ADMINISTRATIVE LAW. Melanie Baldwin Registrar and James Seibel Chairperson

Transcription

1 ADMINISTRATIVE LAW Melanie Baldwin Registrar and James Seibel Chairperson Saskatchewan Labour Relations Board Broad Street Regina, Saskatchewan S4P 3V7 Revised May 2004

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3 Saskatchewan: Bar Admission Program i TABLE OF CONTENTS I. INTRODUCTION...1 II. NATURE OF THE TRIBUNAL...2 A. GENERAL CHARACTERISTICS...2 B. TYPES OF TRIBUNALS Statutory Tribunals Consensual Tribunals...3 (a) The Arbitration Act, (b) The Trade Union Act...4 III. CHOICE OF FORUM...5 IV. MAKING THE APPLICATION...7 V. PRE-HEARING CONSIDERATIONS...8 A. DETERMINING PROCEDURE AND POLICY OF THE TRIBUNAL...8 B. PROCEDURE AND FORMALITY Hearsay Evidence Opinion Evidence Authority to Establish Procedure In Camera or Public Hearing...10 C. SUBPOENAS AND TESTIMONY Statutory Tribunals Consensual Tribunals...12 D. DISCLOSURE AND PARTICULARS...13 E. AGREED STATEMENTS OF FACT AND ISSUE...15 Revised 1999

4 ii Saskatchewan: Bar Admission Program F. PREPARATION OF WITNESSES...16 G. PRE-HEARINGS...16 VI. THE HEARING...16 A. PRELIMINARY OBJECTIONS Generally Denial of Natural Justice / Bias...19 (a) Making the objection...19 (b) The nature of bias The Charter of Rights and Freedoms...22 (a) Section 24(1) of the Charter and Section 52(1) of the Constitution Act, (b) Procedure for Charter Objection...24 B. THE HEARING PROPER Procedure Opening Statements Adjournments Burden and Standard of Proof Merits and Remedy...27 C. ARGUMENT...27 D. COSTS...28 E. ENFORCEMENT OF THE DECISION...28 F. THE DECISION Functus Officio Reasons...29 VII. JUDICIAL REVIEW...30 A. STATUTORY RIGHTS OF APPEAL AND REVIEW...30 B. THE INHERENT SUPERVISORY JURISDICTION OF THE COURT OF QUEEN'S BENCH...31 Revised May 2004

5 Saskatchewan: Bar Admission Program iii C. THE RULES OF THE COURT OF QUEEN'S BENCH - PART Remedies - Rule Standing - Rules 665 and Service - Rule Interim Stay/Order - Rule The Record - Rules 669 and Remission - Rule Time Limits and Delay - Rule D. PREROGATIVE REMEDIES Generally Certiorari and Prohibition Mandamus...37 E. PRIVATE LAW REMEDIES Damages Injunctions Declarations Charter Applications...39 F. SCOPE OF JUDICIAL REVIEW Introduction The Pragmatic and Functional Analysis...41 (a) The effect of a privative clause...42 (b) The expertise of the tribunal...45 (c) The purpose of the Act as a whole and the provision in particular...47 (d) The nature of the problem - a question of law or fact Jurisdictional Error...50 (a) it is a jurisdictional error when a tribunal fails to provide procedural fairness to a party before it...52 (b) it is a jurisdictional error for a tribunal to err in interpreting a legislative provision which limits its powers...55 (c) it is a jurisdictional error for a tribunal to make a patently unreasonable error on a question of law which is within its jurisdiction Conclusion...56 Revised May 2004

6 iv Saskatchewan: Bar Admission Program PRECEDENTS: Writ of Subpoena Ad Testificandum - Labour Relations Board...P - 1 Writ of Subpoena Duces Tecum - Labour Relations Board...P - 3 Notice of Motion and supporting Affidavit for a Stay of a decision of the Labour Relations Board pending disposition of an application for judicial review...p - 5 Notice of Motion to set aside portions of arbitration award pursuant to s. 46 of the Arbitration Act, 1992, and for error of law...p - 9 Notice of Motion to quash a decision of the Labour Relations Board pursuant to the Health Labour Relations Reorganization Act for error of law or jurisdiction error...p - 13 Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of excess of jurisdiction and/or error of law...p - 17 Notice of Motion to quash a portion of a decision of the Labour Relations Board on the basis of error of law and/or excess of jurisdiction...p - 21 Notice of Motion for Order of prohibition against Saskatchewan Labour Relations Board...P- 25 Revised June 2006

