. Although a successful application for JR on fairness grounds will result in an order quashing the decision, nothing prevents the decision maker from

reaching the same substantive decision. EXCEPTION: A standard of patently unreasonable will apply ministerial decisions that are discretionary are under review.

STEP1: THRESHOLD: When is fairness required?: What is the threshold for the application of the duty? (Although the duty of fairness applies to a wide rangeof decisions, there remains decisions to which it does not apply) Rights, interests and privileges. The duty of fairness applies to any decision that affects an individual’s rights, interests or privileges Nicholson

Limitations on the scope of the Duty of fairness:

A) The duty applies to decisions, meaning final decisions. Rarely will it apply to investigations or advisory processes that do not have anconsequences, even though they may lead to more formal DM process that do.

B) The duty does not apply to legislative decisions. The SCC has always insisted that the duty of fairness does not apply to leg. decisions ofunctions: Reference RE CDN Assistance Plan

The crt never explained the meaning of leg functions but it is clear that primary leg whether passed by Parliament or legislature is not subject to theduty of fairness. Crts come into the pic when leg is enacted and not before.

Exception to Breach PF:1. Emergency Cases: Duty of PF may be suspended/abridged in event of emergency: Cardinal v Direction of Kent Institution,

Whether an action without prior notice or initial hearing is justified, depends on whether there genuinely a need. R v. Randolph (mailstopped b/c use for Criminal activity)

2. Legislative exemptions (i) Are Cabinet and Ministerial Decisions covered by legislative exemption? They are not exempt per se but it will often be easy to

characterize Cabinet & Ministerial decisions as leg, and as a result will be exempt from the duty. In Inuit Tapirisat provides a good example. In that case the Fed Cabinet rejected an appeal from a decision made by CRTC allowing a

rate increase w/out allowing the petitioning group to be heard. The crt has emphasized the unique role and responsibilities of the executive branch as a reason for not extending the duty of fairness to

ministerial decisions.(ii) Is subordinate legislation covered by legislative exemption? (legislation delegated to 3d party to make)

Arguably there is less reason to be concerned with subordinate leg b/c political approval for such leg is subsidiary in nature. The leg exemption is itself subject to exceptions. In Homex SCC concluded that the passage of municipal bylaw was subject to

fairness. Having been unable to resolve a dispute w/ a developer the village passed a bylaw deeming the lots purchased by the developer

not to be a registered plan of subdivision. The developer thus could not sell the lots w/out the village’s permission. This makes the point that substance is more important than form where the leg exemption is concerned.

C) Are policy decisions Covered by the leg exemption? The leg exemption includes decisions that may be described as policy decisions as well adecisions that are general in nature. In Martineau it was said that a purely ministerial decision, on broad grounds of public policy will typically affordthe individual no procedural fairness.

If PF obligations have been breached, then: INDEPENDENCE – go to pg 11 BIAS go to pg 12




PF CONTENT ISSUES

STEP 2: THE LEVEL OF PF REQUIRED How is the content of the duty determined? Courts first determine the degree of fairness before particularizing the content and deciding whether the duty

had been met.

The following factors are used in determining the nature and extent of PF: Baker : However not exhaustive.1) The nature of the decision being made and the process followed in making it (look at closeness of administrative process to judicial process):

(i) Legislative & general / discretionary policy suggests less PFOs(ii) Administrative & specific / resembles adversarial court-like process / fact-finding & credibility suggests more PFOs;(iii) Less PFO in emergency situations;(iv) Less PFO for non-final decisions

The more the decision can be said to be quasi judicial or judicial in nature, rather than administrative, the weightier the procedural safeguards must be.

2) The nature of he statutory scheme and the terms of the statute pursuant to which the body operates. also consider if there is a general statute specifying procedures such as Ontario’s Statutory Powers Procedures Act (none in B.C.) Does statute or regulations give PF rights or override common law PFOs (e.g. as in Singh Wilson J. is statute intended by legislature to be exhaustive for

PFOs) Where dm process includes preliminary steps, the requirements of fairness may be less/minimal (ie investigatory procedures not normally subject to this

duty, despite that they may give rise to proceedings in which fairness protection will be required. Existence of an appeal is an important consideration in deciding whether and to what extent reasons for a decision are required.

3) The importance of the decision to the individual More important to an individual, more protection.

4) The legitimate expectations of the person challenging the relevant decision. (which has 2 meanings): Two types:

(i)

where person is led to understand that he will be afforded a particular procedure before a decision is made, even though the procedure is nootherwise required (if this is so the individual is entitled to PF before D is made);(ii) where a person is led to expect a particular outcome from a DM process.

(The doctrine of LE does not require that particular outcomes be protected but it operates to require that a procedural protection be afforded before anexpectation of a particular outcome can be dashed).

Requirements: LE's look to the conduct of the public authority in the exercise of a discretionary power including established practises, conduct or representations that can be characterized as clear, unambiguous and unqualified, that has induced in the complainants a reasonable expectation thatthey will retain a benefit; to be taken as legitimate, such expectations must not conflict with a statutory duty.

5) Deference to the procedural choices made by the Decision Maker Look at institutional constraints on agency / practicalities such as not overburdening system (especially if has to make 1000’s of decisions), expediency

informality, etc., which can all be trade offs against requiring high PFO. The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency

itself, especially if statute leaves it to DM to choose the procedures itself, or when agency has expertise in determining what procedures are appropriatein the circumstances: Baker.

Once you have figured out step 2, you must determine whether dealing with high or low PF level? (You figure this out by weighing the Baker factors)

DELAYBlencoe Common Law: Delay – Significant

prejudice from an unacceptable delay Actual (evidentiary) prejudice –

Example: Dead witnesses, lostdocuments

Abuse of Process Delay amounting to abuse of process Elements of abuse of process:

o Inordinate (ie. Long delay) ando Unreasonable

…….continued next page

DISCOVERY

Advantages of disclosures (as discussed inStinchecombe – Given relevance toadministrative law): Levels the playing field – Less about

resources Eliminate surprise – No trial by ambush More effective preparation – Leads to

more expeditious hearings Fosters ability to make full defense Narrows the issues…….continued next page

NOTICE Contain minimal information about the

process (where, when, what is at stake) Makes right to participate more

meaningful Have to refer back to Baker – What

content is required – Highly contextual(Webb – A series of discussions qualifiedas notice – Context provided for lownotice requirements)


PRE-Hearing Issues Hearing Issues POST - Hearing Issues

When you determine the level of PF, you apply this level to the following issues:




Four issues that may arise – What level of PF is required?

1. Form – Email? Written? Advertisements?a. Written notice is the best and safest

way to give notice – For high-endmatters

b. Courts may sidestep the issue of formso long as recipient got actual notice –Mere defect

2. Servicea. High-end matters – Personal serviceb. May have to consult the statute – May

have provisions that specify serviceprocedure

c. Courts will recognize the lack of reliability of the postal service

Torchinsky (MAN QB 1981) Facts:Municipality mails notice for taxreassessment, delivered after limitation period. Held: Notice wasineffective – Used mail at your ownrisk

Rymal (OCA 1981) Facts: Spencer (landowner) mailed notice of appeal

which arrived a day late. Held: Toobad for Spencer – Should haverecognized that mail is not all thatreliable

Ontario Hydro (Ont, 1984) – Publichearing before installing a line.Service through ads (general public) Those along the proposed

route got personal service(different level of interest)

Problem: Advertisements – Didnot set out propose route andthe alternate routes

Eventually, picked an alternateroute

Held: Newspaper notice is notadequate – Did not makeeffective participation possible

Would a reasonable personunderstand, notwithstandingthe insufficient content

Hardy (BCSC 1985) Facts: Noticefor school closure

Held: Unreasonable to havepersonal service to every parent

3. Time (Length of notice before hearing) Depends on the

complexity/seriousness of the matter Time to prepare for the hearing Torchinsky – Far enough in

advance so the party can prepareand decide whether to participate or not

4. Content What is the process, what is at

stake, what are theconsequences of the decisioncontemplated


Disadvantages: Delays Abuse to increase costs (unbalance of

resources) Some administrative processes are not

very evidentiary Stinchcombe does not apply to

administrative tribunals – It stood for fulldisclosure of CRN to the DEF in criminalproceedings

Does not mean that Stinchecombe isirrelevant to discovery at administrativetribunals

More like judicial/prosecutorial proceeding Stinchecombe is more compelling

Privilege may be an issue with discovery –Solicitor client, litigation, class privilege, etc Note: Have to prove that you are

prejudiced/disadvantaged at the timewhen information was withheld from you

Northwestern General Hospital (Ont. Div. Ct.1993) – Does a tribunal have the authority to

order discovery? Facts: There is a complaint of systemicrace discrimination by the hospital – HRCdecides to proceed with the complaint

Hospital asks for pre-hearing discovery –Disclosure of all evidence gathered duringthe investigation period

Board of Inquiry – Orders for discovery(claims has jurisdiction in Statutory Powers Procedure Act , serious matter)

s.8 – Where good conduct, reputation isat issue (wrong-doing, character) –Entitled to discovery

Held: There is jurisdiction (StatutoryPowers Procedure Act – s.8) for the

discovery order by the tribunal

Stinchecombe is relevant – Must know thecase before them Investigatory process – Fruits of the

investigation are not property of the HRC Arguments of privilege fail – Finds that

people will still come forward despite lossof privilege

Side Factor – Due to judicial-like process – Upping the standard of PF

May v. Ferndale (SCC 2005) Facts: Security classification of inmates –

Using a computer program to determine it

Prisoners were given notice – Knewconsequences, knew what the factorswere

Held: Movement to higher security isdeprivation of liberty – OK only if done inaccordance with principles of FJ(meaning CL PF)

Requires disclosure of information reliedupon – Must know the case the individualhas to meet


Factors:o Complexity,o purposeo nature at stake,o contributory delay

Has to cause serious psychologicalharm or stigma to reputation

Significant enough to bring theadministrative (human rights) systeminto disrepute

Application: Found delay was notinordinate

Found Blencoe partly contributory to thedelay – He had made several motionsand requests

SCC acknowledges some of the delay isresulted from the State trying to meetprocedural obligations

Also recognizes that HRC cases taketime – Procedural protections, resources

Minority: Went straight to administrativelaw principles

Should have remedy for delay, it was anabusive process (remedy would be an

expedited hearing order)




Taylor (OCA 1970) – Trainer drugsa horse Trainer gets a notice –

Decision to be made byRacing Commission – Getssuspended

Challenged – Argued thatthere was no warning of thesevere penalty

Held: Experienced trainer –Should have known what wasat stake

Whether the notice is sufficientdepends on all the circumstances

Chester (Ont. HC 1984) – Prisoner in federal penitentiary – Place himinto higher security du-e to conduct Notice was given – That

decision of transfer based onpast actions and assault onstaff

Held: Quashed notice – Ambiguity as to what theperson was to answer to/whatthe issue was

Notice lacked sufficient detail -Especially important for sufficient notice when liberty is at stake

Krever Commission (SCC 1997) –Public inquiry Bad blood case, HIV – Inquiry

as to what had happened (factfinding process)

Commission invited parties tomake submissions about whothey felt were responsible

Commission sends out noticeof potential findings of misconduct

Arguments against the notices – Too late in the process –Remedied with more time

Arguments against the notices Did not know about the

possible consequences Argued that they would have

insisted on higher PF rightsduring fact finding process

Held: Only issue at stake isreputation – Got as much PFas needed given theconsequences

The public inquiry had amandate to make accusations

No evidence would beadmissible in court for civil or criminal proceedings

PF obligations were met

Stinchecombe does not directly apply – Butrelevant in principles Without the weighing matrix, cannot have

meaningful response to reclassificationdecision

CIBA Geigy (FCA 1994) Facts: Allegations of excessive prices for

drugs – Investigated by a Board – CIBAsought for full disclosure

Held: Good reason to withhold the

information (information aboutcompetitors)