7 Saskatchewan: Bar Admission Program 1 I. INTRODUCTION Administrative law is a rapidly expanding area. A number of years ago it was estimated that there were over 1500 statutory tribunals in Canada -- this number has almost certainly increased. In addition, there are a varying, but large, number of temporary and permanent consensual boards set up to resolve all manner of private disputes. Growth in the administrative law area is due, in large part, to congestion in the court system. Administrative tribunals are created to provide an alternative process for the resolution of certain disputes. The alternative process provided by administrative tribunals is intended to be more efficient and more effective than the court system for the following reasons: (a) Administrative tribunals generally resolve disputes more expeditiously than the court system. (b) Administrative tribunals are generally composed of persons who are expert in the particular field over which the tribunal has jurisdiction. (c) Unlike the courts, administrative tribunals implement government and public policy in their decisions. Although many administrative tribunals are largely invisible to the general public, they, and not the courts, are far more likely to affect an average citizen or corporation. As a result, it is common for lawyers to be involved in administrative proceedings. Revised 1999

8 2 Saskatchewan: Bar Admission Program II. NATURE OF THE TRIBUNAL A. GENERAL CHARACTERISTICS Hearings before administrative tribunals are generally less formal than court proceedings. Administrative tribunals generally have wide latitude in setting their own procedures and in choosing how strictly they will observe the rules of evidence. For example, many tribunals will admit hearsay evidence, unless it goes to the ultimate issue to be determined, and will simply determine the weight to be given to such evidence. In varying degrees, administrative tribunals tend to have less political independence than the courts. For example, the Saskatchewan Labour Relations Board has the capability to be very independent and only the courts may review its decisions. On the other hand, CRTC rulings may be reviewed by Cabinet. Further, while some tribunals' rulings are virtually review-proof (e.g., the Workers' Compensation Board), others only have the power to make recommendations (e.g., an investigative committee of the Saskatchewan Pharmaceutical Association or of the College of Physicians and Surgeons of Saskatchewan). While proceedings before an administrative tribunal are generally resolved more quickly than proceedings before the courts, the former process is not necessarily less expensive. An administrative hearing may take as long as a trial and some tribunals are composed of members who are paid by the parties to the proceedings. However, an expeditious disposition will often be very important to the person affected such as a discharged employee waiting to see if he or she will be reinstated or an injured worker awaiting compensation. B. TYPES OF TRIBUNALS Administrative tribunals may be given jurisdiction over disputes by statute (statutory tribunals) or by contract (consensual tribunals). Revised 1999

9 Saskatchewan: Bar Admission Program 3 1. Statutory Tribunals Most administrative tribunals are creatures of statute. Dispute resolution in an area of law that would ordinarily be dealt with by the courts is delegated by statute to a statutory tribunal. The statute will also define the parameters of the tribunal's jurisdiction, set out the manner in which the tribunal may exercise that jurisdiction and describe the circumstances under which the tribunal's exercise of jurisdiction may be reviewed by or appealed to another tribunal or the courts. 2. Consensual Tribunals Parties to contracts may agree to resolve disputes by submitting those disputes to a consensual tribunal. The most common form of consensual tribunal is a board of arbitration. However, there are many other consensual tribunals in existence -- from a golf club membership committee to an athletic league commission to the international congress of a trade union -- which affect, sometimes in very serious ways, the lives of ordinary citizens. The issues of jurisdiction, exercise of jurisdiction and review of the exercise of jurisdiction of a consensual tribunal are normally embodied in the contract between the parties. In addition, consensual tribunals may be affected in varying degrees by legislation such as the Arbitration Act, 1992, S.S. 1992, c. A-24.1 or the Trade Union Act, R.S.S. 1978, c. T-17. (a) The Arbitration Act, 1992 This statute applies to any arbitration conducted pursuant to an arbitration agreement unless its application is excluded by law. Pursuant to s. 4 of the Arbitration Act, 1992, parties may agree in their arbitration agreement to exclude or vary any provision of the Act, except certain listed provisions which cannot be excluded or varied (e.g., the requirement that an arbitral tribunal treat the parties before it equally and fairly and the circumstances under which the court may set aside, declare invalid and enforce an award of an arbitral tribunal). Revised 1999

10 4 Saskatchewan: Bar Admission Program An arbitration agreement may contain no further specifics beyond a provision that all disputes between the parties shall be submitted to arbitration. In this case, the scheme provided in the Act would be applicable in its entirety. Conversely, the parties may choose a hybrid procedure in which the arbitration agreement provides for certain specific requirements and leaves other matters to be determined pursuant to the Act. Where an arbitration clause in a contract provides that disputes shall be submitted to arbitration on the request of either party, arbitration will not be a condition precedent to a court action unless and until such a request is made. An agreement which purports to oust the jurisdiction of the courts will be void as against public policy, but parties may agree that any disputes will be resolved through arbitration. If one party then brings an action in court, the other party may make a Chambers application seeking a stay of the court action. The party who commenced the court action bears the burden of proving that an arbitrator could not give effective relief under the circumstances. (b) The Trade Union Act One of the most common consensual tribunals is a grievance arbitration board constituted pursuant to a collective bargaining agreement. Section 25 of the Trade Union Act applies to all such arbitrations. Section 25 of the Act contains, inter alia, a description of the powers of an arbitrator or board of arbitration and deals with some procedural aspects of grievance arbitration such as time limits for a decision and payment of the costs associated with the arbitrator or arbitration board. Section 25(4) provides that the Arbitration Act, 1992 does not apply to a grievance arbitration pursuant to a collective bargaining agreement. In most cases, the collective bargaining agreement sets out a grievance and arbitration procedure. Where a collective bargaining agreement provides for grievance arbitration but fails to specify a procedure, the procedure to be followed is found in s. 26 or s of the Trade Revised 1999

11 Saskatchewan: Bar Admission Program 5 Union Act. In addition, s of the Act provides for arbitration in the case of a dismissal in a unionized workplace where no collective agreement is in force and s of the Act provides for an expedited arbitration process which may be accessed under certain circumstances. III. CHOICE OF FORUM The first question which must be asked by an administrative lawyer is whether the matter at issue is one which must be dealt with by a certain tribunal rather than by another tribunal or by the courts. Legislation often requires that the only tribunal empowered to consider certain legal problems is the statutory tribunal created by the legislation (e.g., the Workers' Compensation Board). In other cases, particularly in the labour and employment sphere, the choice of forum may not be so clear. For example, suppose you are confronted with an employee who has been terminated by his or her employer. Your first inclination might be to demand compensation from the employer and/or to commence a civil suit for wrongful dismissal. In many cases, this course of action would be entirely appropriate. However, if your client's workplace was unionized and he or she was a member of the union, the courts would not be the appropriate forum in which to proceed. In St. Anne Nackawic Pulp and Paper Co. Ltd. v. Canadian Paperworkers' Union, Local 219, [1986] 1 S.C.R. 704 (S.C.C.), the court upheld the notion that the labour relations statute (the Trade Union Act in Saskatchewan) provided the exclusive recourse open to the parties to a collective agreement for its enforcement -- submission to arbitration. Subsequently, in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.) the court held that the jurisdiction of the courts over tort claims of an employee against an employer had been ousted by binding arbitration and in O'Leary v. The Queen, [1995] 2 S.C.R. 967 (S.C.C.) the court made the same finding vis a vis tort claims of an employer against an employee. Revised 1999

12 6 Saskatchewan: Bar Admission Program If you had followed your first inclination and commenced a civil suit for your unionized client, you would have eventually found yourself in the wrong forum. In addition, by the time you realized that an error had been made, the time limit for filing a grievance may have expired - - potentially destroying your client's chances of proceeding in the proper forum. Clearly, the choice of the proper forum is crucial. There are other examples of choice of forum problems encountered when dealing with unionized clients in the labour and employment sphere. If your client was dismissed because of his or her union activity, the appropriate forum might be the Saskatchewan Labour Relations Board on the basis that the employer had committed an unfair labour practice. If your client was employed in a federal undertaking covered by the Canada Labour Code, R.S.C. 1985, c. L-2, the proper forum might be the Canada Labour Relations Board. If the dismissal involved discrimination on prohibited grounds, your client may have a grievance and/or a complaint under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (see: Cadillac Fairview Corporation Limited v. Saskatchewan Human Rights Commission, (1999), 173 D.L.R. (4th) 609 (Sask. C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 492 (S.C.C.) and Parry Sound (District) Social Services Administrative Board v. Ontario Public Service Employees Union, Local 324 (2003), 230 D. L. R. (4th) 257 (S.C.C.)). If the dismissal was due to your client's refusal to undertake unsafe work, your client may have a grievance and/or a complaint under the Occupational Health and Safety Act, 1993, S.S. 1993, c. O-1.1 (see: Prince Albert District Health Board v. Saskatchewan (Occupational Health and Safety, Executive Director), (1999), 173 D.L.R. (4th) 588 (Sask. C.A.)). If the dismissal breached the Labour Standards Act, R.S.S. 1978, c. L-1, your client may be able to file a grievance and/or seek assistance from Labour Standards Branch (see: Dominion Bridge Inc. v. James Routledge, Daren Keller and The Director Labour Standards Branch (1999), 173 D.L.R. (4th) 624 (Sask. C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 305 (S.C.C.)). For a comprehensive analysis of the state of the law in Saskatchewan relating to choice of forum for a dispute in a unionized workplace, see Brown v. Westfair Foods Ltd. (2002), 213 D.L.R. (4th) 715 (Sask. Q.B.). Revised May 2004