Sufficient to disclose only the informationthe Board will rely on

The withheld information was notnecessary for a defense/to know their case

Far from criminal proceeding –Stinchecombe carries less weight in thissituation

Note: Consider the context of the administrativedecision compared to NWGH

Nature of interest at stake: NWGH – Reputation at stake, individuals

of the hospital were specifically named indiscrimination allegation CIBA – Mainly economic interest (with

slight reputation factors), no individualsnamed

Nature of the process: NWGH – More adjudicative process in

human rights proceedings CIBA – Regulatory in nature in the

investigation of prices

Amount disclosed: NWGH – HRC wanted to disclose nothing CIBA – Board had disclosed the

information that it would rely on in

proceedings with CIBA Pritchard (SCC 2004) Facts: P filed

complaint with HRC against former employer – HRC decided not to deal withher complaint

Held: Legal opinion was privileged andneed not be released

Protected by solicitor-client privilege –Even though it was in-house counsel

Must be able to trust and be frank/candidwith lawyer

PF cannot disclose a privileged legalopinion

Hearing Issues POST- Hearing Issues

1. Written vs. Oral 5. Official Notice2. Public or in Camera 6. Admissibility of Evidence3. Counsel Rights 7. Cross Examination4. Disclosure of the Case Against

See Remedies




1. Written vs. Oral For natural justice, that rule does not imply that there must always be a hearing Note: Time and time again, courts have said that oral hearing is not necessary for PF Singh – Oral hearing was necessary – Credibility was at issue, important issue at hand (refugee, torture)

To decide – Look at Baker factors – Try to pinpoint where you are Khan v. University of Ottawa (OCA 1997) – Exams at University of Ottawa – Issue of standing for the year as well

o Facts: Extra booklet – Appeals to Faculty Committee and Senate Committee – Did not appear to the Faculty Committeeo Claims PF obligations (oral hearing) – Says that they are calling her a liar (credibility)o Majority: Agreed that they (the Universities and committees within) are bound by PF in student disciplinary matterso Loss of academic year, loss of educational standing – Serious matter at stakeo Should have had oral hearing – Credibility was at stake – Relied on Singh o Only needed to show that the breach of duty of fairness may reasonably have prejudiced her – Not actual prejudiceo Dissent: Adding an additional semester to complete is not a serious matter o It was not an issue about credibility – No allegations were made about her or her character

2. Public or In Camera Presumption that hearings are public -If formal hearing (more judicial like) – More likely public (unless good reason or statutory authority) Reasons for in camera: Personal security and Privacy interest of individuals (especially with respect to intimate matters) Note: Exception of Convention refugee hearings before the Immigration and Refugee Board Administrative Tribunals Act – Oral hearings should be open to the public Tribunal has discretion to hear things in camera – If there is a strong reason to do so

3, Counsel Rights Not guaranteed right – however Whenever someone is compelled to testify, they have right to counsel Common law – Lawyers are required when it is necessary to ensure the procedure is fair

New Brunswick Minister of Health – Provides the factors to determining if right to have counsel: (i) Have to look at seriousness of issue(ii) Complexity of the issue (iii) Capacity of the person affected at the hearing (iv) Other factors: Expediency, economy of the hearing (costs)

Howard v. Stony Mountain Institution (FCA 1985) – Charged with offences (possession of narcotics, threatened assault, etc) Statutory remission days that were earned, solitary confinement – Serious liberty matters at stake Sought counsel – Was denied – Point became moot by time of trial Held: Heard the matter because it was an important issue and likely to recur in the future – Setting precedent Factors to consider when determining to allow legal representation (not exhaustive):

1. The seriousness of the charge and of the potential penalty.2. Whether any points of law are likely to arise 3. Capacity of a particular prisoner to present his own case: Given seriousness and complexity, need an unusual capacity – He did not have it4. Procedural difficulties—when prisoners are not allowed to call witnesses and directly cross-examine or test evidence5. The need for reasonable speed in making their adjudication 6. The need for fairness as between prisoners and as between prisoners and prison officers

Considered a complex case (many different offences, one charge was very vague and difficult to defend)

Re Parrish (FCTD 1993) Facts: Inquiry (no penalties involved) – Captain brings two lawyers – Investigator refuses to allow counsel Argued unnecessary delay and frustrate the gathering of facts Held: Entitled to counsel rights The duty to act fairly implies the presence of counsel when a combination of some or all of the following elements are either found within the enabling

legislation or implied from the practical application of the statute governing the tribunal:1. where an individual or a witness is subpoenaed, required to attend and testify under oath with a threat of penalty;2. where absolute privacy is not assured and the attendance of others is not prohibited;3. where reports are made public;4. where an individual can be deprived of his rights or his livelihood; or 5. where some other irreparable harm can ensue.

o I do not intend this list to be exhaustive

4. Disclosure of “the Case Against” What information is being relied upon in the decision – Right to know the case against you Stinchcombe Need opportunity to address that information that is critical to the decision The higher the PF required (as per the Baker factors), the more likely there will be required full disclosure

…continued next




Examples of Disclosure Problems (Both successful): Abel – Psychiatric institution – Reports from the psychiatric institution used in the decision process were not disclosed Suresh – Claimed right to have immigration officers report (that made recommendations for deportation to the Minister) Kane v. Board of Governors of the University of British Columbia (BCSC 1980) Facts: Professor at UBC – Suspended for misuse of computer

activities by the President – Appealed to Boardo Board deliberates (with the President) – President was ask more questions, answered themo Disclosure –Kane did not have all information on which Board made final decision – No chance to respondo Held: When Board decided it needed more information, should have reconvened so both parties were presento Minimally, should have given opportunity to respond (even through written submissions)o Did not matter whether new evidence was prejudicial or not – Fact that it might be is good enough interest – Worker Compensation –

Medical fileso Also argued disclosure would prevent frankness in the medical reports – Doctors will pull their puncheso Disability rights – Given summaries, not given the actual reports – Denial of full disclosureo Held: Succeeds – At stake is livelihood (disability payments) – Relatively high standard of PFo Summaries not sufficient to comply with natural justiceo How can he make his case without knowing the details, without ability to address the specific itemso Rejected the arguments about protection and franknesso Doctors will not be affected by disclosureo Less tolerance for the idea of being paternalistico Full disclosure in fact is more likely to lead to frankness and accuracy because of accountability

Factors for full disclosure: Statutory right was at stake (right to be compensated) – Not just a privilege or interest System was a substitute for tort law – Important factor Seriousness of the issue (deciding compensation levels) Large number of reports meant he couldn’t adequately respond without seeing the entire document

5. Official Notice An exception to the idea of disclosure Official notice – Certain kinds of things a d/maker can take official notice of (no cross-examination)

Factors to be taken when considering official notice: Adjudicative v. Legislative Degree to which the facts are critical or periphery Certainty of the facts Note: Adjudicative facts – Cannot be taken notice of Note: The safe side is to let the parties know and let them make submissions Innisfil (SCC 1981) Facts: Township of Barrie wanted to annex surrounding lands for expansion

o Board relied on its expertise to take official notice of the amount of vacant industrial land to includeo Held: It was okay for the Board to take official notice of the formula to be used to calculate industrial land to be annexedo It was part of their expertise and was relied on in a previous case

Judicial notice – Can only be used in two circumstances:(i) Facts that are notorious that they are not in dispute(ii) Facts that are determinable by sources of accuracy

Admin d/makers – Official notice: (i) Facts that are notorious that they are not in dispute(ii) Facts that are determinable by sources of accuracy

Information within their expertise – Appointed for expertise, expected to use it Example: Ontario SPPA Official notice encompasses: Judicial notice And any generally known scientific or technical facts it its specialized knowledge

6. Admissibility of EV Rules of EV don’t usually apply. Sometimes statute of T says rules apply. What maybe inadmissible HS in court – may be also excluded in T. T should be cautious when refusing to hear EV. Rule T should admit EV subject to weight.




INDEPENDENCE/IMPARTIALITY

Note

Key feature of a fair proceeding is that DM and the process does not have any undue preferential treatment or be driven by preconceived notions. The mere perception of partiality towards a particular outcome or bias, provided that the perception is reasonable, is enough to have a decision overturned. An impartial DM is one who is able to make judgments w/ an open mind, that is, one who comes to the DM-ing table w/out his mind already made up. Independence is said to be a means of achieving impartiality.

1.Institutional independence:

Step 1: the question here is the extent to which the administrative agencymust be free (and must appear to be free) from interference or control by

others, particularly others within the executive or political branch R v Valente was the 1st SCC case to suggest the idea that theguarantees for judicial independence could also be applied to avariety of Tribunals.

Step 2: The test for tribunal independence is whether a reasonable well

informed person having thought the matter through wouldconclude that an admin DM is sufficiently free of factors thatcould interfere with his ability to make impartial judgments.(unless this test is breached, the T’s are independent enough)

Matsqui Indian Band : Test for institutional independence must beapplied in light of the functions being performed by particular tribunalat issue. The level of independence will depend on

o the nature of the tribunal,

o the interest at stake, ando other incidences of independence such as oaths of office.

NOTE: Admin tribunals do not have to meet the same degree of independence as the courts. Ocean Port Hotel : NO FREE-STANDING constitutional guarantee

of independence for administrative tribunals. Because constitutionalguarantees of independence serve primarily to protect the judiciaryfrom interference from the executive, they cannot protect tribunalsfrom the branch of government of which they are a part. The only waythat constitutional protections can be afforded to Ts is if the actions of the particular T triggered the protections offered by the Charter or bya prov or fed qausi constitutional statute.

Pleasure Appointments

The problem with at pleasure appointments is that they theoreticallyenable the govt to fire a DM whose decisions are not in line with itsexpectations.

Ocean Port Hotel : This case is important because it attempted to layto rest the controversial issue of whether at-pleasure appointmentsprovide a satisfactory degree of independence for Dms sitting ontribunals that impose penalties.

Source of Guarantee of an Independent and Impartial Tribunal At CL, the principles of natural justice are encapsulated in 2 central ideas.

1. is that a DM should neither judge her own cause nor have any interest in the outcome of a case before her. This idea is generally known as the ruleagainst bias.

2. Requires DM to hear and listen to both sides before making a decision.

2.Individual independence: independence of mind of each of theindividual decision-makers who are assigned to make a particular decisionfrom other members of the agency who have not been assigned to hear that particular case and from the staff of the agency including the legaladvisors – he/she who hears must decide without interference from otherswho did not hear [arises for example in “institutionalized” or “collegial”d/making as in Consolidated-Bathurst ; Tremblay ]

Same test as institutional independenceSub delegation & Collegial Decision Making In a trilogy of cases, Consolidated-Bathurst, Tremblay and Ellis-

Don, the SCC set out guidelines that tribunals should follow so thatmembers can collaborate within their institution to promoteconsistency of outcome without compromising the adjudicativeindependence of any one DM

Consolidated Bathurst says yes to collegial DM: o Should allow some collegial decision making since

advantages outweigh the disadvantages: See arguments for and against delegation / collegial decision making above

o Need to balance institutional concerns (such as consistency)

against PF concerns (such as parties not being present atfull Board meeting) Collegial decision making entirely permissible if:

1. Consultation MUST not imposed, but voluntarily requested bypanel (unlike Tremblay below)

2. No attempt to create a consensus (no vote, no minutes)3. Ultimate decision left up to the panel-- OK for full Board

consultation to influence panel members so long as it doesnot amount to coercion (i.e. impose a decision on them) or constrain their decision (i.e. must not impinge on their abilityto freely decide according to their own conscience / opinions).

4. Consultation process MUST NOT consider facts or introducenew facts, but OK to discuss law and policy. If panel consideringa new policy / legal interpretation as a result of full Boardmeeting then they must give the parties an opportunity to be

heard on that matter.