13 Saskatchewan: Bar Admission Program 7 IV. MAKING THE APPLICATION Once you have determined the issue of the appropriate forum or forums in which to seek redress for your client, you must then determine how to make the application. Generally, one should: i) for a statutory tribunal review the particular statute which creates the tribunal, including all regulations; ii) for a consensual tribunal obtain and review the contract, agreement, constitution or bylaws establishing the tribunal; iii) determine the nature and extent of the jurisdiction of the tribunal by reviewing the statute or contract; iv) determine whether the provision of the statute or contract at issue has been previously considered by the tribunal and review any previous decisions; v) determine the procedural requirements under the statute or contract to make the application, including any limitation period considerations or alternative methods of proceeding in the event that the limitation period has expired; vi) determine who should be served with, and the manner of service of, the initiating material; and vii) determine the frequency of regular sittings of the tribunal or when a hearing would likely be held after the application is made. Revised 1999

14 8 Saskatchewan: Bar Admission Program If your client is a respondent to an application, you should determine the time limit for the response and the form and content of the response. A party in the position of respondent must also give special consideration to the issue of jurisdiction of the tribunal and must determine whether the applicant has chosen the proper forum and fulfilled all conditions precedent to making the application. V. PRE-HEARING CONSIDERATIONS A. DETERMINING PROCEDURE AND POLICY OF THE TRIBUNAL The first place to look for pronouncements on procedure and policy is the enabling statute and regulations governing a statutory tribunal, or the agreement, constitution or bylaws of a consensual tribunal. For example, the Regulations to the Trade Union Act contain the forms to be used for applications under that legislation. However, it is rare for a statute or agreement to contain a comprehensive procedural code. In some jurisdictions, such as British Columbia (the Administrative Tribunals Act, S.B.C. 2004, c. 45) and Alberta (the Administrative Procedures Amendment Act, S.A. 2005, c. 4), legislators have enacted umbrella legislation setting out procedure for certain administrative tribunals operating in those jurisdictions. Saskatchewan has not moved in this direction to date. Most statutory administrative tribunals have support staff who are responsible for the day to day administration of the tribunal's business. These individuals are often the main source of information on the tribunal's procedure and policy. The tribunal's administrative staff can generally provide parties with precedent material and, in some cases, even precedent decisions arising from analogous fact situations. It is therefore prudent to make contact with the tribunal's staff at an early date to obtain as much information and material as possible before appearing before the tribunal. In terms of the merits of your application, if a great deal of doubt is expressed by the tribunal's administrative staff a party may wish to obtain a second opinion to determine whether it is advisable to proceed before the tribunal. However, regardless of the comments made by administrative staff on the merits of an application, each party must make an independent decision about whether to appear and make representation. Revised June 2006

15 Saskatchewan: Bar Admission Program 9 B. PROCEDURE AND FORMALITY Another consideration in preparing for a hearing is to determine the degree of formality of a hearing before the particular tribunal and the type of evidence that may be allowed. The degree of formality adopted by administrative tribunals ranges from near court to highly informal. It is necessary for a party to determine in advance of the hearing what evidence and what forms of evidence are likely to be accepted. Questions to be addressed at this juncture include: i) will the tribunal accept agreed statements of fact? ii) will the tribunal accept affidavit evidence or is viva voce evidence required? iii) will the tribunal accept uncertified documents or photocopies? iv) will the tribunal accept hearsay evidence? 1. Hearsay Evidence Many tribunals will admit hearsay evidence subject to ascribing the weight to be given to that evidence, so long as the hearsay evidence is not the principal basis upon which the board is asked to decide a crucial factual issue in favour of the party upon whom the burden of proof lies. This is particularly true where the consequences for the other party are serious (e.g., loss of employment). Generally, a tribunal will hear the hearsay evidence before ruling on its admissibility. If the tribunal refuses to admit the hearsay evidence it will disregard it when it makes its decision. Revised 1999

16 10 Saskatchewan: Bar Admission Program The admission of hearsay evidence may be a ground for a judicial review of the tribunal's decision by the other party. However, in order to use this ground of judicial review the other party likely must object to the admission of the hearsay evidence before the tribunal. 2. Opinion Evidence The common law rule applied by the courts to the admission of opinion evidence is generally also applied by tribunals. As a condition precedent to giving such evidence, an expert must testify to his or her qualifications and skills in order to lay a foundation for his or her opinion evidence. 3. Authority to Establish Procedure Generally, administrative tribunals have the inherent authority to determine the procedure of the hearing and to make all necessary decisions in that regard both prior to and during the hearing. Note, however, that the statutorily prescribed procedures of many professional discipline tribunals use language akin to criminal proceedings and may be construed strictly by the courts in reviewing for procedural fairness. 4. In Camera or Public Hearing Generally, consensual proceedings have been viewed as a private process and closed to the public except with the consent of the parties. Where the process is a statutory one, however, the decision to admit the public generally lies within the discretion of the tribunal. For the most part, statutory tribunals operate on the premise that the hearing should be open to the public unless a party requests privacy and can demonstrate good reasons for this request. Revised 1999

17 Saskatchewan: Bar Admission Program 11 C. SUBPOENAS AND TESTIMONY If the particular administrative tribunal is empowered to hear viva voce evidence, it will often be necessary to compel attendance of witnesses by the use of a writ of subpoena. Where an administrative tribunal has the power to subpoena witnesses, the subpoena may take the form of either a Subpoena Ad Testificandum or a Subpoena Duces Tecum. Generally, the form of subpoena to be used will not be prescribed and the practice is to mold an ordinary subpoena from the Court of Queen's Bench to fit the circumstances. It is advisable to serve conduct money with the subpoena in accordance with the tribunal's statute or regulations (e.g., the Regulations to the Trade Union Act) or with the Rules of the Court of Queen's Bench. Where a tribunal has more than one member, any member may generally issue a subpoena. In practice, it is best to obtain the subpoena from the tribunal chairperson as he or she is more likely than other tribunal members to have experience in reviewing and issuing subpoenas and this should lessen the likelihood of subsequently having the subpoena quashed by the tribunal. A tribunal, like a court, may quash a subpoena if it finds that the subpoena is being used not to support a party's case but to see if that party has a case. 1. Statutory Tribunals Generally, statutory tribunals have the power to compel attendance of witnesses by virtue of their enabling legislation. In some cases (such as is now provided for in the Trade Union Act since it was amended in 2005), the legislation will specifically provide for the power to subpoena witnesses, hear viva voce evidence under oath and specify all manner of procedure with respect to the conduct of the hearing and the taking of evidence. In other cases (such as in the Saskatchewan Human Rights Code, S.S. 1979, c.s-24.1), the statute will refer to the fact that the tribunal has all the powers conferred upon commissioners appointed under the Public Inquiries Act, R.S.S. 1978, c. P-38. Revised June 2006

18 12 Saskatchewan: Bar Admission Program Section 31(2) of the Saskatchewan Human Rights Code says: 31(2) Subject to any procedures and rules established by the human rights tribunal panel pursuant to subsection 29.2(1), a human rights tribunal may determine its own procedure and may receive and accept any evidence and information on oath, affidavit or otherwise that in its discretion it considers appropriate, whether admissible as evidence in a court of law or not, and the human rights tribunal has all the powers conferred on commissioners by sections 3 and 4 of The Public Inquiries Act. Section 3 of the Public Inquiries Act reads as follows: 3. The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire. Pursuant to s. 4 of the Public Inquiries Act, the commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in a court of record in a civil case and have the same privileges and immunities as a judge of the Court of Queen s Bench. Ordinarily, where an enabling statute makes reference to the Public Inquiries Act, it will also go on to confer powers on the tribunal beyond those found in the Act. An example is a board of arbitration pursuant to the Surface Rights Acquisition and Compensation Act, R.S.S. 1978, c. S Consensual Tribunals A consensual arbitration board constituted pursuant to a collective bargaining agreement in accordance with the Trade Union Act is provided with, inter alia, the following powers in s. 25(2) of that Act: Revised June 2006

19 Saskatchewan: Bar Admission Program 13 25(2) An arbitrator or the chairperson of an arbitration board, as the case may be, may: (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases; (b) administer oaths; (c) accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in his or its discretion considers proper, whether admissible in a court of law or not;.... A consensual arbitration board to which the Arbitration Act, 1992 applies may determine the procedure to be followed in the arbitration, is not bound by the rules of evidence and may determine the manner in which evidence is to be admitted (ss. 21 and 22). The board must hold a hearing if a party requests it (s. 27) and the board has the power to direct a party to submit to examination on oath and produce documents (s. 26). The board may issue a notice with the same effect as a subpoena requiring a person to attend to give evidence or produce documents and may administer an oath and require a witness to testify under oath (s. 30). D. DISCLOSURE AND PARTICULARS In general, there is no formal process for pre-hearing disclosure or discovery when dealing with administrative tribunals. However, fairness requires that a party to be affected by a decision must have an opportunity to make representations. To do so, that party must know the case to be met. As such, depending upon the degree of fairness required of a particular tribunal, a duty exists to provide the other party with sufficient information to outline the case to be met. Often, the only way to determine the case to be met is to obtain particulars and/or documents from the opposite party. Revised 1999

20 14 Saskatchewan: Bar Admission Program For example, in the collective bargaining context, the meetings which generally follow each step of the grievance process operate as a informal form of discovery permitting each party to learn about the case of the other. However, unless the contract provides otherwise, there is no specific right to additional particulars. Regardless of whether there is a right to particulars prior to a hearing, a party who does not provide particulars at that point runs the risk of having the tribunal dismiss its claim at the hearing or order an adjournment of the hearing pending provision of particulars. If a party intends to argue for dismissal or adjournment due to insufficient particulars at the hearing, it must ensure that it has given the other party and the tribunal notice of that intention. Some tribunals will order provision of particulars or disclosure of documents during the pre-hearing stage. Those that do generally argue that this type of order is authorized by their enabling statute or contract or is part of their inherent right to control and establish procedure. In the case of a statutory tribunal, absent an express statutory authority to order pre-hearing disclosure, the tribunal may only have the ability to order disclosure at the hearing stage: C.P. Airlines v. CALPA, [1993] 3 S.C.R. 724 (S.C.C.). The following is a general description of a process to follow relating to provision of particulars or disclosure: i) send a letter to the other party specifying the information required; ii) send a copy of this letter to the executive officer or chairperson of the tribunal that will hear the case; Revised 1999