*****Arguments for and against Collegial decision Making look atKendall’s Notes*****

Two types

If LACK of Independence: Then the decision will be quashed. If SUFFICIENT IndependenceDecision left standing




BIAS

Categorization of bias (leniency can depend on type, e.g. even $1 of pecuniary interest will automatically disqualify, more relaxed for other types):1. Pecuniary interest: does decision maker have monetary interest in outcome (for self or close relative). Frequently called conflict of interest (though

this applies to other types of bias as well).2. Personal relationships: decision maker has a past or present relationship (e.g. family, business, group membership, etc.) with parties or their

counsel or someone with a pecuniary interest in the case, either friendly or acrimonious.3. Attitudinal / predisposition bias: pre-existing relationship between decision maker and the specific issues before them e.g. where decision maker

has previously expressed strong views on the subject or has had prior involvement with a specific file4. Structural bias / overlapping functions: whole process called into question because of the way the process has been institutionalized / how the

structure works, perhaps caused by the legislation e.g. same officials investigate then become decision makers, or subtle pecuniary interest built intothe process

5. Personal animosity (sometimes called “actual bias”): not pre-existing, but during hearing hostile questioning, rude to one party, open antagonism (fine to be rude toboth arties

NOTE: Tribunal Independence is not enshrined by the Constitution1.Tribunal independence not constitutionally protected: The enshrined constitutional protection of judicial independence espoused in Reference ReRemuneration of Judges of the Provincial Court (PEI) CANNOT be translated into the context of administrative decision making bodies. Judicial independence has historically developed to protect the judiciary from independence from the executive. By contrast, administrative tribunals are not separate from the executive branch . Tribunals are created precisely for the purpose of implementing

the policies of the executive brach; in doing os they may be required to make quasi-judicial decisions.2..Degree of independence, a matter for Parliament: AT's primary function as policy-makers and their status as extensions of the executive branch of government make their degree of independence a question most appropriately determined by Parliament or the legislature.3.Tribunal independence is a CL principle such that it can be ousted by express statutory language or necessary statutory implication, so long as the statuteis constitutionally valid. Thus absent constitutional or quasi-constitutional constraints, degree of independence can be set by statute, although court can fill in any missing

gaps and when doing so will not assume legislature intended to go against natural justice (and hence rule against bias applies) unless legislationexplicitly says so.

Natural justice has 2 limbs: audi alteram partem (hearing rights) and nemo debet judex in propria causa sua debet esse – no one ought to be judged inhis or her own cause” i.e. rule against bias.

Rule against bias originally applied only to judicial or quasi-judicial administrative decision making, but now applies to all kinds of administrative decisionmaking (see Energy Probe and Old St. Boniface) and so can consider it a part of PF generally.

As with hearing rights, rule against bias varies with context e.g. nature and impact of decision, etc, with greater leniency in discretionary / policy decisionmaking, less leniency in more individual adjudicative proceedings (see Energy Probe)

Purpose of the rule against bias:1. Foster public confidence administrative decision making, leading to legitimacy / acceptance of decision. “Justice must not only be done but must also be

seen to be done”.2. To promote fairness, since not properly heard if decision maker biased.3. Rule of law requires laws to be applied equally / without discrimination to people regardless of connections / status / sex / etc.

Effect of Bias: if bias found to exist then it disqualifies the decision maker and voids the decision, because biased decision maker has no jurisdiction to madedecision (legislature assumed to have intended there would be no bias). Can ask decision maker to disqualify themselves, but if refuse can seek prohibition inJR. If decision already made can seek JR for certiorari or declaration of invalidity to quash the decision.

Meaning of bias: doesn’t mean any and all predispositions / previous knowledge (expertise is often meant to be used by tribunals, and sometimes advocates for a particular cause are appointed specifically to represent that cause).

Don’t have to prove actual bias (which is difficult since it is hard to get inside the decisions makers head and it is inappropriate to examine decision makerson why they decided as they did). Rather, concerned with reasonable apprehension of bias (RAOB).

Process of Dealing with Bias The party affected should raise the matter with the decision maker who should disqualify him/herself (recuse) If the decision maker does not disqualify self the party alleging bias:

1. might try to seek JR immediately (but then could be met with prematurity):or 2. might decide to continue in the proceeding while continuing to maintain the bias objection – if they lose then they can seek JR

Absence of Actual Bias not Enough, there must also be no appearance of bias “Justice must not only be done but must also be seen to be done” Rv Sussex – McCarthy The perceptions of the public are very important and public confidence in the decision-making will not be achieved unless the appearance of bias is

avoided (as well as actual bias itself)




Pecuniary Interest

A direct pecuniary interest in the outcome is automatic disqualification of a d/maker (even for trivial amounts) Need to maintain appearance of impartiality for the public

Dimes (HL 1852) – Held shares in a company, made a decision that benefited his economic interest Maxim – No judge should be a judge in his own cause Case law – Recognizes direct and indirect pecuniary interest

Re Energy Probe (FCA 1984) Facts: Atomic Energy Control Board – Question of renewing license of Ontario Hydro regarding a facility Sold cable to Ontario Hydro in the past – Argued would sell to Ontario Hydro in the future

Held: Not a direct pecuniary interest – Not certain that a benefit will ever arise – Too remote (open tender process) -Mere possibility is insufficient. Requires a relative certainty that there is a direct pecuniary interest for automatic disqualification

Pearlman (SCC 1991) – Indirect pecuniary interest Facts: Challenges law society disciplinary committee on basis of bias Two arguments:

o 1) Pecuniary interest – Cost provisions – If Society had to pay the costs, they would have to increase member feeso 2) RAOB – Removes him from competition from the legal services market

Held: Any pecuniary interest is indirect (too remote) – Appropriate test to apply is RAOB for indirect pecuniary interest No perceived pecuniary interest due to cost provisions – No RAOB Reasons for not being a “direct” pecuniary interest: No profit is possible here, only recouping loss. Too remote to attach pecuniary interest to an

individual member of the law society. Any dollar benefit to the individual person is miniscule

Note: Disclosure of pecuniary interest and waiver of the matter can resolve small, miniscule interest Note: Statutory authorization will be used – Also found in Burnbrae (Agricultural producers are appointed to boards) Some statutes will say that small pecuniary interests will not matter

Exception: Close competition circumstances

Imperial Oil (SCC 2003) – Illustrates the need to take a contextual approach Facts: Minister can order party responsible to undertake research, studies, andclean it up (broad statutory powers granted)

Before making this order, certain procedures need to be followed – Notice to be given, opportunity to respond, etc Happened that the Ministry had been involved in a clean-up of the same very site and failed. Ministry was being sued – For botched attempt to decontaminate Trial – Lack of appearance of impartiality Appeal – Relies on the doctrine of necessity – Who else can order this to be done Held: Contextual analysis. Minister’s duties to impartiality is not the same as an adjudicative decision maker like a judge Minister is protecting public interest, implementing policy – It is discretionary, policy-centered – Not adjudicative Minister has no personal interest himself (similar to the situation in Pearlman) Only interests he had was representing the public interest in protecting the environment He had followed the PF obligations set out in the legislation

Burnbrae (FCA 1976) – Egg farmers disciplinary board – Board withdrew the producers license Argued bias – Members in agency were producers in other provinces – Interests conflicted with the producer Held: Too remote – Statutory scheme was to select producers in other provinces No bias by virtue of the fact that they have similar business backgrounds with economic interests

Moskalyk – Small town – Three drug stores – One pharmacist has a suspension hearing, competitor pharmacist was sitting Very close competition between person in front of the board and the person sitting on a committee – Found RAOB

Matsqui (SCC) – Argued pecuniary bias – Indian bands were called upon to adjudicate on appeals by non-Indians against tax assessments levied against themin relation to their use of land on Indian reserves

Held that there was important interest in having band members sit on appeal tribunals Finds that the inclination to increase taxes was too remote to constitute a RAOB Income raised does not accrue to any individual Cites Pearlman – No personal and distinct interest on the part of the tribunal members

Theme: Benefits the public or a large sector of the community will generally not result in disqualification Need direct pecuniary interest to the individual sitting on the agency

Waivers Note: Waivers can be crucial with pecuniary interest (especially small amounts) – For waiver to be effective Waiver must be made with full knowledge of the facts Preferred to be done explicitly on record, but can be done implicitly if the party knows and does not object All parties who could object must waive Likely a limit to who much can be waived (dollar amounts) – Otherwise, risking public confidence.




Depending on type of bias, there are different tests to use when determining whether bias exists They are: In determining the test, must determine whether thedecision matter is adjudicative or administrative. If more adjudicative, more stringent standard of test should apply, if administrative, the test can be applied

Standard Test for RAOB

TEST: Justice de Grandpre in Committee for Justice and Liberty a RAOB will exist where a reasonable

person, well informed about all the facts

concerning the d/maker, would concludethat the d/maker may be influenced tofavour or disfavour one side or the other b/c of some kind of interest or prejudicethe d/maker has in the outcome

need NOT show that the apprehendedbias actually affected the decision, it isenough if it might reasonably be perceived to have done so

Justice Cory in R. v. S. (R.D.) says the RAOB test has a two-fold objective element:1. person considering the alleged bias must

be reasonable; and2. the apprehension of bias must also be

reasonable in the circumstances of the

case

This reasonable person also:- must be informed of all relevantcircumstances; and- must not have a “very sensitive or

scrupulous conscience”

Standard Test Applied Flexibly

In administrative decision-making, RAOB test is appliedon a kind of spectrum toaccount for different contexts

KEY: There are differing levels of tolerance for pre-existingattitudes, prior involvement,relations, depending on: 1. the nature of the decision,2. the nature of the

decision/maker, and3. the applicable statutory

provisions

If the decision making morecourt like, the RAOB testapplies more strictly thenwhen decision making is

discretionary, policy-based,“legislative” (see Imperial Oil )

Alternative TestExist in relation to:

“PecuniaryInterests” test for bias: the test for pecuniary interestsbias is stricter intheory as it is said thatany direct personalpecuniary interest in amatter is enough todisqualify; bias ispresumed anddisqualification isautomatic, withoutregard to the RAOBtest (see Energy Probe)

EXCEPTIONS/DEFENCES TO BIAS ALLEGATIONSThere are 3 defences:

1. Statutory Authorization Where a statute expressly or by necessary implication authorizes a d/maker to decide a matter, despite what might otherwise be seen as a disqualifying

bias, the statute governs and statutory authorization is a complete defence (Brosseau) To overcome this one must resort to a “rights document” such as Charter s. 7 or (if the d/maker was a federal one) the Bill of Rights i.e. attempt to use

the rights document to “trump” the statute and strike down the provision that authorizes the allegedly biased d/maker to decide

2. Necessity If a d/maker who labours under disqualifying bias would be the ONLY POSSIBLE d/maker who is authorized to make the decision in question, this will

be accepted and the decision-maker can decide, despite the RAOB; otherwise there would be a failure of justice

3. Waiver parties who know about bias can waive it expressly or impliedly an implied waiver can occur only if the person alleged to have waived knew about the bias and knew also that they could object to it, but nevertheless

elected to proceed without making an objection and thereby lose their right to complain about the bias

waiver is a discretionary ground on which the court can refuse relief to the applicant found to have waived their right to object

Once you have determined the type of bias at issue, and having applied the correct test to determine if there is bias, determine from below if there are anyustifications for it.

NO JUSTOFICATION

If bias, and no defenses, then the courtwith quash the decision, and remit itback to the tribunal for another DM.

YES Justification

Decision will stand

“Relaxed Test” for bias: when itis alleged that such d/makershave “pre-judged” a matter, or have an inappropriate level of predisposition towards an issue,the test the courts will use is

whether they have “kept anopen mind and remainedamenable to persuasion – theymust not have a closed mind.Has applied: Where elected decision-

makers such as municipalcouncillors are concerned(Old St. Boniface Res. Ass, Save Richmond ); and

in cases of policy-orientedboards, particularly whereboard members areexpected to berepresentative of particular

interests (Newfoundland Telephone)




INSTITUTIONAL DECISIONS – Consolidated Bathurst

Delegation: The Legal Doctrine

Basic Rule: Cannot delegate authority unless the statute provides for it

Purpose of Delegation: •

Have also constructed the need to have administrative efficiency, considering the volume of work, and range and complexity of issues• Need to look at consistency of decisions and the power of the chairman to affect the outcome

NOTE: For adjudicative decisions, less likely to accept delegation than for policy decisions.

Willis, "Delegatus Non Potest Delegare" (1943), 21 Can. Bar Rev. 257-61• If the authority named in the statute has and retains a general control over the activities of the person to whom it has entrusted, it is still delegation.

NOT Delegation if:

• If, however, the authority exercises such a substantial degree of control over the actual exercises of the discretion so entrusted and it can be said todirect its own mind to it, there is in law no "delegation" and the maxim does not apply.

o The word "personally" is to be read into the statute

Cant Delegate following:

Disciplinary powers, whether "judicial" or not, cannot be delegated Vine v. National Dock Labour Board delegatus non potest delegare, a delegate may not re-delegate

Principle of Non-Delegation also requires: The principle of non-delegation also requires that all members of the tribunal hearing a dispute participate in a substantive sense in the making of

the decision.o IBM Canada v. Deputy Minister of National Revenue, Customs and Excise, [1992] 1 FC 663 (FCA),

• that at some point in time, the panel must reach a decision collectively and each member must "participate" individually in thatcollective decision in agreeing with it or dissenting from it. There has to be a meeting of the minds, each member beinginformed at least in a general way of the point of view of each of his colleagues.

DECIDING WITHOUT HEARING

General Rule: only those members of an agency who hear a particular case may decide it

Delegating the Duty To Hear Minister at the head of the board is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that

they obtain these materials for him properly. To do everything personally would be to impair his efficiency. Local Government Board v. Arlidge Minister is responsible to parliament, but the minister must be able to delegate NOTE : In Canada, some decisions exceptionally require the minister's personal decision Delegation doctrine and the rule that only those who hear may decide lead to: Ramm

o the people that hear the evidence are the people are the ones who are entitled to decide—can’t have new members in the course of thetrial

o need quorum—can’t lose members either

Remedy: court can quash decision




Consulting With Other Agency Members: Deciding Without Hearing and Bias

General Rule: Discussion allowed when only policy discussion is at issue Any consultation must deal with what was dealt with in the panel If there is new issues discussed, you must put it to the parties first

Purpose of Consultation (board meetings): Consolidated-Bathurst Packaging Ltd Broader ramifications Get perspective from other chairs (experts)

Consistency

Determining Permissibility of Consultation (board meetings): Consolidated-Bathurst Packaging Ltd Importance of public issue Whether there was concern for having consistent decisions Pros and cons of having these discussions in the absence of the parties NOTE: the danger that full board meetings may fetter the judicial independence of panel members does not create a reasonable apprehension of

bias or lack of independence (Liberty test)

Criteria for Independence The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions.

Full Board Meetings and the Audi Alteram Partem Rule Full board meeting consultation process does not violate the audi alleram partem rule provided that factual issues are not discussed and that the

parties are given a reasonable opportunity to respond to any new ground arising from such a meeting

Plenary Meetings: Plenary meetings may be a consultation tool but they should not be imposed on decision-makers and should be held in such a way as to leave

decision makers free to decide according to their own consciences and opinions. Tremblay v. Quebec (Commission des affaires sociales)

Examination of Consultation Documents: The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable

concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. Payne v.Ontario (Human Rights Commission)

Writing & Reviewing Reasons for DecisionAt the Hearing

in an adversarial proceeding, less active intervention on the part of tribunal counsel is likely to be allowed by the duty of fairness than in a proceeding that is

more inquisitorial

The Preparation of Reasons1. First, the decision made must be that of the tribunal members themselves [and not the lawyers working on staff]. For this reason, counsel who, without

the consent of the parties, retire with the tribunal while it deliberates may thereby create a reasonable apprehension of bias: the participation of a non-member in making the tribunal’s decision.

2. second, the reasons for decision must be in substance those of the tribunal members, not their clerk's or their counsel's.

Factors Determining the Propriety of Procedures used in the preparation of reasons—look at its effect on overall integrity of process : Khan

The nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal's workload, and other factors

Clerk Help in Drafting Reasons The deliberations, the findings and the decision, were all made without input from any third party. The clerk did not participate in or influence the findings or

the decision. No part of the decisional process was delegated. Therefore, the reasons were the reasons of the Discipline Committee and there can be no reasonableapprehension of bias. Spring v. Law Society of Upper Canada

Counsel Involvement OK if (factors not determinative – entire process must be considered): Khan 1. A Committee member prepared the first draft of the reasons.2. Counsel, with the chairman of the Committee, revised and clarified the first draft but did not write independently of that draft.3. The Committee met to consider and revise the draft as amended by counsel and the chairman; counsel played no role in this review and revision.4. The final product which emerged from the drafting process was signed by each member of the Committee

Reasons Review

if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. Bovbel




Consolidated Bathurst

The members of a panel who actually participate in the decision must have heard both the evidence and the arguments presentedby the parties. The presence of other Board members at the full board meeting does not, however, amount to "participation" in thefinal decision. Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decisionbecause this discussion might "influence" the decision maker.

Decision makers cannot be forced or induced to adopt positions they do not agree with by means of some formalized consultationprocess. A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and does notconstitute an obstacle to this freedom. The ultimate decision, whatever discussion may take place, is that of the decision[page284] maker and he or she must assume full responsibility for that decision. Board members are not empowered by the Act toimpose one member's opinion on another and procedures which may in effect compel or induce a panel member to decide againsthis or her own conscience or opinion cannot be used to thwart this de jure situation.

The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscienceand opinions. The full board meeting was an important element of a legitimate consultation process and not a participation in thedecision of persons who had not heard the parties. As practised by the Board, the holding of full board meetings does not impingeon the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence.

For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factualmatters and discussions on legal or policy issues.

Evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until allthe members of the panel have evaluated the credibility of each witness. It is, however, possible to discuss the policy issuesarising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factualconclusions. These discussions can be segregated from the factual decisions which will determine the outcome of the case once atest is adopted by the panel. The purpose of the policy discussions is not to determine which of the parties will eventually win thecase but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value.

Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond theresolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions and perceived social needs, theimpact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties eventhough it has an effect on the outcome of the complaint.

On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant [page285] statementprejudicial to their view. The rule with respect to legal or policy arguments not raising issues of fact is, however, somewhat morelenient because the parties only have the right to state their case adequately and to answer contrary arguments. This right doesnot encompass the right to repeat arguments every time the panel convenes to discuss the case.

The safeguards attached by the Board to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided the parties are advised of any new evidence or grounds and are given an opportunity to respond. Thebalance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with thenature and purpose of the rules of natural justice. In the instant case, the policy decided upon was the very subject of the hearingwhen the parties had full opportunity to deal with the matter and present diverging proposals which they did.

Agency Guidelines

if there is a guideline, there must be express authority by the statute—moreover, it is not binding




REMEDIESAre all discretionary, and applicants for remedy do no need to show adverse affect.

Discretionary basis for Refusing a Remedy: On JR coirts have discretion to refuse a remedy even where one is clearly warranted by the facts of a case: Lafontaine The most important basis for refusing to grant a remedy in JR is that adequate alternative remedies are available. Ps should exhaust all

prescribed ave of appeal before proceeding to the last resort of JR. JR applications that are brought before T proceedings have been concluded are usually dismissed as being premature.

Even if stat time limits for filing JR have been met, Ps must be aware that delay and acquiescence may be bases for court to refuse remedy:Immeubles Port Lewis Remedy in JR will not be granted where issues are moot. Court will use its discretion to refuse to grant a remedy on JR where P making JR app does not come with clean hands.

-Mootness Will hear the case even if a moot point If ruling on an important matter and particularly if the matter is likely to recur: Howard

-Delay Delay in bringing judicial review application Unreasonable delay in bringing application for JR and others would be prejudiced by allowing to proceed Note: Federal Court Act (s.18.1(2)) – Applications must be brought within 30 days of decision Note: BC Administrative Tribunals Act s.57 – Application must be commenced within 60 days of decision May extend time if court is satisfied that there are: Serious grounds for relief

Reasonable explanation for delay No substantial prejudice or hardship will result to a person affected by the delay Note: BC Judicial Review Procedure Act s.11 – Application is not barred by the passage of time unless: Specified in an enactment Court considers substantial prejudice or hardship would result Court retains overriding discretion to refuse relief on grounds of unreasonable delay

-Misconduct (clean hands) Remedies in administrative law are discretionary – Clean hands doctrine Evaded responsibility for costs – Homex Realty

-Waiver Party who has knowledge of all the facts and of legal rights may waive a breach of PF Waiver may be express and sometimes implied (depends on all the circumstances) Failure to object will not readily be construed as a waiver If objection is made, continued participation in the process is not a waiver

Prematurity Related to exhaustion principle – JR is last resort Reasons: Defect may be corrected in the admin process They may succeed in process despite complaint

Adequate alternate remedy Closely related to prematurity – Premature if applicant has not explored adequate alternative avenues Follow statutory appeal process to external body that has the power to grant an appropriate remedy Does not preclude possibility of subsequent application for JR once alternate processes are completed To determine if the internal appeal or review mechanism is an adequate alternative – Factors: Nature of the internal appeal body – Powers and process – Jurisdiction to remedy the problem? Convenience of the alternate forum – Costs, expeditiousness Procedures and capacities of the body – Will there be bias? Is it sufficiently independent

Remedies available through prerogative writs: Certiarori – to quash or set aside a decision Prohibition – to order a tribunal not to proceed Mandamus – to order the performance of a public duty Habeus Corpus – to determine the legality of a person’s detention

Private law/equitable discretionary remedies of: Declaration Injunction

The Judicial Review Procedure Act s.2(1) makes all the remedies available in one application for judicial review.

NOTE:

For JR court doesnot have authorityto substitute its owndecision , for that of

the DM. It is onlywhen dealing withstatutory right of appeal does thecourt have authorityto substitute its owndecision, for that of the decision maker.




CONSTITUTIONAL AND QUASI-CONSTITUTIONAL SOURCES OF PF AND STATUTORY

AUTHORIZATION

There are procedural rights that are conferred by the Charter and Bill of Rights.

When should you use constitutional or quasi-constitutional arguments?

1. Counter defense of statutory authorization 2. Where you want more or better quality procedures

Problem – Constitutional procedures seem to follow the CL procedures (not likely to makea difference)

If you can go to the Charter, you always want to go Constitutional rather than quasi-constitutional Only choose Bill of Rights when it covers ground that the Charter does not Charter covers only individuals (“Everyone”) whereas BoR covers persons (could include corporations) BoR has no saving provision (s.1 in the Charter) where there is a balancing of interests

Admin & Charter

Step 1: AT Jurisdiction over the Charter

Charter Charters application is restricted the

Parliament and government of Canada, the legislatures and thegovernment of the provinces.