21 Saskatchewan: Bar Admission Program 15 iii) if the information is not provided, determine if the tribunal has the ability to order pre-hearing disclosure -- if so, proceed to apply for such an order as directed by the tribunal; iv) if the information is not provided and the tribunal does not have the ability to order pre-hearing disclosure, the issue should be raised at the commencement of the hearing; v) if the tribunal determines that the particulars are required, it will request or order the appropriate party to provide the particulars on the penalty of having its case dismissed; vi) if the tribunal elects to proceed without the particulars, the party seeking particulars should raise an objection and ask that the objection be noted in the tribunal's decision -- this may then be used as a basis for a judicial review. While disclosure or particulars may be ordered, there is generally no duty to disclose the identity of witnesses or to set out the evidence upon which a party will rely. E. AGREED STATEMENTS OF FACT AND ISSUE In many cases, particularly where the parties regularly appear before a tribunal, it is possible to proceed by way of an Agreed Statement of Facts and Issues. If it appears that it might be possible for the parties to reach such an agreement, the tribunal should be contacted and asked about its policy in this regard. Revised 1999

22 16 Saskatchewan: Bar Admission Program F. PREPARATION OF WITNESSES Due to the expedited nature of administrative proceedings, there may be less time for the preparation of witnesses in the administrative sphere than in the court process. However, the two forums require the same level of preparation of witnesses and the same importance is placed on viva voce evidence. In particular, when dealing with a witness who is inexperienced at appearing before a specific tribunal, counsel should make sure to fully explain the powers and procedures of the tribunal to the witness. G. PRE-HEARINGS Some administrative tribunals utilize pre-hearings for management and/or settlement purposes. In the case of statutory tribunals, some legislation expressly provides for pre-hearings. Other statutory and consensual tribunals may have the ability to hold pre-hearings as an incident of their right to control their procedure. Pre-hearings are particularly useful where the matter before the tribunal is likely to require a protracted hearing involving numerous parties. Pre-hearings may be used to narrow the issues, to address disclosure, particulars or order of evidence, to discuss available dates for the hearing and/or to facilitate settlement of the matter before the tribunal. VI. THE HEARING Administrative hearings are similar to the judicial process in most respects apart from certain legal formalities and procedures that attend a civil suit. Specific facets of the hearing procedure may be set out in the tribunal's enabling statute or agreement, however, administrative hearings are usually conducted as an adversarial process in which the tribunal decides the issues after hearing the evidence and argument presented by each party. Revised 1999

23 Saskatchewan: Bar Admission Program 17 A. PRELIMINARY OBJECTIONS 1. Generally Unless the tribunal at issue has the ability to order relief prior to the hearing, an objection to the propriety of proceedings will be raised as a preliminary matter prior to the commencement of the hearing. Courtesy and fairness ordinarily demand that written notice of the nature of preliminary objections should be provided to the party adverse in interest and to the tribunal prior to the hearing date. Two general examples of preliminary objections are an objection to the jurisdiction of the tribunal to hear the application or an objection alleging a defect in the constitution of the panel. An objection which goes to the merits of the matters in issue should not be heard as a preliminary objection. Preliminary objections are often made on the basis of agreed facts between the parties but on occasion evidence will be required to prove the facts necessary to sustain the objection. The party raising the objection is ordinarily required to call evidence on it. The other party then has the opportunity, if necessary to call its own evidence. The tribunal will consider the following factors before rendering a decision on a preliminary objection: i) whether the objection may be simply and expeditiously decided; ii) whether the decision on the objection would likely dispose of the entire case; and Revised 1999

24 18 Saskatchewan: Bar Admission Program iii) whether the hearing on the merits of the case itself is likely to take many days or entail considerable expense. After reviewing these factors, the tribunal will proceed in one of the following ways: i) adjourn the hearing, pending a decision on the preliminary objection, thereafter reconvening the hearing at a later date to continue with the merits, if necessary; ii) render an immediate decision and continue with the merits; or iii) reserve decision with respect to the preliminary objection and continue with the hearing on the merits. The first course is usually chosen where the preliminary objection is complicated and the hearing on the merits would take a great deal of time or the decision on the preliminary issue would likely dispose of the entire matter. The latter course is usually pursued if the preliminary objection is complicated, but the hearing on the merits may be accomplished quickly or delay would unduly prejudice one party or the other. In the event that the tribunal decides against the party making a preliminary objection and elects to proceed, the party must decide whether prohibition is available and advisable to restrain the tribunal from proceeding prior to determination of the issue by a court. This subject will be canvassed further in the Judicial Review section of this paper. Revised 1999