Who is government?o The statutory authority that

is not in generalgovernment becomessubject to the Charter whencharged with responsibilityfor the effectuation of government programs.Eldridge v. British Columbia

Bill of Rights Federal statue, its area of application is confined to the federal domain S5(2) and (3). This applies to the

laws of Canada, which includes Acts of Parliament, and “any order, rule or regulation thereunder”, and also

“any law in force in Canada” S 5(2). Principle procedural protections found here are under s1(a) and S2(e) s.1(a) of the BoR – “Enjoyment of property and the right not to be deprived thereof except by due process of

law” s.2(e) of the BoR – Direct right to a fair hearing for determination of rights and obligations (in

accordance with principles of fundamental justice) – Jurisprudence suggests that principles of FJ mirrorsthe CL

Singh – Whether a person has refugee status is determination of rights and obligations

STEP 1: Does the T have jurisdiction to hear Charter Issues: Issue is whether admin tribunals as creatures of statute have auth to interpret and apply the Charter to their enabling legislation for the purpose of

refusing to give effect to provisions found to violate the Charter.

General Principle: Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have

jurisdiction to decide the constitutional validity of that provision. Explicit jurisdiction must be found in the terms of the statutory grant of authority. Martin o In Martin The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law by providing, in s. 252(1) of the

Act, that it "may confirm, vary or reverse the decision of a hearing officer" exercising the authority conferred upon the Board by s. 185(1) of the Act to "determine all questions of fact and law arising pursuant to this Part".

Authority to grant REMEDIES: It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered tomake the orders sought.

Implied Jurisdiction Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include:

o the statutory mandate of the tribunal in issue ando whether deciding questions of law is necessary to fulfilling this mandate effectively;o the interaction of the tribunal in question with other elements of the administrative system;o whether the tribunal is adjudicative in nature; ando practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a

clear implication from the statute itself.

Rebutting Presumption of Jurisdiction The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by pointing to an explicit withdrawal of authority to consider the

Charter; or by convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or acategory of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal.Such an implication should generally arise from the statute itself, rather than from external considerations. To the extent that Cooper v. Canada (Human RightsCommission), [1996] 3 S.C.R. 854, is inconsistent with this approach, it should no longer be relied upon.




Yes T has jurisdiction then the T’s decision on the

Constitutional Q is subject to JRfor correctness.

STEP 2: Look to below – Charter Argument Substantive Review toconduct analysis.

NO T does not have jurisdiction Then the T cannot hear Charter

arguments, however can still hear admin argument, if any.




CHARTER ARGUMENT – Substantive Review

Step 2: Has Charter right been infringed?

Liberty Interest

Doesn’t just protect physical liberty, but liberty is also engaged whenstate compulsions or prohibitions affect important and fundamental lifechoices.

S7 protects the individuals right to make inherently private choices. Thisright includes degree of personal autonomy wherein individuals maymake inherently private choices, free from state interference (i.e whereto get home). These are basic choices going to the core of what itmeans t enjoy individual dignity and independence Godbout

Security of the Person

Security of the person has been held to protect both the physical andpsychological integrity of the individual.

Where psychological integrity of a person is at issue, secutorty of the personis restricted to “serious state-imposed psychological stress.” Morgentaler

Two requirements need to be met, before S7 breach can be found based onsecurity of the person.

1. Psychological harm must be state imposed, meaning that harm mustresult from actions of the state.

Stress, anxiety, and stigma arise from any legal matter, we areconcerned with that impairment which can be said to flow from

the delay in the human rights process. Blencoe There must be sufficient nexus between state caused action andprejudice to individual. Blencoe

2. Psychological prejudice must be serious. Mere interference with dignity, stigma, or reputation is insufficient Here two concepts are guaranteed:

a. Serious stress to the individualb. Nature of the interference, typeof harm that was suffered

When the focus of the review is the decision itself (that is substantive review) rather than the procedures leading to it, and a discrete Charter right is clearlyat stake, the SCC is to review the decision using almost exclusively the analytical framework(Orthodox Approach) developed under the Charter to reviewle islation.

Key charter provision that would apply is S7:o “Everyone has the right to life, liberty, and security of the person and the right not be deprived thereof, except in accordance with the

principles of fundamental justice.” Liberty Interest and Security of the person will be treated differently, to see if S7 requirements are met.

Under this framework judges engage in a two step inquiry, determining:1. 1st whether the impugned decision infringes a Charter right and2. 2nd whether the infringement can be saved under s1 as a reasonable limit prescribed by law and demonstrably justified in a free and democratic

society.

If a substantive review and a charter violation isalleged, then:Slaight: The SCC has used the applied 3 frameworks to review decisions alleged

to impair the Charter rights. The Orthodox approach is lent greater support whendealing with decisions under substantive review.

THE ORTHODOX APPROACH: This approach was solidified in Multani The SCC first considered the application of the Charter to an admin decision in Slaight .

As a rule it appears the SCC under the orthodox approach, will engage in substantive admin law review when contending values are at stake only if the com lainant fails to est a rima facie infrin ement of a discrete Charter ri ht in which case s1 never enters the icture.

Yes: Prima facieinfrin ement found

NO: Prima facie infringement not found, then engage in asubstantive law SOR anal sis




STEP 2

If S7 is found to be breached based on either Liberty interest, or security of the person. Must ask if the alleged deprivation was in accordance withthe principles of fundamental justice ( or if the violation a reasonable limit under S1? )

Here the government must prove this, on a BoP. In doing this, ask Oakes Test :

1. The reasonable limit is prescribed by law? Usually yes, move on.

2. Justified/Demonstrably justified in a free/demo society?i. Valid Objective: Purpose is related to concerns which are pressing and substantial, and if so thenii. Means used to achieve objective are not disproportionate to the purpose/objective, in doing so will assess;

1. Rational connection: here you’re looking for if means you’ve chosen are rationally connected to objective.2. Minimal impairment: looking for the least intrusive way to violate charter right.3. Proportionality: Balance between bad affects vs the benefits. Balance between both competing interests of society and the

individual AND balance between the benefits of the legislation and the harm caused by it.

ADMIN LAW APPROACHThe most principled defence of the adminlaw approach is found in Multani. Theydeparted from the Majority mainly on thegrounds that review of admin decisionsunder s1 is impermissible b/c it isinconsistent w/ the rights-limiting portionof the French text.

YESThe rights been breached, if so is it in accordance withthe rinci les ustice?

NOThe rights have not been breached, the decision will stand

No

is not in accordance of FJ, then:

Yes,

then the decision willstand

MIXED LAW APPROACH

Traditionally the SCC of applies the Orthodox approach, however more recent cases, suchas Baker, Trinity Western, and Chamberlain, courts have been giving credence to theMixed law approach.

Under this approach, judges first judges: 1. First review the legality of a decision under the principles of admin law, including

inquiry into whether the decision is ultra vires a grant of discretionary based on anunreasonable interpretation of a stat provision. Determine this using SOR analysis.

2. If and only if the decision is lawful under admin law it is then tested w/in the twostep Charter framework. You look to above to see if S7 has been infringed, then S1

In a number of important cases the SCC has decline to use the Charter where it was at leastpossible to do so. For example in Trinity Western and Chaimberlain were decided w/outresort to the Charter. It is possible h/w that issues of standing led the majority in these casesto opt for review under admin law rather than Charter.

As in Baker, the crts in Trinity Western and Chamberlain may be read as supporting a mixedapproach that permits review on admin law grounds when conti rights are at stake, but that

does not foreclose the possibility of review under the Charter if the decision survivespreliminary scrutiny at CL.




CHARTER ARGUMENT – Procedural Fairness

Oral Hearing and the Scope of s7

Singh While Singh did not have a constitutional right to remain in CDN per se he did have a constitutional right to have his claim

determined in accordance w/ the principles of FJ. And where credibility is at stake, as it almost always is in refugee cases, shefound it difficult to conceive of a situation in which the claimant wld not be entitled to prior discovery of the Minister’s case and anoral hearing.

Singh remains valid of how review under Charter can overcome clear legislation, usually an insurmountable obstacle to relief at CL. Singh is also a foundational case for its recognition that s7 applied to non citizens and for its impact on CDN’s statutory and

institutional framework regarding refugee claimants. The Charter can take a complainant across the normally insuperable threshold of a clear statutory bar to certain procedures, but

once the threshold is crossed it is still the CL that determines the content that the procedure must have to pass constitutionalmuster.

INCORPORATION OF THE CL FRAMEWORK UNDER S7

Remember Baker and the 5 factors for determining PF (ABOVE) well in Suresh arguably BAKER framework has been extendedunder s7 to est the specific requirements of the duty to give reasons, a duty considered here as a principle of FJ.

In Suresh the crt held that barring extraordinary circumstances, deportation to torture will generally violate the PFJ protected by s7,but ultimately the case was decided in Suresh’s favour on the basis that the Minister had breached the s7 PFJ by failing to provideSuresh w/ adequate procedural safeguards and reasons for the decision.

W/out the guidance of statute the crt turned to Baker framework to assess the adequacy of the procedure afforded to Suresh. Insofar as procedural rights are concerned, the CL doctrine in Baker properly recognizes the ingredients of FJ.

The Duty to Disclose and the Right to Reply

Weighing the 5 Baker factors, the crt concluded that Suresh did not have a right to an oral hearing, but he did have the right todisclosure of the materials on which the Minister wld base her decision, incl the memo from the IO who initially reviewed Suresh’s case.

Suresh also had a right to reply to the claims set out in the memo, incl claims relevant to the threats he posed to CDN and the risksof torture he wld face if deported.

In Pritchard the crt held that the CL doctrine of solicitor-client privilege barred a complainant before the ON HR Commission fromobtaining disclosure of a legal opinion drafted by the commission’s inhouse counsel.

In principle, an ordinary statute can oust privilege b/c privilege is a doctrine of the CL. It seems to follow that a duty to disclosefound to inhere in the PFJ cld also reduce the effect of privilege. H/w the crt in Pritchard found that meeting the requirementsof PF does not require the disclosure of privileged legal opinion.

To pierce privilege you wld have to distinguish PF at CL (the context in Pritchard ) from PF under s7.

The Duty to Give Reasons

Another area of PF influenced by Suresh is the duty to give reasons. Baker est that the DMs have a duty to give reasons whenever important interests are at stake. H/w in Baker the notes of a junior

officer were deemed to satisfy the reasons requirement even though this officer did not make the final decision, and even thoughthe notes were so riddled w/ stereotypes and prejudice that the crt found them to give rise t RAOB.

H/w b/c the duty to give reasons is part of the duty of PF, crt wil usually review it on a standard of correctness.

Undue Delay

A further element of PF concerns the timeliness w. which admin proceedings are concluded. In Blencoe SCC acknowledged the possibility that an undue delay in the resolution of a HR complaint cld infringe the security

interest protected under s7. It is possible that an inordinate and undue delay cld result in stigmatization and an impairment of the psychological integrity of the

alleged wrongdoer, but the threshold to cross is set very high.

As we have seen in Singh, Blencoe, Baker, Trinity Western, and Chamberlain judges willsometimes say that resort to the Charter is unwarranted when admin law can resolve

rocedural issues. You a l mixed law a roach above.

What does the Charter require in terms of PF? S.7 of the Charter says that everyone has the right to life, liberty and the security of person and the right not

to be deprived thereof except in accordance with the principles of fundamental justice. To access procedural safeguards in s7, you must first cross the threshold of est that your life, liberty or security of person interest are impaired by therelevant decision.

If you cannot est that the impugned decision touches a s7 interest, PF may still be due, but as a matter of CL rather than as a consequence of s7 and the PFJ.

If s7 interest is engaged, PF comes into play by means of the PFJ, and leg must conform to them in order to be lawful.




EX PARTE, in CAMERA HEARINGS -Charkaoui

In the wake of Sept 11, 2001 CDN enacted legislation to give police and security services added pwrs to investigate and prosecuteterrorism.

CDN already had comprehensive leg in place w/in it IRPA. Part of the IRPA envisioned JR of the security certificates that auth detention, but part of the review is concluded behind closed

doors if EV cannot be disclosed for reasons of national security. This scheme gave rise to Charkaoui. Under the IRPA the detention and security certs are subject to review by the federal crt. During the review process ex parte and

incamera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the EV on which thecert is based cld undermine national security.

The judge provides the named individual with a summary of the EV but not its sources or any other details that might compromise

national security. In Charkaoui SCC found that these proceedings doubly engaged s7 b/c persons subject to security certs faced detention pending

deportation (liberty interest) and b/c the person’s removal may be to a place where his life or freedom wld be threatened (securityinterest).

The crt held that the review procedure violated the PJF b/c it denied the named person a fair hearing. A fair hearing the crt said requires a judge to decide the case on the basis of all the relevant facts and law. In an adversarial system judges do not have the pwr to investigate and gather EV. To remedy the procedural shortcomings of the statutory scheme in Charkaoui the crt suggested an amicus curiae ( an

independent, security cleared lawyer) cld be appointed to represent the named person during in camera proceedings. The failure to incorporate such a measure led the crt to find s7 was violated and was not saved under s1. Refugee advocates herald Charkaoui as a major victory notwithstanding the crt left open what has become known as the Suresh

exception, the finding that exceptional circumstances may entitle CDN to deport a person to torture. Charkaoui is another in a line of cases going back to Singh in which s7 has provided procedural safeguards to non citizens who

historically were vulnerable to unstructured discretionary authority subject only to limited review.

ADMINISTRATIVE STATE AND RULE OF LAW

DM’s pwr come from legislature –pwr delegated to DM by legislature. So admin about govt action, specifically delegated govt action where decisions are made not in and by legislature itself. Admin can have relevance outside govt delegated decision-making where private bodies have defacto assumed govt stance- ie.

Amateur sport associations.

Boards & Tribunals Boards are est. by leg. To attain a public policy goal. Leg. may prefer DM-ing by tribunal over crt b/c of expertise the tribunal has. Also B&T may have multiple functions in addition to adjudicative or DM-ing, they may be required to engage in policy-making which

crt eschew. May also be required to issue licences, conduct investigations etc.

ADMIN v CONSTI Major diif b/w admin & consti is unlike a charter challenge, admin case cannot provide an applicant with opportunity to overturn leg.

Resorting to admin you are trying to ensure that govt pwr is used in an accountable way. Charter & Consti challenges are about overturning & reviewing parliamentary DM-ing, whereas admin is about reviewing &

ensuring more generic fairness in govt. DM-ing. Admin much wider reach than Charter which only applies to govt DM-ing. Ie) Charter doesn’t apply to Uni, hospitals or Crown

Corps, admin sometimes does.

The Administrative State

Policy concerns of administrative law1) Controlling state action (stop abuses, proper scope, duties)2) Accountability – Ensure there is more accountability in executive and administrative branches of gov’t

3)

Ensure branch of gov’t performs duties assigned

Similarities with Constitutional Law: Fundamental constitutional principles are used in Administrative Law Rule of law Legislative supremacy s.96 of Constitution – Superior courts (inherent jurisdiction) – Authority to review exercises of statutory power s.7 of the Charter – Accordance with principles of FJ to take away life, liberty, and security of person

Scope of Administrative Law (Limits) Private corporations (other than universities) incorporated under statute – Administrative law does not apply State action covered by contract or torts – Administrative law does not apply ‘Domestic tribunal’ – Procedures are extended to these bodies ( McInnes) – Applies as a factor for lower PF content. Tribunals that

have been created by private group (like sporting associations – No statute involved)




Institutions of Administrative Law (The Decision Makers) Individuals, bodies, agencies exercising powers under statutes – Delegated decision-making authority:

1) Legislatures – All public programs originate with statute, supervision of the delegation of power 2) Public inquiries3) Ministers – Delegated power to exercise discretionary powers4) Municipalities – Provide the legislative framework for the public programs administered; delegated statutory power 5) CRN corporations – Instruments for delivering public policy programs6) Private bodies – Example: Associations that govern sports (regulatory functions), professional associations7) Independent administrative agencies – Non-homogenous group of institutions (tribunals, commissions, boards)

Independent Administrative Agencies (Or Simply Agencies)

Common features:1) Independence from gov’t – Absence of direct control by executive2) Usually engage in some sort of hearing process3) Often individualized decision making – Apply statutory scheme to individuals4) Specialized

Differences between agencies:1) Range of decisions/structure2) Range in stage of process (recommendations, final decisions, appeals)3) Seriousness of the decision (deportation vs. granting license)4) Composition of the agency

Rationale for agencies as opposed to civil servants:1) Legitimacy to decision making (takes away partisan politics)2) Better decisions (expertise)3) Expediency, convenience

Rationale for agencies as opposed to courts:1) Policy matters (not appropriate for courts)2) Volume of decisions to be made (think worker compensations)3) Procedural and efficiency concerns (lawyers, legal costs)4) Expertise and specialization – General legal expertise is not enough5) Adversarial model may not fit the scheme of the agency6) Broader public participation (costs, etc)

Judicial Mechanisms for Control of Administrative Action

1) Appeals – Must be a statutory provision. Distinction b/w external appeal and JR. Unless statute specifically allows for appealsthere will be no appeals allowed.

2) Judicial review jurisdiction of the courts – When statute lacks appeal provision Constitutionally protected as part of inherent powers of superior courts under s.96 of the Constitution Act

Grounds of Judicial Review1) Procedural Fairness

a. Breach of procedural fairness obligationsb. Rule against Biasc. Degree of independence

2) Substantive Reviewa. No legal validity or factual validityb. Unreasonableness of administrative decision, abuse of powers

Issue: How much deference to show

Rule of Law and Administrative Law

Two fundamental concepts:1) Gov’t must act only with lawful authority (Properly authorized) Discretion delegated must be limited by the four corners of the statute2) Gov’t is subject to ordinary law administered by ordinary courts

Possible criticisms: Increased litigation, who can afford judicial review will get it

Dunsmuir's words on Rule of Law & Judicial Review Role of Courts: courts undertaking judicial review, must 1) be sensitive to the need to uphold the rule of law; 2) avoid undue

interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by




Parliament and legislatures. Function of Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they

do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness andthe fairness of the administrative process and its outcomes.

How DM's must exercise their powers: A decision maker must not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewingcourt considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysisstrives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within thecontext of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. AttorneyGeneral of Quebec, [1981]

Rule of Law maintained: because the courts have the last word on jurisdiction, and legislative supremacy is assured becausedetermining the applicable standard of review is accomplished by establishing legislative intent.

Functionalist Critique of Rule of Law

Modern regulatory state – Central concern is effective functioning Courts should be given very limited role – Lack of institutional competence

Specific Concerns:1) Court bias – Desire to protect their own jurisdiction from State2) Court system is not the best system for the administrative agency (costs, efficiency)3) Failure of courts to infuse policy into statutory interpretation

Possible criticisms: Accountability, procedural openness of administrative agencies

Constitutional Basis of Judicial Review s.96-101 of Constitution Act – Interpreted to guarantee JR power over administrative action on limited grounds (Crevier ) Privative clause - Do not operate to limit judicial review – Core power must be retained Re Residential Tenancies Act (SCC 1981) – Background to Crevier : Leading case on the impact of s.96 of the Constitution Act on

the CREATION of provincial administrative tribunals. **Cannot give adjudicative powers that belong to a “s.96 court”**Three step test to determine whether AT acting like s96 crt:1) Historical inquiry – Does power conform with power historically and exclusively held by the courts (at confederation)2) If yes, is the impugned power is ‘judicial’ – Three factors:

a. Involved in private disputesb. Adjudicated through application of a recognized body of rulesc. Adjudicated in fair and impartial process

3) If yes – Look at the power in the context of its overall institutional settinga. Adjudicative functions may be incidental or ancillary to administrative functions

Crevier (SCC 1981) (leading case on AT masquerading as s96 crts): Facts: Privative clause Held: Rule of Law – Courts are ultimate arbiters in regards to law Read down the privative clause – No longer a complete shelter Outcome: Court always able to intervene on issues of jurisdiction Can manipulate the concept of ‘jurisdiction’ Not all errors of law are jurisdictional errors What has been determined as jurisdictional errors:

o Breaches of procedural fairnesso Certain kinds of errors of lawo Finding of fact for which there is no evidence

Crevier is a landmark case for its finding that provincially constituted statutory tribunals cannot constitutionally be immunized fromreview of decisions on matters of jurisdiction by the superior crts.

The trend in case law is that implicit in ss96-100 Constitution Act there is a constitutionally guaranteed right to seek judicial reviewof administrative action on the grounds of jurisdictional error or illegality.

RULE OF LAW IN THEORY

The rule of law can be characterized by 3 interrelated features: 1) a jurisprudential principle of legality; 2) an activity or practice of law making among and w/in an institutional arrangement of govt; and 3) a distinctive political morality.

Together these 3 features affirm the rule of law as an overarching r’ship among legal subjects & the state, seeking to prevent thearbitrary use of pwr and encouraging appropriate forms of responsiveness among govt institutions & b/w these institutions &affected individuals.

THE PURPOSE OF THE RULE OF LAW: Non-arbitrary rule of men

Fundamentally RofL means that govt action must always be sourced in law and therefore bound by law in order to be consideredboth valid & legitimate.

Arbitrariness can also suggest that DM possesses unconstrained discretionary pwr – arbitrariness can be associated w/a unilateralmode of DM-ing.

If a branch of govt steps outside its allotted constitutional role or function, the action or decision will be considered arbitrary in thesense that it is ultra vires.




STEP 1: Remedial Options at the Tribunal Stage Administrative tribunals are as varied so it is unwise to generalize about the remedial powers available to them. However, 2 general

comments can safely be made:o First, b/c T does not have general jurisdiction that a crt does, the pwr to impose a particular remedy must be provided for

in the tribunal’s enabling statute;o Second, most T’s composition structure, and mandates are different from crts, and their approach to remedies reflects

those differences.A) Statutory Authority

As creatures of statute, T cannot make orders that affect individuals’ rights or obligations w/out authority from its enabling statute.Therefore, 1st step in determining T’s remedial options is to look at the statute itself. If a T makes orders outside scope of its

enabling statute, it exceeds its jurisdiction and those order will be void. Orders for payment of $, such as compensation or damages, fines, fees and levies and costs gen. only be ordered by Ts that have

the express stat. auth. to do so. Ts lack the equitable jurisdiction to order interim injunctions, although they may be given stat. auth. to seek an injunction in crt to

enforce a statute.

STEP 2: Enforcing Orders Against Parties

After T makes a decision & imposes an order, assuming no one challenges that decision, another set of Admin law remediesbecome avail: the enforcement pwrs.

A) T seeks to enforce its Order Rarely, a T may enforce its own order. Any enforcement pwrs must be granted by stat. & delegation of enforcement pwrs must

pass consti scrutiny. Ie) a provincially created T cannot have crim (thus Fed) enforcement pwrs.

More commonly T must make an application in crt to enforce any order it makes. Once T has converted its order into a crt order through one of the mechanism above, the order can be enforced in same manner as

crt judgement. Ie) contempt proceedings are avail. if a P fails to abide by Ts order.

B) Party seeks to Enforce T’s Order P to admin action may bring action in crt against another P to enforce T’s order. Note: Crts more likely to grant private application to enforce Ts order where the crt recognizes the Ts order as similar to the kind of

order a law crt might make. H/w the private applicant will first have to convince the crt that it shld intervene notwithstanding thepotential absence of a stat. provision empowering it to do so.

C) Criminal Prosecution Many statutes provide for quasi-criminal prosecution of persons who disobey Ts orders. In the absence of other provisions, it is a crim offence to disobey a lawful order of federal or provincial T: s127 CCC. CCC provision

is avail. where no other penalty is expressly provided by law.

Challenging Admin Action P to Admin action may also decide to challenge that admin action directly. JR is only 1 method of challenging admin actions. JR applications, like litigation can be expensive and drawn-out.