25 Saskatchewan: Bar Admission Program Denial of Natural Justice / Bias (a) Making the objection In the event that, prior to or part way through a hearing, the issue of bias or the apprehension of bias on the part of one or more members of the tribunal arises, a decision must be made. The party alleging bias can choose to raise the issue before the tribunal, proceed with the hearing if the tribunal rules against it and raise the issue again on judicial review after the tribunal renders a final decision. Alternatively, the party alleging bias may proceed immediately to court on a prohibition application. Whatever course of action is chosen must be done quickly and correctly -- bias or denial of natural justice can be waived by words, conduct or omission. The first option described above may be a dangerous one. Most tribunals will refuse to determine the issue of bias of one of their members unless the parties agree that the tribunal is to make the determination. If a party does not object to the tribunal deciding the issue then that party can likely not review the tribunal's decision in court: McDonald's Consolidated Ltd. v. S.J.B.R.W.D.S.U. (1988), 65 Sask. R. 224 (Sask. Q.B.). The cautious approach is not to proceed before the tribunal until a court has decided the matter. The usual procedure is to request the tribunal to adjourn to a specified date allowing sufficient time for the appropriate court application to be made. (b) The nature of bias The standard of proof in an application involving an allegation of bias is on a balance of probabilities and the case may be established by affidavit evidence. It is not necessary to show actual bias -- a reasonable apprehension of bias is sufficient. A reasonable apprehension of bias is shown where a reasonable person, knowing the facts concerning the panel member, would suspect that the member or tribunal may be influenced, albeit unintentionally, by improper considerations to favour one side in the matter to be decided. Revised 1999

26 20 Saskatchewan: Bar Admission Program Allegations of bias generally take two forms: i) institutional bias which can be shown only if a fully-informed person would have a reasonable apprehension of bias in a substantial number of cases decided by the tribunal: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (S.C.C.); and ii) bias on the part of a specific decision maker as a result of that decision maker's conduct in or connection to a specific case. The latter form of bias may be found in the following situations: i) a tribunal member is a relative, friend or business associate of a party or witness; ii) a tribunal member is associated with a competitor of a party and there is a possibility that the competitor could benefit if the tribunal decides against the party; iii) a tribunal member has met privately with one party in the absence of other parties; iv) the tribunal's decision is written by one party; v) a tribunal member has a pecuniary interest in the matter which he or she is called to decide; vi) a tribunal member is a witness in the matter which he or she is called to decide; and vii) a tribunal member makes improper comments or acts inappropriately during the hearing. Revised May 2004

27 Saskatchewan: Bar Admission Program 21 In Newfoundland Telephone Co. v. Public Utilities Board, [1992] 1 S.C.R. 623 (S.C.C.), the court took a functional approach to the issue of when actions that may be perceived to be biased are, in fact, biased. The test for bias identified above would be applied differently depending upon the nature of the tribunal and the stage in the hearing process at which the tribunal is engaged when the impugned behaviour occurs. In the Newfoundland Telephone decision, the court held that if the primary function of a tribunal was to act like a court then the standard to be applied was rigid -- no reasonable apprehension of bias on the part of any of its members would be tolerated. On the other hand, if the tribunal's primary function was to make political or policy decisions, the standard to be applied was less rigid -- the tribunal's members merely had to have a reasonably open mind. The court also held that while a tribunal was engaged in the investigation stage prior to hearing the standard applied would be less rigid than when the tribunal moved into its hearing and adjudicative stage. These tenets were applied by the Saskatchewan Court of Appeal in Saskatchewan Human Rights Commission v. Reimer (1992), 98 D.L.R. (4th) 51 (Sask. C.A.) when that court held that the bias test for investigative bodies was that of open-mindedness while the test for adjudicative bodies was that of a reasonable apprehension of bias. More recent decisions from the Supreme Court of Canada on institutional bias have revived the functional analysis identified in Newfoundland Telephone, supra but have also arguably complicated the inquiry by making it necessary to apply the functional approach to multi-functional tribunals in order to determine if institutional bias exists: Matsqui, supra, Ruffo v. Quebec (Conseil de la Magistrature), [1995] 4 S.C.R. 267 (S.C.C.), A.G. Quebec v Quebec Inc., [1996] 3 S.C.R. 919 (S.C.C.) and Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4 th ) 193 (S.C.C.). The Arbitration Act, 1992 provides for special procedures to be followed to remove a tribunal member as a result of perceived bias in arbitrations conducted pursuant to that Act. Revised June 2006