A) Internal Tribunal Mechanisms All Ts can fix certain things, such as clerical errors or factual arrors due to mistake or dishonesty, w/out express stat. auth. This is

sometimes called the slip rule. Ts can also change their minds until the time a final decision is made. Thus what constitutes a final decision becomes important. Some Ts are part of a multi-tiered admin agency. Enabling stats may provide for appeals internal to the agency. Note: where the statute does not provide for an appeal to the crts, Ps only entry to the crts is by means of JR. H/w where

stat. has appeals, wld gen. exhaust those ave. before JR.

B) External Non Court Mechanisms P considering challenging admin action shld not overlook non-legal ave. ie) Ombudsman see below

Ombudsman: Each province has an Ombudsman. While there is no overarching Fed Omb. some Fed dept. & subject areas have their own specialized omb. Gen. the mandate of an omb. is to provide a forum for citizens to bring their complaints re: the wa that govt dept and agencies have

dealt w/them. There is no charge to make a complaint to Omb. & Omb. have discretion as to whether or not they will investigate a complaint. Most leg. defines omb jurisdiction as being over matters of administration and crts have tended to define admin expansively as

involving generic admin processes, not simply as the antonym to judicial processes. Most omb. stats. provide that an omb. is not auth. to investigate a Ts 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.

C) Using the Courts Statutory Appeals Note: crts may be reluctant to embrace novel, non-crt-like, yet potentially effective remedies devised by specialized Ts.




There are 2 main ways by which a party to a T action can access the crts to challenge that action: appeal or JRo appeal mechanism – either to internal admin appellate bodies or to crts is the norm. o JR: is the exception. Sig. it is also discretionary. This means that even tho crts struggle sometimes with knotty issues in

taking appeals from admin Ts, relative to judicial review it is easier to predict the avail. and likely outcome of an appeal. Is an appeal available?

o Look On page 1

D) Using the Courts: Judicial Review The basic nature of JR is diff. from stat or internal appeals, b/c as its root JR is about the inherent jurisdiction of crts to oversee and

check admin action in the interest of the rule of law.

Unlike stat. appeal, which are stat created, JR is the review of the executive action beyond what the executive itself provided for.Thus only on JR will crts investigate a Ts procedural fairness or alleged bias of its members.

JR is fundamentally discretionary in a way that appeals are not: a crt may refuse to grant a remedy: Lafontaine Domtar: in deciding not to intervene to resolve a conflict in legal interpretation b/w 2 Ts construing the same stat. language, the

SCC stated: the advisability of judicial intervention in the event of conflicting decisions among ATs, even when serious &unquestionable, cannot, in these circumstances be determined solely by the triumph of the rule of law.

Is JR Constitutionally Protected? Given the above so far, a leg, in theory cld revise and refine a PC in order to better effectuate the ouster of the crts. H/W a few yrs

after CUPE the SCC obviated the possibility of completely insulating prov admin bodies from JR. Crevier: In Crevier the constitutionality of a PC in a QB stat was challenged on the basis that confiding final and unreviewable DM-

ing auth to an AT wld violate s96 of the Constitution Act by depriving s96 judges of a quintessential judicial function. Crevier constitutionalized JR for jurisdictional Qs, thereby placing the matter beyond the reach of leg. amendment.

In Pasienchyk is was said that since as a matter of conitutional law, a leg cannot however clearly is expresses itself protect and AT from review on matters of jurisdiction, it also cannot be left to decide freely which matters are jurisdictional and which come w/inthe T’s exclusive jurisdiction.

USE AND MISUSE OF DISCRETION

Discretion: discretion means an express legal power to choose a course of action from a range of permissible options, including the option of

inaction.

Abuse of Discretion as a Ground of Judicial ReviewSteps:

1. First, and most obvious, is the statutory language in which the discretion is granted. Is it couched in objective or subjective terms? Isit related to a specific purpose or is it granted for more general purposes?

2. Second is the nature of the interest affected by the discretionary power. Is it one to which our legal system normally gives a high

degree of protection? How seriously is it affected by the decision?3. Third is the character of the decision. Are there effective alternative checks, such as political accountability, that will prevent theabuse of discretion?

4. Fourth is the character of the decision maker. Expertise?

A) Unauthorized Object or Purpose, Improper Considerations

DMs must exercise discretion in conformity w/ the purpose authorized by the delegated statute. Crts must identify the objectauthorized by the statute and then determine whether that object or purpose has been followed or not.

Discretion cannot be exercised on the basis or in light of improper considerations. The Q whether a consideration is proper or not isusually answered with reference to the object of the statute.

These grounds of review are most frequently used.

B) Bad Faith

As we saw in Roncarelli discretion necessarily implies good faith in discharging public duties; there is always a perspective w/inwhich a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.

ie) in Landerville bad faith was found when the city was found to use its pwr to expropriate land, not for legitimate purpose but toprevent a resident from operating his quarry.

C) Acting Under Dictation or Influence

Crts presume that when Parliament chooses to delegate discretion to a particular DM, only the DM can actually exercise it. Therefore any indication that one acted under the dictation or influence of another person suggests that the pwr was not in fact

exercised by the authority that was identified by Parliament. In Roncarelli the DM was found to have exercise his pwr under the dictation of Duplessis & this was not permitted as the pwr was

delegated to the Commission only.




D) Wrongful Delegation of Powers Crts assume that discretion is bestowed on executive DMs on the basis of their expertise or particular situation in the

administrative machinery, so that an administrative auth must exercise discretion itself w/out delegating that responsibility toanother.

ie) In Vic Restaurant the city of Montreal adopted a bylaw that made delivery of permits conditional on the auth of chief of police.This was found to be an illegal sub-delegation of pwr to make a decision, b/c the bylaw did not provide precise norms on which thechief of police cld rely, de facto conferring on him the pwr to make those norms.

E) Fettering of Discretion

DMs who decide in advance how they will exercise their discretion, before being presented with the particulars of a situation,transform the nature of the pwr that was delegated to them.

This kind of situation is likely to arise in context where directives or guidelines are used to structure the exercise of discretion. If directives or guidelines are applied in a way that prevents the DM from making use of his margin of manoeuver in each case, he

then transforms the discretionary pwr into a non-discretionary one. The legality of using those directives thus required DMs o actually exercise discretion and to depart from the guidelines when

cases demand it.

F) Unreasonableness

Definition of unreasonable by the House of Lords: a decision which is so outrageous in its defiance of logic or of accepted moralstandards that no sensible person who had applied his mind to the Q cld have arrived at it.

The conditions required to make a case of unreasonable exercise of discretion were therefore very demanding and rarely est.before the crts.

The application of these various grounds of review presented important difficulties and in many cases the distinction b/w thesubstance of a discretionary decision and its surrounding legal limits cld hardly be neatly distinguished.

The law/discretion dichotomy persisted even w/ the emergence of the politics of deference introduced in CUPE. The hands-off approach to admin interpretation of non-judicial Qs was justified by the idea that law interpretation was not the

monopoly of the crts & in many cases expertise of Admin agencies were just as qualified as crts and some even more so. The heads of review available limited the potential for intrusion into the substance of those decisions & maintained the judiciary in a

position that was compatible w/ a formal view of the separation of pwrs. In cases of discretion, unreasonableness was understood in the Wednesbury sense (something so absurd that no

sensible person cld ever dream that it lay w/in the pwr of the authority) and did not seem to require any seriousinvolvement with the merits of the decision b/c the defect it punished was to clearly appear on its face.

By contrast, in the context of review of executive interpretations of law, CUPE defined a PU decision as one that cld not berationally supported by the relevant leg.

The law/discretion dichotomy seemed entrenched in law of JR. But Nicholson which was handed down the same yr as CUPE paved the way for the restructuring of JR that wld occur 20 yrs later. It was noted in Nicholson that it is very difficult to make a distinction b/w legal decisions & discretionary ones. It became difficult to maintain that distinction as a justification for exercising different forms of control for law & discretion.

Discretion and the Charter: Unreasonableness Revisited

General Rule In the absence of express words or necessary implication, it was presumed that the legislature did not intend a discretion to be

exercised so as to curtail basic liberties. NOTE: However, the mere fact that a statutory discretionary has the potential to be exercised in a way that infringes Charter rights

and freedoms does not give rise automatically to invalidation. In such cases, the attack will have to be on the individual exercise of discretion, not the authorizing provision

Very limited use of the Charter to strike down legislation as void for vagueness under

Slaight Communications Inc. v. Davidson If decision maker is given a wide degree of discretion under the statute and arguably he has a choice of how to interpret how far he

can go, then he must exercise his discretion within the bounds of the Charter Court indicated it is not re-weighing factors that the discretionary decision maker has taken into account—if discretionary decision maker has

applied appropriate factors, the court will not overturn it even if it would have come to a different decision on those factors itself

LAW of DISCRETION: BAKER AND BEYOND

Baker marked the turning point in the law of discretion. Crt said that review of discretion cld follow the P&F approach b/c the factors it put forward to determine the applicable standard of

review in any case cld accommodate the specificity of discretionary pwrs. The reasons that supported the decision showed that the officer failed to give serious weight & consideration to the interests of the

children. This demonstrated that it was inconsistent w/ the values underlying the grant of power & therefore unreasonable. By applying the P&F approach to the control of discretion Baker marked the end of the law/discretion dichotomy in the domain of

substantive JR. The SCC recognized that he substance of discretionary decisions cld be made subject to a control based on reasonableness.




If it is not possible to clearly differentiate discretion from law, the differentiation cannot be the basis for the determination of theapproach to review.

Baker required reasons be given for decisions having important consequences for the individuals concerned. The duty to give reasons does not depend on the kind of pwr that is exercised by the executive, but rather on the consideration that

the dignity of the individual requires that she be told why a decision that is critical to her future was made.

BAKER’s AFTERMATH

Baker suggests that those heads of review (ABOVE) still have a roll to play: discretion must be exercised in a manner that is w/in areasonable interpretation of the margin of manoeuvre contemplated by the legislature in accordance w/ RofL.

The previous grounds for review which rely in large part on Qs of fact are not unaffected by the P&F approach.

Grounds that more closely relate to an exercise of stat interpretation (such as unauth object or purpose, irrelevant considerations or reasonableness) might need to be approached in conformity w/the appropriate SOR at the close of a P&F analysis.

Baker brought discretion under SOR. So now errors of law, fact, mixed fact & law and discretion are analyzed under theSOR.

Effect of SURESH

After Baker judicial and academic discussion was: when called upon to review the validity of any given exercise of discretion,can the reviewing court reweigh the considerations that were taken into account by the MD?

Suresh clearly said no! The auth required to weigh the relevant considerations in Baker was the Minister, not thereviewing crt.

Baker does not auth crts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, butdraws on an est. line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors.

Reviewing crts must therefore limit themselves to ensuring that only relevant considerations have been taken into account;weighing is for the DM alone!

Failure To Consider Relevant Factors A more limited and plausible version is that, while an agency may lawfully consider a large number of factors in the exercise of a

discretionary power (permissive relevant considerations), it is required to consider only some of them (mandatoryrelevant considerations).

o An exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enablingstatute expressly, or more usually, impliedly, obliged it to consider.

Multiple Purposes and Considerations Prevailing view appears to be that the court will only hold such decisions to be ultra vires if the unlawful purpose or

consideration played a dominant or material role in the exercise of discretion

Purpose and Proof

When an agency exercises its discretion after receiving a report from a senior official or committee, the court may attribute to theagency any statement of purpose contained in that report

Rule Making / Delegation

Regs are binding on all those who are subject to them. The pattern of the legislature enacting broad legislation and delegating to the executive the pwr to fill in the details underlies much

of the CDN reg structure. These detailed rules or guidelines govern much of our daily lives at home and work.