28 22 Saskatchewan: Bar Admission Program 3. The Charter of Rights and Freedoms In the case of a statutory tribunal, a preliminary objection may be made to the effect that the enabling statute or portions thereof violate the Charter. Section 32 of the Charter provides for its application to the provinces as follows: 32(1) This Charter applies... (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. Because statutory tribunals derive their authority from the legislature, they are subject to the restrictions contained in the Charter. Conversely, consensual tribunals which derive their authority from an agreement between two or more non-governmental parties are not subject to the Charter. The issue of the application of the Charter to subordinate bodies created and supported by Parliament or the legislature (e.g., universities, hospitals, community colleges, crown corporations) is somewhat less clear. The courts apply a degree of control test enunciated in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (S.C.C.) to determine if these organizations are subject to scrutiny under the Charter. If a party intends to raise a preliminary objection based upon the violation of the Charter, the question which must be examined is whether to raise this objection before the tribunal itself or whether to make a court application. In order to determine the appropriate response to this question, it is necessary to look at the ways in which the Charter can be invoked by a party to administrative proceedings. (a) Section 24(1) of the Charter and Section 52(1) of the Constitution Act, 1982 Section 24(1) of the Charter reads as follows: Revised May 2004

29 Saskatchewan: Bar Admission Program 23 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances. Section 52(1) of the Constitution Act, 1982 reads as follows: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The Supreme Court of Canada, in R. v. Mills, [1986] 1 S.C.R. 863 (S.C.C.), has promulgated a three pronged test to determine whether a tribunal has the authority to determine a Charter claim: i) the tribunal must have jurisdiction over the parties; ii) iii) the tribunal must have jurisdiction over the subject matter of the dispute; and the tribunal must have jurisdiction over the remedy sought. The use of the Mills test was confirmed by the Court in its trilogy of decisions in Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570 (S.C.C.), Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.) and Tetreault-Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22 (S.C.C.). More recently, the Mills test was applied in Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75 (S.C.C.) and the rules set out in Mills were reappraised and restated as a set of guidelines in Nova Scotia (Workers Compensation Board) v. Martin; Nova Scotia (Workers Compensation Board) v. Laseur (2003), 310 N.R. 22 (S.C.C.) as follows, at paragraph 48: The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, Revised June 2006

30 24 Saskatchewan: Bar Admission Program this power will be presumed to include jurisdiction to determine the constitutional validity of that provision of the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court than an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category 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. Some jurisdictions, such as British Columbia (the Administrative Tribunals Act, S.B.C. 2004, c. 45) and Alberta (the Administrative Procedures Amendment Act, S.A. 2005, c. 4), have enacted specific legislation indicating which administrative tribunals have authority to determine Charter issues and the limits, if any, on that authority. To date, Saskatchewan has not moved in this direction. The movement of legislatures to enact legislation addressing the case law in this area is confirmation (if any is needed) that the first place counsel should look to see what authority an administrative tribunal has is in the legislation which applies to that tribunal. (b) Procedure for Charter Objection The onus of proof required to show a breach of a Charter provision is on the party seeking a declaration that the statutory provision at issue violates the Charter. The onus of proof of justification under s. 1 of the Charter applying the test from R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). is on the party who seeks to uphold the legislation. It is recommended that an objection under the Charter be made in the first instance to the tribunal. Only if the Charter objection is unsuccessful before the tribunal should a party proceed to the court by way of appeal or judicial review. Courts will generally decline to hear Charter arguments not raised before the tribunal on the basis that until the matter is heard by the tribunal no proper record exists upon which to base a determination of a violation of the Charter and/or a justification under s. 1. A secondary reason for the courts deference under these circumstances is the tribunal's expertise relating to its own enabling statute. Finally, as a condition precedent to raising a Charter objection, a party must remember to serve the requisite notice(s) under the Constitutional Questions Act, R.S.S. 1978, c. C-29. Revised June 2006

31 Saskatchewan: Bar Admission Program 25 B. THE HEARING PROPER 1. Procedure Ordinarily, the party bearing the onus of proof will proceed first with the presentation of its evidence. The party that calls a witness examines first and then has a right to re-examine after cross examination by the adverse party. Unlike the court process, many tribunal members ask their own questions of the witnesses called by the parties. Counsel should ensure that witnesses are aware of this possibility. Most administrative tribunals follow the usual rules of evidence, including those governing hearsay and expert evidence, but with much less strictness than in the court process. It is generally not useful to present objections on such issues as the use of hearsay evidence or of uncertified documents, unless the evidence goes to a crucial issue or there are serious reasons for the objection. As in civil cases, tribunals, on the request of either party, will order the exclusion of all witnesses except the individual who is instructing counsel. 2. Opening Statements Most tribunals will allow counsel to make opening statements. Without an opening statement, the members of the tribunal may have little information about the specific issues before them due to the lack of formal pleadings. By making an opening statement, counsel can focus the tribunal's attention on those specific issues and can provide a context for the evidence which follows. Further, if the parties have agreed to certain facts or issues, the tribunal should be advised of this agreement at this point in the hearing. Revised 1999