These rules and guidelines can be broken into 2 broad categories1. Regs and rules and

Regs an Rules are legally binding requirements and as such the pwr to make the must be expressly grantedunder statute.

2. soft law. Soft law on the other hand while also developed by the executive is not legally binding. The pwr to make soft law

(such as guidelines about procedures) does not have to be expressly provided by statute. H/w soft law plays a veryimportant role in how DMs make decisions, both procedurally and substantively.

WHY DELEGATE?

The primary reason for such delegation is expertise. Expertise is an important concept in admin law. Expertise is also central to the need to delegate responsibility for detailed requirements in the form of rules and law. Legislators never have complete information about the future, so legislation is therefore nec and unavoidable incomplete. B/c

legislation can be difficult and time consuming to alter, the pwr to make requirements may be delegated in order to increaseflexibility to allow the requirements to be changed as new information arises.




While not legally binding soft law such as policies and guidelines can have significant impacts on people’s lives. For example inBaker, the Minister issued guidelines setting out the bases on which IO shld decide whether the individual deserved humanitarianand compassionate consideration. These guidelines were important to the Crt in deicding the limits on the discretion to beexercised under the Immigration Act.

The legislators delegate the pwr to make rules and soft law in order to allow others to fill in the gaps in the legislation.

RISKS of DELEGATION

Such delegation raises risks that those who are making the rules or soft law are not following the wishes or expectations of thosewho delegate the pwr.

This risk arises b/c a principal-agent problem inherent in such delegations. This principal-agent problem has 2 dimensions. 1) the

party making the rules or soft law (the agent) is not following the wishes of the legislature (the principal). 2) there is further underlying P-A concern b/c legislature or the party making the rules or soft law may not be respecting the wishes of the ultimateprincipal, the public.

The principal’s lack of expertise, information, or time means that he or she had difficulty ensuring that the agent is actually actin ginhis or her best interests in carrying out the task. This is the P-A problem.

The problem also arises when the legislature delegates the pwr to make rules or soft law. Legislators delegate pwr b/c they lack theexpertise time and information to make the decisions but, at the same time, they have difficulty monitoring how this pwr isexercised b/c they lack the expertise, time and information, which means that expertise, time and information represent both thereasons to delegate and the causes that hinder monitoring.

There are 2 risks from delegating the pwr to make rules or soft law. 1) the Agent may follow its own views and values rather thanthe principal’s view and values in making the rules and soft law. 2) the agent may not be attempting to further the public interest, itmay instead be seeking to further its own interest.

Similarly, legislators may delegate in order to further their own interests, such as where broad legislation with delegated rulemaking pwr is used as a form of blame avoidance or credit attraction by legislators or Cabinet members.

CONTROLLING THE RISKSA) Structural Approaches

The ability of Cabinet to both set the scope of discretion and control the exercise of that discretion provides significant ability to theparty in pwr to steer the details of the policy at the expense of other elected members of legislature.

Legislatures may also attempt to indirectly control the exercise of direction through inter alia the choice of body that will exercisethe discretion of the resources provided to that body.

B) Legislative Review

Instead of indirectly attempting to ensure that the pwr is delegated conforms to its views, the legislature cld directly control thediscretion by reviewing the resulting rules or soft law.

The legislature itself, or more likely a committee, cld examine the rules or soft law and decide whether to approve it or not. Although legislative committees may review rules and regulations there is generally no legislative oversight of soft law.

C) Judicial Review of Substance

The crts are an obvious candidate for control of rules and soft law. They are an independent 3rd

party that can monitor or review thesubstance of the rules that are made. This may keep agents w/in the bounds of the pwr delegated and control the agents when they make mistakes, substitute their own

views of the public good, or acts in its own self interest. One of the seminal cases in CDN is Thorne’s Hardware. In that case the Cabinet made an order in council under the National

harbours Act extending the boundaries of the Port of St John. The applicant challenged the order on the basis that it was made inbad faith.

It was argued that Cabinet extended the boundaries in order to increase the revenues and such a purpose was not w/in the scopeof Cabinet’s prws under the Act.

The SCC h/w held that while it was possible to strike down an order in council on jurisdictional or other compelling grounds, it wldtake an egregious case to warrant such action.

It refused to examine the EV the applicant provided of bad faith stating that the govt’s reasons for expanding the harbour are in theend unknown.

The crt in the end took a strong position against examining the actions of Cabinet in making orders in council. Crts do review the substance of rules made by other agents under judicial review pwrs similar to the pwrs used to review other

decisions of the executive. In Enbridge crt applied the SOR and found that the standard was correctness. Crts will review the substance of rules (incl regs) for whether (as in Enbridge) the regs is w/in the grant of pwr. They will also review

rules for other reasons, incl whether regs violate the Charter. Crts may have been reluctant to review b/c the discretion is often insuch broad terms that review is difficult.

Crts have been more reluctant to review soft law. One exception to this reluctance to review soft law is a review of fettering. Fettering occurs where a guideline or policy, due to its language or practical effect is in effect mandatory or binding on a DM taking away the discretion that has been granted to him.

Yet even if crts were willing to review rules or soft law substantively, is this something we shld want them to do? There are 3reasons why not.

1. the process of JR tends at best to be random and at worst biased in favour of certain interest groups. JR can be very timeconsuming and expensive.




2. 2nd concern w/ substantive review is that even if the appropriate challenges come before the crts, the crts often do not have theexpertise to review the rules. For example in Endridge how can a crt determine the appropriateness of the rules concerning thebilling of consumers or even the appropriate interpretation of the purpose of the legislation?

3. Even if crts have the expertise to review admin rules, this discussion of the crt’s role in reviewing admin rules has implicitlyassumed that crts are attempting to determine the best possible interpretation of legislative pwr and the appropriateness of thechallenged rule.

D) Process Requirements

There is no CL requirement of PF where a decision is of legislative and general nature. B/c rules are typically general (that is, applyto many people) they tend to fall under this exception to PF.

Legislative in this context does not nec mean by the legislature. In Inuit Tapirisat , IT challenged a rate increase for telephoneservices supplied by Bell CDN.

IT sought JR, claiming it has been denied PF in its appeal b/c the CRTC had made submissions to which it did not have access.The SCC h/w found that Cabinet did not owe the IT PF in this case. It was found that making rats was legislative in the purest formb/c it affected many Bell customers.

In the end it was found that there was no obligation on Cabinet to provide PF, such as notice, a hearing or reasons. -IT shows that for a decision to be legislative in nature the body making the decision does not have to be the legislature. The

decision itself must have this legislative and general character. Although this legislative and general category is not self evident, itappears to exclude rules aimed at a single party. For example in Homex which involved a dispute b/w a developer and amunicipality. After extended and butter negotiations, the municipality used its bylaws to designate the developer’s subdivision plannot to be a registered plan. It did so w/out notice to the developer. If the bylaws were valid the developer wld have to obtainpermission from the municipality to see part of the development and before providing consent the municipality wld imposeconditions such as installing services. The developer challenged the bylaw saying the municipality did not act fairly. It was held thatthe bylaw was not general in nature but aimed at resolving a dispute with one party. The municipality therefore owed a duty of fairness.

As a result, the general approach of crts in CDN has not been to impose CL procedural requirements on the making of rules.

THE ONGOING STRUGGLE

Legislators take risks when they delegate the pwr to make rules to parties. They benefit from the expertise and time of the other party. They are able to expand the reach of their reg pwrs b/c they wld not have the time to make rules in all the areas.

H/w they are giving a significant amount of pwr to parties that they cannot fully monitor b/c of the info and time cost of monitoring.This difficulty created the P-A problem.

Govt continue to search for better ways of overcoming the P-A problem. Some suggestions incl developing an AAT. The struggle is to control the P-A problem while retaining the benefits that come with delegation.

ADMIN LAW AND NATIONAL SECURITY

Special Qualities of National Security Administrative Proceedings

Notice and a right to be heard

Notice and right to be heard are fundamental of CL PF and where triggered, equivalent fairness protections under CBR andCharter. Yet NS admin proceedings, both notice and right to be heard may be rudimentary.

A Basement Floor? The crt has recognized a bare min of fairness that must be met in NS matters, at least where Charter interests are at stake. In Suresh the applicant faced the prospect of being deported to possible torture. SCC held that Suresh was protected by s7

Charter. This meant that he must be informed of the case to be met and that an opportunity provided to respond. The SCC in Charkaoui , a case involving legitimacy of the secretive security cert process under CDN immigration law said that

procedures required to conform to the principles of FJ must reflect the exigencies of the security context. Yet they cannot bepermitted to erode the essence of s7. The principles of FJ cannot be reduced to the point where they cease to provide theprotection of due process that lies at the heard of s7 of the Charter. The protection may not be as complete as in a case whereNS constraints do not operate, but to satisfy s7 meaningful and substantial protection there must be.

In Suresh crt concluded that info provided to govt to inform Suresh of the case against him was legitimately subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding public security documents.

1. Truncated Notice Some NS procedures anticipate no notice being given to affected individuals. Ie) the CCC has a provision where a groups may be

listed as a terrorist group. While the listing may be challenged, the challenger has limited opportunity to know the case to be met. Also the opportunity is after the entity is already listed.

2. Truncated Right to be Heard In other circumstances, when an individual is given notice or at least an opportunity to challenge a decision, special constraints

may be imposed on his right to be heard. There are several closed-door admin proceedings conducted in the absence of counsel for the non-govt party and the party

themselves (ex-parte).



These regimes allow a denial of an interested party full access to relevant info-usually intelligence from the security servicesmarshaled by govt as EV in the proceedings.

The result may be that the interested party does not know the case to be met, even in circumstances where important interests matbe at stake.

In Charkaoui be careful to extrapolate too much from the right to heard. The crt did not signal that confidentiality & a truncatedopportunity to be heard are per se impermissible. In this case the stat key’s shortcoming was in the s1 analysis the govt hasshown no reason why it had failed to adopt an alternative to the full ex-parte system.

Also Charkaoui will be of little sig in admin processes that do not trigger s7- life, liberty and security of person.

Discretion and National Security

Fewer than 1/3 of stat that invoke NS expressions define the concept. This failure to define produces stats replete w/ a conceptwhose preside content is extremely vague.

Ambiguity in the understanding of NS confers substantial discretion on the executive branch to define NS as it wills. B/c NS existsin the eye of the beholder; there is ample room to employ NS justifications in manners that may prove impossible.

The mosaic effect posits that the release of even innocuous info can jeopardize NS if that info can be pieced together w/ other databy a knowledgeable reader. The result is a mosaic of little pieces of benign info that cumulatively discloses matters of true NS sig.The mosaic effect has been accept by Crts and has guided decision on disclosure.

B/c the doctrine applies to innocuous info, the future use of which can never be predicted, it could be deployed to stave off disclosure of virtually any piece of info.

Deference as the Starting Point in National Security Matters In Suresh the crt applied the P&F approach and found that the Minister’s decision would be overturned only in egregious

circumstances. A PU decision was one made arbitrarily or in bad faith that cannot be supported on the EV or where the Minister failed to consider

the appropriate factors.

At least in NS matters PU is the default SOR where the exercise of ministerial discretion is challenged. In coming to its conclusion Suresh cited with approval Rehman as UK case which stated that the interest of NS cannot be used to

justify any reason for wishing to deport an individual, there must be some possibility of risk or danger to the security or well-bring of the nation.

The Application of Deference Suresh and Rehman underscore the difficult role of reviewing crts in the NS context: generalist crts are asked to second guess

govt officials privy to arcane info and expertise on matters that might shake the state to its foundation. The temptation to err on sideof caution is great.

Suresh was followed by Charkaoui where fairness imperatives prevailed against security preoccupations. Also, where s7 is engaged there is a basement floor of procedural entitlement that must be met. (SEE ABOVE)